U.S. v. Baez

• Decision Date: 27 June 1996
• Docket Number: No. 93-3868,93-3868
• Citation: 87 F.3d 805
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Maximiliano BAEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 805

87 F.3d 805

UNITED STATES of America, Plaintiff-Appellee, v. Maximiliano BAEZ, Defendant-Appellant.

No. 93-3868.

United States Court of Appeals, Sixth Circuit.

Argued April 11, 1995.

Decided June 27, 1996.

Sharon L. Long (argued and briefed), Office of the U.S. Attorney, Cleveland, OH, for U.S.

Myron P. Watson (argued and briefed), Willis, Blackwell & Rogers, Cleveland, OH, for Maximiliano Baez.

Maximiliano Baez, Bradford, PA, pro se.

Before: MARTIN and RYAN, Circuit Judges; GILMORE, District Judge. ^*

GILMORE, District Judge.

Maximiliano Baez appeals the judgment entered on his guilty plea to Count One of an indictment for conspiring to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; and to Count Eight of the indictment charging money laundering, in violation of 18 U.S.C. § 1956(a). Baez argues that (1) the district court abused its discretion in denying his request to withdraw his guilty plea and in refusing to conduct a hearing on the motion to withdraw; and (2) the district court abused its discretion in failing to establish a factual basis for the plea before entering judgment, as required by Fed.R.Crim.P. 11(f).

For the reasons discussed below, we conclude that these assignments of error are without merit. Accordingly, we AFFIRM the judgment against defendant Baez for conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846, and for money laundering in violation of 18 U.S.C. § 1956(a).

I.

On March 17, 1993, a grand jury indicted Baez, along with eighteen other individuals. Baez was indicted in Count One for conspiracy to distribute and possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846; and in Counts Eight and Nine for money laundering, in violation of 18 U.S.C. § 1956(a). ¹ The case was assigned to Judge Paul R. Matia of the United States District Court for the Northern District of Ohio. Baez was arraigned on April 1, 1993, and entered a plea of not guilty.

On May 28, 1993, Baez executed a written plea of guilty to Count One and Count Eight. The Rule 11 Plea Agreement signed by Baez contained a section setting forth the factual basis for his plea, which reads as follows:

15. The defendant agrees that if this matter were to proceed to trial, the United States could prove the following facts beyond a reasonable doubt, and that these facts accurately represent his readily provable offense conduct and specific offense characteristics.

Count 1:

As early as 1990, and continuing up to and through January 8, 1993, Maximiliano Baez unlawfully, willfully, intentionally, and knowingly agreed and did participate with Terry Bender, Antonia Toribio, and others with the distribution and possession with intent to distribute cocaine in the greater Cleveland, Ohio area.

Specifically, it was the defendant's role in the conspiracy to arrange with Terry Bender the deliver [sic] of more than 50 kilograms of cocaine to Cleveland, Ohio, and for the pick-up of money from Terry Bender in payment for cocaine previously delivered.

It was in this regards that on [sic] the defendant on January 7, 1993, sent Antonia Toribio to Cleveland, Ohio, for the purpose of picking up money from Bender for approximately 20 kilograms of cocaine previously delivered to Bender.

Count 8:

On or about January 8, 1993, the defendant sent another from New Jersey to Cleveland, Ohio, for the purpose of picking up or delivery of approximately $349,417.00, which represented proceeds from drug trafficking activities, and to deliver said monies to a place outside the State of Ohio.

The court-appointed interpreter read the entire plea agreement to Baez before he signed it. Then Judge Matia made a thorough inquiry as to whether Baez understood the charges against him and his right to trial, and Baez assured the court that his plea was voluntary and that no threats or promises had been made other than what appeared in the plea agreement.

In establishing the factual basis for the plea, the court did not elicit narrative responses from the defendant regarding his conduct. Instead, the following exchange took place:

THE COURT: Now, if you would turn to page 6 of the plea agreement, paragraph 15, the heading is Factual Basis for the Guilty Plea. There are a number of facts set out in paragraph 15 about the details of what you did in this case. Have you read those facts?

DEFENDANT: Yes.

THE COURT: And do you agree with the statements as to your involvement in this offense that appear in that paragraph?

DEFENDANT: Yes.

The court then accepted the plea and adjudged Baez guilty on Counts One and Eight.

