United States v. Barker

J. SKELLY WRIGHT, Circuit Judge:

Appellants challenge denial by the District Court of their motions to withdraw guilty pleas to seven counts of an indictment arising out of the now-famous “Watergate Break-in.” We affirm. We find in the court’s action a proper exercise of its discretion under Rule 32(d), Federal Rules of Criminal Procedure.¹

I. THE PROCEEDINGS

Appellants were the foot soldiers of the Watergate Break-in. They came to the affair from the anti-Castro movement, centered in Miami’s Cuban-American community, and from a long history of service in the Central Intelligence Agency (CIA) and, apparently, in other official or quasi-official agencies specializing in “clandestine” operations. In the early morning hours of June 17, 1972, District of Columbia police found them inside the headquarters of the Democratic Party’s National Committee (DNC) in the Watergate office complex. They had entered surreptitiously, picking the locks; they wore rubber surgical gloves to obscure fingerprints; they had been rifling through the DNC’s documents and papers and carried with them devices and tools for electronic “bugging” and “wiretapping.”

Arrested with them was James McCord,² a former CIA agent who was then employed as a security officer by the Committee for Re-Election of the President [Richard M. Nixon] (CRP); the next few days brought the arrest of their immediate supervisors in the bizarre enterprise: E. Howard Hunt,³ a former CIA agent who was then, or had recently been, employed as a “consultant” to the White House, with an office in that building; and G. Gordon Liddy,⁴ a former White House employee who was then employed as General Counsel to the Finance Committee for the ReElection of the President (FCRP).

The purpose of the operation was to gather political information damaging to the Democratic Party and, by consequence, useful to the President’s reelection effort. But appellants now claim that, at the time of the break-in, they sincerely, though erroneously, believed the operation to be a “national security” mission, authorized by a “government intelligence agency,” to examine alleged financial ties between the Democratic Party and the Castro regime in Cuba; appellants further contend that, at the time they tendered their guilty pleas, they sincerely, though again erroneously, believed that the selfsame “intelligence agency” wished them to maintain silence about the operation and forfeit their right to a trial. Referring to these twin erroneous beliefs, appellants urge that withdrawal of their pleas should be granted because the pleas were entered under circumstances of “fraud” and “duress,” and because the break-in was executed, on their part at least, without the “criminal intent” requisite to conviction.

Before exploring the legal issues raised by appellants’ contentions, it is necessary to recount in rather extensive detail the proceedings as they evolved in the District Court.

A. The Indictment, the Trial, and the Pleas

An indictment issued on September 15, 1972, charging each of the appellants with seven counts, including burglary, illegal electronic surveillance, and conspiracy.⁵ McCord, Hunt, and Liddy were also charged in the indictment. The seven defendants pleaded not guilty to all charges, and on January 8, 1973, jury selection commenced for a trial before then Chief Judge John J. Sirica. Appellants were represented by retained counsel, Henry Rothblatt, Jr., a noted criminal t trial lawyer.

On January 10, 1973, the prosecution made a detailed opening statement to the jury, outlining the evidence and testimony which the Government planned to introduce. The prosecutor alleged that Liddy, Hunt, and McCord had used funds from the FCRP in a systematic program of espionage against the Democratic Party and its presidential candidates. This program allegedly included, among other oddities, an unsuccessful conspiracy to break into and “bug” the Washington headquarters of Senator George McGovern, and two break-ins, to install electronic eavesdropping devices, at the DNC’s Watergate headquarters. The prosecutor charged that each appellant participated in the conspiracy to bug McGovern headquarters and in the two Watergate break-ins; that appellant Barker had interviewed ex-CIA personnel for an information-gathering “operation” against the Democratic National Convention and “against certain [Democratic Party] leaders,” particularly Lawrence O’Brien, Chairman of the DNC; and that Barker had received from the FCRP, and cashed, five checks totalling $114,000. As to the defendants’ motives, the prosecutor stated:

Obviously it was a political motive, political campaign. The operation was directed against the Democratic Party, particularly Senator George McGovern, because of his alleged left-wing views. You heard me you [sic] tell you what defendant McCord was primarily interested in on those monitored conversations Mr. Baldwin was hearing [conversations monitored from a wiretap installed at DNC headquarters], whether a sensitive or personal nature.

The interests of the persons, the defendants in this case may vary, that is, the motivation of defendant Hunt and defendant Liddy may have been different from the motivations of the four defendants from Miami, and they in turn may have had a different motivation from defendant McCord. Certainly the facts will suggest itself to you based on the information that we produce before you it was a financial motive here, financial motive. At least on the part of those who were arrested inside the Watergate the early morning hours of June 17th.

Tr. 62-63. The prosecutor claimed that appellants had been in dire financial straits before joining the conspiracy and that they had been given very large sums of money for their participation.

Opening statements were also made by McCord’s lawyer and by Rothblatt, appellants’ counsel. Both attorneys emphasized the issue of motives. Thus, McCord’s lawyer said:

I can tell you what the evidence will not show. The evidence will not show that Mr. McCord was present at the Watergate on the night in question for any type of financial reward or gain. ******

We will show that Mr. McCord had no criminal intent. We will show that Mr. McCord was not aware of all of those facts which might make his conduct criminal.

He had no evil-meaning mind. He had no evil-doing hand.

Tr. 78-79. Rothblatt’s opening argument outlined a similar defense.

But I ask you on behalf of my clients to pinpoint the evidence as it unfolds on Barker, Sturgis, Gonzalez, and Martinez [appellants here], as to their criminal intent, evil mind, and motives.

* * * [W]e underline “motives” and we ask you to concentrate your attention on the motives in this case. ******

The evidence will show that all of these four accused were part of our Government and served our Government during a planned operation on behalf of our Government back in 1951 that Mr. Silbert [the prosecutor] referred to as the Bay of Pigs.

These were men who took orders in military fashion and never questioned orders. These were men who were used to serving their Government loyally and following orders.

THE COURT: Let me ask you a question. Is it your [d]efense that they were taking orders from somebody, were ordered to go into the Watergate? Is this what you are going to show?

MR. ROTHBLATT: I think the evidence even as outlined by Mr. Silbert shows that in part, Your Honor.

THE COURT: I wish you would get down to the basic issues here: why did they go into the Watergate? Tell the Qj]ury what you think the evidence is going to be.

MR. ROTHBLATT: * * * The evidence will show that they were following their instructions in typical military fashion; that they have been trained to follow with no evil motive.

Tr. 82, 86, 88. During these opening statements, the judge made clear that he viewed the issue of “criminal intent” as an important one.

Of course the Jury is going to want to know why the men went in there. * * * That is one of the crucial issues in the case. Who paid them. Did they get any money to go in there. Was it purely for political espionage. What was the purpose.

I think these are the things that might be discussed in a case like this. Tr. 88.

