06-4124-cr
United States v. Doe


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT
                                   August Term, 2007

(Argued: April 24, 2008                                               Decided: August 13, 2008)

                                     Docket No. 06-4124-cr

                          _____________________________________

                               UNITED STATES OF AMERICA,

                                                                                        Appellee,
                                              –v.–

                                          JOHN DOE,

                                                                            Defendant-appellant.

                          _____________________________________

        Before:     KEARSE and POOLER, Circuit Judges, and COTE, District Judge.*
                       _____________________________________

         Appeal from the judgment of conviction entered on August 25, 2006 in the United States
District Court for the Southern District of New York following a plea of guilty. Defendant-
appellant argues that the district court abused its discretion in denying his motion to withdraw
his plea without conducting an evidentiary hearing. We hold that the district court did not abuse
its discretion in denying the defendant’s motion without a hearing because, on the basis of
undisputed facts, the court permissibly found that the defendant’s plea was entered voluntarily.
The prosecutor’s statement, which reminded the defendant of the consequences of a decision to
proceed to trial, did not render the defendant’s plea involuntary. We therefore affirm the
judgment of the district court.




*
     The Honorable Denise Cote, United States District Judge for the Southern District of
New York, sitting by designation.
COTE, District Judge:

       Defendant-appellant (“defendant”) appeals from the judgment of conviction entered by

the United States District Court for the Southern District of New York on August 25, 2006. The

defendant claims that the district court abused its discretion by denying his motion to withdraw

his guilty plea without conducting an evidentiary hearing. He claims that his plea was entered

involuntarily, as the result of a threatening statement made by the prosecutor immediately before

the defendant entered his plea. We hold that the district court did not abuse its discretion in

denying the defendant’s motion without a hearing because, on the basis of undisputed facts, the

court permissibly found that the defendant’s plea was entered voluntarily. The prosecutor’s

statement, which reminded the defendant of the consequences of a decision to proceed to trial,

did not render the defendant’s plea involuntary.

BACKGROUND

       These facts are undisputed and are drawn from the record. By indictment filed

November 7, 2002, the defendant was charged with one count of being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). In a series of superseding indictments, the

defendant and several codefendants were ultimately charged with an array of narcotics and

firearms offenses, participation in a criminal racketeering enterprise, and the murder of the

leader of that enterprise.1 In a separate indictment, the defendant and a codefendant, his

girlfriend, were charged with robbery, conspiracy to commit robbery, a firearms offense, and

murder of their robbery victim.

       Beginning in late 2002, while detained on the felon-in-possession charge, the defendant

communicated a desire to cooperate with the Government in connection with the prosecution of


1
       The murder of the enterprise’s leader was not charged as a separate crime, but rather as a
predicate racketeering act.

                                                   2
his codefendants. The Government rebuffed the defendant’s overtures. In April 2004, the

defendant again approached the Government about cooperation, indicating in writing that he

wished “to explore the possibility [of] entering into [a] cooperation agreement with your office.”

Again, the Government declined. The defendant approached the Government about cooperating

once more, in September 2004; the Government rejected the defendant’s offer.

          On April 25, 2005, the district court set a January 17, 2006 trial date for the defendant.

On or about October 6, 2005, the prosecutors and federal case agent met with the defendant and

his trial counsel for a reverse proffer session -- that is, a session in which the prosecutors

described the evidence against the defendant so that he could make an informed decision

whether to plead guilty or proceed to trial. The Government’s plea offer capped the defendant’s

exposure at forty-five years’ imprisonment. During this session, the prosecutors presented to the

defendant a series of letters he had written to his girlfriend in 2003 and 2004. The letters, which

the defendant’s girlfriend had provided to the Government, addressed a number of crimes

committed by the defendant and his codefendants, and were rife with the defendant’s admissions

of complicity in these crimes and professions of a desire to cooperate with the Government. At

the reverse proffer session, the defendant was told that the letters would be turned over to his

codefendants if he chose to proceed to trial, but would be withheld from them if he chose to

plead guilty. On November 2, the defendant informed his trial counsel that he intended to plead

guilty.

