U.S. v. Redig, 93-2097

• Decision Date: 17 June 1994
• Docket Number: No. 93-2097,93-2097
• Citation: 27 F.3d 277
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard F. REDIG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 277

27 F.3d 277

UNITED STATES of America, Plaintiff-Appellee, v. Richard F. REDIG, Defendant-Appellant.

No. 93-2097.

United States Court of Appeals, Seventh Circuit.

Argued March 30, 1994.

Decided June 17, 1994.

Debra Riggs Bonamici (argued), Crim. Div., Barry R. Elden, Asst. U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Jonathan M. Minkus (argued), Skokie, IL, for defendant-appellant.

Before POSNER and MANION, Circuit Judges, and REYNOLDS, District Judge. ^*

REYNOLDS, District Judge.

Richard Redig ("Redig") appeals his conviction and sentence on a charge of bank robbery, the result of a guilty plea Redig says he should have been permitted to withdraw. For reasons set forth below, we affirm the conviction but vacate the sentence and remand for resentencing.

I. Background

The indictment against Redig alleged that he and three others met on August 7, 1991, to plan the robbery of a branch office of the Suburban National Bank of Palatine. At the meeting, Redig is alleged to have given his co-conspirators a "schematic" of the branch office's layout as well as information about its security system--information which Redig had obtained, ironically, through his efforts to sell the branch a new set of security cameras. The day after the meeting, according to the indictment, Redig's co-conspirators robbed the branch office of about $80,000 through the threatened use of firearms, pursuant to the plan agreed upon at the meeting. (Redig, meanwhile, pitched his cameras at the bank's main office.) The indictment charged Redig and two of his co-conspirators with bank robbery, in violation of 18 U.S.C. Sec. 2113(a), and bank robbery through the use of a dangerous weapon, in violation of 18 U.S.C. Sec. 2113(d).

On August 21, 1992, Redig agreed to plead guilty to the portion of the indictment alleging a violation of 18 U.S.C. Sec. 2113(a), in exchange for the government's agreement to dismiss the other charges against Redig and to strike from the indictment its reference to "use of a dangerous weapon, namely two handguns," upon which the alleged violation of 18 U.S.C. Sec. 2113(d) had been based. The agreement also included various provisions relevant to sentencing, among them the stipulation that the parties were free to disagree over whether certain sentencing adjustments applied.

At a hearing held the day the agreement was signed, Redig was advised of, and said he understood, the nature of the charge against him, the rights he would have enjoyed had the case gone to trial, his maximum possible sentence, and the various provisions of the plea agreement. Redig also was asked whether each of the allegations contained in the portion of the indictment to which he pleaded guilty was true. The district court recited each of the allegations, phrasing them as questions (e.g., "In the early evening of August 7th, 1991, at a park in Arlington Heights, did you meet with your codefendants ... to plan the execution of the bank robbery?"), and usually Redig simply responded, "Yes, sir."

On a few points, however, he elaborated. When asked, for example, whether he provided his co-conspirators with information about the bank's security system, he said that he told them of the existence of a security system but not of the details of its operation, because he was not familiar with those details. When asked whether the conspirators had determined at their meeting who would enter the bank and who would drive the getaway car, Redig responded that that had not been determined, but that he knew who one of those entering the bank would be.

After Redig had admitted to each of the allegations contained in the relevant portions of the indictment, the court stated its findings that Redig was competent to plead guilty and that his plea was knowing, voluntary, and supported by fact. The court then accepted the plea.

On September 3, 1992, during his initial presentence investigation interview, Redig told his probation officer a somewhat different story of his involvement in the bank robbery. He still acknowledged meeting with the other three on August 7, 1991, and providing them with a schematic of the Bank of Palatine, but now he insisted that he did so only because he assumed they were joking about robbing the bank. It came as a great surprise, he said, when he heard about the robbery on the news the next day.

