Revised August 17, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 96-20264

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

CRAIG MICHAEL COSCARELLI, also known as

John Coscarelli,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________ July 30, 1998

Before POLITZ, Chief J udge, REYNALDO G. GARZA, KING, JOLLY,

HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHE, WIENER, BARKSDALE, EMILIO

M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, and DENNIS, Circuit

Judges.

EDITH H. JONES, Circuit Judge:

The United S tates alone appealed from a sentencing

decision by the district court that did not correctly apply the

guidelines for money-laundering in this telemarketing scam

prosecution. The panel opinion sustained the government’s1 On rehearing, we reinstate that portion of the opinion.

2 position. 1 What concerned the en banc court, however, was the

panel majority’s further decision to gran t affirmative relief to

appellee Coscarelli -- who waived his right to appeal in writing,

filed no notice of appeal or cross-appeal, and never made any

request for relief from his conviction or sentence -- by vacating

the guilty plea entirely. As an en banc court, we hold that

Coscarelli’s failure to file a notice of appeal precludes him from

receiv ing affirmative relief in this court. We have no

jurisdiction over any such claim.

The first sentence of Federal Rule of Appellate Procedure

4(b) says, “[i]n a criminal case, a defendant shall file a notice

of appe al in the district court within 10 days after the entry

either of the judgment or order appealed from, or of a notice of

appeal by the Government.” The Supreme Court has described the

ten-day limit for filing a notice of appeal in a criminal case as

“mandatory and jurisdict ional.” U nited States v. Robinson

, 361

U.S. 220, 229, 80 S.Ct. 282, 288 (1960) (interpreting language in

a predecessor to the cu rrent rule). S ee also United States v.

Adams

, 106 F.3d 646, 647 (5th Cir. 1997) (“This court cannot

exercise jurisdiction absent a timely notice of appeal.”) The

wording of the rule which requires the notice of appeal to be filed

within ten days is as applicable to a defendant’s cross-appeal as

it is when the government does not appeal. Coscarelli filed no2 Coscarelli’s brief explains this decision as follows:

In fact, Mr. Coscarelli elected to accept

Judge Gilmore’s sentence as appropriate

punishment for his conduct, and filed, upon

the advice of the undersigned counsel, a

waiver of right of appeal document on February

7, 1996 (1 R. 261). This was done as a matter

of strategy to force the government to either

appeal or accept the sentence as final.

3 To support his point Coscarelli correctly relies on

Stockstill v. Petty Ray Geophysical

, 888 F.2d 1493 (5th Cir. 1989),

which in turn relies upon a United States Supreme Court case,

Torres v. Oakland Scavenger Co.

, 487 U.S. 312, 108 S.Ct. 2405, 101

L.Ed.2d 285 (1988). In the Torres case, the Court held that the

requirements of Rules 3 and 4 are mandatory and jurisdictional and

that although the courts of appeals may liberally construe those

rules to determine whether compliance exists, the courts m ay not

waive noncompliance. See id. at 317, 108 S.Ct. at 2409.

3 n otice of appeal or cross-appeal from the district court’s

sentencing decision. 2 In a case such as this, an appellate court

s imply has no authority to grant Coscarelli relief that wo uld

expand his rights under the judgment.

Cos carelli’s brief to the en banc court concedes this

point, stating:

Even though there are arguments supporting

jurisdiction, counsel’s additional research on

this issu e indicates that the court does not

have jurisdiction.

En Banc brief at 3. 3

Although Coscarelli does not make any such argument, the

dissent may contend that our recent en banc decision in M arts v.

Hines

, 117 F.3d 1504 (5th Cir. 1997), either permits or requires us

to exercise discretionary appellate jurisdiction notwithstanding4

Coscarelli’s failure to file a notice of appe al. This

interpretation of Marts would be pure wis hful thinking and would

f latly contradict the narrow application of Marts to in fo rma

pauperis cases brought under a statute now superseded by the Prison

Litigation Reform Act. In M arts

, the question was whether an

appellate court could sua sponte determine that dismissals of such

cases are deemed to be with prejudice unless the district court

expressly declare s otherwise. M arts represented an effort “to

continue our development of procedures to address and dispose

appropriately of a continually burgeoning prisoner pro se docket,

both at the trial and appellate levels

. . . .” I d. at 1504.

Marts concludes that:

[I]n cases involving dismissals as frivolous

or malicious under the in forma pauperis

statute in which the defendant has not been

served and was, therefore, not before the

trial court and is not before the appellate

court, the a ppellate court, notwithstanding,

has the authority to change a district court

j udgment dismissing the claims witho u t

prejudice to one dismissing with prejudice,

even though there is n o cross-appeal by the

obviously non-present “appellee.”

