USCA1 Opinion
December 16, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1475
UNITED STATES OF AMERICA,
Appellee,
v.
CLIFFORD A. DOYLE,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Bownes, Senior Circuit Judge,
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and Selya, Circuit Judge.
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Kent I. Patashnick, with whom Patashnick Law Offices was on
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brief, for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
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Richard S. Cohen, United States Attorney, was on brief, for the
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United States.
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SELYA, Circuit Judge. This appeal requires that we
SELYA, Circuit Judge.
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ponder the denial of appellant's motion to withdraw his guilty
plea to certain federal drug and tax offenses. Because a
weighing of the relevant factors virtually compels the result
reached below, we affirm.
I. BACKGROUND
I. BACKGROUND
On July 12, 1991, defendant-appellant Clifford A. Doyle
agreed to plead guilty to certain narcotics and income tax
offenses. See 21 U.S.C. 841(a)(1), 841(b)(1)(B) (1988); 26
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U.S.C. 7201, 7206(1) (1988). In the written plea agreement,
appellant promised to cooperate with the government in exchange
for the assurance that the prosecutor would herald appellant's
assistance. According to its terms the bargain contained "no
further or other agreements, either express or implied."
On September 9, 1991, the district judge conducted a
hearing under the aegis of Fed. R. Crim. P. 11, ascertained a
fac-tual basis for the plea, and elicited Doyle's understanding
of the charges against him, the maximum sentence he faced, the
rights he relinquished, and like matters.1 Upon determining
Doyle's tender to be knowing and voluntary, the court accepted
the guilty plea.
At the hearing's end, the government filed a motion to
seal all records in the case. No objection appearing, the motion
was granted. But, as Homer had prophesied many centuries before,
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1During the Rule 11 colloquy, appellant again assured the
court that no promises apart from those specified in the written
agreement had influenced his change of plea.
2
there was room for a slip 'twixt the cup and the lip. The clerk
of court neglected properly to record and implement the sealing
order. Two days later, the press learned of Doyle's plea and a
spate of publicity ensued.
Sentencing proved an unusually protracted affair. The
initial sentencing hearing began on February 7, 1992. It ended
when the district judge granted appellant time to respond to
evidence of attempted flight. At adjournment, the prosecutor
called the judge's attention to the clerk's bevue, reporting that
only the plea agreement itself had been impounded and that, as a
result, publicity about the case's status had jeopardized the
identity of a confidential informant. Although the toothpaste
was out of the tube, the prosecution nevertheless renewed the
motion to seal. The court again granted the motion. Appellant
stood mute.
The proceedings resumed nearly two months later (April
2, 1992). The judge apprised Doyle's counsel of his inclination
to mete out consecutive prison sentences totalling fourteen years
and one month. Eventually, however, the judge recessed the
hearing without actually imposing sentence so that a question
concerning the possibility of parole could be clarified.
The third sentencing hearing took place on April 6.
The judge settled the parole issue at a chambers conference,
informing the lawyers that "any sentence I hand down will be with
the contemplation that [Doyle] may end up having to serve that
entire [sentence]." Appellant's counsel inquired whether the
3
judge's thinking anent length of sentence had modulated, but the
judge declined comment.
When the proceedings shifted into open court, appellant
moved to withdraw his guilty plea. He argued that the media
attention surrounding the case had endangered his life and
stymied complete cooperation, thereby depriving him of the full
benefit of the bargain commemorated in his plea agreement.2 The
district court determined, in substance, that the request to
retract derived from appellant's displeasure with the forecasted
sentence rather than from any legally cognizable reason and,
therefore, denied the motion. Following imposition of sentence,
Doyle appealed.
II. ANALYSIS
II. ANALYSIS
We start with an overview of the legal landscape and
then proceed to survey the precise terrain on which this appeal
is constructed.
A
A
A defendant may withdraw a guilty plea prior to
sentencing only upon showing a fair and just reason for the
request. See United States v. Pellerito, 878 F.2d 1535, 1537
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(1st Cir. 1989); see also Fed. R. Crim. P. 32(d). Several
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factors enter the trial court's decisional calculus. They
include the force of defendant's proffered reason; the timing of
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2While appellant's motion offered other reasons for
withdrawing his plea, he argues none of them on appeal. We deem
those arguments waived. See United States v. Dietz, 950 F.2d 50,
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55 (1st Cir. 1991); United States v. Rivera-Martinez, 931 F.2d
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148, 150 n.3 (1st Cir.), cert. denied, 112 S. Ct. 184 (1991).