Then, on November 13, 1992, Redig provided his probation officer with a six-page, single-spaced, typewritten statement in which he denied attending the August 7, 1991 meeting and denied supplying his alleged co-conspirators with information about the bank. According to the statement, one of the co-conspirators, a long-time acquaintance, had called Redig to request such information, but Redig refused his request and tried to discourage him from carrying out the robbery. Redig confessed he was wrong to have failed to alert the police after receiving the call, but he claimed he was guilty of nothing more.

On December 15, 1992, Redig filed a motion for leave to withdraw his guilty plea. According to the motion, Redig had entered the plea only because the government's disclosure of a mass of evidence shortly before trial and the thought of spending many years in prison had rendered him "extremely overwhelmed and overwrought," so much so that "he ceased to function rationally or coherently." The motion further alleged that Redig "persists in his claim that he is innocent of the charges in the indictment."

Without having held a hearing, the district court denied Redig's motion in an order issued March 10, 1993. The court found that Redig, contrary to his assertion, had not seemed overwhelmed or overwrought at the acceptance-of-plea hearing but rather had appeared to understand the questions, had "answered coherently," and had been "fluent, responsive, and forthright." The court further noted that at the hearing Redig had "made specific factual representations regarding the crime alleged ... thus tending to negate his subsequent claims of non-involvement."

Background relevant to sentencing is discussed below.

II. Analysis

A. Withdrawal of Plea

The district court's refusal to allow withdrawal of Redig's guilty plea is reviewed for abuse of discretion. United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir.1992). Under Rule 32(d), Fed.R.Crim.P., if a motion for leave to withdraw a plea is made before sentencing, the motion "may" be granted "upon a showing by the defendant of any fair and just reason." Redig contends he satisfied this standard by persistently claiming innocence before and after pleading guilty and by offering a reasonable explanation for why he pleaded guilty. If these factors did not automatically justify withdrawal of the plea, Redig contends, they at least entitled him to a hearing.

A hearing on a motion to withdraw a plea is to be "routinely granted" if the movant offers any "substantial evidence that impugns the validity of the plea." United States v. Fountain, 777 F.2d 351, 358 n. 3 (7th Cir.), cert. denied, 475 U.S. 1029, 106 S.Ct. 1232, 89 L.Ed.2d 341 (1986). But if no such evidence is offered, or if the allegations advanced in support of the motion "are mere conclusions or are inherently unreliable," the motion may be denied without a hearing. Id. at 358; United States v. Caban, 962 F.2d 646, 649 (7th Cir.1992). Further, if the allegations set forth in the motion contradict statements made by the defendant at an acceptance-of-plea hearing which satisfied the requirements of Rule 11, Fed.R.Crim.P., the allegations must overcome the "presumption of verity" that attaches to such statements. Id.; United States v. Trussel, 961 F.2d 685, 689-90 (7th Cir.1992).

Redig contends the district court should have discounted the admissions he made during his acceptance-of-plea hearing because they consisted almost entirely of monosyllabic responses to the court's leading questions, and when they went beyond that, they suggested he was not as involved in the robbery as the plea agreement made him out to be. We disagree. The district court was within its discretion to conclude that Redig's specific, narrative responses to certain questions confirmed, rather than called into doubt, the voluntary and knowing nature of his brief responses to the other questions. As Redig has identified no other element of his Rule 11 hearing that was lacking, the admissions he made during the hearing are presumed true.

There was no abuse of discretion, furthermore, in the district court's conclusion that this presumption was not overcome by the allegations offered in support of Redig's motion. Having been in an excellent position to observe Redig at the acceptance-of-plea hearing, the district court was permitted to conclude on the basis of Redig's demeanor at the hearing that his claim of having "ceased to function rationally or coherently" at the time of the hearing was not credible. See Caban, 962 F.2d at 649-50; United States v. Seavoy, 995 F.2d 1414, 1421 (7th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 407, 126 L.Ed.2d 354 (1993). Redig contends that had he been granted a hearing on his motion, he would have supported his claim with the testimony...