                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                         FEB 17 1999
                   UNITED STATES COURT OF APPEALS
                                                                      PATRICK FISHER
                                                                             Clerk
                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
 v.
                                                        No. 97-2289
 DAVID GEORGE KRAMER,

       Defendant-Appellant.


                 Appeal from the United States District Court
                               for the D. N.M.
                          (D.C. No. CR-96-337-BB)


Vera S. Ockenfels, Albuquerque, New Mexico, for Defendant-Appellant.

Sasha Siemel, Assistant United States Attorney (John J. Kelly, United States
Attorney and Mary L. Higgins, Assistant United States Attorney), Albuquerque,
New Mexico, for Plaintiff-Appellee.


Before ANDERSON , McKAY and EBEL, Circuit Judges.


EBEL, Circuit Judge.



      Defendant-Appellant David George Kramer appeals the district court’s

denial of his Fed. R. Crim. P. 32(e) motion to withdraw his guilty plea. Kramer

contends that his guilty plea was involuntary. He asserts that he was ill when his
plea was taken and consequently did not understand the ramifications of his plea;

he further contends that his trial counsel was ineffective in failing to investigate

adequately the facts of his case before his plea or trial. Because we believe that

appellant failed to meet his burden under Fed. R. Crim. P. 32(e) of establishing

that there was a “fair and just reason” for allowing withdrawal of his guilty plea,

we affirm the judgment of the district court.



                                  BACKGROUND

       In 1993, Kramer offered for sale three Native American items – a prayer

stick bundle containing bird feathers, a sun disk, and a tablita – at the

Albuquerque Antique Connection, a consignment store in Albuquerque, New

Mexico. At that time, Kramer had been selling Native American items for over

20 years.

       Religious leaders from Jemez Pueblo, New Mexico, identified the prayer

stick bundle, the sun disk, and the tablita as belonging to the Pueblo; none of the

three items had been released to anyone in accordance with Jemez Pueblo tribal

law. All three items were considered religious and cultural objects bearing

significant ritual status.

       Based on these facts, Kramer was charged on June 6, 1996 with violating

16 U.S.C. §§ 703, 707(a), and 707(b)(2) (Migratory Bird Treaty Act) (Counts I


                                         -2-
and IV); 18 U.S.C. § 1170 and 25 U.S.C. §§ 3001(3)(D) and 3002(c) (Illegal

Trafficking in Native American Items) (Counts II-III); and 16 U.S.C. § 668 (Bald

and Golden Eagle Act) (Count V). Kramer’s original counsel withdrew shortly

after arraignment, and on August 1, 1996, the district court appointed Kramer

another attorney. Between August 1996 and January 1997, the case was set once

for a change of plea hearing, and was thereafter set for trial five times, the last

date set for January 13, 1997. During that period, Kramer’s second counsel,

Armando Torres, filed three motions to suppress and submitted both voir dire

questions and jury instructions. Torres also moved to withdraw as counsel in

November 1996 on grounds that the attorney-client relationship had collapsed.

The trial court denied Torres’ motion to withdraw because no other attorney could

be found who could try the case by January 1997.

      On January 8, 1997, a superseding indictment was returned, adding

language regarding the bird feathers relevant to Count I. Kramer was arraigned

on the superseding indictment on January 13, 1997, the same date his case was set

for hearing on his motions and for trial. However, instead of proceeding to trial,

Kramer entered a plea of guilty to Count II of the superseding indictment, which

charged him with a misdemeanor violation of 18 U.S.C. § 1170 (illegal trafficking

in Native American cultural items). As part of the plea agreement, all remaining

counts were dismissed.


                                          -3-
      During the trial court’s inquiry pursuant to Fed. R. Crim. P. 11, Kramer was

asked whether he had taken any narcotic drugs or medications before the hearing.

Kramer testified that he had taken Percodan, 1 but acknowledged that this

medication did not impair his ability to understand the proceedings. He further

testified that he understood his right to a trial, that he understood the charge and

had discussed it with his attorney, and that he was willing to waive his rights

associated with a trial. As the trial court proceeded with its Rule 11 protocol, the

following exchange took place between the court and Kramer:

      Q. All right. You don’t dispute that these were sacred objects that
      you were offering for sale at the Antique Mall?
      A. Patrimony items, as opposed to sacred, I believe.
      Q. You don’t dispute they were patrimony items?
      A. I believe anything handled by or touched or offered by a Native
      American is “quote” from their society, and, therefore, their spiritual
      realm has context to each and every item, whether it be contemporary
      or 200 years old. It doesn’t make any difference.
      Q. All right. I sense some doubt. Do you in any way have any
      reservations about pleading guilty to this charge? You need to plead
      guilty voluntarily and knowingly. I don’t want you to be coerced or
      plead guilty if you don’t think you are guilty. If you want to go to
      trial, you have the right to do that. You understand?
      A. Under the circumstances, it wouldn’t behoove the Government or
      myself to proceed outside of my plea of guilty.
      Q. So you wish to plead guilty to Count II?
      A. Yes.
      Q. I will accept the plea of guilty and enter a judgment thereon. I’ll
      find that the plea is free and voluntarily made. The defendant



      1
       It was later clarified during Kramer’s Motion to Withdraw Plea that he had
taken Prednisone, not Percodan.

                                         -4-
      understands the charges and the penalties, and the plea agreement has
      been properly executed and it will be filed.

