1 10-4552 United States v. Moses



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 20 th** **day of October, two thousand eleven.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **JON O. NEWMAN,** 8 **GERARD E. LYNCH,** 9 **Circuit Judges**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **UNITED STATES OF AMERICA,** 13 **Appellee ,**  14 15 **-v.- 10-4552** 16 17 **RICHARD E. MOSES, JR., AKA DICKY** 18 **MOSES,** 19 **Defendant-Appellant**

**.** 20 - - - - - - - - - - - - - - - - - - - -X 21 22 **FOR APPELLANT:** Arza Feldman, Uniondale, New 23 York. 24 25 **FOR APPELLEES:** Paul J. Van de Graaf, Heather E. 26 Ross, Assistant United States 27 Attorneys, forTristram J. 28 Coffin, United States Attorney 29 for the District of Vermont, 30 Burlington, Vermont. 312 Appeal from a judgment of the United States District 1 Court for the District of Vermont (Murtha, J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 4 **AND DECREED**that the judgment of the district court be 5
**AFFIRMED**

. 6 7 Richard E. Moses, Jr. appeals from a judgment of 8 conviction, following a guilty plea to one count of 9 conspiracy to distribute more than five kilograms of 10 cocaine, one count of conspiracy to use and carry a firearm 11 during and in relation to a drug trafficking crime, and one 12 count of attempting to kill a witness. We assume the 13 parties’ familiarity with the underlying facts, the 14 procedural history, and the issues presented for review. 15 16 Moses appeals the district court’s denial of his motion 17 to withdraw his guilty plea. Moses sought to withdraw on 18 the ground that the trial judge impermissibly participated 19 in plea discussions in violation of Federal Rule of Criminal 20 Procedure 11(c)(1). Moses also argues that the trial judge 21 imposed an unreasonable sentence in retaliation for Moses’ 22 motion to withdraw his guilty plea. Neither contention has 23 merit. 24 25 **[1]** “A defendant may withdraw a plea of guilty . . . 26 after the court accepts the plea, but before it imposes 27 sentence if . . . the defendant can show a fair and just 28 reason for requesting the withdrawal.” F ED

. R. C RIM

. P. 29 11(d)(2)(B)

**.** When a defendant alleges that a procedural 30 violation should permit withdrawal, the court may assess the 31 merits of the defendant’s argument. If the argument is 32 without merit, the defendant has not shown a “fair and just 33 reason.” Id. ; see United States v. Schmidt , 373 F.3d 100, 34 103 (2d Cir. 2004). 35 36 Moses argues that comments made by the district court 37 during sidebar colloquies on August 7 and August 8, 2008 38 violated RULE 11(c)(1) and coerced Moses to plead guilty. 39 However, the rule against court participation in plea 40 discussions “does not establish a series of traps for 41 imperfectly articulated oral remarks.” United States v. 42 Paul
, 634 F.3d 668, 673 (2d Cir. 2011) (quoting United 43 States v. Frank
, 36 F.3d 898, 903 (9th Cir. 1994)). We 44 therefore consider the court’s comments in context. 45 463 Addressing Moses’ attorney at sidebar, the court said, 1 “I think the way this trial is going he’s got some problems. 2 If other witnesses are going to testify in a similar manner 3 to the witnesses I’ve seen so far you’ve got some real 4 problems here.” The court also remarked in reference to a 5 possible plea offer, “15 years is a lot of years . . . . But 6 life is, that’s, as you know, many years.” The context of 7 these comments--and others cited by Moses--makes clear that 8 their purpose and effect was not to pressure Moses to plead 9 guilty: It was to ensure that Moses’ attorney was aware of 10 the prosecution’s plea offers and was communicating them to 11 his client. The defense attorney was Moses’ fourth, and the 12 record of the sidebar suggests counsel was unaware that the 13 prosecution had made plea offers. 14 15 In any event, R ULE 11 violations are subject to 16 harmless error analysis. See Paul , 634 F.3d at 673-74. 17 Here, the court made the comments at a sidebar with the 18 prosecutor and Moses’ defense attorney. There is no 19 evidence that these comments were relayed to Moses or that 20 they affected his decision to plead guilty. 21 22 **[2]** Moses argues that the court imposed a twenty-five 23 year sentence in retaliation for his motion to withdraw his 24 guilty plea. However, the plea agreement that Moses signed 25 stipulated a term of imprisonment of at least twenty years 26 and not more than twenty-five years. Moses presents no 27 evidence that the court sentenced him to the higher number 28 out of vindictiveness or that the sentence was otherwise 29 unreasonable. 30 31 Finding no merit in Moses’ remaining arguments, we 32 hereby **AFFIRM** the judgment of the district court. 33 34 35 FOR THE COURT: 36 CATHERINE O’HAGAN WOLFE, CLERK 37 38