US v. John Moore, Jr.

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cr-00062-FDW-1 Copies to all parties and the district court/agency. [1000039804].. [15-4604]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4604

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN MOORE, JR.,
Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:12-cr-00062-FDW-1)

Argued: December 8, 2016

Decided: March 10, 2017

Before KEENAN, WYNN, and HARRIS, Circuit Judges.

Affirmed by unpublished opinion. Judge Harris wrote the opinion, in which Judge
Keenan and Judge Wynn joined.

ARGUED: Denzil Horace Forrester, DENZIL H. FORRESTER ATTORNEY-AT-LAW,
Charlotte, North Carolina, for Appellant. Anthony Joseph Enright, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF:
Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PAMELA HARRIS, Circuit Judge:
John Moore, Jr., pleaded guilty to possession of child pornography and then, at his
sentencing hearing, proclaimed his innocence. The district court, justifiably confused,
repeatedly suggested that what Moore intended was an Alford plea – a plea in which a
defendant maintains his innocence but pleads guilty in light of the strength of the
government’s case against him. Moore agreed, and the district court accepted an Alford
plea. The court then sentenced Moore to 108 months’ imprisonment, the bottom of
Moore’s advisory Guidelines range, without any reduction for acceptance of
responsibility.
The primary issue raised by this appeal is whether the district court impermissibly
participated in plea discussions by encouraging Moore to enter an Alford plea. Because
Moore did not object to the court’s involvement, we review for plain error only. And
because any error by the district court did not affect Moore’s substantial rights, reversal is
not warranted on that ground. Nor are we persuaded by Moore’s other challenges to his
conviction. Accordingly, we affirm.

I.
This case began when Moore brought his computer to an Apple Computer Store
for repairs. A technician discovered child pornography on the computer, and the FBI
intervened.

After obtaining a warrant, the FBI searched the computer, discovering

hundreds of images and several videos depicting child pornography, some involving
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sadistic or masochistic conduct. During an interview with the FBI, Moore admitted to
viewing approximately 2,000 images of child pornography.
On April 11, 2013, Moore pleaded guilty to one count of possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). A United States magistrate
judge accepted that plea after conducting a colloquy under Rule 11 of the Federal Rules
of Criminal Procedure, during which Moore was represented by Joseph Bell, an attorney
retained by his family.

Under oath, Moore affirmed, among other things, that he

understood the charge and maximum penalty that he was facing, and that he was waiving
his right to a jury trial; that nobody had “threatened, intimidated, or forced” him to enter a
guilty plea, J.A. 24; and that he had discussed the consequences of pleading guilty with
his lawyer and was satisfied with Bell’s services.
In response to a question from the magistrate judge, Moore affirmed that he was
“in fact [] guilty” of the offense. J.A. 23. But later in the colloquy – and foreshadowing
the difficulties to come – Moore equivocated: “Every fiber of my being wants to fight it,
but . . . I want to accept responsibility for my actions . . . even though . . . nothing was
malicious, nothing was intentional.” J.A. 25. Still later, Moore clarified, “I’m guilty, but
I don’t think I’m guilty of such a harsh sentence.” J.A. 27. Moore affirmed that he had
heard and understood every part of the plea colloquy and that he still wished to plead
guilty. The magistrate judge accepted the plea as voluntarily and knowingly given.
Approximately six months later, Moore wrote to the court, alleging that Bell had
provided “insufficient counsel” and told Moore that “it would go worse for [him] if [he]
went to trial” instead of pleading guilty. J.A. 34. Bell moved to withdraw as counsel,
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and the district court ultimately granted his motion and appointed attorney Denzil
Forrester to represent Moore. Now with new counsel, Moore moved to withdraw his
guilty plea in July 2014, over a year after his original plea was entered.
What followed was a series of four hearings, spanning a year, during which the
district court considered Moore’s motion. As part of those proceedings, the court ordered
a mental health evaluation of Moore, prompted by Moore’s allegations regarding his
ability to understand his plea as well as Moore’s erratic behavior in court. The district
court concluded that Moore was competent to proceed and to assist in his defense, and
went on to consider the merits of Moore’s motion.
The precise nature of Moore’s claim shifted over the extended course of the
proceedings. Ultimately, however, Moore argued that he should be entitled to withdraw
his guilty plea for two reasons, both related to his representation by Bell: first, because
Bell had pressured him to plead guilty, rendering his plea involuntary; and second,
because Bell had a conflict of interest, with financial concerns about expenses coloring
his advice to Moore. To address those allegations, the district court heard testimony from
two of Moore’s family members, who described their fee arrangement with Bell, and
expressed their belief that Moore had not wanted to plead guilty but had been “talked []
into” it by Bell, J.A. 292. The court also heard from Bell, who testified that while he
advised Moore that a guilty plea would be in his interest, he did nothing to coerce or
manipulate Moore; that he would have taken the case to trial had Moore so chosen; and
that his financial arrangement with Moore’s family played no role in his advice to Moore.

