                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2009

USA v. Fuller
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2898




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                                                                 NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 07-2898
                                   _____________

                         UNITED STATES OF AMERICA

                                           v.

                                   LISA FULLER,
                                                     Appellant
                                    __________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                          (D.C. Criminal No. 06-cr-00086)
                    District Judge: Honorable James M. Munley
                                    __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                on February 5, 2009

                   Before: RENDELL and ROTH, Circuit Judges,
                           and PADOVA,* District Judge.

                              (Filed: February 20, 2009)

                                    __________

                            OPINION OF THE COURT
                                  __________

__________________

   * Honorable John R. Padova, Senior Judge of the United States District Court for the
     Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.

       Lisa Fuller appeals from a ruling of the District Court of the Middle District of

Pennsylvania denying her motion to withdraw her guilty plea. Fuller initially pleaded

guilty on October 31, 2006 to the making, uttering, or possessing of a forged security of

an organization with intent to deceive another person or organization, in violation of

18 U.S.C. § 513(a). At her sentencing hearing on June 19, 2007, immediately prior to

receiving her sentence, Fuller moved to withdraw her plea. Fuller argues on appeal that

the District Court abused its discretion in denying her request. For the reasons stated

below, we will affirm.




I.     Background

       This case arises from an alleged check-forging scheme involving Fuller between

January 2003 and November 2004 against her employer. In her capacity as bookkeeper,

Fuller allegedly made out unauthorized payroll checks to herself, as well as unauthorized

“loan” checks, and fraudulently signed the company owner’s name.

       On October 31, 2006, Fuller pleaded guilty, under oath, after hearing all of the

pertinent details of the case including the elements of the charged offense, the facts

alleged, and the applicable sentencing range. The District Court thoroughly questioned

Fuller regarding whether her plea was knowing, voluntary, and intelligent. Fuller

confirmed that she had not “had drugs or alcohol in the last 24 hours” and that she felt

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fine. (Supp. App. 3-4.) She confirmed that she understood all of the charges and counts.

She also confirmed that she understood the significance of the plea and the rights she was

waiving, and that she was not subject to threat or coercion. After hearing the factual

bases of the specific check-forging violations she was being charged with, the court asked

Fuller, “do you admit you did the things that he said you did?” (Supp. App. 10-12.)

Fuller’s response was “yes.” (Supp. App. 12.)

       At her sentencing hearing on June 19, 2007, Fuller moved to withdraw the guilty

plea she had entered eight months before. In reply to a question by her attorney as to

whether she was innocent, she responded “[a]bsolutely, and I never said otherwise.”

(App. 3a.) She also claimed she had taken five times the prescribed dosage of her

prescription drug the morning of her guilty plea proceeding. Finally, she contended that

her plea was coerced because the Government threatened her with additional tax evasion

charges. After a brief discussion, the Court denied her motion to withdraw or for a new

hearing, explaining:

       You should have been prepared for this, because today is the day - - the
       Defendant knew that she was going to be sentenced. I have reviewed the
       colloquy in this case. My colloquy with you was very thorough, and it was
       full and complete. . . . Not only did I tell you what the charges were, they
       were read to you, and the exposures that you could suffer. With regard to
       you having taken medication, I had specifically gone over that in length,
       whether or not you had medication in the past 24 hours. You said that - -
       and you were under oath. You told me that you had no medication
       whatsoever and you felt fine and everything else. My examination of that is
       thorough, and I believe the record demonstrates that your guilty plea before
       me was intelligent, knowing and voluntary and without pressure on you to
       make in any way. I agree with the Government that perhaps this is a ploy to

                                             3
       delay this proceeding, or secondly, that you’re not satisfied with the
       guideline range. Your motion is denied. (App. 6a-7a.)

The Court subsequently sentenced her to 32 months imprisonment, accepting the 3-level

downward departure requested by the Government. In her brief, Fuller further argues that

she had been “cut off” at the sentencing hearing, and prohibited from explaining the

reasons for her innocence.




II.    Jurisdiction

       This court has jurisdiction to review a District Court’s denial of a motion to

withdraw a guilty plea under 28 U.S.C. § 1291. United States v. Jones, 336 F.3d 245, 251

(3d Cir. 2003).




