
USCA1 Opinion

	




          July 20, 1993         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-1835                                                UNITED STATES,                                      Appellee,                                          v.                                  PETER MORAN HENRY,                                Defendant, Appellant.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jaime Pieras, Jr., U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ___________________               Jose R. Gaztambide on brief for appellant.               __________________               Charles  E. Fitzwilliam,  United  States Attorney,  Jeanette               _______________________                             ________          Mercado-Rios, Assistant  U.S. Attorney,  and  Jose A.  Quiles  on          ____________                                  _______________          brief for appellee.                                  __________________                                  __________________                      PER  CURIAM.  Defendant-appellant Peter Moran Henry                      ___________            appeals the denial of a motion to withdraw his guilty plea in            the United States  District Court for the  District of Puerto            Rico.    Finding no  error in  the  decision of  the district            court, we affirm.                                          I                                          I                                      Background                                      Background                                      __________                      Henry   took   his   girlfriend,   Hattie   "Penny"            Middlebrook, and  a friend of hers,  Ruby Christine Marshall,            on  a vacation to St.  Lucia in September,  1991.  Upon their            return to  the  airport in  San  Juan, Puerto  Rico,  Customs            Inspector Herdmann observed  Middlebrook and Marshall walking            in  a suspiciously  rigid  manner,  apparently following  the            directions  provided by  the physical  gestures of  a nervous            Henry.   When the Inspector  questioned the  women, he  found            that  Middlebrook was carrying  the customs  declarations for            three travelers.    When he  asked who  their male  traveling            companion was,  they identified Mr. Henry.   Herdmann decided            that  further investigation  was required  when  he overheard            Henry tell another Inspector that he did not know Middlebrook            and  Marshall.   A  search  revealed  packages, containing  a            substance which was later established to be cocaine, taped to            the bodies  of both women.   No drugs  were found  in Henry's            possession.                                         -2-                                          2                      On October 9, 1991, a Federal Grand Jury returned a            true bill  against  Henry and  codefendants  Middlebrook  and            Marshall for violations  of 21 U.S.C.     841(a)(1), 952, 955            and 18  U.S.C.   2.  The  three count indictment charged that            on  or  about  September  30, 1991,  Henry,  Middlebrook  and            Marshall,  aiding and  abetting  each  other, did  knowingly,            intentionally   and   unlawfully  possess   with   intent  to            distribute, and did import into the customs  territory of the            United States from St.  Lucia, approximately 2.3 kilograms of            cocaine, which cocaine  was not part  of the official  supply            list nor part of the cargo  manifest of the airline flight on            which the codefendants had travelled from St. Lucia to Puerto            Rico.   Henry pled not  guilty at his  arraignment on October            24, 1991.                      On December 18, 1991, the first day of Henry's jury            trial,  testimony was received  from Inspector  Herdmann (who            testified to the events in  the airport recounted above)  and            Middlebrook.  Middlebrook testified that Henry left the motel            where the three were staying in St. Lucia each morning before            she awoke, and that he  was gone for most of those days.  She            further testified that,  on the  way to the  airport for  the            departure  flight, Henry stopped at  a man's house.   He went            inside while  Middlebrook and Marshall waited  outside on the            porch.  When  he emerged,  he told his  companions that  they            would be  taking some drugs back  to the United States.   The                                         -3-                                          3            women  entered  the house  where  drugs were  taped  to their            bodies  and they were  outfitted with  loose-fitting dresses.            The  drugs  were  secured  between  Middlebrook's  legs  with            masking tape  and a  girdle  which she  identified at  trial.            Middlebrook testified  that she received instructions to walk            with her legs pressed together so that attention would not be            drawn  to her walk.   The court  adjourned for the  day after            Middlebrook described her encounter with Inspector Herdmann.                      On the  second  day of  trial,  before  Middlebrook            could resume her testimony, Henry changed  his plea to guilty            on  all  three counts.   The  court  accepted his  plea after            engaging in a  colloquy in  which Henry:   (1) denied  having            taken  drugs, medicine  or  alcohol in  the past  twenty-four            hours; (2)  denied being  under the  care of  a doctor  for a            mental  or  emotional condition;  (3)  affirmed  that he  was            satisfied  with his  attorney's representation;  (4) declared            that he  considered himself guilty; (5)  acknowledged that he            understood that by pleading  guilty he would be found  guilty            without  trial;  (6)  confessed  to  asking  Middlebrook  and            Marshall  to carry the  drugs; (7) demonstrated  that he knew            the maximum  sentence and fine  he faced as  a result of  his            plea; (8) denied that he was being forced to change his plea;            (9)  stated that he was  pleading guilty for  no other reason            than the fact that he  was guilty; and (10) declared  that he            had consulted with his  attorney and understood the questions                                         -4-                                          4            he  was being  asked  by the  court.   