Immediately following these opening arguments, Hunt’s attorney announced in open court that his client wished to change his plea to guilty with respect to three of the six counts charged against him. The prosecutor stated his acceptance of this compromise plea, but the next day, January 11, 1973, the court rejected the plea offer, noting the Government’s apparent ability “to introduce substantial evidence relating to all eight counts of the indictment” “against Mr. Hunt and the other Defendants.” Tr. 108. Hunt thereupon recast his plea to encompass all of the counts charged against him, and the court accepted the enlarged plea. The trial then continued, with five Government witnesses appearing on January 11. One of these witnesses testified that Hunt had asked him to join the Democratic campaign organization to gather general political information for the CRP. Another witness testified that he had been hired by Hunt to obtain information on the location of heating ducts and electrical outlets at Muskie and McGovern headquarters.

On January 12 appellants wrote an extraordinary letter to their attorney, Rothblatt, which he immediately delivered to the court. The letter read:

We have been asking you since Sunday, January 7, 1973 to change our plea from not guilty to guilty. You have not complied with our request. We have made it clear from the beginning that the defense which you presented in your opening statement to the press is not acceptable to us.

We respectfully inform you as of this date, January 12, 1973 you will no longer represent us. We intend to pay any reasonable fees presented by you. Please accept our sincere gratitude for your past services.

Sealed Tr. 305-306. Rothblatt told the court he had refused, and would continue to refuse, to plead his clients guilty.

I indicated to them in no uncertain terms that I would not be their attorney to enter a plea of guilty for reasons that I am aware of, but I couldn’t in good conscience as a member of the bar, knowing my professional responsibilities, undertake to do that knowing what I do and I would be derelict in my duty as a lawyer. I would feel I would be subject, from what I know, to the wors[t] kind of professional criticism. If they want to get somebody else, do it, that is all right but I cannot in good conscience get up before Your Honor and tell you my clients have met all Constitutional requirements when they entered a plea of guilty.

Sealed Tr. 308 — 309. Beyond this Rothblatt would not go, even in camera, for fear of “breaching a confidential communication” with his clients. Sealed Tr. 309.

The court instructed Rothblatt to confer with his clients on the problem. Several hours later, Rothblatt reported that appellants desired appointment of new counsel, for the purpose of entering guilty pleas. The court then met with appellants in camera to explore their wishes. Each appellant professed his satisfaction with, and gratitude for, Rothblatt’s representation, but each stated that an insoluble lawyer-client disagreement existed on the issue of guilty pleas. The court offered to appoint a new, additional counsel to confer with appellants on the issue of pleading, but stressed that Rothblatt would remain their lawyer should they wish to continue contesting the charges. Appellants embraced this proposal. The court immediately appointed Alvin Newmyer, a highly experienced Washington attorney, as appellants’ new counsel. The prosecutor and Rothblatt offered Newmyer full cooperation, and the court recessed the trial for the weekend to give Newmyer an opportunity to acquaint himself with the case and with his new clients.

The following Monday morning, January 15, 1973, Newmyer informed the court his clients wished to plead guilty. He proclaimed his satisfaction that the pleas would be voluntary and made without coercion, inducement, or promises. The prosecutor informed the court that a compromise plea to three counts would be acceptable to the Government, but the court rejected any notion of compromise. Newmyer then stated his clients were willing to plead guilty to all seven counts charged. At the court’s explicit instructions, Newmyer advised appellants that pleading guilty would require them to answer many questions from the bench, and to answer them truthfully. Appellants said they were prepared for this.

The judge thereupon examined and educated appellants according to Rule 11, Federal Rules of Criminal Procedure. This was a voir dire of extraordinary thoroughness; it covers more than 50 pages of typed transcript. Throughout, the judge’s obvious purpose was to warn appellants’ of the gravity of a guilty plea and to root out their precise reasons for wishing to plead guilty. He explained in great detail each of the constitutional rights forfeited by a guilty plea. He made sure appellants were “thoroughly satisfied with the advice Mr. Newmyer had given.” He explained each element of each crime charged in the indictment, detailing exactly what the Government would have been required to prove beyond a reasonable doubt. He carefully enumerated the sentences which might lawfully be imposed for each count in the indictment. Most importantly, the court went to great lengths in seeking to uncover appellants’ reasons for participating in the break-in and for deciding to plead guilty.

Now, it is rather lengthy, but I want to be very careful that all of you understand what you are doing, that is the purpose of these questions, because if I am not convinced after I finish my questions that there is a basis in the alleged evidence in this case as outlined by the Government and any other things you might know, if I am not convinced that you are doing this knowingly, voluntarily, without any coercion, threats or anything like that, I don’t have to accept the plea and then you will stand trial.

Do you understand that?

THE DEFENDANTS: (In chorus) Yes, Your Honor.

THE COURT: I want you to be straightforward with these questions. I want you to come forward in a truthful manner, I don’t care who they might hurt or help, it doesn’t make any difference to this Court who you might mention or who it hurts or helps, just so you don’t involve any innocent people.

Do you understand that?

THE DEFENDANTS: (In chorus) Yes, sir.

THE COURT: I want that thoroughly understood. I think I stated my position in this case from the beginning. Don’t pull any punches. You give me frank answers. Any people involved that shouldn’t be involved, I want to know it and the Grand Jury will want to know it.

Do you understand that, is that clear, Mr. Martinez, Mr. Barker, Mr. Sturgis, and Mr. Gonzalez?

THE DEFENDANTS: (In chorus) Yes, sir.

Tr. 385-386.

Under skeptical, repeated, and vigorous questioning, appellants confessed that the Government’s opening statement had been substantially accurate, and that it established their guilt on each count. Each separately denied knowing whether anyone other than.the indicted defendants had been involved in planning the break-in and related activities. Appellants denied knowing where their expense money had come from. They denied ever having been employed by the CIA. Each appellant stated that he had participated in the break-in in the belief, instilled by Hunt, that it would somehow advance the cause of anti-Communism in Cuba. Beyond this, they insisted, they knew nothing. As to their motives for pleading guilty, appellants denied any outside pressures or inducements. The voir dire touched on this issue again and again; one excerpt conveys the tone:

THE COURT: Has anyone promised any of the four of you if you plead guilty to any one or all of the counts that you will serve a short term or get executive clemency or commutation of sentence?

THE DEFENDANTS: (In chorus) No, Your Honor.

THE COURT: Are you sure of that?

THE DEFENDANTS: (In chorus) Yes, sir.

THE COURT: Has any pressure of any kind been used on any one or all four of you from any person in any walk of life to keep you from talking in this case?

THE DEFENDANTS: (In chorus) No, Your Honor.

THE COURT: From telling what happened. Did Mr. Hunt urge any one or all of you to plead guilty in this case?

THE DEFENDANTS: (In chorus) No, Your Honor.

THE COURT: I think I have asked you this in substance: Have any one of you been promised that your families will be taken care of during whatever time you may have to serve in prison?

THE DEFENDANTS: (In chorus) No, Your Honor.

THE COURT: Are any of you being paid by anyone for anything?

THE DEFENDANTS: (In chorus) No, sir.

Tr. 420-421.

As noted, the judge’s questioning was highly skeptical. For instance, after pressing Barker again and again on the financing of the break-in, the court expressed its exasperation.

