United States v. Henry

• Court: Court of Appeals for the First Circuit
• Decided: July 20, 1993
• Docket: 92-1835
• Status: Published

Opinion

USCA1 Opinion

          July 20, 1993         [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

___________________

No. 92-1835

UNITED STATES,

                                      Appellee,

                                          v.

                                  PETER MORAN HENRY,

                                Defendant, Appellant.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jaime Pieras, Jr., U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________
                            Bownes, Senior Circuit Judge,
                                    ____________________
                              and Stahl, Circuit Judge.
                                         _____________

                                 ___________________

               Jose R. Gaztambide on brief for appellant.
               __________________
               Charles  E. Fitzwilliam,  United  States Attorney,  Jeanette
               _______________________                             ________
          Mercado-Rios, Assistant  U.S. Attorney,  and  Jose A.  Quiles  on
          ____________                                  _______________
          brief for appellee.

__________________

                                  __________________

PER  CURIAM.  Defendant-appellant Peter Moran Henry
                      ___________

            appeals the denial of a motion to withdraw his guilty plea in

            the United States  District Court for the  District of Puerto

            Rico.    Finding no  error in  the  decision of  the district

            court, we affirm.

                                          I
                                          I

                                      Background
                                      Background
                                      __________

                      Henry   took   his   girlfriend,   Hattie   "Penny"

            Middlebrook, and  a friend of hers,  Ruby Christine Marshall,

            on  a vacation to St.  Lucia in September,  1991.  Upon their

            return to  the  airport in  San  Juan, Puerto  Rico,  Customs

            Inspector Herdmann observed  Middlebrook and Marshall walking

            in  a suspiciously  rigid  manner,  apparently following  the

            directions  provided by  the physical  gestures of  a nervous

            Henry.   When the Inspector  questioned the  women, he  found

            that  Middlebrook was carrying  the customs  declarations for

            three travelers.    When he  asked who  their male  traveling

            companion was,  they identified Mr. Henry.   Herdmann decided

            that  further investigation  was required  when  he overheard

            Henry tell another Inspector that he did not know Middlebrook

            and  Marshall.   A  search  revealed  packages, containing  a

            substance which was later established to be cocaine, taped to

            the bodies  of both women.   No drugs  were found  in Henry's

            possession.

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                                          2

On October 9, 1991, a Federal Grand Jury returned a

            true bill  against  Henry and  codefendants  Middlebrook  and

            Marshall for violations  of 21 U.S.C.     841(a)(1), 952, 955

            and 18  U.S.C.   2.  The  three count indictment charged that

            on  or  about  September  30, 1991,  Henry,  Middlebrook  and

            Marshall,  aiding and  abetting  each  other, did  knowingly,

            intentionally   and   unlawfully  possess   with   intent  to

            distribute, and did import into the customs  territory of the

            United States from St.  Lucia, approximately 2.3 kilograms of

            cocaine, which cocaine  was not part  of the official  supply

            list nor part of the cargo  manifest of the airline flight on

            which the codefendants had travelled from St. Lucia to Puerto

            Rico.   Henry pled not  guilty at his  arraignment on October

            24, 1991.

                      On December 18, 1991, the first day of Henry's jury

            trial,  testimony was received  from Inspector  Herdmann (who

            testified to the events in  the airport recounted above)  and

            Middlebrook.  Middlebrook testified that Henry left the motel

            where the three were staying in St. Lucia each morning before

            she awoke, and that he  was gone for most of those days.  She

            further testified that,  on the  way to the  airport for  the

            departure  flight, Henry stopped at  a man's house.   He went

            inside while  Middlebrook and Marshall waited  outside on the

            porch.  When  he emerged,  he told his  companions that  they

            would be  taking some drugs back  to the United States.   The

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                                          3

women  entered  the house  where  drugs were  taped  to their

            bodies  and they were  outfitted with  loose-fitting dresses.

            The  drugs  were  secured  between  Middlebrook's  legs  with

            masking tape  and a  girdle  which she  identified at  trial.

            Middlebrook testified  that she received instructions to walk

            with her legs pressed together so that attention would not be

            drawn  to her walk.   The court  adjourned for the  day after

            Middlebrook described her encounter with Inspector Herdmann.

