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USCA1 Opinion
July 20, 1993 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1835
UNITED STATES,
Appellee,
v.
PETER MORAN HENRY,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
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Before
Boudin, Circuit Judge,
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Bownes, Senior Circuit Judge,
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and Stahl, Circuit Judge.
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Jose R. Gaztambide on brief for appellant.
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Charles E. Fitzwilliam, United States Attorney, Jeanette
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Mercado-Rios, Assistant U.S. Attorney, and Jose A. Quiles on
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brief for appellee.
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PER CURIAM. Defendant-appellant Peter Moran Henry
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appeals the denial of a motion to withdraw his guilty plea in
the United States District Court for the District of Puerto
Rico. Finding no error in the decision of the district
court, we affirm.
I
I
Background
Background
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Henry took his girlfriend, Hattie "Penny"
Middlebrook, and a friend of hers, Ruby Christine Marshall,
on a vacation to St. Lucia in September, 1991. Upon their
return to the airport in San Juan, Puerto Rico, Customs
Inspector Herdmann observed Middlebrook and Marshall walking
in a suspiciously rigid manner, apparently following the
directions provided by the physical gestures of a nervous
Henry. When the Inspector questioned the women, he found
that Middlebrook was carrying the customs declarations for
three travelers. When he asked who their male traveling
companion was, they identified Mr. Henry. Herdmann decided
that further investigation was required when he overheard
Henry tell another Inspector that he did not know Middlebrook
and Marshall. A search revealed packages, containing a
substance which was later established to be cocaine, taped to
the bodies of both women. No drugs were found in Henry's
possession.
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On October 9, 1991, a Federal Grand Jury returned a
true bill against Henry and codefendants Middlebrook and
Marshall for violations of 21 U.S.C. 841(a)(1), 952, 955
and 18 U.S.C. 2. The three count indictment charged that
on or about September 30, 1991, Henry, Middlebrook and
Marshall, aiding and abetting each other, did knowingly,
intentionally and unlawfully possess with intent to
distribute, and did import into the customs territory of the
United States from St. Lucia, approximately 2.3 kilograms of
cocaine, which cocaine was not part of the official supply
list nor part of the cargo manifest of the airline flight on
which the codefendants had travelled from St. Lucia to Puerto
Rico. Henry pled not guilty at his arraignment on October
24, 1991.
On December 18, 1991, the first day of Henry's jury
trial, testimony was received from Inspector Herdmann (who
testified to the events in the airport recounted above) and
Middlebrook. Middlebrook testified that Henry left the motel
where the three were staying in St. Lucia each morning before
she awoke, and that he was gone for most of those days. She
further testified that, on the way to the airport for the
departure flight, Henry stopped at a man's house. He went
inside while Middlebrook and Marshall waited outside on the
porch. When he emerged, he told his companions that they
would be taking some drugs back to the United States. The
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women entered the house where drugs were taped to their
bodies and they were outfitted with loose-fitting dresses.
The drugs were secured between Middlebrook's legs with
masking tape and a girdle which she identified at trial.
Middlebrook testified that she received instructions to walk
with her legs pressed together so that attention would not be
drawn to her walk. The court adjourned for the day after
Middlebrook described her encounter with Inspector Herdmann.
On the second day of trial, before Middlebrook
could resume her testimony, Henry changed his plea to guilty
on all three counts. The court accepted his plea after
engaging in a colloquy in which Henry: (1) denied having
taken drugs, medicine or alcohol in the past twenty-four
hours; (2) denied being under the care of a doctor for a
mental or emotional condition; (3) affirmed that he was
satisfied with his attorney's representation; (4) declared
that he considered himself guilty; (5) acknowledged that he
understood that by pleading guilty he would be found guilty
without trial; (6) confessed to asking Middlebrook and
Marshall to carry the drugs; (7) demonstrated that he knew
the maximum sentence and fine he faced as a result of his
plea; (8) denied that he was being forced to change his plea;
(9) stated that he was pleading guilty for no other reason
than the fact that he was guilty; and (10) declared that he
had consulted with his attorney and understood the questions
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he was being asked by the court. The judge ordered the
preparation of a presentence investigation report and
scheduled sentencing for March 19, 1992.
On March 3, 1992, Henry filed a motion pro se to
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withdraw his guilty plea. He claimed that he had been forced
to plead guilty by his lawyer and that he was confused at the
time he entered the plea because he was under the influence
of a variety of medications. The court assigned Henry a new
lawyer and rescheduled the sentencing hearing for June 24,
1992. On May 13, 1992, Henry, with the assistance of new
counsel, moved to withdraw his plea on the ground that
letters he had received from his girlfriend, codefendant
Middlebrook, proved that she had committed perjury at the
trial.1 At the sentencing hearing, the district court
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1. The letters, postmarked January 27, 1992, and dated
December 29, 1991, January 1, 1992 and January 13, 1992,
included the following statements:
Peter I'm so very sorry about what
happened. I didn't know that I'll be
talking to the United States Attorney.