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The district court denied Moore’s motion to withdraw his guilty plea after
considering the factors described in United States v. Moore, 931 F.2d 245, 248 (4th Cir.
1991). The court made an express finding of fact that Bell was a “very credible witness,”
who had drawn on his extensive experience to give Moore “very good advice” regarding
Moore’s guilty plea. J.A. 460–61. Reviewing in detail the Rule 11 colloquy that had
accompanied Moore’s plea, and emphasizing Moore’s full and compelling answers to the
magistrate judge’s questions, the court concluded that there was no credible evidence that
Moore’s plea was involuntary. Nor, the court held, could Moore credibly assert his legal
innocence, in light of “overwhelming evidence” of Moore’s guilt and the absence of any
basis for challenging Moore’s confession to the FBI.

J.A. 470–71.

In sum, after

expressly considering each of the Moore factors, the court concluded that Moore had not
provided a “fair and just reason” for withdrawal of his plea. J.A. 473.
Before adjourning, the district court briefly addressed Moore’s pending
sentencing. The court noted that Moore’s presentence report recommended against an
offense-level reduction for acceptance of responsibility. If Moore continued to argue that
his guilty plea was not knowing and voluntary, the court warned, then the court would be
bound to adopt that recommendation and deny credit for acceptance of responsibility.
That brings us to the September 2015 sentencing hearing that is the main focus of
this appeal. In light of the earlier proceedings, the district court opened by asking Moore
whether he was prepared to accept responsibility for his offense. And notwithstanding
the court’s prior warning, Moore immediately professed his innocence: “I would like to
accept responsibility for my actions, but I still want to maintain my innocence.” J.A. 494.
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When the court expressed its confusion, Moore reiterated his position:

“I accept

responsibility for my actions, but I still maintain . . . that I didn’t do anything wrong. . . .
I’ve never done anything willfully wrong, bad, unlawful.” J.A. 496; see also J.A. 502
(“What I’m saying is I’m not guilty of any criminal behavior . . . but I accept
responsibility for my actions. That’s what I’m saying.”).
It was at this point that the district court, on its own initiative, introduced the idea
of an Alford plea – that is, a plea in which a defendant “proclaims he is innocent, but
intelligently concludes that his interests require entry of a guilty plea” in light of strong
evidence of guilt. See United States v. Davis, 679 F.3d 177, 186 (4th Cir. 2012) (internal
quotation marks and citation omitted). It is not entirely clear from the record whether the
district court was construing Moore’s original plea as an Alford plea, see J.A. 517 (“[T]he
magistrate judge properly found that defendant knowingly and voluntarily entered a plea
akin to an Alford plea, admitting he was guilty for purposes of advancing his case[.]”), or
allowing Moore to convert his original plea into an Alford plea, see id. at 551 (“So what
the Court is doing today is allowing you to in essence change your plea from a traditional
plea of guilty to an Alford plea[.]”). But either way, the district court explained more
than once to Moore that in its view, what Moore actually had in mind was an Alford plea.
See, e.g., J.A. 515 (“[Y]ou apparently consider yourself guilty in the context of an Alford
plea[.]”); id. at 551–52 (“I’m trying to help – allow you to enter a plea that seems to
comport with your personal conscience.”). And the message was received by Moore,
who stated that he was “now [] trying to cooperate with the [c]ourt to do the . . . Alford
[plea.]” J.A. 559.
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The district court explained to Moore that an Alford plea does not constitute
acceptance of responsibility, and that the court generally will not grant a sentencing
reduction for acceptance of responsibility when an Alford plea is entered.