III.   Discussion

       “A defendant may withdraw a plea of guilty or nolo contendere . . . after the court

accepts the plea, but before it imposes sentence if . . . the defendant can show a fair and

just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). In United

States v. Martinez, 785 F.2d 111 (3d Cir. 1985), this Court explained that “a criminal

defendant has no absolute right to withdraw a guilty plea;” a trial court’s determination

regarding the withdrawal will be reviewed under an abuse of discretion standard. Id. at

113. In withdrawing a guilty plea, “[t]he burden of demonstrating ‘fair and just’ reason

falls on the defendant, and that burden is substantial.” Jones, 336 F.3d at 252 (citing

                                              4
United States v. Hyde, 520 U.S. 670, 676-77 (1997); United States v. Isaac, 141 F.3d 477,

485 (3d Cir. 1998)).

       We have established three factors that “provide guideposts in evaluating whether a

district court abused its discretion in determining whether a criminal defendant has

asserted a ‘fair and just’ reason for withdrawal of a plea of guilty.” See Martinez, 785

F.2d at 114. The three factors are: “(1) whether the defendant asserts his innocence;

(2) whether the government would be prejudiced by withdrawal; and (3) the strength of

the defendant’s reasons for moving to withdraw.” Id. (internal quotation marks omitted).

A defendant wishing to withdraw a guilty plea must “not only reassert innocence, but give

sufficient reasons to explain why contradictory positions were taken before the district

court and why permission should be given to withdraw the guilty plea.” See United States

v. Jones, 979 F.2d 317, 318 (3d Cir. 1992). If a defendant fails to meet his or her burden

under factors one and three, the government need not show prejudice under factor two.

United States v. Harris, 44 F.3d 1206, 1210 (3d Cir. 1995).

       Every reason for withdrawal asserted by Fuller at her sentencing hearing was

contradicted by her earlier statements. Nothing that Fuller presented, either at the

sentencing hearing or since, explains the inconsistencies in her statements. Therefore, we

cannot say that the District Court abused its discretion in concluding that Fuller failed to

demonstrate adequate reasons for withdrawal.




                                              5
       Fuller’s claims of over-medication and coercion were directly contradicted by her

statements under oath at her plea hearing. She offered no reasons at the sentencing

hearing to explain her previous answers. Furthermore, as to the coercion claim, we fail to

see how threats of legitimate additional charges amount to anything other than the typical

give-and-take in plea negotiations. The Supreme Court has held that “acceptance of the

basic legitimacy of plea bargaining necessarily implies rejection of any notion that a

guilty plea is involuntary in a constitutional sense simply because it is the end result of the

bargaining process.” Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). The record

fully supports the District Court’s decision not to credit Fuller’s asserted reasons for

withdrawal.

       We also reject Fuller’s claims that she and her attorney were cut off by the judge

while she was trying to explain her reasons for withdrawal at the sentencing hearing. The

record shows that Fuller and her attorney had ample opportunity to further develop this

issue but chose not to do so. While exploring Fuller’s grounds for withdrawal, her

attorney asked a series of questions regarding her memory of the plea hearing, and then

said “Thank you,” apparently signaling that he was finished, at which point the

prosecution proceeded to state its position. (App. 3a.) Nothing suggests they were cut

off, nor did the defense offer any protest. The record is devoid of any support for Fuller’s

current claim of actual innocence, and is likewise devoid of any explanation for the

inconsistencies between her two hearings as they relate to her asserted reasons.



                                              6
       Because Fuller was unable to support her claim of actual innocence or present

sufficient reasons for withdrawal, the Government need not show prejudice. We note

however, that this eleventh hour plea change occurred eight months after Fuller’s initial

guilty plea, and a delay of several months can induce the Government to relax its

evidence-gathering efforts in reliance on the guilty plea. See United States v. Brehm,

442 F.3d 1291, 1298-99 (11th Cir. 2006). This could be prejudicial.




IV     Conclusion

       We accordingly conclude that the District Court was well within its discretion to

deny the withdrawal of Fuller’s plea, and we will AFFIRM the District Court on all

grounds.

_______________




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