No. 96-8312 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 ALEXANDER FAULKNER, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General VICKI S. MARANI Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether petitioner was entitled to discovery in support of a claim of selective prosecution, absent evidence that similarly situated persons of a different race have not been prosecuted for that offense. 2. Whether the district court abused its discretion in denying petitioner's motion to withdraw his guilty plea under Fed. R. Crim. P. 32(e). 3. Whether a defendant has an absolute right to withdraw his guilty plea after the district court has accepted it but before the district court has decided whether to accept or reject an accompanying plea agreement. (I) ---------------------------------------- Page Break ---------------------------------------- IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1996 No. 96-8312 ALEXANDER FAULKNER, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A21-A26) is reported at 103 F.3d 684. JURISDICTION The judgment of the court of appeals was entered on December 24, 1996. A petition for rehearing was denied on March 4, 1997. Pet. App. A27. The petition for a writ of certiorari was filed on March 20, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATEMENT Under an indictment returned in the United States District Court for the District of Minnesota, petitioner pleaded guilty to ---------------------------------------- Page Break ---------------------------------------- 2 one count of conspiring to possess with intent to distribute, and to distribute, cocaine and cocaine base, in violation of 21 U.S.C. 846; one count of possessing cocaine with intent to distribute, in violation of 21 U.S.C. 841(a) (l); and one count of money laundering, in violation of 18 U.S.C. 1956(a) (1) (B) (i). 1. He was sentenced to concurrent prison terms of 300 months on the conspiracy and possession counts, and 240 months on the money laundering count, to be followed by five years of supervised release. The court of appeals affirmed. Pet. App. A21-A26. 1. Petitioner was a leader of a conspiracy that distributed kilograms of cocaine and cocaine base in the Rochester, Minnesota, area between October 1993 and February 1995. Pet. App. A6, A15- A16, A22. The FBI intercepted telephone conversations among the conspirators, including petitioner's conversations, during which drug sales were discussed. Gov't C.A. Br. 2. Petitioner used proceeds from drug sales to buy a van, for which he obtained title in another's name in order to conceal his ownership of a vehicle purchased with illicit funds. 6/27/95 Plea Tr. 28-29, 38, 50-52. At the time of his arrest, petitioner was in possession of about 17 ounces of cocaine and three pistols. Gov't C.A. Br. 2. On June 21, 1995, petitioner moved for discovery of evidence that would support a claim that petitioner was a victim of a discriminatory prosecution based on race. In support of his ___________________(footnotes) 1 Petitioner also pleaded guilty to one count of using and carrying firearms during and "in relation to a drug-trafficking crime. That count was dismissed at sentencing in light of this Court's intervening decision in Bailey v. United States, 116 S. ct. 501(1995). Gov't C.A. Br. 2-3. ---------------------------------------- Page Break ---------------------------------------- 3 motion, petitioner relied on the Ninth Circuit's en banc decision in United States v. Armstrong, 48 F.3d 1508, 1513-1514 (1995), which held that "inadequately explained evidence of a significant statistical disparity in the race of those prosecuted suffices to show the colorable basis of discriminatory intent and effect that warrants discovery on a selective prosecution claim." The day after a hearing on June 22, 1995, the magistrate judge issued an order recommending denial of the motion. App., infra A1-A6. The magistrate judge explained that petitioner had failed to show "any basis at all for believing that discriminatory prosecutorial selections have occurred in this case." Id. at A3 (internal quotation marks omitted). The magistrate judge observed that, "[o]f the ten Defendants originally indicted in this case, seven were African-American men, one was an Hispanic man, and two were Caucasian women." Id. at A4. The magistrate judge also observed that the statistics proffered by petitioner "do not relate to the question of whether African-Americans and Hispanics are prosecuted in federal court more often than those of another race." Ibid. On June 26, 1995, the district court "accept[ed] and endorse[d]" the magistrate judge's recommendation, and denied the-motion. 