Moore

indicated that he understood those consequences. Though the government objected to
treatment of Moore’s plea as an Alford plea – consistent with Department of Justice
policy against such pleas – neither Moore nor his counsel joined in that objection.
Defense counsel did, however, request that the court conduct a new colloquy with Moore.
His concern, as he later explained, was that he could think of no reason why “someone
[would] enter an Alford plea knowing that they’re giving up that privilege or benefit of
getting acceptance [credit at sentencing].”

J.A. 564.

But the district court had a

response: “Because his [Moore’s] conscience is more important than some extra time in
jail.” Id. Moore agreed with that assessment.
The court agreed to undertake a second plea colloquy. As part of that colloquy,
the district court explained to Moore that it would not revisit Moore’s motion to withdraw
his plea, leaving Moore with only two options: Moore could enter an Alford plea, or he
could retain his initial, traditional guilty plea. Moore stated that he wished to “continue
to maintain that [he] never willfully did anything wrong or unlawful,” J.A. 543, and
confirmed his desire to continue with an Alford plea several more times over the course
of the colloquy. At the close of the colloquy, the court accepted Moore’s decision to
enter an Alford plea.
The court then proceeded to sentencing, with a U.S. Probation Office presentence
investigation report recommending a Guidelines range of 108 to 120 months’
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imprisonment. That range did not incorporate an offense-level reduction for acceptance
of responsibility; because Moore had refused an interview and failed to fill out probation
forms related to his plea, the probation officer had no basis for evaluating acceptance of
responsibility.

The district court adopted the presentence report’s recommendation.

Moore’s equivocation as to his guilt, the court explained, precluded a reduction for
acceptance of responsibility. The Alford plea in this case, the court concluded, was not
consistent with acceptance of responsibility, “because [Moore] doesn’t, in his heart,
believe he’s guilty of the crime, even though he knows the evidence against him is
overwhelming.”

J.A. 576.

The district court ultimately sentenced Moore to

imprisonment for 108 months, the bottom of the Guidelines range.
This timely appeal followed.

II.
A.
We may dispense briefly with two of Moore’s challenges to his conviction. First,
Moore claims that he was denied the effective assistance of counsel when he was
represented by attorney Bell in connection with his original guilty plea. Moore relies in
part on the same allegation raised in support of his motion to withdraw his guilty plea:
that Bell pressured him to plead guilty, motivated by financial concerns. Moore also
identifies additional purported errors, such as Bell’s failure to move for suppression of
Moore’s confession, and alleges a general lack of zeal on Bell’s part.

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The district court, of course, made specific findings of fact regarding Bell’s
representation of Moore, concluding that Bell provided capable representation and
credibly denied any financial influence on his advice. Regardless, we decline to reach
Moore’s ineffective assistance claim. Unless an attorney’s ineffectiveness conclusively
appears on the face of the record – a standard not met here – such claims are not
addressed on direct appeal. See United States v. Benton, 523 F.3d 424, 435 (4th Cir.
2008). Moore’s ineffective assistance claim should be raised, if at all, in a 28 U.S.C.
§ 2255 motion. See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
Moore also argues that the district court erred in denying his motion to withdraw
his guilty plea. We disagree. The district court held four hearings on Moore’s motion,
ordered a mental health evaluation to ensure that Moore was able to understand the
proceedings, and heard extensive testimony regarding Moore’s allegations against his
attorney. In a lengthy explanation of its decision, the district court expressly applied each
of the six factors we have deemed relevant to the analysis:
(1) whether the defendant has offered credible evidence that his plea was
not knowing or not voluntary, (2) whether the defendant has credibly
asserted his legal innocence, (3) whether there has been a delay between the
entering of the plea and the filing of the motion, (4) whether defendant has
had close assistance of competent counsel, (5) whether withdrawal will
cause prejudice to the government, and (6) whether it will inconvenience
the court and waste judicial resources.
Moore, 931 F.2d at 248; see J.A. 472 (summarizing application of each factor). Most
important, the district court carefully analyzed the original Rule 11 colloquy, reviewing
in detail the “full answers” given by Moore, and found it “extremely compelling”
evidence that Moore entered his plea knowingly and voluntarily. J.A. 470; see United
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States v. Nicholson, 676 F.3d 376, 384 (4th Cir. 2012) (“most important consideration”
on motion to withdraw guilty plea is “an evaluation of the Rule 11 colloquy at which the
guilty plea was accepted”). Combined with Bell’s credible testimony that he had not
pressured Moore to plead guilty, the court concluded, Moore could not assert credibly
that his plea was not knowing or otherwise involuntary. The court also emphasized that
in light of the “overwhelming evidence” against him, Moore could not credibly assert his
innocence, J.A. 470–71, and that Moore had received the close assistance of able and
experienced counsel.
The district court’s determination that Moore failed to show a “fair and just
reason” for withdrawal of his plea was well within the court’s discretion. J.A. 473; see
Nicholson, 676 F.3d at 383 (reviewing denial of motion to withdraw plea for abuse of
discretion). We have no ground to disturb the court’s judgment on this score.
B.
We turn now to the claim at the heart of this appeal: that the district court
improperly participated in Moore’s plea negotiation by encouraging Moore to enter an
Alford plea. 1 Federal Rule of Criminal Procedure 11, which governs guilty pleas, clearly