My lawyer didn't say anything to me
before we arrived in Puerto Rico [to
testify at the trial]. I have been
thinking about what happened and the
things that I said I was so scare[d] and
I'm feeling so bad about it . . . .
I can't help but think that you don't
want to talk to me because of what I said
and you know that's not true. But you
know that I was scare[d] and I don't want
to go back to that place. But if you
don't want to talk to me I'll try and
understand.
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denied Henry's withdrawal motion, and sentenced him to a
seventy-month term of imprisonment, followed by four years of
supervised release.
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The letters also reveal that Middlebrook believed herself to
be pregnant with Henry's child.
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II
II
Analysis
Analysis
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It is well established that a defendant, having
chosen to plead guilty, possesses no absolute right to
withdraw his or her plea. United States v. Tilley, 964 F.2d
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66, 72 (1st Cir. 1992); United States v. Austin, 948 F.2d
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783, 786 (1st Cir. 1991); United States v. Pellerito, 878
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F.2d 1535, 1537 (1st Cir. 1989); United States v. Buckley,
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847 F.2d 991, 998 (1st Cir. 1988), cert. denied, 488 U.S.
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1015 (1989); United States v. Ramos, 810 F.2d 308, 311 (1st
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Cir. 1987). Where a motion to withdraw is brought prior to
sentencing, as was done in this case, the district court
should allow it only if there is a "fair and just reason" for
doing so. Fed. R. Crim. P. 32(d); United States v. Doyle,
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981 F.2d 591, 594 (1st Cir. 1992); Tilley, 964 F.2d at 72;
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Austin, 948 F.2d at 786; Buckley, 847 F.2d at 998; United
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States v. Kobrosky, 711 F.2d 449, 454 (1st Cir. 1983).
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This court has held that the following factors must
be evaluated in deciding whether a "fair and just reason" has
been offered in support of a withdrawal motion:
(1) the timing of defendant's change of
heart; (2) the force and plausibility of
the reason; (3) whether the defendant has
asserted his legal innocence; (4) whether
the parties had reached (or breached) a
plea agreement; and (5) most importantly,
whether the defendant's guilty plea can
still be regarded as voluntary,
intelligent, and otherwise in conformity
with Rule 11 of the Federal Rules of
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Criminal Procedure in light of the
proffered reason and the disclosed
circumstances.
Pellerito, 878 F.2d at 1537 (citations omitted). See also,
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Doyle, 981 F.2d at 594; Tilley, 964 F.2d at 72. After
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performing this analysis, "[i]f the combined weight of these
factors tilts in the defendant's favor, then the court must
also assess the quantum of prejudice, if any, that will inure
to the government." Doyle, 981 F.2d at 594. We review the
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denial of a motion to withdraw a guilty plea for abuse of
discretion. Id.; Tilley, 964 F.2d at 72; Pellerito, 878 F.2d
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at 1538; Kobrosky, 711 F.2d at 454.
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A. Timing
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As this court recently stated in Doyle,
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[b]ecause the timing of a defendant's
attempted plea withdrawal is highly
probative of motive, close scrutiny of
the chronology is important in
adjudicating whether retraction is fair
and just. While an immediate change of
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heart may well lend considerable force to
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a plea withdrawal request, a long
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interval between the plea and the request
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often weakens any claim that the plea was
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entered in confusion or under false
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pretenses.
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Doyle, 981 F.2d at 595 (emphasis added). On appeal, Henry
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claims that his change of heart occurred on March 3, 1992,
after receiving what he claims to be exculpatory letters from
his girlfriend, and codefendant, Middlebrook. In an effort
to put the best light on his case, he claims that this
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happened over ninety days prior to the actual sentencing
hearing held on June 24, 1992.
We see the facts somewhat differently. Henry first
attempted to change his plea seventy-five days after he
entered the guilty plea at trial, and only sixteen days prior
to the originally scheduled sentencing hearing.2 Appellant
made no mention of the letters from Middlebrook in his
motion. Rather, he claimed that he was forced by his lawyer
to plead guilty and that he was under the influence of
prescription drugs at the time he entered the plea. Henry
did not seize on the Middlebrook letters as a reason for his
change of heart until his May 13, 1992 motion.
