
USCA1 Opinion

	




          December 16, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1475                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                  CLIFFORD A. DOYLE,                                Defendant, Appellant.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                              _________________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Selya, Circuit Judge.                                         _____________                              _________________________               Kent I.  Patashnick, with whom Patashnick Law Offices was on               ___________________            ______________________          brief, for appellant.               F. Mark Terison, Assistant United States Attorney, with whom               _______________          Richard S. Cohen, United  States Attorney, was on brief,  for the          ________________          United States.                              _________________________                              _________________________                    SELYA,  Circuit Judge.   This  appeal requires  that we                    SELYA,  Circuit Judge.                            _____________          ponder the  denial of appellant's  motion to withdraw  his guilty          plea  to  certain  federal drug  and  tax  offenses.   Because  a          weighing  of the  relevant factors  virtually compels  the result          reached below, we affirm.          I. BACKGROUND          I. BACKGROUND                    On July 12, 1991, defendant-appellant Clifford A. Doyle          agreed  to  plead guilty  to  certain  narcotics  and income  tax          offenses.   See 21 U.S.C.     841(a)(1), 841(b)(1)(B)  (1988); 26                      ___          U.S.C.    7201, 7206(1)  (1988).  In the written  plea agreement,          appellant promised  to cooperate with the  government in exchange          for the  assurance that  the prosecutor would  herald appellant's          assistance.   According to  its terms  the bargain contained  "no          further or other agreements, either express or implied."                     On September  9, 1991,  the district judge  conducted a          hearing under  the aegis of  Fed. R.  Crim. P. 11,  ascertained a          fac-tual basis  for the plea, and  elicited Doyle's understanding          of  the charges against him,  the maximum sentence  he faced, the          rights  he relinquished,  and  like matters.1   Upon  determining          Doyle's tender  to be knowing  and voluntary, the  court accepted          the guilty plea.                    At the hearing's  end, the government filed a motion to          seal all records in the case.  No objection appearing, the motion          was granted.  But, as Homer had prophesied many centuries before,                                        ____________________               1During the  Rule 11  colloquy, appellant again  assured the          court  that no promises apart from those specified in the written          agreement had influenced his change of plea.                                          2          there was room for a slip 'twixt the cup and the lip.   The clerk          of court neglected  properly to record and  implement the sealing          order.  Two  days later, the press learned of  Doyle's plea and a          spate of publicity ensued.                    Sentencing proved an unusually protracted affair.   The          initial sentencing hearing began  on February 7, 1992.   It ended          when  the  district judge  granted appellant  time to  respond to          evidence  of attempted  flight.   At adjournment,  the prosecutor          called the judge's attention to the clerk's bevue, reporting that          only the plea  agreement itself had been impounded and that, as a          result,  publicity about  the case's  status had  jeopardized the          identity of  a confidential  informant.  Although  the toothpaste          was out  of the  tube, the  prosecution nevertheless renewed  the          motion to seal.  The  court again granted the motion.   Appellant          stood mute.                     The proceedings resumed nearly  two months later (April          2,  1992).  The judge apprised Doyle's counsel of his inclination          to mete out consecutive prison sentences totalling fourteen years          and  one  month.   Eventually,  however, the  judge  recessed the          hearing  without actually  imposing sentence  so that  a question          concerning the possibility of parole could be clarified.                     The  third sentencing  hearing took  place on  April 6.          The judge  settled  the parole  issue at  a chambers  conference,          informing the lawyers that "any sentence I hand down will be with          the  contemplation that [Doyle] may  end up having  to serve that          entire  [sentence]."   Appellant's  counsel inquired  whether the                                          3          judge's thinking anent length of sentence had modulated, but  the          judge declined comment.                    When the proceedings shifted into open court, appellant          moved  to withdraw  his guilty  plea.  He  argued that  the media          attention  surrounding  the  case  had endangered  his  life  and          stymied complete  cooperation, thereby depriving him  of the full          benefit  of the bargain commemorated in his plea agreement.2  The          district  court determined,  in  substance, that  the request  to          retract derived from appellant's  displeasure with the forecasted          sentence  rather than  from  any legally  cognizable reason  and,          therefore, denied the motion.   