U.S. v. Fitzhugh

• Decision Date: 08 May 1996
• Docket Number: No. 95-2421,95-2421
• Citation: 78 F.3d 1326
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene FITZHUGH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1326

78 F.3d 1326

UNITED STATES of America, Plaintiff-Appellee, v. Eugene FITZHUGH, Defendant-Appellant.

No. 95-2421.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 12, 1995.

Decided March 15, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied May 8,

1996. ^*

Appeal from the United States District Court for the Eastern District of Arkansas; Stephen Reasoner, Judge.

G. Randolph Fitzhugh, argued, Little Rock, AR, for appellant.

Kenneth Starr and Bradley Lerman, argued, Little Rock, AR, for appellee.

Before BOWMAN, BEAM, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

During his trial for the felony of conspiring to defraud the Small Business Administration, Eugene Fitzhugh pleaded guilty to a misdemeanor violation of 18 U.S.C. § 215, bribery with intent to influence an official of a financial institution. Months later, Fitzhugh moved to withdraw that plea. The district court denied the motion and sentenced Fitzhugh to one year in prison. Fitzhugh appeals, arguing that the district court abused its discretion in denying his motion to withdraw the plea, the government withheld exculpatory evidence and engaged in selective prosecution, the special prosecutor exceeded his authority, and the court committed two sentencing errors. We affirm Fitzhugh's conviction but remand for resentencing because the district court based a six-level enhancement on the face amount of a loan obtained through bribery, rather than on the value of the benefit conferred by that loan. See U.S.S.G. § 2B4.1(b)(1).

I. Background.

Fitzhugh is a Little Rock attorney with over thirty years experience. His role in the alleged conspiracy was to form sham corporations through which David L. Hale, President of Capital Management Services, Inc. ("CMS"), with the help of Charles Matthews, a broker at Prudential-Bache Securities, Inc., passed money for the purpose of misrepresenting CMS's financial affairs. The misrepresentation was intended to induce SBA to provide loans to CMS, a Small Business Investment Company. In return, Hale caused CMS to loan money to Fitzhugh's client, Harry Townsend.

A felony indictment was initially obtained by the United States Attorney for the Eastern District of Arkansas. When that office recused from all matters involving CMS because of allegations linking President and Mrs. Clinton with CMS, the Attorney General appointed Robert B. Fiske, Jr., as Independent Counsel to investigate possible violations of federal law "relating in any way to [President and Mrs. Clinton's] relationships with ... Capital Management Services," and to prosecute offenses "developed during ... and connected with or arising out of that investigation." See 28 C.F.R. § 603.1. Fiske then obtained a superseding indictment charging Fitzhugh, Hale, and Matthews with the same conspiracy offense.

On June 23, 1994, Fitzhugh agreed to plead guilty to misdemeanor bribery, and the government agreed to dismiss his felony indictment and to grant him immunity from prosecution for certain bankruptcy matters. Fiske then filed a superseding information alleging that Fitzhugh violated 18 U.S.C. § 215 by providing valuable services to Hale, a financial institution officer, to induce CMS loans to Townsend. At the change of plea hearing, Fitzhugh admitted knowingly participating in sham transactions described in the information. After a thorough Rule 11 colloquy, the district court found Fitzhugh "fully competent and capable of entering an informed plea" and accepted his guilty plea.

At Fitzhugh's sentencing hearing on January 3, 1995, the district court determined that his guidelines range exceeded the statutory maximum of one year in prison for a misdemeanor offense. The court deferred ruling on the final sentence pending a report on Fitzhugh's heart condition. Fitzhugh first moved to withdraw his guilty plea on April 6, 1995, the day before the court was to rule on his confinement. He alleged that his plea was involuntary because recent medical examinations demonstrated that his memory had been clouded by a 99% blockage in his carotid artery, and because the prosecution had withheld exculpatory evidence. After a hearing, the district court denied this motion, commenting:

I think we have here a classic case of post plea regret [except that] usually such a regret is manifested a lot closer in time to the plea than we have here.

I have to note that Mr. Fitzhugh's memory loss is selective, at best. He remembers with rather keen detail things that would appear to be helpful to his claim now, and then claims loss of memory due to his condition and the pressure of the day on the more troublesome areas.... I think there's no basis in law or in right for Mr. Fitzhugh now at this point to say ... he was not competent [and] should be able to withdraw his plea.

The court sentenced Fitzhugh to one year in prison. Fitzhugh appealed, and we granted his motion for release pending appeal.

