U.S. v. O'Hara, 349

• Citation: 960 F.2d 11
• Decision Date: 24 March 1992
• Docket Number: No. 349,D,349
• Parties: UNITED STATES of America, Appellee, v. Robert D. O'HARA, Defendant-Appellant. ocket 91-1280.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 11

960 F.2d 11

UNITED STATES of America, Appellee, v. Robert D. O'HARA, Defendant-Appellant.

No. 349, Docket 91-1280.

United States Court of Appeals, Second Circuit.

Argued Nov. 14, 1991.

Decided March 24, 1992.

Roger J. Schwarz, New York City, for defendant-appellant.

Scott W. McKay, Dept. of Justice, Washington, D.C. (Andrew J. Maloney, U.S. Atty. E.D.N.Y., Brooklyn, N.Y., of counsel), for appellee.

Before: LUMBARD, NEWMAN and WINTER, Circuit Judges.

WINTER, Circuit Judge:

Appellant Robert O'Hara entered into a plea agreement with the government, waiving indictment and entering a plea of guilty before Judge Korman to a one-count information charging him with aiding and abetting acts of false recordkeeping by the Harris Corporation ("Harris") in violation of the Foreign Corrupt Practices Act of 1977, ("FCPA"), as amended, 15 U.S.C. § 78m(b)(2)(A) (1988), and 18 U.S.C. § 2 (1988). Had O'Hara not pleaded guilty in the Eastern District, he would have been indicted and put to trial with his alleged coconspirators in the Northern District of California. After a directed verdict of acquittal for the defendants in the California proceeding, but before his sentencing, O'Hara moved to withdraw his plea under Fed.R.Crim.P. 32(d). Judge Korman denied that motion. We hold that the California acquittal has no preclusive effect on the Eastern District charges against O'Hara. We also hold that it was not an abuse of discretion for Judge Korman to conclude that the acquittal of the alleged coconspirators was not a "fair and just reason" requiring that O'Hara be allowed to withdraw his plea. We therefore affirm.

BACKGROUND

In 1989, O'Hara, doing business as Polo Associates Corporation, Inc., advised telecommunications companies, including Harris, about ways of obtaining business in Latin America. In January 1989, O'Hara and John D. Iacobucci, Vice-President and General Manager of Harris's subsidiary, Digital Telephone Systems ("Digital"), agreed that O'Hara would exploit certain contacts O'Hara claimed to have with officials of the government of Colombia to obtain telecommunications contracts for Harris and Digital. It is alleged that Iacobucci and O'Hara agreed that Digital would provide O'Hara with money to bribe the Colombian officials. In March 1989, O'Hara made plans to travel to Colombia in order to introduce certain Digital employees to the Colombian officials. On March 8, O'Hara sent an invoice to Iacobucci seeking payment of $5,500 in "Incidental fees due." On March 9, 1989, Digital responded by wiring O'Hara $9,500, $4,000 for O'Hara's expenses and $5,500 in "incidental fees." Harris and Digital carried the $9,500 on their books as a bona fide expense. O'Hara later prepared other invoices for "incidental fees" that were also paid by Harris and recorded as bona fide expenses.

After an FBI investigation in which O'Hara cooperated, the government filed a five-count indictment in the Northern District of California, charging Harris, Iacobucci and Ronald L. Schultz with violations of the FCPA. O'Hara was charged as an unindicted coconspirator. On August 24, 1990, O'Hara entered into a written plea agreement with the government in which he agreed to plead guilty in the Eastern District of New York to aiding and abetting a violation of the accounting provisions of the FCPA, 15 U.S.C. § 78m(b)(2)(A) (1988), and 18 U.S.C. § 2 (1988). The government thereafter filed a one-count information in the Eastern District charging O'Hara with that crime.

