U.S. v. Brown, 79-5037

• Decision Date: 11 March 1980
• Docket Number: No. 79-5037,79-5037
• Citation: 617 F.2d 54
• Parties: UNITED STATES of America, Appellee, v. Wesley B. BROWN, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 54

617 F.2d 54

UNITED STATES of America, Appellee, v. Wesley B. BROWN, Jr., Appellant.

No. 79-5037.

United States Court of Appeals Fourth Circuit.

Argued Nov. 9, 1979.

Decided March 11, 1980.

Stephen R. Pickard, Alexandria, Va. (Evans, Economou & Pickard, Alexandria, Va., on brief), for appellant.

Justin W. Williams, U. S. Atty., Alexandria, Va. (William B. Cummings, U. S. Atty., Leonie M. Brinkema, Asst. U. S. Atty., Alexandria, Va., C. Forrest Bannan, Special Asst. U. S. Atty., Washington, D. C., on brief), for appellee.

Before PHILLIPS and MURNAGHAN, Circuit Judges, and MATTHEW J. PERRY, District Judge for the District of South Carolina, sitting by designation.

PER CURIAM:

Wesley Brown pleaded guilty to conspiracy to defraud a federally insured bank and to embezzle funds from that bank in violation of 18 U.S.C. § 1005. Prior to sentencing, Brown sought to withdraw his guilty plea, but the motion was denied by the district court. This appeal followed. Concluding that the denial of the motion was not an abuse of the district court's discretion, we affirm.

Brown, a branch manager of the United Virginia Bank, was charged by indictment with five counts arising out of the embezzlement of a large sum from the bank. On November 14, 1978, one week prior to his scheduled trial, Brown pleaded guilty to the conspiracy count and the other four counts were dismissed pursuant to a plea agreement.

Defendant agreed to cooperate with the government by submitting to a debriefing by federal agents and by appearing before a federal grand jury. When the plea was entered the district court conducted a careful and extensive inquiry under Fed.R.Crim.P. 11 and determined that the plea was made voluntarily and understandingly and had a basis in fact. The court then found defendant guilty and set sentencing for December 8, 1978.

On December 1, 1978, Brown moved under Fed.R.Crim.P. 32(d) to withdraw his guilty plea claiming that he was innocent, that he had defenses to the charges, and that the government would not be prejudiced by withdrawal of the plea. The government opposed the motion arguing that it would be prejudiced if the plea were withdrawn because the trial preparation had been dismantled and 17 of its witnesses notified not to appear. The government further argued that grand jury sessions scheduled for Brown and 5 other witnesses in respect of related investigations would have to be cancelled. After a hearing the district court denied the motion.

Withdrawal of a guilty plea prior to sentencing should normally be allowed. If, however, the government has been prejudiced by its reliance on the guilty plea, "this dispensation should not be (so) freely granted." United States v. Savage, 561 F.2d 554, 556 (4th Cir. 1972), and the district court must weigh this prejudice against defendant's reason for seeking to withdraw the plea. United States v. Strauss, 563 F.2d 127, 130-31 (4th Cir. 1977). On appeal the denial of the motion to withdraw will be overturned only for abuse of discretion. United States v. Savage, 561 F.2d 554 (4th Cir. 1972).

The prejudice...