United States Court of Appeals
Fifth Circuit
F I L E D
In the November 1, 2006
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 06-10067
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES LEE MCELHANEY
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:03-CR-370-ALL
______________________________
Before SMITH, WIENER, and OWEN, legal money transactions. He appeals the
Circuit Judges. judgment of conviction on the ground that the
district court should have granted his motion
JERRY E. SMITH, Circuit Judge: to withdraw his plea of guilty because it was
entered involuntarily and because the indict-
James McElhaney pleaded guilty to one ment should have been dismissed under the
count of a fifteen-count indictment for mail Speedy Trial Act. Because the district court
fraud, wire fraud, money laundering, and il- did not abuse its discretion in denying the mo-
tion to withdraw, and because McElhaney, by Triad’s accounts.
pleading guilty, waived any right to dismissal
under the Speedy Trial Act, we affirm.1 A fifteen-count superseding indictment was
returned in January 2004. After Whisenant
I. pleaded guilty in exchange for testifying
In October 2003 McElhaney was indicted against McElhaney, McElhaney entered into a
with his co-defendant, William Whisenant, on plea agreement and, in September 2004, plead-
fifteen counts of fraudulent activities stemming ed guilty to one count of the superseding in-
from land transactions entered into by Triad dictment. The plea agreement contained a
Hospital while McElhaney was its vice- provision that immunized him and his family
president. In support of his plea agreement, from tax-related prosecution.
McElhaney stipulated through factual resume
that he had “engaged in a scheme to defraud At the rearraignment, McElhaney testified
Triad by inserting fictitious fees and costs in that he had read and signed the plea agreement
[a] real estate transaction which benefitted him and entered into it voluntarily and of his free
personally.” will. He also said his guilty plea was not the
product of force or threats. The magistrate
As elaborated in the resume, the fraud was judge recommended that the court accept the
accomplished by a “straw man” real estate guilty plea, and the district court did so.
transaction structure whereby Triad would pay
an intermediary who would add approximately Nearly a year later, in August 2005, less
$750,000 to the purchase price of the land. Of than two weeks after learning that Whisenant
this money, $50,000 was to be paid to the in- had slipped into an irreversible coma, McEl-
termediary, the remainder to be split between haney filed a notice of intention to withdraw
McElhaney and Whisenant. McElhaney effect- his plea. He asserted that he was innocent of
ed the transaction through wire transfer from the charge in count 5 for the reason that his
conduct was authorized under Texas law as a
“referral fee paid by one licensed broker to
1
McElhaney also contends that his plea should another licensed broker.” See 22 TEX. ADMIN
be withdrawn because he received ineffective as- CODE § 535.148. He also contended that he
sistance of counsel. Because this claim was not had pleaded under duress, because the govern-
raised in the district court, it is not ripe for review. ment had threatened his wife with prosecution
See United States v. Bounds, 943 F.2d 541, 544 for unrelated tax issues if he did not plead
(5th Cir. 1991) (“The general rule is that a claim of guilty.
ineffective assistance of counsel cannot be resolved
on direct appeal unless it has been first raised The district court held a hearing at which
before the district court . . . . Unless the district
McElhaney and his lawyer testified. After
court has developed a record on the defendant’s
allegations, we cannot fairly evaluate the merits of
considering the factors laid out in United
the claim.”). See also United States v. Higdon, States v. Carr, 740 F.2d 339, 344 (5th Cir.
832 F.2d 312, 314 (5th Cir. 1987) (“We have 1984), the court concluded that “McElhaney
undertaken to resolve claims of inadequate [failed] to show a fair and just reason why his
representation on direct appeal only in rare cases guilty plea should be withdrawn.” United
where the record allowed us to evaluate fairly the States v. McElhaney, 2005 WL 3148234, at
merits of the claim.”).
2
*3 (N.D. Tex. 2005). withdraw his plea, McElhaney relies principally
on two of the Carr factors: the voluntariness
II. of the original plea and his assertions of
There is no absolute right to withdraw a innocence. He claims that his plea was not
guilty plea before sentencing, although a dis- voluntary because he was coerced by the
trict court may allow it if the defendant can threatened tax charges against his wife. He
show “a fair and just reason for requesting the also argues that he has asserted his innocence
withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). throughout these proceedings and that he ad-
The burden “rests with the defendant.” United mitted to the factual resume underlying the
States v. Brewster, 137 F.3d 853, 857-58 (5th original plea only because of coercion stem-
Cir. 1998). We will reverse the denial of a ming from the government’s threats.