Following imposition of sentence,          Doyle appealed.          II.  ANALYSIS          II.  ANALYSIS                    We  start with an  overview of the  legal landscape and          then proceed to survey  the precise terrain on which  this appeal          is constructed.                                          A                                          A                    A  defendant  may  withdraw  a  guilty  plea  prior  to          sentencing  only  upon showing  a fair  and  just reason  for the          request.  See  United States  v. Pellerito, 878  F.2d 1535,  1537                    ___  _____________     _________          (1st  Cir. 1989);  see also  Fed.  R. Crim.  P.  32(d).   Several                             ___ ____          factors  enter  the  trial  court's decisional  calculus.    They          include the force of defendant's proffered reason;  the timing of                                        ____________________               2While   appellant's  motion   offered  other   reasons  for          withdrawing his plea, he argues none of them on appeal.   We deem          those arguments waived.  See United States v. Dietz, 950 F.2d 50,                                   ___ _____________    _____          55  (1st Cir. 1991);  United States v.  Rivera-Martinez, 931 F.2d                                _____________     _______________          148, 150 n.3 (1st Cir.), cert. denied, 112 S. Ct. 184 (1991).                                   _____ ______                                          4          the request; the defendant's assertion of legal innocence (or the          lack of such an  assertion); and  the likely voluntariness of the          plea, given the newly emergent circumstances.  See Pellerito, 878                                                         ___ _________          F.2d at 1537; United  States v. Kobrosky, 711 F.2d  449, 455 (1st                        ______________    ________          Cir. 1983).  If the combined weight of these factors tilts in the          defendant's favor, then the court must also assess the quantum of          prejudice,  if any,  that  will inure  to  the government.    See                                                                        ___          Pellerito,  878 at  1537.   The nisi  prius court  has a  special          _________          vantage point from which  it may evaluate these factors.   Hence,          its decision  about whether  it is fair  and just to  extricate a          particular defendant  from his  plea will  be overruled  only for          abuse of discretion.  See id. at 1538; Kobrosky, 711 F.2d at 454.                                ___ ___          ________                                          B                                          B                    Having  limned the  salient factors  in  the decisional          calculus, we examine the lower court's findings on each.                    1.  The Proffered Reason.  A defendant may not renounce                                                                      ____________________          his guilty  plea  without advancing  a  plausible reason  for  so          doing.  See United States v. Tilley, 964 F.2d 66, 72-73 (1st Cir.                  ___ _____________    ______          1992);  Pellerito,  878 F.2d at 1538.  Appellant  claims that his                  _________          plea  rested  on the  mistaken  understanding  that all  possible          fruits  deriving from  full  cooperation would  be his.   Because          media  intensity  dictated  the   tone  of  his  cooperation,  he          maintains  that the  government breached  an implicit  promise to          safeguard his opportunity to cooperate fully and, thus, precluded          him  from reaping  the perceived  benefits of  his bargain.   The          argument rings hollow.                                          5                    For  one thing,  Dolye's  professed  expectations  were          unwarranted.   The  plea agreement  contained no  promise on  the          government's part either to  seal the proceedings or to  take any          other  steps to facilitate the  defendant's cooperation.  We have          repeatedly  refused  to  infer  the  existence  of  promises  not          expressly   articulated  in,  or  necessarily  implied  by,  plea          agreements,3  see, e.g.,  United States v. Atwood, 963  F.2d 476,                        ___  ____   _____________    ______          479 (1st  Cir. 1992); United  States v.  Garcia, 954 F.2d  12, 17                                ______________     ______          (1st Cir.  1992); United States v. Hogan,  862 F.2d 386, 388 (1st                            _____________    _____          Cir. 1988), and  we discern  no basis for  retreating today  from          that  salutary proposition.    Indeed, speculation  about such  a          promise  would  be  especially  inconcinnous  in  this   instance          because,  during the  Rule 11  proceeding, appellant  assured the          district court  that no one "made a promise to [him] in an effort          to  induce  [him]  to plead  guilty  aside  from  [those promises          contained in] the plea agreement."                      For  another  thing, the  circumstances of  the secrecy          order   render  appellant's  professed   reliance  on  it  wholly          gratuitous.   