Id. at 1506. M arts either stands or falls on the s ole rationale

that when federal courts finally adjudicate in forma pauperis

litigation their judgments may protect the courts from an onslaught

of malicious and frivolous complaints, where the defendants have

neither been served with process nor ever appeared in the case.

Not all who join this majority opinion concurred in

Marts

, but we share a common view of that opinion’s limited5

holding. Marts accordingly furnishes no basis for a conclusion

that appellate jurisdiction exists here to grant relief to

Coscarelli.

For the foregoing reasons, based on the partial

reinstatement of the panel opinion, Coscare lli’s guilty plea

remains unassailed, but the c ase is V ACATED and REMANDED for

resentencing and further proceedings consistent herewith.

ENDRECORDDeMOSS, Circuit Judge, joined by REYNALDO G. GARZA, Senior Circuit

Judge, dissenting.

This case has been snake-bit from the time the indictment was

filed. Virtually no stage of the proceeding was conducted without

some form of error. I write not because I am confident that it

will make any difference with respect to the substantive outcome on

appeal, but because I want to exhort the district court, which is

likely to become the court of last resort for real justice in this

case, to untangle the web of error that our Court has today so

deftly avoided.

I write also because the majority sets forth, in unremarkable

fashion and as if it had been the law all along, the very

remarkable proposition that Coscarelli’s failure to file a crossappeal from an essentially favorable judgment destroys this Court’s

power to remedy error of constitu tional magnitude. Because I

beli eve that result is inconsistent with controlling authority,

which goes unmentioned in the majority opinion, I am forced to

register my dissent.

I.

AN INTRODUCTION

Craig Coscarelli was charged in an eleven count indictment.

Counts two through eleven charged substantive counts of wire fraud

and mail fraud. The indictment did not contain any count alleging

a substantive money laundering offense. Count 1, which is the7

source of the constitutional error in this case, charged one of

those long, complicated and multi-headed hydras that prosecutors

love to fashion

-- the multiple object conspiracy. Coscarelli

decided to enter a guilty plea. At Coscarelli’s Rule 11 hearing

the district court, apparently misled by ambiguity in the

indictment, erroneously understated the statutory maximum term of

imprisonment by fifteen years, omitted any mention of the money

laundering object when characterizing the offense charged in count

1, and then failed to require the government to establish any

factual basis whatsoever for the money laundering object charged in

that count. Coscarelli’s first appointed counsel resigned shortly

thereafter.

Notwithstanding the conspicuous absence of the money

laundering object in the Rule 11 colloquy, that object showed up in

the presentenc e report as the pivotal factor establishing

Coscarelli’s considerable sentence. Coscarelli (now represented by

his third appointed counsel) filed object ions, stating that he

never intended to commit money laundering. The district court,

being persuaded by Coscarelli’s argument, simply omitted the money

laundering object from Coscarelli’s sentence calculation.

The government appealed, asserting Coscarelli’s guilty plea to

the money laundering object as the basis for its argument that

Coscarelli should receive a harsher sentence than the one imposed.

The gover nment contended that Coscarelli pleaded “guilty as

charged,” directing our Court to the indictment and portions of the8

Rule 11 h earing. Coscarelli, who thought he won below, did not

cros s-appeal, but argued that the Rule 11 hearing and his

subsequent objections to the presentence report established that he

did not intend to plead guilty to conspiracy to commit money

laundering.

The panel held that the government’ s sentencing point was

c orrect. Assuming a validly entered guilty plea as to the money

laundering object of the multiple object conspiracy, Coscarelli’s

base offense level wo uld correctly be determined using the money

laundering guideline. The panel examined the Rule 11 transcript to

locate the plea that wa s inextricably intertwined with and

essential to the government’s appeal. An examination of the Rule

11 transcript did not revea l, however, the pristine guilty plea

described by the government. To the contrary, the Rule 11 hearing,

and therefore the plea upon which the government sought to rely,

was contaminated with plain an d harmful error of constitutional

magnitude.

II.

RULE 11 ERROR AND OTHER FOLLIES

In the panel opinion, we developed only what we considered to

b e the most egregious violation of Coscarelli’s rights, the

district court’s erroneous rendition of Coscarelli’s possible

maximum statutory sentence at the plea hearing. Rule 11 requires

that the district court personally inform Coscarelli concerning the4 See, e.g., Brady v. United States

, 90 S. Ct. 1463, 1469

(1970) (a plea made without “sufficient awareness of the relevant

circumstances and likely consequences” is not intelligently made);

United States v. Guerra

, 94 F.3d 989, 994 (5th Cir. 1996) (“A plea

o f guilty must, as a matter of due process, be a voluntary,

knowing, and intelligent act.”); United States v. Rivera

, 898 F.2d

442, 447 (5th Cir. 1990) (“The Constitution requires that a

defendant be advised and understand the consequences of a guilty

plea.”).