          On November 9, 2005, the defendant was brought before the district court, ostensibly to

enter his guilty plea. According to him, however, by that time he had changed his mind and

decided to proceed to trial. He informed his trial counsel of his decision, and trial counsel

informed the prosecutors that the defendant no longer intended to plead guilty. Before the judge



                                                   3
entered the courtroom, the defendant’s attorney and the prosecutors were engaged in a

discussion, during which the defendant overheard one of the prosecutors say something to the

effect that “the rest of the discovery material will have to go out to the codefendants today.” The

defendant understood the prosecutor to be referring to his letters to his girlfriend and it is this

statement that the defendant claims coerced him into pleading. The defendant thereafter

executed the plea agreement and proceeded to enter his guilty plea.

       The plea agreement provided that the defendant would plead guilty to charges of

conspiracy to commit robbery, participation in racketeering activity, and threatening to commit a

crime of violence and assaulting another individual in aid of racketeering. The three offenses

resulted in an advisory Sentencing Guidelines range of life imprisonment but carried a total

maximum statutory sentence capped at forty-five years, which the defendant acknowledged in

the plea agreement was a reasonable sentence. Further, the defendant agreed not to request a

sentence below forty-five years and waived his right to appeal or collaterally challenge any

sentence of forty-five years.

       During the plea allocution, the defendant stated that he understood the plea agreement

and that he had been given sufficient time to review it with his counsel. When asked whether he

had been “induced to offer to plead guilty as a result of any fear, pressure, threat or force of any

kind,” the defendant replied no. When asked whether he had been induced to plead guilty “as a

result of any statements by anyone, other than in your written plea agreement,” the defendant

replied no. Further, the defendant indicated that he was “fully satisfied with the advice, counsel

and representation” provided by his attorney, and that he was pleading guilty because he was “in

fact guilty.” During his allocution, the defendant admitted that he had killed the criminal

enterprise leader, had agreed with others to murder his robbery victim, and had fired a gun at a



                                                  4
third person to threaten him. The judge accepted the defendant’s plea and scheduled sentencing

for February 6, 2006. In advance of that date, all but one of the defendant’s codefendants

entered guilty pleas. The one remaining defendant went to trial on January 31, was convicted,

and was sentenced to life imprisonment.

       The United States Probation Office issued a Presentence Investigation Report (“PSR”)

for the defendant on January 31, 2006. The PSR recommended a sentence of forty-five years.

At the defendant’s request, his sentencing was adjourned from February 6 to April 13, 2006.

During the month of March, the defendant wrote to three different federal prosecutors -- none of

whom was assigned to his case -- expressing a desire to cooperate with the Government in

prosecutions other than those of his codefendants. The Government did not respond to these

requests.

       Almost five months after the entry of his plea, by letter dated April 1, 2006, the

defendant wrote to the district court requesting permission to withdraw his plea and the

appointment of new counsel. The defendant first claimed that the PSR had incorrectly

recommended that his terms of imprisonment on the three counts to which he pleaded guilty be

served consecutively, and not concurrently, despite the fact that the forty-five year sentence

stipulated in his plea agreement reflected an agreement that the terms run consecutively. He also

asserted that on November 9 he was not going to plead guilty until the prosecutor told him that

both of the indictments against him would be joined and that all of the letters he had written to

his girlfriend would be “placed into evidence.” He claimed that he “got scare[d]” by the possible

disclosure to his codefendants of his desire to cooperate with the Government in their

prosecution. This fear “gave me enough pressure to plead guilty.” Further, the defendant




                                                 5
complained that his trial counsel had “given me wrong information and in bad faith has

pressured me to plead guilty.”