On December 27, 1990, O'Hara appeared pro se before Judge Korman to enter his guilty plea. Judge Korman made extensive efforts to ensure that O'Hara understood the charges against him and that his plea was knowingly entered. Judge Korman also urged O'Hara to consult with an attorney before actually entering his plea In March 1991, O'Hara appeared as a witness for the government in the trial in the Northern District of California. After completion of the government's main case, Judge Charles A. Legge directed a verdict of acquittal on all counts for all defendants. Concluding that the government had failed to establish an agreement between the defendants and O'Hara to bribe Colombian officials, Judge Legge held that the government had consequently failed to establish the specific intent necessary to support a finding that the defendants made false records regarding the payments to O'Hara.

                and O'Hara agreed to do so.   On January 25, 1991, O'Hara appeared again before Judge Korman, this time represented by counsel.   The government advised O'Hara's attorney that if O'Hara declined to plead guilty, he would be indicted in the Northern District of California and tried with Harris, Iacobucci, and Schultz.   Although O'Hara's attorney counseled O'Hara against pleading guilty, O'Hara insisted on entering the plea
                

On March 29, 1991, O'Hara moved to withdraw his guilty plea. Judge Korman denied the motion and sentenced him to two years probation. O'Hara appealed.

DISCUSSION

O'Hara makes two claims: (i) his guilty plea lacked a sufficient factual basis; and (ii) Judge Legge's ruling in the Northern District of California had a preclusive effect on the proceedings against him in the Eastern District and was a "fair and just reason" for withdrawing the plea.

1. Basis for the Guilty Plea

O'Hara's claim that there was an insufficient factual basis for his guilty plea is meritless. " '[A] reading of the indictment to the defendant coupled with his admission of the acts described in it [is] a sufficient factual basis for a guilty plea, as long as the charge is uncomplicated, the indictment detailed and specific, and the admission unequivocal.' " Montgomery v. United States, 853 F.2d 83, 85 (2d Cir.1988) (quoting Godwin v. United States, 687 F.2d 585, 590 (2d Cir.1982)). The information was "detailed and specific," Montgomery, 853 F.2d at 85, and included allegations that Harris provided money to O'Hara to bribe Colombian officials and falsely recorded the payments on its books. Judge Korman went to great lengths to ensure that O'Hara understood the charges against him, and the record clearly shows that O'Hara admitted the allegations contained in the information. Because O'Hara neither "denie[d] an element of the offense [nor] generally maintain[ed] his innocence," Godwin, 687 F.2d at 590, O'Hara's admission of the allegations sufficed to establish the requisite factual basis for his guilty plea.

2. Effect of the Coconspirators' Directed Verdict

Fed.R.Crim.P. 32(d) states that "[i]f a motion for a withdrawal of a plea of guilty ... is made before sentence is imposed, the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason."

We first clarify the standard of review applicable to denials of motions to withdraw guilty pleas, a matter on which our prior opinions have not been uniform. Compare United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990) (applying "clearly erroneous" standard), cert. denied, --- U.S. ----, 111 S.Ct. 957, 112 L.Ed.2d 1045 (1991); United States v. Michaelson, 552 F.2d 472, 475 (2d Cir.1977) (same); and United States v. Podell, 519 F.2d 144, 148 (2d Cir.) (same), cert. denied, 423 U.S. 926, 96 S.Ct. 270, 46 L.Ed.2d 252 (1975), with United States v. Needles, 472 F.2d 652, 656 (2d Cir.1973) (applying "abuse of discretion" standard); United States v. Hughes, 325 F.2d 789, 792 (2d Cir.) (same), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964); United States v. Smiley, 322 F.2d 248 (2d Cir.1963) (per curiam) (same); United States v. Lester, 247 F.2d 496, 500 (2d Cir.1957) (same); see also United States v. Lombardozzi, 436 F.2d 878 (2d Cir.1971) (applying both standards), cert. denied, 402 U.S. 908, 91 S.Ct. 1379, 28 L.Ed.2d 648 (1971). Adjudicative facts are, of course, subject to the clearly-erroneous standard of review. Whether the facts so found constitute a "fair and just reason" for the withdrawal of a plea and whether the district judge properly denied the motion to withdraw the plea are mixed questions of law and fact, reviewed by us only for abuse of discretion. Needles, 472 F.2d at 655-56; Smiley, 322 F.2d at 249.

O'Hara argues that Judge Korman should have given preclusive effect to Judge Legge's decision granting a directed verdict in the California proceedings, thereby enabling him to withdraw his guilty plea in the Eastern District of New York. In so arguing, O'Hara must confront Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), which held that an acquittal by jury verdict does not have a...