                      On the  second  day of  trial,  before  Middlebrook

            could resume her testimony, Henry changed  his plea to guilty

            on  all  three counts.   The  court  accepted his  plea after

            engaging in a  colloquy in  which Henry:   (1) denied  having

            taken  drugs, medicine  or  alcohol in  the past  twenty-four

            hours; (2)  denied being  under the  care of  a doctor  for a

            mental  or  emotional condition;  (3)  affirmed  that he  was

            satisfied  with his  attorney's representation;  (4) declared

            that he  considered himself guilty; (5)  acknowledged that he

            understood that by pleading  guilty he would be found  guilty

            without  trial;  (6)  confessed  to  asking  Middlebrook  and

            Marshall  to carry the  drugs; (7) demonstrated  that he knew

            the maximum  sentence and fine  he faced as  a result of  his

            plea; (8) denied that he was being forced to change his plea;

            (9)  stated that he was  pleading guilty for  no other reason

            than the fact that he  was guilty; and (10) declared  that he

            had consulted with his  attorney and understood the questions

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                                          4

he  was being  asked  by the  court.   The judge  ordered the

            preparation   of  a  presentence   investigation  report  and

            scheduled sentencing for March 19, 1992.

                      On  March 3, 1992, Henry  filed a motion  pro se to
                                                                ___ __

            withdraw his guilty plea.  He claimed that he had been forced

            to plead guilty by his lawyer and that he was confused at the

            time he entered the  plea because he was under  the influence

            of a variety of  medications.  The court assigned Henry a new

            lawyer and  rescheduled the  sentencing hearing for  June 24,

            1992.   On May 13,  1992, Henry, with  the assistance of  new

            counsel,  moved  to withdraw  his  plea  on  the ground  that

            letters  he  had  received from  his  girlfriend, codefendant

            Middlebrook,  proved that  she had  committed perjury  at the

            trial.1    At  the  sentencing hearing,  the  district  court

____________________

            1.   The  letters,  postmarked January  27,  1992,  and dated
            December  29, 1991,  January 1,  1992 and  January  13, 1992,
            included the following statements:
                      Peter  I'm  so  very  sorry   about  what
                      happened.   I  didn't  know that  I'll be
                      talking  to  the United  States Attorney.
                      My  lawyer  didn't  say  anything  to  me
                      before  we arrived  in  Puerto  Rico  [to
                      testify  at the  trial].    I  have  been
                      thinking  about  what  happened  and  the
                      things that I said  I was so scare[d] and
                      I'm feeling so bad about it . . . .

                      I can't  help but  think  that you  don't
                      want to talk to me because of what I said
                      and you  know that's  not true.   But you
                      know that I was scare[d] and I don't want
                      to go  back to that  place.   But if  you
                      don't  want to  talk to  me I'll  try and
                      understand.

                                         -5-
                                          5

denied  Henry's withdrawal  motion,  and sentenced  him to  a

            seventy-month term of imprisonment, followed by four years of

            supervised release.

____________________

            The letters also reveal  that Middlebrook believed herself to
            be pregnant with Henry's child.

                                         -6-
                                          6

II
                                          II

                                       Analysis
                                       Analysis
                                       ________

                      It  is well  established  that a  defendant, having

            chosen  to  plead  guilty,  possesses no  absolute  right  to

            withdraw his or  her plea.  United States v. Tilley, 964 F.2d
                                        _____________    ______

            66, 72 (1st  Cir. 1992);  United States v.  Austin, 948  F.2d
                                      _____________     ______

            783, 786  (1st Cir.  1991); United  States v. Pellerito,  878
                                        ______________    _________

            F.2d  1535, 1537 (1st  Cir. 1989); United  States v. Buckley,
                                               ______________    _______

            847 F.2d 991,  998 (1st  Cir. 1988), cert.  denied, 488  U.S.
                                                 _____________

            1015 (1989); United States  v. Ramos, 810 F.2d 308,  311 (1st
                         _____________     _____

            Cir. 1987).   Where a motion to withdraw is  brought prior to

            sentencing,  as was  done in  this case,  the district  court

            should allow it only if there is a "fair and just reason" for

            doing so.   Fed. R. Crim.  P. 32(d); United States  v. Doyle,
                                                 _____________     _____

            981 F.2d 591,  594 (1st Cir.  1992); Tilley, 964 F.2d  at 72;
                                                 ______

            Austin, 948 F.2d  at 786;  Buckley, 847 F.2d  at 998;  United
            ______                     _______                     ______

            States v. Kobrosky, 711 F.2d 449, 454 (1st Cir. 1983).
            ______    ________

                      This court has held that the following factors must

            be evaluated in deciding whether a "fair and just reason" has

            been offered in support of a withdrawal motion:

                      (1) the  timing of defendant's  change of
                      heart; (2) the force and  plausibility of
                      the reason; (3) whether the defendant has
                      asserted his legal innocence; (4) whether
                      the  parties had reached  (or breached) a
                      plea agreement; and (5) most importantly,
                      whether the defendant's  guilty plea  can
                      still    be   regarded    as   voluntary,
                      intelligent, and  otherwise in conformity
                      with  Rule  11 of  the  Federal  Rules of

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                                          7

Criminal  Procedure  in   light  of   the
                      proffered   reason   and  the   disclosed
                      circumstances.