5 United States v. Bernal

, 861 F.2d 434, 435 (5th Cir.

1988) (reversing conviction because the defendant must understand

the nature of the charge); United States v. Corbett

, 742 F.2d 173,

178 & n.12 (5th Cir. 1984) (vacating plea because failure to

require disclosure of the nature of the charge was plain error that

affected the “fairness, integr ity or public reputation” of the

judicial proceedings).

9 “maximum possible penalty pro vided by law.” F E D

. R. C RIM

. P.

11(c)(1) & (g). Coscarelli was not told tha t the law provided a

maximum sentence of twenty years with respect to count 1. To the

contrary, Coscarelli was affirmatively misinformed that the maximum

possible penalty with respect to count 1 was five years. That such

error is of constitutional dimension under our existing precedent

cannot be denied. 4

Of perhaps equal importance, however, is the district court’s

erroneous statement of the charge against Coscarelli. 5 Rule 11

requires a record showing that the district c ourt personally

informed Coscarelli concerning the “nature of the charge to which

the plea is offered.” F E D

. R. C RIM

. P. 11(c)(1) & (g). The district

court informed Coscarelli that count 1 charged conspiracy to commit

“mail fraud or wire fraud,” thereby omitting both the use of a

fictitious name object and the money laundering object of the10

conspiracy charged in count 1. An affirmative misstatement of the

charge, as in this case, is much more likely to have affected the

defendant’s decision, and therefore, to be harmful. United States

v. Whyte

, 3 F.3d 129, 130-31 (5th Cir. 1993). Coscarelli’s

subseque nt objections in the district court and his argument on

appeal in this Court both establish that he failed to comprehend

the objects of the conspiracy alleged in count 1.

Rule 11 also provides that, when a plea agreement has been

reached, the district court must require disclosure of that

agreement for the record. S ee F ED

. R. C RIM

. P. 11(e)(2)

- (4). The

record states that there was a plea agreement reached by Coscarelli

and the government. Although the district court established the

existence of the plea agreement, it did not, as required by Rule

11, go on to require disclosure of the agreement. F E D

. R. C RIM

. P.

11(d) & (e)(2); see also Santobello v. New York

, 92 S. Ct. 495, 498

(1971) (“The plea must, of course, be voluntary and knowing and if

it was induced by promises, the essence of those promises must in

some way be made known.”). For obvious reasons, any promises made

by the governme nt with respect to count 1 are material to the

argument pressed by the government on appeal -- that Coscarelli’s

plea colloquy supports application of the money laundering

guideline. Nonetheless, meaningful review is not possible because

the district court failed in its duty to require disclosure of the

terms of the plea agreement for the record.11

Finally, Rule 11 requires the district court to establish by

inquiry that there is a factual basis for the plea. F E D

. R. C RIM

.

P. 11(f). Neither the court nor the prosecutor articulated any

facts in the Rule 11 hearing that would support Coscarelli’s

criminal conviction for conspiracy to commit money laundering.

Notwithstanding a ny confusion about the possible penalty and the

nature of the charges (both core concerns of Rule 11), the district

court might have avoided error if it had performed its Rule 11(f)

duty to indepen dently ascertain the existence of a factual basis

for each object charged. Coscarelli’s plea should not have been

accepted without the dist rict court’s inquiry into the facts

supporting each of the objects of the conspiracy described in count

1.

In sum, Coscarelli was affirmatively misinformed concerning

the maximum possible penalty and the nature of the charge against

him. In addition, Coscarelli’s plea was not supported by any (let

alone a sufficient) factual basis with respect to the money

laundering object of the conspiracy charged in count 1. In the

following section, I will discuss what I believe may be the cause

of such plain error and what I believ e to be this Court’s

obligation to properly advise the district courts on how to avoid

such error.

III.

AMBIGUITY IN THE INDICTMENT AND JUDGMENT12

Multiple object conspir a cy counts are an inherently rich

source of ambiguity that often result in post-conviction challenges

to both guilty verdicts and guilty pleas. For example, the

multiple object conspiracy charged in this case spanned eight

pages, contained seventeen subparagraphs, and named sev en other

defendants. It is not surprising, therefore, that this record

reveals considerable ambiguity concerning the nature of the charges

in count 1.

