United States v. Davis

29 F.4th 380

UNITED STATES of America, Plaintiff-Appellee,

v.Darayl DAVIS, Defendant-Appellant.

No. 21-1854

United States Court of Appeals, Seventh Circuit.

Argued January 6, 2022

Decided March 29, 2022

Stuart D. Fullerton, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Colleen McNichols Ramais, Attorney, Office of the Federal Public Defender, Urbana, IL, for Defendant-Appellant.

Before Sykes, Chief Judge, and Rovner and Scudder, Circuit Judges.

Rovner, Circuit Judge.

Darayl Davis created, promoted, and operated a complex multi-state scheme to defraud money from people who entrusted him to place their funds in safe and lucrative investments. Rather than investing the money as promised, Davis used it to fund a lavish lifestyle, using the money on entertainment, exclusive clubs, lavish vacations, mansions, and luxury car rentals. All told, over the course of about twenty years, his victims lost approximately $5 million. As is almost always the case with ponzi schemes and their ilk, some victims' lives were devastated by the loss of funds. And, as is also often the result of these schemes, it eventually unraveled and resulted in an indictment. The government charged Davis with nine counts of mail and wire fraud ( 18 U.S.C. §§ 1341 & 1343 ), one count of aggravated identity theft ( 18 U.S.C. § 1028A ) and six counts of engaging in monetary transactions in property derived from unlawful activity ( 18 U.S.C. § 1957 ). R. 45. Davis was released on bond pending a spring 2020 trial.¹

As we now know too well, havoc reached the world that spring, and the day before Davis' scheduled pre-trial conference, the district court issued an order creating emergency procedures to address health and safety in light of the beginning of the Covid-19 pandemic. The court's First Amended General Order 20-0012 emphasized that the court remained open for criminal proceedings that could not be delayed. All other non-emergent proceedings, including Davis' trial, were continued until April 6, 2020. When hopes for a short-lived pandemic did not come to fruition, on March 30, 2020, the court entered a Second Amended General Order 20-0012 postponing plea hearings until after May 4, 2020. The order provided that parties in individual cases could request plea hearings held by video or telephone conference pursuant to the 2020 Coronavirus Aid, Relief, and Economic Security Act (CARES Act), § 15002(b)(2)(A), Pub. L. No. 116-136, 134 Stat. 281 (2020), which allows for such hearings during the Covid-19 pandemic if certain preconditions are met. Throughout the relevant time frames the district court continued to issue General Orders with substantially similar provisions.

Over the next several months, the parties negotiated a plea agreement, and the court agreed to exclude that time under the Speedy Trial Act, 18 U.S.C. § 3161, et. seq. During a status hearing on September 24, 2020, when Davis' counsel stated that the parties would be ready for a change of plea hearing in 30-45 days, the court asked if Davis would agree to conduct the plea by telephone conference. Davis' counsel stated "Yes, Your Honor, that's agreeable." R. 187 at 3–4. Davis, who was telephonically present for the hearing did not object. Nor did he object when the district court issued the following order:

The government and the Defendant Darayl Davis have agreed to proceed with a telephone-conference change of plea hearing.

The Court hereby orders that the change of plea hearing set for November 10, 2020 proceed by telephone conference. This Order memorializes the required findings under the CARES Act § 15002(b)(2)(A), Pub. L. No. 116-136, 134 Stat. 281.

By order dated June 12, 2020, the Chief Judge found that felony pleas and felony sentencings cannot be conducted in person in this district without seriously jeopardizing public health and safety.

Under Section 15002(b)(2)(A), the assigned judge finds that further delay of this hearing would cause serious harm to the interests of justice, because the Defendant wishes to advance the case so that he may accelerate the designation to a Bureau of Prisons facility, which offers more programming and more expansive inmate resources.

R. 143.

The notification of docket entered in the record that day setting the plea hearing date also stated that the hearing would be held telephonically. R. 142. The plea hearing was reset on several occasions at the request of the parties as they continued plea negotiations. Each time the order indicated that the hearing would proceed telephonically. R. 144, 145, 146, 147. Davis never objected to the original minute order or any of the four that followed, each of which indicated that the hearing would be held by telephone.

