United States v. Truman Tolson and Darrell Tolson

SHADUR, Senior District Judge,

concurring in the result.

Although the majority opinion assuredly reaches the correct result as to both Truman Tolson (“Truman”) and his son Darryl — upholding the sentence imposed on each after their respective guilty pleas — I am constrained to express my respectful disagreement with one aspect of the opinion as to Truman, and to comment briefly on the recurring subject of acceptance of responsibility under the Guidelines. With this and all other appellate courts having been thrust into the business of sentencing on a major scale because of the Guidelines’ advent, and with district courts thus having to pay heed to an expanding body of appellate case law, it is just as important that we always explain the correct reasons for our results as it is for us to be correct in the individual cases before us.

First, it cannot fairly be said that a defendant such as Truman, merely by his pleading guilty to a conspiracy count of an indictment that charges a multiplicity of defendants and that states a prolonged time frame for the operation of the conspiracy, has somehow waived the right to question the time frame of that individual defendant’s own participation in the conspiracy. In this instance the use of ellipses in the majority opinion’s quotation from the indictment (at 1499-1500) does not reflect that Truman and Darryl were only two of 12 individuals who were charged with having conspired, in the course of a conspiracy that began early in 1986 and continued through February 10, 1989, to distribute marijuana and to possess marijuana with the intent to distribute it. That point is recognized in passing at 1495, just as the ensuing background recital at 1495-96 reflects (as is typical of all such wide-ranging *1506 conspiracies) that the various conspirators played differing roles and had differing levels of responsibility.

Cases are legion in which defendants enter and leave the ranks of conspiracies in progress. 1 Indeed, part of the standard instruction on conspiracy in this circuit (one of the necessary elements of which is that the government must prove beyond a reasonable doubt “that the defendant knowingly and intentionally became a member of the conspiracy”) — an instruction that has consistently been approved by this court in the respect next referred to — is this (Federal Criminal Jury Instructions prepared by Committee on Federal Criminal Jury Instructions of the Seventh Circuit, 1980 (emphasis added)):

To be a member of the conspiracy, the defendant need not join at the beginning or know all the other members or the means by which the purpose was to be accomplished. The government must prove beyond a reasonable doubt, from the defendant’s own acts and statements, that he was aware of the common purpose and was a willing participant.

Moreover, if the majority’s position (an asserted one-to-one correlation between a defendant’s being guilty of a conspiracy charge and that defendant’s having been a conspirator throughout its entire duration) were correct, why has it been necessary for all Courts of Appeals (including this one) to develop case law doctrines about the admissibility in evidence under Fed.R.Evid. 801(d)(2)(E) of statements that were made in furtherance of the conspiracy before the specific defendant joined? And why does part of Application Note 1 to Guideline § 1B1.3 — a part that is included in the quotation (but is not italicized) at 1502 n. 8— expressly recognize that conspiracy counts are often “broadly worded and include the conduct of many participants over a substantial period of time, [so that] the scope of the jointly-undertaken criminal activity, and hence relevant conduct, is not necessarily the same for every participant”?

To be sure, we said this on quite another waiver issue in United States v. Savage, 891 F.2d 145, 150 (7th Cir.1989):

Having pleaded guilty to membership in the conspiracy as charged in the indictment knowingly and intelligently, and with the advice of counsel, Savage has relinquished the right to challenge the conspiracy.

But that accurate holding simply does not support the entirely different waiver doctrine stated in the majority opinion. It must be remembered that indictments, like diodes or computer chips, permit only two possible positions: “on” or “off,” guilty or not guilty. Truman could not have entered a guilty plea to a slice of the conspiracy count — it was all or nothing. 2 By choosing to plead guilty, Truman (like Savage) gave up his “right to challenge the conspiracy” — and perhaps the right to challenge the duration of the conspiracy itself, if that *1507 were relevant — but it does not at all follow that he thereby acknowledged that he himself was in on it from the start.