Count 1 charged conspiracy to commit (1) wire fraud, and (2)

mail fraud, and (3) use of a fictitious name. These three objects

were charged, as indicated, in the conjunctive. Count 1 also

charged conspiracy to commit money laundering. The money

laundering object was simply appended as a fourth object. The

indictment did not include either the conjunctive “and” or the

disjunctive “or” with respect to that object. The indictment did

not include any substantive money laundering count. Moreover, the

indictment did not include any citation to 18 U.S.C. § 1956(h), the

statutory provision that criminalizes conspiracy to commit money

laundering and provides that the crime is punishable by up to

twenty years imprisonment, the same penalty applicable to a

substantive money laundering conviction. Instead, count 1 begins

and ends with citations to 18 U.S.C. § 371, the generic statutory

conspiracy provision, which provides a maximum penalty of only five

years imprisonment.

The government’s argument that Coscarelli should ha ve been6 The judgment contains other noteworthy errors. For

example, the judgment reports that Coscarelli “pleaded gu ilty to

count(s) 1-11 on June 12, 1994." The date of June 12, 1994 was

some five months prior to the date on which the indictment in this

case was filed in the district clerk’s office.

7 In Watch the government and defendant apparently agreed

to omit any reference to quantity in an indictment alleging a drug

offense. The purpose of the agreement was to avoid application of

a statutorily mandated minimum sentence. 7 F.3d at 426. Although

the defendant was correctly apprised of the possible penalties as

the charge was framed in the indictment, he was incorrectly advised

with resp ect to the ultimate penalty because the sentencing

guidelines incorporated the st atutory penalties and required a

finding of quantity. Rejecting the district court’s finding that

13 sentenced on the basis of the money laundering guideline places

grea t emphasis on the fact that Coscarelli pleaded to the

“indictment.” Nonethe less, Coscarelli was not sentenced nor was

judgment entered on terms consistent with the indictment. For

example, the use-of-a-fictitious-name object is completely omitted

from the Rule 11 hearing, the sentencing hearing, and the judgment.

In other places, the judgment erroneously reflects the ambiguities

created by the indictment. For example, the judgment reflects that

the statute applicable to h is conviction on count 1 is 18 U.S.C.

§ 371, the generic conspiracy statute providing a five year maximum

term of imprisonment, rather than 18 U.S.C. § 1956(h), the specific

statutory provision for conspiracy to commit money laundering. 6

Neither could the government have simply decided to avoid the

effect of § 1956(h) by pleading the case as a § 371 conspiracy.

The sentencing guidelines incorporate statutory penalties. U nited

States v. Watch, 7 F.3d 422, 428 (5th Cir. 1993). 7 That is why theWatch understood the consequence of his plea, the court vacated the

conviction. Id. at 429.

14 base offense level for Coscarelli’s fraud offenses was 6, while the

presence of the money laundering object in count 1 hiked the base

offense level up to 23. C ompare U.S.S.G. § 2F1.1 with § 2S1.1.

The district court’s failure to include § 1956(h) in the judgment

on count 1 takes on added importance in this case because § 1956(h)

provides for a twenty year maximum term of imprisonment, which

ser ves as the statutory basis for the money laundering guideline

which the government has urged our Court to apply.

IV.

ADDITIONAL SOURCES OF ERROR

There are at least two other factors that I believe

c ontributed to the development of error in this case. First, I

think that the particularly deplorable quality of Coscarelli’s

counsel facilitated the denial of his right to make a knowing and

intelligent decision to plead guilty. Coscarelli was represented

by thr ee different court appointed attorneys between the time he

was arrested and the time judgment was entered on his plea.

Coscarelli’s first lawyer, court appoin ted counsel number 1

(“CA C1"), was so inattentive and uncommunicative that Coscarelli

wrote to the judge asking for help. After a hearing on the issue,

counsel was nonetheless allowed to represent Coscarelli during the

plea negotiations and at his Rule 11 hearing.15

Coscarelli’s first lawyer t hen failed to appear for

sentencing. Although counsel managed to appear for the second

sentencing date, he announced unprepared. At the second

sentencing, CAC1 conceded that he had not served his client well,

and that Coscarelli had meritorious sentencing objectio ns which

Coscarelli and the lawyer both agre ed needed to be filed. CAC1

requested withdrawal and another attorney (who will be referred to

as court appointed counsel 2 or CAC2) was appointed at CAC1's

suggestion.

Coscarelli’s second lawyer never took any action that appears

on the docket sheet. Thirty days later, the court appointed

another lawyer, CAC3. CAC3, who concedes that he never talked to

e ither of Coscarelli’s previous lawyers and that he had no

knowledge concerning the circumstances of Coscarelli’s Rule 11 plea

until after sentencing, filed cursory objections to the PSR

promising to develop the arguments in additional objections.

Additional objections were never filed, and Coscarelli proceeded to

sentencing.

At sentenc ing, the district court, apparently responding to

arguments made by CAC3, sentenced Coscarelli on the basis of the

fraud guidelines to the exclusion of the money laundering guideline

and the government voiced an objection and in tent to appeal.