The judge  ordered the            preparation   of  a  presentence   investigation  report  and            scheduled sentencing for March 19, 1992.                      On  March 3, 1992, Henry  filed a motion  pro se to                                                                ___ __            withdraw his guilty plea.  He claimed that he had been forced            to plead guilty by his lawyer and that he was confused at the            time he entered the  plea because he was under  the influence            of a variety of  medications.  The court assigned Henry a new            lawyer and  rescheduled the  sentencing hearing for  June 24,            1992.   On May 13,  1992, Henry, with  the assistance of  new            counsel,  moved  to withdraw  his  plea  on  the ground  that            letters  he  had  received from  his  girlfriend, codefendant            Middlebrook,  proved that  she had  committed perjury  at the            trial.1    At  the  sentencing hearing,  the  district  court                                            ____________________            1.   The  letters,  postmarked January  27,  1992,  and dated            December  29, 1991,  January 1,  1992 and  January  13, 1992,            included the following statements:                      Peter  I'm  so  very  sorry   about  what                      happened.   I  didn't  know that  I'll be                      talking  to  the United  States Attorney.                      My  lawyer  didn't  say  anything  to  me                      before  we arrived  in  Puerto  Rico  [to                      testify  at the  trial].    I  have  been                      thinking  about  what  happened  and  the                      things that I said  I was so scare[d] and                      I'm feeling so bad about it . . . .                      I can't  help but  think  that you  don't                      want to talk to me because of what I said                      and you  know that's  not true.   But you                      know that I was scare[d] and I don't want                      to go  back to that  place.   But if  you                      don't  want to  talk to  me I'll  try and                      understand.                                         -5-                                          5            denied  Henry's withdrawal  motion,  and sentenced  him to  a            seventy-month term of imprisonment, followed by four years of            supervised release.                                            ____________________            The letters also reveal  that Middlebrook believed herself to            be pregnant with Henry's child.                                         -6-                                          6                                          II                                          II                                       Analysis                                       Analysis                                       ________                      It  is well  established  that a  defendant, having            chosen  to  plead  guilty,  possesses no  absolute  right  to            withdraw his or  her plea.  United States v. Tilley, 964 F.2d                                        _____________    ______            66, 72 (1st  Cir. 1992);  United States v.  Austin, 948  F.2d                                      _____________     ______            783, 786  (1st Cir.  1991); United  States v. Pellerito,  878                                        ______________    _________            F.2d  1535, 1537 (1st  Cir. 1989); United  States v. Buckley,                                               ______________    _______            847 F.2d 991,  998 (1st  Cir. 1988), cert.  denied, 488  U.S.                                                 _____________            1015 (1989); United States  v. Ramos, 810 F.2d 308,  311 (1st                         _____________     _____            Cir. 1987).   Where a motion to withdraw is  brought prior to            sentencing,  as was  done in  this case,  the district  court            should allow it only if there is a "fair and just reason" for            doing so.   Fed. R. Crim.  P. 32(d); United States  v. Doyle,                                                 _____________     _____            981 F.2d 591,  594 (1st Cir.  1992); Tilley, 964 F.2d  at 72;                                                 ______            Austin, 948 F.2d  at 786;  Buckley, 847 F.2d  at 998;  United            ______                     _______                     ______            States v. Kobrosky, 711 F.2d 449, 454 (1st Cir. 1983).            ______    ________                      This court has held that the following factors must            be evaluated in deciding whether a "fair and just reason" has            been offered in support of a withdrawal motion:                      (1) the  timing of defendant's  change of                      heart; (2) the force and  plausibility of                      the reason; (3) whether the defendant has                      asserted his legal innocence; (4) whether                      the  parties had reached  (or breached) a                      plea agreement; and (5) most importantly,                      whether the defendant's  guilty plea  can                      still    be   regarded    as   voluntary,                      intelligent, and  otherwise in conformity                      with  Rule  11 of  the  Federal  Rules of                                         -7-                                          7                      Criminal  Procedure  in   light  of   the                      proffered   reason   and  the   disclosed                      circumstances.            