US v. Lopez Sanchez
| Citation | 709 F. Supp. 302 |
| Decision Date | 16 March 1989 |
| Docket Number | Cr. No. 87-251 (PG). |
| Court | U.S. District Court — District of Puerto Rico |
| Parties | UNITED STATES of America, Plaintiff, v. Ricardo LOPEZ SANCHEZ, Defendant. |
Guillermo Gil, Trial Atty., U.S. Dept. of Justice, Caparra Heights, P.R., for plaintiff.
Blas C. Herrero, Hato Rey, P.R., for defendant.
On April 28, 1988, defendant, Ricardo López Sánchez, pled guilty to count eight1 of the indictment, which charged him with possession with intent to distribute cocaine during 1985, in violation to 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Ricardo López Sánchez was sentenced on July 8, 1988, to three years imprisonment and fined the sum of $5,000.00
One month after being sentenced López Sánchez filed a motion under Fed.R.Cr.P. 11, 32(d), to withdraw plea of guilty and to set aside judgment of conviction.
Fed.R.Cr.P. 32(d), as amended in 1983, no longer authorizes a motion to withdraw a plea if the motion is made after imposition of sentence. At that point a plea may be set aside only on direct appeal or by motion under 28 U.S.C. § 2255.
The rule as amended in 1983 reads as follows:
(d) Plea Withdrawal. If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence, the court may permit withdrawal of the plea upon 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. § 2255.
On August 19, 1988, at the hearing on defendant's petition to withdraw his guilty plea, the Court sustained the government's objection to defendant's motion in view that it failed to comply with Fed.R.Cr.P. 32(d), supra. Defendant was then instructed to modify its motion in order to comply with 28 U.S.C. § 2255.2 The hearing was continued for August 26, 1988, at 10:00 A.M.
On August 25, 1988, defendant filed his petition under 28 U.S.C. § 2255,3 thus conforming his request to the rule. He basically adduces therein that the conviction obtained by a plea of guilty was unlawfully induced and not made voluntarily with the understanding of the nature and consequences of the plea. In essence, defendant's assertions boil down to the allegation that he is innocent of the charges.
The amendment clarifies the standard applicable to plea withdrawal. The rule codifies the principle that withdrawal of guilty plea filed before sentencing may be granted upon a showing of "fair and just reason". Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). However, since defendant Ricardo López Sánchez has moved to withdraw his plea post sentence, he has proceeded "too late to come under the more generous `fair and just reason' standard." See 97 F.R.D. 309. In turn he must seek relief pursuant to 28 U.S.C. § 2255, Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), whose applicable standard requires "a fundamental defect which inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure." Ibid.
It is well established that permission to withdraw a guilty plea under Fed.R.Cr.P. 32(d) is within the discretion of the Court. There is no absolute right to withdraw a guilty plea. United States v. Ramos, 810 F.2d 308, 311 (1st Cir.1987). A defendant should be allowed to withdraw a guilty plea only in "extraordinary cases." Doherty v. American Motors Corp., 728 F.2d 334, 338 (6th Cir.1984). The defendant who has pled guilty no longer enjoys a presumption of innocence. Furthermore, on a motion to withdraw his plea, he bears the burden of production and persuasion. To unsettle a valid guilty plea, the defendant must offer more than protestations of innocence that he is not guilty. Government of Virgin Islands v. Berry, 631 F.2d 214, 220 (3rd Cir.1980). Moreover, even credible assertions of innocence may not warrant withdrawal of a guilty plea. United States v. Jerry, 487 F.2d 600, 610-611 (3rd Cir.1973); 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).
In support of his contention defendant alleges that the conviction by the jury of all co-defendants tried in the first trial4 caused fear of the supposedly impending high sentence which was to be imposed by the Court. Defendant states that he was left totally unable to voluntarily enter a plea of guilty.