6/26/95 Tr. 4. On June 27, 1995, as trial was about to begin, petitioner voluntarily signed a plea agreement and entered an unconditional guilty plea during a change-of-plea hearing that fully complied with Fed. R. Crim. P. 11. Pet. App. A16, A24. In exchange for petitioner's guilty plea, the government dismissed at sentencing ---------------------------------------- Page Break ---------------------------------------- 4 four counts of the indictment. Id. at A1. As a result, petitioner avoided an otherwise mandatory term of life imprisonment. Id. at A16; Pet. 24. The plea agreement was the fourth version tendered to petitioner, who by his own admission was familiar with each version. Pet. App. A23; 6/27/95 Plea Tr. 2. Petitioner, who was a 32-year-old man with a high school education, who could read and write English (6/27/95 Plea Tr. 30), and who had a substantial criminal history (Pet. App. A4), acknowledged under oath that he had sufficient time to consult with his attorney about the plea agreement (6/27/95 Plea Tr. 35); that he understood its terms, including the fact that if he pleaded guilty he could not later appeal (id. at 29-30, 35-36); that his attorney had carefully explained how the Sentencing Guidelines applied to him (id. at 9); and that he was satisfied with his attorney's representation of him (id. at 36). On August 9, 1995, petitioner moved to withdraw his guilty plea. App., infra, B1-B3. He alleged that his attorney had been ineffective by engaging in "misrepresentation and lack of defensive preparation" by not applying "the right defensive strategy" in pretrial motions, and by failing to inform him of "the in depth details of his plea agreement." Id. at B1-B2. Petitioner also claimed that he had not sufficiently admitted his guilt at the plea hearing and that the government had breached the plea agreement by "double timing" him. Id. at B2. On October 13, 1995, the district court denied the motion (App., infra, C1-C5), finding that ---------------------------------------- Page Break ---------------------------------------- 5 petitioner "has not established a fair and just reason to withdraw his guilty plea" under Fed. R. Crim. P. 32(e). Id. at C5. The court explained that "[t]he record as a whole establishes that [petitioner] was fully apprised of his rights, that [he] understood the terms of the plea agreement, and that he was satisfied with counsel. [He] also admitted his guilt, under oath, on numerous occasions during the Rule 11 hearing." Ibid. The court further explained that petitioner's claims of attorney ineffectiveness and government "double timing" were conclusory or contradicted by his own sworn statements at the plea hearing. Id. at C4-C5. On October 30, 1995, this Court granted certiorari to review the Ninth Circuit's decision in Armstrong. See United States v. Armstrong, 116 S. Ct. 377 (1995). Petitioner thereafter moved for discovery of evidence that would support a claim of selective prosecution and for a stay of his sentence pending the Court's decision in Armstrong. On February 22, 1995, the court entered an order denying petitioner's motions. Pet. App. A9-A10. On February 23, 1996, the court sentenced petitioner in accordance with the plea agreement. 2/23/96 Tr. 42-43. On March 7, 1996, the district court entered a memorandum order amending its February 22, 1995, order. Pet. App. A12-A20. In explaining its denial of petitioner's motion for discovery, the court concluded that petitioner "has not presented any evidence that he has been singled out for prosecution while others similarly situated have not been prosecuted, nor any evidence of an impermissible motive for his prosecution." Id. at A17. The court further observed: -------------------------------------------- Page Break ---------------------------------------- 6 [T]he evidence establishes this criminal prosecution was undertaken in good faith and in a non-discriminatory manner. The process of conscious selectivity was an evaluation of the sufficiency of evidence to present to a jury. There is no evidence to suggest that consideration has been given to the defendant's race, religion, or the exercise of his constitutional rights. Among the ten defendants in this case, two are Caucasian, one is Hispanic and the others are African- American. The government cannot be responsible for the racial makeup of a criminal group and must deal with whomever it is presented in such a conspiratorial group. Ibid. In denying petitioner's motion to stay, the court reasoned that, even under the Ninth Circuit's "lower[] * * * threshold for discovery," petitioner could not establish a "colorable basis" for believing he was a victim of a discriminatory prosecution. Id. at A18. 