It was reasonable for the district court to infer
from the seventy-five day delay between appellant's guilty
plea and his withdrawal motion, and the proximity of his
withdrawal request to his scheduled sentencing hearing, that
Henry did not experience the kind of "swift change of heart"
that would indicate that the guilty plea was entered in
"haste and confusion." Ramos, 810 F.2d at 312. As this
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court noted in affirming the denial of a withdrawal motion
filed eight weeks after the original plea was accepted, "a
long delay between the plea and the motion to revoke belies a
claim that the plea was entered in haste and confusion and
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2. The date of the actual sentencing hearing is irrelevant
to our evaluation of this factor.
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requires compelling reasons to support it." United States v.
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Crosby, 714 F.2d 185, 192 (1st Cir. 1983) (citing United
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States v. Barker, 514 F.2d 208, 222 (D.C. Cir.), cert.
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denied, 421 U.S. 1013 (1975)), cert. denied, 464 U.S. 1045
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(1984). Appellant has offered no explanation for the long
delay before his first motion to withdraw his plea. It is
clear that receipt of the Middlebrook letters were not the
proximate cause of his decision to change his plea because
those letters were not mentioned in his March, 1992 motion.
B. Force and Plausibility of the Proffered Reasons
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At the June 24, 1992 hearing, appellant and his
counsel offered several reasons in support of his withdrawal
motion: the Middlebrook letters showed that she perjured
herself at his trial; his consumption of prescription drugs
at the time of his trial made him confused; he was pushed by
his lawyer to plead guilty; and, he was in "emotional
distress" at the time of his plea because Middlebrook was
pregnant with his child. The district court considered the
force and plausibility of these reasons, and found them to be
inadequate to support the withdrawal motion.
The court "scrutinized" the content of the letters
and stated that it did "not see anything there that would
affect the plea of guilty . . . entered in December of 1991."
The court further stated that it did "not find them to
suggest any instance of perjury." On appeal, appellant
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merely asserts that the letters should have been presented to
a jury to determine their force and credibility. We
disagree. The district court has the discretion to grant
plea withdrawal motions, and it is therefore properly within
the province of the district court to conduct the required
five-part inquiry, including an evaluation of the force and
plausibility of the reasons proffered for the change of plea.
We have read the Middlebrook letters and cannot say that the
district court's finding was clearly erroneous, especially in
light of the fact that the same court heard Middlebrook
testify at trial. While the letters may tend to show that
Middlebrook regretted the role she played in her boyfriend's
incarceration, it is not self-evident that the letters either
constitute an admission of perjury or provide evidence that
perjury was committed.
The court rejected appellant's contention that his
plea at trial was influenced by his consumption of
prescription medicines. At the sentencing hearing, the court
noted that Henry had been asked at the time of his plea
whether he had taken drugs, medicine or alcohol in the past
twenty-four hours, and that the appellant had answered in the
negative. Later in the sentencing hearing, Henry's counsel3
agreed that the trial court had properly determined that
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3. The attorney who represented appellant at the sentencing
hearing replaced Henry's trial counsel. Replacement counsel
also represented Henry on appeal.
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appellant was not under the influence of medications when he
changed his plea to guilty.
The court found that appellant's trial attorney had
not coerced him into pleading guilty. Indeed, the court
stated that his lawyer's advice was
proper and sound. And it was looking for
the welfare of this defendant. And I
don't think he induced the defendant into
doing anything but to tell the defendant
the truth and that the defendant took
this decision upon his own free will
because he was present. He heard two
days of testimony of witnesses against
him.
. . . .
Having observed Attorney Garcia come in
this case and the circumstances which led
to the defendant's plea[] of guilty. The
Court is disincline[d] to accept your
assertions.
Contrary to that I believe Mr. Garcia
gave you good advice.
Appellant does not contest this finding on appeal, and we
find nothing in the record to upset the district court's
findings.
Appellant did not raise his "emotional distress"
theory on appeal.
C. Legal Innocence
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At no time has appellant directly stated that he is
legally innocent of the charges to which he pled guilty on
December 19, 1991. On that date, during the Rule 11 hearing,
appellant said that he asked Middlebrook and Marshall to
carry the drugs, and stated:
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But I'm taking the blame because I asked
them and I had no business to ask them to
take drugs. We didn't go to St. Lucia to
get drugs. That's not what we go to St.
