United States v. Jacobs , 234 F. App'x 110 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4755
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THOMAS L. JACOBS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Lacy H. Thornburg,
District Judge. (3:04-cr-00190-LHT-2)
Submitted: June 27, 2007 Decided: July 17, 2007
Before MOTZ and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
R. Edward Hensley, Jr., Maggie Valley, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Kenneth Smith, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Thomas L. Jacobs appeals his convictions and sentence to
30 months in prison, restitution, and three years of supervised
release following his guilty plea to conspiracy to defraud the
United States in violation of 18 U.S.C. § 371 (2000), wire fraud in
violation of 18 U.S.C. §§ 2, 1343 (2000), conspiracy to commit
money laundering in violation of 18 U.S.C. § 1956(h) (2000), money
laundering in violation of 18 U.S.C. §§ 2, 1956(a)(1)(A) (2000),
and two counts of money laundering in violation of 18 U.S.C. §§ 2,
1956(a)(1)(B) (2000). Jacobs contends the Government’s conduct
surrounding the entry of his guilty plea gave rise to an inference
of bad faith, and the district court erred in denying his motion to
withdraw his guilty plea without eliciting sworn testimony on the
issue. Finding no error, we affirm.*
A defendant may withdraw a guilty plea prior to
sentencing if he “can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). We review the
district court’s denial of a motion to withdraw a guilty plea for
abuse of discretion. United States v. Ubakanma, 215 F.3d 421, 424
(4th Cir. 2000). “The most important consideration in resolving a
*
Although the Government contends this appeal should be
dismissed as barred by Jacobs’s appellate waiver covering the
Government’s substantial assistance decision, see United States v.
Blick, 408 F.3d 162, 168-69 (4th Cir. 2005), we conclude the issues
raised by Jacobs fall outside the scope of that waiver and within
an exception for prosecutorial misconduct claims.
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motion to withdraw a guilty plea is an evaluation of the Rule 11
colloquy at which the guilty plea was accepted.” United States v.
Bowman, 348 F.3d 408, 416 (4th Cir. 2003). A properly conducted
guilty plea colloquy raises a strong presumption that the plea is
final and binding. United States v. Lambey, 974 F.2d 1389, 1394
(4th Cir. 1992) (en banc).
Based on our review of the record, we conclude the
district court did not abuse its discretion in denying Jacobs’s
motion to withdraw his guilty plea. In his motion, Jacobs alleged
that the day before entering his guilty plea, he was told by the
Government that he would be called as a witness against his co-
defendant and could receive a sentence reduction for substantial
assistance, but the day after entering his plea, the Government
informed him that he would not be called as a witness. Jacobs
contended he would not have pled guilty but for the Government’s
promise, and his plea was not knowing or voluntary. The Government
filed a response in opposition, and the magistrate judge who had
accepted Jacobs’s guilty plea held a hearing on the motion.
The Government acknowledged expressing interest in using
Jacobs as a witness but denied making any promises. Moreover, the
Government had always made it clear that any use of Jacobs as a
witness was conditional on him being forthright and giving truthful
and complete information. At the third meeting with Jacobs, the
Government concluded he had not and would not provide complete and
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truthful information, and the Government had to prepare its case
against Jacobs’s co-defendant without him.
Jacobs’s claims were further contradicted by his plea
agreement and guilty plea colloquy conducted in compliance with
Fed. R. Crim. P. 11. The plea agreement provided that if requested
by the Government, Jacobs agreed to assist the Government by
providing truthful information and testimony. If any assistance
was substantial, the Government agreed it may move for a sentence
reduction, but the Government retained the sole discretion to
determine whether the assistance was substantial or whether Jacobs
had provided false information. At his Rule 11 hearing, Jacobs
affirmed that he understood and agreed to the terms of his plea
agreement, and other than those terms, no one had made any promises
of leniency or light sentence to induce him to plead guilty. The
magistrate judge found Jacobs’s plea was knowing and voluntary.
At the hearing on his motion to withdraw the plea, both
Jacobs and his counsel were given the opportunity to speak in
support of the motion. The magistrate judge denied the motion, and
the district court denied Jacobs’s appeal of the decision. At
sentencing, Jacobs stipulated that there was a factual basis for
his guilty plea, and the district court entered a verdict of
guilty. Jacobs did not object when the Government failed to move
for a sentence reduction based on substantial assistance, and
neither party objected to the presentence report. The district
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court sentenced Jacobs to the low end of his advisory guideline
range.
On appeal, Jacobs contends that the Government’s conduct
surrounding the entry of his guilty plea gave rise to an inference
that it acted in bad faith and for unconstitutional purposes, and
the district court erred in failing to elicit sworn testimony on
the issue of bad faith and relying on only oral argument when
deciding his motion to withdraw his plea. We conclude that these
issues are without merit. Jacobs neither alleged any actual bad
faith in the district court nor requested that sworn testimony be
taken at his hearing on the motion to withdraw his plea. Moreover,
Jacobs was not entitled to an evidentiary hearing on the issue
because he failed to make a substantial threshold showing that the
Government acted for improper reasons. See Wade v. United States,
504 U.S. 181, 186-87 (1992). Finally, even if Jacobs had made such
a showing, the hearing afforded him was sufficient under the facts
and circumstances of this case. See United States v. Knights, 968
F.2d 1483, 1487 (2d Cir. 1992) (noting that the kind of hearing
required, “whether it be merely oral argument or should include a
formal evidentiary hearing is a matter that lies within the sound
discretion of the district court”).
Accordingly, we affirm Jacobs’s convictions and sentence.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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