U.S. v. Benavides, 85-2652

• Decision Date: 20 June 1986
• Docket Number: No. 85-2652,85-2652
• Citation: 793 F.2d 612
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward M. BENAVIDES, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 612

793 F.2d 612

UNITED STATES of America, Plaintiff-Appellee, v. Edward M. BENAVIDES, Defendant-Appellant.

No. 85-2652

Summary Calendar.

United States Court of Appeals Fifth Circuit.

June 20, 1986.

Eduardo M. Benavides pro-se.

Dale Wilson, San Antonio, Tex. (Court appointed), for defendant-appellant.

Helen M. Eversberg, U.S. Atty., Michael R. Hardy, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

Appellant Benavides, convicted on his unconditional guilty plea of one count of presenting false information to the Department of Health and Human Services for the purpose of fraudulently obtaining a social security number card in violation of 42 U.S.C. Sec. 408(f), appeals, claiming that the district court erred in denying his pre-sentence motion to withdraw his guilty plea and in denying his motion to suppress evidence. These contentions are wholly unrelated. Finding no merit in either, we affirm.

Facts and Proceedings Below

The indictment in this case was returned in early October 1984 and charged Benavides in two counts with presenting false information, on each of two different occasions, to the Department of Health and Human Services for the purpose of fraudulently obtaining a social security number card in violation of 42 U.S.C. Sec. 408(f). On October 17, 1984, the Public Defender was appointed to represent Benavides. In early November 1984, Benavides' counsel filed several motions in the case, including a motion to suppress a social security card, apparently that procured by the false information submitted to the Department of Health and Human Services as alleged in at least one of the counts in the indictment, the card having been taken from Benavides' wallet in the course of his being lawfully booked at the Bexar County, Texas jail pursuant to a concededly proper arrest on a parole violator warrant. The district court denied the motion to suppress by order entered November 16, 1984, relying on United States v. Castro, 596 F.2d 674, 677 (5th Cir.), cert. denied, 444 U.S. 963, 100 S.Ct. 448, 62 L.Ed.2d 375 (1979).

Thereafter, several motions for continuance were made and granted, and there was plea bargaining between the prosecution and the defense.

On March 8, 1985, defense counsel wrote the court advising that a plea agreement had been reached under which defendant agreed to plead guilty to one count of the indictment, with the government agreeing to move at sentencing for dismissal of the other count and agreeing not to oppose defendant's anticipated request to the court that the court recommend to the Bureau of Prisons that any sentence of confinement be served in the Texas Department of Corrections where defendant was serving sentence pursuant to a state conviction, defendant acknowleding that if the court made such a recommendation it would not be binding on the Bureau of Prisons. Copies of the letter were sent to the Assistant United States Attorney and defendant.

On March 15, defendant, through counsel, moved for a continuance, alleging that defendant required "additional time in which to resolve a dispute with the United States Parole Commission before making a decision as to the proper plea to enter in this case." The motion also alleged that if defendant decided to plead not guilty, the Public Defender "would have a conflict which would prevent his trying the case," the conflict not being specified, and additional time would be needed for substitute counsel to be appointed and to prepare for a contested trial. It was indicated that defendant would make up his mind by April 19, and a continuance was sought to May 13. On March 18, the court granted the motion for continuance and set the case for trial for May 14. On April 19, the Public Defender, as Benavides' counsel, wrote the court, with copy to Benavides, that substitute counsel would be required, and that "Mr. Benavides informed me that he cannot make a decision concerning his plea of guilty until he receives the medical attention which he has requested." That same day, substitute counsel, not connected with the Public Defender's Office, was appointed to represent Benavides.

Sometime thereafter, Benavides and his new counsel apparently elected to plead guilty pursuant to the above-indicated plea bargain, and on May 13, 1985, Benavides and his counsel and the Assistant United States Attorney appeared before the district court for a lengthy Rule 11, Federal Rules of Criminal Procedure, hearing, the transcript of which is approximately thirty pages. At the conclusion of this hearing, Benavides' plea of guilty, pursuant to the mentioned plea agreement with the government, was accepted and Benavides was found guilty pursuant thereto. Thereafter, a sentencing hearing was set for August 5.