Pellerito, 878 F.2d  at 1537 (citations omitted).   See also,            _________                                           ___ ____            Doyle,  981  F.2d at  594;  Tilley, 964  F.2d  at 72.   After            _____                       ______            performing this analysis, "[i]f  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."  Doyle,  981 F.2d at 594.  We  review the                                 _____            denial  of a motion  to withdraw a  guilty plea  for abuse of            discretion.  Id.; Tilley, 964 F.2d at 72; Pellerito, 878 F.2d                         ___  ______                  _________            at 1538; Kobrosky, 711 F.2d at 454.                     ________                 A.   Timing                      ______                      As this court recently stated in Doyle,                                                       _____                      [b]ecause  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.                      _________            Doyle,  981 F.2d at 595  (emphasis added).   On appeal, Henry            _____            claims  that his change of  heart occurred on  March 3, 1992,            after receiving what he claims to be exculpatory letters from            his girlfriend,  and codefendant, Middlebrook.   In an effort            to  put  the best  light on  his  case, he  claims  that this                                         -8-                                          8            happened  over ninety  days  prior to  the actual  sentencing            hearing held on June 24, 1992.                      We see the facts somewhat differently.  Henry first            attempted  to  change his  plea  seventy-five  days after  he            entered the guilty plea at trial, and only sixteen days prior            to the  originally scheduled sentencing hearing.2   Appellant            made no  mention  of  the letters  from  Middlebrook  in  his            motion.  Rather, he  claimed that he was forced by his lawyer            to  plead guilty  and  that he  was  under the  influence  of            prescription  drugs at the time  he entered the  plea.  Henry            did not seize on the Middlebrook  letters as a reason for his            change of heart until his May 13, 1992 motion.                      It was  reasonable for the district  court to infer            from the  seventy-five day  delay between  appellant's guilty            plea  and his  withdrawal  motion, and  the proximity  of his            withdrawal request to his scheduled sentencing  hearing, that            Henry  did not experience the kind of "swift change of heart"            that  would indicate  that  the guilty  plea  was entered  in            "haste and confusion."    Ramos,  810 F.2d at  312.  As  this                                      _____            court  noted in affirming  the denial of  a withdrawal motion            filed eight  weeks after the  original plea was  accepted, "a            long delay between the plea and the motion to revoke belies a            claim  that the plea was  entered in haste  and confusion and                                            ____________________            2.   The date of the  actual sentencing hearing is irrelevant            to our evaluation of this factor.                                         -9-                                          9            requires compelling reasons to support it."  United States v.                                                         _____________            Crosby,  714 F.2d  185, 192  (1st  Cir. 1983)  (citing United            ______                                                 ______            States  v.  Barker, 514  F.2d  208,  222 (D.C.  Cir.),  cert.            ______      ______                                      _____            denied, 421 U.S.  1013 (1975)), cert.  denied, 464 U.S.  1045            ______                          _____________            (1984).   Appellant has offered  no explanation for  the long            delay before his  first motion to withdraw  his plea.  It  is            clear that receipt  of the Middlebrook  letters were not  the            proximate  cause of his  decision to change  his plea because            those letters were not mentioned in his March, 1992 motion.                 B.   Force and Plausibility of the Proffered Reasons                      _______________________________________________                      At  the June  24, 1992  hearing, appellant  and his            counsel offered several reasons  in support of his withdrawal            motion:   the  Middlebrook letters  showed that  she perjured            herself at  his trial; his consumption  of prescription drugs            at the time of his trial  made him confused; he was pushed by            his  lawyer  to plead  guilty;  and,  he  was  in  "emotional            distress"  at the time  of his  plea because  Middlebrook was            pregnant with his child.   The district court considered  the            force and plausibility of these reasons, and found them to be            inadequate to support the withdrawal motion.                      The court "scrutinized" the  content of the letters            and stated that  it did  "not see anything  there that  would            affect the plea of guilty . . . entered in December of 1991."            The  court further  stated  that it  did  "not find  them  to            suggest  any instance  of perjury."     On  appeal, appellant                                         -10-                                          10            merely asserts that the letters should have been presented to            a  jury  to  determine  their  force  and  credibility.    We            disagree.   The district  court has  the discretion  to grant            plea withdrawal motions, and  it is therefore properly within            the province  of the district  court to conduct  the required            five-part inquiry,  including an evaluation of  the force and            plausibility of the reasons proffered for the change of plea.            