U.S. v. Goldberg

• Decision Date: 05 December 1988
• Docket Number: No. 88-1029,88-1029
• Citation: 862 F.2d 101
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin GOLDBERG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 101

862 F.2d 101

UNITED STATES of America, Plaintiff-Appellee, v. Marvin GOLDBERG, Defendant-Appellant.

No. 88-1029.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 4, 1988.

Decided Dec. 5, 1988.

Office of U.S. Atty., John R. Roth, argued, Detroit, Mich., for U.S.

Philip H. Seymour, argued, Charles Y. Cooper, Arnold J. Shifman, Cooper, Shifman, Gabe, Quinn & Seymour, Royal Oak, Mich., for Marvin Goldberg.

Before ENGEL, Chief Judge, MILBURN, Circuit Judge, and DOWD, District Judge ^*.

DOWD, District Judge.

I. INTRODUCTION.

The defendant-appellant was initially indicted on April 27, 1987, in a multi-party multi-count indictment charging the defendant with violation of and conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. Sec. 1962, conspiracy to distribute controlled substances, in violation of 21 U.S.C. Sec. 846 and conspiracy to commit mail fraud, in violation of 18 U.S.C. Secs. 1341 and 371. The charges arose out of an alleged scheme, involving numerous individuals and businesses, to defraud Medicaid and certain insurance carriers by requesting reimbursement for unnecessary prescriptions.

On October 15, 1987, Dr. Goldberg entered into a written plea agreement and, pursuant to the agreement, entered a plea of guilty to a single count of misprision of a felony as charged in a second superseding information on December 9, 1987. Fifty-five days later and prior to sentencing Dr. Goldberg filed a motion to withdraw his guilty plea under the Fed.R.Crim.P. 32(d). The district court denied the motion on December 17, 1987 and sentenced Dr. Goldberg to a fifteen month suspended sentence, probation for three years, 600 hours of community service, and a fine of $500.00.

On appeal, Dr. Goldberg contends that his guilty plea was received in violation of Fed.R.Crim.P. 11(f) as an insufficient factual basis for the crime of misprision of a felony was presented to the district court before it accepted the guilty plea. Alternatively, Dr. Goldberg contends that the district court abused its discretion in finding that there was not a fair and just reason to permit him to withdraw his guilty plea.

We turn first to consider whether the district court abused its discretion in refusing to permit Dr. Goldberg to withdraw his guilty plea. If that question is answered in the affirmative, there will be no need to consider the factual basis issue raised with respect to the validity of the plea itself.

II. THE MOTION TO WITHDRAW THE GUILTY PLEA.

After the guilty plea was entered, Dr. Goldberg changed lawyers and new counsel filed the motion to withdraw the plea contending that: (1) he was innocent of the crime to which he pled; (2) the plea was not voluntary as he was pressured into pleading guilty by one of his attorneys; (3) the plea was not knowingly entered because he was not properly informed of the consequences of going to trial; and (4) the plea was not knowingly entered because he was misinformed as to the ramifications of his guilty plea on his medical license and his ability to earn a living as a doctor. In support of the motion, the affidavits of Dr. Goldberg and his brother were offered in support of the claim of being pressured into pleading guilty by the former attorney and of being assured that his doctor's license would not be affected. No factual basis was offered for the claim of innocence.

The government opposed the motion, pointing out that Dr. Goldberg had waited until the completion of the three week trial of a co-defendant which he avoided by his plea of guilty, and argued that Dr. Goldberg should not be allowed to manipulate the court into granting what would amount to a severance after the court's denial of Dr. Goldberg's severance motion on the merits.

The district court did not schedule or conduct a hearing, but denied the motion to withdraw the plea in reliance on the statements made by Dr. Goldberg at the time the plea of guilty was entered on October 15, 1987.

In denying the motion, the district court emphasized the fact that Dr. Goldberg had testified under oath that he was satisfied with the representation provided by his counsel and that he was not under any duress or threat which induced his guilty plea.