II. Guilty Plea Withdrawal.

"The plea of guilty is a solemn act not to be disregarded because of belated misgivings about [its] wisdom." United States v. Morrison, 967 F.2d 264, 268 (8th Cir.1992) (citation omitted). Fed.R.Crim.P. 32(e) permits the withdrawal of a guilty plea "if the defendant shows any fair and just reason." We review the denial of a motion to withdraw for clear error, assessing:

(1) whether defendant established a fair and just reason to withdraw his plea; (2) whether defendant asserts his legal innocence of the charge; (3) the length of time between the guilty plea and the motion to withdraw; and (4) if the defendant established a fair and just reason for withdrawal, whether the government would be prejudiced.

United States v. Boone, 869 F.2d 1089, 1091-92 (8th Cir.), cert. denied, 493 U.S. 822, 110 S.Ct. 81, 107 L.Ed.2d 47 (1989). Fitzhugh waited over nine months to move to withdraw, and he does not assert his innocence, so his reasons to withdraw "must have considerably more force." Fed.R.Crim.P. 32(e) advisory committee notes to 1983 amendment, quoting United States v. Barker, 514 F.2d 208 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975).

A. Fitzhugh's Physical Condition. At the plea hearing, after the court determined that Fitzhugh was competent and represented by competent counsel, Fitzhugh admitted knowingly committing the crime alleged in the superseding information. He now contends that his heart condition impaired his memory and thus rendered this guilty plea involuntary. He presented no medical testimony supporting this claim, only doctors' letters stating that any loss of memory "possibly" resulted from the blocked artery.

The district court found this medical evidence "very uncertain" and Fitzhugh's testimony about his selective memory loss not credible. The court then compared that weak showing with Fitzhugh's lengthy and cogent colloquy at the plea hearing, when he advised the court that he understood the charge, was competent to plead, and was voluntarily changing his plea to guilty, and when his attorney also expressed no doubt about Fitzhugh's competency to plead guilty. "Solemn declarations in open court carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 1629, 52 L.Ed.2d 136(1977). The district court did not err in denying the motion to withdraw on this ground. See United States v. McNeely, 20 F.3d 886, 888 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 171, 130 L.Ed.2d 107 (1994); United States v. Vaughan, 13 F.3d 1186, 1187 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 1858, 128 L.Ed.2d 481 (1994).

B. The Alleged Exculpatory Evidence. Fitzhugh next argues that the prosecution failed to disclose allegedly exculpatory evidence--a 1990 Rose Law Firm billing statement, evidence that Webster Hubbell had represented Harry Townsend and his mother before joining the Department of Justice, a $250,000 settlement payment by Prudential-Bache to Townsend's mother, and "testimony of witnesses in grand jury proceedings." In a largely unintelligible argument, Fitzhugh apparently contends that he should be allowed to withdraw his guilty plea because he "now is able to defend his indictment and ... believes he was framed and was indicted in an attempt to become a political scapegoat for other politically influential persons."

The record reveals that Fitzhugh knew or had access to most if not all of this information before he pleaded guilty. Moreover, Fitzhugh cannot explain how this evidence tends to show he was "framed," either for the crime for which he was indicted, or the crime to which he pleaded guilty. Thus, he has failed to prove breach of the prosecution's duty to disclose. Finally, we fail to see how any of this information would have rationally affected his decision to plead guilty. See White v. United States, 858 F.2d 416, 424 (8th Cir.1988), cert. denied, 489 U.S. 1029, 109 S.Ct. 1163, 103 L.Ed.2d 221 (1989). This argument does not establish a fair and just reason to withdraw the plea; if anything, it tends to confirm the district court's conclusion that "we have here a classic case of post plea regret."

C. Conclusion. Fitzhugh on appeal suggests several other reasons his guilty plea was involuntary. All are plainly without merit. The district court committed no clear error in denying his motion to withdraw that plea.

III. The Independent Counsel's Authority.

Soon after Independent Counsel Fiske obtained the superseding felony indictment, Fitzhugh moved to dismiss that indictment, alleging (i) that the Attorney General had no statutory authority to appoint Fiske, and (ii) that in any event Fiske had exceeded the scope of his appointed authority in prosecuting this case. ¹ The district court denied that motion, and Fitzhugh subsequently pleaded guilty to the superseding information issued by Independent Counsel Fiske in accordance with Fitzhugh's plea agreement. Fitzhugh did not again raise the question of Fiske's authority...