            Pellerito, 878 F.2d  at 1537 (citations omitted).   See also,
            _________                                           ___ ____

            Doyle,  981  F.2d at  594;  Tilley, 964  F.2d  at 72.   After
            _____                       ______

            performing this analysis, "[i]f  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."  Doyle,  981 F.2d at 594.  We  review the
                                 _____

            denial  of a motion  to withdraw a  guilty plea  for abuse of

            discretion.  Id.; Tilley, 964 F.2d at 72; Pellerito, 878 F.2d
                         ___  ______                  _________

            at 1538; Kobrosky, 711 F.2d at 454.
                     ________

                 A.   Timing
                      ______

                      As this court recently stated in Doyle,
                                                       _____

                      [b]ecause  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.
                      _________

            Doyle,  981 F.2d at 595  (emphasis added).   On appeal, Henry
            _____

            claims  that his change of  heart occurred on  March 3, 1992,

            after receiving what he claims to be exculpatory letters from

            his girlfriend,  and codefendant, Middlebrook.   In an effort

            to  put  the best  light on  his  case, he  claims  that this

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                                          8

happened  over ninety  days  prior to  the actual  sentencing

            hearing held on June 24, 1992.

                      We see the facts somewhat differently.  Henry first

            attempted  to  change his  plea  seventy-five  days after  he

            entered the guilty plea at trial, and only sixteen days prior

            to the  originally scheduled sentencing hearing.2   Appellant

            made no  mention  of  the letters  from  Middlebrook  in  his

            motion.  Rather, he  claimed that he was forced by his lawyer

            to  plead guilty  and  that he  was  under the  influence  of

            prescription  drugs at the time  he entered the  plea.  Henry

            did not seize on the Middlebrook  letters as a reason for his

            change of heart until his May 13, 1992 motion.

                      It was  reasonable for the district  court to infer

            from the  seventy-five day  delay between  appellant's guilty

            plea  and his  withdrawal  motion, and  the proximity  of his

            withdrawal request to his scheduled sentencing  hearing, that

            Henry  did not experience the kind of "swift change of heart"

            that  would indicate  that  the guilty  plea  was entered  in

            "haste and confusion."    Ramos,  810 F.2d at  312.  As  this
                                      _____

            court  noted in affirming  the denial of  a withdrawal motion

            filed eight  weeks after the  original plea was  accepted, "a

            long delay between the plea and the motion to revoke belies a

            claim  that the plea was  entered in haste  and confusion and

____________________

            2.   The date of the  actual sentencing hearing is irrelevant
            to our evaluation of this factor.

                                         -9-
                                          9

requires compelling reasons to support it."  United States v.
                                                         _____________

            Crosby,  714 F.2d  185, 192  (1st  Cir. 1983)  (citing United
            ______                                                 ______

            States  v.  Barker, 514  F.2d  208,  222 (D.C.  Cir.),  cert.
            ______      ______                                      _____

            denied, 421 U.S.  1013 (1975)), cert.  denied, 464 U.S.  1045
            ______                          _____________

            (1984).   Appellant has offered  no explanation for  the long

            delay before his  first motion to withdraw  his plea.  It  is

            clear that receipt  of the Middlebrook  letters were not  the

            proximate  cause of his  decision to change  his plea because

            those letters were not mentioned in his March, 1992 motion.

                 B.   Force and Plausibility of the Proffered Reasons
                      _______________________________________________

                      At  the June  24, 1992  hearing, appellant  and his

            counsel offered several reasons  in support of his withdrawal

            motion:   the  Middlebrook letters  showed that  she perjured

            herself at  his trial; his consumption  of prescription drugs

            at the time of his trial  made him confused; he was pushed by

            his  lawyer  to plead  guilty;  and,  he  was  in  "emotional

            distress"  at the time  of his  plea because  Middlebrook was

            pregnant with his child.   The district court considered  the

            force and plausibility of these reasons, and found them to be

            inadequate to support the withdrawal motion.

                      The court "scrutinized" the  content of the letters

            and stated that  it did  "not see anything  there that  would

            affect the plea of guilty . . . entered in December of 1991."