THE COURT: * * * Where did you get that money that you used to pay those men’s expenses?

MR. BARKER: Your Honor, I got that money in the mail in a blank envelope.

THE COURT: I am sorry, I don’t believe you.

Tr. 417. It was obvious that appellants were reluctant to tell all they knew about the detailed planning of the break-in. But the facts of their own participation had been laid out by the Government and fully admitted by appellants, and appellants absolutely insisted upon pleading guilty. For the judge to have pushed his inquiries further would not only have delayed the trial of the remaining defendants but also usurped its fact-finding function. Unable to shake appellants’ determination to plead guilty, the judge finally accepted the pleas and committed each appellant on $100,000 bond pending receipt of a presentence report.

The Watergate trial continued without appellants or Hunt, ending with jury verdicts of guilty, on all counts, against the remaining defendants, Liddy and McCord. On March 23, 1973, the court committed appellants to the custody of the Attorney General, for tentative maximum terms, under 18 U.S.C. § 4208(b) (1970), pending final sentencing.

B. The Motions to Withdraw Guilty9 Pleas

On September 14, 1973, prior to final sentencing, appellants moved to withdraw the guilty pleas entejad eight months earlier. The motion asserted that the pleas “were inaccurate because defendants had and have valid defenses to the charges against them,” that the appellants “believed that they had been directed to plead guilty to the charges to avoid the exposure of secret, confidential, and sensitive national security operations of which they were a part,” and that the pleas were “the product of a blind and ignorant loyalty fostered in these defendants’ minds by deceptions practiced on them by others who purported to act under color of a higher law.”

The motion was premised on two related contentions: (a) that, at the time of the break-in, appellants believed the affair to be a “national security” operation authorized by a “government intelligence agency”, and (b) that, at the time of their guilty pleas, appellants believed “national security” considerations precluded disclosing this Government authorization, and thus precluded defending against the charges. Appellants conceded that “[sjubsequent events have demonstrated that the June 17, 1972 operation was purely political in nature and was neither sponsored nor approved by any federal government intelligence agency for national security purposes.” Appellants further conceded that subsequent events had shown that their silence at trial was not in fact required by “national security” considerations.

At the court’s request, each appellant submitted a sworn affidavit explaining how his erroneous beliefs had been formed concerning the sponsorship of the break-in and the need for silence at trial. We recount here the gist of these affidavits.

Sponsorship: Hunt had hired Barker and, through him, the other appellants. The reputations of Hunt and Barker instilled appellants’ belief that the Watergate break-in was an “official” operation. Hunt had been Barker’s “supervisor” in the Bay of Pigs Invasion and was widely known in Miami’s Cuban-American community as a CIA agent. Martinez had long been on a CIA retainer. Sturgis, after participating in the Bay of Pigs, had continued to work in various unidentified “clandestine operations” against the Castro regime. Gonzalez was aware of the CIA connections of his colleagues.

Appellants had worked on other operations for Hunt which appeared to have official authorization. Though Hunt was formally “retired” from the CIA, he had an office at the White House. In August 1971 Hunt engaged Barker to “help him on a matter of national security [which] involved a traitor to this country who had been giving information to the Russian Embassy.” As part of this mission Hunt, Liddy, Barker, and Martinez broke into the office of Daniel Ellsberg’s psychiatrist. This, Hunt had represented, was at the behest of “a national security intelligence agency that had greater jurisdiction than both the FBI and the CIA.” Hunt told Barker that the tools and equipment used in the Ells-berg operation had been furnished by the CIA. Hunt had also asked Barker to provide the names of possible recruits for an information-gathering operation during the Democratic National Convention, and these names were, according to Hunt, subsequently “cleared” by higher officials. Hunt had also arranged for appellants to stand guard at the casket of former FBI Director J. Edgar Hoover during memorial services in Washington.

As for the Watergate Break-in, Hunt told appellants that the DNC was receiving money from Castroite sources in Cuba; their mission was to photograph and “secure” documents relevant to this financing, in the interest of “national security.” Appellants’ phony identification papers were supplied by the CIA. Appellants had “no reason to doubt Mr. Hunt’s representations or his authority” because he appeared to have inside information concerning Government affairs— e. g., advance notice of the mining of Haiphong Harbor and of the retirement of CIA Director Richard Helms. Appellants’ affidavits do not claim that any Government official — other than Hunt— ever spoke to them about the Watergate operation or vouched for Hunt’s “authority” to undertake it.

Silence at trial: The affidavits identify several facts and circumstances, following the arrest, which led appellants to plead guilty.

When one is apprehended in such an operation one of two things happen. Either you go to jail because the government denies the entire thing or you are not incarcerated because the government makes secret arrangements or publicly acknowledges responsibility for the operation. Those who have been apprehended have no choice in that decision. If the government does not acknowledge responsibility then assistance is provided in the form of expenses, attorneys and financial help for the families.⁶

Appellants received funds, through Hunt’s wife, for maintaining their families. Lawyers appeared to represent them and were paid from these same funds. Rothblatt told Barker, “at some point prior to our trial,” that “we were going to be able to use as our defense that the Watergate operation had been a CIA operation.” ⁷ But McCord objected to using the defense because “the CIA had not approved it [the defense].” ⁸ At about this time, Hunt entered his guilty plea. From this, each appellant drew a clear inference. Barker’s affidavit is representative:

After we came to Washington for our trial * * * I was told by Mr. Hunt that he had decided to plead guilty and that we did not have any defense. This represented to me a final decision that there would be no disclosure at the trial as to the true nature of the operation we had engaged in and that the plan which was to be followed was for us to plead guilty and I did so.

As for hiding their true concerns from Judge Sirica, Barker’s affidavit explains:

My belief that this was a government operation which was not supposed to be disclosed was reinforced by the questioning by the Court * * *. In particular, the Court inquired of us whether we had ever worked for the Central Intelligence Agency. For Judge Sirica to ask me to respond in open Court to that question signalled to me that he had not been informed by the government of this fact, was not supposed to know and that I was not supposed to reveal that anymore than I was supposed to reveal the nature of the operation itself. I viewed this matter as being the same as regarding Mr. Ellsburg [sic] and his case. It was not my position to make any disclosure as to this operation to say nothing of revealing the existence of the Fielding office entry [the break-in at the office of Ellsberg’s psychiatrist]. The government knew about both and the decision as to disclosure was that of the government, not mine.

Appellants inferred the continuing necessity to remain silent, after their pleas, from the fact that they and Hunt were “all kept together in jail as a unit.” This, appellants concluded, was “so that Mr. Hunt would continue to be in a position to serve as our supervising agent.” ⁹

Appellants do not claim that any Government official approached them with a request to remain silent, for “national security” purposes or any other. Nor do appellants claim to have made their own inquiries on this point, either personally or through counsel.

