U.S. v. Bryant
| Decision Date | 11 February 1981 |
| Docket Number | No. 80-1696,80-1696 |
| Citation | 640 F.2d 170 |
| Parties | UNITED STATES of America, Appellee, v. Rickey Elijah BRYANT, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Dennis J. C. Owens, Kansas City, Mo., for appellant.
Cynthia A. Clark, Asst. U. S. Atty., Kansas City, Mo., for appellee.
Before HEANEY, ROSS and ARNOLD, Circuit Judges.
Rickey Bryant brings this appeal from a judgment of conviction on one count of an indictment charging him and six other persons with the robbery of the Teachers' Credit Union in Kansas City, Missouri. Bryant claims on appeal that he should have been permitted to withdraw his plea of nolo contendere just prior to his scheduled sentencing and that the trial court erred in refusing to allow the withdrawal. We affirm the judgment of conviction.
The indictment charged Bryant with the robbery, or aiding and abetting the robbery, on November 7, 1979. In a separate count, not directly relevant here, the same charges were made against the same defendants in connection with the November 7 robbery of the Missouri Central Credit Union at a location adjacent to the Teachers' Credit Union. The additional defendants in each count were Kenneth G. Rayford; Nolden Garner Jr.; George W. Johnson; Raymond Young, Jr.; Michael W. Richardson; and Robert Jackson.
At arraignment on March 18, 1980, Bryant entered a not guilty plea to each of those two counts. The case was scheduled for trial on May 5, 1980. On that date Bryant, pursuant to a plea agreement with the United States Attorney, changed his plea to Count I to nolo contendere. The terms of the plea agreement, not relevant here, were disclosed to the court, and after conducting a very careful and complete rule eleven interrogation, Judge Sachs accepted the plea of nolo contendere as to a modified Count I and directed that "a judgment of guilty based on a plea of nolo contendere be entered." He did not question Bryant about the facts relating to the commission of the crime because the plea entered was nolo contendere and because he felt it could possibly incriminate some of his codefendants who had not been tried. He stated that he would await the presentence report before determining whether to go along with the plea bargain, and indicated his intention to so question Bryant if the plea bargain were accepted. Rayford also entered a nolo contendere plea on May 5, 1980. Garner had entered a nolo contendere plea prior to that time.
The defendants Richardson and Young were convicted at a trial ending on April 30. They were sentenced on June 6 to 15 years and 20 years respectively. Jackson and Johnson were acquitted after a trial which ended on June 5. It is significant that Bryant's nolo contendere plea was entered before Richardson and Young were sentenced and before Jackson and Johnson were tried. Bryant attempted to withdraw the plea on June 13, 1980, after Richardson and Young were sentenced and after the Jackson and Johnson acquittals. On June 13 Bryant was thus aware that two of his codefendants had been acquitted and two had been convicted and sentenced to long terms since he had entered his plea.
The trial court conducted hearings on the motion to withdraw the plea on July 3 and July 18, 1980. These hearings focused upon the reasons given by Bryant in support of his motion to withdraw. In a pleading filed with his motion, Bryant set forth the reasons as follows:
1. An alibi witness known to the defendant at the time which was originally set for his trial, but who was unavailable at that time, is now available to aid in the defense of this case.
2. Due to the fact that the cases of the other parties charged in this Indictment have been disposed of now, these parties are now newly available to aid in the defense of this case.
3. Information which became known during the trial of Michael W. Richardson and Raymond Young, Jr. and other information which became first known to the defendant during the trial of George W. Johnson and Robert L. Jackson are now available to the defendant for the aid of the defense of this case.
The alibi witness Bryant claimed to be newly available, Henry Powell, testified on July 18 to the effect that Bryant was in the auto shop where Bryant had formerly worked on one Wednesday morning, but was unable to say that it was the morning of the robbery. He was unable to even identify what month it was.
Point two related to the use of testimony by Garner and Rayford. Bryant attempted to show by his own testimony and by the testimony of Susan Garner, Garner's sister, that Garner, who had earlier been sentenced and was in prison, would now testify in Bryant's behalf. The evidence showed that the only expression of Garner's willingness to testify was communicated to Bryant before he entered his plea of nolo contendere, rather than after. Susan Garner indicated that she had not communicated with her brother in this regard.
Defense counsel, on July 3, advised the court that Rayford had also indicated that he would testify on behalf of Bryant. On July 18, counsel advised the court that he had talked to Rayford by telephone and that he "would not choose to call Rayford as a witness." He also indicated that after talking to Garner by telephone he would use his testimony to impeach the credibility of two government witnesses, George Brown and Consuela Brown.
As to the third reason given in...
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U.S. v. Allen, CR 94-4030-MWB.
...it is real prejudice, caused by the timing of Morrison's guilty plea and subsequent attempts to withdraw. Compare United States v. Bryant, 640 F.2d [170,] 172 [ (8th Cir.1981) ]. Morrison, 967 F.2d at 269. In Bryant, the case referred to in Morrison, the court found prejudice to the governm......
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State v. Pedro
...about losing a member of their household and are rethinking their desire to testify against [the defendant]"); United States v. Bryant, 640 F.2d 170, 172 (8th Cir. 1981) (holding that the government would be prejudiced by the withdrawal of the plea when witnesses were incarcerated or were o......
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Com. v. DeMarco
...generally do not allow defendants to withdraw their pleas if the prosecution would suffer prejudice. See, e.g., United States v. Bryant, 640 F.2d 170 (8th Cir. 1980); United States v. Strauss, 563 F.2d 127 (4th Cir. 1977); United States v. Savage, 561 F.2d 554 (4th Cir. 1977); United States......
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United States v. Acevedo-Ramos, Cr. No. 85-0108 GG.
...to back out of his plea bargain and take his chances that the government will not be able to prove its case. Cf. United States v. Bryant, 640 F.2d 170, 173 (8th Cir.1981). There is clear indication that Acevedo delayed his motion to withdraw until he had the opportunity "to test the weight ......
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A change of heart or a change of law? Withdrawing a guilty plea under Federal Rule of Criminal Procedure 32(e).
...requires the exercise of the defendant's constitutional rights, instead of `pleading it out.'"). (28) See, e.g., United States v. Bryant, 640 F.2d 170, 172 (8th Cir. 1981) (finding prejudice where three trials had already occurred); Strauss, 563 F.2d at 131 (finding prejudice where the plea......