U.S. v. McKoy, 80-1831

• Decision Date: 23 February 1981
• Docket Number: No. 80-1831,80-1831
• Citation: 207 U.S. App. D.C. 112,645 F.2d 1037
• Parties: UNITED STATES of America v. Lucius McKOY, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1037

645 F.2d 1037

207 U.S.App.D.C. 112

UNITED STATES of America v. Lucius McKOY, Appellant

No. 80-1831.

United States Court of Appeals, District of Columbia Circuit.

Argued Jan. 29, 1981.

Decided Feb. 23, 1981.

Appeal from the United States District Court for the District of Columbia (Cr. 80-00049).

Ed Wilhite, Washington, D. C., (appointed by this Court) for appellant.

Darryl W. Jackson, Asst. U. S. Atty., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and Paul N. Murphy, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.

Before: MacKINNON, WILKEY and GINSBURG, Circuit Judges.

Opinion for the court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Lucius McKoy seeks to withdraw his pre-sentence guilty pleas to charges stemming from a bank robbery attempt and ensuing flight. Because we find no abuse of discretion in the District Court's denial of McKoy's motion, we affirm the judgment.

The episode that gave rise to the charges against McKoy occurred on October 18 1979. As alleged in the indictment filed on January 29, 1980, McKoy and two co-defendants, after attempting to rob a bank, fled by car and killed an elderly woman by striking her with the getaway automobile. McKoy, according to the Government's proffer, drove the car both to and from the scene of the attempted robbery. Specifically, McKoy and his co-defendants were charged with entering a bank with intent to commit a felony (18 U.S.C. § 2113(a)), killing a person while attempting to avoid apprehension for that crime (18 U.S.C. § 2113(e)), attempted robbery (D.C.Code § 22-2902), first-degree felony murder (D.C.Code § 22-2401), and second-degree murder (D.C.Code § 22-2403).

On April 14, 1980, McKoy entered pleas of guilty to the first two charges; pursuant to a plea bargain, the remaining counts were to be dismissed at the time of sentencing. After a hearing complying with the requirements of Fed.R.Crim.P. 11, ¹ District Judge Harold H. Greene accepted the guilty pleas and set May 23 as the sentencing date. On May 21 McKoy filed a pro se motion to withdraw his guilty pleas. Judge Greene held an evidentiary hearing on July 9 at the conclusion of which he denied the motion. Thereafter, on July 17, Judge Greene sentenced McKoy to imprisonment for twelve to forty-five years on the charge of killing a person while attempting to avoid apprehension. The remaining counts were ordered dismissed.

McKoy now asserts that his April 14, 1980, plea was not voluntary. He alleges that anti-anxiety medication he was using at the time, combined with pressure from a defense counsel who was not adequately prepared for trial, led him to enter the plea against his better judgment. He further maintains that he was not involved in the episode to which the indictment relates. In addition, he wishes to pursue an insanity defense. The Government responds that McKoy's original plea was a reasoned, tactical decision, one that removed from the case the risk of conviction on a felony murder charge. Further, the Government points to an intervening event. After McKoy's April 14 plea, on April 23, his co-defendants were sentenced. Although both had entered guilty pleas, cooperated with the Government, and agreed to testify against McKoy should he stand trial, they received substantial sentences. The Government suggests that McKoy could forecast from those sentences that his own would be heavier than he had anticipated.

Judge Greene was called upon to determine whether permitting McKoy to withdraw his plea would be "fair and just" taking into account the particular facts and circumstances his case presented. United States v. Barker 514 F.2d 208, 218-19 (D.C.Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Reversal of a trial court's ruling on a plea withdrawal motion is uncommon; absent abuse of discretion, an appellate court will not overturn a decision that the plea should stand. Id. at 219. We cannot conclude from the record before us that Judge Greene exceeded the limits of his discretion in determining, after a full airing of the matter, that McKoy made an uncoerced, reasoned choice in pleading guilty, and that the justifications asserted for withdrawing the plea are post hoc explanations rooted in fear of a substantial sentence. See Tr. 105-08.

McKoy does not assert that the hearing on his plea was conducted unfairly or without due regard for Rule 11 requirements. Nor was the withdrawal motion a swift attempt at retraction. McKoy's motion thus attracts no special solicitude as a prompt application or as a challenge to questionable hearing procedures. See United States v. Barker, supra, 514 F.2d at 219-20. On the other hand, McKoy emphasizes that the Government asserts no prejudice to its case should the motion be granted. ² We therefore focus on two questions: does McKoy now present a plausible defense to the charges against him, see Everett v. United States, 336 F.2d 979 (D.C.Cir.1964); does he supply a tenable explanation for withholding the alleged defense at the time of his original plea hearing. See United States v. Barker, supra, 514 F.2d at 221.

We need not dwell on McKoy's bare and belated assertion that he did not participate in the attempted robbery and did not operate the car that killed the elderly woman. Prior to the hearing on the plea withdrawal motion, McKoy never claimed he was not involved in the episode to which the indictment relates. Without a tenable explanation for his about-face, and in view of the Government's proffer to Judge Greene, we think it clear that the ruling below cannot be upset on this ground. If this tactic were successful, a guilty plea would indeed become "reversible at defendant's whim." Id.

McKoy's currently-pressed desire to defend on the basis of insanity raises a more substantial question. McKoy had a history of alcoholism and drug abuse. He had been diagnosed in the Veteran's Hospital in 1978 as suffering from schizophrenia and, at the time of the indictment here, he was receiving psychiatric treatment at the D. C. Institute of Mental Hygiene. He had been admitted to St. Elizabeths Hospital several times. Based on this history, his trial counsel, on March 25, 1980, successfully moved for a mental examination. The report of that examination from St. Elizabeths concluded that McKoy was not suffering from a mental disease or defect at the time of the offense. Although it appears that McKoy wished to be examined by private psychiatrists and so indicated in his pro se motion to withdraw his plea, his trial counsel had not pursued the matter. She reasoned that if an insanity defense were advanced, the Government could rebut it effectively by calling the psychiatrists from St. Elizabeths. In sum, the possibility of an insanity defense cannot be discounted as a "last minute fabrication" and Judge Greene did not so treat it.

However, the assertion of a legally cognizable defense, standing alone, does not impel a district court to permit withdrawal of a plea. United States v. Barker, supra, 514 F.2d at 221. Judge Greene did not purport to decide the merits of the proposed insanity defense. Cf. Gearhart v. United States, 272 F.2d 499, 502 (D.C.Cir.1959). Rather, he found no tenable explanation for McKoy's failure to advert in court to the possibility of an insanity...