(Plea Tr. at 16-17.)

      Following the plea hearing, Torres was allowed to withdraw as defense

counsel, and counsel from the Federal Public Defender’s office was appointed for

sentencing, which was scheduled for June 20, 1997.

      On June 17, 1997, newly appointed counsel filed, at Kramer’s direction, a

Motion to Withdraw Plea pursuant to Fed. R. Crim. P. 32(e), asserting that the

guilty plea had been involuntary. The grounds for the motion were set forth in a

document written by Kramer, which stated that 1) federal and state laws failed to

address the charge to which he pleaded guilty as a criminal offense; 2) federal and

state laws failed to assess a penalty for violation of the charge to which he

pleaded guilty; 3) the sentence contemplated by the plea agreement was

unauthorized; 4) his plea was involuntary because of extreme duress, a serious

illness at the time of the plea, and the coerciveness inherent in counsel’s failure to

prepare a defense.

      On June 20, 1997, the district court heard testimony from Kramer in

support of his motion to withdraw, as well as oral argument from counsel.

Kramer testified that he had been so ill during the plea hearing that he had not

known “in-depth” what was happening; that he had been “a zombie” and “just

could see what was in front of [him].” To corroborate his claim, Kramer testified

                                         -5-
that he was taking several medications on the plea date (including an antibiotic,

an antihistamine, and a steroid) and that he had gone to Santa Fe immediately

after the plea to see a doctor. He also noted that he had been allowed to sit

throughout the plea proceedings, ostensibly because of his weakened condition.

Counsel pointed to the presentence report, in which Kramer had reported to the

probation officer that his health was “terrible,” that he suffered from bronchial

asthma, that he had a chest infection, and that he was taking several medications.

         Kramer further testified that he had experienced difficulties with Torres,

his (second) court-appointed counsel, in that Torres had failed to return phone

calls, failed to perform legal research and present arguments that Kramer felt

were relevant to his case, and failed to investigate the facts of his case before

trial.

         Other than his testimony during the hearing on his withdrawal motion,

Kramer offered no evidence in support of his arguments that he had been unable

to comprehend the ramifications of his plea or that his counsel had been

ineffective.

         The government opposed Kramer’s motion, contending that it had been

prepared to go to trial on January 13, 1997, and that recalling witnesses, including

one from out of state, would create some inconvenience. The government further




                                           -6-
objected that Kramer’s delay in filing his motion to withdraw until three days

before sentencing was inexplicable and prejudicial to the government.

      The district court ruled that Kramer’s plea had been knowing and

voluntary, and that Kramer had received the assistance of competent counsel.

Noting that one prior plea hearing had been vacated, and that the case had been

set for trial five times, the court concluded that Kramer was “attempting to play

yo-yo with the court” and “trying to perpetrate an injustice on the judicial

system.” The court found that allowing Kramer’s motion to withdraw his plea

and proceed to trial would be prejudicial to the government, an inconvenience to

the court, and a waste of judicial resources. It therefore denied Kramer’s motion

to withdraw his plea and sentenced Kramer to three years’ probation.

                                   DISCUSSION

      Kramer argues on appeal that his plea was entered involuntarily due to a

combination of his extreme illness and his counsel’s ineffective representation.

He submits that, given his testimony with respect to these two issues, the trial

court should have allowed him to withdraw his plea.

      A. Voluntariness of the guilty plea

      We review the voluntariness of a guilty plea de novo. United States v.

Carr, 80 F.3d 413, 416 (10th Cir. 1996). The test for determining the validity of a

guilty plea is “‘whether the plea represents a voluntary and intelligent choice


                                         -7-
among the alternative courses of action open to the defendant.’” Id. (quoting Hill

v. Lockhart, 474 U.S. 52, 56 (1985)).

      The record simply does not support Kramer’s claim that his decision to plea

was less than a voluntary and intelligent choice. Kramer signed a plea agreement

in which he agreed to plead guilty to a misdemeanor violation in exchange for the

government’s agreement to dismiss the remaining counts. The trial court

conducted a thorough inquiry at Kramer’s plea hearing, during which Kramer

affirmed that he understood what was happening; that he had discussed the case

with his attorney; that he understood the charge to which he was pleading guilty;

that he understood the possible penalties; and that he understood he was waiving

his trial-related rights. Additionally, Kramer denied that anyone had threatened

or coerced him to plead guilty.