2. On appeal, petitioner challenged the denial of his motion for discovery on selective prosecution. Pet. C.A. Br. 11. He also claimed that the district court had abused its discretion in denying his motion to withdraw his plea. Id. at 23-26. Abandoning his prior contention that the government breached the plea agreement and conceding that it "held to its agreement," petitioner argued instead that the government's four plea offers were successively less generous because of the "unequal bargaining position of the government." Id. at 24. The court of appeals affirmed. Pet. App. A21-A26. The court concluded that petitioner had waived his discovery claim by entering an unconditional guilty plea. Id. at A24. The court added that even if petitioner had preserved the issue, he nonetheless failed to "ma[k]e the showing that is required by United States v. Armstrong, 116 S. Ct. 1480, 1488 (1996), "which ------------------------------------------- Page Break ---------------------------------------- 7 this Court had issued after petitioner filed his appeal. Id. at A25 n. 2. The court also affirmed the district court's determination that petitioner had not shown a fair and just reason to withdraw his plea under Fed. R. Crim. P. 32(e). The court explained: The record demonstrates that [petitioner] voluntarily signed his plea agreement and pleaded guilty, that his change-of-plea hearing complied fully with all provisions of Federal Rule of Criminal Procedure 11, and that the district court sentenced [him] in accordance with his plea agreement. Post-plea regrets by a defendant caused by contemplation of the prison term he faces are not a fair and just reason for a district court to allow a defendant to withdraw a guilty plea, or for this court to reverse the district court. Pet. App. A24. The court also observed that petitioner "put himself in the bargaining position in which he found himself, * * * and a defendant facing a government prosecutor who is prepared and ready to go to trial cannot complain that the government is in an unfairly superior bargaining position." Id. at A23. ARGUMENT 1. Petitioner contends (Pet. 7-24) that the district court erred in denying his motion for discovery in support of a claim of selective prosecution on account of race. Petitioner does not challenge, however, the court of appeal's conclusion (Pet. App. A24), that petitioner waived that contention by entering an unconditional guilty plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to ---------------------------------------- Page Break ---------------------------------------- 8 the entry of the guilty plea."); see also United States v. Cortez, 973 F.2d 764, 767 (9th Cir. 1992) (under reasoning of United States v. Broce, 488 U.S. 563, 569 (1989), selective prosecution claim is waived by guilty plea where, at time plea was accepted, it could not be determined from face of indictment or from record that government lacked power to bring charge). In any event, the court of appeals correctly found (Pet. App. A25 n. 2) that petitioner is not entitled to discovery because he failed to make "a credible showing of different treatment of similarly situated persons." United States v. Armstrong, 116 S. Ct. 1480, 1489 (1996).2. Petitioner asserts that "the Black population [in Rochester, Minnesota] is minuscule;" that about two- thirds of the "648 Black males in the metropolitan area" are between the ages of 18 and 44; and that "[g]iven the amount of drugs alleged in this case, these numbers alone should give rise to suspicion * * * sufficient to order * * * a hearing on whether to issue a discovery order." Pet. 15-16. That "suspicion," however, is not a "credible showing of different treatment of similarly situated persons." 2. Petitioner argues (Pet. 24-26) that the district court abused its discretion in denying his motion to withdraw his guilty plea under Fed. R. Crim. P. 32(e). Pet. 24-26. That factbound contention does not merit by this Court. ___________________(footnotes) 2 Although petitioner acknowledges the Court's decision in Armstrong (Pet. 14-16), most of his petition (id. 11-12, 20-24), relies on the Ninth Circuit's en banc decision in Armstrong that was reversed. ---------------------------------------- Page Break ---------------------------------------- 9 Rule 32(e) provides that "[i]f a motion to withdraw a plea of guilty * * * is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Petitioner's belated allegation (Pet. 25) that "the bargaining process" was unfair because the government declined to re-extend to him plea offers that he had previously rejected does not constitute a fair and just reason for withdrawal of his guilty plea. As the courts below reasoned (Pet. App. A22-A23; App., infra C4-C5.), petitioner entered the plea agreement knowingly and voluntarily, and he admitted his guilt on each offense of conviction. Under those circumstances, the district court did not abuse its discretion under Rule 32(e) . 