UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.
                                                                         No. 97-4157
RAMESH KUMAR VAID, a/k/a Larry
Johnson,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CR-96-196-MJG)

Submitted: June 9, 1998

Decided: August 4, 1998

Before NIEMEYER and MICHAEL, Circuit Judges, and
HALL, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

James J. Nolan, PIERSON, PIERSON & NOLAN, Baltimore, Mary-
land, for Appellant. Lynne A. Battaglia, United States Attorney, Joyce
K. McDonald, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ramesh Kumar Vaid pled guilty to eleven counts of fraud by inter-
state commercial carrier in violation of 18 U.S.C.A.§ 1341F (West
Supp. 1998), and the court sentenced him to a thirty-three-month
prison sentence to be followed by three years of supervised release.
Vaid appeals, claiming that the district court's violation of Fed. R.
Crim P. 11(d) was not harmless error, the district court abused its dis-
cretion by denying his motions to withdraw his guilty plea and to sub-
stitute counsel, and the prosecutor withheld exculpatory information
in violation of Brady v. Maryland, 373 U.S. 83 (1963). Finding no
error, we affirm.

I.

Vaid was charged in an eleven-count superseding indictment alleg-
ing that he and Youdh Gyani committed fraud by interstate commer-
cial carrier. On September 26, 1996, Vaid's counsel, an Assistant
Federal Public Defender, filed a motion to substitute counsel. On Sep-
tember 30 (the day Vaid's trial was scheduled to begin), the district
court conducted an ex parte hearing, at which Vaid, his attorney, and
an independent attorney the court appointed to advise Vaid were pres-
ent. Vaid informed the court that he wanted a new attorney because
he did not trust the public defender, who Vaid claimed was pressuring
him to plead guilty. The public defender stated that he advised Vaid
to plead guilty after the government outlined its case against Vaid,
that Vaid understood their communications, but that Vaid disagreed
with his assessment of the evidence. After reviewing the evidence, the
independent attorney agreed with the public defender that Vaid likely
would be convicted. The district court denied the motion, finding that
it was not timely made and that the independent attorney was avail-
able to Vaid throughout trial.

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After the ex parte hearing, Vaid proceeded to trial. The court pre-
pared to empanel a jury as Gyani's counsel conferred with Vaid's
public defender. At Vaid's counsel's request, the court permitted Vaid
and Gyani to speak with their attorneys. Gyani had agreed to plead
guilty to one count in the superseding indictment. After the meeting,
Vaid agreed to plead guilty to all eleven counts in the superseding
indictment, with no written plea agreement.

During the plea colloquy, the district court addressed Vaid person-
ally and informed him that he had the right to plead not guilty but that
if he pled guilty, the case would be over without a trial. Vaid stated
that he understood. The court also reviewed the other rights Vaid was
giving up by pleading guilty, and Vaid stated that he understood. The
court summarized the superseding indictment, explained the maxi-
mum sentence on each count, and reviewed the possible effect of the
sentencing guidelines, including that Vaid's conviction may affect his
permanent resident alien status. Vaid stated that he understood.

Vaid informed the court that he was a high school graduate, was
educated in the English language, and had no problem understanding
the proceedings. Vaid also stated that he had never been treated for
a mental illness nor had he taken narcotics, medicine, or alcohol in
the past week. The court reiterated that there was no plea agreement
in the case, "[a]nd there ha[ve] been no promises made." (J.A. at 71).
Vaid stated that he understood. At the government's request, the court
ensured that Vaid understood Gyani was not acting as an agent for the
government when Gyani spoke to Vaid before the trial began.

The court asked Vaid whether he committed the offenses charged
in the superseding indictment, and Vaid said that he did. The govern-
ment presented the evidence it would have produced at trial. Specifi-
cally, Vaid and Gyani operated the Costco Sales business and
identified themselves as Larry Johnson and Harry Stevens, respec-
tively, to other business owners in the shopping center. Costco Sales
had no regular business hours, and Vaid and Gyani posted no prices
on merchandise received from manufacturers of perfume and elec-
tronics and were not interested in making consumer sales. Rather,
they faxed credit applications to the victim companies, misrepresent-
ing their identities, the length of time the business had been open, and
the business' credit history. Once they received credit, Vaid and

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Gyani placed small orders and paid for them. As the Christmas season
approached, however, Vaid and Gyani placed larger orders for mer-
chandise, which Vaid paid for with company checks drawn on
accounts with insufficient funds. When the merchandise was deliv-
ered to the store, Vaid and Gyani loaded the goods directly into a
Ryder truck to sell elsewhere. At the conclusion of the government's
recitation of facts, Vaid acknowledged that the government accurately
summarized and could prove what had transpired.

