dissenting.
The majority concedes the well-settled proposition that a criminal defendant does not have an absolute constitutional right to have his guilty plea accepted by a court. North Carolina v. Alford, 400 U.S. 25, 38 n.11, 91 S.Ct. 160, 168 n.11, 27 L.Ed.2d 162 (1970). This holding was repeated in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), where the Chief Justice wrote, “A court may reject a plea in the exercise of sound judicial discretion.” Id. at 262, 92 S.Ct. at 498.
The limits of this discretion have not been delineated in the case law to any great extent. In attempting to do so, appellate courts must acknowledge the awesome power of sentencing entrusted to district judges and the tremendous responsibility placed on them to prevent manipulation of the court’s process. Imposing punishment is agonizing enough when evidence of guilt is clear. But when a district judge has doubts about a defendant’s culpability, an appellate tribunal’s directive that sentence must be imposed is particularly troublesome. As the Court of Appeals for the Eighth Circuit remarked in United States v. Bettelyoun, 503 F.2d 1333 (8th Cir. 1974), “we are in an area where the district court necessarily possesses the greatest discretion because of the need for assurance that a guilty plea proceeding be completely safeguarded to protect the unknowing defendant.” Id. at 1336-37.
The majority holds that the defendant’s plea should not have been vacated because it is “satisfied that a sufficient factual basis for the guilty plea was established,” Majority Opinion at 654, and the district court erred in construing it to be an Alford plea, id. at 656-657. Moreover, the majority finds an abuse of discretion in rejecting an Alford plea.
A review of the record convinces me the district judge rejected this plea because he was not satisfied it had a basis in fact. *659There was no misconception; he understood he could accept a guilty plea coupled with a protestation of innocence. As with any other guilty plea, however, the district judge was bound by the factual basis requirement of Fed.R.Crim.P. 11(f).
After studying the testimony, I conclude that the district judge did not err in finding the factual basis was insufficient. For this reason, we should not reach the question of when an Alford plea must be accepted, although I state my views because the majority has addressed it. In my judgment, the district judge did not err in construing this to be an Alford plea and did not abuse his discretion in rejecting it.1
Although the trial court has discretion to accept or reject a plea, the sentencing judge “should not enter judgment upon [a guilty plea] without making such inquiry as shall satisfy [him] that there is a factual basis for the plea.” Fed.R.Crim.P. 11(f). Thus, rejection of a guilty plea on this ground is proper. As the majority notes, we have held that even in the absence of a defendant’s consent, a guilty plea may be set aside when doubts as to its validity trouble the sentencing court. United States ex rel. Metz v. Maroney, 404 F.2d 233 (3d Cir. 1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969). See also Willett v. Georgia, 608 F.2d 538 (5th Cir. 1979).
On this record, I find no abuse of the broad discretion entrusted to the sentencing judge nor any reason to differ with his statement:
“I just can’t possibly accept the plea of guilty merely on this kind of a basis, when I am also presented with all the evidence I have heard here this morning. I just feel we had better make sure this man is guilty of something before we impose a criminal sentence.... If he didn’t violate the law, I could not in good conscience impose a criminal sentence.”
App. at 53-55.
Hecht has been indicted for willfully attempting to evade federal income taxes in violation of 26 U.S.C. § 7201 (1976), the same offense charged in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). There, in reviewing Rule ll’s requirements, the Supreme Court said, “The judge must determine ‘that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty.’ ” Id. at 467, 89 S.Ct. at 1171, quoting Advisory Committee Notes. Here, too, the district judge was required to determine whether the conduct Hecht admitted violated § 7201. See 8 Moore’s Federal Practice ¶ 11.03[3], at 11-72 (1980).
The elements of a § 7201 offense are (1) willfulness, (2) the existence of a tax deficiency, and (3) an affirmative act constituting an evasion or attempted evasion of the tax. Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 1010, 13 L.Ed.2d 882 (1965). The second element — the existence of a tax deficiency — depends upon whether Hecht may lawfully be charged with a taxable gain on the basis of the cash loans to Jinks Corporation. It is true that “embezzled funds are to be included in the ‘gross income’ of the embezzler in the year in which the funds are misappropriated under ... § 61(a) of the Internal Revenue Code of 1954.” James v. United States, 366 U.S. 213, 213-14, 81 S.Ct. 1052, 1052, 6 L.Ed.2d 246 (1961). The real issue, however, is not whether Hecht embezzled the funds, but whether he “ha[d] such control over [them] that, as a practical matter, he derive[d] readily realizable economic value .... ” Id. at 219, 81 S.Ct. at 1055, quoting Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 431, 75 S.Ct. 473, 476, 99 L.Ed. 483 (1955).
