U.S. v. Keiswetter, 87-2347

• Decision Date: 04 November 1988
• Docket Number: No. 87-2347,87-2347
• Citation: 860 F.2d 992
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Laurence KEISWETTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 992

860 F.2d 992

UNITED STATES of America, Plaintiff-Appellee, v. Laurence KEISWETTER, Defendant-Appellant.

No. 87-2347.

United States Court of Appeals Tenth Circuit.

Nov. 4, 1988.

Vicki Mandell-King, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colo., for defendant-appellant.

Kim Martin, Asst. U.S. Atty. (Benjamin L. Burgess, Jr., U.S. Atty., and Robin Fowler, Asst. U.S.Atty., with her on the brief), Wichita, Kan., for plaintiff-appellee.

Before MOORE and BALDOCK, Circuit Judges, and PARKER, District Judge. ^*

PARKER, District Judge.

Laurence Keiswetter appeals from a judgment entered by the district court after it refused to allow Mr. Keiswetter to withdraw a guilty plea entered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d162 (1970). Mr. Keiswetter raises several issues on appeal. The only issue that warrants detailed consideration is Mr. Keiswetter's claim that the trial court should have allowed him to withdraw his guilty plea because his Alford plea was not voluntary. The record indicates that the district court was satisfied that Mr. Keiswetter voluntarily offered his plea of guilty. The record does not, however, clearly demonstrate the factual basis for the district court's determination that Mr. Keiswetter's guilty plea was voluntarily made. For this reason, we remand for further proceedings consistent with this Opinion.

Mr. Keiswetter was originally charged with the felony of knowingly converting property valued in excess of one hundred dollars, in violation of 18 U.S.C. Sec. 658. The property that Mr. Keiswetter allegedly converted was cattle that had been mortgaged to the Production Credit Association of Stockton, Kansas (PCA). At the time the charge was filed, Mr. Keiswetter and the PCA were involved in civil litigation relating to the same cattle.

Mr. Keiswetter entered into an agreement with the government in which he agreed to plead guilty to the misdemeanor of conversion in exchange for the dismissal of the felony charge. ¹ At the hearing on the negotiated plea, Mr. Keiswetter expressed ambivalence about his desire to plead guilty. His ambivalence apparently arose out of his belief in his innocence because of his professed lack of intent to defraud, and his doubts about PCA's legal status and the validity of the mortgage PCA required him to sign.

The trial court explicitly recognized Mr. Keiswetter's ambivalence, and painstakingly explained to Mr. Keiswetter the consequences of his decision to plead guilty. The trial judge also encouraged Mr. Keiswetter to exercise his right to trial by jury on the felony charge, if Mr. Keiswetter was not convinced that he wanted to enter into the guilty plea. Moreover, the trial judge explained that he would not sentence more severely if Mr. Keiswetter chose to exercise his right to jury trial rather than pleading guilty. R.Vol. II, 18. Finally, although Mr. Keiswetter commented concerning his belief that his civil litigation and the criminal case were interrelated, the trial judge repeatedly emphasized the separate nature of the civil and criminal proceedings. R.Vol. II, 20; R.Vol. II, 25; R.Vol. II, 27.

The lengthy discussion of defendant's options and reasons for and against entering into an Alford plea was punctuated by a recess during which the trial judge communicated with a jury in an unrelated case. After the hearing on the plea resumed, Mr. Keiswetter again indicated his intention to plead guilty and the trial judge accepted his plea. Eleven days later Mr. Keiswetter moved to withdraw his guilty plea, because his attempt to settle the civil litigation had been unsuccessful. R.Vol. I, # 23. At the sentencing hearing, the trial court denied the motion to withdraw guilty plea and sentenced Mr. Keiswetter to custody for one year, but suspended execution of the sentence and placed him on probation for five years.

Mr. Keiswetter argues on appeal that the trial court erred in denying his motion to withdraw his guilty plea because he did not voluntarily offer the plea. If a motion to withdraw guilty plea is made before sentence is imposed, it may be granted upon a showing by the defendant of any fair and just reason. Fed.R.Crim.P. 32(d). Nevertheless, a district court's denial of a motion to withdraw guilty plea may only be overturned if it constituted an abuse of discretion. United States v. Kearney, 684 F.2d 709 (10th Cir.1982).