       The district court held a series of conferences during the month of April, at which the

defendant was represented by newly-appointed counsel. By letter dated May 16, the defendant

moved to withdraw his plea based principally on his fear of disclosure of one of his letters to his

girlfriend. This letter concerned, among other things, a murder which the defendant had not

committed but with which his codefendants were charged (the “Letter”). In connection with this

motion, the defendant submitted an affidavit alleging certain facts concerning his plea. He

claimed that, “[l]ooking back on that day [when he entered his plea], I believe that fear clouded

my judgment, and my plea of guilty was not entered into freely and voluntarily.” He believed

that disclosure of the Letter would make him “a marked man in prison, and my safety, and even

my life, would be in jeopardy.”

       The Government did not concede the truth of the defendant’s allegations, nor did it

submit its own version of the facts alleged. It urged the district court to deny the defendant’s

motion without holding an evidentiary hearing. The district court received briefing from the

parties and held oral argument on two separate occasions, rendering an oral decision on the

motion on June 30, 2006.

       Observing that a defendant must demonstrate a “fair and just reason” for withdrawing his

plea, and enumerating various factors articulated by this Court for consideration of a motion to

withdraw, the district court denied the defendant’s motion. The district court made six findings.

First, the district court observed that the defendant did not make a claim of actual innocence.

Second, he waited nearly five months after entering his plea to move to withdraw it, undercutting

his claim that the plea was entered as a result of a “momentary feeling of panic” engendered by



                                                 6
the threatened disclosure of the Letter. Third, the defendant represented at his plea allocution

that his plea was freely given and not the product of coercion, and that he had sufficient time to

discuss it with his counsel. Fourth, the district court recounted the defendant’s numerous efforts

to cooperate with the Government as well as his rejection of the Government’s offer to separate

the defendant from other inmates within the prison, ostensibly belying his claim that he was

afraid for his life. Fifth, the district court found that the Government would be prejudiced by

withdrawal of the defendant’s plea, to wit: having completed the trial of the sole remaining

codefendant, “the government would be prejudiced by having to proceed against [the defendant]

at a separate trial at a time when its witnesses had already testified and been subject to cross-

examination.”

       Finally, the district court rejected the defendant’s ineffective assistance of counsel claim.

The defendant’s newly-appointed counsel argued that the defendant’s letters to his girlfriend

should have been withheld from discovery, and that his trial counsel should have presented to

the defendant the option of challenging the Government’s production of the letters under seal or

taking an interlocutory appeal from any decision that the letters were discoverable.2 The district

court rejected both contentions, finding that the letters would likely have been produced in

discovery “if for no other reason tha[n] for redaction for Bruton [v. United States, 391 U.S. 123

(1968)] purposes,” and that counsel’s suggested course for challenging production of the letters

was “ludicrous.” Further, the district court found that, given the overwhelming proof of the

defendant’s guilt, including inculpatory letters written in his own hand, and the likelihood of a


2
         The defendant’s trial counsel did not submit an affidavit in connection with the
defendant’s motion to withdraw his plea. The defendant’s newly-appointed counsel sent a letter
to trial counsel “confirming details of the conversations at the reverse proffer session on or about
October 6, 2005 and prior to the plea on November 9, 2005.” Trial counsel replied that he
“cannot adopt the accuracy of your letter,” but stated that he would be available to testify if the
district court held an evidentiary hearing on the defendant’s motion to withdraw his plea.

                                                 7
life sentence if convicted at trial, his decision to plead guilty was “clearly in his interests.” The

district court found no evidence that trial counsel’s “supposedly ineffective performance would

have affected the outcome of the plea process [because] I do not hear counsel arguing that this

defendant would not eventually have pled guilty.”

       The defendant was sentenced on July 18, 2006. His written sentencing submission did

not make any objection to the PSR, and the district court adopted its advisory Sentencing

Guidelines calculations. The Guidelines contemplated a sentence of life imprisonment, but The

defendant was sentenced to consecutive terms of imprisonment of twenty years, twenty years,

and five years, for a total of forty-five years, reflecting the statutory maximum terms of

imprisonment on the three counts of conviction. He timely appealed.

