U.S. v. Loughery, s. 87-3103

• Decision Date: 27 July 1990
• Docket Number: 89-3094,Nos. 87-3103,s. 87-3103
• Citation: 908 F.2d 1014,285 U.S. App. D.C. 255
• Parties: UNITED STATES of America v. Rosemary LOUGHERY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1014

908 F.2d 1014

285 U.S.App.D.C. 255

UNITED STATES of America v. Rosemary LOUGHERY, Appellant.

Nos. 87-3103, 89-3094.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 21, 1990.

Decided July 27, 1990.

Appeals from the United States District Court for the District of Columbia.

Edward F. Borden, Jr., Philadelphia, Pa., for appellant.

Eric M. Acker, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty., and John R. Fisher and Lisa A. Gok, Asst. U.S. Attys., were on the brief, for appellee.

Before BUCKLEY, Circuit Judge, ROBINSON, Senior Circuit Judge, and WILLIAM H. TIMBERS, ^* Senior Circuit Judge for the Second Circuit.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Rosemary Loughery appeals the district court's denial of her pre- and post-sentencing motions to withdraw her plea of guilty to one count of conspiracy to violate the Arms Export Control Act. We hold that the district court did not abuse its discretion when it denied Loughery's pre-sentence motion to withdraw her plea. We find, however, that Loughery was deprived of effective assistance of counsel. We therefore reverse the district court's denial of Loughery's post-sentence motion.

I. BACKGROUND

On May 26, 1987, Loughery and a co-defendant, Kevin Paul Gilday, were charged in a ten-count indictment with one count of conspiracy to export arms to Syria in violation of the Arms Export Control Act, 22 U.S.C. Sec. 2778 (1988), and with nine counts of mail and wire fraud in violation of 18 U.S.C. Secs. 1341, 1343 (1988) ("mail fraud counts"). The mail fraud counts each alleged that the defendants devised and attempted to execute a scheme "to defraud the United States of the right to conduct its lawful business affairs and implement the foreign policy of the United States of America free from stealth, chicanery, false statements, fraud and deceit." At her arraignment, on June 25, 1987, Loughery entered a plea of not guilty.

Prior to her indictment, Loughery received an unsolicited plea bargain proposal from the government, which she rejected. After her arraignment, Loughery and her attorney, Francis Hartman, met with the prosecutor, Assistant United States Attorney Biros. Biros again proposed a plea bargain under which Loughery would plead guilty to the conspiracy count and cooperate with the government's prosecution of her co-conspirators in exchange for the dismissal of the nine mail fraud counts and a promise from the prosecutor that he would not refer her case for prosecution in other jurisdictions or to the Criminal Tax Division of the Department of Justice. After receiving written confirmation of Biros's offer on July 23, 1987, Loughery met with Hartman to discuss it. Hartman advised Loughery that although she had steadfastly maintained that she was innocent, there was no guarantee that she would be acquitted at trial and that pleading to one count out of ten would significantly reduce her "exposure" to the possibility of a long prison term. On Hartman's recommendation, she accepted the proposed plea bargain.

Loughery was represented at the change-of-plea proceeding, which was held on August 7, 1987, by Hartman's associate, Nancy Smith. Smith later testified that she had accompanied appellant to the hearing and was persuaded that at that time, "she very much still believed that she was innocent, that she had done nothing wrong, but that she had made a decision to enter a plea." At the hearing, the judge asked Loughery whether she had entered into the conspiracy charged in the indictment, to which she answered "yes." The judge then asked her whether she agreed "in substance" with the government's proffer of evidence in the case, to which she also responded "yes." Immediately following the hearing, Loughery met with United States Probation Officer Conrad Harper. At this meeting, Loughery wrote a statement of her "version of what had happened," in which she effectively denied criminal liability and asserted her innocence.

Prior to these events, on June 24, 1987 (the day before Biros renewed his plea bargain proposal), the Supreme Court decided McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which held that the mail fraud statute reached only schemes defrauding a victim of money or property, and not "intangible rights." Thus, as the government concedes, under McNally the mail fraud counts in Loughery's indictment did not allege a crime. Hartman testified that he did not become aware of the McNally case until August 14, 1987, when he received a copy of Gilday's motion to dismiss the mail fraud counts on the basis of McNally, and that he had made no effort to advise Loughery of this development.

