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Date: 10-22-2021
Case Style:
United States of America v. VINCENT J. SEVICK, also known as Sealed Defendant 2,
also know as Ron Allen, also known as Vincent Lee.
Case Number: 00-10005
Judge:
Court: UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Plaintiff's Attorney:
Defendant's Attorney:
Description:
New Orleans, LA - Criminal defense lawyer represented defendant with appealing his conviction and sentence resulting from his guilty plea to one count of conspiracy to possess with intent to distribute and distribution of marijuana charge.
On June 7, 1995, the United States of America (“the
Government”) through the United States Attorney for the Northern
District of Texas filed a three-count indictment in the District
Court for the Northern District of Texas, Dallas Division, charging
Sevick and five others with various crimes. The indictment charged
Sevick with one count of conspiracy to distribute and to possess
with intent to distribute a controlled substance in violation of 21
U.S.C. §§ 846 and 841(a)(1), and two counts of possession with the
intent to distribute a controlled substance in violation of §
841(a)(1) and 18 U.S.C. § 2. On July 10, 1995, Sevick was arrested
in Florida on an arrest warrant issued by the Dallas district
court, and pursuant to FED. R. CRIM. P. 40(a), was taken to that
court to appear before a magistrate judge.
On August 11, 1995, while Sevick was being held in Dallas, the
United States Attorney for the Middle District of Florida filed an
indictment in the District Court for the Middle District of
Florida, Tampa Division, charging Sevick with conspiracy to
distribute and possess with intent to distribute a controlled
substance in violation of § 846.
On January 26, 1996, Sevick, his trial counsel, and the
Government attorneys from Dallas and Tampa agreed pursuant to FED.
R. CRIM. P. 20(a) to transfer the Dallas case to Tampa for plea and
sentence. Under the agreement, the Government was to file a
No. 00-10005
3
superseding information in the Dallas district court to which
Sevick could plead guilty and be sentenced before the Tampa
district court. The Rule 20(a) agreement was executed and filed on
March 29, 1996, in the Dallas district court. Pursuant to Rule
20(a), the clerk of the court for the Dallas district court
transmitted the papers of the Dallas action to the clerk of the
court for the Tampa district court. The Government also
transferred Sevick to Tampa for the plea and sentence.
However, on May 17, 1996, a Tampa magistrate judge refused to
accept the transfer from the Dallas district court per the Rule
20(a) agreement. The magistrate judge refused the transfer because
there was no superseding information pending in the Dallas district
court to which Sevick could plead guilty. Despite Sevick’s desire
to waive venue in the Dallas district court and plead guilty to a
superseding information in the Tampa district court, the magistrate
judge concluded that because the superseding information was not
filed, he was “unwilling to accept” the transfer, and returned the
action back to the Dallas district court “as the Rule 20 transfer
was improperly executed.”
Thereafter, the Dallas district court issued a writ of habeas
corpus to bring Sevick back to Dallas for further proceedings on
the Government’s indictment. On August 9, 1996, Sevick pleaded
guilty to the conspiracy count. The Dallas district court
sentenced Sevick to 210 months imprisonment.
Sevick did not appeal the conviction and sentence. Instead,
No. 00-10005
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he filed a pro se motion under 28 U.S.C. § 2255 attacking his
conviction and sentence in the Dallas district court. Sevick
alleged, inter alia, an ineffective assistance of counsel claim for
failure to file an appeal. On September 17, 1998, Sevick’s present
counsel appeared on his behalf. On November 29, 1999, after an
evidentiary hearing, a magistrate judge recommended to the district
court that Sevick be granted an out-of-time appeal of his
conviction and sentence. The district court adopted the
magistrate’s recommendation on December 20, 1999, and Sevick filed
his notice of appeal on December 30, 1999.
II. ANALYSIS
A.
