U.S. v. Spencer

• Decision Date: 31 December 1987
• Docket Number: No. 87-3373,87-3373
• Citation: 836 F.2d 236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory Angelo SPENCER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 236

836 F.2d 236

UNITED STATES of America, Plaintiff-Appellee, v. Gregory Angelo SPENCER, Defendant-Appellant.

No. 87-3373.

United States Court of Appeals Sixth Circuit.

Argued Oct. 16, 1987.

Decided Dec. 31, 1987.

Stewart I. Mandel, Anthony J. Bondra (argued), Cleveland, Ohio, for defendant-appellant.

Richard Lillie, Asst. U.S. Atty., Cleveland, Ohio, James V. Moroney, Gregory Sasse (argued), for plaintiff-appellee.

Before JONES and BOGGS, Circuit Judges, and PECK, Senior Circuit Judge.

NATHANIEL R. JONES, Circuit Judge.

Defendant-appellant Gregory Angelo Spencer appeals the order denying his motion to withdraw his guilty plea to the offense of bank robbery. For the reasons set forth below, we affirm.

Spencer was indicted on September 22, 1986 by a federal grand jury. The indictment set forth three counts: Count I charged a conspiracy to commit bank robbery under 18 U.S.C. Secs. 371 and 2113(a) (1982); Count II charged aiding and abetting a bank robbery in violation of 18 U.S.C. Secs. 2 (1982) and 2113(a); and Count III charged interstate travel with intent to further unlawful activity (bank robbery) in violation of 18 U.S.C. Sec. 1952 (1982). The case was assigned to United States District Court Judge Alice M. Batchelder. During proceedings which occurred immediately prior to and subsequent to the return of the indictment, Spencer was represented by court-appointed counsel.

Approximately 10 days prior to the scheduled trial date of December 22, 1986, Spencer presumptively agreed to accept a plea bargain. A hearing was then scheduled for December 12, 1986. Before the hearing, however, Spencer changed his mind and refused to enter a plea of guilty to any of the charges. Instead, he requested that his counsel, Stephen Walker, withdraw from the case and new counsel be appointed. These motions were granted by the court and the trial was reset. After a motion for continuance was made by Spencer and granted, the trial was scheduled for March 9, 1987.

Spencer, however, again indicated a desire to change his plea and a hearing was scheduled. On February 25, 1987, before United States District Court Judge John M. Manos, sitting for Judge Batchelder, Spencer entered a guilty plea to Count II of the indictment. The Rule 11 agreement essentially provided that the other counts would be dismissed and an eight-year term of imprisonment would be imposed, to be served concurrently with a five-year sentence previously imposed upon Spencer by United States District Court Judge Ann Aldrich in Case Number CR 81-162. After fully complying with Fed.R.Crim.P. 11(c), Judge Manos posed the following question to Spencer:

THE COURT: Has anyone promised you anything or threatened you in any way to enter a plea of guilty?

THE DEFENDANT: No.

J. App. at G 3. After having the Rule 11 agreement read into the record, Judge Manos then inquired:

THE COURT: Did you on or about the 15th day of February, 1985, Mr. Spencer, in the Northern District of Ohio, aided and abetted by another not indicted in this case, by force, violence, and intimidation, take and willfully cause to be taken from the person and presence of Frank Ottobre, manager, Ameritrust Bank, 2132 Brookpark Road, Cleveland, Ohio, the sum of $70,340 in money which was the property of the said Ameritrust Bank, the deposits of which were then insured by the Federal Deposit Insurance Corporation, in violation of Title 18, Sections 2113(a) and 2, United States Code? Did you commit the offense charged in the second count of the indictment?

THE DEFENDANT: Yes, I did.

J. App. at G 4-5.

On March 26, 1987, a sentencing hearing was scheduled for April 9, 1987. On April 2, 1987, Spencer filed a motion to withdraw his guilty plea pursuant to Fed.R.Crim.P. 32(d). Spencer's motion specifically asserted that he claimed "not to be guilty of any crime" and that his guilty plea had been entered under duress. The basis for the claim of duress was that Spencer had "a well-founded belief that either he or his family would be subjected to violence through the machinations of Thomas J. Carney--a nonindicted co-conspirator." The motion further stated that the existence of duress through the threat of violence had terminated with the suicide of Carney while in federal custody in Buffalo, New York. J. App. at H 2.

On April 9, 1987, the government filed its response to Spencer's motion. The government's basis for opposing Spencer's motion was fourfold:

(1) the motion had been filed solely for tactical reasons;

(2) the defendant had delayed the filing for at least one month after entering his plea;

(3) the defendant's entire course of conduct in the case, including one previous "change of mind" regarding a plea of guilty, undercut the good faith basis of his attempt to withdraw his plea and exposed the motion as yet another delaying tactic; and

(4) granting of the defendant's motion would prejudice the government, especially regarding witness availability.