On September 11, 1987, Gilday pleaded guilty to the conspiracy count pursuant to a plea agreement in which the mail fraud counts were dismissed. Loughery learned of Gilday's plea agreement from a newspaper article. One week later, at a meeting with the prosecutors, she asked Biros why Gilday had been allowed to plead guilty to only one count. Biros explained that because of a change in the law that occurred on June 24, 1987, the government could no longer maintain the mail fraud counts against Gilday.

Upon learning of this, Loughery immediately tried to contact Hartman. According to the evidence, she called Hartman's office that evening (a Friday), but no one answered. She called again early Monday morning and spoke to Smith, as Hartman was on vacation in Europe. Loughery explained that she had learned that there had been some change in the law affecting her case and expressed regret at having entered a plea. Loughery was not able to get an appointment to see Hartman until October 13, 1987. At this meeting, Loughery and Hartman discussed the pros and cons of withdrawing her plea; Loughery told Hartman that she wished to withdraw it, but acquiesced in his recommendation that she wait until Gilday had been sentenced before making a final decision.

On October 27, 1987, Gilday received a prison sentence of twenty months to five years. Hartman did not move to withdraw Loughery's plea until November 3, 1987, the date set for her sentencing (the "pre-sentence motion"). The court requested briefing. On November 24, 1987, the court made the following observations before denying her motion:

The court notes that even though she told the probation officer she was innocent, the defendant made no attempt for several months to withdraw her plea as improvidently entered. She waited until her co-defendant had been sentenced to a substantial period of incarceration before doing so and, further, until the eve of her own sentencing.

The court finds that the motion to withdraw the plea of guilty is motivated by an apprehension that she will receive a like sentence, contrary to her hopes, although not through any expectations she was given by the government or by the court.

Hearing Transcript ("Tr.") at 6-7. The court sentenced her to two years in prison.

Loughery discharged Hartman, retained new counsel, and appealed the denial of her pre-sentence motion. That appeal was subsequently stayed to allow her to file a renewed motion to withdraw her plea (the "post-sentencing motion"). This motion asserted that her plea was entered without the benefit of effective assistance of counsel because Hartman had failed to apprise her of the McNally decision. The court denied the motion, holding that Hartman's performance had not fallen "below an ascertainable 'objective standard of reasonableness.' " United States v. Loughery, 723 F.Supp. 1527, 1530 (D.D.C.1989). Loughery now appeals both decisions denying her motions to withdraw her plea.

II. DISCUSSION

A. The Pre-Sentence Motion

Rule 32(d) of the Federal Rules of Criminal Procedure, as applicable to offenses committed prior to November 1, 1987, provides that

[i]f a motion for 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. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. Sec. 2255 [post-sentence relief].

A guilty plea thus may not be withdrawn as a matter of right, although withdrawal before sentencing is liberally granted. United States v. Russell, 686 F.2d 35, 38 (D.C.Cir.1982). Reversal of a district court's denial of a motion to withdraw a plea, however, is uncommon; such a denial will not be disturbed absent an abuse of discretion. United States v. McKoy, 645 F.2d 1037, 1038 (D.C.Cir.1981).

Considerations relevant to the exercise of this discretion include "the strength of the defendant's reason for withdrawing the plea, including whether [he] asserts his innocence," the possibility of prejudice to the government's case, and the length of time between the plea and the motion to withdraw. Russell, 686 F.2d at 39; United States v. Barker, 514 F.2d 208, 220-22 (D.C.Cir.) (en banc ), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Moreover, the fact that the defendant waited to withdraw her plea until after determining the tenor of the punishment meted out to co-defendants is a factor militating against allowing withdrawal. McKoy, 645 F.2d at 1040 & n. 3.

Loughery entered her plea on August 5, 1987, but did not move to withdraw it until November 3, 1987, nearly three months later. During this time, her co-defendant Gilday pleaded guilty to the same conspiracy count and was sentenced to a substantial term of imprisonment: twenty months to five years. Hartman explicitly advised Loughery to wait and see what sentence was imposed on Gilday before deciding whether to stand by her plea. Although she wanted to withdraw her plea after she learned of McNally, she acquiesced in Hartman's recommendation. It is true that Loughery asserted her innocence both in her pre-sentence motion and at her meeting with the probation officer, and the...