Inexplicably, and notwithstanding the fact that Coscarelli’s

sentence could be substantially increas ed on appeal, CAC3 then

cou nseled his client to immediately file a waiver of appeal.16

Coscarelli’s en banc brief defends the decision, arguing that it

was intended to “force the government to either appeal or accept

the decision as final.” Of course, this is nonsense.

Coscarelli’s waiver did nothing to reduce the government’s options.

It was an unnecessary and foolish attempt to influence the

government’s decision to appeal, which is now being heralded by the

e n banc majority as an excuse to ignore Coscarelli’s substantial

rights.

Second, while I realize that we have no authority to dictate

cha rging decisions, I think it is patently clear that the

government has not hesitated to capitalize on the ambiguity created

by the indictment, furthered at the Rule 11 hearing, and ultimately

included in the judgment. The prosecutor stood by mutely while the

district court mi scharacterized the nature of the charge by

omitting any mention of the money laundering object. The

prosecutor then failed to articulate any facts in support of the

money laundering object at the Rule 11 hearing. Nonetheless, once

the plea was obtained, the government sought to impose a higher

sentence solely on the basis of t he money laundering object.

Perhaps this was carelessness on all sides, but I do not agree that

Coscarelli should pay with his constitutional rights.

Neither is this disparity a novel scenario. For several

years, the Sentencing Commission has been studying the disparity

r esulting from application of the money laundering guidelin e in8 See, e.g.

, U NITED S TATES S ENTENCING C OMMISSION

, R EP ORT TO THE

C ONGRESS : S ENTENCING P OLICY FOR M ONEY L AUNDERING O FFENSES

, INCLUDING C OMMENTS ON

D EPARTMEN T OF J USTICE R EPORT (Sept. 18, 1997) <http://www.ussc.gov/

moneylau/monilaun.htm>; U NITED S TATES S EN T ENCING C OMMISSION

, M ONEY

L AUNDERING W ORKING G ROUP R EPORT (Feb. 28, 1995) <http://www.ussc.gov/

legist.htm/launder[1]>.

17 multiple object conspiracy cases like Coscarelli’s, many of which

involve primarily criminal fraud of one form or another. 8 Although

the Commission has reported out several recommended amendments,

which would more closely tie the base offense level in the money

laundering guideline to the nature of the underlying criminal

conduct, Congress has thus fa r declined to act upon those

recommendations. Consequently, until Congress changes the law, the

m oney laundering guideline remains the proverbial "800 pound

gorilla," which overwhelms the relatively puny fraud guideline and

produces a sentence that is twice as long as it would have been had

the multiple object conspiracy not contained a money laundering

object. While I cannot quarrel with Congress’ judgment, I do

believe that the disp arities caused by Congress’ refusal to act

upon the Commission’s recommendations, together with the inherently

ambiguous and ungainly indictments that are generated in such

cases, place a more oner ous burden on the courts to ensure that

guilty pleas to a multiple object conspiracy which include a money

laundering object are truly supported by a sufficient factual basis

as required by Rule 11.

V.18 THE PANEL’S PROPOSED SOLUTION

Based u pon the circumstances described, the panel opinion

recognized that Coscar elli’s conviction for the money laundering

object would justify a significantly higher sentence, but also held

t hat his plea on the money laundering object was not secur ed in

compliance with the principles of Rule 11. Rather than simply deny

the government the higher sentence that would be justified by the

money laundering object, the panel vacated Coscarelli’s conviction

and remanded to pe rmit Coscarelli to replead or be tried on that

object, which would determine the appropriate sentence.

In addition to affording just relief, the panel opinion

attempted to alert district courts to the inherent pitfalls when a

money laundering object is included in a multiple count conspiracy.

I still believe that was a correct a pproach, and notwithstanding

the en banc ma jority’s holding on the cross-appeal question, the

substantive issue of how to deal with these troublesome counts is

likely to recur. I hope that the district court bench will

therefore take note of the following principles. When a defendant

pleads guilty to a multiple object conspiracy, the district court

should carefully separate the multiple objects for purposes of the

Rule 11 hearing, and treat each object as if it were a separate

offense for the purpose of establish ing (1) the defendant’s

understanding of the nature of the charge, (2) the potential

consequences of the plea, and (3) the facts supporting the plea.19

Such an approach comports with the applicable guideline

principles. Conspiracy convictions are sentenced using the

guideline for the underly ing substantive offense. U.S.S.G.

§ 2X1.1. Multiple object conspiracy convictions are treated as

though the defendant was convicted on a separate count for each

underlying object. U.S.S.G. § 1B1.2. If our district courts will

draw upon the plainly applicable sentencing guidelines by

separately addressing each object, we can be su re that the

defendants charged with multiple count conspiracies that include a

money laundering object are apprised of the unique consequences of

their pleas as required by Rule 11 and the Constitution.