Assertion of a defendant's subjective belief in his own innocence does not mandate allowing him to withdraw his plea of guilty. See United States v. Buckley, 847 F.2d 991, 998 n. 4 (1st Cir.1988) ("By definition, defendants who make Alford pleas do not deny their legal innocence. This does not mean they can withdraw these pleas willy-nilly."). In North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d162 (1970), the United States Supreme Court recognized that an express admission of guilt "is not a constitutional requisite to the imposition of criminal penalty." Id. at 37, 91 S.Ct. at 167. In Alford, the criminal defendant had been charged with first-degree murder but elected to plead guilty to second-degree murder despite his asserted innocence, because he wished to avoid the risk of a death penalty. ² The Supreme Court upheld the guilty plea under those circumstances for two reasons: (1) because the defendant had intelligently concluded that his interests required the entry of a guilty plea, and (2) because there was strong evidence in the record of the defendant's actual guilt. Id.

The first concern addressed by the Alford Court involves an examination of the defendant's state of mind, and can be the basis for invalidating a guilty plea when the evidence is not clear that the defendant voluntarily and knowingly plead guilty. In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Supreme Court invalidated a guilty plea because of the trial judge's failure to ask the defendant whether he understood the nature of the charge against him and whether he was aware of the consequences of the plea. The Court emphasized that if a guilty plea was not truly voluntary, entry of the plea would violate due process. Id. at 466, 89 S.Ct. at 1170.

In the present case, Mr. Keiswetter's plea originated with a document entitled "Petition to Enter Plea of Guilty and Order Entering Plea," that was signed and verified in open court. R.Vol. II, 3. In that document, Mr. Keiswetter recited that he had read the Indictment and had discussed it with his lawyer. He also stated: "I fully understand every charge made against me." R.Vol. I, # 22, p 3. The Indictment Mr. Keiswetter professed to have read stated:

The Grand Jury charges:

COUNT I

On or about March 22, 1984, in the District of Kansas,

LAURENCE J. KEISWETTER

did, with intent to defraud, knowingly and intentionally conceal, dispose of or convert to his own use property of a value greater than $100.00, to-wit: approximately 35 cattle, when said cattle were mortgaged or pledged to the Production Credit Association of Stockton, which is a production credit association organized under Section 1131(d) of Title 12, United States Code, in violation of 18 U.S.C. 658.

R.Vol. I, # 1. That Indictment charges the element of intent in clear and explicit language. Mr. Keiswetter's understanding of the charge is further documented in paragraphs four, five and six of the "Petition to Enter Plea of Guilty," which recite that he had told his lawyer all of the facts and circumstances concerning the charge, that he committed the acts charged in the Indictment, and that his lawyer had advised him of the nature of each charge and on all possible defenses he might have had in the case. R.Vol. I, # 22, paragraphs 4, 5, 6.

Moreover, Mr. Keiswetter had been advised by his counsel that the tactical benefit he would obtain by pleading guilty to a misdemeanor outweighed the risk that a jury might convict him of a felony. R.Vol. II, 17. Additionally, despite the trial judge's admonitions, Mr. Keiswetter apparently believed that by entering into the Alford plea, he might gain some advantage in his civil litigation. The record of proceedings in the trial court contains ample evidence that Mr. Keiswetter intelligently concluded that a guilty plea to the misdemeanor charge was in his best interest. Therefore, the first aspect of the Alford inquiry (the McCarthy prong) was satisfied in this case.

The second factor considered in Alford focusses not on the defendant's state of mind, but on the trial judge's assessment of the factual basis for the guilty plea. In United States v. Allen, 804 F.2d 244, 248 (3rd Cir.1986), cert. denied, 480 U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987), the Third Circuit Court of Appeals emphasized that the sufficiency of the factual basis for a guilty plea is to be examined from the perspective of the trial judge, in contrast with McCarthy's emphasis on the defendant's understanding or state of mind. Id. at 247-48. The situation in Allen was much like that in the present case. ³ The Third Circuit reviewed the trial judge's determination that a factual basis for the guilty plea existed under the standards established by Rule 11(f) of the Federal Rules of Criminal Procedure. Rule 11(f) requires a trial court to satisfy itself that there is a factual basis for a guilty plea before entering judgment upon such a plea. ⁴ The purpose of this requirement is to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense. Gregory v. Solem, 774 F.2d 309, 312 (8th Cir.1985), cert. denied, 475 U.S. 1088, 106 S.Ct. 1475, 89 L.Ed.2d 730 (1986).

As in Allen, the troublesome aspect of the present case occurs in connection with the second factor considered in Alford, because of the paucity in the record below of information about the factual basis for Mr. Keiswetter's guilty plea. Despite Mr. Keiswetter's avowed intent...