U.S. v. Rhodes

Full title: UNITED STATES OF AMERICA, Plaintiff, v. DAVID THOMAS RHODES, Defendant

Court: United States District Court, D. Nevada, Reno Nevada

Date published: Nov 18, 2005

Nos. 3:84-CR-00039-ECR, 3:05-CV-00202-ECR-VPC (D. Nev. Nov. 18, 2005)

Opinion

Nos. 3:84-CR-00039-ECR, 3:05-CV-00202-ECR-VPC.

November 18, 2005

ORDER

EDWARD REED, District Judge

On September 15, 2005, Defendant filed a Motion (#315) to Alter or Amend Minute Order (#313), filed on September 1, 2005.

In the Motion (#315), Defendant seeks a waiver of the requirement which we imposed for payment of fees for his appeal. The ground for seeking such waiver is that Defendant claims that his current petition is not simply a repetition of issues previously presented to this Court and the Court of Appeals, but is based upon a recent decision of the Court of Appeals, which holds that the concession of guilt by a defendant's attorney to the jury without his approval could constitute the equivalent of a plea of guilty not approved by the defendant. Defendant alleges that his attorney made such a concession before the jury at his trial without his consent. Defendant contends that this recent case represents new law and that he is therefore raising a new issue which he could not have previously raised.See U.S. v. Thomas, 417 F.3d 1053 (9th Cir. 2005).

An examination of the transcript of Defendant's trial does not indicate that his attorney conceded his guilt to the charges in the indictment; the arguments of the attorney were not the equivalent of a guilty plea not approved by Defendant.

The attorney argued that Defendant had agreed to travel to Reno for the purpose of obtaining and distributing cocaine; however, the attorney also argued that a conspiracy required a meeting of the minds, and here there was no meeting of the minds between the co-conspirators and Rhodes. The attorney further argued that the Defendant went to trial to tell the jury which parts of the criminal enterprise he was criminally liable for and which parts he was not responsible for. See Pages 484-488 of the Transcript of the Trial, January 24 to 25, 1985. We find these statements by the attorney, among others reflected in the transcript, did not constitute concession of guilt and, therefore, deny Defendant's Motion (#315).

IT IS, THEREFORE, HEREBY ORDERED that Defendant's Motion (#315) to Alter or Amend Minute Order (#313) is DENIED.