IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 94-60771

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LEMMUEL AMON BOND,

Defendant-Appellant.

 

Appeal from the United States District Court

for the Southern District of Texas 

 

June 27, 1996

Before GARW00D, HIGGINBOTHAM, and BENAVIDES, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

This case concerns a defendant’s attempt to withdraw a

guilty plea he entered before fleeing the country. The district

court refused to allow the defendant to withdraw the plea. We

affirm.

I

In 1990, federal law enforcement officials began

investigations into a drug ring centered in part around a man named

Sergio Duque. Using a confidential informant, the DEA arrested

several members of the ring who had delivered over 300 kilograms of

cocaine to a truck stop in Texas. At about that time the DEA
2

seized a Suburban, a cellular phone, and several miscellaneous

weapons. The defendant, Lemuel Bond, turned himself in a few days

after the arrests. Almost immediately, the DEA initiated

administrative proceedings to forfeit the Suburban and cellular

phone; later proceedings included the weapons as well.

A grand jury indicted Bond for conspiracy to possess and

actual possession of more than five kilograms of cocaine. Bond

initially pled not guilty. On December 19, 1990, Bond met with

several DEA and IRS agents. The meeting centered on Bond’s offer

to serve as a government undercover informant in return for

leniency. Bond’s counsel was not present at the meeting. Nine

days later, the DEA declared the suburban forfeited. The

forfeiture papers recited that the DEA had received no claims upon

the vehicle, listed the owner as one “Joseph B. Robles,” and

declared the property forfeited pursuant to 21 U.S.C. § 881.

On January 10, 1991, Bond was rearraigned and pled guilty to

the conspiracy count of the indictment. The plea agreement

consisted of a written document and several terms memorialized only

by oral statements from the Assistant United States Attorney to the

district court. The written agreement required Bond to plead

guilty to conspiracy and the government to dismiss the possession

count, stipulate that Bond had accepted responsibility, and

recommend a sentence at the bottom of the guidelines range. At the

plea colloquy, the AUSA also asked the court to release Bond on a

surety bond to allow him to participate in an undercover operation.

The AUSA stated that “if [Bond] is able to provide substantial
3

assistance to the government[,] we will file a motion 5K1 under the

guidelines for a downward departure at the time of sentencing.”

The district court gave a standard set of admonishments to Bond; on

the subject of the expected sentence, the court stated only as

follows: “[T]he maximum theoretical imprisonment is ten years up

to life and up to a $4 million fine and at least five years of

supervised release.” The court did specifically mention the

statutory minimum sentence.

Bond was released on bond and began cooperating with the

government. He completed a meeting with Duque in New York City and

verified a few pieces of information regarding the Duque

organization. On January 18, the DEA declared that the cellular

telephone seized in the arrest was forfeited; this forfeiture

declaration listed Bond as the phone’s owner and the basis of the

forfeiture as 21 U.S.C. § 881.

The probation office had completed a Pre-Sentence Report by

February 23, 1991. Objections were then due by March 5, and

sentencing set for April 11. Before the sentencing date, Bond fled

the United States. Some two years after his flight, Bond made an

audio tape and sent it to officials in the United States; the tape

included various allegations of misconduct by law enforcement

officials, and suggested that Bond fled because he feared that he

would be murdered by members of a Colombian drug organization.

Bond remained abroad until he was arrested in June of 1993 in

Honduras and brought back to the United States. While Bond was

abroad, the DEA issued notice that the miscellaneous weapons seized
4

at the drug arrests had been forfeited as abandoned. The notice

listed Bond as the weapons’ owner.

One month later, Bond filed the first of four eventual motions

to withdraw his guilty plea. In toto, the motions made the

following allegations and arguments in support of the request to

withdraw the plea:

1. The government breached its obligations under the plea

agreement by failing to enroll Bond and his family in the federal

witness protection program, and by failing to otherwise protect

Bond and his family from imminent threats from Colombian drug

organizations. Bond’s flight resulted from this fear. The

government also anticipatorily breached its obligations under the

plea bargain by announcing its intention not to file a motion under

U.S.S.G. § 5K1.1 for a downward departure.

2. Government law enforcement agents coerced Bond into lying to

other agents and to the district court with threats of violence to

his person and of prosecution of his family made at the December

19, 1990 meeting, which was conducted in violation of Bond’s right

to counsel.

