Fifth Circuit Rejects Attempt On Direct Appeal To Withdraw Guilty Plea In False Claims Conspiracy Case (1/24/15)In United States v. Harrison, ___ F.3d ___, 2015 U.S. App. LEXIS 966 (5th Cir. 2015), here, the court provided the following introduction which sets up what I want to discuss in this blog (footnotes omitted):
A grand jury charged Harrison in a multi-count, multi-defendantn1 indictment with conspiracy to defraud the Internal Revenue Service ("IRS") by filing false claims and with two counts of filing a false claim. Three days before his trial was set to begin, Harrison signed a plea agreement in which he agreed to plead guilty to the conspiracy charge. In exchange, the government agreed to dismiss the remaining charges. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed to a sentence of eighty-four months, which was twenty-four months below the statutory minimum as calculated based on Harrison's offense level and criminal history category. Harrison also agreed to waive his right to appeal his conviction and sentence, but he expressly reserved the right to challenge the voluntariness of his guilty plea or waiver of appeal and the right to bring a claim of ineffective assistance of counsel.The conspiracy count was under 18 USC 286, here, which provides a 10 year maximum sentence; as stated, the sentence shall be "not more than ten years.". By contrast, the general conspiracy charge under 18 USC 371, here, employed in many tax cases has a 5 year maximum sentence. The defendant pled to the conspiracy count, with the Government dismissing the remaining courts. The court states that the agreed upon sentence was "below the statutory minimum." There is no statutory minimum. The court apparently refers to the lower end of the Guidelines range calculated for the defendant. The purpose of the FRCrP 11(c)(1)(C), here, was to lock in that lower than Guidelines sentence.
As usual with such guilty pleas, the defendant agreed to the key facts, including his participation in a conspiracy to file false claims. After a proper colloquy and presentation of agreed facts supporting the plea, the Court accepted the plea and sentenced Harrison to the agreed eighty-four months. After the plea, but before the PSR was prepared, Harrison moved to withdraw his plea, claiming that it was not voluntary. Harrison's attorneys moved to withdraw based on irreconcilable differences.
The district court denied the motion to withdraw the plea. Harrison moved to reconsider. The district court denied that motion. At sentencing, Harrison again asked to withdraw the plea. He requested an evidentiary hearing (footnotes omitted):
so that he could present evidence supporting his actual innocence, "to include but not limited to codefendant statements affirming that [he] did not conspire nor participate in the [scheme]." He claimed that he pled guilty under duress and coercion because the prosecutor would agree to favorable eighty-four-month sentences for each defendant only if "all siblings [pled] guilty," and he felt pressured to accept the plea because his brothers otherwise faced up to forty years of imprisonment. Finally, he argued that he received ineffective assistance of counsel when counsel advised him to enter the plea agreement despite his assertion of innocence because counsel erroneously suggested that he would be prejudiced by a prior sexual assault conviction and because counsel did not investigate or discover exonerating evidence, "for example, the true identi[ty] of Chris Smith ."The district court again denied the request to withdraw and denied the request for a hearing. The district court was obviously peeved that Harrison would admit guilt in the plea colloquy and the agreed facts supporting the plea and now reverse, in effect saying that he lied in making the original guilty plea. (That is a phenomenon present in all guilty pleas with a proper colloquy.) As to the argument of ineffective assistance of counsel, the Court declined to address the issue (it is normally handled in a post-sentencing 28 USC 2255, here, proceeding), but did give the following signal:
. . [Y]ou will be entitled to raise an ineffective assistance of counsel claim. I do not know what happened here. I know [your attorney]. He comes into this court regularly. He is one of the best lawyers in town, and you just have to understand and face that.The Fifth Circuit first addressed the issue of whether the appeal waiver in the plea precluded consideration of Harrison's appeal of the denial of his right to withdraw the guilty plea and hold an evidentiary hearing. Applying contract principles, the Court said that the appeal waiver permitted the appeal.
On the merits of his claim that the district court erred in denying the requested withdrawal and hearing, the Court set the general standards as follows (footnotes omitted):
A criminal defendant does not have an absolute right to withdraw a guilty plea. Rather, a defendant may withdraw a guilty plea after the court has accepted it, but prior to sentencing, only if he "can show a fair and just reason for requesting the withdrawal." In determining whether a defendant has shown a fair and just reason, the Fifth Circuit applies the seven-factor test set forth in United States v. Carr [740 F.2d 339, 343-44 (5th Cir. 1984), here]. A district court must consider whether: (1) the defendant asserted his innocence; (2) withdrawal would cause the government to suffer prejudice; (3) the defendant delayed in filing the motion; (4) withdrawal would substantially inconvenience the court; (5) close assistance of counsel was available; (6) the original plea was knowing and voluntary; and (7) withdrawal would waste judicial resources. A district court need not make findings as to each factor, but should make its decision based on "the totality of the circumstances." The court should also consider, where applicable, the reasons why defenses advanced later were not proffered at the time of the original pleading and the reasons why a defendant delayed in making his withdrawal motion. Finally, the burden of establishing a fair and just reason for requesting withdrawal under Carr "rests with the defendant."Neither is a criminal defendant automatically entitled to an evidentiary hearing on a motion to withdraw his guilty plea. "A hearing is required," however, "when the defendant alleges sufficient facts which, if proven, would justify relief [under Carr]." We review a district court's decision not to hold an evidentiary hearing for abuse of discretion. "A district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence."The Court then held that the district court had not abused its discretion in the holdings. Key elements of the analysis are:
1. The defendant cannot withdraw upon mere assertion of innocence of the charge to which he pled. Quoting Carr, "Otherwise, the mere assertion of legal innocence would always be a sufficient condition for withdrawal, and withdrawal would effectively be an automatic right." Basically, all Harrison did was to assert innocence and deny the facts he had previously agreed to. That was not enough.
2. The Court also rejected the claim that his plea was coerced because "he was pressured to agree to a package plea deal that would spare his brothers from the possibility of receiving longer sentences." The Court said (footonotes omitted):
We must take "special care" in reviewing the voluntariness of "guilty pleas made in consideration of lenient treatment as against third persons,"n44 often referred to as "package" plea deals. But there is no indication that such a bargain existed here.The Court said it "scoured the record and transcripts of the plea colloquy" and found (footnotes omitted):
absolutely no evidence supporting the existence of such a condition, much less the existence of coercion. Harrison and his counsel signed a plea agreement that did not contain a bilateral condition regarding his codefendant brothers, nor did it make any mention of his codefendants. Harrison and his counsel then signed a plea agreement supplement indicating that there were no additional terms to his plea agreement. When asked by the district court during his rearraignement whether he was pleading guilty "freely and voluntarily" and whether anyone had "tried to force [him] or threaten [him] or coerce [him] in any way," Harrison declared—under oath—in open court that he had not been coerced, that he was pleading guilty voluntarily, and that he was fully informed of the rights he was waiving. Again, even if we were to go against all of the available evidence and count as true Harrison's vague assertion, we cannot conclude that it tips the totality of the Carr factors in Harrison's favor.3. The Court denied the claim of ineffective assistance of counsel because counsel allegedly failed to properly consider the effect of his prior sexual assault conviction and certain exonerating evidence. The Court said that his allegations were insufficient to support the requirements of Strickland v. Washington, 466 U.S. 668 (1984), here, noting in footnote 49 that "In his brief on appeal, Harrison does not mention Strickland or any of Strickland's progeny."