3. Petitioner finally contends (Pet. 26) that he "has an absolute right to withdraw his guilty plea after the district court has accepted it but before the district court has decided whether to accept or reject an accompanying plea agreement." That claim has been expressly rejected by the Court's decision in United States v. Hyde, No 96-667, slip. op. 4-8 (May 27, 1997). ---------------------------------------- Page Break ---------------------------------------- 10 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. WALTER DELLINGER Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General VICKI S. MARANI Attorney JUNE 1997 ---------------------------------------- Page Break ---------------------------------------- UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION UNITED STATES OF AMERICA, CRIMINAL NO. 3-95-24 Plaintiff, v. ORDER ALEXANDER FAULKNER ALEXI RICARDO BRAVO, and DORIAN DEE STUTTLEY, Defendants. Assistant United States Attorney Joseph T. Walbran, Esq., for United States Richard T. Oakes, Esq., for Alexander Faulkner Dean S. Grau, Esq., for Alexi Ricardo Bravo Joel C. Golden, Esq., for Dorian Stuttley This matter came before the Court on June 22, 1995 on Defendants' Motions for discovery. Upon all of the files, records and proceedings herein, the Court now makes and enters the following Order. BACKGROUND By Indictment dated February 24, 1995, the Defendants were charged, along with seven other Defendants, with conspiracy to possess and distribute cocaine base under 21 U.S.C. 841(a)(1) and 846. They were arraigned on March 7, 1995, at which JUNE 23 1995 FILED FRANCIS E. DOSAL CLERK JUDGMENT ENTERED DEPUTY CLERKS INITIALS ---------------------------------------- Page Break ---------------------------------------- time a trial date was set for May 1, 1995. The Court heard arguments on Defendants' discovery motions on March 28, 1995 and issued an Order on these motions on April 19, 1995. The Government filed a Superseding Indictment on April 6, 1995 and the trial date was rescheduled for May 30, 1995. The Court heard arguments on the suppression of electronic surveillance material used in this case on May 2, 1995 and issued a Report and Recommendation on May 15, 1995. On May 22, 1995, the Court granted a continuance of the trial date to June 26, 1995. On June 21, 1995, Alexander Faulkner, Alexi Bravo and Dorian Stuttley moved to compel discovery from the Government of evidence "which may be favorable to [each of the Defendants] concerning his claim that he is a victim of discriminatory prosecution." Oral arguments were heard the following day. Defendants claim that more black defendants are selected for prosecution in federal court, and that non-black defendants are more often prosecuted in state court for the same offense, with the result that black defendants are at risk for larger sentences, and that if they are provided with the discovery they seek, they will be able to demonstrate this. Since the case is scheduled to go to trial on June 26, 1995 at 2:00 p.m., counsel for Defendants orally moved to postpone the trial for "several weeks" in order to review the data requested and make a substantive motion to dismiss the Indictment without prejudice. Defendants rely upon the Opinion in United States v. Armstrong, 48 F.3d 1508 (9th Cir. 1995). In that case, the Court of Appeals affirmed the power of the District Court to order discovery of the type sought by Defendants herein. It concluded that the 2 ------------------------------------------ Page Break ---------------------------------------- District Court had not abused its discretion in ordering discovery under the facts presented to that Court. The Armstrong court stated that "discovery may be ordered when the evidence provides a colorable basis for believing that discriminatory prosecutorial selections have occurred" (id., 48 F.3d at 1512), and quoted with approval from its decision in United States v. Bourgeois, 964 F.2d 935 (9th Cir. 1992), that "to obtain discovery on a selective prosecution claim, a defendant must present specific facts, not mere allegations, which establish a colorable basis for the existence of both discriminatory application of a law and discriminatory intent on the part of the government." Armstrong supra., 48 F.3d at 1512-1513. It is uncertain whether the courts of this circuit would adopt the majority opinion of the sharply divided court in Armstrong. Even if this Court were to adopt that standard, Defendants have failed to make a factual showing to this Court that there is any basis at all for believing that "discriminatory prosecutorial selections have occurred" in this case. To establish a prima facie case of selective the prosecution, "defendant must demonstrate: 1) that he has been singled out for prosecution while others similarly situated have not been prosecuted for similar conduct; and 2) that the Government's action in thus singling him out was based on an impermissible motive such as race." United States v. Parham, 16 F.3d 844, 846 (8th Cir. 1994) citing United States v. Matter, 818 F.2d 653 at 654 (8th Cir. 1987). The Defendants carry the burden of overcoming the rational presumption that the United States Attorney chose to prosecute them because of the size of their drug dealing operation rather than because of their race. See United States v. Marshall, No. 93-50574, 1995 WL 354215 at *1 (9th Cir. June 14, 1995). 