This approach is not unprecedented. In W atch th ere was

ambiguity created by the parties themselves as to the substance of

the charge and the potential penalties. We concluded that a

“prudent district judge ” should avoid any ambiguity by “simply

walk[ing] a defendant through” the potential penalties. 7 F.3d at

429. Had the district court in this case likewise separated out

the individual objects of the multiple object conspiracy, and

“walked” Coscarelli through the max imum statutory penalties for

each of the underlying substantive offenses, Coscarelli would have

been advised that there was a money laundering object. Coscarelli

would have been advised that conspiracy to commit money laundering

was punishable with a maximum sentence of twenty years. Moreover,20

the district court would have been much more likely, having

mentioned the money laundering object and its maximu m statutory

punishment, to have required a factual basis to support that

object. This is why we alerted district courts to potential

pitfalls with respect to certain drug convictions in Watch and

proposed a remedy to prevent Rule 11 error. A similarly

straightforward exercise of our supervisory power in this case

would go a long way towards disarming artful charging techniques,

improving Rule 11 compl iance, and reducing subsequent litigation

relat ing the adequacy of Rule 11 pleas to multiple object

conspiracy counts.

VI.

AVOIDING THE ERROR EN BANC

A majority of the Court voted to take the panel’s disposition

en banc. While en banc, the case spun off on a tangent that was

neither discussed in the majority panel opinion nor covered in the

appended dissent. Rather than addressing the acknowledged

constitutional error that occurred at Coscarelli’s Rule 11 hearing,

the majority now holds that the cross-appeal provision embodied in

Federal Rule of Appellate Procedure 4(b) sets up a mandatory and

jurisdictional requirement, rather than a rule of practice that can

be excused in certain narrow circumstances. In their view,

therefore, Coscarelli’s fai lure to file a cross-appeal from the

district court’s jud gment, which granted him the relief he21

requested, deprives this Court of jurisdiction to address anything

except the sentencing error raised by the government’s appeal.

VII.

THE EN BANC DECISION IS CONTRARY

TO CONTROLLING AUTHORITY AND COMMON SENSE

The Supreme Court has never held that the cross- appeal

requirement is jurisdictional in a criminal case. In fact, the

only time the Supreme Court spoke directly to the character of the

cross-appeal requirement was in a civil case and it sought to

dispel the confusion by clarifying that the requirement is merely

a “rule of practice.” See Langnes v. Green , 51 S. Ct. 243, 246

(1931) (“These decisions simply announce a rule of practice which

generally has been followed; but none of them deny the power of the

court to review objections urged by respondent, although he has not

applied for certiorari, if the court deems there is good reason to

do so.”). Our Court considered L angnes and the effect of

subseq uent Supreme Court authority on that opinion less than one

year ago in Marts v. Hines

, 117 F.3d 1504 (5th Cir. 1997) (en

banc), cert. denied , 118 S. Ct. 716 (1998). In that case, a

majority of this Court rejected the precise position now embraced

by the en banc majority by holding that the cross-appeal

requirement is not jurisdictional and may be excused in certain

§ 1983 cases. That decision was not inadvertent. The various

approaches to the cross-appeal requirement were thoroughly debated

by the Court. Dire warnings about the dangerously free-wheeling9 The Mar ts v. Hines dissenters (and presumably the

majority here, although the opinion itself is silent with respect

to supporting authority) relied heavily upon Morley Constr. Co. v.

Maryland Cas. Co.

, 57 S. Ct. 325 (1937). M orley makes a reference

in the opening sentence of the opinion to the “power” of the Court

to modify a decree in the absence of a cross-appeal. Id. at 326.

The Marts v. Hines dissenters argued that Morle y ’s fleeting and

solitary use of the word “power” created an “inveterate and

certain” rule that the cross-appeal requirement is jurisdictional,

which supplanted Langnes ’ expressly reasoned holdi n g that the

cross-appe al requirement is merely a rule of practice. My

colleagues failed to mention, however, that the relevant portion of

Langnes mak es no direct attempt to characterize the cross-appeal

requirement, as well as the fact that Morley cited Langnes as one

source establishing the “inveterate and certain” qualities of the

rule there discussed.