The permission to withdraw a guilty plea prior to sentencing is not an absolute right but is a matter within the broad discretion of the district court. United States v. Spencer, 836 F.2d 236, 238 (6th Cir.1987); United States v. Triplett, 828 F.2d 1195, 1197 (6th Cir.1987); United States v. Usher, 703 F.2d 956, 959 (6th Cir.1983); United States v. Kirkland, 578 F.2d 170, 172 (6th Cir.1978). The recent decisions of this circuit in Triplett and Spencer, supra, enumerate a number of factors that the district court may consider in evaluating whether a defendant has established, pursuant to Rule 32 of the Federal Rules of Criminal Procedure, a "fair and just reason" to withdraw his guilty plea. Those factors include: (1) whether the movant asserted a defense or whether he has consistently maintained his innocence; (2) the length of time between the entry of the plea and the motion to withdraw; (3) why the grounds for withdrawal were not presented to the court at an earlier time; (4) the circumstances underlying the entry of the plea of guilty, the nature and the background of a defendant and whether he has admitted his guilt; and (5) potential prejudice to the government if the motion to withdraw is granted.

We find the district court did not abuse its discretion in not allowing Dr. Goldberg to withdraw the guilty plea. While the district court did not specifically refer to the factors set forth in the Triplett-Spencer decisions, the district court was obviously aware of the lengthy 55-day delay in filing the motion and the fact that the motion followed a three-week trial of co-defendants that Dr. Goldberg avoided by his earlier plea agreement. Additionally, the district court noted that Dr. Goldberg was a licensed and practicing physician who declared at the time of his guilty plea that he was satisfied with his counsel and was under no duress when he offered his plea and admitted his guilt to the charge.

We observe as this Court did earlier in Kirkland, supra, that the Supreme Court has recognized that "the guilty plea and the often concomitant plea bargain are important components of this country's criminal justice system. Properly administered, they can benefit all concerned." Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1627, 52 L.Ed.2d 136 (1977). ¹ Upon our review of the record, we find that the district court did not abuse its discretion in denying Dr. Goldberg's motion to withdraw his guilty plea.

III. THE FACTUAL BASIS ISSUE.

The superseding information ² charged Dr. Goldberg with misprision of a felony, to wit, mail fraud in violation of 18 U.S.C. Sec. 4. ³ Rule 11(f) of the Federal Rules of Criminal Procedure requires that the district court not enter a judgment upon a plea of guilty without making inquiry as shall satisfy it that there is a factual basis for the plea.

In United States v. Stuard, 566 F.2d 1 (6th Cir.1977) (per curiam), this Court described, in reliance upon Neal v. United States, 102 F.2d 643, 646 (8th Cir.1939), the four elements necessary to sustain a conviction for misprision of a felony as: (1) the principal committed and completed the felony alleged; (2) the defendant had knowledge of the fact; (3) the defendant failed to notify the authorities; and (4) the defendant took affirmative steps to conceal the crime of the principal. Mere knowledge of the commission of the felony or failure to report the felony, standing alone, is insufficient to support a conviction for a misprision of a felony. See, United States v. Ciambrone, 750 F.2d 1416 (9th Cir.1984); United States v. Johnson, 546 F.2d 1225 (5th Cir.1977). The issue that emerges in this case is whether the factual basis appearing in the record is sufficient to establish that Dr. Goldberg engaged in action to affirmatively conceal the crime of mail fraud.

The district court inquired directly of Dr. Goldberg in an attempt to develop a factual basis and the following exchange took place:

Q. I want you to tell me in your own words what you did to cause this charge to be brought against you.

A. Your Honor, I knew that Mel Boyer was at the Puritan Stoepel Pharmacy and I knew Mel Boyer and a pharmacist that was there, I'm not sure which one, at the Puritan Pharmacy were adding things to prescriptions, to my own prescriptions.

Q. Adding what?

A. Face cream prescriptions to my own prescriptions. I knew because at least one patient who showed me that they had medications such as Nutracort was not prescribed by me. It happened often and enough that I knew about it. This happened in 1985 in the City of Detroit. I knew it was against the federal law because I knew Medicaid was paying for it and they paid through the mail. I didn't report it to the federal authorities and I know this was wrong.

Q. Did you conceal this, your knowledge?

A. Yes, sir.

Q. Did you know what you were doing was against the law?

A. Yes, sir.

The district court did not inquire further of the government with respect to the necessary factual basis.

The government argues on appeal that Dr. Goldberg's statement that he concealed his knowledge that the pharmacist was adding items to his statements is sufficient to establish active concealment and points, by way of analogy, to United States v. Davila, 698 F.2d 715 (5th Cir.1983) as precedential authority for a determination that a factual basis appears on the record in this case. In Davila, a divided court affirmed Davila's conviction based upon his plea of guilty to misprision of a felony. The underlying crime was a conspiracy to suborn perjury. Prior to the conspiracy trial, Davila entered his plea of guilty. After the co-conspirators were acquitted of the conspiracy, Davila attempted unsuccessfully to withdraw his guilty...