U.S. v. Grant

• Decision Date: 09 July 1997
• Docket Number: No. 96-10981,96-10981
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Walter V. GRANT, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 788

117 F.3d 788

UNITED STATES of America, Plaintiff-Appellee, v. Walter V. GRANT, Jr., Defendant-Appellant.

No. 96-10981.

United States Court of Appeals Fifth Circuit.

July 9, 1997.

As Modified Aug. 8, 1997.

Delonia Anita Watson, U.S. Attorney's Office, Phillip C. Umphres, Dallas, TX, for plaintiff-appellee.

Dan C. Guthrie, Jr., Dallas, TX, for defendant-appellant.

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

Before DAVIS, STEWART and PARKER, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge.

Walter V. Grant Jr. appeals the district court's denial of his motion to withdraw his guilty plea to a tax evasion charge. We affirm.

I.

Grant, a Dallas, Texas, minister under investigation by the IRS for suspected tax evasion, entered into a plea agreement with the government. Pursuant to the agreement, Grant pleaded guilty to one count of filing a false 1990 tax return, in violation of 26 U.S.C. § 7206(1). At a plea hearing on April 15, 1996, the district court placed Grant under oath and questioned him as required by Fed.R.Crim.P. 11. Grant stated that he understood the nature of the charge against him and the consequences of pleading guilty, including the possibility of 10 months to 16 months imprisonment. He also stipulated to the substantive facts underlying the charge. The court found that the plea was made "knowingly, freely, and voluntarily" and the plea was entered, but the court deferred accepting Grant's plea and the plea agreement until it reviewed the presentence report and an incriminating videotape made by the IRS.

On July 22, 1996, the scheduled date of sentencing, Grant moved to withdraw his plea of guilty, claiming that he was innocent of the tax evasion charge. After an evidentiary hearing, the district court denied Grant's motion to withdraw his plea and accepted the plea and the plea agreement. ¹ Grant was sentenced to 16 months imprisonment and one year of supervised release and ordered to pay fines totaling $60,812.88. In conjunction with his supervised release, the court imposed 100 hours of community service and required Grant to disclose information relating to his financial status on a weekly basis. The court also required Grant to publish notice of the offense in a publication of Grant's evangelistic association. However, on April 2, 1997, the district court entered an amended judgment deleting the notification requirement.

Grant appeals the district court's denial of his motion to withdraw his plea as well as the conditions of his supervised release.

II.

A.

Under Rule 32(e) of the Federal Rules of Criminal Procedure, the district court may grant a motion to withdraw a guilty plea before a defendant is sentenced if the defendant shows "any fair and just reason." The denial of a Rule 32(e) motion is reviewed for abuse of discretion. United States v. Henderson, 72 F.3d 463, 465 (5th Cir.1995).

There is no absolute right to withdraw a guilty plea. United States v. Badger, 925 F.2d 101, 103 (5th Cir.1991). In reviewing the denial of a motion to withdraw a guilty plea under Rule 32(e), this court traditionally considers seven relevant factors: (1) whether the defendant asserted his innocence, (2) whether withdrawal would prejudice the government, (3) whether the defendant delayed in filing the withdrawal motion, (4) whether withdrawal would inconvenience the court, (5) whether adequate assistance of counsel was available, (6) whether the plea was knowing and voluntary, and (7) whether withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985). The district court makes its determination based on a totality of circumstances. Id. at 344.

To support his motion, Grant asserted that he was innocent of the charge against him. He cited no specific facts; instead, he simply stated that "down deep I've always felt I was innocent.... And I can't in good conscience stand up here and say that I'm guilty if I feel in my heart that I'm innocent." This claim of innocence, standing alone, does not justify withdrawal. United States v. Rojas, 898 F.2d 40, 43 (5th Cir.1990). And, as the district court noted, the remaining Carr factors support the denial of Grant's motion. Grant delayed more than three months before filing his eleventh-hour motion; during that time, he gave no indication to the court that he was considering withdrawing his plea. See Carr, 740 F.2d at 345 (concluding that defendant's filing of motion 22 days after plea was entered was untimely). By the day of sentencing, the court had reviewed the presentence report, voluminous objections, responses to those objections, and various materials submitted by Grant. Plea withdrawal would have disrupted the trial docket, inconveniencing the court and wasting additional judicial resources. After reviewing the record, we cannot conclude that, under the Carr test, the district court abused its discretion in denying Grant's motion.