At the August 5 sentencing hearing, Benavides' counsel commenced by raising some concerns about the pre-sentence investigation report, particularly portions thereof that referred to previous arrests or convictions, the records of which apparently had been expunged by a state court order. The district judge explained that he had already examined the pre-sentence report and had decided not to give any consideration to those matters. Concern also was expressed by Benavides' counsel because the district court had apparently entered an order authorizing the probation office to procure the expunged records from the state district court.

Then, some fifteen pages into the transcript of the August 5 sentencing hearing, Benavides' counsel stated that Benavides wished to withdraw his plea of guilty "because of medical problems that he had at the time of the plea." The court then ascertained from the Assistant United States Attorney that she had no previous notice that Benavides would be requesting to withdraw his plea. Benavides' counsel then explained that during previous discussions which he and Benavides had had with the probation officer concerning the proposed pre-sentence report, which were later shown to have occurred on July 12, 1985, Benavides had indicated that he might want to withdraw his plea if a satisfactory solution were not reached to the question of whether or how the expunged previous arrests or convictions would be referred to in the pre-sentence report. Counsel related that he had then told Benavides to inform him, in writing, if he wanted to withdraw his plea so that counsel could make appropriate motions. Counsel did not hear from Benavides, "but this morning, he tells me that he is insistent upon withdrawing the plea. The basis for it is not the expungement of what we discussed. It is the fact that I was not aware of it at the time." The United States opposed the motion to withdraw. The court granted defendant leave to file written motion to withdraw, and directed that if such a motion were filed a hearing would be had.

On August 8, defendant, through his counsel, filed a motion to withdraw his guilty plea, alleging, as the sole ground therefor, that he had been taking medication, Elavil, during the approximately two weeks just prior to his plea of guilty and "he does not feel the plea of guilty on May 13, 1985, was in his best interest and because he was taking medication for his headaches, he would like to withdraw his plea of guilty and enter a plea of not-guilty." There was no allegation that defendant was innocent.

The government, on August 22, filed a motion in opposition to the motion to withdraw the guilty plea, pointing out, among other things, that defendant did not claim he was innocent and that the May 13 guilty plea hearing demonstrated that the plea was knowing and voluntary and that defendant was guilty. The government also asserted that its information was that defendant had been taking on some occasions since April 19, twenty-five milligrams a day of Elavil, which was one-third of the recommended dosage for outpatients, and one-sixth of the maximum outpatient dosage, according to the Physician's Desk Reference. The government admitted it would not be prejudiced.

An evidentiary hearing was held on the motion to withdraw on September 6. Benavides testified under oath that his taking Elavil and its apparent side effects on him were the only reason that he was seeking to withdraw his guilty plea. He at no time maintained his innocence. He testified that the Elavil gave him feelings of depression and intimidation, that he could not think rationally because of it, and that it made him irritated at things and paranoid. He stated that Elavil was prescribed for him on April 19 at twenty-five milligrams a day, and that he thereafter took the medication intermittently through May 12, but did not take it thereafter. He went back to the doctor on May 31, complaining of side effects, and was then switched to another medication which he took for about a week. He claimed he took the Elavil on May 10, 11, and 12, did not remember whether he took it on May 9, and did not take it on May 13 or thereafter. Testimony from the physican's assistant at the Bastrop F.C.I., where Benavides was incarcerated, indicated that a strict record and control of the dispensing of such medication was maintained there, and that the F.C.I. records, which were introduced in evidence, reflected that Benavides took the medication on the first through the fourth of May, did not take any on the fifth, sixth, or seventh, took it on the eighth, and thereafter did not take it again until 8:00 p.m. on May 13, in each case at twenty-five milligrams.

Benavides testified that he was completely rational and in possession of all his faculties at the September 6 hearing. The Assistant United States Attorney, who was present throughout the entire September 6 hearing, and the May 13 guilty plea hearing, testified that she conferred with Benavides and his counsel, off the record, during the...