U.S. v. Carr

• Decision Date: 17 August 1984
• Docket Number: No. 83-1829,83-1829
• Citation: 740 F.2d 339
• Parties: UNITED STATES of America, Appellee, v. Michael CARR, Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 339

740 F.2d 339

UNITED STATES of America, Appellee, v. Michael CARR, Appellant.

No. 83-1829.

United States Court of Appeals, Fifth Circuit.

Aug. 17, 1984.

Rehearing Denied Sept. 18, 1984.

David L. Botsford, Emmett Colvin, Austin, Tex., for appellant.

John De Pue, Atty., Appellate Sect., Dept. of Justice, Washington, D.C., for appellee.

Appeal from the United States District Court For the Northern District of Texas.

Before GARZA, GARWOOD, and HIGGINBOTHAM, Circuit Judges.

GARZA, Circuit Judge:

FACTS

Between November 1978, and July 1982, the appellant and two co-defendants conducted various schemes to defraud life insurance companies of commissions on policies and sold false income tax deductions to various business enterprises. The tax fraud conspiracy that formed the basis of appellant's guilty plea was instigated as a means of avoiding federal income tax on Appellant Carr, Donald McDevitt (an attorney), and Keith Kantor were indicted on July 2, 1982, on five counts of mail fraud in violation of 18 U.S.C. Sec. 1341, and conspiring to defraud the United States by impeding the functions of the IRS in violation of 18 U.S.C. Sec. 371. The three were arraigned on July 16, 1982. Appellant and McDevitt appeared without counsel, they were admonished of their rights, the applicable range of punishment, and the court entered a plea of not guilty for them. At a hearing on July 23, 1982, appellant and McDevitt appeared in court and stated that they were in the process of retaining Roy Minton and Charles Burton as their attorneys. When the court learned of the prospect of joint representation, it warned both attorneys, appellant, and McDevitt about the possibility of a conflict between defense strategies. At the July 30, 1982 hearing the court pursued the possible conflict of interest further. The following exchange occurred:

the fraudulently acquired insurance commissions. Appellant then marketed the income tax scheme to third parties as a technique to evade tax liability. ¹

THE COURT: I know you are familiar with the fact, of course, both lawyers representing--the same lawyer representing both defendants, there's always that possibility of conflict arising. I have no knowledge of whether there's any such conflict or not, but that's just something you'll have to look for.

MR. MINTON: For the record, if I may, Judge, we talked to both of our clients at length about that.

THE COURT: Yes.

MR. MINTON: Mr. McDevitt is an attorney, and--

THE COURT: Yes, sir.

MR. MINTON: --and we went into that in great detail with them. I cannot discern that there is any conflict; but, if there is, they both waive any conflict that there would be. Is that right gentlemen?

DEFENDANTS CARR, McDEVITT: Yes (in unison).

THE COURT: Of course, that would depend upon what happens in the case.

MR. MINTON: Yes, I understand.

THE COURT: But I wanted to, for the record, have all those things brought up at this time.

Hearing of July 30, 1982, Rec. vol. IV., at 6-7.

Following the July 30 hearing, the court granted three defense motions for continuances. The trial was scheduled to commence On October 24, 1983, appellant filed a motion for substitution of counsel. On October 25, 1983, he filed a motion to withdraw his plea of guilty on the grounds that he had had a viable defense that he had previously been unaware of, and that he had been pressured into pleading guilty because of the "all or nothing" requirement. Although Burton had admittedly questioned appellant regarding reliance upon such advice, it was alleged that he failed to inform him that advice of counsel could constitute a defense to the charge in question. After granting appellant's motion to substitute counsel, the district court conducted a hearing on his motion to withdraw guilty plea on November 1, 1983.

on Monday, October 3, 1983. During the weekend of October 1-2, however, the prosecutor and counsel for the defendants negotiated a guilty plea agreement predicated upon a factual resume to support the anticipated pleas. On the morning the trial was to begin, defense counsel announced that the defendants were prepared to enter pleas of guilty to the tax fraud conspiracy count in exchange for dismissal of the remaining counts. The government's obligation under the agreement, to seek dismissal of the remaining charges, was conditioned upon entry of guilty pleas by all three defendants on the conspiracy count, the so called "all or nothing" requirement. Pursuant to this agreement all three defendants pled guilty to count six of the indictment and were found guilty by the court.

After reviewing appellant's responses to questions asked during the plea inquiry pursuant to Fed.R.Crim.P. 11 the district court overruled that motion and then called the case for sentencing. The court accepted the plea agreement and sentenced appellant to three years confinement and a $2,500.00 fine. Counts one through five were then dismissed. Appellant filed a notice of appeal on November 1, 1983.

