US v. Jones

• Decision Date: 05 March 1996
• Docket Number: Civil Action No. 4:95cr38(2).
• Citation: 916 F. Supp. 558
• Parties: UNITED STATES of America, Plaintiff, v. Christopher M. JONES, a/k/a "Chris," Defendant.
• Court: U.S. District Court — Eastern District of Virginia

916 F. Supp. 558

UNITED STATES of America, Plaintiff, v. Christopher M. JONES, a/k/a "Chris," Defendant.

Civil Action No. 4:95cr38(2).

United States District Court, E.D. Virginia, Newport News Division.

March 5, 1996.

COPYRIGHT MATERIAL OMITTED

Robert Edward Bradenham, II, Assistant U.S. Attorney, Norfolk, VA, for Plaintiff.

Jeffrey Dean Tarkington, Livesay & Isley, P.C., Portsmouth, VA, for Defendant.

MEMORANDUM OPINION & ORDER

MORGAN, District Judge.

On November 2, 1995, the Court heard Defendant Christopher M. Jones' plea of guilty and found him guilty as charged to Count One of the indictment charging him with conspiracy to distribute cocaine base in violation of Title 21 U.S.C. § 846. His sentencing was then scheduled for February 2, 1996. Prior to sentencing, Defendant Jones moved the Court to withdraw his plea of guilty as well as to delay the imposition of his sentence. The United States filed objections to Defendant's motions and the Court heard oral argument on both motions prior to the sentencing hearing on February 2, 1996.

The Court considers each motion in turn, and for the following reasons the Court DENIES both of Defendant Jones' Motions.

I. ANALYSIS

A. Motion to Withdraw Guilty Plea

i. Legal Standard

A court may permit a defendant to withdraw his guilty plea at any time prior to sentencing; however, it may do so only upon a showing of "fair and just reason," Fed. R.Crim.P. 32(e),¹ (redesignated from Rule 32(d) effective December 1, 1994), for "there is no absolute right to withdrawal." United States v. Hurtado, 846 F.2d 995, 997 (5th Cir.1988), cert. denied, 488 U.S. 863, 109 S.Ct. 163, 102 L.Ed.2d 133 (1988); see also United States v. Benavides, 793 F.2d 612, 616 (5th Cir.), cert. denied, 479 U.S. 868, 107 S.Ct. 232, 93 L.Ed.2d 158 (1986); United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). A court should consider the following when entertaining any withdrawal motion:

(1) whether the defendant has offered credible evidence that his plea was not knowing or voluntary,² (2) whether the defendant has credibly asserted his legal innocence,³ (3) whether there has been a delay between the entering of the plea and the filing of the motion;⁴ (4) whether defendant has had close assistance of competent counsel,⁵ (5) whether withdrawal will cause prejudice to the government,⁶ and (6) whether it will inconvenience the court and waste judicial resources.⁷

United States v. Moore, 931 F.2d 245 (4th Cir.), cert. denied, 502 U.S. 857, 112 S.Ct. 171, 116 L.Ed.2d 134 (1991)⁸; see also United States v. Haley, 784 F.2d 1218, 1219 (4th Cir.1986); United States v. Hurtado, 846 F.2d at 997 (citing United States v. Carr, 740 F.2d 339, 343-44 (5th Cir.1984), cert. denied, 471 U.S. 1004, 105 S.Ct. 1865, 85 L.Ed.2d 159 (1985)). "Because a guilty plea is a waiver of substantial constitutional rights, it must be a voluntary, knowing, and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." United States v. French, 719 F.2d 387, 390 (11th Cir.1983), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984). However, where a plea is truly knowing and voluntary, no one of these factors itself justifies withdrawal. United States v. Hurtado, 846 F.2d at 997.

The Fourth Circuit had originally articulated a rule requiring the government to show prejudice in order to defeat such a motion. A 1977 decision appeared to hold that absent any government showing that prejudice would arise if the motion were granted, "the defendant should be allowed to withdraw his plea," as only upon such a showing should the Court engage in the balancing test at all. United States v. Savage, 561 F.2d 554 (4th Cir.1977). However, an amended Rule 11⁹ provided a full inquiry into the voluntariness of the plea when it was taken, as well as advice to a defendant regarding the consequences of his plea. Thus, pleas are no longer viewed as "tentative" and subject to withdrawal prior to sentencing, even where the government cannot prove prejudice. See Fed.R.Crim.P. 32(e) advisory committee's note (1983 Amendment). Applying factors such as those enumerated in United States v. Moore, supra text accompanying notes 2-8, courts examine first whether the defendant demonstrates a "fair and just" reason for the requested plea withdrawal, and only "if the defendant establishes such a reason, is it then appropriate to consider whether the government would be prejudiced by withdrawal of the plea." Fed. R.Crim.P. 32(e) advisory committee's note (1983 Amendment).