motion to withdraw only if the court abuses its
“broad discretion.” Carr, 740 F.2d at 344. “[G]uilty pleas made in consideration of
lenient treatment as against third parties pose
In Carr, id. at 343-44, we laid out an illus- a greater danger of coercion than purely bilat-
trative list of factors for deciding whether a eral plea bargaining.” United States v. Nuck-
fair and just reason exists for withdrawal: ols, 606 F.2d 566, 569 (5th Cir. 1979). Even
so, there is no “intrinsic constitutional infir-
(1) whether or not the defendant has as- mity” in promising leniency to a third party in
serted his innocence; (2) whether or not the exchange for a guilty plea. Id. A prosecutor
government would suffer prejudice if the has discretion to “inform an accused that an
withdrawal motion were granted; implicated third person will be brought to
(3) whether or not the defendant has de- book if he does not plead guilty.” Id. The
layed in filing his withdrawal motion; prosecutor has a duty of good faith in making
(4) whether or not the withdrawal would such a representation, which duty is satisfied
substantially inconvenience the court; where he has probable cause to believe the
(5) whether or not close assistance of coun- third person has committed a crime. Id.; Unit-
sel was available; (6) whether or not the ed States v Diaz, 733 F.2d 371, 375 (5th Cir.
original plea was knowing and voluntary; 1984).
and (7) whether or not the withdrawal
would waste judicial resources; and, as ap- Diaz illustrates these principles. There, the
plicable, the reason why defenses advanced defendant challenged the voluntariness of his
later were not proffered at the time of the plea in a habeas corpus petition, claiming that
original pleading, or the reasons why a de- the government had threatened to prosecute
fendant delayed in making his withdrawal his siblings if he did not plead guilty. The
motion. court first noted that there is a “heavy burden”
on a defendant who seeks to overcome an at-
Although this illustrative list should be con- testation of voluntariness in open court at a
sidered, the ultimate decision should be based Federal Rule of Criminal Procedure 11 hear-
on the “totality of the circumstances.” Id. at ing. Id. at 374. The court concluded that
344. even if such threats had occurred, the
prosecutor had probable cause to bring charg-
In arguing that he should be allowed to es against the defendant’s siblings. The
3
defendant’s plea “would not be involuntary by withdraw his guilty plea.
reason of a desire to extricate his relatives
from such a possible good faith prosecution.” III.
Id. at 375. McElhaney contends that his plea should be
withdrawn and the indictment dismissed for
Similarly, McElhaney attested to the volun- violations of the Speedy Trial Act.2 Title 18
tariness of his plea at his rearraignment and U.S.C. § 1362(a)(2) provides that “[f]ailure of
now claims only that his plea was influenced the defendant to move for dismissal prior to
by a desire to extricate his wife from possible trial or entry of a plea of guilty or nolo conten-
criminal charges. As the district court noted, dere shall constitute a waiver of the right to
however, “the record is devoid of evidence dismissal under [the Speedy Trial Act].” This
demonstrating that the Government had a bad language “manifestly provides” that the right
faith basis for making such threat.” McElhan- to a speedy trial can be waived. United States
ey, 2005 WL 3148234, at *4. Where the pro- v. Hernandez, 457 F.3d 416 (5th Cir. 2006).
secution has a good-faith basis to threaten McElhaney failed to move for dismissal under
charges against a third-party, a defendant’s the Speedy Trial Act before pleading guilty
election to “sacrifice himself for such motives” and has raised this claim for the first time on
is not a basis to challenge the voluntariness of appeal. His right to dismissal is therefore
the plea. Nuckols, 606 F.2d at 569. waived.
Examining the remainder of the district AFFIRMED.3
court’s analysis, we cannot say that the court
abused its broad discretion to deny McElhan-
ey’s withdrawal motion. We need not parse
each Carr factor but instead can look to the
totality of the circumstances.
The court noted that McElhaney did not
assert his innocence until nearly nine months
after his guilty plea, and he delayed six weeks
more before attempting to withdraw his plea.
See Carr, 740 F.2d 339 (describing as “not
promptly filed” a motion to withdraw filed
twenty-two days after plea). The court also
2
properly concluded that the likelihood of pre- The Speedy Trial Act requires all trials in
judice to the government is considerable where cases where a defendant does not plead guilty to
the withdrawal occurs after a key witness has “commence within seventy days from the filing
date (and making public) of the information or in-
become unavailable for trial. The court found
dictment, or from the date the defendant has ap-
that none of the other Carr factors cuts in Mc- peared before a judicial officer of the court in
Elhaney’s favor. Given such a long delay, the which such charge is pending, whichever date last
possible prejudice to the government, and a occurs.” 18 U.S.C. § 3161(c)(1).
lack of any considerations in McElhaney’s fa-
vor, the court properly denied the motion to 3
The motion to expedite appeal is DENIED as
moot.
4