J. App. at I 4-5.

At the hearing on Spencer's motion to withdraw his guilty plea, conducted on April 9, 1987, the following exchange took place:

THE COURT: Mr. Spencer, what is your reason for wanting to withdraw your plea?

THE DEFENDANT: Well, I was scared. He threatened to do bodily harm to members of my family because he thought I had told on him and told things he had done.

THE COURT: When were these threats made?

THE DEFENDANT: They have been made ever since the end of '81, and all in 1985 and 1986, through this period of time they have been made upon my life and members of my family.

THE COURT: You were aware, Mr. Spencer, were you not, that Mr. Carney was in fact incarcerated?

THE DEFENDANT: Yes, but there was things going on--no bodily harm, but people were paying visits to people and notes were being left, and there were things going on that kept me afraid if I didn't do things like he wanted, then something would be done to me.

THE COURT: Anything else you want to tell the Court at this time, Mr. Spencer?

THE DEFENDANT: No, your Honor.

J. App. at O 3-4.

After hearing from the government and defense counsel, the court denied Spencer's motion and sentenced him pursuant to the terms of the Rule 11 agreement, thereby dismissing Counts I and III of the indictment. Spencer filed a timely notice of appeal on April 17, 1987.

I.

"It is well settled that the withdrawal of a guilty plea prior to sentencing is not an absolute right but is a matter within the broad discretion of the district court." United States v. Kirkland, 578 F.2d 170, 172 (6th Cir.1978) (per curiam). See also United States v. Usher, 703 F.2d 956, 959 (6th Cir.1983); United States v. Coure, 632 F.2d 665, 666 (6th Cir.1980) (per curiam).

The decision of the district court to deny a motion for plea withdrawal should be sustained unless the court has abused its discretion. Doherty v. American Motors Corp., 728 F.2d 334, 338 (6th Cir.1984). In United States v. Michaelson, 552 F.2d 472, 475 (2d Cir.1977), the Second Circuit Court of Appeals held that the trial judge's determination "on whether [the] defendant has met his burden [of satisfying the judge that there are valid grounds for plea withdrawal] will be reversed 'only if clearly erroneous.' " (quoting United States v. Lombardozzi, 436 F.2d 878, 881 (2d Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1379, 28 L.Ed.2d 648 (1971)).

Spencer's motion to withdraw his guilty plea is governed by Fed.R.Crim.P. 32(d). Rule 32(d) provides:

(d) Plea Withdrawal. If a motion for withdrawal of a plea of guilty or nolo contendere 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.

(Emphasis added). The Notes of (the) Advisory Committee on Rules, Federal Criminal Code and Rules (West 1987), relative to the 1983 amendment to Rule 32(d), provide guidelines as to the standard set out in the Rule.

Although 'the terms "fair and just" lack any pretense of scientific exactness,' United States v. Barker, [514 F.2d 208 (D.C.Cir.1975) ] ... guidelines have emerged in the appellate cases for applying this standard. Whether the movant has asserted his legal innocence is an important factor to be weighed, United States v. Joslin, 434 F.2d 526 (D.C.Cir.1970), as is the reason why the defenses were not put forward at the time of original pleading. United States v. Needles, 472 F.2d 652 (2d Cir.1973). The amount of time which has passed between the plea and the motion must also be taken into account.

A swift change of heart is itself strong indication that the plea was entered in haste and confusion.... By contrast, if the defendant has long delayed his withdrawal motion, and has had the full benefit of competent counsel at all times, the reasons given to support withdrawal must have considerably more force.

United States v. Barker, supra.

If the defendant establishes such a reason, it is then appropriate to consider whether the government would be prejudiced by withdrawal of the plea.

Notes of (the) Advisory Committee at 110.

II.

There are several factors a district court may consider when evaluating whether a defendant has established a "fair and just" reason to withdraw his guilty plea. These factors, set out above, are also enumerated in United States v. Triplett, 828 F.2d 1195, 1197 (6th Cir.1987).

One factor is the length of time between the entry of the guilty plea and the filing of the motion to withdraw it. United States v. Roberts, 570 F.2d 999 (D.C.Cir.1977); United States v. Barker, 514 F.2d 208 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). In Roberts, the D.C. Circuit Court of Appeals permitted the defendant to withdraw his guilty plea, noting "the courts look with particular favor on 32(d) motions made--as this one was--within a few days after the initial pleading." Roberts, 570...