The Fourth Circuit has adopted this majority interpretation,¹⁰ and in a 1986 decision it agreed that a defendant must bear the Rule 32(e) burden of showing a "fair and just" reason for withdrawal of a plea before a court would look to whether the government would be prejudiced by the withdrawal. United States v. Haley, 784 F.2d at 1219; see also United States v. Smith, 1 F.3d 1235, No. 92-5651, 1993 WL 290897, at *1-2 (4th Cir. (N.C.) July 29, 1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1078, 127 L.Ed.2d 395 (1994) (citing United States v. Moore, 931 F.2d 245; United States v. Haley, 784 F.2d at 1219 (noting that even where the government admits that it would not be prejudiced by a withdrawal of a guilty plea, the defendant must still show a fair and just reason for the modification before a court should examine its propriety)); Fed.R.Crim.P. 32(e). The Court also now places emphasis in its consideration on whether or not a defendant asserts that he was not in fact guilty, or whether he merely argues a technicality. See United States v. Smith, 1993 WL 290897, at **2. In fact, the Court has now recognized that "it is essential to an orderly working of the criminal justice system that guilty pleas tendered and accepted in conformity with Rule 11 can be presumed final" and therefore, "it is the defendant's burden to demonstrate that she should be permitted to withdraw her plea." United States v. Sparks, 67 F.3d 1145, 1154 (4th Cir.1995) (citing United States v. Lambey, 974 F.2d 1389, 1394-95 (4th Cir.1992) (en banc), cert. denied, ___ U.S. ___, 115 S.Ct. 672, 130 L.Ed.2d 605 (1994); United States v. Moore, 931 F.2d at 248).

The circuits recognize much judicial discretion at the trial level with regard to these pleas — a district court's abuse of discretion must be shown before its decision on the plea withdrawal will be overturned. See U.S. v. Marcum, 16 F.3d 599, 602 (4th Cir. 1994); United States v. Lambey, 974 F.2d at 1393; United States v. Suter, 755 F.2d 523, 525 (7th Cir.), cert. denied, 471 U.S. 1103, 105 S.Ct. 2331, 85 L.Ed.2d 848 (1985); United States v. Barker, 514 F.2d at 220.

ii. Jones' Motion to Withdraw his Guilty Plea

a. "Fair and Just" Reason

The Federal Rules of Criminal Procedure are clear and the circuits have generally been consistent in requiring defendants to bear the initial burden of showing a fair and just reason for their plea withdrawal.¹¹ Therefore, the Court examines Defendant Jones' proffered reasons for requesting the plea retraction using this standard.

Jones attempts to justify the motion to withdraw his plea by declaring that the question of prosecutorial misconduct raised by two of his co-defendants was not known to him at the time he pled guilty, and that this issue would in fact have been material to his decision to plead guilty.¹² He stated under oath before the Court that he became aware of possible irregularities in the indictment only when these co-defendants raised the issue before the Court after he had pled guilty.¹³ However, the Court notes that Jones also admits that he is satisfied with the assistance his counsel has provided him throughout, that no one threatened or forced him to plead guilty, and that he is guilty of the felony as charged in the indictment.¹⁴ Following the prevailing jurisprudence, reasons such as those advanced by Jones would not constitute a "fair and just reason" for withdrawal of a plea.

Jones nevertheless argues that the Fourth Circuit only arrived at this conclusion in Haley because that defendant "had known all the facts of his supposed defense at the time he made his guilty plea." United States v. Haley, 784 F.2d at 1219. This Court is not persuaded that Haley hinged on this point; in fact, the Supreme Court in Tollett v. Henderson denied a defendant's collateral challenge of discrimination in the selection of the grand jury even though facts pertaining to the jury selection process were unknown to him at the time of the indictment and plea. 411 U.S. 258, 264-69, 93 S.Ct. 1602, 1607-08, 36 L.Ed.2d 235 (1973). In light of the relative success of the motions made by some of Jones' co-defendants, he "may believe that he made a strategic miscalculation...., however, ... such grounds do not justify setting aside an otherwise valid guilty plea." United States v. Broce, 488 U.S. 563, 571, 109 S.Ct. 757, 765, 102 L.Ed.2d 927 (1989).

Jones essentially premises his motion to withdraw his guilty plea upon the simple fact that other co-defendants have an appeal pending before the Fourth Circuit regarding the propriety of their mutual indictment. This reason does not outweigh the other factors against him,¹⁵ namely delay, prejudice to the prosecution,¹⁶ presence of effective counsel,¹⁷ inconvenience to the Court, lack of evidence or argument that the plea was not made knowingly and voluntarily, and his frank, renewed acknowledgement of his guilt as to the charges in the indictment.¹⁸

A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State's case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law...