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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2004 Decided November 12, 2004
No. 03-3048
UNITED STATES OF AMERICA,
APPELLEE
v.
TYRONE J. WEAKS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(01cr00425–01)
James E. McCollum, Jr., appointed by the court, argued
the cause and filed the brief for appellant.
Patricia A. Heffernan, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Kenneth L.
Wainstein, U.S. Attorney, and John R. Fisher, Assistant U.S.
Attorney.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON, RANDOLPH, and GARLAND, Circuit
Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: A three-count indictment
charged Tyrone J. Weaks with possessing with intent to
distribute five or more grams of cocaine base (count 1) and
with using, carrying and possessing a firearm in relation to
that drug offense (count 2). Count 3 charged Weaks’ girl-
friend, Stephanie D. Conyers, with possessing cocaine base
with intent to distribute it. Weaks lost his pretrial motion to
suppress evidence found in his apartment and then entered a
conditional plea of guilty to counts 1 and 2 pursuant to
Federal Rule of Criminal Procedure 11(a)(2). In this appeal
he argues that the district court erred in denying his suppres-
sion motion and in refusing to let him withdraw his plea
before sentencing.
Weaks’ objection to the search is on two grounds. The
first is that a detective amended the search warrant after a
judge of the Superior Court issued it. The typewritten body
of the warrant does contain handwritten alterations. In a
statement describing the entrance to the apartment building,
a number is blacked out and replaced with ‘‘1649.’’ It is most
likely that the change corrected a typographical error. On
the line above, the address is identified as ‘‘1649 W Street,
Apartment #202,’’ which is where Weaks resided; on the line
below, ‘‘Apartment #202’’ is listed again. This, coupled with
evidence at the suppression hearing that the handwriting was
already on the warrant when the judge signed it, dooms any
claim of irregularity.
Weaks’ second point is that the agents did not leave a copy
of the warrant at his residence, as Rule 41(f)(3)(B) of the
Federal Rules of Criminal Procedure requires if a copy is not
given to the person whose premises were searched. This
claim fails for three reasons. One, the only evidence on
point — the return on the warrant — stated that the officers
left a copy of the warrant at the apartment. Two, Weaks did
not properly raise a Rule 41 argument in this court: his brief
contains only one sentence mentioning the subject; the sen-
3
tence is only in the summary of his argument; and it is not
supported by any legal analysis, despite the undecided ques-
tion whether a violation of Rule 41(f)(3) could justify a
suppression order. See FED. R. APP. P. 28(a)(9). And three,
Weaks waived the objection by failing to argue in the district
court that a violation of Rule 41(f)(3) would support suppres-
sion of the evidence. See FED. R. CRIM. P. 12(e).
As to the argument that the district court should have
permitted Weaks to withdraw his plea, the facts are these.
Weaks and Conyers waived their right to a jury trial. A
bench trial was set for April 11, 2002. One day earlier, the
district court denied Weaks’ motion to suppress and received
assurances from both sides that they were ready for trial.
On the morning of trial, Weaks entered his guilty plea. In
the plea agreement, the government promised not to oppose
Weaks’ request for a two-level decrease in his base offense
level for acceptance of responsibility, and ‘‘to dismiss Count
Three of the indictment in this case at the time of defendant’s
sentencing’’ — that is, to dismiss the charge against Weaks’
girlfriend, Stephanie Conyers, when the court sentenced
Weaks. Conyers’ attorney told the court that he had ‘‘a
problem with that’’ part of the plea agreement, apparently
because he did not want the charge against his client to
linger. He added that he was ready to go to trial that
morning. (The day before the court had expressed skepti-
cism about the case against Conyers.) After the prosecutor
said that waiting until sentencing to dismiss the charge
against Conyers made sense because defendants sometimes
withdraw their pleas, the court asked if the government was
ready for trial. The prosecutor said that her position of the
day before remained unchanged, to which the court replied:
‘‘All right. We’ll go to trial. Call your first witness.’’ The
bench trial, which lasted an hour, resulted in Conyers’ acquit-
tal.
Four months later, before he was sentenced, Weaks moved
to withdraw his guilty plea. His argument before the district
court was the same as his argument before us — that he was
entitled to this relief under the Federal Rules of Criminal
Procedure and Santobello v. New York, 404 U.S. 257 (1971),
because the government breached the plea agreement by
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presenting its case against Conyers. The district court re-
jected the motion, stating that the ‘‘government was frustrat-
ed by the court, who forced them to go to trial,’’ that ‘‘the
court short-circuited any prosecution of ’’ Conyers and that
she ‘‘was acquitted of all charges before [Weaks] got out of
the courthouse.’’