1

Moore appears also to argue that the magistrate judge who conducted his original
plea colloquy improperly participated in plea negotiations, by virtue of that judge’s
failure to perceive that Moore’s plea was not voluntary. But this is no more than a
repackaging of Moore’s underlying disagreement with the denial of his motion to
withdraw his guilty plea as involuntary. Moore identifies no statement or action by the
magistrate judge in support of a distinct claim of improper interference.

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prohibits judicial participation in plea negotiations.

While government and defense

attorneys may “discuss and reach a plea agreement,” “[t]he court must not participate in
these discussions.” Fed. R. Crim. P. 11(c)(1) (emphasis added). As we have explained,
that prohibition serves “three principal interests: it diminishes the possibility of judicial
coercion of a guilty plea; it protects against unfairness and partiality in the judicial
process; and it eliminates the misleading impression that the judge is an advocate for the
agreement rather than a neutral arbiter.” United States v. Sanya, 774 F.3d 812, 815 (4th
Cir. 2014) (internal quotation marks and citation omitted); see also United States v.
Braxton, 784 F.3d 240, 242–43 (4th Cir. 2015).
Moore contends that the district court violated this dictate of Rule 11 at the
sentencing hearing, when it raised the possibility of an Alford plea and then negotiated
that plea directly with Moore. Because neither Moore nor his counsel objected before the
district court – even after the government objected and the court expressly solicited the
views of defense counsel – we review this claim for plain error only. Sanya, 774 F.3d at
815. To prevail under that “rigorous” standard, id., Moore must demonstrate not only
that the district court erred, and erred plainly, but also that the court’s error affected
Moore’s substantial rights, which in this context means that there is a “reasonable
probability that, but for the error, [Moore] would not have pleaded guilty.” See id. at 816
(internal quotation marks and citation omitted).

We conclude that Moore cannot

establish the necessary effect on substantial rights, and therefore find no reversible error.
We do recognize that the proceedings in question were at least somewhat
unorthodox. As noted above, there are questions as to exactly what transpired with
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respect to Moore’s various guilty pleas – whether his original plea was construed as an
Alford plea, or converted to an Alford plea, or perhaps withdrawn and then replaced with
an Alford plea – and precisely what authority the district court invoked in effectuating
this outcome. But however the proceedings are characterized, it must be conceded that
the district court took an active role in discussion of the Alford plea ultimately entered by
Moore. It was the district court that first introduced the idea of an Alford plea; the district
court that explained to Moore why, in the court’s view, Moore’s position was consistent
with an Alford plea; and the district court that suggested that as a matter of conscience,
Moore might want to forgo credit for acceptance of responsibility by entering an Alford
plea. 2 And these were not “a single or even a few brief remarks” about an Alford plea,
but rather the kind of “extensive and persistent” comments that may cross the line into
forbidden judicial participation in plea negotiations, Braxton, 784 F.3d at 243–44, and in
this case may have led Moore to believe that he was “cooperat[ing] with the [c]ourt” by
entering his Alford plea, J.A. 559.
To be clear, we are confident that the district court, having expressed justifiable
confusion regarding Moore’s position on acceptance of responsibility, acted with the best