However, Grant contends that application of the Carr test is inappropriate. In Carr, the defendant sought to withdraw a guilty plea that had already been accepted. Here, in contrast, the district court deferred acceptance of both the plea and the plea agreement until it reviewed the presentence report. Grant argues that because the plea had not been accepted, it could be withdrawn at any time by either party.

At the outset, we note that neither Rule 32(e), which governs plea withdrawal, nor Rule 11, which governs plea agreements generally, indicates whether a plea must be accepted, rather than merely entered, before the "fair and just reason" standard applies. ² Nor has any court spoken clearly on this issue. See United States v. Washman, 66 F.3d 210, 212 (9th Cir.1995) (stating that a defendant should be allowed to withdraw a plea without offering any reason when plea has not been accepted); United States v. Ewing, 957 F.2d 115, 118 n. 2 (4th Cir.) (noting, in dicta, that "[t]here is no reason apparent to us that the district court could not have deferred acceptance of the guilty plea as well as the plea agreement until consideration of the presentence report"), cert. denied, 505 U.S. 1210, 112 S.Ct. 3008, 120 L.Ed.2d 882 (1992). ³ However, after reviewing relevant case law and the language of pertinent rules, we conclude that Rule 32(e)'s "fair and just reason" standard was triggered upon entry of Grant's plea and that Grant failed to satisfy that standard.

This court and others have considered an analogous question: whether a plea may be withdrawn as a matter of right after its acceptance by the court but before acceptance of the plea agreement. In United States v. Hyde, --- U.S. ----, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997), the Supreme Court, resolving a circuit split, applied Rule 32(e)'s "fair and just reason" standard to a defendant's attempt to withdraw his accepted plea before acceptance of the plea agreement. The Ninth Circuit has held that the defendant had an absolute right to withdraw his guilty plea before the district court accepted the plea agreement. United States v. Hyde, 92 F.3d 779, 781 (9th Cir.1996), rev'd, --- U.S. ----, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). It reasoned that by deferring its decision on whether to accept the plea agreement, the district court automatically deferred accepting the guilty plea because the guilty plea and plea agreement are " 'inextricably bound up together.' " Id. at 780 (citation omitted).

In reversing, the Supreme Court first examined the language of Rule 11 and concluded that, by its terms, the rule distinguished between pleas and plea agreements. By failing to acknowledge those distinctions, the Court reasoned, the Ninth Circuit stripped Rule 11 of its intended effect. Hyde, --- U.S. at ----, 117 S.Ct. at 1634. Second, the Court noted that the appellate decision rendered the Rule 11 plea hearing inconsequential After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, the Court of Appeals would allow the defendant to withdraw his guilty plea simply on a lark.... We think the Court of Appeals' holding would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess.

Id. The Court ultimately held that when the district court has accepted a defendant's plea but deferred accepting the plea agreement, the plea may not be withdrawn unless the defendant provides a "fair and just reason" under Rule 32(e). ⁴ See also Ewing, 957 F.2d at 118; United States v. Ellison, 798 F.2d 1102, 1104 (7th Cir.1986).

We believe that the Supreme Court's reasoning in Hyde applies with equal force here. At the Rule 11 plea colloquy, Grant was questioned under oath about his understanding of the charge and the facts underlying it. Grant stated that he understood the consequences of pleading guilty, admitted that he had understated his income on his 1990 federal tax return in violation of 26 U.S.C. § 7206(1), and pleaded guilty. Responding to the district court's questioning as to the voluntariness of his plea, Grant repeatedly acknowledged his guilt. In conducting this questioning, the district court meticulously satisfied its obligations under Rule 11. Allowing Grant to withdraw his plea without a fair and just reason would defeat the purpose of the plea hearing and diminish the significance of entering pleas. As the Supreme Court explained, such a result is contrary to Rule 11's intended purpose:

'Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a...