The district judge had two colloquies with the defendant, one at the time he changed his plea, and another at the time of sentencing. At the former, the judge and defendant were talking at cross purposes. The critical issue was whether the defendant misappropriated the money and invested it *660for his own gain, or whether he had taken the money, albeit without authority, and loaned it to another corporation on behalf of his employer. Although the latter course of action might have exposed the defendant to a claim for restitution by his employer, culpability for tax evasion would be doubtful. See Sansone v. United States, supra; James v. United States, supra.
At the sentencing hearing, the defendant testified that none of the money had been for his personal use and that he had delivered his employer’s money to keep the Jinks business going. He was permitted to lend money to customers, and in this instance, “I was chasing a bad debt.” App. at 45. The Internal Revenue agent who testified did not produce any evidence that the defendant had used the money for himself.
At the conclusion of the testimony, the trial judge asked defense counsel whether he was satisfied that the defendant had committed an offense. Counsel replied, “In total honesty; no I am not.” App. at 50. Counsel added that although he did not agree with defendant’s decision to plead guilty, he was willing to live with it, and argued that an admission of guilt “is not one of the criteria for a guilty plea.” Id. at 50.
In retrospect, it is apparent that at the first hearing, the defendant’s statements were inconsistent. At one point he said that the investments were on his own account. At other times he stated the money was used for his employer’s benefit. Nevertheless, the district judge understood the defendant to have acted on his own behalf. At the sentencing hearing, however, it became clear that the defendant’s position was that he did not use the money for his own benefit. It was at that juncture that the district judge vacated the plea. Given these circumstances, I concur with his determination that the plea was not adequately supported on the record.
Even if the factual basis for this plea were adequate, I would not join in the judgment. I cannot accept the majority’s conclusion that the district court’s interpretation of the defendant’s statements as a protestation of innocence was error. At both the change of plea and sentencing hearings, see Majority Opinion at 654-656, the defendant equivocated about whether he had invested the money on his own account or on behalf of his employer, and he repeatedly denied that he derived any personal benefit from the “embezzled” funds. In the context of tax fraud, the district court’s construction of these statements was not erroneous.
A party contending that a trial judge abused his discretion in refusing to accept a guilty plea bears a heavy burden. That burden is not met simply by showing that a valid Alford plea was offered. The majority of circuits that have addressed the question hold that while a district court may accept such a plea, it is not an abuse of discretion for it to refuse to do so. In United States v. Bednarski, 445 F.2d 364 (1st Cir. 1971), also an income tax case, the court rejected an attempt to force a district judge to accept a guilty plea. The court noted the need to insure public confidence in the judicial process and said that “a judge may properly not wish to put the court in the position of being an apparent partner to a circumstantial web woven by the Internal Revenue Service to fine and jail a person who has not been tried and protests his innocence.” Id. at 366.
In United States v. O’Brien, 601 F.2d 1067 (9th Cir. 1979), the court declined to find an abuse of discretion when a plea was rejected because a defendant refused to admit guilt. United States v. Navedo, 516 F.2d 293 (2d Cir. 1975), upheld a refusal to accept a guilty plea where gaps in a showing of defendant’s participation in a conspiracy were sufficient to justify the trial judge’s “good faith belief” that a sufficient factual basis had not been developed. Other cases finding no abuse of discretion include United States v. Biscoe, 518 F.2d 95 (1st Cir. 1975); United States v. Bettelyoun, supra; United States v. Melendrez-Salas, 466 F.2d 861 (9th Cir. 1972); and United States v. Ray, 431 F.2d 1177 (9th Cir. 1970).
In McCoy v. United States, 363 F.2d 306 (D.C.Cir.1966), the court stated that a guilty plea should not be refused without “good *661reason,” but held that the lower court had good reason to reject a plea in view of the defendant’s claim of innocence. Cf. Griffin v. United States, 405 F.2d 1378 (D.C.Cir. 1968); United States v. Davis, 516 F.2d 574 (7th Cir. 1975). But see United States v. Gaskins, 485 F.2d 1046 (D.C.Cir.1973). These courts, therefore, would support the district judge in his exercise of discretion in this case.
In addition to the concern that an innocent person not be sentenced, courts must recognize the need for finality of guilty pleas. If the factual basis for a plea has not been satisfactorily demonstrated on the record, a defendant having second thoughts about his decision, or dissatisfied with his sentence, will attempt to have the judgment set aside. United States v. Bednarski, supra. In United States v. Carter, 619 F.2d 293 (3d Cir. 1980), we called to the district courts’ attention the necessity for compliance with Rule 11 to assure finality. I fear that the majority opinion here does not further the aims we expressed there.
In summary, I believe that the district judge did not abuse his discretion in declining the plea, and I agree with his view that a proper factual basis was not presented. Accordingly, I would affirm the order of the district court.
. I find no substantial difference between the standard applied when the guilty plea is entered and that governing “vacation” before sentencing. The plea is not final until judgment of sentence is imposed. See Fed.R.Crim.P. 11(f).