C. The Court’s Ruling and Sentencing

On November 5, 1973, Judge Sirica considered briefs, and heard oral argument, on the appellants’ motion and affidavits. Appellants’ factual claims were not subjected to an evidentiary hearing. The withdrawal motion was denied on November 7. Though no opinion was filed, the court has filed a statement of reasons for its denial of bail pending sentencing. In this statement the court noted that an extensive voir dire was conducted before the guilty pleas were accepted; that the pleas were based on the Government’s contentions in opening argument which furnished “ample evidence to conclude that there existed a factual basis” for the pleas; that appellants had been represented throughout by competent counsel; and that the motion to withdraw came many months after the Dleas were entered.¹⁰

Final sentences were imposed on appellants on November 12, 1973. For each appellant, sentences on all counts were imposed concurrently, resulting in a liability of 18 months to 6 years for Barker, and of 1 to 4 years for each of the other appellants.¹¹

II. THE LEGAL STANDARD FOR WITHDRAWING GUILTY PLEAS

A. Applicability of the “Fair and Just” Standard

While Rule 32(d)¹² permits post-sentence withdrawal of a guilty plea only to prevent “manifest injustice,” the rule lays down no particular standard for deciding withdrawal motions filed prior to sentencing. However, the federal courts, relying on Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), have uniformly ruled that presentence motions should be granted wherever such would be “fair and just.” E. g., Kadwell v. United States, 315 F.2d 667 (9th Cir. 1963); Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499 (1959). See generally, Note, Presentence Withdrawal of Guilty Pleas in the Federal Courts, 40 N.Y.U.L.Rev. 759 (1965). Though even presentence motions are addressed to the sound discretion of the District Court, Everett v. United States, 119 U.S.App.D.C. 60, 336 F.2d 979 (1964), with appellate reversal uncommon, see 8A J. Moore, Federal Practice ¶ 32.07[1] (2d ed. 1973), the “fair and just” standard is obviously more lenient than that of “manifest injustice,” Gearhart v. United States, supra, 106 U.S.App.D.C. at 273, 272 F.2d at 502. Appellants’ motions were filed prior to final sentencing but some months after appellants’ commitment • to the custody of the Attorney General, under tentative maximum terms, pursuant to 18 U.S.C. § 4208(b).¹³ We have concluded that these motions should be judged under the “fair and just” standard normally applicable to presentence withdrawal motions.

When Section 4208(b) is invoked, the court in effect sentences the defendant twice, the first time to a provisional full term, to give prison and parole officials a three- to six-month period to compile background information on the defendant, the second time to a shorter term, based on the information compiled. This two-stage process finds no echo in the Federal Rules of Criminal Procedure, which everywhere refer merely to “sentencing,” as if this were inevitably a one-stage process. Conforming the Rules to the statute has required considerable ingenuity. See, e. g., United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963), holding that a defendant’s Rule 43 right to be present at sentencing applies to final sentencing under Section 4208(b), and Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963), holding that appeal of a conviction may be filed after either tentative or final sentencing under Section 4208(b). The Supreme Court has yet to construe Rule 32(d) in the context of the Section 4208(b) sentencing process. Several circuits have left the issue open, e. g., United States v. McCoy, 477 F.2d 550 (5th Cir. 1973), and Callaway v. United States, 367 F.2d 140 (10th Cir. 1966), while the Ninth Circuit has held that a withdrawal motion filed between tentative and final sentencing should be judged against the “presentence” standard of fairness and justice, United States v. Thomas, 415 F.2d 1216, 1218 (9th Cir. 1969), and Sherman v. United States, 383 F.2d 837, 840 (9th Cir. 1967).

The Ninth Circuit’s position seems to us sensible, and we adopt it. Two reasons of policy have been advanced to explain the near-presumption which Rule 32(d) erects against post-sentence withdrawal motions. The first is that post-sentence withdrawal subverts the “stability” of “final judgments.” High v. United States, 110 U.S.App.D.C. 25, 27, 288 F.2d 427, 429, cert. denied, 366 U.S. 923, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961), and Kadwell v. United States, supra, 315 F.2d at 670. The second reason is that the post-sentence withdrawal motion often constitutes a veiled attack on the judge’s sentencing decision; to grant such motions in lenient fashion might

undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process.

Kadwell v. United States, supra, 315 F.2d at 670. Concern for the “stability of final judgments” has little application to withdrawal motions filed between tentative and final sentencing under Section 4208(b). The point at which a defendant’s judgment of conviction becomes “final” for purposes of appeal— whether at tentative or at final sentencing — is wholly within the defendant’s discretion. Corey v. United States, supra. Concern for the integrity of the sentencing process is, however, another matter. The major point, in our view, is that tentative sentencing under Section 4208(b) leaves the defendant ignorant of his final sentence. He will therefore be unlikely to use a withdrawal motion as an oblique attack on the judge’s sentencing policy. The relative leniency of the “fair and just” standard is consequently not out of place. We recognize, however, that application of that standard may require some adjustments in the context of Section 4208(b) sentencing.

If such motions had to be routinely granted, trial judges might react by cutting back on use of Section 4208(b) procedures, which would be highly unfortunate. Compare United States v. Youpee, 419 F.2d 1340, 1343 (9th Cir. 1969). Furthermore even tentative sentencing may encourage frivolous motions, for the tentatively sentenced defendant is at least aware that probation or a suspended sentence are unlikely. Finally, a motion filed after tentative sentencing will typically come a rather long time after the guilty plea itself, and granting it may consequently threaten unusual prejudice to the Government or unusual inconvenience for the court or for those who have expended effort preparing presentence reports. But none of these concerns seems to us sufficiently weighty to justify imposing the onerous “manifest injustice” standard on withdrawal motions filed between tentative and final sentencing. Rather, these concerns may be given their appropriate, individual weight by the judge in exercise of his broad discretion under the “fair and just” standard. As we now proceed to explain, that standard is a flexible guide, not a rigid formula, and it is accordingly adaptable to the peculiarities of the Section 4208(b) sentencing process.

B. Meaning of the “Fair and Just” Standard

Needless to say, the terms “fair and just” lack any pretense of scientific exactness. As a Court of Appeals will reverse denial of a withdrawal motion only upon finding an abuse of discretion, the precise “meaning” of the standard lies buried in the unreported actions of federal trial judges. Nevertheless, some rough guidelines have emerged in the appellate cases.

Whether the movant has asserted his legal innocence is an important factor to be weighed. United States v. Joslin, 140 U.S.App.D.C. 252, 256, 434 F.2d 526, 530 (1970); Gearhart v. United States, supra. If the movant’s factual contentions, when accepted as true, make out no legally cognizable defense to the charges, he has not effectively denied his culpability, and his withdrawal motion need not be granted. Everett v. United States, supra. On the other hand, where the motion does assert legal innocence, presentence withdrawal should be rather freely allowed. E. g., United States v. Joslin, supra, 140 U.S.App.D.C. at 257, 434 F.2d at 531; United States v. Young, 424 F.2d 1276, 1279 (3rd Cir. 1970); Kadwell v. United States, supra; Gearhart v. United States, supra, 106 U.S.App.D.C. at 273, 272 F.2d at 502; Poole v. United States, 102 U.S.App.D.C. 71, 75, 250 F.2d 396, 400 (1957).