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4
the request; the defendant's assertion of legal innocence (or the
lack of such an assertion); and the likely voluntariness of the
plea, given the newly emergent circumstances. See Pellerito, 878
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F.2d at 1537; United States v. Kobrosky, 711 F.2d 449, 455 (1st
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Cir. 1983). If 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. See
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Pellerito, 878 at 1537. The nisi prius court has a special
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vantage point from which it may evaluate these factors. Hence,
its decision about whether it is fair and just to extricate a
particular defendant from his plea will be overruled only for
abuse of discretion. See id. at 1538; Kobrosky, 711 F.2d at 454.
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B
B
Having limned the salient factors in the decisional
calculus, we examine the lower court's findings on each.
1. The Proffered Reason. A defendant may not renounce
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his guilty plea without advancing a plausible reason for so
doing. See United States v. Tilley, 964 F.2d 66, 72-73 (1st Cir.
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1992); Pellerito, 878 F.2d at 1538. Appellant claims that his
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plea rested on the mistaken understanding that all possible
fruits deriving from full cooperation would be his. Because
media intensity dictated the tone of his cooperation, he
maintains that the government breached an implicit promise to
safeguard his opportunity to cooperate fully and, thus, precluded
him from reaping the perceived benefits of his bargain. The
argument rings hollow.
5
For one thing, Dolye's professed expectations were
unwarranted. The plea agreement contained no promise on the
government's part either to seal the proceedings or to take any
other steps to facilitate the defendant's cooperation. We have
repeatedly refused to infer the existence of promises not
expressly articulated in, or necessarily implied by, plea
agreements,3 see, e.g., United States v. Atwood, 963 F.2d 476,
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479 (1st Cir. 1992); United States v. Garcia, 954 F.2d 12, 17
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(1st Cir. 1992); United States v. Hogan, 862 F.2d 386, 388 (1st
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Cir. 1988), and we discern no basis for retreating today from
that salutary proposition. Indeed, speculation about such a
promise would be especially inconcinnous in this instance
because, during the Rule 11 proceeding, appellant assured the
district court that no one "made a promise to [him] in an effort
to induce [him] to plead guilty aside from [those promises
contained in] the plea agreement."
For another thing, the circumstances of the secrecy
order render appellant's professed reliance on it wholly
gratuitous. The government moved to seal after the district
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court accepted the guilty plea, stating in its written motion
that it wanted to "protect the integrity of ongoing criminal
investigations." We simply do not see how imperfect compliance
with an order mentioned for the first time after appellant's plea
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3This familiar precept has particular applicability when, as
in this case, the plea agreement itself specifically states that
"there are no further or other agreements, either express or
implied," other than those explicitly set forth in the document.
6
had been accepted, and represented to the court chiefly as a
vehicle to serve the government's (not the defendant's)
interests, could conceivably constitute a "fair and just" reason
for retraction. This is especially so, we suggest, in view of
appellant's grudging admission that any prosecutorial assurances
about keeping his case under wraps came only after the court
allowed his change of plea.
Thirdly, appellant's argument depends on a profoundly
flawed premise. He says his ability to cooperate was hampered by
unforeseen events, specifically, the clerk's blunder. Yet, in
any given case a host of external conditions may impede an
accused's cooperation. In the last analysis, criminal defendants
occupy no special refuge from the vagaries of an uncertain world.
Cf. Tilley, 964 F.2d at 72-73 (denying a plea withdrawal where
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defendant asserted a breakdown in cooperation). A defendant's
inability fully to perform his own undertakings, if attributable
to a circumstance beyond the prosecution's control, does not
constitute a cogent reason for allowing him to withdraw a guilty
plea (unless, of course, the plea was expressly conditioned upon
nonoccurrence of the event).4
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4Appellant argues that his situation is exceptional inasmuch
as the court's own mistake frustrated specific performance. This
asseveration might have some force if the plea agreement
contained a promise to impound records and the clerk's miscue
effectively deprived appellant of the benefit of the promise.
Here, however, for sentencing purposes, the court, by its own
appraisal, took into account "the fact that [Doyle] did intend to
and wanted to cooperate even though he was frustrated in doing
so." Where no apparent loss of benefit exists there is simply no
warrant for judicially rewriting plea agreements in an effort to
ward off all contingencies harmful to one side.
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2. Timing. Because the timing of a defendant's
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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. See United States v. Daniels, 821 F.2d 76, 79 (1st
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Cir. 1987); United States v. Ramos, 810 F.2d 308, 313 (1st Cir.
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1987); United States v. Barker, 514 F.2d 208, 222 (D.C. Cir.),
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cert. denied, 421 U.S. 1013 (1975). Put another way, excessive
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delay saps strength from any proffered reason for withdrawal.
