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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-10873 Non-Argument Calendar ________________________
D.C. Docket No. 5:17-cr-00029-LAG-CHW-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAYMOND F. WILLIAMS,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
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Before WILSON, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Raymond Williams appeals his conviction, following a guilty plea, for
conspiracy to bribe a public official, 18 U.S.C. §§ 371 & 2, and the district court’s
order of restitution. He contends: (1) the district court violated his plea agreement
by accelerating the collection of restitution for his two companies, and the
government breached his plea agreement by failing to object when the district court
imposed the accelerated restitution order; (2) the government committed a Brady
violation by failing to disclose evidence related to the acts of his co-conspirators;
and (3) his trial counsel was ineffective by failing to investigate impeachment
testimony and ask for a downward departure based on the national average sentence
for bribery. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Williams was the owner, president, and CEO of U.S. Technology
Corporation. Technology Corp. is the parent company of U.S. Technology
Aerospace Engineering Corporation. Williams was the president of Engineering
Corp. From 2004 through 2013, both companies sold goods and services to Robins
Air Force Base.
Mark Cundiff, a Department of Defense employee who was stationed at the
base, was responsible for soliciting bidders for new government contracts. As part
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of his job duties, Cundiff would prepare performance work statements––documents
that informed bidding companies of the base’s needs on a particular contract and that
described the requirements a bidding company had to satisfy in order to be eligible
to win a contract. Williams and Cundiff had a professional and personal relationship.
From 2004 through 2014, Williams asked Cundiff to assist him in winning
government contracts. Cundiff agreed and prepared performance work statements
so that the contract requirements could only be met by Technology Corp. products,
which guaranteed that Technology Corp. would be the only contractor capable of
winning the bid. Specifically, Cundiff required that the contractors use only
Technology Corp. patented products. Cundiff also helped Williams win private
government-related contracts. In 2011, for instance, two companies in a joint
venture––Yulista Management Services, Inc., and Science and Engineering
Services, Inc.––had a contract with the government to build aircraft work stands and
needed subcontractors. Cundiff, using his position to influence the process,
communicated to the joint venture the base’s desire to use local subcontractors and
recommended Engineering Corp. and another company. Based on Cundiff’s
influence, the joint venture awarded the subcontract to Engineering Corp. and
another local company.
As a swap for helping Williams win these contracts, Cundiff received cash
payments from Williams. The payoffs increased over the years. Sometimes the
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payments were direct, and other times Williams used a second co-conspirator, John
Reynolds, as an intermediary to pay Cundiff. As a result of Cundiff’s efforts,
Williams, in total, was awarded at least $14,450,000 in government contracts.
In 2017, Williams, Technology Corp., and Engineering Corp. were charged
with one count of conspiracy to bribe a public official and one count of conspiracy
to launder the proceeds of unlawful activity. Williams was also charged with eighty-
three counts of bribery of a public official. Williams pleaded guilty to one count of
conspiracy to bribe a public official, Technology Corp. and Engineering Corp.
pleaded guilty to one count of conspiracy to launder the proceeds of unlawful
activity, and three separate plea agreements were signed. In exchange, the
government agreed to dismiss the remaining charges against the defendants.
Williams’s plea agreement said that the district court was “not bound” by any
sentence that Williams and the government may have agreed to recommend and the
court’s “sentencing discretion” was not otherwise “limit[ed].” The agreement
provided that the district court was free “to impose a sentence that [was] more severe
or less severe than the advisory guideline range.” In addition to other fines,
Williams, Technology Corp., and Engineering Corp. each agreed to pay $850,000 in
restitution to the government. Williams, as the owner of both companies, consented
to be jointly and severally liable for the debt. “To assist in the payment of the
financial penalties,” the agreement continued, Williams, Technology Corp., and
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Engineering Corp. assigned to the government a thirty-percent interest in a 2015
promissory note between Technology Corp. and another company, and also agreed
that the government would collect thirty-percent of the monthly income that the
defendants received under the note until the debt had been “paid.” However, this
was not the sole means by which the government could seek payment: “The
government [did] not waive other means available to collect the unpaid balance of
fines or restitution.”
