[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-2436
UNITED STATES,
Appellee,
v.
LAWRENCE B. HILTZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Jack M. Atwood on brief for appellant.
James B. Farmer, United States Attorney, and Lori J. Holik,
Assistant U.S. Attorney, on brief for appellee.
July 24, 2001
Per Curiam. Lawrence B. Hiltz appeals from the
denial of his motion to withdraw his guilty plea. Hiltz
moved to withdraw his plea prior to sentencing. Therefore,
the court was permitted to grant the motion for “any fair and
just reason.” Fed.R.Crim.P. 32(e). In reviewing plea
withdrawal rulings, this court “accord[s] considerable
deference to the firsthand assessment ultimately made by the
district court, which must be affirmed absent a demonstrable
abuse of discretion.” United States v. Marrero-Rivera, 124
F.3d 342, 348 (1 st Cir. 1997). In particular, “the
factfinding underlying the plea withdrawal ruling may not be
set aside for anything less than ‘clear error.’” Id. at 347.
Because we conclude that the district court’s determination
that the plea was knowing and voluntary was neither clear
error nor an abuse of discretion, we affirm.
I. Background
Hiltz pled guilty to one count of conspiracy to
traffic in counterfeit goods, in violation of 18 U.S.C. §
371, and multiple counts of trafficking in counterfeit goods,
in violation of 18 U.S.C. § 2320. He entered his plea,
pursuant to a written plea agreement, after seven days of
jury trial. Represented by new counsel, he filed his motion
to withdraw his guilty plea after the presentence report was
issued, but before sentencing. The district court held a
hearing and Hiltz submitted affidavits in support of the
motion. He did not request an evidentiary hearing and none
was held. The court considered the affidavits and rejected
Hiltz’ claims that he did not understand the charges against
him and that he had received ineffective assistance of
counsel which invalidated his plea.
On appeal, Hiltz argues that: 1) his plea violated
core concerns of Fed.R.Crim.P. 11 because Hiltz did not
understand the charges to which he was pleading guilty and
2) he received ineffective assistance of counsel because his
attorney misinformed him about the sentencing consequences
of his plea and pressured him to plead guilty.
II. Understanding of the Charges
In his brief on appeal, Hiltz makes only vague
references to his claim that he did not understand the
charges against him. He does not identify the specific
elements of the charges that he did not understand. Having
failed to make a developed argument on appeal, Hiltz has
waived this issue. See United States v. Zannino, 895 F.2d 1,
17 (1st Cir. 1990).
Even if he had not waived the argument, however, it
would not entitle him to relief. In his motion to withdraw
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his guilty plea, Hiltz argued that he pled guilty without an
understanding of the charges against him. In his affidavit
accompanying that motion, he stated that when he pled guilty
he was “confused, and did not have any understanding as to
what it was I was pleading guilty to.” More specifically,
he recounted that at the change-of-plea hearing he denied
that he had conspired with Mr. Leppo and that he had
“knowingly” trafficked in counterfeit goods. Hiltz stated
in his affidavit that he now understands that “the government
would be required to prove that at the time I took the
actions set forth in the indictment I knew and intended to
commit a crime. I had no such knowledge or intent.”
The district court, in its Memorandum and Order of
June 16, 2000, denying Hiltz’ motion to withdraw his plea,
found that “the plea colloquy met the requirements of Rule
11,” that the court had “addressed the three core concerns
underlying the rule” and that “Hiltz plainly, and on the
record, plead to the facts as outlined.” We agree. The
record, including the transcript of the change-of-plea
hearing, supports those conclusions. “[W]here the
prosecutor’s statement or the defendant’s description of the
facts sets forth all elements of the offense and the conduct
of the defendant that constitutes the offense, ‘the
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defendant’s admission that the allegations are true is
sufficient evidence that he understands the charge.’” United
States v. Cotal-Crespo, 47 F.3d 1, 6 (1st Cir. 1995). That
was the case here.
Although Hiltz initially denied that he conspired
with Andrew Leppo, he admitted that he obtained the
counterfeit packaging from Mr. Leppo and that he conferred
with Mr. Leppo about how the invoices should read and on
matters of “quality control.” Those admissions demonstrate
Hiltz’ understanding of the charges that he conspired with
Mr. Leppo. Hiltz admitted that he was guilty “at the
minimum” of “willful blindness.” That satisfies the
knowledge requirement under § 2320. See 130 Cong. Rec. 31,674
(1984) (Joint Statement on Trademark Counterfeiting
Legislation). Hiltz claims in his affidavit that he was
unaware of the requirement that the government prove that
Hiltz knew that his conduct was a crime. There is no such
requirement under § 2320, however. See United States v.
Baker, 807 F.2d 427, 428 (5th Cir. 1986).
III. Ineffective Assistance of Counsel
“[T]he two-part Strickland v. Washington test
applies to challenges to guilty pleas based on ineffective
assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58
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(1985). The first part of the test requires a showing that
“counsel’s representation fell below an objective standard
of reasonableness.” Strickland v. Washington, 466 U.S. 668,
687-88 (1984). The second part of the test, in the context
of guilty pleas, requires a defendant to show that “but for
counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill, 474 U.S. at 59.
“We do not normally consider ineffective-
assistance-of-counsel claims on direct appeal.” United States
v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991). However, this
case seems to fall within the following exception to that
rule: “where the critical facts are not genuinely in dispute
and the record is sufficiently developed to allow reasoned
consideration of an ineffective assistance claim, an
appellate court may dispense with the usual praxis and
determine the merits of such a contention on direct appeal.”
Id.
Hiltz’ primary claim of ineffective assistance is
that his attorney misrepresented that, although the plea
agreement precluded him from arguing for a downward departure
from the guideline imprisonment range, he could still argue
for a downward departure. Based upon its review of the
affidavits of Hiltz and his former counsel and its
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familiarity with the parties and the case, the district court
concluded that counsel’s statements regarding the effect of
the plea agreement on Hiltz’ ability to argue for a downward
departure did not constitute a misrepresentation on which
Hiltz relied in deciding to plead guilty. On this record,
there is no basis for concluding that that determination by
the district court was clearly erroneous or an abuse of
discretion.
Similarly, the record also provides no grounds for
overturning the district court’s rejection of Hiltz’ claim
that his attorney told him that he was not prepared to
continue with the case. The court was entitled to rely upon
its observation of Hiltz’ performance during the trial and
at the change of plea hearing and on Hiltz’ statements at the
change of plea hearing that he was satisfied with his
attorney’s representation and that no one had pressured him
“in any way” to plead guilty. See Marrero-Rivera, 124 F.3d
at 349. Nor did the district court err in rejecting Hiltz’
argument that his attorney’s allegedly inaccurate description
of the leniency he would receive at sentencing if he pled
guilty invalidated the plea. See id. Finally, counsel’s
alleged attempt to persuade Hiltz to plead guilty did not
rise to the level of coercion. An attorney’s mere attempt
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to persuade his client that a guilty plea is in his best
interest does not invalidate the plea. See, e.g., Miles v.
Dorsey, 61 F.3d 1459, 1470 (10th Cir. 1995); Williams v.
Chrans, 945 F.2d 926, 933 (7th Cir. 1991); Lunz v. Henderson,
533 F.2d 1322, 1377 (2d Cir. 1976).
The judgment of the district court is affirmed.
See Loc. R. 27(c). The motion for release pending appeal is
denied as moot.
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