3. The court should exercise its discretion to allow Bond to

withdraw the plea because it was made promptly upon his recapture,

and because Bond was factually innocent of the charges.

4. The district court failed to comply with Fed. R. Crim. P. 11

because it did not inform Bond of the statutory minimum sentence

attending the conspiracy charge.

A magistrate judge held a hearing upon the motion to withdraw

the plea. At the hearing, the magistrate initially admitted into

evidence, over the government’s objection that it was hearsay, a

transcript of the tape Bond made while abroad. The magistrate also

heard testimony of several law enforcement officers familiar with

Bond’s case. The officers uniformly testified that while the

government had promised to protect Bond, it had never promised to

put him in the federal witness protection program, and that Bond

had at no time expressed a fear that he was in imminent danger of

harm from any source. Each officer agreed that Bond had cooperated
5

up until his flight, but that he had generated no information of

value at that time. All testified that they had not threatened

Bond in any way. Because of the passage of time, no officer was

able to remember a specific phone conversation during which he or

she had obtained the permission of Bond’s attorney to conduct the

December 19 meeting in counsel’s absence, but each would have

obtained such permission before conducting the meeting, and each

thought that counsel had consented. Bond called his previous

attorney, who testified that he could not remember specifically

giving permission for the December 19 meeting to occur, but that he

had at one point before Bond’s guilty plea given agents permission

to interview Bond without counsel. The attorney also stated that

he would have wanted to be present at an interview like that held

on December 19. Also in his case in chief, Bond introduced notes

of the December 19 meeting and another government document

suggesting that the officers had discussed the federal witness

protection program with Bond and that Bond had initially demanded

that he and his family be placed in it.

After calling all other witnesses, Bond’s counsel attempted to

elicit a ruling from the magistrate judge that if Bond took the

stand to testify as to the terms of his plea bargain, he would not

be subject to government questioning regarding his plea of actual

innocence. In response, the magistrate stated that if Bond took

the stand, he would be forced to answer questions regarding any and

all grounds in his motion to withdraw, and that he could avoid

questioning about his role in the underlying drug transaction only
6

if he abandoned his claim of actual innocence. Bond did not

testify.

The magistrate issued a report recommending that Bond’s motion

be denied. In its report, the magistrate reversed the earlier

ruling admitting the transcript of the tape Bond made while a

fugitive, explaining that the decision to admit had been based upon

the mistaken assumption that Bond would take the stand and that the

government on cross-examination would attempt to show that Bond’s

stated reasons for flight were recent fabrications. In the absence

of the transcript of the tape, the magistrate found no evidence in

the record supporting Bond’s allegations of a breach of the plea

agreement or misconduct by government agents. The magistrate found

that failing to inform Bond of the minimum prison sentence was

harmless error in that Bond would have pled guilty after a complete

Rule 11 colloquy. The magistrate found that federal agents had in

fact obtained the permission of Bond’s attorney to conduct the

December 19 meeting with Bond in counsel’s absence. Finally, the

magistrate refused to exercise its discretion to allow Bond to

withdraw his plea, relying on the total absence of evidence in the

record to support Bond’s innocence, the delay of well over two

years in filing the motion, and Bond’s flight.

Bond filed objections to the magistrate judge’s report

together with a motion to dismiss the indictment based on double

jeopardy principles. The motion alleged that Bond had not received

notice of the forfeiture of the Suburban, the cellular phone, or

the miscellaneous weapons, and that forfeiture of these items
7

constituted prior jeopardy. The district court denied the motion.

The court also found that Bond had not rendered substantial

assistance to the government in that his activities had resulted in

no arrests, indictments, convictions, or seizure of property.

After adopting the report and recommendations of the magistrate,

the district court sentenced Bond to 27 years in prison and five

years supervised release.

II

Bond appeals on numerous grounds. His primary argument is

that the Double Jeopardy Clause prevented the government from

punishing him after forfeiting the Suburban, the cellular phone,

and the miscellaneous weapons. His secondary contention is that

the district court should have allowed him to withdraw his plea.

Bond makes arguments based upon an alleged government violation of

Brady v. Maryland, 373 U.S. 83 (1963), and irregularities in the

sentencing process; after examining the record on these latter

contentions, we conclude that they lack merit.