The court then accepted Vaid's guilty plea, finding that Vaid
understood his rights and that he "made a decision as to what [he]
wish[ed] to do in this case . . . facing a charge and facing a trial and
facing a realistic appraisal of the outcome of the trial . . . [and] that
it is in [Vaid's] best interest to plead guilty[ ] and not go to trial."
(J.A. at 86). Finally, the court found that a factual basis supported the
plea.

On October 8, 1996, Vaid's counsel filed a motion to withdraw
Vaid's guilty plea but did not state the grounds on which Vaid relied.
The court summarily denied the motion. On October 22, Vaid moved
for the second time to withdraw his plea, claiming that after he pled
guilty, Gyani and a person named "Varma" told him they would tes-
tify at trial that Vaid was an employee of Costco who had no knowl-
edge of, and did not participate in, the fraudulent scheme. The court
applied the six-factor test set forth in United States v. Moore, 931
F.2d 245, 248 (4th Cir. 1991), and denied the motion.

Before the sentencing hearing began, Vaid moved for a third time
to withdraw his guilty plea. He claimed that Gyani coerced him into
pleading guilty during their meeting before Vaid's trial was scheduled
to begin. Vaid testified that the day after he entered his guilty plea,
a witness named "Varma" contacted him and said that, pursuant to a
subpoena from the government, he planned on telling the court the
truth. The truth, according to Varma, was that Vaid only worked in
the fraudulent scheme as a driver and that he took orders from Varma
and Stevens. Vaid also claimed that the government had discovered
that there was a "real" Harry Stevens for whom Gyani and Vaid alleg-
edly worked and that the government planned a sting operation to
apprehend Stevens. According to Vaid, the Federal Bureau of Investi-

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gation taped the conversation during which Stevens asked Gyani to
hire Vaid as a driver in the operation.

The district court denied Vaid's third motion to withdraw the guilty
plea, finding that the Rule 11 colloquy was adequate. The court then
sentenced Vaid to a thirty-three-month prison term and imposed three
years of supervised release. Vaid timely appeals.

II.

On appeal, Vaid first claims that the district court erred by denying
his motion to substitute counsel where he repeatedly expressed dissat-
isfaction with the public defender. In determining whether to grant or
deny a motion to substitute counsel, a district court must consider:
"(1) whether the motion for substitute counsel was timely; (2) whether
the district court's inquiry into the defendant's complaint was suffi-
cient; and (3) whether the conflict between attorney and client was so
great as to amount to a `total lack of communication,' thereby pre-
venting an adequate defense." United States v. Morsley, 64 F.3d 907,
918 (4th Cir. 1995) (quoting United States v. Hanley, 974 F.2d 14, 17
(4th Cir. 1992)). Our review of the district court's denial is for an
abuse of discretion. See United States v. Corporan-Cuevas, 35 F.3d
953, 956 (4th Cir. 1994).

Vaid's request for new counsel was not timely made, coming four
days before Vaid's trial was scheduled to begin. Moreover, the district
court explored at length Vaid's claim that he did not trust counsel to
represent him and appointed special counsel to advise Vaid at the
hearing and to review the evidence in the case. Finally, there is no
evidence that the conflict between Vaid and his counsel was so great
that it resulted in a total lack of communication preventing an ade-
quate defense. See Morsley, 64 F.3d at 918. On these facts, we find
that the district court did not abuse its discretion in denying Vaid's
motion to substitute counsel. See Corporan-Cuevas, 35 F.3d at 956.

III.

Vaid also contends that the district court violated Fed. R. Crim. P.
11(d), by failing to determine that his guilty plea was voluntary and

                    5
not the result of force or threats or of promises not contained in a plea
agreement. We accord great deference to the district court's "decision
as to how best to conduct the [Rule 11] colloquy." United States v.
DeFusco, 949 F.2d 114, 116 (4th Cir. 1991).

Rule 11(d) requires the court to address the defendant personally
to determine that the guilty plea is voluntary and is not the result of
force or threats or of promises apart from a plea agreement. See Fed.
R. Crim. P. 11(d); DeFusco, 949 F.2d at 119. A guilty plea must be
"a voluntary and intelligent choice among the alternative courses of
action open to the defendant." North Carolina v. Alford, 400 U.S. 25,
31 (1970). The government acknowledges that during the plea hear-
ing, the district court did not use the terms "threats" or "force." Com-
pliance with Rule 11, however, is evaluated under a harmless error
standard. See DeFusco, 949 F.2d at 117. We will vacate a conviction
resulting from a guilty plea only if the trial court's violation of
Rule 11 affected a defendant's substantial rights. See id.