      Kramer’s contention that his plea was not knowing and voluntary due to his

extreme illness lacks merit. Beyond his statements at the hearing on his motion

to withdraw the plea, Kramer offered no evidence (such as medical records or

narcotic drug prescriptions or doctors’ affidavits) to support his assertion that he

was too ill to understand “in-depth” what was happening when he pleaded guilty.

His conclusory statements regarding his acute illness are, absent any other

evidence, insufficient to show that his plea was involuntary.




                                         -8-
      Kramer’s contention that his trial counsel’s ineffective assistance resulted

in an involuntary guilty plea is likewise unpersuasive. 2 The two-pronged test for

evaluating ineffective assistance claims, set forth in Strickland v. Washington,

466 U.S. 668 (1984), also applies to challenges to guilty pleas. See Carr, 80 F.3d

at 417. A defendant must show 1) that his counsel’s performance fell below an

objective standard of reasonableness; and 2) that counsel’s deficient performance

was prejudicial. See Strickland, 466 U.S. at 688, 692. To show prejudice in the

guilty plea context, the defendant must establish that there is a reasonable

probability that, but for counsel’s errors, the defendant would not have pleaded

guilty and would have insisted on going to trial. See United States v. Gordon, 4

F.3d 1567, 1570 (10th Cir. 1993). Kramer has failed to make either Strickland

showing.




      2
       Ordinarily the preferred avenue for challenging the effectiveness of
counsel in a federal criminal case is via collateral attack, because ineffectiveness
claims often require consideration of evidence not yet in the record on direct
appeal. See United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993).
However, we will entertain such claims on direct appeal in cases such as this,
where the record is sufficiently developed on the issue, where the defendant is
represented by different counsel on appeal, and where the claim merits no further
factual inquiry. See id. at 1569-70. Moreover, the district court in this case
addressed this claim in the context of Kramer’s motion to withdraw plea, and
concluded that Kramer had in fact received effective assistance. Thus, the
concerns that ordinarily counsel against review of ineffectiveness claims on direct
appeal are not present in this case.

                                        -9-
      Kramer asserts that Torres was ineffective in that he did not investigate or

present legal arguments that Kramer believed were relevant to his defense,

leading him to believe that he had no choice but to plead guilty. Specifically,

Kramer maintains that Torres did not investigate whether the items listed in the

indictment were of “cultural patrimony,” as defined in 25 U.S.C. § 3001(3)(D).

He further contends that Torres did not investigate whether the district court had

subject matter jurisdiction over the government’s prosecution of his alleged

violation of the Native American Graves Protection and Repatriation Act

(“NAGPRA” or “the Act”), as the spirit of NAGPRA, Kramer submits, is to

assure the return of cultural items from federal agencies and museums, not from

individuals. Both arguments are legally meritless.

      Kramer pleaded guilty to a misdemeanor violation of 18 U.S.C. § 1170(b),

which makes it unlawful to knowingly sell, purchase, use for profit, or transport

for sale or profit any Native American cultural items obtained in violation of

NAGPRA, 25 U.S.C. §§ 3001 et seq. NAGPRA defines “cultural items” to

include items of “cultural patrimony,” which means objects

      having ongoing historical, traditional, or cultural importance central
      to the Native American group or culture itself, rather than property
      owned by an individual Native American, and which, therefore
      cannot be alienated, appropriated, or conveyed by any individual
      regardless of whether or not the individual is a member of the Indian
      tribe . . . .

25 U.S.C. § 3001(3)(D).

                                        - 10 -
      Kramer argues that Torres should have challenged the government’s ability

to prove that the items were of “cultural patrimony” as defined in NAGPRA.

However, Kramer did not dispute that they were patrimony items in response to

the court’s inquiry at the plea hearing 3; and Kramer offers no evidence now to

support his assertion that the items were not communally owned. In addition, the

government informed the district court at the plea hearing that had the case gone

to trial, Jemez tribal witnesses would have testified that the items were authentic

tribal cultural and religious items and were considered inalienable objects.

Defendant has made no credible showing that he was innocent of the charge on

this ground, and therefore it would have been fruitless for his counsel to have

raised the issue.

      Kramer also appears to argue that because the provisions of NAGPRA refer

repeatedly to federal agencies and museums, the Act was not intended to apply to

individuals such as himself. It is true that Congress enacted NAGPRA to protect

Native American human remains, funerary objects, sacred objects, and objects of

cultural patrimony, and to repatriate such objects currently held or controlled by

federal agencies and museums. See United States v. Corrow, 119 F.3d 796, 799-

800 (10th Cir. 1997)(citing H.R. Rep. No. 101-877 (1990), reprinted in 1990


      3
       In fact, when the court asked whether Kramer disputed that the items he
offered for sale were “sacred objects,” Kramer corrected the court by responding,
“Patrimony items, as opposed to sacred, I believe.” (Plea Tr. at 16.)