See Barker, 514 F.2d at 222 (observing that, "if the defendant
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has long delayed his withdrawal motion, . . . the reasons given
to support withdrawal must have considerably more force"). Here,
appellant's timing belies his rationale.
As we have said, appellant's proffered reason for
seeking to withdraw his plea is that the plea agreement was
founded on the mistaken assumption that his opportunity to
cooperate would be protected. The chronology of events
inexorably implies that this "reason" was no more than a
contrived excuse to escape the district court's forecasted
sentence. Appellant learned of the leak two days after the Rule
11 hearing. He testified that "every newspaper, radio station,
and TV station within 50 miles" promptly appeared on his
doorstep, making "cooperation more than a little difficult."
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Nonetheless, he did not seek to withdraw his plea for nearly
seven months. That date, April 6, 1992, was (a) a mere four days
after appellant discovered that the court was contemplating the
imposition of a lengthy incarcerative sentence, and (b) a matter
of minutes after defense counsel's failed attempt to elicit a new
sentencing prognosis from the judge.
On this record, appellant's professed reason for moving
to withdraw his plea smacks of post-hoc rationalization. One
would have to believe in the Tooth Fairy to think it merely
coincidental that, on the heels of the court's divulgement of the
likely sentence, the defendant suddenly realized that a seven-
month-old error had destroyed the basis on which his plea
agreement rested. We agree with the court below that appellant's
newfound desire to hazard a trial can only be attributed to a
dawning awareness "of what the likely sentence would be."
3. Legal Innocence. Courts look more hospitably on a
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motion to withdraw a guilty plea when the motion is coupled with
an assertion of innocence. See Tilley, 964 F.2d at 73; Kobrosky,
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711 F.2d at 455. The reverse is also true: the absence of a
claim of innocence weighs in favor of allowing a guilty plea to
stand. Here, appellant unconditionally admitted his guilt at
the Rule 11 proceeding and neither his subsequent motion to
withdraw his plea nor, indeed, his appellate brief, contains an
assertion of innocence.
4. Voluntariness. In assaying the merits of a motion
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to withdraw, an inquiring court must determine whether, in light
9
of the defendant's proffered reason and any newly disclosed
facts, the plea may still be deemed voluntary and intelligent.
See United States v. Austin, 948 F.2d 783, 786-87 (1st Cir.
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1991); United States v. Allard, 926 F.2d 1237, 1245-47 (1st Cir.
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1991). In this case, the district court conducted the plea
proceedings in strict conformity with Rule 11's requirements and
succedent events cast no doubt on the court's contemporaneous
conclusion that the plea was both voluntary and intelligent.5
In and of itself, the seven-month period preceding the motion to
withdraw an interval wholly unexplained by plausible inferences
consistent with appellant's proffered reason for wanting to scrap
his plea serves to cripple any notion that the plea was
coerced. See Pellerito, 878 F.2d at 1541-42. Moreover, the lack
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of any evidence that sealing the proceedings was part of the plea
bargain militates strongly against appellant's argument that the
plea was unintelligent due to a mistaken belief that the
government would safeguard his opportunity to cooperate. After
all, to invalidate a guilty plea, a defendant's misimpression
must, at the very least, be both objectively reasonable and
related to a material matter. See id. at 1538. Doyle's
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"mistake" does not qualify on either score.
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5We need not linger over appellant's claim that, as early as
February 7, 1992, the court should have probed anew the
voluntariness and intelligence of his plea. To be sure, courts
will sometimes inquire sua sponte into alleged Rule 11
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violations. See, e.g., Daniels, 821 F.2d at 81. Yet here, as we
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have pointed out, the absence of a stated term in the plea
agreement left the court without any practical way of tying the
thwarted impoundment order to the plea. Thus, the district court
did not err by failing to undertake a further inquiry sua sponte.
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10
C
C
We need go no further.6 As the motion to seal formed
no part of the plea agreement, there was never any breach.
Furthermore, by communicating the extent of Doyle's cooperation
and his good intention to do even more, the government lived up
to its end of the bargain. It had promised no more and no more
was exigible. See Atwood, 963 F.2d at 479 ("When . . . the
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prosecutor did exactly what the government promised to do, a
claim that the plea agreement was breached will not lie.").
Hence, the district court did not err in determining that
appellant advanced no fair and just reason for retreating from
his guilty plea.
Affirmed.
Affirmed.
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6Since all the critical integers in the decisional calculus
counsel affirmance, we need not embark upon an analysis of
possible prejudice to the government. See Ramos, 810 F.2d at
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315.
11