Nothing said in Savage supports such a Hobson’s choice for defendants, under which they are forced to go to trial (almost assuredly forfeiting any acceptance of responsibility credit) in order to be enabled to argue truthfully at sentencing that they were late entrants into a long-lasting conspiracy. Under the majority’s analysis, someone who was first enlisted into a ten-year conspiracy to be the driver for a drug shipment that proved to be the final fatal one in which the authorities swept up the conspirators in a mass arrest, and who was then charged with everyone else in the same drug conspiracy count (as prosecutors regularly do, and have every right to do), somehow becomes a member of the conspiracy from day one by the act of pleading guilty. That cannot be the law, and it is not.

Nor is the majority aided by the string citation of other cases that are equally off point. Not one of the cited cases, each of which finds a very different aspect of waiver by reason of a guilty plea, supports the proposition announced by the majority opinion. And the absence of any language in judicial opinions rejecting that proposition surely reflects nothing more than the fact that no prosecutor (including the one in this case) has advanced it. This is the first and only case even to have suggested this result, so much at odds with the established principles of conspiracy law.

Last month the Court of Appeals for the Fourth Circuit did deal with the issue whether a defendant, by pleading guilty to the conspiracy count in a multi-defendant drug indictment, was thereby precluded as a matter of law. from contesting the amount of cocaine for which he was being held responsible (United States v. Gilliam, 987 F.2d 1009 (4th Cir.1993)). There the conspiracy count “listed the 28 participants and charged that the conspiracy involved distribution or possession with the intent to distribute 30 kilograms or more of cocaine” {id. at * 4). If the waiver concept that has been expressed in the majority opinion here were to prevail, clearly that charge posed a far more compelling case for the attribution to defendant Gilliam (who was not suggested to have been a conspirator for less than the full time span of the conspiracy) of the express amount specified in the indictment. By contrast, in the present case the indictment simply charges that 12 people engaged in a conspiracy that spanned an overall time frame — something that is not at all equivalent as a matter of law, for the reasons that I have already expressed, to charging that each co-conspirator was a participant in the conspiracy throughout the duration of that time span.

Writing for the Gilliam majority, Circuit Judge William Wilkins, Jr. (Chairman of the United States Sentencing Commission, which is vested by Congress with responsibility for the adoption and revision of the Guidelines) held defendant was not bound to that 30 kilogram figure by reason of his guilty plea. Not only does this case present an a fortiori situation calling for the same result of non-waiver, but I believe that the majority opinion here creates a conflict between circuits. 3

What is of course most regrettable about the majority’s shorthand treatment of the issue as one of waiver is that it is entirely needless to this case. There is more than enough in the record to support the factual findings by the district court as to Truman’s actual 1986 involvement in the conspiracy, and as to the incredibility of Truman’s disclaimer that he knew marijuana *1508 was involved at that time (see at 1501-02 n. 7). Those findings amply support an affir-mance of the district court’s ultimate finding that Truman in fact joined the conspiracy in 1986.

Apart from that point of disagreement with the waiver concept voiced by the majority opinion, I turn to another subject on which I also agree with the conclusion reached in that opinion, but as to which I hope that the perspective of a district judge might provide some added insight. Any full appreciation of the manner in which Sentencing Guideline § 3E1.1 — the accep,-tance-of-responsibility Guideline — works is likely to be gained only from living with it as part of the task of sentencing criminal defendants on a regular basis. There is no question that in practice the present Guideline regularly impinges on (though it may not violate as a matter of constitutional right) a defendant’s opportunity to exercise some of the rights that the Framers valued so highly that they built them into the Bill of Rights: the Fifth Amendment’s privilege against self-incrimination (as to conduct outside of the scope of the guilty plea) and the Sixth Amendment’s right to trial (the same Amendment’s right to counsel is much less often implicated).

That is particularly true as to the emphasis on timeliness of the acceptance of responsibility reflected in Application Note 1(g) to Guideline § 3E1.1. Religion recognizes — even stresses — that repentance never comes too late for redemption. And even in the secular sphere that courts occupy, true remorse for having committed a crime is not necessarily inconsistent with an early, and even vigorous, insistence that the government bear the burden of establishing guilt beyond a reasonable doubt that has long been ingrained in our system.