A

We hold that the forfeitures of the Suburban, phone, and

miscellaneous weapons did not bar Bond’s criminal conviction. The

forfeitures of Bond’s phone and weapons could not constitute prior

jeopardy because both occurred after January 10, 1991, the date

Bond pled guilty. See United States v. Wong, 62 F.3d 1212, 1214

(9th Cir. 1995) (“[J]eopardy attaches in [a] criminal action at the

time [the] guilty plea is accepted by the court.”) (alterations
8

added) (citing United States v. Smith, 912 F.2d 332, 324 (9th Cir.

1990)); see also United States v. Torres, 28 F.3d 1463, 1465 (7th

Cir.) (“You can’t have double jeopardy without a former

jeopardy.”), cert. denied, 115 S. Ct. 669 (1994). Bond’s double

jeopardy theory might support a return of the phone and weapons; it

does not support his motion to dismiss the indictment. The

forfeiture of the Suburban could not constitute prior jeopardy

because Bond filed no claim in that forfeiture proceeding and

because the declaration of forfeiture listed Joseph B. Robles, not

Bond, as the owner of the Suburban. United States v. ArreolaRamos, 60 F.3d 188, 192 (5th Cir. 1995). Under the reasoning of

Ramos, the Suburban belonged either to Robles or to no one, and

thus its forfeiture could not constitute punishment against Bond.

Bond’s allegation that he received no notice of these proceedings

is irrelevant to his double jeopardy argument. Id. at 190-91.

B

We hold that the district court committed no error by refusing

to allow Bond to withdraw his guilty plea. The district court’s

decision depended primarily on two evidentiary rulings: first,

that the transcript of the tape Bond made while a fugitive was

inadmissible; and second, that if Bond took the stand to testify

regarding the terms of his plea agreement, he would be subject to

cross-examination regarding all of the grounds asserted in his

motion to withdraw. We affirm the first ruling and find the second

not preserved for appellate review. Our rulings on these
 

1 Bond finds fault in the magistrate’s post-hearing reversal

of the decision to admit the transcript, arguing that had he known

that the transcript was inadmissible, he could have taken the stand

to testify on his own behalf. We find this argument unpersuasive.

The evidentiary ruling was, of course, subject to reconsideration

at any time before final judgment, and we cannot label reasonable

Bond’s supposed reliance on the magistrate’s initial ruling that

this type of rank, self-serving hearsay was admissible.

9

evidentiary matters lead us to affirm the district court’s

decision.

1

Bond complains of two of the magistrate judge’s evidentiary

rulings. We find no reversible error.

The magistrate judge initially admitted into evidence a

transcript of the tape Bond made while a fugitive, but later

reversed himself and held that the transcript constituted

inadmissable hearsay. We agree with the magistrate’s ultimate

result. The transcript was not admissible under Fed. R. Evid.

801(d)(1)(B) because Bond did not testify. It was not admissible

as an admission by a party-opponent because it was not “offered

against a party” within the meaning of Fed. R. Evid. 801(d)(2);

Bond offered the transcript to benefit himself. The transcript was

hearsay, fell within no hearsay exception, and the magistrate judge

correctly excluded it from evidence.1

Bond also attacks the magistrate judge’s statements from the

bench, in effect a ruling on a motion in limine, that if Bond took

the stand to testify regarding the terms of his plea bargain, he

would waive his privilege against self-incrimination with regard to

all grounds asserted in his motion to withdraw. See Calloway v.
10

Wainwright, 409 F.2d 59 (5th Cir. 1968), cert. denied, 395 U.S. 909

(1969). But see McGahee v. Massey, 667 F.2d 1357 (11th Cir.),

cert. denied, 459 U.S. 943 (1982). We hold that Bond has failed to

preserve this issue for appellate review.

In Luce v. United States, 469 U.S. 38 (1984), the Supreme

Court held that a defendant’s refusal to take the stand prevented

the court of appeals from reviewing his contention that the

district court improperly denied his Fed. R. Evid. 609(a)(1) motion

in limine to preclude impeachment by evidence of a prior

conviction. The Supreme Court supported its conclusion on several

grounds. First, the Court noted that Rule 609(a)(1) requires a

careful balancing of the probative value of the prior conviction

against the prejudicial effect to the defendant, and in order to

conduct this balancing effectively, the district court “must know

the precise nature of the defendant’s testimony.” Id. at 41.