Sevick initially argues that the Dallas district court lacked
jurisdiction to accept his guilty plea and sentence him. Sevick
specifically argues that the Rule 20(a) agreement divested the
Dallas district court of jurisdiction and vested it in the Tampa
district court. Sevick adds that the Tampa magistrate judge
erroneously rejected the transfer and returned his case to the
Dallas district court because a defendant under Rule 20(a) may
initiate transfer before the charging document is “generated,” and
because the only condition permitting a re-transfer to the
transferor court is a withdrawal of the defendant’s guilty plea in
the transferee court. Sevick contends that because the Tampa
magistrate judge lacked authority to return the action, the Tampa
No. 00-10005
5
district court still retains jurisdiction, and the Dallas district
court was without authority to accept his plea and impose his
sentence. Sevick requests this court to vacate his conviction and
sentence and remand this action to the Tampa district court.
Reviewing this legal question de novo, United States v. Cantu,
__ F.3d __, 2000 WL 1481157 at *2 (5th Cir. 2000), we cannot accept
Sevick’s argument. First, it is unclear whether Sevick and the
Government properly executed a Rule 20(a) agreement. Rule 20(a)
provides:
(a) Indictment or Information Pending. A defendant
arrested, held, or present in a district other than that
in which an indictment or information is pending against
that defendant may state in writing a wish to plead
guilty or nolo contendere, to waive trial in the district
in which the indictment or information is pending, and to
consent to disposition of the case in the district in
which that defendant was arrested, held, or present,
subject to the approval of the United States attorney for
each district. Upon receipt of the defendant’s statement
and of the written approval of the United States
attorneys, the clerk of the court to which the indictment
or information is pending shall transmit the papers in
the proceeding or certified copies thereof to the clerk
of the court for the district in which the defendant is
arrested, held, or present, and the prosecution shall
continue in that district.
(emphasis added). Sevick’s Rule 20(a) agreement stated:
I, Vincent J. Sevick, defendant, have been informed that
a Superseding Information (Indictment, information,
complaint) is pending against me in the above designated
cause. I wish to plead guilty (guilty, nolo contendere)
to the offense charged, to consent to the disposition of
the case in the Middle District of Florida in which I
__________ (am under arrest, am held) and to waive trial
in the above captioned District.
No. 00-10005
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This agreement did not comply with the rule because when the
agreement was executed, the superseding information was not
pending, and Sevick was not “held” or “present” in the Middle
District of Florida, as signified by the blank space in the
agreement. Also, Sevick was “held” or “present” in the Northern
District of Texas, which could not have been a “district other than
that in which an indictment or information is pending against” him
because the three-count indictment was already pending. Sevick’s
agreement was, to quote the Dallas magistrate judge, “in direct
conflict with the provisions of Rule 20(a) and the purposes of the
rule.” This court will not distort the plain language of Rule
20(a) to permit a defendant to transfer himself out of a district
in which an indictment or information is pending to another
district.
More importantly, even if the Rule 20(a) agreement was
properly executed, the transfer did not divest the Dallas district
court of jurisdiction so as to preclude that court from accepting
Sevick’s guilty plea and sentencing him after the Tampa district
court rejected and returned the case. “The district courts of the
United States shall have original jurisdiction . . . of all
offenses against the laws of the United States.” 18 U.S.C. § 3231
(1994); United States v. Choate, 276 F.2d 724, 728 (5th Cir. 1960).
Original or subject-matter jurisdiction “refers to the types of
cases a court is authorized to hear . . . [and] [e]very federal
No. 00-10005
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district court has jurisdiction over the subject matter of” federal
criminal prosecutions. United States v. Roberts, 618 F.2d 530, 537
(9th Cir. 1980) (construing FED. R. CRIM. P. 21) (emphasis added);
§ 3231.