The plea agreement included an appeal waiver, which provided that Williams
waived “any right to appeal the imposition of sentence upon [him], including the
right to appeal the amount of restitution imposed” so long as the sentence did not
exceed the advisory guideline range or the statutory maximum. Williams also
agreed to “waive[] any right to collaterally attack [his] conviction and sentence under
[28 U.S.C. §] 2255, or to bring any other collateral attack, except that [Williams]
retain[ed] the right to bring a claim of ineffective assistance of counsel.”
The district court conducted a joint sentencing hearing for Williams,
Technology Corp., and Engineering Corp. The court sentenced Williams to
60 months’ imprisonment and ordered Williams, Technology Corp., and
Engineering Corp. to pay restitution in the amount of $870,000 apiece that would be
joint and several with each other. But as to the manner of payment of restitution for
the corporate defendants, the district court departed from the terms of the plea
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agreement. For Technology Corp. and Engineering Corp., the district court ordered
immediate monthly payments of the greater amount of $50,000 or fifty percent of
the “gross monthly payments” on the 2015 promissory note. According to the
district court, both companies failed to provide the “additional documentation”
requested by the probation office, so the modified payment schedule ensured that
restitution would be made. Williams appealed only his judgment.
Williams raises three issues on appeal.1 First, he argues that the district court
violated his plea agreement by accelerating the collection of restitution for
Technology Corp. and Engineering Corp., and that the government breached his plea
agreement by failing to object when the district court imposed the accelerated
restitution order. Second, he contends that the government committed a Brady
violation by failing to disclose evidence related to the acts of his co-conspirators
Cundiff and Reynolds. And third, he asserts that his trial counsel was ineffective by
failing to investigate impeachment testimony and ask for a downward departure
based on the national average sentence for bribery.
1 In his initial brief, Williams raised several challenges to his sentence. The government moved to dismiss the appeal based on the appeal waiver, which we granted in part, dismissing the portions of the appeal that dealt with sentencing issues while permitting the remaining issues to proceed that related to the enforceability of the plea agreement or the validity of the underlying guilty plea or that were not otherwise barred by the appeal waiver. 6 Case: 19-10873 Date Filed: 08/17/2020 Page: 7 of 15
STANDARD OF REVIEW
As to the first two issues, because Williams raises them for the first time on
appeal, we review for plain error. See United States v. De La Garza, 516 F.3d 1266,
1269 (11th Cir. 2008) (reviewing for plain error whether the government breached
a plea agreement when the defendant failed to raise the issue below); United States
v. Schier, 438 F.3d 1104, 1106 n.1 (11th Cir. 2006) (“reviewing unpreserved Brady
claim for plain error” (internal quotation marks omitted)). Under plain error review,
the defendant must show (1) an error, (2) that was plain, (3) which affected his
substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). Once those
three prongs are met, and only then, may we exercise our discretion “to remedy the
error if it seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted) (alteration adopted).
DISCUSSION
Restitution
Williams argues that the district court violated his plea agreement by
accelerating the restitution payment schedule and that the government breached the
plea agreement by failing to object to the district court’s accelerated restitution order.
We disagree.
The plea agreement provided that “[n]othing herein [shall] limit the
sentencing discretion of the Court.” During the plea colloquy and after hearing the
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terms of restitution that Williams and the government agreed to, the district court
asked Williams if he understood “that the terms of the plea agreement[] are merely
recommendations to the Court.” Williams said that he did. Williams understood
that the manner of restitution was a recommendation and that it was within the
court’s discretion to increase the rate that restitution will be paid from what was
originally agreed to in the plea agreement. The restitution order did not violate the
plea agreement.
As to whether the government violated the plea agreement, our first task is to
outline the material promises, if any, the government made that motivated the
defendant to plead guilty. United States v. Copeland, 381 F.3d 1101, 1105 (11th
Cir. 2004). The government, in exchange for the defendant’s promise to plead
guilty, is bound by those material promises. Santobello v. New York, 404 U.S. 257,
262 (1971) (“[W]hen a plea rests in any significant degree on a promise or agreement
of the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled.”). After considering the material promises and “the
defendant’s reasonable understanding of the agreement when he entered the plea,”
we then determine whether the government violated the plea agreement. United
States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007). “[W]e interpret the terms
of the plea agreement based on objective standards.” Id.
