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United States v. Kelly

December 05, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DEMILOUS E. KELLY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 01 CR 316-2--Suzanne B. Conlon, Judge.

Before Bauer, Easterbrook, and Rovner, Circuit Judges.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED OCTOBER 2, 2002

Demilous Kelly challenges the district court's refusal to accept his midtrial guilty pleas on two counts of distribution of crack. See 21 U.S.C. § 841(a). As a result of the refusal, Kelly's case went to a jury, which ultimately found him guilty on the distribution counts as well as one count of conspiring to distribute crack. See 21 U.S.C. § 846. We affirm Kelly's convictions because the rejection of the guilty pleas did not amount to an abuse of discretion.

After being charged with one count of conspiring to distribute crack and three counts of distributing crack, Kelly on four occasions appeared before the district court to plead guilty to the conspiracy count in accordance with a plea agreement reached with the government. Each attempt failed because Kelly refused to admit guilt or expressed doubts about pleading guilty because he disagreed with the government's conspiracy allegations. At the end of the first day of trial, the judge suggested that guilty pleas to the distribution counts might be less "problematic" because Kelly had admitted to that conduct all along. Accordingly, the parties renegotiated the plea agreement, and the district court dismissed one distribution count on the government's motion.

It is unclear how much time Kelly spent with counsel after the renegotiation of the plea agreement. Kelly was returned to jail while his counsel discussed the new agreement with the government, and he was brought to court early the following morning at the judge's request. That morning Kelly agreed to plead guilty to the distribution counts, but advised that he had not been given enough time to speak with his attorney:

THE COURT: [T]here certainly is an evidentiary basis for a guilty plea on Counts 3 and 4, in my opinion.

But I want to make sure that that is agreeable to you, Mr. Kelly, with respect to Counts 3 and 4 that charge you with actually delivering cocaine to the undercover agent on two occasions that we saw yesterday in the videotape. Are you agreeable to pleading guilty to those counts?

DEFENDANT: Yes.

THE COURT: Let me go through them specifically with you. . . . Have you actually read those two counts?

DEFENDANT: No.

THE COURT: You have not? Mr. Greene [defense counsel], have you gone through the allegations in Counts 3 and 4 with Mr. Kelly?

MR. GREENE: I certainly have, Judge, numerous times, the whole indictment.

THE COURT: All right, we just need to focus on Counts In your professional judgment, Mr. Greene, does Mr. Kelly understand the allegations ...


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