DISCUSSION

       Federal Rule of Criminal Procedure 11 permits a defendant to withdraw his plea anytime

before sentence is imposed if he “can show a fair and just reason for requesting the withdrawal.”

Fed. R. Crim. P. 11(d)(2)(B). While “this standard implies that motions to withdraw prior to

sentence should be liberally granted, a defendant who seeks to withdraw his plea bears the

burden of satisfying the trial judge that there are valid grounds for withdrawal.” United States v.

Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (citation and internal quotation marks omitted).

To determine whether the defendant has proffered a “fair and just reason” to justify withdrawal,

a district court should consider, inter alia: (1) the amount of time that has elapsed between the

plea and the motion; (2) whether the defendant has asserted a claim of legal innocence; and (3)

whether the government would be prejudiced by a withdrawal of the plea. United States v.

Couto, 311 F.3d 179, 185 (2d Cir. 2002). Where a motion to withdraw a plea is premised on

involuntariness, the “defendant must raise a significant question about the voluntariness of the



                                                  8
original plea.” United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997). “A defendant’s bald

statements that simply contradict what he said at his plea allocution are not sufficient grounds to

withdraw the guilty plea.” Id.

       We review a district court’s decision to deny a motion to withdraw a plea for abuse of

discretion. United States v. Adams, 448 F.3d 492, 498 (2d Cir. 2006). The standard for

withdrawing a guilty plea is stringent because “society has a strong interest in the finality of

guilty pleas, and allowing withdrawal of pleas not only undermines confidence in the integrity of

our judicial procedures, but also increases the volume of judicial work, and delays and impairs

the orderly administration of justice.” United States v. Maher, 108 F.3d 1513, 1529 (2d Cir.

1997) (citation, internal quotation marks, and alteration omitted).

       Although the defendant’s failure to claim actual innocence, the five-month lapse in time

between his plea and the bringing of his motion, and the prejudice to the Government occasioned

by trying the defendant after completing the trial of his codefendant each informed the district

court’s denial of his motion, the defendant’s focus on appeal is limited to the Government’s

“threat” to disclose his letters to his codefendants and his claim that this rendered his plea

involuntary. “Where the motion argues that the plea was not voluntary, a fortiori the court must

focus on voluntariness.” United States v. Rosen, 409 F.3d 535, 548 (2d Cir. 2005). The

Supreme Court has held that “[a] guilty plea, if induced by promises or threats which deprive it

of the character of a voluntary act, is void.” Machibroda v. United States, 368 U.S. 487, 493

(1962). “It does not follow, however, that all inducements for a defendant to plead guilty render

either a plea or the consequent waiver of the right to trial by jury involuntary.” McMahon v.

Hodges, 382 F.3d 284, 290 (2d Cir. 2004). “‘Voluntary’ for purposes of entering a lawful plea

to a criminal charge has never meant the absence of benefits influencing the defendant to plead.”



                                                  9
United States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990). Indeed, the Supreme Court has

instructed that, with regard to voluntariness, a guilty plea “must stand unless induced by threats

(or promises to discontinue improper harassment), misrepresentation (including unfulfilled or

unfulfillable promises), or perhaps by promises that are by their nature improper as having no

proper relationship to the prosecutor’s business (e.g. bribes).” Brady v. United States, 397 U.S.

742, 755 (1970) (internal quotation marks omitted).

        On appeal, the defendant argues that the district court abused its discretion by denying

his motion to withdraw his appeal without a hearing. He contends principally that the

prosecutor’s threatened disclosure of his letters to his codefendants,3 reiterated immediately

before he entered his plea, placed him in “fear of retribution” and thereby “undermined any

voluntariness of the plea.” He further argues that the district court engaged in “unsubstantiated

fact finding that defendant’s fear was not genuine or that he had other or mixed motives that

somehow supersede that fear.” Finally, he contends that the attorney representing him at the

time of his plea was ineffective by failing to advise the defendant of various ways to challenge

the production of his letters to his girlfriend in discovery.

