U.S. v. Trussel, s. 91-1220

• Decision Date: 14 April 1992
• Docket Number: Nos. 91-1220,91-1318,s. 91-1220
• Citation: 961 F.2d 685
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arnita TRUSSEL and James Barker, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 685

961 F.2d 685

UNITED STATES of America, Plaintiff-Appellee, v. Arnita TRUSSEL and James Barker, Defendants-Appellants.

Nos. 91-1220, 91-1318.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 5, 1991.

Decided April 14, 1992.

Stephen A. Ingraham, Asst. U.S. Atty., Milwaukee, Wis. (argued), for plaintiff-appellee.

William S. Mautner (argued), Atinsky, Kahn, Sicula & Teper, Milwaukee, Wis., for defendant-appellant Arnita Trussel.

Frank T. Scott, Racine, Wis., Jerry H. Gonzalez, Anthony Deutch (argued), Gonzalez & Associates, Milwaukee, Wis., for defendant-appellant James Barker.

Before CUMMINGS and MANION, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

MANION, Circuit Judge.

James Barker and Arnita Trussel each pleaded guilty to one count of conspiring to possess, with intent to distribute, cocaine and marijuana. The indictments and convictions arose from a series of drug transactions between Barker and a confidential informant, James Patterson. On December 15, 1990, after some negotiations, Barker agreed to sell Patterson an ounce of cocaine. That day, co-conspirators Carmen White and Shannon Jackson delivered the cocaine to Patterson at a Racine, Wisconsin motel room. On April 20, 1990, Barker sold three more ounces of cocaine to Patterson. This sale took place at Trussel's home with Trussel's approval.

On May 12, 1990, Barker arranged for Patterson to supply Barker approximately 40 pounds of marijuana in exchange for 20 ounces of cocaine and $18,000. On May 18, Barker met Patterson at another Racine motel. After Patterson showed Barker the marijuana, Barker paid Patterson $3,300 cash and $15,000 in gold jewelry. Barker was arrested immediately after this transaction.

Later that day, police searched Trussel's home pursuant to a warrant. The police found seven pounds of marijuana and one-half ounce of cocaine inside a briefcase belonging to Barker. Trussel had been allowing Barker to use her home to store the marijuana and cocaine. In a taped conversation on May 16, Trussel had told Patterson that she had "some weed" for sale. That was not Trussel's only connection to Barker's drug business. On four or five occasions from December 1989 to May 1990, Barker left packages of cocaine worth $20 to $25 with Trussel, with instructions to sell those packages to people who would come to her residence to pick them up. Barker paid money to Trussel for her services, for household expenses and support of their young daughter.

The district court sentenced Barker to 222 months imprisonment. The court sentenced Trussel to 18 months imprisonment. Barker appeals both his conviction and sentence; Trussel appeals her sentence.

I. Barker

A. Conviction

Barker first argues that the district court erred by denying his motion to withdraw his guilty plea without holding an evidentiary hearing. According to Barker, at the time of his guilty plea he was confused about a possible entrapment defense, confusion his lawyers were unable to dispel, he says, because of their ineffective representation. This resulted, says Barker, in a guilty plea that was not knowing or voluntary because it was entered in haste and confusion.

The circumstances surrounding Barker's guilty plea are as follows. At Barker's arraignment in May 1990, the district court appointed a lawyer for him. Several weeks later, the court allowed Barker to substitute retained counsel for his appointed lawyer. One week after that, Barker and his retained counsel signed a guilty plea agreement with the government, which was filed shortly afterward.

On October 5, the district court held a hearing concerning Barker's plea. At that change of plea hearing, Barker asked the court to appoint a new lawyer for him to discuss questions he had about a possible entrapment defense. Barker specifically asked the judge if entrapment was against the law. Barker was not satisfied with his retained counsel's answers to his questions and was not ready to plead guilty "until he [had] more satisfactory response to his ... questions." The trial judge refused to appoint a new lawyer for Barker, but he did allow him to confer with his previously-appointed attorney. The judge adjourned the hearing for four days to allow Barker to consult with his lawyers.