            The  court further  stated  that it  did  "not find  them  to

            suggest  any instance  of perjury."     On  appeal, appellant

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                                          10

merely asserts that the letters should have been presented to

            a  jury  to  determine  their  force  and  credibility.    We

            disagree.   The district  court has  the discretion  to grant

            plea withdrawal motions, and  it is therefore properly within

            the province  of the district  court to conduct  the required

            five-part inquiry,  including an evaluation of  the force and

            plausibility of the reasons proffered for the change of plea.

            We  have read the Middlebrook letters and cannot say that the

            district court's finding was clearly erroneous, especially in

            light  of  the fact  that  the same  court  heard Middlebrook

            testify at  trial.  While the  letters may tend to  show that

            Middlebrook regretted the role  she played in her boyfriend's

            incarceration, it is not self-evident that the letters either

            constitute an  admission of perjury or  provide evidence that

            perjury was committed.

                      The  court rejected appellant's contention that his

            plea  at   trial  was   influenced  by  his   consumption  of

            prescription medicines.  At the sentencing hearing, the court

            noted  that Henry  had been  asked at  the time  of  his plea

            whether he had taken  drugs, medicine or alcohol in  the past

            twenty-four hours, and that the appellant had answered in the

            negative.  Later in  the sentencing hearing, Henry's counsel3

            agreed  that the  trial  court had  properly determined  that

____________________

            3.   The attorney who represented appellant at the sentencing
            hearing replaced Henry's trial counsel.  Replacement  counsel
            also represented Henry on appeal.

                                         -11-
                                          11

appellant was not under the influence  of medications when he

            changed his plea to guilty.

                      The court found that appellant's trial attorney had

            not coerced  him into  pleading  guilty.   Indeed, the  court

            stated that his lawyer's advice was

                      proper and sound.  And it was looking for
                      the  welfare of  this  defendant.   And I
                      don't think he induced the defendant into
                      doing anything but  to tell the defendant
                      the truth  and  that the  defendant  took
                      this  decision upon  his  own  free  will
                      because he  was  present.   He heard  two
                      days  of  testimony of  witnesses against
                      him.
                      . . . .
                      Having observed Attorney  Garcia come  in
                      this case and the circumstances which led
                      to the defendant's plea[] of guilty.  The
                      Court  is  disincline[d]  to accept  your
                      assertions.
                         Contrary to that  I believe Mr. Garcia
                      gave you good advice.

            Appellant does  not contest this  finding on  appeal, and  we

            find  nothing in  the record  to upset  the  district court's

            findings.

                      Appellant  did not  raise his  "emotional distress"

            theory on appeal. 

                 C.   Legal Innocence
                      _______________

                      At no time has appellant directly stated that he is

            legally  innocent of the charges  to which he  pled guilty on

            December 19, 1991.  On that date, during the Rule 11 hearing,

            appellant  said that  he  asked Middlebrook  and Marshall  to

            carry the drugs, and stated:

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                                          12

But I'm taking the blame  because I asked
                      them and I had no business to ask them to
                      take drugs.  We didn't go to St. Lucia to
                      get drugs.   That's not what we go to St.
                      Lucia  for.   But  they were  taking  the
                      drugs and when we  go to Puerto Rico they
                      got busted.  They  had drugs and I didn't
                      have nothing and I feel guilty and I feel
                      sorry because I knew what I asked them to
                      do  was against  the  law.   So what  I'm
                      asking the Court today,  I am asking you,
                      Judge,  if  I  could  get  some  type  of
                      leniency, maybe 42  months or 36  months,
                      or I am not  going to put no time,  but a
                      time to be in jail  for the crime that  I
                      help committed [sic].4

            Appellant clearly  acknowledged that  he felt guilty  for his

            role  in aiding and abetting the  importation of cocaine into

            the United States.  On appeal, Henry merely claims that he is

            legally innocent because "he had not carried drugs nor forced

            anyone  to  bring  drugs  into  the  United  States."    That

            assertion  is an  insufficient expression of  legal innocence

            because  he did not assert  his innocence of  the crimes with

            which he was charged.  As  we noted in Doyle, "the absence of
                                                   _____

            a claim of  innocence weighs  in favor of  allowing a  guilty

            plea to stand."  Doyle, 981 F.2d at 596.
                             _____

                 D.   Breach of Plea Agreement
                      ________________________

                      Because there  never was a  plea agreement  between

            the appellant and the government, this factor bears no weight

____________________

            4.   Although  the  record, on  appeal,  does  not include  a
            transcript  of  the  trial  proceedings,  including the  plea
            colloquy, a  copy  of  the  transcript was  appended  to  the
            appellant's brief,  and the  government quoted parts  of this
            passage in its brief.