Second, the Court labeled speculative any possible harm from the

refusal to grant the motion in limine, since the district court

could always rule in the defendant’s favor after hearing his

testimony and because the government might decline to use the

conviction to impeach. Third, the Court noted that because “an

accused’s decision whether to testify ‘seldom turns on the

resolution of one factor,’ a reviewing court cannot assume that the

adverse ruling motivated a defendant’s decision not to testify.”

Id. at 42 (quoting New Jersey v. Portash, 440 U.S. 450, 467 (1979)

(Blackmun, J. dissenting)). Fourth, the Court noted that an

accused’s failure to take the stand makes it difficult to conduct
 

2 See also United States v. Sanderson, 966 F.2d 184, 189-90

(6th Cir. 1992) (Fed. R. Evid. 608(b)); United States v. Ortiz, 857

F.2d 900, 905-06 (2d Cir. 1988) (Fed. R. Evid. 404(b)), cert.

denied, 489 U.S. 1070 (1989); United States v. Griffin, 818 F.2d

97, 103-04 (1st. Cir.) (Fed. R. Evid. 403), cert. denied, 484 U.S.

844 (1987); United States v. Weichert, 783 F.2d 23, 25 (2d Cir.)

(Rule 608(b)), cert. denied, 479 U.S. 831 (1986).

11

a harmless error analysis; the Court found no comfort in the

possibility of a detailed offer of proof because the defendant’s

“trial testimony could, for any number of reasons, differ from the

proffer.” 469 U.S. at 41 n.5.

In this case, as in Luce, “[t]here was no commitment by

petitioner that he would testify if the motion were granted, nor

did he make a proffer to the court as to what his testimony would

be.” 469 U.S. at 39. Moreover, the second, third, and fourth

concerns of Luce are equally present here. This case does not

involve Rule 609(a), but courts have refused to limit Luce to Rule

609(a) cases and have instead applied its principles to analogous

contexts. See, e.g., United States v. Nivica, 887 F.2d 1110, 1115-

17 (1st Cir. 1989) (invoking the Luce doctrine in a case involving

a district court’s denial of a defendant’s motion in limine to

limit the scope of cross-examination of the defendant to the

subjects addressed on direct), cert. denied, 494 U.S. 1005 (1990).2

While we do not necessarily endorse the holdings of these cases, we

do draw from them the principle that Luce is not limited to rulings

footed upon Rule 609(a).

It is not possible to separate testimony regarding the terms

of Bond’s plea agreement from the circumstances leading to that

agreement. As the government largely conceded below, the entirety
12

of the terms of Bond’s bargain were not included in either the

written plea agreement or in the rearraignment colloquy. We

believe it likely that in order for his testimony to have carried

any persuasive force, Bond would have had to delve into the events

underlying his arrest and the nature of the assistance he offered

federal law enforcement officials. An inquiry into such matters

would necessarily have concerned Bond’s factual guilt or innocence,

a subject Bond strenuously sought to avoid.

We find the difficulties inherent in separating those subjects

about which Bond wished to testify from those he did not analogous

to the first concern of the Luce court. Without hearing the

testimony, the magistrate had little chance of knowing whether

Bond’s testimony could be limited in accordance with his motion.

The magistrate could not perform the careful, fact-specific

analysis required to separate subjects and categorize evidence as

going to one issue or another.

We recognize that the Luce court distinguished Portash in part

on the ground that, like this case, Portash involved a

constitutional claim. Luce also distinguished Portash as a state

case involving the question of whether a state appellate court’s

ruling on the merits had properly preserved the federal issue for

Supreme Court review under state procedural law. In addition, we

note that at least four justices of the Portash court stated or

hinted that the issue either had not been properly preserved, even

in the state court context, or might not have been properly

preserved had the case arisen in federal court. 440 U.S. at 462-63
13

(Powell, J., joined by Rehnquist, J., concurring); 440 U.S. at 463-

71 (Blackmun, J., joined by Burger, C.J., dissenting). 

2

Given our disposition of Bond’s evidentiary challenges, we

have little difficulty in affirming the district court’s holding

that Bond did not carry his burden of showing that the government

breached the plea agreement. There was simply no evidence before

the court that the government promised to enroll Bond in the

federal witness protection program. There was no evidence that

Bond ever communicated a specific fear of harm to himself or his

family, or that he ever requested protection. The evidence showed

only that the government agreed to provide protection should the

need arise but that the need never arose. No evidence supported

Bond’s charges of misconduct by government agents. No evidence

supported the conclusion that Bond met the condition precedent to

the government’s duty to move for a 5K1.1 downward departure,

namely, that he provide substantial assistance to the government’s

war on drugs. We find unassailable the district court’s conclusion

that the government did not breach the plea agreement.

