U.S. v. Kramer, 97-2289

• Decision Date: 17 February 1999
• Docket Number: No. 97-2289,97-2289
• Citation: 168 F.3d 1196
• Parties: 1999 CJ C.A.R. 819 UNITED STATES of America, Plaintiff-Appellee, v. David George KRAMER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1196

168 F.3d 1196

1999 CJ C.A.R. 819

UNITED STATES of America, Plaintiff-Appellee, v. David George KRAMER, Defendant-Appellant.

No. 97-2289.

United States Court of Appeals, Tenth Circuit.

Feb. 17, 1999.

Vera S. Ockenfels, Albuquerque, New Mexico, for Defendant-Appellant.

Sasha Siemel, Assistant United States Attorney (John J. Kelly, United States Attorney and Mary L. Higgins, Assistant United States Attorney), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before ANDERSON, McKAY and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant David George Kramer appeals the district court's denial of his Fed.R.Crim.P. 32(e) motion to withdraw his guilty plea. Kramer contends that his guilty plea was involuntary. He asserts that he was ill when his plea was taken and consequently did not understand the ramifications of his plea; he further contends that his trial counsel was ineffective in failing to investigate adequately the facts of his case before his plea or trial. Because we believe that appellant failed to meet his burden under Fed.R.Crim.P. 32(e) of establishing that there was a "fair and just reason" for allowing withdrawal of his guilty plea, we affirm the judgment of the district court.

BACKGROUND

In 1993, Kramer offered for sale three Native American items--a prayer stick bundle containing bird feathers, a sun disk, and a tablita--at the Albuquerque Antique Connection, a consignment store in Albuquerque, New Mexico. At that time, Kramer had been selling Native American items for over 20 years.

Religious leaders from Jemez Pueblo, New Mexico, identified the prayer stick bundle, the sun disk, and the tablita as belonging to the Pueblo; none of the three items had been released to anyone in accordance with Jemez Pueblo tribal law. All three items were considered religious and cultural objects bearing significant ritual status.

Based on these facts, Kramer was charged on June 6, 1996 with violating 16 U.S.C. §§ 703, 707(a), and 707(b)(2) (Migratory Bird Treaty Act) (Counts I and IV); 18 U.S.C. § 1170 and 25 U.S.C. §§ 3001(3)(D) and 3002(c) (Illegal Trafficking in Native American Items) (Counts II-III); and 16 U.S.C. § 668 (Bald and Golden Eagle Act) (Count V). Kramer's original counsel withdrew shortly after arraignment, and on August 1, 1996, the district court appointed Kramer another attorney. Between August 1996 and January 1997, the case was set once for a change of plea hearing, and was thereafter set for trial five times, the last date set for January 13, 1997. During that period, Kramer's second counsel, Armando Torres, filed three motions to suppress and submitted both voir dire questions and jury instructions. Torres also moved to withdraw as counsel in November 1996 on grounds that the attorney-client relationship had collapsed. The trial court denied Torres' motion to withdraw because no other attorney could be found who could try the case by January 1997.

On January 8, 1997, a superseding indictment was returned, adding language regarding the bird feathers relevant to Count I. Kramer was arraigned on the superseding indictment on January 13, 1997, the same date his case was set for hearing on his motions and for trial. However, instead of proceeding to trial, Kramer entered a plea of guilty to Count II of the superseding indictment, which charged him with a misdemeanor violation of 18 U.S.C. § 1170 (illegal trafficking in Native American cultural items). As part of the plea agreement, all remaining counts were dismissed.

During the trial court's inquiry pursuant to Fed.R.Crim.P. 11, Kramer was asked whether he had taken any narcotic drugs or medications before the hearing. Kramer testified Q. All right. You don't dispute that these were sacred objects that you were offering for sale at the Antique Mall?

that he had taken Percodan, ¹ but acknowledged that this medication did not impair his ability to understand the proceedings. He further testified that he understood his right to a trial, that he understood the charge and had discussed it with his attorney, and that he was willing to waive his rights associated with a trial. As the trial court proceeded with its Rule 11 protocol, the following exchange took place between the court and Kramer:

A. Patrimony items, as opposed to sacred, I believe.

Q. You don't dispute they were patrimony items?

A. I believe anything handled by or touched or offered by a Native American is "quote" from their society, and, therefore, their spiritual realm has context to each and every item, whether it be contemporary or 200 years old. It doesn't make any difference.