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Here, the government did not breach the plea agreement. The plea agreement
did not “limit[] the sentencing discretion of the [district court]” and it did not limit
the government’s “means” of collection. At the sentence hearing, although the
government and Williams recommended a thirty-percent payment schedule for
Technology Corp. and Engineering Corp., the district court found that a shift from
the plea agreement was warranted “given the amount of money that [was to be]
returned and how [it would be] returned and used.” Williams objected, but the
district court, noting that the probation office “made several requests for additional
documentation,” which Williams failed to produce, determined that a quicker
restitution payment schedule for Technology Corp. and Engineering Corp. ensured
that the restitution would be paid, and overruled Williams’s objection. The
government voiced no objection.
The plea agreement clearly indicated that the government would
“recommend” that the restitution for Williams be in the amount of $870,000, and the
government did recommend that amount. The agreement, though, did not bind the
government to recommend a method for collecting restitution, so there was no
material promise that the government breached.
Brady Violation
For the first time on appeal, Williams contends that the government violated
Brady. According to Williams, the government failed to disclose evidence showing
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that: (1) the two other co-conspirators, Reynolds and Cundiff, planned to acquire a
company that would receive “lucrative” government contracts and would be run by
Cundiff once his employment with the government ended; (2) Reynolds had made
payments to Cundiff five years before and two years during the joint venture
contract; and (3) before the 2011 joint venture contract, Technology Corp., Science
and Engineering Services, and Yulista Management Services had entered into a
“blanket subcontract” that assured that Technology Corp. would be their “sole”
provider for materials. This evidence, Williams contends, would have proven that
the conspiracy was “actually between Reynolds and Cundiff,” that he was not “the
ringleader,” that he did not meet the “actual or intended benefit” element of his
bribery charge as he did not stand to benefit from Reynolds’s payments to Cundiff,
and that he did not need to bribe Cundiff for Technology Corp. to be awarded the
joint venture contract. 2
In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that
“the suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
2 A defendant who pleads guilty waives many, but not all, non-jurisdictional defenses. United States v. Matthews, 168 F.3d 1234, 1242 (11th Cir.) (listing examples), amended on denial of reh’g sub nom. United States v. Moore, 181 F.3d 1205 (11th Cir. 1999). In Matthews, we declined to decide “whether a guilty plea waives a defendant’s claim under Brady, or—assuming that a Brady claim is not waived by a guilty plea—whether the Brady material must be known to the prosecution before the plea or merely before sentencing.” Id. Following Matthews, we need not do so today to resolve this appeal because Williams has not met his burden. 10 Case: 19-10873 Date Filed: 08/17/2020 Page: 11 of 15
punishment, irrespective of the good faith or bad faith of the prosecution.” To state
a Brady violation, the defendant must prove that “(1) the government possessed
evidence favorable to him [either because it was exculpatory, or because it was
impeaching]; (2) the defendant did not possess the evidence and could not have
obtained it with reasonable diligence; (3) the government suppressed the favorable
evidence; and (4) the evidence was material.” LeCroy v. Sec’y, Fla. Dep’t of Corr.,
421 F.3d 1237, 1268 (11th Cir. 2005).
Favorable evidence is evidence that, “if disclosed and used effectively, . . .
may make the difference between conviction and acquittal” and includes exculpatory
evidence as well as impeachment evidence. United States v. Bagley, 473 U.S. 667,
676 (1985). “[E]vidence is material only if there is a reasonable probability that,
had the evidence been disclosed to the defense, the result of the proceeding would
have been different. A ‘reasonable probability’ is a probability sufficient to
undermine confidence in the outcome.” Id. at 682. Therefore, “[t]he mere
possibility that an item of undisclosed information might have helped the defense,
or might have affected the outcome of the trial, [will] not establish ‘materiality’ in
the constitutional sense.” United States v. Agurs, 427 U.S. 97, 109–110 (1976).
While the non-disclosure of material impeachment evidence may constitute a Brady
violation, the Supreme Court has explained that, in the context of a guilty plea, “the
Constitution does not require the Government to disclose material impeachment
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evidence prior to entering a plea agreement with a criminal defendant.” United
States v. Ruiz, 536 U.S. 622, 633 (2002).
Williams has not stated a viable Brady claim. The first two allegedly
suppressed pieces of evidence that Williams points to are best categorized as
impeachment evidence. The nature and span of the Cundiff-Reynolds relationship
has nothing to do with Williams’s involvement in the conspiracy. Williams still
made payments to Cundiff in exchange for Cundiff’s influence over government
contracts and Reynolds was, at times, the middleman between Williams and Cundiff.