56 F.3 1210 3 ---------------------------------------- Page Break ---------------------------------------- Defendants argue that in the Application for an order authorizing the interception of wire and electronic communications, the Government identified certain individuals as "black males", and did not identify the race of the others. They ask the Court to assume that those not identified as "black males" are caucasian. They further ask the Court to assume that these other individuals were "similarly situated" to Defendants, that they were not prosecuted, and further that "the government's action in thus singling [Defendants] out was based on an impermissible motive such as race, religion, or the exercise of constitutional rights." United States v. Parham, 16 F.3d 844 (8th Cir. 1994). There is no factual basis upon which the Court could indulge in any of these assumptions, or make any findings of fact which would support a conclusion that there has been a colorable showing of discriminatory prosecutorial selection. Of the ten Defendants originally indicted in this case, seven were African- American men, one was an Hispanic man, and two were Caucasian women. (Mr. Stuttley and Mr. Faulkner are African-American men, and Alexi Bravo is an Hispanic man.) The Indictments allege possession and distribution of large amounts of cocaine, the type of cases often presented in federal court. The statistics presented by Defendants do not relate to this District, but to the country as a whole. In addition, those statistics do not relate to the question of whether African-Americans and Hispanics are prosecuted in federal court more often than those of another race. Finally, the consequence of the alleged prosecution in federal court instead of state court is said to be that the sentence in federal court is likely to be more severe if 4 ---------------------------------------- Page Break ---------------------------------------- the defendant is convicted. There is thus a separate issue as to whether the question presented by the motions for discovery is ripe for determination at this time. The mere fact that a defendant is tried in federal court rather than state court does not represent a denial of any rights. If the defendant is tried and acquitted, there also would be no denial of any rights. The issue would not seem to be ripe until a defendant is tried in federal court, and convicted, and if at time of sentencing the sentence to be imposed in federal court would be greater than if the proceeding had taken place in state court. The issue of ripeness is of particular concern under the procedural facts of this case, where the motion of the Defendants is made five days prior to the date upon which the case is scheduled to go to trial. Counsel for Defendants stated at oral argument that "several weeks" would be needed to complete the discovery they seek. Even if it could be completed in less time, any order for discovery would require that the trial of this matter be furthered postponed. Defendants have been in custody for almost five months. They have not shown that the requested discovery would uncover evidence leading to dismissal or that further delay in the trial is justified. The court will not grant discovery. There is not a minimum or colorable showing on the part of Defendants of a possibility of prevailing on selective prosecution motion, if they were to make such a motion. 5 ----------------------------------------- Page Break ---------------------------------------- ORDER IT IS HEREBY ORDERED that Defendant's Motions for Discovery are denied. Dated June 23, 1995 JOHN M. MASON United States Magistrate Judge 6 ---------------------------------------- Page Break ---------------------------------------- UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION Case 3-95-24 (1) NOTICE OF MOTION TO WITHDRAW GUILTY PLEA UNITED STATES OF AMERICA, Plaintiff, vs. ALEXANDER FAULKNER, Defendant. TO: The District Court and the Honorable Judge Micheal J. Davis, Magistrate Judge John M. Mason, Assistant United States Attorney Joseph T. Walbran. PLEASE TAKE NOTICE: That the defendant in this matter, ALEXANDER FAULKNER, by his attorney, Richard T. Oaks shall move the court for the relief sought below at a time _AM, and date _1995, or as soon as counsel may be heard, or at such time and place as the court may further direct. FACTS AND PROCEDURAL HISTORY The defendant plead guilty to several counts of the indictment on June 27-1995, And the remaining charges were dismissed. The defendant plead to counts 1, 2, 3, and 13 of the indictment, (Conspiracy), (Possession with intent to distribute a controlled substance), (Possession of a firearm) and (Money laundering). 1). I would assert that the plea was plead to incompetently, and that defense attorney failed to inform the defendant of the indepth details of his plea agreement. 2). The defendant farther would like to assert that counsel failed to explain to the defendant that upon pleading that his full rights to appeal his indictment based upon his constitutional violations and Fourth Amendment Rights, could no longer be challenged. ---------------------------------------- Page Break ---------------------------------------- By his plea of guilty, and that none of his Search and Seizure violations and claims be renewed by motion. 