U.S. v. Nash

• Citation: 29 F.3d 1195
• Decision Date: 21 July 1994
• Docket Number: Nos. 92-3985,s. 92-3985
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Louis NASH and Ken Nash, Defendants-Appellants. & 93-2231.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1195

29 F.3d 1195

UNITED STATES of America, Plaintiff-Appellee, v. Louis NASH and Ken Nash, Defendants-Appellants.

Nos. 92-3985 & 93-2231.

United States Court of Appeals, Seventh Circuit.

Argued March 30, 1994.

Decided July 21, 1994.

K. Tate Chambers, Asst. U.S. Atty. (argued), Peoria, IL, for plaintiff-appellee.

Robert Gaubas (argued), Peoria, IL, for Louis Nash.

Richard H. Parsons (argued), Peoria, IL, for Ken Nash.

Before POSNER, Chief Judge, MANION, Circuit Judge, and REYNOLDS, District Judge. ^*

MANION, Circuit Judge.

Louis Nash, and his son, Ken Nash, were involved in the marijuana business. Both pleaded guilty to conspiracy to possess marijuana with intent to distribute in violation of 21 U.S.C. Secs. 846 and 841(b)(1)(A). Louis was sentenced to 262 months imprisonment followed by three years supervised release. Ken was sentenced to 68 months imprisonment followed by four years supervised release. Both appeal and we affirm.

I. Background

During a good part of the 1980's, Louis and Ken Nash were involved in a multi-state marijuana distribution business based out of Treasure Island, Florida. The transactions underlying defendants' guilty pleas in this case began prior to 1986, when Louis met Randy Cremer, a marijuana dealer from Illinois. At that meeting Louis asked Cremer if he would distribute marijuana for him. Cremer agreed and later contacted Louis in Florida to arrange the purchase of marijuana. As a result of this contact, Cremer, and other persons in his circle, travelled to Florida on many occasions in order to buy carloads of marijuana for distribution to customers in eastern Iowa and western Illinois. During this period, both Louis and Cremer recruited drivers, including Rick Baker, to transport marijuana from the Nashes in Florida to Illinois and Iowa. Baker in turn recruited Roger Littlejohn. When Littlejohn was arrested transporting his second load of marijuana from the Nashes, Louis bonded him out of jail and paid for his attorney.

In January of 1987, the Nashes shifted part of their operation to Michigan. Among other locations, they worked outside of Ann Arbor from a dog kennel owned by Ken Nash. Sid Getter, also involved with the Nashes' operation, arranged for the delivery of approximately 5,000 pounds of marijuana to the kennel. Ken Nash and others began to distribute the marijuana from this location. Cremer and Baker, who continued to be customers of the Nashes, now travelled to Michigan to obtain their marijuana.

In the summer of 1987, a federal drug task force, code-named Operation Iron Eagle, began investigating Ken Nash and Cremer. Shortly thereafter, on November 11, 1987, Ken was arrested following a traffic stop. Officers discovered five pounds of marijuana, a handgun, and a stun gun in his car. Following a bench trial, Ken was convicted of possession of marijuana with intent to distribute and carrying a firearm during a drug trafficking offense. He was sentenced to six months on the possession charge and five years for the weapons violation. His conviction was affirmed in United States v. Nash, 876 F.2d 1359 (7th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990).

After Ken was arrested, his wife dumped the marijuana from their house into a nearby river. Cremer retrieved approximately 25 to 30 pounds of it, took it back to Galesburg, Illinois, and sold it. Louis and Sid Getter burned the rest of the marijuana supply stored at the kennel in Michigan, as much as 1,000 pounds.

On August 23, 1990, a federal grand jury sitting in the Central District of Illinois charged Ken Nash, Cremer, Baker, and several others with conspiracy to distribute marijuana. By December 19, 1990, all of the defendants except Ken and another defendant, Kevin Akers, had pleaded guilty. On December 19, 1990, the government filed a superseding indictment, again charging the two remaining defendants, Ken Nash and Kevin Akers, with conspiracy to distribute marijuana, and adding Louis Nash, charging him with conducting a continuing criminal enterprise and conspiring to distribute marijuana. Akers pleaded guilty on July 18, 1991. Ken pleaded guilty on September 11, 1992. Finally, Louis pleaded guilty on September 18, 1992 to the charge of conspiracy to distribute marijuana.

