U.S. v. Suter

• Decision Date: 14 February 1985
• Docket Number: No. 84-1198,84-1198
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard W. SUTER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 523

755 F.2d 523

UNITED STATES of America, Plaintiff-Appellee, v. Richard W. SUTER, Defendant-Appellant.

No. 84-1198.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 20, 1984.

Decided Jan. 17, 1985.

Rehearing and Rehearing In Banc Denied Feb. 14, 1985.

Daniel C. Murray, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Gordon James Arnett, Chicago, Ill., for defendant-appellant.

Before BAUER, WOOD and COFFEY, Circuit Judges.

COFFEY, Circuit Judge.

Defendant Richard W. Suter was convicted in the United States District Court for the Northern District of Illinois of mail fraud and was sentenced to a term of imprisonment of one year, followed by five years probation, conditioned upon, among other things, his payment of restitution in the amount of $67,800. Suter appeals. We affirm the district court's judgment of conviction and sentence.

On August 10, 1982, Richard W. Suter was charged in a 23-count indictment alleging mail fraud. 18 U.S.C. Sec. 1341. In essence, the indictment charged that Suter had engaged in a fraudulent scheme to obtain monies through the mails from individuals wishing to acquire rare coins. Through advertisements which ran in a newsletter he published, Suter offered his services as a broker, stating that upon receipt of a pre-paid order, he would purchase coins and ship them to the customer. However, in many instances, Suter would either fail to provide coins or refunds to customers, sending them letters containing false representations as to why their orders had not been filled, or refunds returned, in order to retain their money. Pursuant to a written plea agreement entered into with the government, Suter agreed to plead guilty to Counts 3 and 15 of the indictment in return for the government's promise to dismiss the remaining counts and make no recommendation to the court concerning what sentence or fine to impose. Following a lengthy hearing held on June 24, 1983, the court accepted Suter's plea and entered a finding of guilt and judgment of conviction as to Counts 3 and 15. Several months later, following extensive plea negotiations between Suter and the government, Suter agreed to make restitution in the amount of $67,830.34 to the victims of his coin brokerage scheme. However, one week before his scheduled sentencing on January 24, 1984, Suter filed a motion to withdraw his guilty plea. The government in response opposed the motion, and on January 24, 1984, after a hearing, the district court denied Suter leave to withdraw his plea, sentenced him to one year imprisonment on Count 3 and suspended imposition of sentence on Count 15, placing him on probation for a period of 5 years to run consecutively with the sentence in Count 3. As special conditions of probation, Suter was ordered to make restitution in the amount of $67,800 and not deal in coins. Suter appeals from his sentence and conviction.

Suter charges that the district court, in accepting his plea of guilty, failed to comply with the requirements of Fed.R.Crim.P. 11 in three aspects. Suter contends the record does not demonstrate that he understood the nature of the charges against him, that he was adequately instructed as to the consequences of his plea, and that a factual basis for the plea was established. On a direct appeal of a conviction arising from a guilty plea, any noncompliance with Rule 11 requires reversal. United States v. Frazier, 705 F.2d 903, 907 (7th Cir.1983) (per curiam). Suter's bald assertions to the contrary notwithstanding, the record of the plea hearing amply demonstrates that Suter understood the nature of the charges he faced and that a factual basis existed for his plea. Suter was represented by counsel and impressed the court as "a person of superior understanding and intelligence." The written plea agreement, which Suter acknowledged he had read and signed, set out in great detail the overall scheme to defraud, involving use of the mail, and the particular facts of Counts 3 and 15 of the indictment. Moreover, both Counts 3 and 15 were meticulously described, explained and admitted to by Suter during his plea hearing. The letters which gave rise to Counts 3 and 15 were produced. After examining them, Suter acknowledged having authorized both their drafting and mailing, and admitted to the court that "there was a scheme to defraud people by taking their money and not delivering coins or refunds." Expressing surprise that his mail fraud conviction led to the imposition of treble damages in a related civil action, Suter also contends the district court failed to adequately inform him of the consequences of his guilty plea. Suter misconstrues Rule 11. A defendant is entitled to be informed of the direct, not all the collateral, consequences of his plea. George v. Black, 732 F.2d 108, 110 (8th Cir.1984). Compliance with this rule requires the sentencing court to explain to the defendant the definite, immediate and automatic consequences of his plea, id. at 110, and does not require a defendant be advised of the range of civil penalties or judgments he may face as a consequence of his plea. Holding that Suter's attack on the validity of his plea to be without merit, we turn to an examination of the correctness of the district court's denial of Suter's motion for leave to withdraw his plea.

Rule 32(d) of the Federal Rules of Criminal Procedure permits a defendant to withdraw a plea of guilty before sentence is imposed upon a showing to the court of "any fair and just reason." Whether the request will be granted or denied, however, " 'is within the sound discretion of the trial court and will not be reversed except upon an abuse of that discretion.' " United States v. Thompson, 680 F.2d 1145, 1151 (7th Cir.), cert. denied, 459 U.S. 1089, 103 S.Ct. 573, 74 L.Ed.2d 934 (1982), quoting, United States v. Wright, 407 F.2d 952, 954 (7th Cir.1969). The trial court's findings on this issue will be upheld unless "clearly erroneous." United States v. Michaelson, 552 F.2d 472, 475 (2d Cir.1977); United States v. Fellus, 573 F.Supp. 615, 618 (S.D.N.Y.1983). In concluding that Suter had failed to present any reason which would allow the withdrawal of his plea, the district court made the following findings, each of which we hold not to be clearly erroneous: a great deal of precious court time was spent on Suter's plea; it was entered by Suter with full knowledge of the facts, with fair warning of the consequences and with exhaustive reflection on the part of Suter and his counsel; the government has neither said or done anything which would constitute a sentence recommendation in breach of its plea agreement with Suter to make no recommendation; and Suter's present motion to withdraw his plea is obviously motivated by the civil consequences in the form of treble damages in related civil litigation. After apprising the court, during the course of a hearing held on October 21, 1983, of relevant factual information it possessed as to Suter's financial and business affairs and its potential impact on the restitution rights of the individuals Suter defrauded, ¹ the government prosecutor went on to point out various sentencing alternatives the court could impose in protecting the victims. In doing so, however, the government expressed no position as to what sentence should be imposed. Rather, the government's comments were motivated by its responsibility ² to the victims of Suter's fraudulent scheme. Consistent with this responsibility and in fulfillment of its promises under the plea agreement, the prosecutor properly limited ³ her statements to an exploration of the range of sentencing options available to the court which would enhance Suter's payment of restitution. We find the comments were an adjunct to, and in compliance with, the court's request for the parties to work out an agreement on restitution, and not tantamount, as Suter contends, to a sentence recommendation by the government. Given the great care with which Suter's plea was accepted, in addition to the lapse of almost seven months from the time the plea was entered to his motion for withdrawal, Suter's conclusory reassertion of innocence falls far short of the "fair and...