That was the conspiracy—Williams paid Cundiff, or paid Reynolds to pay Cundiff,
to get the millions of dollars in government contracts—and the alleged evidence
would not and did not exculpate Williams in his bribery conspiracy. Rather, had
Williams gone to trial and Reynolds and Cundiff testified against him, given that
Reynolds and Cundiff “cooperated with the [government] and received significantly
lower sentences than . . . Williams,” the alleged evidence would have undermined
their credibility as two players who had dealings independent of Williams’s
participation. While this information may have been helpful to Williams, “the
Constitution does not require the prosecutor to share all useful information with the
defendant” prior to a guilty plea. Ruiz, 536 U.S. at 628.
As to the third allegedly suppressed piece of evidence, it is unclear how a
preexisting subcontract between Technology Corp. and the joint venture affected the
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improper nature of Williams’s influence over that contract, and Williams does not
provide an explanation. Williams admitted to bribing Cundiff before, during, and
after the formation of the subcontract between Technology Corp. and the joint
venture. Considering Williams’s admissions, he has not shown a “reasonable
probability” that the result of his plea would have been different if he had access to
this evidence. See Bagley, 473 U.S. at 682.
Ineffective Assistance of Counsel
Finally, Williams argues that his trial counsel was ineffective for failing to
(1) investigate certain fact witnesses who would have contradicted the testimony of
a government witness, and (2) request a downward departure at the sentencing
hearing because his sentence was much longer than the national average sentence of
twenty-four months for bribery. Both arguments are unavailing.
To establish ineffective assistance of counsel, a defendant must show that
(1) his counsel’s performance was constitutionally deficient, and (2) the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984).3 Where the defendant challenges a guilty plea based on ineffective
assistance, “the defendant must show that there is a reasonable probability that, but
3 Williams asserted other claims of ineffective assistance of counsel for the first time in his reply brief. We deem these issues waived. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 683 (11th Cir. 2014) (“Arguments raised for the first time in a reply brief are not properly before a reviewing court.” (internal quotation marks omitted)). 13 Case: 19-10873 Date Filed: 08/17/2020 Page: 14 of 15
for counsel’s errors, he would not have pleaded guilty and would have insisted on
going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
However, we do not ordinarily consider claims of ineffective assistance of
counsel on direct appeal. United States v. Khoury, 901 F.2d 948, 969 (11th Cir.
1990), modified on other grounds, 910 F.2d 713 (11th Cir. 1990). Most ineffective-
assistance-of-counsel claims, as the Supreme Court explained in Massaro v. United
States, 538 U.S. 500, 504 (2003), should be “brought under [28 U.S.C.
section] 2255” because “a defendant claiming ineffective counsel must show that
counsel’s actions were [deficient] and that the [deficiency in performance] was
prejudicial,” but “[t]he evidence introduced at trial . . . will be devoted to issues of
guilt or innocence, and the resulting record in many cases will not disclose the facts
necessary to decide either prong of the Strickland analysis.” Id. at 504–05. As such,
the best forum to develop the facts necessary to determine the adequacy of
representation during a trial is in a section 2255 proceeding where the defendant “has
a full opportunity to prove facts establishing ineffectiveness of counsel, the
government has a full opportunity to present evidence to the contrary, the district
court hears spoken words we can see only in print and sees expressions we will never
see, and a factual record bearing precisely on the issue is created.” Id. at 505–06
(internal quotation marks omitted). Other than “rare instance[s] when the record is
sufficiently developed, we will not address claims for ineffective assistance of
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counsel on direct appeal.” United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th
Cir. 2005).
The record is not sufficiently developed to consider Williams’s claims. The
facts supporting Williams’s claims are only in his brief and not in the record––we
don’t know what counsel investigated before the plea or what strategy he used at the
sentencing hearing––so there is no basis for us to review the claims on direct appeal.
See, e.g., United States v. Puentes-Hurtado, 794 F.3d 1278, 1285 (11th Cir. 2015)
(“Although the record contains some evidence concerning [counsel’s] performance,
it is not sufficiently developed to allow us to address the ineffective assistance of
counsel claim.”). Williams is free to assert his claims in a section 2255 motion.
AFFIRMED.