Lucia for. But they were taking the
drugs and when we go to Puerto Rico they
got busted. They had drugs and I didn't
have nothing and I feel guilty and I feel
sorry because I knew what I asked them to
do was against the law. So what I'm
asking the Court today, I am asking you,
Judge, if I could get some type of
leniency, maybe 42 months or 36 months,
or I am not going to put no time, but a
time to be in jail for the crime that I
help committed [sic].4
Appellant clearly acknowledged that he felt guilty for his
role in aiding and abetting the importation of cocaine into
the United States. On appeal, Henry merely claims that he is
legally innocent because "he had not carried drugs nor forced
anyone to bring drugs into the United States." That
assertion is an insufficient expression of legal innocence
because he did not assert his innocence of the crimes with
which he was charged. As we noted in Doyle, "the absence of
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a claim of innocence weighs in favor of allowing a guilty
plea to stand." Doyle, 981 F.2d at 596.
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D. Breach of Plea Agreement
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Because there never was a plea agreement between
the appellant and the government, this factor bears no weight
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4. Although the record, on appeal, does not include a
transcript of the trial proceedings, including the plea
colloquy, a copy of the transcript was appended to the
appellant's brief, and the government quoted parts of this
passage in its brief.
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in our calculus. Henry contends that the district court was
confused, and thought that there had, in fact, been a plea
agreement in this case. Our review of the transcript of the
sentencing hearing indicates that the court had a clear
understanding of the situation. The court cited the five-
factor test outlined above and endorsed in Tilley. When it
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reached this fourth factor the court stated: "Four, when the
parties have reached or breached a plea agreement. Well, I
guess if he withdraw[s] his plea now I guess he's breaching
his plea agreement. Although that's not what this refers
to." By stating "that's not what this refers to," and moving
on to the fifth factor, the court recognized that the breach
of a plea agreement between the government and a defendant
contemplated by this factor was not implicated in this
case.5
E. Voluntariness
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The fifth factor which must be considered in
evaluating the strength of appellant's motion to withdraw is
whether, "in light of the defendant's proffered reason and
any newly disclosed facts, the plea may still be deemed
voluntary and intelligent." Doyle, 981 F.2d at 596 (citing
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5. We note that there were times in the hearing when the
court seems to have applied the Tilley factors to appellant's
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change of plea at trial, rather than to the circumstances
surrounding his subsequent efforts to withdraw his guilty
plea. Notwithstanding this apparent confusion, a review of
the entire record supports the court's ultimate decision to
deny appellant's motion.
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United States v. Austin, 948 F.2d 783, 786-87 (1st Cir.
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1991); United States v. Allard, 926 F.2d 1237, 1245-47 (1st
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Cir. 1991)). Appellant contends on appeal that the
transcript of his plea colloquy at trial shows that he was
indecisive about his plea, and that the hearing was "both
defective and incomplete." We disagree. The district court
complied fully with the requirements of Fed. R. Crim. P. 11.
Appellant initially resisted accepting the
government's version of the facts of the case. When offered
the opportunity to explain with what facts he disagreed, he
stated
I didn't agree because both of the
ladies one lady I'm in love with and
the other lady, they old enough to
understand that the drugs is not legal to
carry in the United States. All they
have to tell me is that they are not
going to carry it. There was no force,
no push. I asked them not one time.
They sleep on it Sunday night. Monday
morning I asked them the same question,
and it was agreed that they would do it,
without no force.
So I figure that I'm guilty by asking
them to carry the cocaine, but they also
have to hold their responsibility to
carry it because I didn't put no force on
them to carry these drugs when they know
the drugs is not legal to carry. I only
asked them, and the word was said in
front of them when the guy front we with
it. We was sitting at the table. All
they have to say, "I'm not coming down
for this, I'm not going to do this."
So I figure like they should hold some
type of responsibility to carry the
drugs, if the state attorney didn't make
a deal with them that they going to get
less time.
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This explanation reveals that, although he did dispute some
of the details of the government's case, appellant did not
disagree with the fact that he facilitated the importation of
illegal drugs into the United States. His statement reveals
a greater concern with informing the court that he had not
forced the women to carry the drugs, than with denying his
guilt for his role in the scheme. In sum, there is no
evidence that appellant was unsure of his plea, nor is there
evidence that the plea was coerced or entered without a full
understanding of the consequences.
F. Prejudice to Government
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Because analysis of each of the five factors
supports the district court's denial of appellant's
withdrawal motion, we need not consider the possible
prejudice to government of reversing the decision below.
Doyle, 981 F.2d at 596 n.6 (citing Ramos, 810 F.2d at 315).
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III
III
Conclusion
Conclusion
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Because the appellant has not made the showing
required to reverse a district court's denial of a motion to
withdraw a plea, the decision of the district court is
Affirmed.
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Document Info
Docket Number： 92-1835
Filed Date： 7/20/1993
Precedential Status： Precedential
Modified Date： 3/3/2016