On January 19, 2021, when the parties finally conferenced by telephone for the change of plea hearing, Davis was present in his lawyer's office and greeted the court. R. 184 at 2. The district court assured Davis, "[i]f there's any problem, just let us know, and ... we'll deal with them," and he reminded him "you may consult with your lawyer at any time during these proceedings for any reason at all. So if you have any questions or concerns or anything like that, just let us know, and you and Mr. Cheronis can speak in private." R. 184 at 3. The district court, at the government's request, also confirmed that Davis was agreeing to hold the plea hearing telephonically.

GOVERNMENT: I might also just ask, I know the Court previously entered an order on September 24th authorizing that the previously scheduled plea hearing be conducted by telephone but just wanted to confirm that that's still Mr. Davis's and the parties' intention and then have that order updated for today's date.

THE COURT: All right. Is that agreeable, Mr. Cheronis?

MR. CHERONIS: Yes, Your Honor. We've discussed it with Mr. Davis and agree to proceed via telephone pursuant to the CARES Act.

THE COURT: Okay. Thank you.

R. 184 at 4. There is no question that the court and government went out of their way to make sure that Davis had consented to the telephonic hearing, both on September 24, when the agreement was made to proceed telephonically, and on January 19, before the hearing began.

Davis did not have any complaints regarding the telephonic plea hearing that day or at any other time until this appeal. Pursuant to his plea agreement with the government, Davis pleaded guilty to one count of mail fraud (Count 6) under 18 U.S.C. § 1341. The government agreed to dismiss all of the remaining eight counts, and in exchange, Davis signed a plea agreement that included a provision in which he waived his appellate rights.

After the court accepted Davis' plea and entered a finding of guilt, the district court judge engaged in a back and forth with Davis' counsel about scheduling the sentencing hearing, including a discussion about whether Davis might agree to a sentencing hearing by video conference. Davis' counsel, ruminating on the question stated, "I guess the issue is just whether or not they're going to call witnesses. ... To the extent that I'd want to cross the witnesses via video, I'd have to think about that and talk to my client about it. If there weren't going to be live witnesses, I would certainly be more amenable to that." R. 184 at 27. The district court stated, "[t]he Court will consider and set an in-person sentencing, if necessary. Would that be agreeable, Mr. Cheronis? And you know, if there's live witnesses, I absolutely agree with you that we'll have to wait until we can do it in person." Id. at 28. Later, the court then reiterated, "And I can just assure Mr. Cheronis this. If I think it is necessary for the defense to have in-person proceedings, that's the way we'll do it." Id. at 29–30. The court then issued an order memorializing what had occurred during the change of plea hearing, including the fact that Davis had agreed at the outset to holding that hearing by telephone. R. 143. Davis did not dispute the order or that he agreed to proceed telephonically.

During the sentencing hearing, which did indeed proceed by videoconference, Davis spoke for himself and stated that he understood that he had agreed to sentencing via video conference. R. 168 at 4–5. The district court sentenced Davis to 160 months imprisonment and a three-year term of supervised release. He was also ordered to pay $7,171,085 in restitution to approximately twenty-five victims. Davis now appeals, arguing that the district court erred by holding his plea hearing by telephone conference.

In the course of the lengthy negotiations between Davis and the government, Davis signed a plea agreement waiving his appellate rights. As an appellate court, we review de novo whether a waiver of appellate rights contained in a plea agreement should be enforced. United States v. Brown , 973 F.3d 667, 718 (7th Cir. 2020) (multiple denials of cert. omitted from citation). A plea agreement is a contract between the defendant and the government, and we interpret it as such, holding all parties to their bargain, even if they later have a change of mind. Plunkett v. Sproul , 16 F.4th 248, 256 (7th Cir. 2021) ; United States v. Sheth , 924 F.3d 425, 430 (7th Cir. 2019). That bargain included Davis' agreement to waive his appeals in exchange for the government dropping eight of the nine counts against him.

The part of the plea agreement addressing appellate waiver stated as follows:

21. b. Waiver of appellate and collateral rights. Defendant further understands he is waiving all appellate issues that might have been available if he had exercised his right to trial. Defendant is aware that Title 28, United States Code, Section 1291, and Title 18, United States Code, Section 3742, afford a defendant the right to appeal his conviction and the sentence imposed. Acknowledging this, defendant knowingly waives the right to appeal his conviction, any pre-trial rulings by the Court ,

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