ISSUES

Appellant complains that the district court abused its broad discretion in denying his motion to withdraw his guilty plea pursuant to Fed.R.Crim.P. 32(d). ² He argues that a withdrawal is justified because his trial attorney failed to inform him that he could use an "advice of counsel" defense to the conspiracy charge against him. Since he was not advised of this defense prior to the entry of the plea, he now claims that the plea was entered improvidently and that he should be permitted to plead anew so as to take advantage of the defense. We find appellant's contention devoid of merit, and therefore affirm the district court.

The Standard for Withdrawal of a Guilty Plea

The standard for determining whether or not a defendant may withdraw his guilty plea prior to sentencing is whether "for any reason the granting of the privilege seems fair and just." United States v. Rasmussen, 642 F.2d 165, 167 (5th Cir.1981) (quoting Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009, 1012 (1927)); United States v. Pressley, 602 F.2d 709, 711 (5th Cir.1979). Federal courts have uniformly applied this well established standard. United States v. Barker, 514 F.2d 208, 219 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975); See generally, Note, Presentence Withdrawal of Guilty Pleas in the Federal Courts, 40 N.Y.U.L.Rev. 759 (1965).

Courts have considered various elements and factors when applying this standard. The factors that should be considered when applying this standard are: (1) whether or not the defendant has asserted his innocence; ³ (2) whether or not the government would suffer prejudice if the withdrawal motion were granted; ⁴ (3) whether or not the defendant has delayed in filing his withdrawal motion; ⁵ (4) whether or not the withdrawal would substantially inconvenience the court; ⁶ (5) whether or not close assistance of counsel was available; ⁷ (6) whether or not the original plea was knowing and voluntary; ⁸ and (7) whether or not the withdrawal would waste judicial resources; ⁹ and, as applicable, the reason why defenses advanced later were not proffered at the time of the original pleading, ¹⁰ or the reasons why a defendant delayed in making his withdrawal motion.

When courts apply the factors enumerated above they should consider the totality of the circumstances. United States v. Morrow, 537 F.2d 120, 146 (5th Cir.1976). Certain guidelines are helpful. For example, the longer a defendant delays in filing a withdrawal motion, the more substantial reasons he must proffer in support of his motion. Barker at 222. In addition, "[t]he movant's reasons must meet exceptionally high standards where the delay between the plea and the withdrawal motion has substantially prejudiced the Government's ability to prosecute the case." Barker at 222 (citing United States v. Vasquez-Velasco, 471 F.2d 294 (9th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2163, 36 L.Ed.2d 692 (1973)). Conversely, a prompt withdrawal may indicate that a plea was unknowingly entered in haste. It should also be remembered that the defendant has the burden of proving the withdrawal is justified. Everett v. United States, 336 F.2d 979, 984 n. 17 (D.C.Cir.1964); see United States v. Webster, 468 F.2d 769, 771 (9th Cir.1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597 (1973); Callaway v. United States, 367 F.2d 140, 142 (10th Cir.1966) (per curiam).

Finally, the trial court's decision regarding a withdrawal motion must be accorded "broad discretion." United States v. Morrow, 537 F.2d 120, 146 (5th Cir.1976), cert. denied sub nom. Brennan v. United States, 430 U.S. 956, 97 S.Ct. 1602, 51 L.Ed.2d 806 (1977). As we have stated:

it is well settled that there is no absolute right to withdraw a guilty plea before the imposition of sentence. Instead, the right to do so is within the sound discretion of the trial court which will be reversed by an appellate court only for an abuse of that discretion.

Rasmussen at 167 (citing Morrow; United States v. Simmons, 497 F.2d 177 (5th Cir.), cert. denied, 419 U.S. 1048, 95 S.Ct. 623, 42 L.Ed.2d 643 (1974)).

Applying the Standard to Appellant's Motion

Considering the totality of the circumstances and factors involved in this case we find that the trial court did not err in denying appellant's withdrawal motion. First, although the defendant has asserted his innocence, this claim alone is far from being sufficient to overturn denial of a withdrawal motion. Otherwise, the mere assertion of legal innocence would always be a sufficient condition for withdrawal, and withdrawal would effectively be an automatic right. See Barker at 221.

Second, although overturning the district court would appear not to prejudice the government's case, "we do not believe that the absence of a showing of prejudice to the government, by itself, should be sufficient to mandate permission to withdraw a plea when, as here, no credible reason...