     16-2631-cr (L)
     United States v. Wolf

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
     BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
     OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



 1           At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
 3   27th day of October, two thousand seventeen.
 4
 5   Present:    JOHN M. WALKER, JR.,
 6               ROSEMARY S. POOLER,
 7               RAYMOND J. LOHIER, JR.,
 8                           Circuit Judges.
 9   _____________________________________________________
10
11   UNITED STATES OF AMERICA,
12
13                                  Appellee,
14
15                           v.                                                  16-2631-cr (L)
16                                                                               16-3576-cr (CON)
17   LEONARD WOLF, also known as Sealed Defendant 1,
18
19                           Defendant-Appellant.
20   _____________________________________________________
21
22   Appearing for Appellant:       Matthew B. Larsen, Federal Defenders of New York, Appeals
23                                  Bureau, New York, N.Y.
24
25   Appearing for Appellees:       Jonathan Cohen, Assistant United States Attorney (Niketh
26                                  Velamoor, Michael Ferrara, Assistant United States Attorneys, on
27                                  the brief), for Joon H. Kim, Acting United States Attorney for the
28                                  Southern District of New York, New York, N.Y.
29
30   Appeal from the United States District Court for the Southern District of New York (Wood, J.).
31



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 1        ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
 2   AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
 3
 4            Defendant-Appellant Leonard Wolf, also known as Sealed Defendant 1, appeals the
 5   judgment of conviction entered against him on July 28, 2016 by the United States District Court
 6   for the Southern District of New York (Wood, J.), following a guilty plea by Wolf to the charges
 7   of: (1) conspiracy to commit wire fraud and bank fraud, and (2) wire fraud. Wolf challenges the
 8   district court’s denial of an evidentiary hearing following his motion to withdraw his guilty plea.
 9   We assume the parties’ familiarity with the underlying facts and procedural history.
10
11           Federal Rule of Criminal Procedure 11 permits a defendant to withdraw his accepted plea
12   anytime before sentence is imposed if the defendant “can show a fair and just reason for
13   requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). While “this standard implies that
14   motions to withdraw prior to sentence should be liberally granted, a defendant who seeks to
15   withdraw his plea bears the burden of satisfying the trial judge that there are valid grounds for
16   withdrawal.” United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (citation and
17   internal quotation marks omitted). “To determine whether the defendant has proffered a fair and
18   just reason to justify withdrawal, a district court should consider, inter alia: (1) the amount of
19   time that has elapsed between the plea and the motion; (2) whether the defendant has asserted a
20   claim of legal innocence; and (3) whether the government would be prejudiced by a withdrawal
21   of the plea.” United States v. Doe, 537 F.3d 204, 210 (2d Cir. 2008) (internal quotation marks
22   omitted). Where a motion to withdraw a plea is premised on involuntariness, the “defendant must
23   raise a significant question about the voluntariness of the original plea.” United States v. Torres,
24   129 F.3d 710, 715 (2d Cir. 1997).
25
26           “A defendant is not entitled to an evidentiary hearing as a matter of right whenever he
27   seeks to withdraw his guilty plea.” Gonzalez, 970 F.2d at 1100. “Although the standard to be
28   applied in granting a hearing is less rigorous than the standard for granting the motion to
29   withdraw the plea, the defendant must present some significant questions concerning the
30   voluntariness or general validity of the plea to justify an evidentiary hearing.” Id. (citation
31   omitted). “No hearing need be granted when the allegations on a motion to withdraw a guilty
32   plea before sentencing merely contradict the record, are inherently incredible, or are simply
33   conclusory.” Id.
34
35          We “review a district court’s decision to deny a motion to withdraw a guilty plea for
36   abuse of discretion.” United States v. Adams, 448 F.3d 492, 498 (2d Cir. 2006). The same
37   standard of review applies to a district court’s decision not to hold an evidentiary hearing before
38   denying a motion. See Doe, 537 F.3d at 212.
39
40           We find no abuse of discretion in the district court’s refusal to hold an evidentiary
41   hearing. The district court here solicited affidavits from Wolf’s two trial attorneys in order to
42   rule on Wolf’s motion to withdraw his guilty plea. Although Wolf’s affidavit provided specific
43   allegations, none were particularly credible given Wolf’s prior behavior, his statements at his
44   plea allocution, and the trial evidence available to the district court. Trial counsel’s affidavits, in
45   contrast, provided detailed descriptions of the events, which account for Wolf’s decision to plead
46   guilty after days of what the district court described as “devestating” trial testimony, as well as



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 1   the half-year delay between his plea and his motion to withdraw. It was thus within the district
 2   court’s discretion to determine that there was no need to provide Wolf with an opportunity to
 3   cross-examine his trial counsel where Wolf had failed to credibly suggest a valid ground for the
 4   withdrawal of his guilty plea.
 5
 6           We have considered the remainder of Wolf’s arguments and find them to be without
 7   merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
 8
 9                                                       FOR THE COURT:
10                                                       Catherine O’Hagan Wolfe, Clerk
11




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