22 and potentially disastrous effects of the ultimate disposition in

Marts v. Hines were clearly before the Court in Judge Garwood’s

lengthy dissent. Id . at 1506-19 (Garwood, J., dissenting). 9

The majority now holds that M arts v. Hines ca n be

distinguished. I disagree. The majority seems to suggest that the

Court’s decision in Marts v. Hines established only a very narrow

and necessary exception to the general rule that the cross-appeal

requirement is jurisdictional. I always thought jurisdiction, like

pregnan cy, was an all-or-nothing proposition. We cannot simply

decide we have jurisdiction because some of our Court are more

tro ubled by the "burgeoning prisoner pro se docket" discussed in

Marts v. Hines

, id. at 1504, than they are by the unconstitutional

guilty plea here in Coscarelli

. There is no principled way for us

to adhere to our disposition excusing the cross-appeal requirement

in Marts v. Hines

, while finding that it is jurisdictional here in23

Coscarelli

. I fail to understand how we can reconcile the Court’s

uncompromising holding that the cross-appeal requirement is

jurisdictional with our pre vious holding that we can nonetheless

ignore the absence of a cross-appeal for “prudential” reasons, such

as the burgeoning prisoner docket, when we really need to. S ee id

.

at 1506 (“This limited exception is the product of our effort to

make effective the prudential rule announced herein.”).

Nor has the majority explained how we will deal with this

Court’s prior precedent, which, clearly in civil and criminal

cases, has recognized the rule of practice approach articulated by

the Supreme Court in Langnes

. E .g.

, American States I ns. Co. v.

Nethery

, 79 F.3d 473, 478 (5th Cir. 1996) (“Unfortunately, the

franchisor did not file a notice of cross-appeal and has not shown

why its failure to do so should be e xcused.”); S hipp v. General

Motors Corp.

, 750 F.2d 4 18, 428 n.12 (5th Cir. 1985) (“The fact

that plaintiff's counsel had commitments in another trial is not an

exceptional circumstance[] producing great inequity of the

extra-ordinary nature that on rare occasions has indu ced a

reviewing court to afford relief to appellees who did not file a

cross-appeal." (internal quotations and alterations omitted));

French v. Estelle , 696 F.2d 318, 320 (5th Cir. 1982) (refusing to

ignore clear violation of criminal defendant’s constitutional

rights and holding that the failure to file a cross-appeal did not

preclu de review of the constitutional claim). Instead, the24

dramatic about face embraced by the majority is supported with the

indisputable but immaterial axiom that an initial notice of appeal

is both mandatory and jurisdictional, and the fact that the printed

rule does not dist inguish between an appeal and a cross-appeal.

Besides those two points, the majority’s conviction that we have no

jurisdiction is supported only by the parties’ concession that this

is so.

While I recognize that stare decisis is not an “inexorable

command,” I believe there are some very good and just ifiable

reasons for adhering to our prior determination of this issue in

Marts v. Hines

. When we abandon our own precedent, we convey the

message that our prior ruling was in error. P lanned Parenthood v.

Casey , 112 S. Ct. 2791, 2815 (1992). Frequent reconsideration of

difficult issues may tax public confidence in the Court’s good

faith and d iscourage respect for the binding effect of existing

precedent. Id

. As stated by the Supreme Court:

There is a limit to the amount of error that can

plausibly be imputed to prior Courts. If that limit

should be exceeded, disturbance of prior rulings would be

taken as evidence that justifiable reexamination of

principle had given way to drives for particular results

in the short term. The legitimacy of the Court would

fade with the frequency of its vacillation.

Id . In addition, there are no prudential or pragmatic reasons to

overrule our prior precedent in Marts v. Hines

. The Supreme Court

has articulated a number of factors that should inform the decision

to overrule prior precedent. Those factors include (1) “whether25

related principles of law have so far developed as to have left the

old rule no more than a remnant of abandoned doctrin e,” and (2)

“whether the rule has proven to be intolerable simply in defying

practical workability.” Id . at 2808.

Neither of those two factors suggest a need for

reconsideration of Marts v. Hines

. Whether the cross-appeal

requirement may be excused in an appropriate case continues to

generate a conflict both between and within our siste r circuits.

Compare, e.g.

, International Ore & Fertilizer Corp. v. SGS Control

Servs., Inc.

, 38 F.3d 1279 (2d Cir. 1994) and EF Operating Corp. v.

American Bldgs.

, 993 F.2d 1046 (3d Cir. 1993) with Texport Oil Co.

v. M/V Amolyntos

, 11 F.3 d 361 (2d Cir. 1993) a nd Reich v.

Occupational Safety & Health Review Comm’n , 998 F.2d 134 (3d Cir.

1993). Surely there can be no argument that our interpretation of

t he conflicting precedent less than one year ago is now so

outdated that the judgment of the Court is a mere “remnant of an

abandoned doctrine.” Similarly, there is absolutely no indication

that our M

arts v. Hines rule is unworkable. To the contrary,

allowing ourselves the flexibility to excuse the cross-appeal

requirement when justice so requires has proven to work quite well.

See, e.g.

, French

, 696 F.2d at 320 ( the Court has authority to

consider an issue neither raised in the district court nor on

appeal, and in the absence of a cross-appeal, when failure to do so

will result in a miscarriage of justic e or a violation of the26

Court’s duty to apply to correct law); United States v. U.S. Steel

Corp.