2

When defense counsel wondered why Moore would enter an Alford plea if he
fully understood that he would be giving up the benefit of an offense-level reduction for
acceptance of responsibility, the following exchange ensued:
The Court: Because his conscience is more important than some extra time in jail.
The Defendant: Exactly.
The Court: And I totally understand that.
The Defendant: I agree. I agree.
The Court: So that’s exactly why he’s doing that.
J.A. 564.
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of intentions to ascertain Moore’s state of mind and to ensure that Moore’s plea reflected
Moore’s wishes. See J.A. 514–15 (“And I’ve been trying . . . [to] find out from you []
how you consider yourself guilty.”); id. at 551–52 (“I’m trying to help – allow you to
enter a plea that seems to comport with your personal conscience.”). But the district
court’s active role in discussion of Moore’s Alford plea does raise questions about
whether the court inadvertently overstepped the boundaries of Rule 11.
We need not resolve that issue here, however, because Moore cannot establish the
effect on substantial rights that would be necessary to prevail on plain error review. As a
general rule, a violation of Rule 11(c)(1) affects substantial rights if there is a reasonable
probability that but for the error, the defendant would not have pleaded guilty. Braxton,
784 F.3d at 244 & n.4. But what is unusual about this case, of course, is that Moore
already had pleaded guilty well before the district court ever mentioned Alford. And the
court, having denied Moore’s motion to withdraw his guilty plea at a prior proceeding,
made perfectly clear that it was prepared to hold Moore to his original plea. See J.A. 542
(“[Y]ou don’t have to enter this Alford plea, but you still have the prior plea [] out there
because I wouldn’t let you withdraw it[.]”).

So whether or not the district court

influenced Moore with respect to the nature of his guilty plea, the fact of a guilty plea
was a foregone conclusion. This is not a case, in other words, in which we need worry
that a Rule 11(c)(1) error has affected a defendant’s substantial right to proceed to trial,
persuading him to forfeit that right by following a court’s suggestion to enter a guilty
plea. See Braxton, 784 F.3d at 244 (explaining that judicial intervention on behalf of plea

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agreement and forfeiture of right to trial is inconsistent with court’s role as neutral
arbiter).
Nor did the precise nature of Moore’s plea have any tangible effect on the
proceedings at issue here.

We recognize that under other circumstances, a court’s

improper suggestion that a defendant enter an Alford plea rather than a traditional guilty
plea might well affect the defendant’s sentence, because – as the district court explained
to Moore – a defendant who pleads guilty under Alford generally will not receive a
reduction for acceptance of responsibility. In this case, however, Moore was ineligible
for acceptance of responsibility credit long before the district court raised the possibility
of an Alford plea. Because Moore refused to participate in a presentence interview or fill
out presentence forms, his presentence report advised that the reduction for acceptance of
responsibility was inapplicable. And in adopting that recommendation, the district court
relied as well on Moore’s equivocation regarding his guilt during the hearings devoted to
Moore’s motion to withdraw his original guilty plea. Indeed, even at the sentencing
hearing itself, it was Moore who opened by insisting that “I still want to maintain my
innocence,” J.A. 494, before the district court even mentioned an Alford plea.

A

defendant is entitled to an offense-level reduction for acceptance of responsibility only if
he “clearly demonstrates acceptance of responsibility for his offense,” U.S.S.G.
§ 3E1.1(a), and on the facts of this case, there is no reasonable probability that Moore
could have met that standard, with or without the Alford plea.

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In sum, Moore cannot show that any error the district court may have committed
through discussion of his Alford plea affected his substantial rights. For that reason
alone, Moore cannot prevail on plain error review. 3

III.
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED

3

Even if Moore could show an effect on substantial rights, and assuming the
existence of a plain error, we still could not grant relief unless the error in question
“seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.”
Sanya, 774 F.3d at 816 (internal quotation marks and citation omitted). Because any
error in this case did not affect Moore’s substantial rights, we have no occasion to
consider that final hurdle.
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