        We hold that the district court did not abuse its discretion in denying the defendant’s

motion to withdraw his plea without conducting a hearing. We focus, as the defendant does, on

the prosecutor’s statement that the defendant’s letters would be produced in discovery. This

statement was neither a threat, a misrepresentation, nor a promise unrelated to the prosecutor’s

business. See id. It was, rather, a true recital of the scenario that would play out should the

defendant choose to proceed to trial, a scenario of which he had already been apprised by the

Government at the reverse proffer session. As the Government rightly observes, the defendant
3
         Both before the district court and on appeal, the defendant oscillated his focus between
all of his letters to his girlfriend and the Letter itself. The analysis that follows applies regardless
of whether we focus on all the letters or just the Letter.

                                                  10
was presented with “two unpalatable options”: he could plead guilty and receive certain

punishment of forty-five years’ imprisonment, or he could proceed to trial and likely be

sentenced to life imprisonment. As the Government had explained to him, the latter option

would also entail the disclosure to his codefendants of his letters to his girlfriend. He was made

aware of this choice at the reverse proffer session, and presumably considered it with some

seriousness between that session and his plea hearing. He was fully aware of the consequences

of his plea when he entered it, and thus the district court properly regarded the plea as the

product of “a voluntary and intelligent choice among the alternative courses of action open to the

defendant.” North Carolina v. Alford, 400 U.S. 25, 31 (1970). The prosecutor’s comment to the

defendant’s counsel before the plea hearing merely reiterated what the defendant already knew:

that he faced a choice, and that one of those choices would eventuate in the disclosure of his

letters. “The fact that a defendant has a change of heart prompted by his reevaluation of either

the Government’s case against him or the penalty that might be imposed is not a sufficient

reason to permit withdrawal of a plea.” Gonzalez, 970 F.2d at 1100.

       The defendant raises two principal arguments concerning the prosecutor’s statement.

First, the defendant emphasizes the close proximity in time between the prosecutor’s statement

and the entry of the defendant’s plea, suggesting that this quick succession of events placed the

defendant in a “panic” and induced him to plead guilty against his will. As noted above, the

prosecutor’s statement at the plea hearing was a reiteration of something the defendant already

knew, and which he presumably factored into his initial decision to plead guilty. The

prosecutor’s statement may have given the defendant momentary pause, but, fully aware of the

consequences of his decision, he opted to go forward with the plea. The question is not whether

his “decision reflected a wholly unrestrained will, but rather whether it constituted a deliberate,



                                                 11
intelligent choice between available alternatives.” Rosado v. Civiletti, 621 F.2d 1179, 1191 (2d

Cir. 1980).

       Second, the defendant argued initially that “there was no legal requirement to turn over

the Letter to [his] codefendants,” implicitly suggesting that the prosecutor’s mention of the

letters’ disclosure was somehow improper and unduly coercive of the defendant’s plea. This

argument is meritless, and the defendant has largely abandoned it. Had the defendant chosen to

go to trial, portions of his letters would have been admissible as direct evidence of his

participation in the conspiracy and other crimes with which he was charged. Accordingly,

because the Government clearly intended to introduce them against the defendant if he went to

trial, they would have been disclosed to his codefendants. Further, to the extent the letters

referred to the defendant’s knowledge of crimes committed by his co-conspirators in furtherance

of the racketeering enterprise, the letters would have been produced to his codefendants for

redaction, pursuant to Bruton. Bruton, 391 U.S. at 126. The defendant does not dispute either of

these propositions. Thus the prosecutor’s statement reflected an entirely legal -- and wholly

predictable -- scenario, and thus could not have rendered the defendant’s plea involuntary. The

defendant may have been fearful of the consequences adverted to in the prosecutor’s statement,

but his decision to plead guilty reflects his considered judgment to avoid those consequences as

well as a likely lifetime in prison. There is no legal requirement that the decision to plead guilty

be an easy one.