This is not to say, however, that the mere assertion of a legally cognizable defense is always a sufficient condition for securing withdrawal of a plea. While some decisions have come close to suggesting that a mere assertion of innocence is enough to merit withdrawal, each of these cases involved the additional, and obviously important, consideration that the guilty pleas at issue had been entered under highly questionable circumstances. Thus, in United States v. Young, supra, the defendant had misunderstood the crimes charged; in Kadwell v. United States, supra, counsel was clearly ineffective when the plea was entered; in Gearhart v. United States, supra, there was strong evidence the defendant had been mentally ill when he entered his plea; and in Poole v. United States, supra, the plea had been entered hastily at arraignment, without benefit of counsel.

Were mere assertion of legal innocence always a sufficient condition for withdrawal, withdrawal would effectively be an automatic right. There are few if any criminal cases where the defendant cannot devise some theory or story which, if believed by a jury, would result in his acquittal. A guilty plea is very typically entered for the simple “tactical” reason that the jury is unlikely to credit the defendant’s theory or story. See McCoy v. United States, 124 U.S.App.D.C. 117, 119, 363 F.2d 306, 308 (1966). Indeed, so long as a factual basis for the plea exists, see Rule 11, Fed.R.Crim.P., a court may accept such a “tactical” guilty plea even from a defendant who continues to assert his innocence. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Surely, such a defendant does not retain a right automatically to withdraw his plea. A guilty plea “frequently involves the making of difficult judgments.” McMann v. Richardson, 397 U.S. 759, 769, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); see also Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant’s whim. In fact, however, a guilty plea is no such trifle, but “a grave and solemn act” which is “accepted only with care and discernment.” Brady v. United States, supra, 397 U.S. at 748, 90 S.Ct. at 1468. It follows that a court, in addressing a withdrawal motion, must consider not only whether the defendant has asserted his innocence, but also the reason why the defenses now presented were not put forward at the time of original pleading. See United States v. Needles, 472 F.2d 652 (2d Cir. 1973); United States v. Webster, 468 F.2d 769, 771 (9th Cir. 1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597 (1973); United States v. Fernandez, 428 F.2d 578 (2d Cir. 1970); United States v. Thomas, supra; Callaway v. United States, supra; United States v. Giuliano, 348 F.2d 217 (2 Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 390, 15 L.Ed.2d 349 (1965); Hawk v. United States, 119 U.S.App.D.C. 267, 271 n. 12, 340 F.2d 792, 796 n.12 (1964).

The reasons given by the movant for “delaying” assertion of his defenses by means of an intervening guilty plea must be weighed according to the circumstances of his particular case. It should go without saying that the standard is very lenient when the plea was entered unconstitutionally or contrary to Rule 11 procedures. Such pleas should almost always be permitted to be withdrawn, both before and after sentencing, regardless of whether the movant has asserted his legal innocence. See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). By the same token, however, where the plea itself was properly entered withdrawal is not an automatic right and more substantial reasons for delay must generally be asserted. United States v. Sambro, 147 U.S.App.D.C. 75, 77, 454 F.2d 918, 920 (1971); United States v. Joslin, supra; United States v. Giuliano, supra, 348 F.2d at 222; United States v. Hughes, 325 F.2d 789 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964).

Even where the plea was properly entered, however, the standard for judging the movant’s reasons for delay remains low where the motion comes only a day or so after the plea was entered. See United States v. Joslin, supra, and Kadwell v. United States, supra. A swift change of heart is itself strong indication that the plea was entered in haste and confusion; furthermore, withdrawal shortly after the event will rarely prejudice the Government’s legitimate interests. By contrast, if the defendant has long delayed his withdrawal motion, and has had the full benefit of competent counsel at all times, the reasons given to support withdrawal must have considerably more force. United States v. McCoy, supra, 477 F.2d at 551; United States v. Youpee, supra, 419 F.2d at 1343; Callaway v. United States, supra, 367 F.2d at 142. The movant’s reasons must meet exceptionally high standards where the delay between the plea and the withdrawal motion has substantially prejudiced the Government’s ability to prosecute the case. United States v. Vasquez-Velasco, 471 F.2d 294 (9th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2163, 36 L.Ed.2d 692 (1973); United States v. Harvey, 463 F.2d 1022 (4th Cir.), cert. denied, 411 U.S. 972, 93 S.Ct. 2162, 36 L.Ed.2d 696 (1972); United States v. Del Valle-Rojas, 463 F.2d 228 (9th Cir. 1972); United States v. Tabory, 462 F.2d 352 (4th Cir. 1972); United States v. Lombardozzi, 436 F.2d 878 (2d Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1379, 28 L.Ed.2d 648 (1971); United States v. Stayton, 408 F.2d 559, 561 (3rd Cir. 1969); Pelletier v. United States, 121 U.S.App.D.C. 349, 350 F.2d 727 (1965). The most common form of prejudice is the difficulty the Government would encounter in reassembling far-flung witnesses in a complex case, but prejudice also occurs where a defendant’s guilty plea removed him from an ongoing trial of co-defendants, who were then found guilty. 8A J. Moore, Federal Practice ¶32.07[2] (2d ed. 1973). That withdrawal would substantially inconvenience the court is also a proper factor for consideration. Everett v. United States, supra, 119 U.S.App.D.C. at 65, 336 F.2d at 984; Pelletier v. United States, supra.

III. THE STANDARD APPLIED TO APPELLANTS’ MOTIONS

By way of asserting their legal innocence, appellants advance several “defenses” to the indictment. They also provide reasons, of a sort, for suppressing these “defenses” at trial and delaying public assertion until eight months after pleading guilty. Even if the “defenses” now asserted by appellants had legal merit, a question we do not reach, it is our view that appellants’ reasons for delaying their assertion are insufficient to require granting the withdrawal motion, particularly in light of appellants’ provisional sentencing under 18 U.S.C. § 4208(b). See Part II-A supra. We accordingly conclude that Judge Sirica operated well within the borders of a sound and reasoned discretion in denying appellants’ motions.

Appellants claim they pleaded guilty, suppressing their “defenses,” because they honestly, though mistakenly, believed that “national security” considerations required their silence. In testing the adequacy of this explanation, we must look to the circumstances of the case. See Part II-B supra.

These guilty pleas were not ill-considered or offered in haste. In its opening statement the prosecution had outlined an overwhelming case against appellants. The pleas were accepted only after an extraordinarily elaborate procedure, stretching over four days, conducted largely in camera, and involving two competent and loyal attorneys. Neither counsel, prosecutor, nor judge exerted the slightest pressure on appellants to induce them to plead guilty; indeed the judge and attorney Rothblatt clearly bent every effort to dissuade appellants from this course. Rothblatt was obviously prepared and willing to present the “lack of criminal intent” defense which appellants now advance in support of their motions. By discharging Rothblatt, appellants rejected that tactic in the most resolute and dramatic fashion conceivable.