Sevick mischaracterizes Rule 20(a) by arguing that it is a
“jurisdiction-shifting” rule allowing a defendant to transfer his
case to a “jurisdiction” other than that in which the prosecution
is initiated. This is incorrect because Rule 20(a) is a “venuewaiving” provision. Jackson v. United States, 489 F.2d 695, 696
(1st Cir. 1974); FED. R. CRIM. P. ch. V (entitled “V. Venue”). The
fact that a defendant can transfer his case to another district by
waiving his right to trial in the district in which the offense was
committed, see FED. R. CRIM. P. 18, and by obtaining the consent of
the Government confirms that Rule 20(a) affects venue, not
jurisdiction, because “[i]t is elementary that jurisdiction cannot
be transferred by waiver or consent.” Choate, 274 F.2d at 727-28.
While some courts have stated that Rule 20(a) is a “jurisdictional”
rule that divests the transferor court of jurisdiction once a
transfer is effected, e.g., United States v. Kahn, 822 F.2d 451,
455 (5th Cir. 1987); Roberts, 618 F.3d at 542 (Wyatt, J.,
concurring) (stating that “where an indictment is transferred under
Rule 20, the transferor court loses jurisdiction and the transferee
court acquires exclusive jurisdiction of the indictment proceeding”
and citing cases); Perry v. United States, 432 F. Supp. 645, 648
No. 00-10005
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(M.D. Fla. 1977). Such cases can be explained by the Ninth
Circuit’s apt statement in Roberts that “[o]ccasionally courts
speak in terms of jurisdiction when they mean venue. . . . This
imprecision unfortunately causes confusion, but it does not convert
venue problems into problems involving subject matter
jurisdiction.” 618 F.3d at 537 (majority).
Because Rule 20(a) is a venue provision, to the extent that
venue in the Dallas district court was improper, Sevick waived any
objection to venue by not raising it in the district court. United
States v. Solomon, 29 F.3d 961, 964 (5th Cir. 1994).
B.
Sevick next argues that his guilty plea was not voluntarily
and knowingly entered because neither the district court nor his
trial attorney informed him that the district court lacked
jurisdiction. In light of our conclusion that the district court
had jurisdiction, Sevick’s argument is without merit. Moreover,
Sevick’s argument that his guilty plea was involuntary because his
trial counsel failed to advise him that the district court lacked
jurisdiction is an ineffective assistance of counsel claim that is
not properly before us. This claim is not reviewable on direct
appeal because it has not been addressed by the district court, and
the record has not been fully developed. United States v. Navejar,
963 F.2d 732, 735 (5th Cir. 1992).
C.
No. 00-10005
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Sevick’s final argument raises further ineffective assistance
of counsel claims. Sevick asserts that his trial counsel was
ineffective for not raising a double jeopardy defense in light of
the alleged overlap between the Dallas and Florida indictments, not
objecting to the district court’s lack of jurisdiction, and not
filing objections to the pre-sentence report (“PSR”).
As noted above, ineffective assistance of counsel claims are
generally not reviewed on direct appeal because the claims have not
been first presented to the district court, and an adequate record
has not been developed with respect to such claims. Navejar, 963
F.2d at 735. With respect to Sevick’s claim that his trial counsel
failed to raise the double jeopardy defense, Sevick does not argue
before us that his conviction and sentence constituted double
jeopardy, but that had this case been transferred to the Tampa
district court, he would have had an opportunity to raise the
double jeopardy argument. However, this argument is not properly
before us because it was not raised in the district court, and it
hinges on a legal conclusion, that “jurisdiction” exclusively
vested in the Tampa district court, which we have already rejected.
We also reject Sevick’s claim that his trial counsel failed to
raise the jurisdictional argument for the same reason. Finally,
while Sevick stated in his § 2255 motion that his trial counsel
should have objected to the PSR’s determination of the quantity of
drugs and of Sevick as an organizer/leader of the conspiracy, the
No. 00-10005
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district court only addressed such failure to object in determining
whether an out-of-time appeal was warranted, and not whether such
failure was ineffective. Therefore, we do not consider these
grounds on appeal.
Outcome: AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: