United States v. Robert Green ( 2008 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 07-2417
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Robert C. Green, *
*
Defendant - Appellant. *
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Submitted: December 11, 2007
Filed: April 8, 2008
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Before LOKEN, Chief Judge, WOLLMAN and SHEPHERD, Circuit Judges.
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LOKEN, Chief Judge.
Robert Green was charged with kidnaping and two firearm offenses after he
brandished a handgun while forcing a young woman to ride with him from Kansas
City to Omaha to engage in prostitution. On the scheduled trial day, Green pleaded
guilty to the firearm charges -- felon in possession and brandishing the firearm during
a crime of violence. See 18 U.S.C. §§ 922(g), 924(c). The government agreed to
dismiss the kidnaping charge, and the parties agreed that Green would be sentenced
to ten years in prison. See Fed. R. Crim. P. 11(c)(1)(C). Before sentencing, Green
moved to withdraw the plea because it was not knowing and voluntary and the factual
basis for the § 924(c) count did not establish a predicate crime of violence. The
district court1 denied the motion and sentenced Green consistent with the plea
agreement. Green appeals. We affirm.
I.
We summarize as our necessary starting point the facts stated by counsel for the
government when invited by the district court to provide a factual basis for the plea
at the change-of-plea hearing. In May 2006, Green approached the nineteen-year-old
victim in a grocery store parking lot and said he needed someone with a photo ID to
help receive a Western Union money order from his sister. The victim agreed to help,
but Green’s sister refused to wire money to a stranger. The victim then “agreed to
hang out” with Green, and they rode in Green’s car until they found his cousin, Micah
Richardson, who helped Green complete the money transfer. After Green dropped off
Richardson, instead of taking the victim home, he drove onto an interstate highway,
brandished a firearm, and declared they were going to Omaha, “no ‘ifs,’ ‘ands,’ or
‘buts.’” The victim objected. Green headed back to Kansas City, but when the victim
tried to leave the car at a stop sign, Green accelerated, returned to the highway, and
repeated that they were going to Omaha, “no ‘ifs,’ ‘ands,’ or ‘buts.’”
Taking back roads to Omaha, Green forced the victim to perform oral sex en
route and talked about her making money as a prostitute in Omaha. Seeking to “win
his trust,” the victim pretended to agree while contemplating escape. In Omaha,
Green pulled into a gas station and told the victim to find a green car that appeared to
be looking for a prostitute. The victim instead approached a man walking alone and
asked him to walk with her away from the gas station. Out of Green’s sight, the
victim told the man, George Lee, that she was in trouble. Lee led her to his house
where she called 911. The police found and arrested Green, who locked his keys in
1
The HONORABLE JOSEPH F. BATAILLON, Chief Judge of the United
States District Court for the District of Nebraska.
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the car as the officers approached. Green made a statement admitting contact with the
victim but denying he had taken her against her will. A warrant search of his car
produced a gun matching the victim’s description underneath the driver’s seat.
In response to the court’s questions at the conclusion of this statement, Green
agreed the prosecutor had described the evidence Green and his attorney discussed in
preparing for trial, admitted he transported the victim to Omaha and possessed “the
firearm in question,” but asserted the trip “was not against her will.” The court
accepted the plea, finding “a knowing and voluntary plea of guilty supported by an
independent basis in fact concerning each of the essential elements of the offenses
charged in the superseding indictment.”
Two weeks before sentencing, Green moved pro se “for a new trial,” asserting
that his guilty plea was coerced by counsel’s ineffective assistance in failing to
subpoena a witness for trial “who told counsel that she placed the handgun in the car.”
Defense counsel withdrew, and the court continued the sentencing and appointed new
counsel, who filed a motion to withdraw Green’s guilty plea because (i) it was coerced
by prior counsel’s failure to subpoena two witnesses who would have established
Green’s innocence, and (ii) the § 924(c) count lacked a sufficient factual basis because
Green only admitted a violation of the Mann Act, which is not a “crime of violence”
for purposes of § 924(c).
II.
After his guilty plea is accepted but before sentencing, a defendant may be
permitted to withdraw the plea for “a fair and just reason.” Fed. R. Crim. P.
11(d)(2)(B). There is no right to withdraw; “the plea of guilty is a solemn act not to
be disregarded because of belated misgivings about its wisdom.” United States v.
Fitzhugh, 78 F.3d 1326, 1328 (8th Cir.) (quotation omitted), cert. denied, 519 U.S.
902 (1996). If the district court conducted the colloquy mandated by Rule 11(b) and
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found the plea knowing and voluntary at the change-of-plea hearing, the court in
evaluating a subsequent motion to withdraw considers “whether the defendant has
established a fair and just reason to withdraw the plea,” and if so, “whether the
defendant asserts his legal innocence of the charge, the length of time between the
plea and the motion to withdraw, and whether the government will be prejudiced by
the withdrawal.” United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998). We
review the court’s decision to deny a motion to withdraw for abuse of discretion. Id.Whether a plea was knowing and voluntary is a mixed question of law and fact that
we review de novo. United States v. Smith, 422 F.3d 715, 724 (8th Cir. 2005).
A. The Alleged Missing Witnesses. At the hearing on the motion to
withdraw, counsel made “a proffer” as to Green’s understanding and state of mind at
the time of the plea, without offering evidence in support. Counsel asserted that, on
the morning of trial, Green understood from his attorney that Micah Richardson was
not present and that counsel had not subpoenaed Michelle Kendrick, Green’s former
girlfriend and owner of the car he drove to Omaha with the victim. As Richardson
would testify that the victim was in the car voluntarily, and Kendrick would testify she
had hidden the gun in the car, counsel’s ineffective assistance deprived Green of
evidence critical to his defense, leaving him no choice but to plead guilty.
The government responded that Richardson was present at the courthouse
waiting to testify at trial as a government witness. Though Richardson would have
testified that the victim was in Green’s car consensually while Richardson was with
them, he was dropped off before the victim claimed Green began forcing her to go to
Omaha. As for potential witness Kendrick, the government noted that, even if she
previously hid the handgun in the car, she was not present when the victim claimed
that Green brandished the firearm while taking her to Omaha. Thus, neither witness
would have established or even seriously advanced Green’s innocence. At the end of
the hearing, the court denied the motion, again finding that Green entered “a knowing
and informed plea of guilty . . . . What I hear is buyer’s remorse. . . . And as far as
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I’m concerned, his lawyer did a great job for him . . . . [H]e doesn’t have enough
evidence to get by a plea of guilty that was accepted by the court.” We agree.
At the change-of-plea hearing, Green satisfied the district court that he was
competent and capable, was knowingly and intelligently waiving his rights, and was
satisfied with his attorney’s services. These “[s]olemn declarations in open court
carry a strong presumption of verity.” Fitzhugh, 78 F.3d at 1329 (quotation omitted).
Green’s “self-serving, post-plea claims that he was . . . unable to voluntarily choose
to plead guilty fly directly in the face of his own plea hearing testimony before the
district court.” Gray, 152 F.3d at 820. Indeed, Green’s claim of “duress” was
unsupported by any evidence other than counsel’s proffer as to Green’s prior state of
mind. On this record, we have little difficulty concluding that Green “failed to
establish that his plea was involuntary and failed to show ineffective representation
of counsel.” United States v. Boone, 869 F.2d 1089, 1092 (8th Cir. 1989). We agree
with the district court that Green’s alleged duress on the day of trial was not a fair and
just reason to permit him to withdraw the plea.
B. The § 924(c) Count. Count I of the three-count superseding indictment
charged that Green kidnaped the victim by taking her in Kansas and transporting her
against her will to Nebraska in violation of 18 U.S.C. § 1201(a). Count II alleged that
Green used a firearm “during and in relation to a crime of violence” by brandishing
a firearm “during the kidnaping charged in Count I” in violation of 18 U.S.C.
§ 924(c). Count III was the felon-in-possession charge. After Green pleaded guilty
to Counts II and III, the government dismissed Count I.
Like 18 U.S.C. § 16(b), § 924(c)(3)(B) defines “crime of violence” to include
a felony offense “that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of committing the
offense.” See generally Leocal v. Ashcroft, 543 U.S. 1 (2004). Without question,
kidnaping is a crime of violence for purposes of § 924(c). See United States v.
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Wright, 340 F.3d 724, 731-32 (8th Cir. 2003). Early in the change-of-plea hearing,
the court explained to Green what the government must prove beyond a reasonable
doubt if he adhered to his plea of not guilty:
As far as count two is concerned, the government would have to
prove that you committed the crime of unlawfully and willfully seizing,
confining, kidnaping, abducting, or carrying away for ransom, reward,
or otherwise, a female, by taking said female against her will in Kansas
City, Kansas, and transporting her in interstate commerce to the state of
Nebraska.
They would also have to prove that during and in relation to the
commission of that crime you knowingly used, brandished, or carried
[the alleged] firearm.
As noted previously, after the prosecutor recited the factual basis for the plea, Green
confirmed that he transported the victim to Omaha with the firearm but did not agree
it was against her will. Defense counsel then interjected:
Judge, for purposes of a factual basis . . . the felon in possession
is obvious. . . . As to the use or carrying of the firearm during the
commission of a crime of violence, we do not agree that the crime of
violence would be the kidnaping, but a violation of the Mann Act, which
is transporting someone across state lines for purposes of prostitution.
Government counsel then added that, as the Mann Act is found in Chapter 117 of Title
18, a Mann Act violation is a crime of violence for purposes of the Bail Reform Act.
See 18 U.S.C. § 3156(a)(4)(C).2 In accepting the plea, the district court stated that it
2
Government counsel was ill-advised to suggest that the court accept a plea to
the § 924(c) charge based upon a different crime of violence than alleged in Count II
of the indictment. That procedure can raise serious issues of fair notice and proper
pleading. See United States v. Bradley, 381 F.3d 641, 646-47 (7th Cir. 2004).
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was “supported by an independent basis in fact concerning each of the essential
elements of the offenses charged in the superseding indictment.”
In his motion to withdraw the plea, Green argued that a Mann Act offense is not
a crime of violence within the meaning of § 16(b) as construed in Leocal, which in
turn governs the proper interpretation of § 924(c). Therefore, he argues on appeal, the
district court lacked “jurisdiction” to accept his plea of guilty to Count II. The issue
is not jurisdictional, because Count II of the superseding indictment did not fail to
charge a federal offense. See United States v. Pemberton, 405 F.3d 656, 659 (8th Cir.
2005); Hayle v. United States, 815 F.2d 879, 881-82 (2d Cir. 1987). Rather, the issue
is whether there was an adequate factual basis for the plea, see Fed. R. Crim. P.
11(b)(3), and if not, whether its absence provided Green with a sufficiently fair and
just reason to withdraw his plea.3 “[A] factual basis for a plea of guilty is established
when the court determines there is sufficient evidence at the time of the plea upon
which the court may reasonably determine that the defendant likely committed the
offense.” United States v. Marks, 38 F.3d 1009, 1012 (8th Cir. 1994).
On appeal, the parties focus at length on an unresolved issue -- whether a Mann
Act violation is a crime of violence for purposes of § 924(c). We conclude we need
not -- indeed, should not -- address that question. To convict, the government must
prove that a defendant charged with violating § 924(c) used a firearm in committing
a specific crime of violence. Here, Count II charged Green with brandishing a firearm
while committing the offense of kidnaping charged in Count I. In a handwritten
portion of his Petition to Enter a Plea of Guilty, Green wrote that he “possessed the
firearm during the commission of another offense that would be deemed a crime of
violence.” At the change-of-plea hearing, the factual basis for the plea to Count II
included a lengthy recital of what the victim’s testimony would have been had the
3
Even if this contention were sound, we doubt but need not decide whether it
would undermine Green’s guilty plea to Count III, the felon-in-possession charge.
See United States v. Morgan, 958 F.2d 847, 849-50 (8th Cir. 1992).
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case gone to trial that day. That the government later dismissed Count I is irrelevant
to the issue before us, since a § 924(c) defendant need not be convicted of the
underlying crime of violence. Myers v. United States, 993 F.2d 171, 172 (8th Cir.
1993). Likewise, Green’s assertion that he did not transport the victim against her will
did not undermine the factual basis for his plea of guilty to Count II as charged in the
indictment because a kidnaping victim’s testimony that she was transported
involuntarily is “normally sufficient” on that issue. Wright, 340 F.3d at 731(quotation omitted). In these circumstances, the district court reasonably determined
at the conclusion of the change-of-plea hearing that the stated factual basis for the plea
included sufficient evidence to conclude that Green likely committed the § 924(c)
offense charged in the superseding indictment, namely, brandishing a firearm while
kidnaping the victim. Therefore, Green failed to show a fair and just reason to
withdraw his plea of guilty to Count II.
The judgment of the district court is affirmed.
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