       In addition to rejecting the defendant’s argument that his plea was involuntary as a result

of the prosecutor’s statement, the district court permissibly relied on other indicia of the

voluntariness of the defendant’s plea. The defendant’s allegations concerning his fearfulness

upon hearing the prosecutor’s comment at his plea hearing, while undisputed by the



                                                 12
Government, are belied by the defendant’s own statements at his plea allocution. The defendant

stated that he was entering his plea voluntarily, and not “as a result of any fear, pressure, threat

or force of any kind.” Considering that statements at a plea allocution carry a strong

presumption of veracity, see Blackledge v. Allison, 431 U.S. 63, 74 (1977), and that the

defendant’s unequivocal admissions under oath contradict his conclusory assertions of

fearfulness, the district court did not abuse its discretion in declining to hold an evidentiary

hearing on the defendant’s motion. Moreover, the timing of the defendant’s motion to withdraw

his plea severely undercuts his argument that he pleaded guilty involuntarily. Whereas a “swift

change of heart” may “indicate[ a] plea made in haste or confusion,” Gonzalez, 970 F.2d at 1100

(citing United States v. Barker, 514 F.2d 208, 222 (D.C. Cir. 1975)), the fact that the defendant

waited five months to file his motion strongly supports the district court’s finding that his plea

was entered voluntarily.

       As to the propriety of the district court’s decision not to hold a hearing on the defendant’s

motion, the defendant contends that “sharply disputed facts” precluded the district court’s denial

of his motion without a hearing. But on the facts as alleged by the defendant himself, the district

court did not abuse its discretion in denying the motion. “[T]he defendant must present some

significant questions concerning the voluntariness or general validity of the plea to justify an

evidentiary hearing.” Id. As discussed above, there were sufficient indications of the

voluntariness of the defendant’s plea based on the defendant’s own rendering of the facts for the

district court to conclude that no hearing was necessary. Thus, the district court acted well

within its discretion by denying the defendant’s motion without a hearing.

       Finally, to the extent the defendant argues that his plea was involuntary as a result of trial

counsel’s ineffective assistance, those claims are rejected. “Ineffective assistance of counsel



                                                 13
during plea negotiations can invalidate a guilty plea and make granting withdrawal appropriate,

to the extent that the counsel’s deficient performance undermines the voluntary and intelligent

nature of defendant’s decision to plead guilty.” United States v. Arteca, 411 F.3d 315, 320 (2d

Cir. 2005). To advance an ineffective assistance of counsel claim in the context of a plea, the

defendant must show that (1) counsel’s performance fell below an objective standard of

reasonableness, and (2) “ but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. “To satisfy the second prong . . . in the context of plea

negotiations, the defendant must show that there is a reasonable probability that were it not for

counsel’s errors, he would not have pled guilty and would have proceeded to trial.” Id. (citation

omitted). The defendant claims that his trial counsel was ineffective in his failure to apprise the

defendant of certain legal strategies for challenging the disclosure of his letters -- specifically,

that he could have litigated their disclosure under seal, or taken an interlocutory appeal to this

court from any decision by the district court regarding their disclosure to his codefendants. For

the reasons described above, the defendant’s decision not to plead guilty, and therefore to go to

trial, would necessarily have entailed the admission of passages from his letters in his trial, and

the production of those letters to his codefendants for redaction under Bruton. The defendant

alleges no non-frivolous basis upon which his trial counsel could have challenged this

disclosure, and trial counsel was therefore not ineffective in declining to advise him of this

strategy. Further, the defendant has never asserted unequivocally that absent trial counsel’s

alleged failings, he would have proceeded to trial. Accordingly, he has advanced no colorable

claim that his plea was rendered involuntary as a result of trial counsel’s ineffective assistance.

CONCLUSION

        For the foregoing reasons, we affirm the district court’s judgment of conviction.



                                                  14