                                       - 11 -
U.S.C.C.A.N. 4367, 4368), cert. denied, 118 S. Ct. 1089 (1998). However, “to

give teeth to this statutory mission,” section 4 of NAGPRA amended Title 18 of

the United States Code to criminalize trafficking in Native American human

remains and cultural items, in an effort to eliminate the profit incentive perceived

to be a motivating force behind the plundering of such items. See id.; see also

Sherry Hunt, Illegal Trafficking in Native American Human Remains and Cultural

Items: A New Protection Tool, 24 Ariz. St. L.J. 135, 135 & n.3 (citing Hearings

on S. 1021 and S. 1980 Before the Sen. Select Comm. on Indian Affairs, 101st

Cong., 2d Sess. 69 (1990) (statement of Keith Kintigh)). It is clear that the

criminal provision, 18 U.S.C. § 1170(b), to which defendant pleaded guilty,

encompasses violations by individual traders such as Kramer. See, e.g., Corrow,

119 F.3d at 804-05 (affirming conviction under § 1170 of individual Native

American artifacts trader).

      In short, because the legal arguments Kramer contends his counsel should

have raised are meritless, Torres’ failure to pursue them was neither deficient nor

prejudicial under Strickland. We therefore reject Kramer’s claim that his guilty

plea was involuntary due to his counsel’s ineffective assistance.

      B. Trial Court’s Denial of Kramer’s Motion to Withdraw Plea

      Fed. R. Crim. P. 32(e) provides that if a defendant moves to withdraw his

guilty plea prior to sentencing, “the court may permit the plea to be withdrawn if


                                        - 12 -
the defendant shows any fair and just reason.” The burden of demonstrating a

“fair and just reason” rests with the defendant. See Gordon, 4 F.3d at 1572.

      In Gordon, we set out the relevant considerations for determining whether a

defendant has shown a fair and just reason for permitting withdrawal of the

defendant’s guilty plea: (1) whether the defendant has asserted his innocence; (2)

prejudice to the government if the motion is granted; (3) defendant’s delay in

filing the withdrawal motion; (4) inconvenience to the court if the motion is

granted; (5) defendant’s assistance of counsel; (6) whether the plea was knowing

and voluntary; and (7) the waste of judicial resources. Id. 4; see also United States

v. Killingsworth, 117 F.3d 1159, 1161-62 (10th Cir.), cert. denied, 118 S. Ct. 393

(1997).

      We review the district court’s denial of Kramer’s motion to withdraw his

guilty plea for abuse of discretion. See Carr, 80 F.3d at 419. Although a

defendant’s motion to withdraw a plea before sentencing should be “freely

allowed” and “given a great deal of latitude,” id., we will not reverse absent a

showing that the trial court acted “unjustly or unfairly.” Id. Applying the seven

factors under Gordon, we believe that Kramer failed to demonstrate a fair and just

reason for withdrawal of his plea.


      4
       Subdivision (e) of Fed. R. Crim. P. 32, which addresses plea withdrawals,
was formerly subdivision (d). Gordon was decided prior to this 1994 amendment
to Rule 32, and therefore refers to Fed. R. Crim. P. 32(d).

                                        - 13 -
      Although Kramer did assert his innocence, his quarrels with the statute, as

we have discussed, are unavailing. Moreover, he does not dispute that he offered

the items at issue for sale. Taken together, the remaining factors weigh decisively

against the defendant: the government would be prejudiced in that it would have

to recall its witnesses; the defendant delayed his motion to withdraw until the eve

of sentencing, nearly three months after he was appointed his third attorney and

five months after pleading guilty; the court would be inconvenienced if this case

went to trial, given that it was set for trial five times and Kramer had been

appointed three different attorneys as of the time of the withdrawal motion;

Kramer received effective assistance from his trial counsel; his plea was knowing

and voluntary; and finally, allowing this case to proceed to trial would be a waste

of judicial resources, as it is unlikely that a trial would produce a result any

different than his plea. In sum, Kramer has failed to demonstrate that the district

court acted unjustly or unfairly in denying his motion to withdraw his guilty plea.

We find no abuse of discretion.



                                   CONCLUSION

      We hold that Defendant-Appellant Kramer’s guilty plea was voluntary and

that the district court’s denial of Kramer’s motion to withdraw his guilty plea was




                                         - 14 -
proper. Accordingly, the district court’s denial of Kramer’s motion is

AFFIRMED.




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