3). The defendant also asserts that defense counsel misrepresentation and lack of defensive preparation caused a great misunderstanding and injustice. 4). The defendant also wish the court to base his withdrawal on the factual grounds that the defendant never fully conceded to the governments total allegations. And by law it states that when the defendant denied the truth of prosecutors summary of facts of case rebutted offer of proof of some facts, and that serious questions existed about his actually admitting facts which would have supported a conviction. U.S.A. vs Zuber (Ca 9) Nev 528, F2d 981. 5). Also the defendant asserts that the prosecution Breached the plea agreement, by knowingly and intentionally double timing the defendant which can no longer be accepted on its face by the defendant. 6). The defendant in his last assertion would show Ineffective Assistance of Counsel, The counsel for the defendant has failed in many areas of efficiency which could have been more consistent if the right defensive strategy was applied at the time pretrial motions. And to misguide a defendant into an misunderstood and unclear plea of guilty, is clearly a show of counsel misrepresentation, which also should afford the defendant a chance to withdraw his plea. RELIEF SOUGHT BY DEFENDANT THE DEFENDANT REQUEST FOR AN ORDER TO WITHDRAW HIS PLEA OF GUILTY BE GRANTED AND HE GIVEN A CHANCE TO PRESENT HIS FULL DEFENSE AT TRIAL. AND THAT BEFORE A DECISION IS MADE TO THIS MOTION THAT THE DEFENDANT IS GIVEN A CHANCE TO PRESENT AN ARGUMENT TO THE COURT TO SUPPORT HIS GROUNDS FOR WITHDRAWAL. ---------------------------------------- Page Break ---------------------------------------- DATED: August 9,1995 Respectfully submitted, Alexander Faulkner Washington County Jail BOX 3801 Syillwater, Minnesota 55082 ------------------------------------------ Page Break ---------------------------------------- UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA THIRD DIVISION ORDER File No. 3-95-24 (1) United States of America, Plaintiff, vs. Alexander Faulkner, Defendant. This matter is before the Court upon Defendant Faulkner's pro se motion to withdraw his plea of guilty. On June 27, 1995, Defendant entered guilty pleas to Counts 1, 2, 3 and 13 of the Superseding Indictment pursuant to a plea agreement entered into between the parties. The terms of the plea agreement provided that the government would recommend a sentence within a range of up to 360 months, provided defendant cooperate fully in the investigation and prosecution of others involved in the distribution of cocaine and cocaine base into Rochester, Minnesota by providing full and honest answers to during interviews and in testimony before grand jury proceedings or trials. Based upon this cooperation, the government also agreed to move for a downward departure from the mandatory minimum sentence of ten years. 1 ---------------------------------------- Page Break ---------------------------------------- Defendant now moves this Court to withdraw his pleas of guilty, on the basis of ineffective assistance of counsel and that the government has breached the plea agreement. Rule 32 (d) of the Federal Rules of Criminal Procedure provides that a court may permit withdrawal of a guilty plea upon a showing by the defendant of any fair and just reason, if such motion is made prior to the imposition of sentence. The defendant has no right to withdraw his plea of guilty. United States v. Boone, 869 F.2d 1089, 1091 (8th Cir.) cert. denied, 493 U.S. 822 (1989). This Court has discretion to allow or deny such motion. Id. The presentation of conclusory allegations unsupported by specific facts is subject to summary dismissal, "as are contentions that in the face of the record are wholly incredible." Blackledge v. Allison, 431 U.S. 63, 74 (1976). To determine whether to allow a pre-sentence motion to withdraw a guilty plea, this Court must consider the following factors: 1) whether defendant established a fair and just reason to withdraw a plea; 2) whether defendant asserts his legal innocence of the charge; 3) the length of time between the guilty plea and the motion to withdraw; and 4) if the defendant established a fair and just reason for withdrawal, whether the government will be prejudice. Boone, 869 F.2d at 1093. In his motion, defendant does not assert his legal innocence. Rather, he asserts that he did not fully concede to the government's allegations. A review of the transcript from the Rule 11 Guilty Plea hearing establishes that while defendant did not fully agree with some of the factual details as presented by the government, defendant nonetheless agreed to facts which sufficiently support the charges to which he pleaded guilty. On two 2 ---------------------------------------- Page Break ---------------------------------------- occasions during the Rule 11 guilty plea hearing, defendant