Q. All right. I sense some doubt. Do you in any way have any reservations about pleading guilty to this charge? You need to plead guilty voluntarily and knowingly. I don't want you to be coerced or plead guilty if you don't think you are guilty. If you want to go to trial, you have the right to do that. You understand?

A. Under the circumstances, it wouldn't behoove the Government or myself to proceed outside of my plea of guilty.

Q. So you wish to plead guilty to Count II?

A. Yes.

Q. I will accept the plea of guilty and enter a judgment thereon. I'll find that the plea is free and voluntarily made. The defendant understands the charges and the penalties, and the plea agreement has been properly executed and it will be filed.

(Plea Tr. at 16-17.)

Following the plea hearing, Torres was allowed to withdraw as defense counsel, and counsel from the Federal Public Defender's office was appointed for sentencing, which was scheduled for June 20, 1997.

On June 17, 1997, newly appointed counsel filed, at Kramer's direction, a Motion to Withdraw Plea pursuant to Fed.R.Crim.P. 32(e), asserting that the guilty plea had been involuntary. The grounds for the motion were set forth in a document written by Kramer, which stated that (1) federal and state laws failed to address the charge to which he pleaded guilty as a criminal offense; (2) federal and state laws failed to assess a penalty for violation of the charge to which he pleaded guilty; (3) the sentence contemplated by the plea agreement was unauthorized; (4) his plea was involuntary because of extreme duress, a serious illness at the time of the plea, and the coerciveness inherent in counsel's failure to prepare a defense.

On June 20, 1997, the district court heard testimony from Kramer in support of his motion to withdraw, as well as oral argument from counsel. Kramer testified that he had been so ill during the plea hearing that he had not known "in-depth" what was happening; that he had been "a zombie" and "just could see what was in front of [him]." To corroborate his claim, Kramer testified that he was taking several medications on the plea date (including an antibiotic, an antihistamine, and a steroid) and that he had gone to Santa Fe immediately after the plea to see a doctor. He also noted that he had been allowed to sit throughout the plea proceedings, ostensibly because of his weakened condition. Counsel pointed to the presentence report, in which Kramer had reported to the probation officer that his health was "terrible," that he suffered from bronchial asthma, that he had a chest infection, and that he was taking several medications.

Kramer further testified that he had experienced difficulties with Torres, his (second) court-appointed counsel, in that Torres had failed to return phone calls, failed to perform legal research and present arguments that Kramer felt were relevant to his case, and Other than his testimony during the hearing on his withdrawal motion, Kramer offered no evidence in support of his arguments that he had been unable to comprehend the ramifications of his plea or that his counsel had been ineffective.

failed to investigate the facts of his case before trial.

The government opposed Kramer's motion, contending that it had been prepared to go to trial on January 13, 1997, and that recalling witnesses, including one from out of state, would create some inconvenience. The government further objected that Kramer's delay in filing his motion to withdraw until three days before sentencing was inexplicable and prejudicial to the government.

The district court ruled that Kramer's plea had been knowing and voluntary, and that Kramer had received the assistance of competent counsel. Noting that one prior plea hearing had been vacated, and that the case had been set for trial five times, the court concluded that Kramer was "attempting to play yo-yo with the court" and "trying to perpetrate an injustice on the judicial system." The court found that allowing Kramer's motion to withdraw his plea and proceed to trial would be prejudicial to the government, an inconvenience to the court, and a waste of judicial resources. It therefore denied Kramer's motion to withdraw his plea and sentenced Kramer to three years' probation.

DISCUSSION

Kramer argues on appeal that his plea was entered involuntarily due to a combination of his extreme illness and his counsel's ineffective representation. He submits that, given his testimony with respect to these two issues, the trial court should have allowed him to withdraw his plea.

A. Voluntariness of the guilty plea

We review the voluntariness of a guilty plea de novo. United States v. Carr, 80 F.3d 413, 416 (10th Cir.1996). The test for determining the validity of a guilty plea is " 'whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' " Id. (quoting Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

The record simply does not support Kramer's claim that his decision to plea was less than a voluntary and intelligent choice. Kramer signed a plea agreement in which he agreed to plead guilty to a misdemeanor violation in exchange for the government's agreement to dismiss the remaining counts. The trial court conducted a thorough inquiry at Kramer's plea hearing, during...