                                         -13-
                                          13

in  our calculus.  Henry contends that the district court was

            confused,  and thought that there  had, in fact,  been a plea

            agreement in this case.  Our  review of the transcript of the

            sentencing  hearing  indicates that  the  court  had a  clear

            understanding of  the situation.   The court cited  the five-

            factor test outlined above  and endorsed in Tilley.   When it
                                                        ______

            reached this fourth factor the court stated:  "Four, when the

            parties have reached or  breached a plea agreement.   Well, I

            guess if he withdraw[s]  his plea now I guess  he's breaching

            his plea agreement.   Although  that's not  what this  refers

            to."  By stating "that's not what this refers to," and moving

            on  to the fifth factor, the court recognized that the breach

            of a plea  agreement between the  government and a  defendant

            contemplated  by  this  factor  was not  implicated  in  this

            case.5

                 E.   Voluntariness
                      _____________

                      The  fifth  factor  which  must  be  considered  in

            evaluating the strength of  appellant's motion to withdraw is

            whether, "in  light of  the defendant's proffered  reason and

            any newly  disclosed  facts, the  plea  may still  be  deemed

            voluntary and intelligent."   Doyle, 981 F.2d  at 596 (citing
                                          _____

____________________

            5.   We  note that there were  times in the  hearing when the
            court seems to have applied the Tilley factors to appellant's
                                            ______
            change of  plea at  trial, rather  than to  the circumstances
            surrounding his  subsequent  efforts to  withdraw his  guilty
            plea.   Notwithstanding this apparent confusion,  a review of
            the entire  record supports the court's  ultimate decision to
            deny appellant's motion.

                                         -14-
                                          14

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)).     Appellant  contends  on   appeal  that  the

            transcript  of his plea colloquy  at trial shows  that he was

            indecisive about  his plea,  and that  the hearing  was "both

            defective and incomplete."  We disagree.  The  district court

            complied fully with the requirements of Fed. R. Crim. P. 11.

                      Appellant   initially    resisted   accepting   the

            government's  version of the facts of the case.  When offered

            the opportunity to explain  with what facts he  disagreed, he

            stated

                         I  didn't agree  because  both of  the
                      ladies    one lady  I'm in love  with and
                      the   other  lady,  they  old  enough  to
                      understand that the drugs is not legal to
                      carry  in the  United States.   All  they
                      have  to tell  me  is that  they are  not
                      going to  carry it.  There  was no force,
                      no  push.   I  asked them  not one  time.
                      They  sleep on it  Sunday night.   Monday
                      morning I  asked them the  same question,
                      and it was agreed  that they would do it,
                      without no force.
                         So  I figure that I'm guilty by asking
                      them to carry the cocaine,  but they also
                      have  to  hold  their  responsibility  to
                      carry it because I didn't put no force on
                      them to carry these  drugs when they know
                      the drugs is  not legal to carry.  I only
                      asked  them, and  the  word  was said  in
                      front of them when  the guy front we with
                      it.  We  was sitting at  the table.   All
                      they have  to say,  "I'm not coming  down
                      for this, I'm not going to do this."
                         So I figure like they should hold some
                      type  of  responsibility  to   carry  the
                      drugs, if the state attorney  didn't make
                      a deal  with them that they  going to get
                      less time.

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                                          15

This explanation  reveals that, although he  did dispute some

            of  the details of  the government's case,  appellant did not

            disagree with the fact that he facilitated the importation of

            illegal drugs into the United States.  His statement  reveals

            a  greater concern with informing  the court that  he had not

            forced  the women to carry  the drugs, than  with denying his

            guilt for  his role  in  the scheme.   In  sum,  there is  no

            evidence  that appellant was unsure of his plea, nor is there

            evidence  that the plea was coerced or entered without a full

            understanding of the consequences.

                 F.   Prejudice to Government
                      _______________________

                      Because  analysis  of  each  of  the  five  factors

            supports   the   district  court's   denial   of  appellant's

            withdrawal  motion,   we  need  not  consider   the  possible

            prejudice  to  government of  reversing  the  decision below.

            Doyle, 981 F.2d at 596 n.6 (citing Ramos, 810 F.2d at 315).
            _____                              _____

III
                                         III

                                      Conclusion
                                      Conclusion
                                      __________

                      Because  the appellant  has  not  made the  showing

            required  to reverse a district court's denial of a motion to

            withdraw a plea, the decision of the district court is

                                          Affirmed.
                                          ________

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                                          16