The government  moved  to seal  after the  district                                                        _____          court accepted  the guilty  plea, stating  in its  written motion          that  it wanted  to  "protect the  integrity of  ongoing criminal          investigations."   We simply do  not see how imperfect compliance          with an order mentioned for the first time after appellant's plea                                        ____________________               3This familiar precept has particular applicability when, as          in this case, the plea agreement itself specifically  states that          "there  are no  further or  other  agreements, either  express or          implied," other than those explicitly set forth in the document.                                          6          had  been accepted,  and represented  to the  court chiefly  as a          vehicle  to   serve  the   government's  (not   the  defendant's)          interests, could conceivably constitute  a "fair and just" reason          for  retraction.  This is  especially so, we  suggest, in view of          appellant's grudging admission that any  prosecutorial assurances          about  keeping his  case under  wraps came  only after  the court          allowed his change of plea.                    Thirdly,  appellant's argument depends  on a profoundly          flawed premise.  He says his ability to cooperate was hampered by          unforeseen events,  specifically, the  clerk's blunder.   Yet, in          any  given case  a  host of  external  conditions may  impede  an          accused's cooperation.  In the last analysis, criminal defendants          occupy no special refuge from the vagaries of an uncertain world.          Cf.  Tilley, 964 F.2d at  72-73 (denying a  plea withdrawal where          ___  ______          defendant asserted  a breakdown  in cooperation).   A defendant's          inability fully to perform  his own undertakings, if attributable          to  a circumstance  beyond  the prosecution's  control, does  not          constitute  a cogent reason for allowing him to withdraw a guilty          plea (unless, of course, the plea was expressly conditioned  upon          nonoccurrence of the event).4                                        ____________________               4Appellant argues that his situation is exceptional inasmuch          as the court's own mistake frustrated specific performance.  This          asseveration  might  have  some   force  if  the  plea  agreement          contained  a promise to  impound records  and the  clerk's miscue          effectively  deprived appellant  of the  benefit of  the promise.          Here,  however, for  sentencing purposes,  the court, by  its own          appraisal, took into account "the fact that [Doyle] did intend to          and  wanted to cooperate even  though he was  frustrated in doing          so."  Where no apparent loss of benefit exists there is simply no          warrant  for judicially rewriting plea agreements in an effort to          ward off all contingencies harmful to one side.                                                           7                    2.   Timing.    Because  the  timing of  a  defendant's                         _______          attempted plea  withdrawal is  highly probative of  motive, close          scrutiny of  the chronology is important  in adjudicating whether          retraction  is fair and just.  While an immediate change of heart          may  well lend considerable force to a plea withdrawal request, a          long  interval between the plea and the request often weakens any          claim  that  the plea  was entered  in  confusion or  under false          pretenses.   See United States v.  Daniels, 821 F.2d 76,  79 (1st                       ___ _____________     _______          Cir. 1987);  United States v. Ramos, 810  F.2d 308, 313 (1st Cir.                       _____________    _____          1987);  United States v. Barker,  514 F.2d 208,  222 (D.C. Cir.),                  _____________    ______          cert. denied, 421 U.S.  1013 (1975).  Put another  way, excessive          _____ ______          delay  saps strength  from any  proffered reason  for withdrawal.          See  Barker, 514 F.2d at  222 (observing that,  "if the defendant          ___  ______          has long delayed his withdrawal  motion, . . . the reasons  given          to support withdrawal must have considerably more force").  Here,          appellant's timing belies his rationale.                      As  we  have  said,  appellant's proffered  reason  for          seeking  to  withdraw his  plea is  that  the plea  agreement was          founded  on  the  mistaken  assumption that  his  opportunity  to          cooperate  would   be  protected.    The   chronology  of  events          inexorably  implies  that  this  "reason"  was  no  more  than  a          contrived  excuse  to  escape  the  district  court's  forecasted          sentence.  Appellant learned of the leak two days after the  Rule          11 hearing.  He  testified that "every newspaper, radio  station,          and  TV  station  within  50  miles"  promptly  appeared  on  his          doorstep,  making "cooperation  more  than a  little  difficult."                                          8          Nonetheless,  he did not  seek to withdraw  his plea for   nearly          seven months.  That date, April 6, 1992, was (a) a mere four days          after appellant  discovered that the court  was contemplating the          imposition of a  lengthy incarcerative sentence, and (b) a matter          of minutes after defense counsel's failed attempt to elicit a new          sentencing prognosis from the judge.                    