U.S. v. Nichols

• Decision Date: 25 February 1993
• Docket Number: Nos. 92-2964,92-2966,s. 92-2964
• Citation: 986 F.2d 1199
• Parties: UNITED STATES of America, Appellee, v. Frank Christian NICHOLS, Appellant. UNITED STATES of America, Appellee, v. Michael CHAMBLISS, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1199

986 F.2d 1199

UNITED STATES of America, Appellee, v. Frank Christian NICHOLS, Appellant.

UNITED STATES of America, Appellee, v. Michael CHAMBLISS, Appellant.

Nos. 92-2964, 92-2966.

United States Court of Appeals Eighth Circuit.

Submitted Jan. 15, 1993.

Decided Feb. 25, 1993.

Rehearing Denied in No. 92-2966

April 23, 1993.

Rehearing Denied in No. 92-2964

April 26, 1993.

J. Blake Hendrix, Little Rock, AR, argued, for appellant Frank Nichols.

Q. Byrum Hurst, Jr., Hot Springs, AR, argued, for appellant Michael Chambliss.

Kevin T. Alexander, Asst. U.S. Atty., Little Rock, AR, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, MORRIS SHEPPARD ARNOLD, Circuit Judge, and HAMILTON, ^* District Judge.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

In late 1991, Frank Nichols and Michael Chambliss each pleaded guilty in federal court to two counts of conspiracy to possess illegal drugs with intent to distribute. A third count was subsequently dismissed on motion of the government. In August, 1992, the trial court ¹ sentenced Mr. Nichols to 200 months of imprisonment and Mr. Chambliss to 91 months of imprisonment plus a $25,000 fine.

Each defendant appeals the trial court's refusal to allow him to withdraw his guilty plea. In addition, Mr. Nichols challenges various factual findings made by the trial court in determining the appropriate range for Mr. Nichols's punishment under the federal sentencing guidelines. We affirm the trial court in all respects.

I.

Under Fed.R.Crim.P. 32(d), the trial court may permit withdrawal of a guilty plea "upon a showing by the defendant of any fair and just reason." A defendant has no absolute right to withdraw a guilty plea. See, e.g., United States v. Boone, 869 F.2d 1089, 1091 (8th Cir.1989), cert. denied, 493 U.S. 822, 110 S.Ct. 81, 107 L.Ed.2d 47 (1989). We review a trial court's denial of a motion to withdraw a guilty plea under a standard of abuse of discretion. See, e.g., United States v. Morrison, 967 F.2d 264, 268 (8th Cir.1992).

The matters to be considered by a trial court with respect to a motion to withdraw a guilty plea are whether the defendant establishes a fair and just reason, whether the defendant asserts his innocence of the charge, the length of time between the guilty plea and the motion to withdraw it, and whether the government will be prejudiced if the court grants the motion. See, e.g., United States v. Boone, 869 F.2d at 1091-92. If the defendant fails to establish a fair and just reason for withdrawing the guilty plea, the trial court need not address the remaining considerations. See, e.g., United States v. Abdullah, 947 F.2d 306, 311 (8th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1969, 118 L.Ed.2d 569 (1992). We hold that the evidence specified by Mr. Chambliss as his reason for seeking to withdraw his guilty plea is at best only a source of impeachment material and does not constitute a sufficient reason in the circumstances of this case for allowing him to withdraw his guilty plea.

Mr. Chambliss moved at least twice to withdraw his guilty plea. In March, 1992, he asserted that his plea had been induced by a government promise to move for a downward departure from the federal sentencing guidelines and that the government had subsequently withdrawn that promise. The motion was referred to a magistrate. After a hearing, the magistrate recommended that the motion be granted and that Mr. Chambliss be allowed to withdraw his guilty plea. The trial court set a hearing to consider the motion, but on the day of the hearing both the government and Mr. Chambliss advised the court that the motion was moot.

Mr. Chambliss had two lawyers during the course of this case. The first one filed discovery motions, entered into plea negotiations with the government, and represented Mr. Chambliss when he pleaded guilty. A second lawyer entered an appearance in early 1992 and filed Mr. Chambliss's initial motion to withdraw his guilty plea. The first lawyer evidently withdrew around that time (the trial court records are vague on this point), probably because he was needed as a witness in the hearing on Mr. Chambliss's motion to withdraw his guilty plea. The second lawyer therefore represented Mr. Chambliss at the hearing on that motion and at sentencing, when Mr. Chambliss sought to withdraw his guilty plea the second time.