On October 9, Barker's change of plea hearing reconvened. After placing Barker under oath and explaining to Barker that any false statements he might make at the hearing could result in perjury charges against him, the judge conducted a lengthy and thorough hearing pursuant to Fed.R.Crim.P. 11. At that hearing, Barker unequivocally stated several times that he wished to plead guilty. Barker's responses to the judge's questions established that he understood the plea agreement, that he understood the rights he was waiving by pleading guilty, that he was freely and voluntarily pleading guilty, and that he understood both the positive and negative consequences of his plea, including the likelihood that he would be sentenced as a career offender under U.S.S.G. § 4B1.1 because of his two prior felony drug convictions. Most important for our purposes, Barker, in response to the judge's questioning, indicated that he was "fully satisfied" with his lawyers and their advice to him. Moreover, when asked by the judge if there was anything his lawyers had not done for him that he had asked them to do, Barker responded, "No." The judge specifically found that "those matters that were of concern to" Barker (that is, a possible entrapment defense) had been addressed. Barker did not respond to this finding. After the judge concluded the Rule 11 inquiry and made his findings, Barker pleaded guilty. He also requested that his retained counsel continue to represent him for sentencing. Although he asked questions about other matters, Barker never mentioned anything about entrapment at the change of plea hearing.

Barker subsequently developed misgivings. In a letter to the district court dated December 15, 1990, Barker stated that he wanted to withdraw his guilty plea. Barker's letter stated that he was not guilty because he had been entrapped and that the government possessed a tape that would prove he was entrapped. According to Barker, his lawyers had not bothered to obtain this tape and, in fact, had conspired with the government to obtain his guilty plea. Barker asked the court to dismiss his retained counsel and to appoint a new lawyer to represent him.

On December 27, the district court, without taking evidence, denied Barker's requests to withdraw his guilty plea and to have a new lawyer appointed. The court also denied the motion of Barker's retained lawyer to withdraw from the case. After recounting, among other things, the case's procedural history, Barker's extensive criminal history, and Barker's unequivocal guilty plea and endorsement of his lawyers' performance on October 9, the judge found Barker's motions to be "prevarication" and an attempt to "manipulate" and "whipsaw the court."

Barker contends that the district court should not have denied his request to withdraw his guilty plea without holding an evidentiary hearing. Federal Rule of Criminal Procedure 32(d) provides that a district court "may permit" a defendant to withdraw his guilty plea before sentencing "upon a showing of any fair and just reason." Although we have stated that evidentiary hearings on motions to withdraw pleas before sentencing "should be freely granted," United States v. Fountain, 777 F.2d 351, 358 n. 3 (7th Cir.1985), an evidentiary hearing is not a matter of right. Id. at 358. A court must grant an evidentiary hearing only when the defendant's motion presents a "fair and just" reason for withdrawing his plea. United States v. Suter, 755 F.2d 523, 525 (7th Cir.1985). No hearing is necessary, where, for example, "the allegations in the motion to withdraw the plea are mere conclusions or are inherently unreliable." Fountain, 777 F.2d at 358; see also United States v. Thompson, 906 F.2d 1292, 1299 (8th Cir.1990).

Whether or not a defendant has proffered a "fair and just" reason for withdrawing his plea depends on the circumstances of the particular case. For example, claims of involuntariness or confusion that in the abstract seem like sufficient reasons to allow a defendant to withdraw his plea, or at least look into the matter further, may be insufficient in the context of a record containing substantial indications of voluntariness and lack of confusion. One especially important consideration is the defendant's answers to the questions posed at his Rule 11 hearing. We accord the record created by a Rule 11 inquiry a "presumption of verity." United States v. Ellison, 835 F.2d 687, 693 (7th Cir.1987). " '[R]ational conduct requires that voluntary responses made by a defendant [when entering a guilty plea] ... be binding.' " United States v. McFarland, 839 F.2d 1239, 1242 (7th Cir.1989) (quoting Ellison, 835 F.2d at 693). A defendant who presents a reason for withdrawing his plea that contradicts the answers he gave at a Rule 11 hearing faces an uphill battle in persuading the judge that his purported reason for withdrawing his plea is "fair and just." Cf. United States v. Stitzer, 785 F.2d 1506, 1514 & n. 4 (11th Cir.1986) (no evidentiary hearing required on motion to withdraw plea in light of extensive Rule 11 inquiries court made before accepting plea). Since the trial judge, who is most familiar with the record and had the actual opportunity to observe the defendant during the Rule 11 hearing, is in the best position to determine whether a proffered reason is, in context, "fair and just," we review the decision not to hold an evidentiary hearing deferentially. See Suter, 755 F.2d at 525-26 (applying clearly erroneous standard of review).

Barker contends that he was confused about a possible entrapment defense and that he did not receive sufficient advice from counsel to dispel his confusion. The district court did not clearly err...