Appeal from the United States District Court for the Western District of Missouri.
The opinion of the court was delivered by: Bye, Circuit Judge.
Submitted: September 23, 2011
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
Michael Buck pleaded guilty to one count of knowingly recruiting, harboring, transporting, providing, and obtaining a named female victim and others for labor and services in violation of 18 U.S.C. §§ 1590 and 1594. On appeal, Buck contends: (1) the district court erred in denying his motion to withdraw his plea; (2) in the*fn1 alternative, the court should have appointed counsel for the hearing on his motion to withdraw his plea; and (3) the court's written judgment conflicted with its oral pronouncement on whether Buck was sentenced consecutively. We affirm.
This case arises out of a commercial sex trafficking operation in Kansas City, Missouri, and Independence, Missouri. Under the operation, Michael Buck forced female victims to engage in sex acts by threatening them with physical harm. By way of a telephone service, Buck would sell the services of the women in strip clubs, motels, apartments, and houses to his customer base. Buck was charged in a seven-count indictment with commercial sex trafficking, attempted commercial sex trafficking, attempted production of child pornography, and document servitude. A few weeks later, one additional count of attempted commercial sex trafficking and one count of witness tampering were added in a superseding indictment.
Originally, the court appointed Assistant Federal Public Defender Robert Kuchar to represent Buck. However, pursuant to Buck's request, on April 7, 2009, the court appointed Susan Hunt after Kuchar withdrew his representation. Despite Hunt's appointment, Buck once again became unhappy with his counsel, and he moved to appoint new counsel, or, in the alternative, to represent himself, which the magistrate judge considered in a pre-trial conference on May 4, 2010. Following the magistrate judge's denial of Buck's motion, and its admonishment to Buck regarding the perils of proceeding pro se, Hunt continued on as counsel for the remainder of the conference. However, the magistrate judge offered to contact Buck a few days later to determine whether he still wished to waive his right to counsel. Two days later, Buck indicated he intended to plead guilty, but even if the case proceeded to trial, he would continue to be represented by Hunt.
On May 12, 2010, Buck pleaded guilty to a one-count information charging him with knowingly recruiting, harboring, transporting, providing, and obtaining a named female victim and others for labor and services in violation of 18 U.S.C. §§ 1590 and 1594. At the hearing, the district court asked Buck a series of questions confirming his desire to waive certain rights and plead guilty. For instance, Buck acknowledged he understood he was waiving his right to be charged by indictment in the course of pleading to the information. Buck also indicated he was satisfied with Hunt's representation and stated, "[s]he's done everything to the best of her ability that I can tell you." On at least two more instances, Buck indicated he had no complaints and was fully satisfied with Hunt's representation. Turning to the plea agreement, Buck stated he had received no promises other than those in the agreement causing him to plead, and no one had attempted to force him to plead guilty. Buck also confirmed he understood he would be unable to withdraw his guilty plea if he were sentenced to a term of imprisonment of fifteen years or less, as stated in the plea agreement. After the extensive plea colloquy, the district court accepted Buck's guilty plea as being made knowingly and voluntarily.
On October 21, 2010, Buck filed a pro se motion to withdraw his guilty plea. Buck alleged Hunt had "worked in tandem" with the government attorney to threaten and force him to plead guilty. In an accompanying affidavit, Buck alleged the government told him he should plead guilty or he would be given life imprisonment because the trial judge "does what the prosecutor wants." Buck accused Hunt of telling him to take the government's plea deal because there was no way he could win. Buck also stated Hunt indicated he would not receive more than a five-year sentence, despite the agreed-upon cap of fifteen years. According to Buck, Hunt stated the government attorney never goes to trial, and he would be offered such a good deal "that [he] would be a fool not to take it." Buck also alleged he was not provided with certain discovery at the time he entered his plea, and certain matters he requested to be investigated had not been pursued. In light of the above, Buck desired to withdraw his guilty plea and be appointed new counsel.
On October 25, 2010, the magistrate judge conducted another hearing on Buck's request to proceed pro se. At the hearing, Buck professed his innocence and discussed the conflict he was presented at the time of his plea. The government denied Buck's allegations and described the context of the plea meeting between it and Buck. Hunt also described the meetings, noting the government had told Buck he would not win at trial, and the government had stated Buck would get a sentence of life imprisonment if he went to trial. However, Hunt denied Buck's allegations concerning the fairness of the trial judge. Hunt also indicated she told Buck she did not think he would get a life sentence, but that he would get a substantially higher sentence than fifteen years if he did not take the plea deal. Ultimately, Hunt indicated Buck wanted to go along with the final deal. In sealed proceedings near the end of the hearing, Buck indicated he wanted to represent himself because his counsel had refused to file a motion to withdraw his guilty plea for lack of a good faith basis. After taking the matter under advisement, the magistrate judge deferred further proceedings until November 2, 2010. At that time, the magistrate judge again advised Buck of the disadvantages of self-representation, but ultimately granted his request to represent himself after a thorough colloquy, with Hunt continuing on as stand-by counsel.
A few weeks later, the district court denied Buck's motion to withdraw his plea after hearing extensive testimony on each of his allegations. The court found Buck was never told he would get a life sentence if he did not plead guilty, or that he could not have a fair trial. The court further found Hunt adequately counseled him in relation to the plea deal, and none of her remarks forced Buck to plead guilty. The court also concluded Buck was provided with the discovery he complained of not receiving, and any information he claimed was not specifically investigated "was not worth investigating." In sum, the court stated, "I find that Ms. Hunt was not biased towards you, and that she was not prejudiced towards you, that she in fact did capably and adequately represent you to the point where you elected to proceed on your own behalf." Referring to Buck's representations at the plea hearing of his desire and willingness to enter a plea, the court denied Buck's motion to withdraw his plea.
The court proceeded to the sentencing phase of the hearing, during which Hunt returned to represent Buck. A key provision of the plea agreement discussed by the parties was whether Buck's sentence would be reduced by a sufficient amount to give him credit for the time he already served in state custody. In compliance with its plea obligation, the government recommended Buck receive a concurrent sentence to the sentence he was serving at the time, with credit given for time-served in state custody. However, the government acknowledged this provision of the plea agreement was not binding on the court. In the end, the court sentenced Buck to fifteen years of imprisonment. Despite the recommendation from both parties to run the sentence concurrently, the court stated, "I reject the recommendation that the sentence run consecutively to the defendant's imprisonment under previous state or federal sentence."
On December 14, 2010, a separate hearing was held on the issue of restitution. Buck again requested the appointment of new counsel, and indicated he had looked into the possibility of filing a suit against Hunt. After the court informed Buck he could be represented by Hunt or proceed pro se, Buck chose the latter. The court again advised Buck of the disadvantages of self-representation, noting:
I can tell you that it's been my observation that Ms. Hunt has done an admiral [sic] job of representing you in spite of the difficulties that you have presented in the case. She, in spite of all of that, has maintained a professional demeanor, and I have seen no evidence of anything other than the utmost ...