Nor is that stress on timeliness justified by mere concern for the effects on a district court’s calendar, often voiced in opinions from this court as an added reason to support a result on efficiency or cost-effectiveness grounds. District judges do much more than merely try lawsuits back to back. We do not function (for example) like the judges on the law calendar in the Circuit Court of Cook County, who do nothing but try cases that they receive from a central assignment calendar — cases with which they have no prior familiarity. For such judges, a day lost from trial is indeed a lost day. By contrast, for the district judge a respite from trial may well be both welcome and constructive — it gives the opportunity to deal other than at night or during odd snatched moments with the many complex motions that demand written treatment (primarily motions for summary judgment, less often motions to dismiss or other procedural motions), to say nothing of the opportunity to craft findings of fact and conclusions of law in cases that have been tried to the court and not to a jury. Solicitude for the workload of the overworked district court judiciary is welcome from any source, but any notion that the belated elimination of a ease from the court’s trial docket contributes to delays and to backlog really misperceives just what we do at the district court level.

But what has just been said here really goes to the wisdom (or lack of it) in the existing Guideline and Application Code, or to the manner in which the Guideline’s reference to timeliness is often applied, not to the Guideline’s validity as such. Most importantly in this case, the court’s opinion accurately reflects that on the facts here neither of the Tolsons could fairly claim entitlement to the two-level reduction even on the most generous application of the concept of acceptance of responsibility.

To summarize what has been said here, if the judicial function were solely to be measured in terms of the results reached, I would have been pleased to join the majority without comment. But appellate courts announce opinions, rather than judgments alone, to guide other courts in the future. Some of what has been said in the majority opinion sets the law of this circuit on what I believe to be the wrong path. Accordingly I concur in the result reached by the majority, but not in the aspects of its opinion discussed here.

. In this instance, for example, at 1495-96 accurately reflects that the leadership role in the conspiracy had to shift to others in May 1988— some nine months before the conspiracy came to its end — after the arrest of some of the ringleaders.

. Page 1501 of the majority opinion seeks to deflect this point by suggesting three "options” supposedly available to Truman. But quite apart from the general proposition that appellate courts are not entitled to engage in revisionist history that is totally without record support, with all due respect that suggestion reflects a lack of understanding of the process by which guilty pleas are entered at the trial court level. Except for the entry of a "blind plea” — one in which a defendant pleads guilty to all charges in which he or she is named, without having reached any understanding with the prosecutor — the nature and scope of the guilty plea are controlled by the prosecutor’s absolute veto power. It is the prosecutor and not defense counsel who decides what count or counts will be the subject of the plea, because it is the prosecutor who must agree to move for dismissal of the remaining count or counts at the time of sentencing. And with the possible exception of some limited circumstances in which the prosecutor may view a guilty plea to a substantive count as being better from the government's point of view, the consistent practice of prosecutors in cases such as this is to insist on a guilty plea to the conspiracy count as the price for their agreeing to move to dismiss other substantive counts at sentencing. That is obviously what happened here. In short, nothing in the record here or in the real world of criminal law lessens the force of the "all or nothing” statement in the text of this concurrence.

. Page 1500 of the majority opinion relegates Gilliam to footnote status, characterizing it as "factually distinguishable." That is true only in the tautological sense that every case is “factually distinguishable” from every other. What is significant in jurisprudential terms is whether the "distinction" is one with or without a difference in the legal sense. In this situation any factual distinction cuts the other way: If waiver is inappropriate in the Gilliam context, it is doubly inappropriate here. Hence the cases are in collision. Indeed, because the situation in this case does not approach the one posed in Gilliam , I would suggest that the position stated by Circuit Judge Widener in dissenting from the majority opinion in Gilliam does not support the majority decision here. But even if it did, the inter-circuit conflict would still exist.