United States v. Doyle

• Court: Court of Appeals for the First Circuit
• Decided: December 16, 1992
• Docket: 92-1475
• Status: Published

Opinion

USCA1 Opinion

December 16, 1992
                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 92-1475

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  CLIFFORD A. DOYLE,

                                Defendant, Appellant.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                              _________________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________

                            Bownes, Senior Circuit Judge,
                                    ____________________

                              and Selya, Circuit Judge.
                                         _____________

                              _________________________

               Kent I.  Patashnick, with whom Patashnick Law Offices was on
               ___________________            ______________________
          brief, for appellant.
               F. Mark Terison, Assistant United States Attorney, with whom
               _______________
          Richard S. Cohen, United  States Attorney, was on brief,  for the
          ________________
          United States.

                              _________________________

_________________________

SELYA,  Circuit Judge.   This  appeal requires  that we
                    SELYA,  Circuit Judge.
                            _____________

          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
                      ___

          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
                    ___  _____________     _________

          (1st  Cir. 1989);  see also  Fed.  R. Crim.  P.  32(d).   Several
                             ___ ____

          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,
                                   ___ _____________    _____
          55  (1st Cir. 1991);  United States v.  Rivera-Martinez, 931 F.2d
                                _____________     _______________
          148, 150 n.3 (1st Cir.), cert. denied, 112 S. Ct. 184 (1991).
                                   _____ ______

                                          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
                                                         ___ _________

          F.2d at 1537; United  States v. Kobrosky, 711 F.2d  449, 455 (1st
                        ______________    ________

          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
                                                                        ___

          Pellerito,  878 at  1537.   The nisi  prius court  has a  special
          _________

          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.
                                ___ ___          ________

                                          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.
                  ___ _____________    ______

          1992);  Pellerito,  878 F.2d at 1538.  Appellant  claims that his
                  _________

          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,
                        ___  ____   _____________    ______

          479 (1st  Cir. 1992); United  States v.  Garcia, 954 F.2d  12, 17
                                ______________     ______

          (1st Cir.  1992); United States v. Hogan,  862 F.2d 386, 388 (1st
                            _____________    _____

          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

____________________

               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
          ___  ______

          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.                 

                                          7

2.   Timing.    Because  the  timing of  a  defendant's
                         _______

          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
          _____ ______

          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."

8

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
                         ________________

          motion to withdraw a guilty plea when the motion  is coupled with

          an assertion of innocence.  See Tilley, 964 F.2d at 73; Kobrosky,
                                      ___ ______                  ________

          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
                         ______________

          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.
          ___  ______________     ______

          1991);  United States v. Allard, 926 F.2d 1237, 1245-47 (1st Cir.
                  _____________    ______

          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
                    ___ _________

          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
                                              ___ ___

          "mistake" does not qualify on either score.
                              
          ____________________

               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
                                     ___   ______
          violations.  See, e.g., Daniels, 821 F.2d at 81.  Yet here, as we
                       ___  ____  _______
          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.
                                                                ___ ______

                                          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
                          ___  ______

          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
                                                   ___ _____
          315.  

                                          11