, 520 F.2d 1043, 1052 (5th Cir. 1975) (“If we assume, somewhat

skeptically, that formal notice of cross-appeal is necessary to

bring this cl ass action order forward, we would hold nonetheless

that the circumstances of this case are sufficient to bring the

order within the principle that the rules themselves ought not be

allowed to subvert the just result which 28 U.S.C. § 2106 obliges

every appellate court to reach in cases lawfully brought before it

for review.” (inte rnal quotations omitted)); s ee also Swarb v.

Lennox

, 92 S. Ct. 767, 773 (1972) (White, J., concurring) (“the

Court may notice a plain error in the record that disposes of a

judgment before it”). There is no justification for abandoning our

recent en banc precedent in Marts v. Hines

. At the very least, we

should no t summarily change the rule without expressly saying to

the bench and bar that prior precedent is being overruled and that

a new bright-line rule will take its place.

The jurisdictional approach, on the other hand, will interject

unnecessary rigidity and complexity into many cases and prove a

substantial impediment to our review in many more. We will

undou btedly face cases where, as here, the appropriate relief to

one party (in this case the government) depends upon whether the

Court is empowered to afford relief to another party who failed to

app eal (in this case Coscarelli). We will be obligated to limit

our review, not only by the scope of the notice of appeal and27

briefing on appeal, but also the scope of the cross-appeal. If

things are complex now, they will become hopelessly complex once we

are required to run all arguments and potential remedies through

that jurisdictional strainer. And what will we pull up in the net?

Only those unfortunate souls whom justice requires we accommodate,

but our newly crafted rule excludes.

Finally, I note that I have been unable to find any cases

which use the cross-appeal requirement as a sword to deny a

criminal defendant his constitutional rights. Indeed, the crossappeal requirement has typically been discu ssed in civil cases

involving multiple defendants. The power of government to deprive

a citizen of his liberty as punishment for criminal conduct is the

most awesome power ex ercised by government. Under our

constitutional system we have established a variety of restraints

on that power: due process, presumption of innocence, right to jury

trial, requirement of proof beyond reasonable doubt, representation

by counsel, and appellate revie w. In my view, full and complete

compliance with the requirements of Rule 11 is absolutely essential

because the act of pleading guilty to criminal conduct necessarily

involves the waiver of at least some of these important

constitutional rights. The majority opinion simply ignores the

unique considerations applicable to criminal appeals.

CONCLUSION28

Even though the government timely invoked the appellate

jurisdiction of this Court by filing a notice of appeal; even

though the government’s argument is inextricably intertwined with

the validity of Coscarelli’s plea; even though the government

brought forward as part of the appellate re cord the complete

transcript of the Rule 11 hearing in this case and urged this Court

to review that record; even though the errors, omissions and

inadequacies of the Rule 11 hearing a re plain and obvious on the

face of the record; and even though the United States Supreme Court

has never held that the failure of a criminal defendant to file a

cross-appeal deprives the appellate court of the jurisdiction to

address plain constitutional error; nevertheless, and in spite of

these circumstances, this Court sitting en banc has determined that

the ends of justice would be better served if our appellate

jurisdiction is confined to only those matters as to which each

party has expressly sought relief by filing an independent notice

of c ross-appeal. My understanding of the rationale behind this

decision is that we must not have "rogue judges" wandering through

the records seeking grounds of error. As commendable as that

philosophy may be in the abst ract, in this case it elevates form

over substance and gives determinative effect to preventing

imaginary misconduct in the future rather than addressing the

reality of error in the case before us.

I would adhere to our considered judgment in Marts v. Hines29 g:\opin\96-20264.ebd that the cross-appeal requirement can be excused when compelling

circumstances so require. I would further hold that the

constitutional errors infecting Coscarelli’s plea to the money

laundering o bject made the basis of the government’s appeal are

sufficient to justify excusing the cross-appeal requirement in this

case. Finally, I would reinstate the original panel’s holding in

this case, which would require imposition of the money laundering

guideline on remand if and only if a valid conviction, free from

constitutional defect, was entered as to that object on remand.

Recognizing that the majority has chosen another path, I conclude

with the hope that the district court, which can remedy the

constitutional error we find we lack jurisdiction to review, will

entertain an appropriately phrased motion to vacate the guilty plea

and take whatever steps are required to ensure that any subsequent

guilty plea which Coscarelli makes will comp ort in all respects

with the mandates of Rul e 11. Such a course will not only work

substantial justice, but may well render the prosecution of further

appeals a nd collateral attacks unnecessary. That is, after all,

what the panel majority tried to do more than one year ago in the

panel opinion.

I respectfully dissent.