When Baez appeared for sentencing on August 4, 1993, more than two months after the plea hearing, he orally moved to withdraw his plea, asserting that his attorney had pressured him into signing the Rule 11 agreement. Although no formal hearing was conducted on the motion, the court gave Appellant the opportunity to explain his motives for seeking to withdraw his plea. After hearing Baez's argument, Judge Matia denied the motion, making the following statement:

This Court made a thorough inquiry at the time of the plea as to whether the defendant understood what was going on, and the Court specifically asked him to read the factual basis for the plea agreement, and he agreed with the Court that was, in fact, what his conduct was.

I inquired whether he understood his rights, and he indicated that he did and that no threats or promises had been made other than what appeared in the plea agreement.

The Court finds that there is no basis for withdrawing the plea agreement on the day of sentencing, and therefore the Court will overrule the request to withdraw the plea.

Judge Matia then sentenced Appellant to 320 months in prison, five years of supervised release, a fine of $25,000, and a $100 special assessment.

II.

A.

The first issue on appeal is whether the district court erred in denying Baez's motion to withdraw his guilty plea. We review a district court's decision to deny a motion to withdraw a guilty plea for an abuse of discretion. United States v. Alexander, 948 F.2d 1002, 1003 (6th Cir.1991), cert. denied, 502 U.S. 1117, 112 S.Ct. 1231, 117 L.Ed.2d 465 (1992); United States v. Head, 927 F.2d 1361, 1375 (6th Cir.), cert. denied, 502 U.S. 846, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991). Rule 32(d) of the Federal Rules of Criminal Procedure provides that a court may permit a defendant to withdraw a guilty plea prior to sentencing "upon a showing by the defendant of any fair and just reason." The defendant has the burden of proving that withdrawal of the plea is justified. United States v. Stephens, 906 F.2d 251, 252 (6th Cir.1990).

In deciding whether to permit a defendant to withdraw a plea, the district court may consider a number of factors including: (1) the delay in filing the motion to withdraw the plea; (2) the reasons for any delay; (3) whether the defendant has consistently maintained his innocence; and (4) the circumstances underlying the plea and the background of the defendant. Alexander, 948 F.2d at 1004. Applying these factors to Baez's case, we conclude that the district court did not abuse its discretion in denying Baez's motion to withdraw his guilty plea.

Although Judge Matia did not specifically address each of the factors set forth above in ruling on defendant's motion, it is clear that the factors support his denial of the motion. The strongest factors supporting the district court's ruling are the sixty-seven day delay between the motion and the plea, and Baez's failure to justify this extensive delay. In Alexander, this court commented on the significance of an extended delay between a plea and a motion to withdraw, stating:

Courts have noted that the aim of the rule is to allow a hastily entered plea made with unsure heart and confused mind to be undone, not to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice in pleading guilty.

Alexander, 948 F.2d at 1004. This circuit has previously upheld denials of motions to withdraw guilty pleas on the basis of delays less than the sixty-seven days here. See e.g., United States v. Goldberg, 862 F.2d 101, 103 (6th Cir.1988)(fifty-five day delay recognized as lengthy and supported denial of motion to withdraw); United States v. Spencer, 836 F.2d 236, 239 (6th Cir.1987)(five week delay supports denial of motion to withdraw).

Also relevant is the fact that Baez failed to explain this long delay. In United States v. Triplett, 828 F.2d 1195 (6th Cir.1987), the court emphasized the importance of the justification for a delay in moving to withdraw a plea, explaining:

The shorter the delay, the more likely a motion to withdraw will be granted, and a defendant's reasons for filing such a motion will be more closely scrutinized when he has delayed his motion for a substantial length of time.

Id. at 1197. Defendant Baez did not even mention his change of heart regarding his plea until the day of sentencing, August 4, 1993, when he informed his attorney of his intentions. Under such circumstances, Baez's failure to excuse his delay works soundly against him. We conclude that this unjustified, last-minute change of heart is insufficient to support a motion to withdraw.

Other recognized factors also work against Baez. Some courts have held that the absence of a defendant's vigorous and repeated protestations of innocence support the denial of a motion to withdraw a guilty plea. See United States v. Saft, 558 F.2d 1073, 1082 (2nd Cir.1977). Here, Baez admitted his guilt at the plea hearing and did not reassert his innocence until the day of sentencing. There is also no evidence here of any unusual circumstances underlying the plea, such as defendant's naivete with respect to the criminal justice system. See Alexander, 948 F.2d at 1004.

In denying Baez's motion, ...