                                                                     NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 14-1397
                                      ____________

                            UNITED STATES OF AMERICA

                                             v.

                                 THADDEUS VASKAS,

                                                         Appellant
                                      ____________

                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                             (D.C. No. 5-12-cr-00128-001)
                      District Judge: Honorable Harvey Bartle, III
                                     ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 15, 2015

             Before: HARDIMAN, SCIRICA and BARRY, Circuit Judges.

                                 (Filed: January 22, 2015)
                                      ____________

                                        OPINION*
                                      ____________

HARDIMAN, Circuit Judge.

       Thaddeus Vaskas appeals the District Court’s denial of his motion to withdraw his


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
guilty plea. We will affirm.

                                             I

       In November 2007, federal agents executed a search warrant at Vaskas’s home in

Bethlehem, Pennsylvania, after learning that he had purchased a membership to the child

pornography website “Illegal CP.” Once inside, agents spotted a laptop computer later

found to contain hundreds of images of pre-adolescent and adolescent girls exposing their

genitalia and engaging in sexual activity. The computer also contained a folder used by a

file-sharing program called “Morpheus” that included, among other things, one completed

download and three partial downloads of child pornography videos. These videos bore

extremely graphic names, such as “PTHC Tara 8yr - Tara gets molested by a clown.wmv.”

PSR ¶¶ 16–17.

       In March 2012, Vaskas was arrested and charged with one count of possessing

child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). Vaskas initially moved to

dismiss the indictment. He argued that, based on a report by computer forensics expert

Tami Loehrs, the content could have been downloaded without his knowledge.

Accordingly, the damning evidence on his computer was not proof that he knowingly

possessed child pornography. The Government opposed Vaskas’s motion to dismiss and

moved, under Federal Rules of Evidence 414 and 404(b), to admit his prior conviction for

possessing child pornography and his subscription to Illegal CP.




                                            2
       In August 2012, the grand jury returned a superseding indictment charging Vaskas

with three counts of possessing child pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B), and one count of receiving it, in violation of 18 U.S.C. § 2252(a)(2).

Vaskas ultimately pleaded guilty to one count of possession. During his guilty plea

hearing, Vaskas stated under oath that he understood that he was being charged with one

count of knowingly possessing child pornography, and he accepted the Government’s

recitation of the facts. “Mr. Vaskas, are you pleading guilty here today because you are, in

fact, guilty as charged?” the Court asked. “Yes,” Vaskas responded. Supplemental App.

(SA) 119.

       After the Probation Office prepared a Pre-Sentence Investigation Report but before

sentencing, Vaskas decided to withdraw his guilty plea. His lawyer then filed a motion to

withdraw as counsel, believing that withdrawal of the plea was not in his client’s best

interest. The District Court granted counsel’s motion and appointed new counsel, at which

point Vaskas proceeded to file a formal motion to withdraw his plea. The Court held a

hearing on Vaskas’s motion, during which Vaskas testified that, at the time of the guilty

plea, he was aware that Loehrs was conducting a supplemental investigation into whether

a computer virus could have put illicit images on his computer, but had not seen the actual

report until after his plea. Vaskas said his first lawyer had not shared the report with him

and had fired Loehrs without consulting him. “[D]uring the time I pled guilty,” Vaskas

stated, “I asked about the [second] report. I was led to believe it didn’t even exist. . . .

And, my lawyer was giving me misleading information by saying that I had no chance to
                                                3
win in the trial, and that his best advice for me was to take the plea.” SA 141. Vaskas said

the second report clearly showed a virus had put the images on his computer and that he

would not have pleaded guilty had he seen that report. Nevertheless, Vaskas declined to

introduce the second report into evidence.

       The District Court denied Vaskas’s motion to withdraw his plea. Judge Bartle

noted that Vaskas had looked him “in the eye” and said he was guilty and that he had

failed to show “fair and just reason” to withdraw his plea now. SA 168. The Court

sentenced Vaskas to 168 months’ imprisonment and 15 years of supervised release.

Vaskas now appeals.1

                                             II

       A guilty plea cannot be withdrawn “on a lark,” United States v. Hyde, 520 U.S.

670, 676 (1997), and the defendant bears the “substantial” burden of showing “fair and

just reason” for the withdrawal, United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003);

see Fed. R. Crim. P. 11(d). We have made clear that “[a] shift in defense tactics, a change

of mind, or the fear of punishment are not adequate reasons to impose on the government

the expense, difficulty, and risk of trying a defendant who has already acknowledged his

guilt by pleading guilty.” United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001)

(quoting United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992)).


       1
        The District Court had subject matter jurisdiction under 18 U.S.C. § 3231. We
have jurisdiction over this appeal under 28 U.S.C. § 1291. We review the District Court’s
ruling on a motion to withdraw a guilty plea for abuse of discretion. See United States v.
Martinez, 785 F.2d 111, 113 (3d Cir. 1986).
                                             4
       In evaluating a motion to withdraw a guilty plea, we consider (1) whether the

defendant asserted his innocence; (2) whether the government would be prejudiced by the

withdrawal; and (3) the strength of the defendant’s reasons for wanting to withdraw.

Brown, 250 F.3d at 815 (citing United States v. Huff, 873 F.2d 709, 711 (3d Cir. 1989)).

For the first factor, “[b]ald assertions of innocence” are not enough, id. at 818; they must

be “buttressed by facts in the record,” id. (quoting United States v. Salgado-Ocampo, 159

F.3d 322, 326 (7th Cir. 1998)). In addition, the defendant must provide sufficient

explanation for why he took a contradictory position at his guilty plea hearing. Jones, 336

F.3d at 253.

       Vaskas claims the District Court abused its discretion in denying his motion to

withdraw his guilty plea. He asserts that his first lawyer failed to inform him of a

potentially exculpatory expert report, and that he pleaded guilty only because he thought

that he had no means of verifying his innocence. But now, he says, he can proclaim his

innocence based on an expert report he received after the plea that “allowed for the

possibility” that the illicit content on his computer had been downloaded via virus, without

his knowledge or consent. Vaskas Br. 15. Vaskas argues that the second report provides a

“key piece of information” supporting his innocence, which requires us to vacate his guilty

plea and remand his case for trial. Id. at 17–18.

       We decline to do so. First, Vaskas failed to make a sufficient assertion of

innocence. At his guilty plea hearing, Vaskas stated under oath that he knowingly


                                              5
possessed child pornography on his computer in violation of § 2252(a)(4)(B). See SA 99–

100, 166–69. Now, Vaskas says he would not have pleaded guilty had he known about

another report that “allowed for the possibility” that a virus had put the content on his

computer. This is not a profession of innocence. Instead, Vaskas is claiming that he would

have gone to trial had he known about the report because he might have been acquitted

based on its findings. In essence, Vaskas is saying that he misjudged his prospects at trial.

And our caselaw makes clear that this is not sufficient to warrant withdrawal of a guilty

plea. See Jones, 336 F.3d at 252–55; Brown, 250 F.2d at 815–16.

       Second, Vaskas failed to sufficiently explain why he took two contradictory

positions under oath. See Jones, 979 F.2d at 318. During his plea colloquy, Vaskas

admitted that he knew he possessed child pornography. If anything, the new evidence

shows there might be some other reason why the material showed up on his computer. It

does not, however, explain why he previously testified that he knew he possessed that

same material.

                                             III

       For the reasons stated, the District Court did not abuse its discretion in denying

Vaskas’s motion to withdraw his guilty plea. The order of the District Court will be

affirmed.




                                              6
