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10-4552

United States v. Moses

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 20th 4 day of October, two thousand eleven.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 JON O. NEWMAN,

9 GERARD E. LYNCH,

10 Circuit Judges.

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13 UNITED STATES OF AMERICA, 

14 Appellee,

15

16 -v.- 10-4552

17

18 RICHARD E. MOSES, JR., AKA DICKY

19 MOSES, 

20 Defendant-Appellant.

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22

23 FOR APPELLANT: Arza Feldman, Uniondale, New

24 York.

25

26 FOR APPELLEES: Paul J. Van de Graaf, Heather E.

27 Ross, Assistant United States

28 Attorneys, for Tristram J.

29 Coffin, United States Attorney

30 for the District of Vermont,

31 Burlington, Vermont.
2

1 Appeal from a judgment of the United States District

2 Court for the District of Vermont (Murtha, J.).

3

4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

5 AND DECREED that the judgment of the district court be

6 AFFIRMED. 

7

8 Richard E. Moses, Jr. appeals from a judgment of

9 conviction, following a guilty plea to one count of

10 conspiracy to distribute more than five kilograms of

11 cocaine, one count of conspiracy to use and carry a firearm

12 during and in relation to a drug trafficking crime, and one

13 count of attempting to kill a witness. We assume the

14 parties’ familiarity with the underlying facts, the

15 procedural history, and the issues presented for review.

16

17 Moses appeals the district court’s denial of his motion

18 to withdraw his guilty plea. Moses sought to withdraw on

19 the ground that the trial judge impermissibly participated

20 in plea discussions in violation of Federal Rule of Criminal

21 Procedure 11(c)(1). Moses also argues that the trial judge

22 imposed an unreasonable sentence in retaliation for Moses’

23 motion to withdraw his guilty plea. Neither contention has

24 merit. 

25

26 [1] “A defendant may withdraw a plea of guilty . . .

27 after the court accepts the plea, but before it imposes

28 sentence if . . . the defendant can show a fair and just

29 reason for requesting the withdrawal.” FED. R. CRIM. P.

30 11(d)(2)(B). When a defendant alleges that a procedural

31 violation should permit withdrawal, the court may assess the

32 merits of the defendant’s argument. If the argument is

33 without merit, the defendant has not shown a “fair and just

34 reason.” Id.; see United States v. Schmidt, 373 F.3d 100,

35 103 (2d Cir. 2004).

36

37 Moses argues that comments made by the district court

38 during sidebar colloquies on August 7 and August 8, 2008

39 violated RULE 11(c)(1) and coerced Moses to plead guilty. 

40 However, the rule against court participation in plea

41 discussions “does not establish a series of traps for

42 imperfectly articulated oral remarks.” United States v.

43 Paul, 634 F.3d 668, 673 (2d Cir. 2011) (quoting United

44 States v. Frank, 36 F.3d 898, 903 (9th Cir. 1994)). We

45 therefore consider the court’s comments in context.

46
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1 Addressing Moses’ attorney at sidebar, the court said,

2 “I think the way this trial is going he’s got some problems. 

3 If other witnesses are going to testify in a similar manner

4 to the witnesses I’ve seen so far you’ve got some real

5 problems here.” The court also remarked in reference to a

6 possible plea offer, “15 years is a lot of years . . . . But

7 life is, that’s, as you know, many years.” The context of

8 these comments--and others cited by Moses--makes clear that

9 their purpose and effect was not to pressure Moses to plead

10 guilty: It was to ensure that Moses’ attorney was aware of

11 the prosecution’s plea offers and was communicating them to

12 his client. The defense attorney was Moses’ fourth, and the

13 record of the sidebar suggests counsel was unaware that the

14 prosecution had made plea offers. 

15

16 In any event, RULE 11 violations are subject to

17 harmless error analysis. See Paul, 634 F.3d at 673-74. 

18 Here, the court made the comments at a sidebar with the

19 prosecutor and Moses’ defense attorney. There is no

20 evidence that these comments were relayed to Moses or that

21 they affected his decision to plead guilty.

22

23 [2] Moses argues that the court imposed a twenty-five

24 year sentence in retaliation for his motion to withdraw his

25 guilty plea. However, the plea agreement that Moses signed

26 stipulated a term of imprisonment of at least twenty years

27 and not more than twenty-five years. Moses presents no

28 evidence that the court sentenced him to the higher number

29 out of vindictiveness or that the sentence was otherwise

30 unreasonable.

31

32 Finding no merit in Moses’ remaining arguments, we

33 hereby AFFIRM the judgment of the district court.

34

35

36 FOR THE COURT:

37 CATHERINE O’HAGAN WOLFE, CLERK

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