On this record, appellant's professed reason for moving          to withdraw  his plea  smacks of post-hoc  rationalization.   One          would have  to believe  in  the Tooth  Fairy to  think it  merely          coincidental that, on the heels of the court's divulgement of the          likely sentence,  the defendant  suddenly realized that  a seven-          month-old  error  had  destroyed  the  basis  on  which his  plea          agreement rested.  We agree with the court below that appellant's          newfound  desire to hazard  a trial can  only be  attributed to a          dawning awareness "of what the likely sentence would be."                    3.   Legal Innocence.  Courts look more hospitably on a                         ________________          motion to withdraw a guilty plea when the motion  is coupled with          an assertion of innocence.  See Tilley, 964 F.2d at 73; Kobrosky,                                      ___ ______                  ________          711 F.2d  at 455.   The reverse is also  true:  the  absence of a          claim of  innocence weighs in favor of  allowing a guilty plea to          stand.   Here, appellant   unconditionally admitted his  guilt at          the  Rule  11 proceeding  and  neither his  subsequent  motion to          withdraw his plea nor, indeed,  his appellate brief, contains  an          assertion of innocence.                     4.   Voluntariness.  In assaying the merits of a motion                         ______________          to  withdraw, an inquiring court must determine whether, in light                                          9          of  the  defendant's proffered  reason  and  any newly  disclosed          facts, the  plea may still  be deemed voluntary  and intelligent.          See  United  States v.  Austin, 948  F.2d  783, 786-87  (1st Cir.          ___  ______________     ______          1991);  United States v. Allard, 926 F.2d 1237, 1245-47 (1st Cir.                  _____________    ______          1991).    In this  case, the  district  court conducted  the plea          proceedings in strict conformity  with Rule 11's requirements and          succedent  events cast  no doubt  on the  court's contemporaneous          conclusion  that the  plea was  both voluntary  and intelligent.5          In  and of itself, the seven-month period preceding the motion to          withdraw   an interval wholly unexplained by plausible inferences          consistent with appellant's proffered reason for wanting to scrap          his  plea     serves to  cripple  any notion  that  the  plea was          coerced.  See Pellerito, 878 F.2d at 1541-42.  Moreover, the lack                    ___ _________          of any evidence that sealing the proceedings was part of the plea          bargain militates strongly against  appellant's argument that the          plea  was  unintelligent  due  to  a  mistaken  belief  that  the          government would  safeguard his opportunity to  cooperate.  After          all,  to invalidate  a guilty  plea, a  defendant's misimpression          must,  at  the very  least,  be both  objectively  reasonable and          related  to a  material  matter.    See id.  at  1538.    Doyle's                                              ___ ___          "mistake" does not qualify on either score.                                        ____________________               5We need not linger over appellant's claim that, as early as          February  7,  1992,  the  court  should  have   probed  anew  the          voluntariness and intelligence of  his plea.  To be  sure, courts          will  sometimes   inquire  sua   sponte  into  alleged   Rule  11                                     ___   ______          violations.  See, e.g., Daniels, 821 F.2d at 81.  Yet here, as we                       ___  ____  _______          have pointed  out,  the absence  of  a stated  term in  the  plea          agreement left the court without any  practical way of  tying the          thwarted impoundment order to the plea.  Thus, the district court          did not err by failing to undertake a further inquiry sua sponte.                                                                ___ ______                                          10                                          C                                          C                    We  need go no further.6  As  the motion to seal formed          no part  of  the plea  agreement, there  was never  any breach.            Furthermore,  by communicating the  extent of Doyle's cooperation          and his good  intention to do even more, the  government lived up          to its end of the bargain.  It had promised no more   and no more          was exigible.   See  Atwood, 963 F.2d  at 479  ("When .  . .  the                          ___  ______          prosecutor  did exactly  what the  government  promised to  do, a          claim  that the  plea  agreement was  breached  will not  lie.").          Hence,  the  district  court  did  not  err  in  determining that          appellant advanced no fair  and just reason for   retreating from          his guilty plea.          Affirmed.          Affirmed.          _________                                        ____________________               6Since all the critical  integers in the decisional calculus          counsel affirmance,  we  need  not  embark upon  an  analysis  of          possible prejudice to  the government.   See Ramos,  810 F.2d  at                                                   ___ _____          315.                                            11
