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 Judge, 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 States 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’s position.1 What concerned the en banc court, however, was the
panel majority’s further decision to grant 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
receiving 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 appeal 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 jurisdictional.” United States v. Robinson, 361
U.S. 220, 229, 80 S.Ct. 282, 288 (1960) (interpreting language in
a predecessor to the current rule). See 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 no
1 On rehearing, we reinstate that portion of the opinion.
2 notice of appeal or cross-appeal from the district court’s
sentencing decision.2 In a case such as this, an appellate court
simply has no authority to grant Coscarelli relief that would
expand his rights under the judgment.
Coscarelli’s brief to the en banc court concedes this
point, stating:
Even though there are arguments supporting jurisdiction, counsel’s additional research on this issue 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 Marts v.
Hines, 117 F.3d 1504 (5th Cir. 1997), either permits or requires us
to exercise discretionary appellate jurisdiction notwithstanding
2 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 may not waive noncompliance. See id. at 317, 108 S.Ct. at 2409.
3 Coscarelli’s failure to file a notice of appeal. This
interpretation of Marts would be pure wishful thinking and would
flatly contradict the narrow application of Marts to in forma
pauperis cases brought under a statute now superseded by the Prison
Litigation Reform Act. In Marts, 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 declares otherwise. Marts 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 . . . .” Id. 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 appellate court, notwithstanding, has the authority to change a district court judgment dismissing the claims without prejudice to one dismissing with prejudice, even though there is no cross-appeal by the obviously non-present “appellee.”
Id. at 1506. Marts either stands or falls on the sole 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 limited
4 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, Coscarelli’s guilty plea
remains unassailed, but the case is VACATED and REMANDED for
resentencing and further proceedings consistent herewith.
ENDRECORD
5 DeMOSS, 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 cross-
appeal from an essentially favorable judgment destroys this Court’s
power to remedy error of constitutional magnitude. Because I
believe 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 the 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 presentence report as the pivotal factor establishing
Coscarelli’s considerable sentence. Coscarelli (now represented by
his third appointed counsel) filed objections, 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 government contended that Coscarelli pleaded “guilty as
charged,” directing our Court to the indictment and portions of the
7 Rule 11 hearing. Coscarelli, who thought he won below, did not
cross-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
correct. Assuming a validly entered guilty plea as to the money
laundering object of the multiple object conspiracy, Coscarelli’s
base offense level would correctly be determined using the money
laundering guideline. The panel examined the Rule 11 transcript to
locate the plea that was inextricably intertwined with and
essential to the government’s appeal. An examination of the Rule
11 transcript did not reveal, 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 and harmful error of constitutional
magnitude.
II. RULE 11 ERROR AND OTHER FOLLIES
In the panel opinion, we developed only what we considered to
be 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 the
8 “maximum possible penalty provided by law.” FED. R. CRIM. P.
11(c)(1) & (g). Coscarelli was not told that 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 court personally
informed Coscarelli concerning the “nature of the charge to which
the plea is offered.” FED. R. CRIM. 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 the
4 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 of 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, integrity or public reputation” of the judicial proceedings).
9 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
subsequent 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. See FED. R. CRIM. 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. FED. R. CRIM. 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 government 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.
10 Finally, Rule 11 requires the district court to establish by
inquiry that there is a factual basis for the plea. FED. R. CRIM.
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 any 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 independently ascertain the existence of a factual basis
for each object charged. Coscarelli’s plea should not have been
accepted without the district 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 believe to be this Court’s
obligation to properly advise the district courts on how to avoid
such error.
III. AMBIGUITY IN THE INDICTMENT AND JUDGMENT
11 Multiple object conspiracy 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 seven 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 have been
12 sentenced on the basis of the money laundering guideline places
great emphasis on the fact that Coscarelli pleaded to the
“indictment.” Nonetheless, 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 his 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. United
States v. Watch, 7 F.3d 422, 428 (5th Cir. 1993).7 That is why the
6 The judgment contains other noteworthy errors. For example, the judgment reports that Coscarelli “pleaded guilty 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 respect to the ultimate penalty because the sentencing guidelines incorporated the statutory penalties and required a finding of quantity. Rejecting the district court’s finding that
13 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. Compare 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
serves 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
contributed 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 three different court appointed attorneys between the time he
was arrested and the time judgment was entered on his plea.