Appellants’ withdrawal motion did not come until eight months after the pleas had been entered and their co-defendants, Liddy and McCord, had been convicted. For that reason, it is very likely that withdrawal of the pleas would substantially prejudice legitimate prosecution interests. The pleas interrupted in mid-testimony a trial of unusual complexity. Though no important witness has, apparently, died in the interim, there would be numerous practical difficulties in reassembling the witnesses and evidence for trial.

You do not assemble a case of this kind for trial twice * * *. When a plea is taken in the middle of trial, it has to be taken with the utmost deliberation simply because the public’s right is going to be compromised if there is something wrong with the plea-taking.

United States v. Lombardozzi, supra, 436 F.2d at 881. Besides the practical difficulties of reassembling this case for trial, intervening events have worked to further prejudice any future prosecution. First, of course, the trial of appellants’ co-defendants continued with attendant publicity, after the court accepted appellants’ guilty pleas. Out of a concern for just such publicity, Judge Sirica carefully selected and sequestered the original jury; prospective jurors for a trial now of appellants presumably will have been exposed to this publicity covering the facts of this case, thus making the jury selection problem more difficult. Second, after the guilty pleas were entered, appellants were granted “use immunity” so that they might testify concerning the break-in before the grand jury and before congressional committees. Had the Government known that appellants intended to revoke their pleas, it would very likely have abstained from securing their immunization, for the trial of pre-immunized defendants is obviously, and quite properly, a very difficult, if not impossible, task.

We also consider it important that appellants’ withdrawal motion is premised on claims directly contrary to the representations which appellants made to Judge Sirica during the plea-taking procedure. He asked them if they had ever been employed by the CIA, and they lied that they had not. He asked them if they were pleading guilty for some reason of loyalty, coercion, or inducement, and they lied that they were not. He asked their motives for participating in the break-in, and they retreated into generalities and half-truths. By definition, a motion to withdraw a plea constitutes a formal disavowal, but this case goes well beyond that. Appellants willfully abused and misled the court on matters of critical public importance. To grant a plea withdrawal under such circumstances would require a reason of genuinely compelling force.

Appellants’ proffered reason does not meet any such test. Appellants do not allege that any Government official urged them to plead guilty for “national security,” or any other, reasons. Their affidavits contain no allegation that the “Government” unconstitutionally coerced or induced their pleas. Contrast North Carolina v. Alford, supra, 400 U.S. at 31, 91 S.Ct. 160; McMann v. Richardson, supra, 397 U.S. at 772, 90 S.Ct. 1441; Brady v. United States, supra, 397 U.S. at 747-48, 90 S.Ct. 1463. If appellants had alleged and could demonstrate that some Government official had deceived them about their “patriotic duty” to remain silent, withdrawal of their pleas might be proper. Compare United States v. Tateo, 214 F.Supp. 560, 566-67 (S.D.N.Y.1963). But appellants claim only that various “circumstances” —chiefly Hunt’s guilty plea — gave them the subjective impression that someone or some agency in the Government wished them to plead guilty.¹⁴ There is not even a direct claim that Hunt told them as much; even if he had, the “Government” cannot be held responsible for actions taken, or rumors spread, by appellants’ co-defendants. See United States v. Fernandez, supra, 428 F.2d at 580.

In a case such as this, involving possible prejudice to legitimate prosecution interests, a flagrant abuse of judicial processes by the appellants, and provisional sentencing under 18 U.S.C. § 4208(b), we do not think it is a sufficient reason, to merit withdrawal of the guilty pleas, that appellants may in fact have labored under a subjective impression that “national security” considerations required their silence at trial. If subjective impressions, however irrational and unfounded, were enough, any defendant could claim them and thus secure tactical advantages by pleading guilty and delaying his withdrawal motion to a point where retrial would be onerous or impossible for the Government. In our view, the proper question in this case is not whether appellants entertained the erroneous belief that silence was their duty, but whether this belief was, in an objective sense, reasonable in the circumstances. See United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098 (2d Cir. 1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1405, 35 L.Ed.2d 612 (1973). That the belief was a mistaken one does not mean that it was necessarily unreasonable. But see United States ex rel. LaFay v. Fritz, 455 F.2d 297, 303 (2d Cir.), cert. denied, 407 U.S. 923, 92 S.Ct. 2471, 32 L.Ed.2d 809 (1972) (suggesting that even a reasonable, though mistaken, belief that coercive circumstances were present at time of pleading would not render a guilty plea constitutionally infirm), and Townes v. Peyton, 404 F.2d 456, 461 (4th Cir. 1968), cert. denied, 395 U.S. 924, 89 S.Ct. 1778, 23 L.Ed.2d 241 (1969) (holding that a defendant’s belief that coercive circumstances were present at the time of his guilty plea must have “at least some foundation in fact” to justify vacation of his conviction). But we have no doubt whatever as to the unreasonableness of appellants’ belief.¹⁵

The guilty pleas were entered after the prosecution, in its opening argument and through presentation of initial witnesses, had outlined a virtually airtight case that Hunt and Liddy had engineered the Watergate Break-in for purely partisan reasons. After hearing all this, it was patently unreasonable for appellants to continue believing that they had been part of a legitimate “national security” enterprise requiring their silence at trial. It was equally unreasonable, after hearing this evidence and testimony, for appellants to rest upon their subjective beliefs and fail to test them against reality. Either personally or through their counsel, appellants could obviously have sought out responsible Government officials to ascertain whether, in fact, the “national security” was at stake. That the Department of Justice was pursuing the prosecution put the appellants on sufficient notice that full disclosure at trial was not contrary to the national interest; at the very least, appellants had the burden of determining otherwise by directing inquiries to responsible officials in the CIA, or the State Department, or the Defense Department, or the White House. Instead, appellants chose to rely on impressions gathered from the plea decision of a co-defendant. This was unreasonable.

The simplest, and most proper, course was for appellants to bring their apprehensions directly to the attention of Judge Sirica. Appellants now contend that they thought a federal judge was not to be trusted with “national security” information. Here again, appellants are relying on their own subjective impression. It would be utterly destructive of the judicial system if a defendant were to be permitted, without any predicate in reasonableness, to minimize the significance of a misrepresentation to the court by an assertion of his belief in some value perceived as higher than the court’s. We are not talking here of examples drawn from history where men will at times deliberately break the law in furtherance of what they conceive to be a higher moral or patriotic goal, but who concede that they have broken the law. Nor is this a case where the defendant seeks to undercut his statements to the court on the basis of what he had falsely been told by his attorney was the position of the judge. United States v. Simpson, 141 U.S.App.D.C. 8, 436 F.2d 162 (1970). The appellants before us had the benefit of vigilant and sophisticated counsel who, presumably, understood the uses of in camera procedures for handling information of a sensitive nature. See, e. g., United States v. United States District Court, 407 U.S. 297, 320-21, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). It would be no excuse if appellants had refused to confide fully in their counsel. United States v. Giuliano, supra, 348 F.2d at 222. But in fact appellants make no claim of hiding their true concerns from Rothblatt and Newmyer. In any event, appellants themselves met in camera with the judge during the plea-taking procedure and had ample opportunity to seek out his advice.

In sum, appellants had every chance to discover that their alleged subjective fears and beliefs were unfounded. Yet they insisted on remaining ignorant of their true situation and on “playing games” with the court. Everett v. United States, supra, 119 U.S.App.D.C. at 65, 336 F.2d at 984. We can perceive no reasonable excuse for this course of action.

Thus we find that appellants’ guilty pleas were voluntary and knowing; that on allocution appellants deliberately and repeatedly deceived the court; that withdrawal of the pleas eight months after they were entered would prejudice the Government; that appellants’ supposed national security reasons for their guilty pleas were based on entirely subjective beliefs, supported only by their allegations; and that these beliefs, if indeed held, were patently unreasonable.¹⁶ While appellants now claim their legal innocence based primarily on their assertion that they believed their burglary was authorized for national security reasons, we need not decide whether their newfound defenses have legal merit.¹⁷ Instead, the findings listed above mandate a strict application of the fair and just standard, and only the most compelling explanation by appellants could turn Judge Sirica’s ruling into an abuse of discretion. By that standard, appellants’ explanation plainly fails. We hold that Judge Sirica’s denial of appellants’ withdrawal motions, made after their provisional sentencing under 18 U.S.C. § 4208(b), does not constitute an abuse of discretion under the standard of fairness and justice.

IV. CONCLUSION

Aware of the public importance of these cases, we have given appellants’ claims the closest and most thorough attention. It is our considered conclusion that neither appellants’ alleged subjective misimpressions at the time of pleading nor their alleged mistakes of fact and law at the time of the break-in constitute legally adequate grounds to require withdrawal of their guilty pleas. This is not to say that these various misimpressions and mistakes must be ignored by the judiciary; if credited, they make out sound reasons for mitigating appellants' punishment. As we noted at the outset, appellants were only the “foot soldiers” of this conspiracy. But this, quite plainly, Judge Sirica also understood. In sentencing appellants he imposed penalties significantly less onerous than those visited upon their co-defendants, their immediate superiors in the enterprise. If further clemency is deemed warranted, a motion to reduce sentence under Rule 35, Fed.R.Crim.P., is always available.

Affirmed.

1 .Appellants also claim that their guilty pleas to Counts 3, 4, 5, and 7 were improperly coerced by the District Judge’s refusal to accept their compromise plea, agreeable to the Government, to Counts 1, 2 and 6 alone. For this contention, appellants rely on United States v. Ammidown, 162 U.S.App.D.C. 28, 497 F.2d 615 (1973). As the judge imposed concurrent sentences on all counts, we need not reach this contention. Instead, we hereby vacate appellants’ sentences on Counts 3, 4, 5, and 7. See United States v. Greene, 160 U.S.App.D.C. 21, 33-34, 489 F.2d 1145, 1157-58 (1973).

2 . Appellant in No. 73-2252, 166 U.S.App.D.C. 1, 509 F.2d 334, decided Dec. 12, 1974.

3 . Appellant in No. 73-2199, 168 U.S.App.D.C. 375,514 F.2d 271, also decided today.

4 . Appellant in No. 73-1562, 165 U.S.App.D.C. 254, 506 F.2d 1293, decided Oct. 10, 1974, No. 73-1564, 166 U.S.App.D.C. 289, 510 F.2d 428, decided Dec. 12, 1974, & No. 73-1565, 166 U.S.App.D.C. 95, 509 F.2d 428, decided Nov. 8, 1974.

5 . The counts charged against appellants, and to which they pleaded guilty, were as follows:

Count 1: Conspiracy to commit the crimes charged in the other counts, a violation of 18 U.S.C. § 371 (1970).

Count 2: Burglary, consisting of entry into the DNC to steal property of another, a violation of 22 D.C.Code § 1801(b) (1973).

Count 3: Burglary, consisting of entry into the DNC with intent to intercept “wire and oral communications,” as defined by 18 U.S.C. § 2510 (1970), a violation of 22 D.C.Code § 1801(b).

Count 4: Endeavoring to intercept oral communications within the DNC, a violation of 18 U.S.C. § 2511 (1970).

Count 5: Endeavoring to intercept wire communications within the DNC, a violation of 18 U.S.C. § 2511.

Count 6: Unlawful possession of devices for intercepting oral communications, a violation of 23 D.C.Code § 543(a) (1973).

Count 7: Unlawful possession of device for intercepting wire communications, a violation of 23 D.C.Code § 543(a).

See note 1 supra.

6 . Each affidavit makes this statement.

7 . Barker Affidavit at 6.

8 . Id.

9 . Each affidavit makes this statement.

10 . Brief for the United States at 11.

11 . By order of this court on December 28, 1973, appellant Barker was released from prison pending this appeal. Appellant Sturgis was released pending this appeal by this court’s order of January 18, 1974. The two other appellants have been released on parole.

12 .Fed.R.Crim.Proc., Rule 32(d).

(d) Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

13 . 18 U.S.C. § 4208(b):

(b) If the court desires more detailed information as a basis for determining the sentence to be imposed, the court may commit the defendant to the custody of the Attorney General, which commitment shall be deemed to be for the maximum sentence of imprisonment prescribed by law, for a study as described in subsection (c) hereof. The results of such study, together with any recommendations which the Director of the Bureau of Prisons believes would be helpful in determining the disposition of the case, shall be furnished to the court within three months unless the court grants time, not to exceed an additional three months, for further study. After receiving such reports and recommendations, the court may in its discretion: (1) Place the prisoner on probation as authorized by section 3651 of this title, or (2) affirm the sentence of imprisonment originally imposed, or reduce the sentence of imprisonment, and commit the offender under any applicable provision of law. The term of the sentence shall run from date of original commitment under this section.

14 . Thus, while appellants may have been “duped” by their co-conspirators into committing their crimes, see United States v. Ehrlichman, Criminal No. 74-116, Sentencing Tr. at 10 (D.D.C. July 31, 1974) (Gesell, J.), appeal pending, D.C.Cir. No. 74-1882, there is not the slightest hint or allegation that they were duped into offering their guilty pleas. Appellants allege absolutely no overt pressure, from Government officials or anyone else, for them to plead guilty. There is no reason to believe the decision was other than entirely their own.

That appellants may have participated in the break-in as “dupes” is a consideration properly within the trial judge’s sentencing discretion. That factor was expressly considered by Judge Gesell in sentencing appellants Barker and Martinez in United States v. Ehrlichman, supra (Judge Gesell also considered the sentences Barker and Martinez received for their related crimes in this case), and apparently considered by Judge Sirica, who sentenced appellants to less severe terms than those imposed on their co-defendants, the higher-ups in the conspiracy.

