U.S. v. Trott, 85-5307

• Decision Date: 06 December 1985
• Docket Number: No. 85-5307,85-5307
• Citation: 779 F.2d 912
• Parties: UNITED STATES of America, Appellee, v. Donald J. TROTT, Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 912

779 F.2d 912

UNITED STATES of America, Appellee, v. Donald J. TROTT, Appellant.

No. 85-5307.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Dec. 6, 1985.

Decided Dec. 23, 1985.

As Amended Jan. 2, 1986.

John M. Willard, Wilmington, Del., for appellant.

William C. Carpenter, Jr., U.S. Atty., Richard G. Andrews, Asst. U.S. Atty., Wilmington, Del., for appellee.

Before ADAMS, Acting Chief Judge and GIBBONS and HUNTER, Circuit Judges.

OPINION OF THE COURT

ADAMS, Acting Chief Judge.

John Donald Trott appeals from the district court's denial of his motion to withdraw a negotiated plea of guilty to a charge of operating a continuing criminal enterprise. Because there was an adequate factual basis for the plea and it was entered knowingly, and because Trott has offered no valid reason for withdrawing it, we will affirm.

Trott, a former leader of the Pagans motorcycle gang, was scheduled to proceed to trial January 21, 1985 on numerous controlled substance violations. He pleaded not guilty, and the court was convened as scheduled. As the district judge began to address the jury in preparation for voir dire, however, Trott elected to enter into a plea bargain previously offered by the government. With the court adjourned, from 10:55 a.m. to 12:05 p.m., Trott, his attorney, the assistant U.S. attorney and an FBI agent discussed the agreement, in which Trott was to plead guilty to operating a criminal enterprise in violation of 21 U.S.C. Sec. 848 (1982); the other charges were to be dropped. The government made no commitment to recommend a particular sentence. Trott then returned to court, and announced his plea of guilty. After conducting a colloquy with Trott, pursuant to Fed.R.Crim.Proc. 11, the court accepted the plea.

Two days later, Trott filed a pro se motion to withdraw his guilty plea. Subsequent motions to withdraw were filed by his counsel. After an evidentiary hearing, the trial judge declined to allow withdrawal of the plea, and at a later hearing sentenced Trott to 25 years in prison.

On appeal, Trott contends that his guilty plea was invalid under Rule 11 because there was an insufficient factual basis for it and because he lacked an adequate understanding of the law in relation to the facts of his case. Alternatively, he contends that the district court abused its discretion in refusing to permit withdrawal of the plea. Neither contention, however, is well supported.

Under Rule 11, before a plea of guilty may be accepted, the court must establish by personally questioning the defendant that he understands the nature of the charge. McCarthy v. United States, 394 U.S. 459, 464-67, 89 S.Ct. 1166, 1169-71, 22 L.Ed.2d 418 (1969); Woodward v. United States, 426 F.2d 959 (3d Cir.1970). Also, the court must satisfy itself that there is a factual basis for the plea, McCarthy, 394 U.S. at 467, 89 S.Ct. at 1171, and this factual basis must be supported by the record. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).

In establishing Trott's understanding of the charges, the court ascertained that Trott had received a copy of the indictment, had read the count to which he was pleading guilty, and had discussed the charge with his lawyer. Then, after reviewing with Trott the rights waived by a guilty plea, the court explained the essential elements of the charge, and stated that the government would have to prove each beyond a reasonable doubt. Among the statutory elements outlined were that Trott knowingly and intentionally distributed methamphetamine on or about December 23, 1982, that this violation was part of a continuing series of narcotics violations, and that Trott occupied the position of organizer over five or more persons in the undertaking. One by one, Trott was asked if he understood these elements; each time he responded affirmatively. The elements were stated succinctly and in easily understandable language. They were not complex and certainly were capable of being comprehended by Trott, who on two previous occasions had entered into guilty plea agreements. Accordingly, the Rule 11 colloquy was sufficient to ensure that the defendant had an adequate understanding of the charge to which he pleaded.

As to the factual basis, Rule 11 does not mandate that the defendant personally confirm every factual allegation in the indictment. Under Rule 11(f), it is not required "that any particular type of inquiry be made.... An inquiry might be made of the defendant, of the attorneys for the government and the defense, of the presentence report when one is available, or by whatever means is appropriate in a specific case." Notes of the Advisory Committee on Rules, 1966 Amendment to Rule 11.

Here, the court heard a lengthy factual proffer by the government of the evidence it planned to introduce at trial, establishing all five elements of the crime. Asked to respond, Trott made the qualification that he had heard "a lot of things I did and a lot of things I didn't do." To clarify the record, the judge then specifically enumerated each of the five elements of the crime and asked Trott if he had committed the acts alleged. Trott responded affirmatively to all but one--that he occupied the position of an organizer or manager of the other persons referred to in the charge. But under questioning Trott went on substantially to confirm this charge as well. He described himself as "an advisor" for all Pagan chapters, said he instructed chapters "when the mandatory runs," (emphasis added) or deliveries, were to be made, and confirmed that a gang member obeyed when Trott directed him to drive to Virginia to deliver glassware needed to manufacture methamphetamine.

Taken in context, then, Trott's testimony effectively supported the ample factual basis already established by the government's detailed proffer. This more than satisfies the factual basis requirement of Rule 11. ¹

Trott also contends that the district court, 604 F.Supp. 1045 (D.C.Del.1985), abused its discretion in denying his motion to withdraw the plea. While this Court has stated that a motion to withdraw a guilty plea prior to sentencing should be granted more liberally than one after sentencing, we have "also made explicit that there is no absolute right to withdraw a guilty plea and that acceptance of the motion is within the discretion of the trial court, whose determination will be disturbed only if the court has abused its discretion." Government of Virgin Islands v. Berry, 631 F.2d 214, 219-20 (3d Cir.1980). See also United States v. Vallejo, 476 F.2d 667, 669 (3d Cir.1973).

Most important, a defendant must have a "fair and just reason" for withdrawing a plea. Berry, 631 F.2d at 219. In evaluating such a motion, we have looked primarily to three factors: (1) whether the defendant asserts his innocence; (2) whether the government would be prejudiced by withdrawal; and (3) the strength of the defendant's reasons for moving to withdraw. Id.; United States v. Crowley, 529 F.2d 1066, 1071 (3d Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976).

Trott's principal reason for withdrawing the plea is that it was not knowing or voluntary. However, the record shows that he had fully considered the plea bargain. He first broached the idea of a plea in August,...