In testimony on the day of sentencing, the undercover government agent who was the primary witness against Mr. Nichols and Mr. Chambliss referred to a case synopsis sent to his superiors. That document states that "no deal was consummated and no arrests made"; that "[t]here appears no way to consummate the reverse sting operation" involving Mr. Nichols, Mr. Chambliss, and Stacy Elam, a third co-defendant; and that the case "will be considered closed." After this evidence was presented, Mr. Chambliss moved both orally and in writing to renew the motion to withdraw his guilty plea. He asserted, first, that the government had indicated that it would again decline to move for a downward departure; second, that the applicable guideline range had turned out to be much higher "than anyone expected" and failed to take into account Mr. Chambliss's "very limited involvement" in the offenses charged; third, that no agreement between the co-conspirators named in the indictment (Mr. Nichols, Mr. Chambliss, and Ms. Elam) had ever been reached and, therefore, that he was innocent as a matter of law of the conspiracies charged; and, fourth, that only during the sentencing hearing had Mr. Chambliss and his lawyer learned that the undercover government agent had "closed the case" with respect to Mr. Chambliss even before the indictment was filed.

Mr. Chambliss then refused to testify when called by the government as a witness against Mr. Nichols. At that point, the government moved in open court for a downward departure as to Mr. Chambliss (even though the sentencing being considered at that time was for Mr. Nichols) and stated that the motion would be renewed when the court took up the question of sentencing for Mr. Chambliss. The trial court subsequently rejected Mr. Chambliss's remaining arguments and denied his motion to withdraw his guilty plea.

On appeal, the only ground asserted by Mr. Chambliss in support of his motion to withdraw his guilty plea is that his plea was induced by the representations of his first lawyer to him that the government's case against him was strong. According to Mr. Chambliss, neither he nor his second lawyer knew until the day of sentencing, when the undercover government agent testified, that because no sale was ever made between the undercover government agent and the three defendants charged, the undercover government agent had closed the investigative file even before the indictment was issued. Mr. Chambliss now argues that if he had known that the undercover government agent had closed the investigative file, he never would have pleaded guilty.

Mr. Chambliss concedes that his first lawyer did receive in discovery materials the document revealing that the case against him had been closed. He contends, however, that he himself was unaware of the document and that his second lawyer was likewise unaware of it. He asserts, therefore, that his guilty plea was the result of mistake and that, under these circumstances, it was an abuse of discretion not to allow him to withdraw it.

It is true that the language in several cases alludes to mistake as a basis for allowing a defendant to withdraw a guilty plea. See, e.g., DeLeon v. United States, 355 F.2d 286, 289 (5th Cir.1966); United States v. Davis, 212 F.2d 264, 267 (7th Cir.1954); and Bergen v. United States, 145 F.2d 181, 187 (8th Cir.1944). Those cases, however, all deal with circumstances where a defendant did not understand the nature of the offense charged. See, e.g., DeLeon, 355 F.2d at 287 n. 1, 288 (defendant thought charge related to knowing people involved in illegal drug transactions; charge was actually receiving, hiding, and transporting illegal drugs); United States v. Davis, 212 F.2d at 266-68, 270 (defendant thought charge was conspiracy to commit drug offense; charge was actually hiding and selling illegal drugs); and Bergen, 145 F.2d at 183-86 (defendant thought charge was soliciting bankruptcy filings from farmers; charge was actually conspiracy to defraud government lending agencies by soliciting bankruptcy filings based on false appraisals of farm properties). It is clear from the transcript of the plea hearing that Mr. Chambliss understood the nature of the charges against him, and he does not argue otherwise on appeal.

Mr. Chambliss's argument is, instead, that he relied on his first lawyer's representations to him that the case against him was strong, that he had no independent knowledge that the undercover government agent had closed the investigative file, and that these circumstances present a "fair and just reason," see Fed.R.Crim.P. 32(d), for allowing him to withdraw his guilty plea. To the contrary, it is well settled that "the exercise of mistaken judgment by counsel is not ground to successfully assert involuntariness of a plea" sufficient to amount to a fair and just reason for later withdrawing it. United States v. Briscoe, 428 F.2d 954, 956 n. 3 (8th Cir.1970), cert. denied, 400 U.S. 966, 91 S.Ct. 378, 27 L.Ed.2d 386 (1970). See also United States v. Nigro, 262 F.2d 783, 787 (3d Cir.1959) (fact that defendant was "influenced by his counsel to plead guilty" not enough to justify withdrawal of plea).

Even characterizing as newly discovered evidence the document closing the investigative file offers Mr. Chambliss no relief in the circumstances of this case. The document does not reveal a defense previously unknown to Mr. Chambliss but at most, in our view, a source of impeachment material that could be used against the undercover government agent at a trial. See, e.g., United States v. Morrison, 967 F.2d at 268-69....