When Weaks filed his withdrawal motion, Federal Rule of
Criminal Procedure 32(e) governed. The rule then provided
that ‘‘If a motion to withdraw a plea of guilty or nolo
contendere is made before sentence is imposed, the court may
permit the plea to be withdrawn if the defendant shows any
fair and just reason.’’ The hearing on Weaks’ motion oc-
curred in 2003. By then, the old Rule 32(e) had been
eliminated, effective December 1, 2002, and replaced by Rule
11(d)(2)(B), which contains slightly different wording. It
states: ‘‘A defendant may withdraw a plea of guilty or nolo
contendere [before sentencing] if TTT the defendant can show
a fair and just reason for requesting the withdrawal.’’ Our
decisions under former Rule 32(e) reviewed ‘‘a district court’s
refusal to permit the withdrawal of a plea before a sentence
has been imposed only for an abuse of discretion.’’ United
States v. Hanson, 339 F.3d 983, 988 (D.C. Cir. 2003) (citing
United States v. Cray, 47 F.3d 1203, 1206 (D.C. Cir. 1995)).
Although the new Rule 11(d) no longer contains the phrase
‘‘the court may permit the plea to be withdrawn,’’ and al-
though we emphasized the ‘‘may’’ in Hanson, the drafters of
the new rule did not intend a change in meaning and did not
mean to circumscribe the long-standing discretion of district
courts in these matters. See United States v. Cray, 47 F.3d
at 1206, and cases there cited. The Advisory Committee
Notes to Rule 11 make this plain: the changes to Rule 11
were ‘‘intended to be stylistic only,’’ unless otherwise noted.
Just as changes in ‘‘phraseology’’ in the revision of the 1948
Judicial Code did not change a statute’s substance, see 3M
Co. v. Browner, 17 F.3d 1453, 1458 (D.C. Cir. 1994), stylistic
changes in the Rules of Criminal Procedure do not alter their
substance.
Abuse of discretion will therefore continue to be our stan-
dard of review. The question remains whether the govern-
5
ment violated its agreement with Weaks. The district court
believed that its actions, not those of the prosecution, pre-
vented the government from fulfilling its promise to Weaks to
dismiss the charge against Conyers. Of this we have no
doubt. It is no answer to say that at the moment the court
ordered the parties to proceed to trial, the government could
have dropped the charge. That would have deprived the
government of its bargain. The agreement was to dismiss at
the time of Weaks’ sentencing, not before.
On the other hand, Weaks complains that he did not benefit
from his bargain, which he describes as not having Conyers
‘‘placed in jeopardy of a trialTTTT’’ Brief of Appellant at 15.
To the extent the plea agreement relieved Weaks of the
anxiety of having his girlfriend endure a criminal trial and
possible imprisonment, there is no indication that Weaks lost
anything. Conyers’ acquittal came not more than an hour
after the trial began. Nothing suggests that Weaks suffered
any anxiety during that hour or even knew her trial was
underway. The district court suggested as much in denying
the withdrawal motion.
The other benefit of Weaks’ bargain was one he bestowed
on Conyers. But Conyers’ decision to go to trial rather than
wait for the plea agreement to be carried out cannot be laid
at the government’s feet and did not amount to a breach of
the agreement. If third party beneficiary principles applied,
there still would be no breach. While Weaks relinquished his
right to a trial, Conyers did not. It is black letter contract
law that a third party ‘‘beneficiary is entitled to reject a
promised benefitTTT’’ see RESTATEMENT (SECOND) OF CONTRACTS
§ 306, at cmt. & illus. b (1981), and that when this occurs, the
‘‘effect on the promisor’s duty to the beneficiary is the same
as if no promise had been made.’’ Id. Thus when a ‘‘benefi-
ciary’’ renders ‘‘performance [by the promisor] impossible,
this TTT generally prevent[s] [the nonperformance] from be-
ing a breach of duty on the promisor’s part to the promisee.’’
9 CORBIN ON CONTRACTS § 811 (interim ed. 2002). Conyers’
decision to go to trial thus relieved the government of its
obligation to Weaks to dismiss the charge against her at his
sentencing.
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We therefore hold that the district court properly rejected
Weaks’ motion to suppress and that the court did not abuse
its discretion in denying Weaks’ motion to withdraw his guilty
plea.
Affirmed.