15 . While Judge Wilkey taxes us for using a standard of objective reasonableness in assessing appellants’ explanation of their guilty pleas, Judge Wilkey’s dissent, 168 U.S.App.D.C. at 360-362, 514 F.2d at 256-258, our approach is really not different from his. It is only our conclusions that differ. We all agree that the reasonableness of the movant’s explanation of why he allegedly mistakenly pleaded guilty must be balanced against the prejudice to the Government in bringing the case to trial. 168 U.S.App.D.C. at 361, 514 F.2d at 257. See 168 U.S.App.D.C. at 325, 514 F.2d at 221 supra. Judge Wilkey chose first to assess the reasonableness of appellants’ explanation and then to balance that reasonableness against the prejudice to the Government. We have assessed the factors in the opposite order, which, of course, is a difference of no matter. Nonetheless, that difference is the basis for Judge Wilkey’s critique.

Since Judge Wilkey first considers the reasonableness of appellants’ explanation, in the absence of prejudice to the Government, he properly considers the broadest definition of reasonableness — subjective reasonableness. Certainly if withdrawal would cause no prejudice to the Government, any explanation that was subjectively reasonable would likely be sufficient for withdrawal. See 168 U.S.App.D.C. at 325-327, 514 F.2d at 221-223 supra. Having found appellants’ explanation to meet the minimal standard of subjective reasonableness, Judge Wilkey then discounts the preudice to Government interests in this case. Thus he argues that appellants’ supposedly subjectively reasonable explanation is sufficient to justify withdrawal.

We have approached the issue differently, although our theoretical premises are not different from Judge Wilkey’s. We first assessed prejudice to the Government. In this case we found not only prejudice, but also flagrant abuse of the judicial process, and the complicating circumstance of provisional sentencing. See 1.68 U.S.App.D.C. at 327-328, 514 F.2d at 223-224 supra. As prejudice to the Government mounts, the movant’s explanation of the reasons for his supposedly mistaken plea must necessarily become increasingly more convincing in order to justify withdrawal. At some point, only explanations of at least objective reasonableness are of sufficient weight to justify withdrawal. So we find it to be here. Since an explanation of subjective reasonableness would not outweight the countervailing factors here, analysis of appellant’s alleged purely subjective reasonableness is pointless. We find below that appellants have not successfully explained away their guilty pleas under a standard of objective reasonableness, so the balance tilts against allowing withdrawal in this case.

We should note in passing, however, that although objective reasonableness is a higher standard than subjective reasonableness, it is by no means a high standard. Its purpose is merely to rule out bizarre and unreasonable explanations for plea withdrawal in cases where the Government would suffer significant prejudice. In most, if not all, of the presentence withdrawal cases cited above, see 168 U.S.App.D.C. at 325, 514 F.2d at 221 supra, the movant could easily have met this standard.

16 . Judge Wilkey accuses us of analyzing only appellants’ asserted reasons for entering their original guilty pleas, and ignoring the reasons that possibly prompted appellants to make their withdrawal motion eight months later. Judge Wilkey’s dissent, 168 U.S.App.D.C. at 354-355, 514 F.2d at 250-251. Analysis of the former reasons is of the greatest importance in applying the “fair and just” standard, since by so doing the court can assure itself that the plea was not entered for tactical reasons, and can determine whether the plea was truly voluntary and knowing. See 168 U.S.App.D.C. at 325, 514 F.2d at 221 supra. Analysis of the latter reasons is generally of far less concern, except insofar as it relates those reasons to the reasons for the original guilty plea (e. g., discovery of new evidence unknown to the movant at the time of his plea). In this case, however, where we find appellants’ asserted exculpatory reasons for entering pleas to have been unreasonable, and thus insufficient to justify their withdrawal motion, the reasons that later might have prompted appellants to make their motion become of no concern at all. That appellants’ original unreasonable beliefs may have become progressively more unreasonable is of no import.

Thus Judge Wilkey’s and Judge MacKinnon’s lengthy recitations of the events during the eight-month period between guilty pleas and withdrawal motion, Judge Wilkey’s dissent, 168 U.S.App.D.C. at 354-358, 514 F.2d at 250-254, Judge MacKinnon’s dissent, 168 U.S.App.D.C. at 341-342, 514 F.2d at 237-238, while accurate, are entirely beside the point. Moreover, it should be noted that, insofar as he explains the effect of these events on appellants’ original asserted belief in the national security justification for their pleas, Judge Wilkey is engaging in pure speculation. Appellants have provided in their affidavits absolutely no explanation of how they came to be disabused of their national security notions; indeed, throughout appellants’ motion papers there is but one oblique reference to “[sjubsequent events.” Memorandum in support of motion to withdraw guilty pleas at 2, JA at 5. Instead, and properly, appellants’ affidavits are addressed to the reasons why they originally chose to plead guilty when supposedly in possession of an allegedly valid defense. We have examined those professed reasons, presented in detail by appellants, with care. Since we find those reasons, all highly subjective and unsupported by factual evidence, to be patently unreasonable, if indeed they were held, we have no occasion to engage in needless speculation about what might have prompted appellants to this same conclusion.

17 . Judge Wilkey finds “hard to accept” our holding that “even if the appellants can prove their innocence, under the circumstances Judge Sirica did not abuse his discretion in denying the motion.” Judge Wilkey’s dissent, 168 U.S.App.D.C. at 352, 514 F.2d at 248 (emphasis in original). It is, however, fundamental hornbook law that a defendant who pleads guilty foregoes his opportunity to prove his innocence. Cf. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). If a guilty plea can be withdrawn merely because the defendant would like to regain that opportunity, the plea becomes meaningless. As we have made clear above, however, a guilty plea is an act of great significance, and withdrawal is not automatically granted simply because the defendant now decides he would rather go to trial. Of course, whenever withdrawal is denied, it is denied “even if the [defendant] can prove [his] innocence.”

But while we necessarily deny withdrawal in this case although appellants might have been able to convince a jury of their innocence, it should be observed that in sending these men back to prison, we do not assume they are innocent. These men have all pleaded guilty. Their guilty pleas were accepted, and their withdrawal denied, because of the strong evidence of their guilt and the inadequacy of any alternative explanation of their guilty pleas. The pleas could not have been accepted if the court did not find they had a basis in fact. Rule 11, Fed.R.Crim.P. Appellants allege no violation of Rule 11, and, indeed, we have seen the extraordinary thoroughness with which Judge Sirica pursued the question of appellants’ culpability. We have found that the pleas were voluntary and knowing, that is, that appellants were not coerced in any way to plead guilty, that they understood the charges against them, and that they freely pleaded guilty to those charges. In making their withdrawal motion, appellants alleged an alternative explanation of why they pleaded guilty. We have found that explanation to be so unreasonable as to be worthy of no cognizance in assessing the voluntariness of their original guilty pleas. Lastly, the national security defense that appellants would assert if they were granted a trial has been rejected as a matter of law by the only court that has considered it. United States v. Ehrlichman, D.D.C., 376 F.Supp. 29 (1974). While denial of a withdrawal motion is always troubling, since it denies the movant the opportunity of a trial by a jury of his peers, there must be occasions when withdrawal is so unmerited that to allow it would be to deprive guilty pleas of all meaning. We find this to be such an occasion.