3

We hold that the district court did not abuse its discretion

in refusing to allow Bond to withdraw his guilty plea. This court

applies a totality of the circumstances test with a special eye to

seven factors to decide whether a district court has abused its

discretion under Fed. R. Crim. P. 32(d): whether the defendant has

asserted his innocence, whether the government would suffer
14

prejudice if the motion were granted, whether the defendant delayed

in filing the motion, whether the withdrawal would inconvenience

the court, whether the close assistance of counsel was available,

whether the original plea was knowing and voluntary, and whether

the withdrawal would waste judicial resources. United States v.

Carr, 740 F.2d 329, 343-44 (5th Cir. 1984), cert. denied, 471 U.S.

1004 (1985). Bond has asserted his actual innocence, but under

Carr, this factor is insufficient on its own in the total absence

of evidence to support the assertion, since a contrary rule would

grant the defendant an unappropriate ability to reverse his

decision to plead guilty. 740 F.2d at 344. In this case, the

magistrate found no evidence supporting Bond’s innocence; Bond’s

argument that the absence of evidence is due to the magistrate’s

ruling regarding waiver of his Fifth Amendment rights is puzzling,

given that Bond’s stated reason for not taking the stand was to

avoid questions regarding his innocence of the crime. Bond’s two

year delay in waiting to file his motion to withdraw is

extraordinarily long; in Carr, this court found a delay of several

weeks unduly lengthy. 740 F.2d at 345.

The district court found that Bond’s plea was knowing and

voluntary, and that Bond had the close assistance of competent

counsel. Bond attacks these findings on the ground that the

meeting at which the plea was negotiated was conducted in the

absence of his counsel, and that the district court’s factual

finding that his counsel consented to this meeting was clearly

erroneous. We cannot agree. Because of the passage of time, no
15

witness could remember a specific conversation in which counsel

granted or denied the government’s request to interview Bond. The

government agents testified that they would not have conducted the

interview without obtaining counsel’s leave. Bond’s counsel

testified that he would not have allowed such a lengthy interview

to be conducted in his absence, but that he did give government

agents permission to conduct an uncounseled interview on one

occasion. In short, the evidence supporting both sides was

conflicting and indirect, and the credibility call belonged to the

district court.

Although the magistrate made no findings as to prejudice,

waste of resources, or inconvenience, we note that every testifying

witness showed some difficulty remembering the relevant events.

The evidence showed that the 30 month passage of time, during which

witnesses’ memories faded and the judicial process stopped, was

entirely Bond’s fault. Those wishing to persuade the district

court to exercise its discretion in their favor should not skip

bond. We find no error.

4

Any error regarding the district court’s alleged failure

to inform Bond of the statutory minimum for the offense he had

committed is harmless. In deciding whether a Fed. R. Crim P. 11

violation is harmless error, this court focuses on “whether the

defendant's knowledge and comprehension of the full and correct

information would have been likely to affect his willingness to

plead guilty. Stated another way, we ‘examine the facts and
16

circumstances of the ... case to see if the district court's flawed

compliance with ... Rule 11 ... may reasonably be viewed as having

been a material factor affecting [defendant]'s decision to plead

guilty.’" United States v. Johnson, 1 F.3d 296, 302 (5th Cir.

1993) (en banc) (quoting United States v. Bachynsky, 934 F.2d 1349,

1360 (5th Cir.) (en banc), cert. denied, 502 U.S. 951 (1991))

(alteration in original). In this case, the district court

specifically found that Bond did not even allege that full

compliance with Rule 11 would have affected his decision to plead

guilty, and we find no such allegation in Bond’s brief to this

court. Given Bond’s rather extensive criminal history, his only

hope of avoiding a long jail term was cooperation with the

government or an illegal flight. The evidence that he had

committed the underlying offense was strong. The plea agreement

recited that Bond could face ten years to life “and/or” a fine, and

thus the harm Bond alleges would stem from the failure to delete

the word “or” from the agreement. The alleged Rule 11 violation

was not a deciding factor in Bond’s decision to plead guilty.

AFFIRMED.