admitted his guilt. At page 9, defendant stated " Ispoke to Joan Anderson, who was here today, and I advised her to come down here and talk to everyone, you know, because all of us was guilty to a degree." Later, at page 14, defendant stated "I don't know if I'm doing the right thing by making this plea. Yes, I'm guilty. And if I'm guilty, I would rather just plead guilty." The main thrust of defendant's motion to withdraw his guilty plea is based upon ineffective assistance of counsel. To successfully establish a claim of ineffective assistance of counsel, defendant must show that, if not for the errors of counsel, defendant would not have pleaded guilty and would have proceeded to trial. United States v. Lockstein, 859 F.2d 83 (8th Cir. 1988). The claimant carries the burden of proof to establish an ineffective assistance of counsel claim. Alexander v. McCotter, 775 F.2d 595, 602 (5th Cir. 1985). For the reasons stated below, the Court finds all of defendant's assertions with respect to his claim of ineffective assistance of counsel are without merit. Defendant asserts that counsel failed to inform him of the in-depth details of his plea agreement. Defendant provides no further evidence, or offer of proof to support this allegation. Furthermore, the record does not support the assertion. At the beginning of the hearing, counsel for defendant stated: MR. OAKES: Your Honor, the record should show that this is the fourth version of a proposed plea agreement. And the differences between those documents are very slight. So this is language in this document that we just excluded which both myself and my client are very familiar with. (Guilty Plea, T.9). 3 ---------------------------------------- Page Break ---------------------------------------- Furthermore, the government went over each term of the plea agreement with the defendant at the Rule 11 hearing. Accordingly, the Court finds no merit to the assertion that defendant was not instructed as to the details of the plea agreement. The defendant also argues that he was not informed by counsel that he would lose his right to appeal constitutional violations and Fourth Amendment rights if he entered a plea of guilty. The Court did, however, advise defendant in this regard. COURT: Your understand that your counsel had made some motions on your behalf with the suppression of certain evidence in your case, and those were ruled on both by the magistrate judge and myself; and with you pleading guilty, and if the Court accepts your plea of guilty, you will not be able to further appeal those issues to a higher court? DEFENDANT FAULKNER: Yes, sir. The defendant also asserts that misrepresentation by counsel and counsel's lack of "defensive preparation" caused a great misunderstanding and injustice. In paragraph 6 of his motion, defendant attempts to elaborate on his claim of misrepresentations of counsel by asserting counsel "failed in many areas of efficiency which could have been more consistent if the right defensive strategy was applied at the time pretrial motions." The defendant does not specify what counsel failed to do to support his claim of lack of preparation. Nor does defendant cite to any fact, unknown at the time he pleaded guilty, that would have made going to trial a more appealing alternative. Lockstein, 859 F.2d at 83. Mere conclusory allegations do not establish a fair and just reason to support a withdrawal of plea. Alexander, 775 F.2d at 603. 4 ---------------------------------------- Page Break ---------------------------------------- Furthermore, defendant stated at the Rule 11 guilty plea hearing that he had sufficient time to consult with counsel and that he was satisfied with counsel. (T. 35-36). Defendant's failure to raise objections to counsel's performance at the Rule 11 hearing refutes any claim of ineffective assistance of counsel as a basis for withdrawing a guilty plea. United States v. Abdullah, 947 F.2d 306, 312 (8th Cir. 1991) cert denied, 504 U.S. 921 (1992). Defendant's last asserted bases for withdrawing his guilty plea is that the government breached the plea agreement by "double timing" the defendant. Again, defendant does not proffer any specific facts to support this allegation. The record of the Rule 11 hearing establishes that counsel for the government went over all terms of the agreement, and defendant responded that he understood the agreement and wished to enter into the agreement. The record as a whole establishes that defendant was fully apprised of his rights, that defendant understood the terms of the plea agreement, and that he was satisfied with counsel. Defendant also admitted his guilt, under oath, on numerous occasions during the Rule 11 hearing. Accordingly, the Court finds that defendant has not established a fair and just reason to withdraw his guilty plea. Accordingly, IT IS HEREBY ORDERED that Defendant Faulkner's motion to withdraw his guilty plea is Denied. Date: 10-12-95 Michael J. Davis United States District Judge 5