Our review of the record discloses that the district court fully dis-
cussed the nature and elements of the charges against Vaid, the appli-
cable penalties he faced, including the effect of supervised release,
and ensured that he consulted with and was satisfied with his counsel.
The court also addressed the rights Vaid forfeited by virtue of his
plea. Specifically, Vaid stated that he understood that he did not have
to plead guilty, could proceed to trial, and no promises were made.
The court also reviewed the impact of the sentencing guidelines and
ascertained that there was a factual basis for the plea. Although the
district court did not explicitly find that Vaid's plea was voluntary
and not the result of threats or force, the court found that Vaid
decided to plead guilty in the face of ample evidence of his guilt. We
therefore find that the district court's technical violation of Rule 11
was harmless error because the violation did not affect Vaid's sub-
stantial rights.* See id.
_________________________________________________________________

*We note that the cases on which Vaid relies to support his assertion
that the district court's failure to comply with Rule 11(d) affected his
substantial rights are factually distinguishable and do not convince us
that the district court's omission was not harmless error.

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IV.

Next, Vaid asserts that the district court abused its discretion in
denying his motions to withdraw his guilty plea. See United States v.
Wilson, 81 F.3d 1300, 1305 (4th Cir. 1996) (stating standard of
review). Withdrawal of a guilty plea is not a matter of right. See
Moore, 931 F.2d at 248. The defendant bears the burden of showing
a "fair and just reason" for the withdrawal of his guilty plea. See Fed.
R. Crim. P. 32(e); United States v. Hyde, ___ U.S. ___, 65 U.S.L.W.
4369 (U.S. May 27, 1997) (No. 96-667). "[A]`fair and just' reason
. . . is one that essentially challenges . . . the fairness of the [Fed. R.
Crim. P.] 11 proceeding." United States v. Lambey, 974 F.2d 1389,
1394 (4th Cir. 1992) (en banc). An appropriately conducted Rule 11
proceeding, however, raises a strong presumption that the guilty plea
is final and binding. See id.

Courts consider six factors in determining whether to permit the
withdrawal of a guilty plea: (1) whether defendant offered credible
evidence that the plea was not knowing or voluntary; (2) whether
defendant credibly asserted his legal innocence; (3) the length of
delay between the entry of the plea and the filing of the motion to
withdraw; (4) whether defendant had close assistance of effective
counsel; (5) whether withdrawal would prejudice the government; and
(6) whether withdrawal would inconvenience the court or waste judi-
cial resources. See Moore, 931 F.2d at 248. The defendant carries the
burden of establishing a fair and just reason for withdrawal, even if
the government has not shown prejudice. See Lambey, 974 F.2d at
1393-94.

Consideration of the Moore factors weighs against Vaid. As dis-
cussed in Part III, Vaid failed to offer credible evidence that his plea
was not voluntary, and the district court's technical violation of Rule
11 did not affect Vaid's substantial rights. Vaid made no credible
assertion of innocence but rather admitted during the plea hearing that
he was guilty of participating in the fraudulent scheme. Further, Vaid
did not show that counsel's assistance was not effective. Finally,
allowing Vaid to withdraw his plea in light of his admission of guilt
may prejudice the government and would waste judicial resources.
Although the delay between Vaid's plea and his first motion to with-
draw was minimal, that does not outweigh the other factors. We

                     7
therefore find that the district court did not abuse its discretion in
denying Vaid's motions to withdraw his guilty plea. See Wilson, 81
F.3d at 1305.

V.

Finally, Vaid claims that the government withheld information in
violation of Brady v. Maryland, 373 U.S. 83 (1963), by failing to dis-
close Varma's testimony and the existence of a "real" Harry Stevens.
In Brady, the Supreme Court held that "the suppression by the prose-
cution of evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to punish-
ment." Id. at 87. We assume, without deciding, that Vaid's guilty plea
does not foreclose him from raising his Brady claim.

We find no Brady violation here. Even if there was a "real" Harry
Stevens, that does not exculpate Vaid because Vaid and Gyani never-
theless misrepresented their identities on credit applications to the
victim companies. As for the claim that Varma would testify that
Vaid was merely a driver in the operation, Vaid provided no support
for his claim. We therefore reject this claim as meritless.

VI.

Accordingly, we affirm Vaid's convictions. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.

AFFIRMED

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