Defendant and his brother Wilfredo were indicted in this case. Both were represented by counsel Teodoro Méndez Lebrón. Defendant maintains that his brother misled their joint counsel in concealing his guilt, and that in the aftermath he was prejudiced. He states that if his brother's guilt would have been disclosed, their joint counsel would have seen a conflict of interest and would have withdrawn the joint representation.5
In sum, defendant argues that he was left with no other choice but to plead guilty in spite of his innocence and notwithstanding the constant manifestations to his counsel, the pretrial services officer, and the probation officer that he was not guilty.6
Petitioner finally stated that if he plead not guilty, went to trial and was not believed he would face long years in jail, whereas if he plead guilty, the plea agreement would limit the jail time and he would get probation since he had no previous record. But if he told the version of innocence, the jury would not believe him as they did not in the first group of co-defendants that went to trial and all were convicted, some with slighter evidence than the government had against him.
After the request was filed conforming it formally to Fed.R.Cr.P. § 32(d), the hearing to withdraw the guilty plea was resumed on September 8, 1988. During said hearing several testimonies were secured.
Attorney Anibal Lugo was called to testify at the hearing. He stated that during a meeting on or about February 1988 with defendant's counsel he felt that defendant was well represented by counsel Teodoro Méndez Lebrón and that defendant had received a comprehensive explanation as to the alternatives in the case. He also stated that he felt that defendant was sure and straightforward in understanding the alternative. Mr. Lugo was not present every time defendant met with counsel Méndez Lebrón. He related that defendant alleged his innocence before and after the first trial and further expressed that this first trial had a great impact on defendant, who is not familiar with the legal process.
Also during the hearing the testimony of defendant's brother, Wilfredo López Sáchez, was obtained. He declared he had alleged his innocence to counsel Méndez Lebrón but now admits responsibility to the facts charged.7 He stated that his brother had nothing to do with the facts of this case. It is amazing to hear this witness state that he believed he was not prejudicing his brother's case by withholding facts to their joint attorney! However, during the cross-examination he admitted having seen Junior Sixto, one of the key characters in the venture, at his brother's business.
Defendant's mother, Ramonita Sánchez de López, was also called to testify. In her testimony she basically declared that Ricardo told her that he was innocent and that he had plead guilty upon the advice of his counsel, but that he did not want to plea guilty. She stated that her son Ricardo wrote down in his own handwriting two or three versions of the facts, and that among these, at counsel's request, made one admitting guilt. She admitted that everyone thought that her son was going to get probation. Defendant's mother stated that counsel explained to them the plea agreement with the government.
Juan A. Martinez was another witness called at the hearing. He stated that he had accompanied defendant to his former counsel's office "two or three" times. He entered the office once and heard defendant state he was innocent. At some other time he stayed outside but was told that defendant had asserted his innocence.
Mr. Teodoro Méndez Lebrón, who represented defendant and his brother, testified. He stated that the possible conflict of interest was addressed and discussed, but both clients alleged their innocence. Mr. Méndez Lebrón stated in open court that defendant said he had purchased five ounces of cocaine. He then told defendant of the offer of the government if he pled guilty, told him about the allocution during a Rule 11 (Fed.R.Cr.P.) hearing and the fact that the Court would ask him questions where he had to answer whether he was guilty of the charges or not.
The testimony of the attorney for the government, Mr. Guillermo Gil, also underscores the fact that defendant was expecting probation. Defendant directly expressed to him that he should have obtained probation. After he was sentenced, defendant became aggressive, alleged his innocence, and stated that he was going to prove it and change things around.
At this point it must be mentioned that disappointment is not sufficient basis for withdrawal of a guilty plea. It has been stated that if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment and withdraw the plea if the sentence was unexpectedly severe. Kadwell v. United States, 315 F.2d 667, 670 (9th Cir.1963).
At the same time defendant's contentions seem to be contradicted by the record. In addition to evidence elicited during the hearing on the petition to withdraw the guilty plea, which lead to the conclusion that defendant entered the plea expecting probation, the terms of the plea agreement, the transcript of the change of plea, and the transcript of the sentencing proceedings fail to sustain defendant's allegations that the plea entered was involuntary or unduly coerced.
It appears from the terms of the plea agreement that the Government agreed to make a recommendation of...
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U.S. v. Allard
...between the entry of a plea and a motion to withdraw it. Kobrosky, 711 F.2d at 455; Ramos, 810 F.2d at 313; United States v. Lopez Sanchez, 709 F.Supp. 302, 310 (D.P.R.1989). In this case, the government argues that Allard's plea should not be vacated because the principal witness against h......