We  have read the Middlebrook letters and cannot say that the            district court's finding was clearly erroneous, especially in            light  of  the fact  that  the same  court  heard Middlebrook            testify at  trial.  While the  letters may tend to  show that            Middlebrook regretted the role  she played in her boyfriend's            incarceration, it is not self-evident that the letters either            constitute an  admission of perjury or  provide evidence that            perjury was committed.                      The  court rejected appellant's contention that his            plea  at   trial  was   influenced  by  his   consumption  of            prescription medicines.  At the sentencing hearing, the court            noted  that Henry  had been  asked at  the time  of  his plea            whether he had taken  drugs, medicine or alcohol in  the past            twenty-four hours, and that the appellant had answered in the            negative.  Later in  the sentencing hearing, Henry's counsel3            agreed  that the  trial  court had  properly determined  that                                            ____________________            3.   The attorney who represented appellant at the sentencing            hearing replaced Henry's trial counsel.  Replacement  counsel            also represented Henry on appeal.                                         -11-                                          11            appellant was not under the influence  of medications when he            changed his plea to guilty.                      The court found that appellant's trial attorney had            not coerced  him into  pleading  guilty.   Indeed, the  court            stated that his lawyer's advice was                      proper and sound.  And it was looking for                      the  welfare of  this  defendant.   And I                      don't think he induced the defendant into                      doing anything but  to tell the defendant                      the truth  and  that the  defendant  took                      this  decision upon  his  own  free  will                      because he  was  present.   He heard  two                      days  of  testimony of  witnesses against                      him.                      . . . .                      Having observed Attorney  Garcia come  in                      this case and the circumstances which led                      to the defendant's plea[] of guilty.  The                      Court  is  disincline[d]  to accept  your                      assertions.                         Contrary to that  I believe Mr. Garcia                      gave you good advice.            Appellant does  not contest this  finding on  appeal, and  we            find  nothing in  the record  to upset  the  district court's            findings.                      Appellant  did not  raise his  "emotional distress"            theory on appeal.                  C.   Legal Innocence                      _______________                      At no time has appellant directly stated that he is            legally  innocent of the charges  to which he  pled guilty on            December 19, 1991.  On that date, during the Rule 11 hearing,            appellant  said that  he  asked Middlebrook  and Marshall  to            carry the drugs, and stated:                                         -12-                                          12                      But I'm taking the blame  because I asked                      them and I had no business to ask them to                      take drugs.  We didn't go to St. Lucia to                      get drugs.   That's not what we go to St.                      Lucia  for.   But  they were  taking  the                      drugs and when we  go to Puerto Rico they                      got busted.  They  had drugs and I didn't                      have nothing and I feel guilty and I feel                      sorry because I knew what I asked them to                      do  was against  the  law.   So what  I'm                      asking the Court today,  I am asking you,                      Judge,  if  I  could  get  some  type  of                      leniency, maybe 42  months or 36  months,                      or I am not  going to put no time,  but a                      time to be in jail  for the crime that  I                      help committed [sic].4            Appellant clearly  acknowledged that  he felt guilty  for his            role  in aiding and abetting the  importation of cocaine into            the United States.  On appeal, Henry merely claims that he is            legally innocent because "he had not carried drugs nor forced            anyone  to  bring  drugs  into  the  United  States."    That            assertion  is an  insufficient expression of  legal innocence            because  he did not assert  his innocence of  the crimes with            which he was charged.  As  we noted in Doyle, "the absence of                                                   _____            a claim of  innocence weighs  in favor of  allowing a  guilty            plea to stand."  Doyle, 981 F.2d at 596.                             _____                 D.   Breach of Plea Agreement                      ________________________                      Because there  never was a  plea agreement  between            the appellant and the government, this factor bears no weight                                            ____________________            4.   Although  the  record, on  appeal,  does  not include  a            transcript  of  the  trial  proceedings,  including the  plea            colloquy, a  copy  of  the  transcript was  appended  to  the            appellant's brief,  and the  government quoted parts  of this            passage in its brief.                                         -13-                                          13            in  our calculus.  Henry contends that the district court was            confused,  and thought that there  had, in fact,  been a plea            agreement in this case.  Our  review of the transcript of the            sentencing  hearing  indicates that  the  court  had a  clear            understanding of  the situation.   