On November 10, 1992, Louis changed his mind and filed a motion to withdraw his plea of guilty. This motion was denied. Louis was sentenced to 262 months imprisonment followed by three years supervised release. Ken was sentenced to 68 months imprisonment (126 months less 58 months time served on his related criminal conviction) followed by four years supervised release.

Defendants present several issues on appeal: (1) whether the trial court abused its discretion in denying Louis' motion to withdraw his guilty plea, (2) whether the district court was clearly erroneous in calculating the total drug weight under the Sentencing Guidelines, and (3) whether the government violated defendants' due process rights under Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

II. Analysis

Louis Nash first appeals the district court's denial of his motion to withdraw his plea of guilty. Federal Rule of Criminal Procedure 32(d) authorizes a court to permit the withdrawal of a guilty plea in certain circumstances. The rule provides in pertinent part:

If a motion for withdrawal of a plea of guilty ... is made before sentence is imposed ... the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason.

Fed.R.Crim.P. 32(d). "A defendant does not have an absolute right to withdraw his guilty plea, and the decision to allow him to do so is within the sound discretion of the trial court." United States v. McFarland, 839 F.2d 1239, 1241 (7th Cir.), cert. denied, 486 U.S. 1014, 108 S.Ct. 1750, 100 L.Ed.2d 212 (1988). The defendant bears the burden of proving that a "fair and just" reason exists. United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir.1992). The district court's factual findings concerning whether the defendant has demonstrated such a fair and just reason will be given great weight and will not be reversed except for clear error. McFarland, 839 F.2d at 1241; United States v. Alvarez-Quiroga, 901 F.2d 1433, 1436 (7th Cir.), cert. denied, 498 U.S. 875, 111 S.Ct. 203, 112 L.Ed.2d 164 (1990).

In this case, Louis Nash offered three different "fair and just" reasons that, he alleges, were sufficient to permit the withdrawal of his plea. He contends (1) that his plea was not voluntarily made, (2) that it was error to allow a different judge (than the judge who actually took the plea) to hear his motion to withdraw, and (3) that the government breached the plea agreement in this case by failing to take full advantage of his decision to cooperate. He contends that the district court abused its discretion in concluding that these reasons were not "fair and just" under the Rule. We disagree.

First, the district court did not abuse its discretion in concluding that Louis' plea was voluntary. One "fair and just reason" for a plea withdrawal is that the plea was involuntary. Alvarez-Quiroga, 901 F.2d at 1436 (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). In order to demonstrate that his plea was involuntary in this case, Louis argued to the district court that he was under tremendous pressure at the time of his plea hearing and that this pressure caused him great confusion, rendering him unable to understand the plea process and the exact nature of his plea. This confusion and misunderstanding is alleged to have stemmed from the cumulative effect of several circumstances: his defense attorney was about to be sworn in as an Illinois circuit judge, he was unable to obtain documents for his defense that were destroyed by Hurricane Andrew, and he had not received adequate cooperation from the United States Marshals Service in serving defense witness subpoenas.

It is well settled in this circuit that " '[t]he only rational manner in which a judge may determine whether a plea is knowingly and voluntarily made, is to observe the defendant's demeanor and responses to the court's questions and to rely on the defendant's sworn answers.' " United States v. Seavoy, 995 F.2d 1414, 1421 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993) (quoting United States v. Ellison, 835 F.2d 687, 693 (7th Cir.1987)). " '[V]oluntary responses made by a defendant under oath before an examining judge [are] binding.' " Id. (quoting Ellison, 835 F.2d at 693). When a defendant challenges the voluntariness of such a proceeding, he " 'faces a heavy burden of persuasion.' " United States v. Caban, 962 F.2d 646, 649 (7th Cir.1992) (quoting Ellison, 835 F.2d at 693).

In this case, the record clearly demonstrates that Louis knew and understood each of the elements of his plea. The district judge engaged Louis in a colloquy pursuant to Fed.R.Crim.P. 11(c) and fully and carefully questioned him on each aspect of his plea. Louis, for his part, continually answered in the affirmative, stating, for example, "I understand" or "I understand everything." Louis also signed a written plea agreement which states in pertinent part:

I have read this entire Plea Agreement carefully and have discussed it fully with my attorney. I fully understand this Agreement, and I agree to it voluntarily and of my own free will ... I understand that by signing below I am stating I agree with everything stated in this paragraph, and I am accepting and entering into this Plea Agreement.

When asked whether he had read and reviewed the plea agreement with his attorney before signing it, and whether the plea accurately and completely set forth the agreement between himself and the government, Louis again replied in the affirmative. On several occasions, Louis appeared to...