Coscarelli’s first lawyer, court appointed counsel number 1
(“CAC1"), 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.
Watch understood the consequence of his plea, the court vacated the conviction. Id. at 429.
14 Coscarelli’s first lawyer then 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 objections which
Coscarelli and the lawyer both agreed 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
either 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 sentencing, 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 intent to appeal.
Inexplicably, and notwithstanding the fact that Coscarelli’s
sentence could be substantially increased on appeal, CAC3 then
counseled his client to immediately file a waiver of appeal.
15 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
en banc majority as an excuse to ignore Coscarelli’s substantial
rights.
Second, while I realize that we have no authority to dictate
charging 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 mischaracterized 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 the 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
resulting from application of the money laundering guideline in
16 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 far declined to act upon those
recommendations. Consequently, until Congress changes the law, the
money 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 disparities 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 onerous 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.
8 See, e.g., UNITED STATES SENTENCING COMMISSION, REPORT TO THE CONGRESS: SENTENCING POLICY FOR MONEY LAUNDERING OFFENSES, INCLUDING COMMENTS ON DEPARTMENT OF JUSTICE REPORT (Sept. 18, 1997) ; UNITED STATES SENTENCING COMMISSION, MONEY LAUNDERING WORKING GROUP REPORT (Feb. 28, 1995) .
17 THE PANEL’S PROPOSED SOLUTION
Based upon the circumstances described, the panel opinion
recognized that Coscarelli’s conviction for the money laundering
object would justify a significantly higher sentence, but also held
that his plea on the money laundering object was not secured 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 permit 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 approach, and notwithstanding
the en banc majority’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 establishing (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.
18 Such an approach comports with the applicable guideline
principles. Conspiracy convictions are sentenced using the
guideline for the underlying 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 sure 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 Watch there 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 maximum 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,
19 the district court would have been much more likely, having
mentioned the money laundering object and its maximum 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 compliance, and reducing subsequent litigation
relating 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 failure to file a cross-appeal from the
district court’s judgment, which granted him the relief he
20 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 Langnes and the effect of
subsequent 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-wheeling
21 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 Marts v. Hines can 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
pregnancy, was an all-or-nothing proposition. We cannot simply
decide we have jurisdiction because some of our Court are more
troubled 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 in
9 The Marts 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). Morley 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 Morley’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 holding that the cross-appeal requirement is merely a rule of practice. My colleagues failed to mention, however, that the relevant portion of Langnes makes 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 Coscarelli. I fail to understand how we can reconcile the Court’s
uncompromising holding that the cross-appeal requirement is
jurisdictional with our previous 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. See 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 Ins. 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 excused.”); Shipp v. General
Motors Corp., 750 F.2d 418, 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 induced 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
preclude review of the constitutional claim). Instead, the
23 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 distinguish 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 justifiable
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. Planned 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 discourage 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) “whether
24 related principles of law have so far developed as to have left the
old rule no more than a remnant of abandoned doctrine,” 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 sister 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.3d 361 (2d Cir. 1993) and 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
the 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 Marts 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 justice or a violation of the
25 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 class 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.” (internal quotations omitted)); see 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 not 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
undoubtedly 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
appeal (in this case Coscarelli). We will be obligated to limit
our review, not only by the scope of the notice of appeal and
26 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 cross-
appeal requirement has typically been discussed 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 exercised 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 review. 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.
CONCLUSION
27 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 record 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 are 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 cross-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 abstract, 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. Hines
28 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 object 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 comport in all respects
with the mandates of Rule 11. Such a course will not only work
substantial justice, but may well render the prosecution of further
appeals and 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.
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