The court cited  the five-            factor test outlined above  and endorsed in Tilley.   When it                                                        ______            reached this fourth factor the court stated:  "Four, when the            parties have reached or  breached a plea agreement.   Well, I            guess if he withdraw[s]  his plea now I guess  he's breaching            his plea agreement.   Although  that's not  what this  refers            to."  By stating "that's not what this refers to," and moving            on  to the fifth factor, the court recognized that the breach            of a plea  agreement between the  government and a  defendant            contemplated  by  this  factor  was not  implicated  in  this            case.5                 E.   Voluntariness                      _____________                      The  fifth  factor  which  must  be  considered  in            evaluating the strength of  appellant's motion to withdraw is            whether, "in  light of  the defendant's proffered  reason and            any newly  disclosed  facts, the  plea  may still  be  deemed            voluntary and intelligent."   Doyle, 981 F.2d  at 596 (citing                                          _____                                            ____________________            5.   We  note that there were  times in the  hearing when the            court seems to have applied the Tilley factors to appellant's                                            ______            change of  plea at  trial, rather  than to  the circumstances            surrounding his  subsequent  efforts to  withdraw his  guilty            plea.   Notwithstanding this apparent confusion,  a review of            the entire  record supports the court's  ultimate decision to            deny appellant's motion.                                         -14-                                          14            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)).     Appellant  contends  on   appeal  that  the            transcript  of his plea colloquy  at trial shows  that he was            indecisive about  his plea,  and that  the hearing  was "both            defective and incomplete."  We disagree.  The  district court            complied fully with the requirements of Fed. R. Crim. P. 11.                      Appellant   initially    resisted   accepting   the            government's  version of the facts of the case.  When offered            the opportunity to explain  with what facts he  disagreed, he            stated                         I  didn't agree  because  both of  the                      ladies    one lady  I'm in love  with and                      the   other  lady,  they  old  enough  to                      understand that the drugs is not legal to                      carry  in the  United States.   All  they                      have  to tell  me  is that  they are  not                      going to  carry it.  There  was no force,                      no  push.   I  asked them  not one  time.                      They  sleep on it  Sunday night.   Monday                      morning I  asked them the  same question,                      and it was agreed  that they would do it,                      without no force.                         So  I figure that I'm guilty by asking                      them to carry the cocaine,  but they also                      have  to  hold  their  responsibility  to                      carry it because I didn't put no force on                      them to carry these  drugs when they know                      the drugs is  not legal to carry.  I only                      asked  them, and  the  word  was said  in                      front of them when  the guy front we with                      it.  We  was sitting at  the table.   All                      they have  to say,  "I'm not coming  down                      for this, I'm not going to do this."                         So I figure like they should hold some                      type  of  responsibility  to   carry  the                      drugs, if the state attorney  didn't make                      a deal  with them that they  going to get                      less time.                                         -15-                                          15            This explanation  reveals that, although he  did dispute some            of  the details of  the government's case,  appellant did not            disagree with the fact that he facilitated the importation of            illegal drugs into the United States.  His statement  reveals            a  greater concern with informing  the court that  he had not            forced  the women to carry  the drugs, than  with denying his            guilt for  his role  in  the scheme.   In  sum,  there is  no            evidence  that appellant was unsure of his plea, nor is there            evidence  that the plea was coerced or entered without a full            understanding of the consequences.                 F.   Prejudice to Government                      _______________________                      Because  analysis  of  each  of  the  five  factors            supports   the   district  court's   denial   of  appellant's            withdrawal  motion,   we  need  not  consider   the  possible            prejudice  to  government of  reversing  the  decision below.            Doyle, 981 F.2d at 596 n.6 (citing Ramos, 810 F.2d at 315).            _____                              _____                                         III                                         III                                      Conclusion                                      Conclusion                                      __________                      Because  the appellant  has  not  made the  showing            required  to reverse a district court's denial of a motion to            withdraw a plea, the decision of the district court is                                          Affirmed.                                          ________                                         -16-                                          16
