USA v. Stewart
| Decision Date | 07 December 1999 |
| Docket Number | No. 99-2453,99-2453 |
| Citation | 198 F.3d 984 |
| Parties | (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Timothy L. Stewart, Defendant-Appellant |
| Court | U.S. Court of Appeals — Seventh Circuit |
Appeal from the United States District Court for the Western District of Wisconsin. No. 3:99CR0003--John C. Shabaz, Chief Judge.
Before Eschbach, Easterbrook, and Rovner, Circuit Judges.
After pleading guilty to possessing crack cocaine with intent to distribute--count three of a multi-count indictment--Timothy Stewart decided that the price of crime was too high. The presentence report calculated a sentencing range of 100 to 125 months' imprisonment, based on 30 grams of crack (producing a base offense level of 28, less 3 for acceptance of responsibility) and a criminal history category of V. Stewart then sought to withdraw his plea and go to trial. Asked why, Stewart told the judge that "I was under the impression that I was going to get under--60 months or under and I was going to be eligible to go to boot camp." Stewart also claimed to be innocent and tendered an affidavit signed by his brother in which the brother claimed to have owned some of the crack that was included in the relevant-conduct calculation. His brother added that Stewart had never possessed that cocaine.
Stewart had sung a different song when entering his plea, however. Under oath, he not only admitted all of the elements of the offense but also admitted owning and possessing the cocaine that his brother's affidavit later claimed that Stewart had never touched. Stewart also swore that he knew that 60 months' imprisonment was the minimum he could receive, that the maximum was 480 months, that he could not rely on receiving any particular sentence, and that no one had made any assurances concerning the sentence he would receive. If what he told the judge when entering his plea was true, then everything he told the judge when seeking to withdraw that plea was false (and the reverse). Stewart attempted to explain away his evident perjury:
I just was swearing under oath because I already knew that the plea bargain and everything was set up. So I was just saying anything to go along with the plea because I didn't want my plea to get took back. . . . [T]he only reason I set there and said I was guilty and swore under oath so many times is because I already had in my mind that I had 60 months coming. No matter what you said and no matter what question you asked me, I already had it in my mind that I had 60 months coming. So I was just answering all your questions just to be answering them, whether they were truthful or not.
The district judge was not impressed by this "justification" for perjury on top of drug dealing and denied the motion to withdraw the plea. Because the judge concluded that by procuring his brother's affidavit Stewart had frivolously denied relevant conduct (that is, had denied a drug transaction to which he had already admitted under oath at the plea hearing), the judge declined to deduct three offense levels under U.S.S.G. sec.3E1.1. This put Stewart at level 28, with a sentencing range of 130 to 162 months. His sentence of 146 months was well above what he would have received had he not attempted to withdraw his plea.
What Stewart principally wants is an order requiring the district court to hold a hearing to investigate the possibility that Stewart's lawyer told him that he would receive a maximum of 60 months' imprisonment. That advice, if given, would have been ineffective assistance of counsel, Stewart insists; and whether it was given is a question of fact that only a hearing can explore. The fundamental problem with this position is that Stewart has already had one opportunity to state, under oath and in the presence of the district judge, whether his attorney gave such defective advice. That opportunity was the plea hearing, and Stewart swore that no such advice had been given. Why should he now receive an opportunity to contradict himself under oath, and thus to violate 18 U.S.C. sec.1623(c), the inconsistent- declarations statute? Why should the district judge believe Stewart the second time, when he has already declared his willingness to lie under oath in order to achieve a lower sentence? In civil cases courts regularly hold that litigants cannot create a factual issue requiring trial by contradicting, under oath, a prior sworn statement; thus, for example, a statement made at a deposition cannot be canceled out by a later affidavit unless there is a powerful reason such as newly discovered evidence. See, e.g., Cleveland v. Policy Management Systems Corp., 119 S. Ct. 1597, 1603-04 (1999) (); Seshadri v. Kasraian, 130 F.3d 798, 801 (7th Cir. 1997). Likewise with statements made at the time...
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U.S. v. Sura, 05-1478.
...made in connection with a guilty plea. See, e.g., United States v. Peterson, 414 F.3d 825 (7th Cir.2005); United States v. Stewart, 198 F.3d 984 (7th Cir.1999); United States v. Messino, 55 F.3d 1241, 1248 (7th Cir.1995); United States v. Ellison, 835 F.2d 687, 693 (7th Cir.1987). In civil ......
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Moody v. State
... ... that plea. In conducting that review, we note that the ... "[e]ntry of a plea is not some empty ceremony, and ... statements made to a [trial] judge in open court are not ... trifles that defendants may elect to disregard." ... United States v. Stewart , 198 F.3d 984, 987 (7th ... Cir. 1999). We conclude that Moody's guilty plea was ... constitutionally valid and that he did not establish a ... "manifest injustice" requiring its withdrawal ... At ... trial, during a brief recess between the State's ... ...
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Ryan v. USA.
...to the state judge when entering his plea, it is difficult to see how the subject can be raised 20 years later. See United States v. Stewart, 198 F.3d 984 (7th Cir. 1999). But the record does not contain a transcript of the plea, so Judge Aspen assumed, as shall we, that Ryan not only could......
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Bracey v. United States
...and statements made to a federal judge in open court are not trifles that defendants may elect to disregard." United States v. Stewart, 198 F.3d 984, 987 (7th Cir. 2004) (pointing out that "[t]he purpose of a Rule 11 colloquy is to expose coercion or mistake, and the district judge must be ......
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Perjury.
...court had been signed by her on specified date had "used" such document for purposes of [section] 1623). (110.) United States v. Stewart, 198 F.3d 984, 986 (7th Cir. 1999) (stating that defendant who contradicted himself on two different occasions while under oath before the district judge ......
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Perjury.
...court had been signed by her on specified date had "used" such document for purposes of [section] 1623). (118.) United States v. Stewart, 198 F.3d 984, 986 (7th Cir. 1999) (stating that defendant who contradicted himself on two different occasions while under oath before the district judge ......
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Perjury.
...court had been signed by her on specified date had "used" such document for purposes of [section] 1623). (118.) United States v. Stewart, 198 F.3d 984, 986 (7th Cir. 1999) (stating that defendant who contradicted himself on two different occasions while under oath before the district judge ......
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PERJURY
...“irreconcilably contradictory” statements before two grand juries supported his conviction under § 1623(c)); United States v. Stewart, 198 F.3d 984, 986 (7th Cir. 1999) (stating that a defendant who contradicted himself on two occasions while under oath violated § 1623(c)); United States v.......