United States v. Laurence Keiswetter

Tenth Circuit

United States v. Laurence Keiswetter

866 F.2d 1301, 1989 U.S. App. LEXIS 20803, 1989 WL 9028

CourtCourt of Appeals for the Tenth Circuit

DecidedFebruary 9, 1989

Docket87-2347

StatusPublished

Cited by26 cases

This text of 866 F.2d 1301 (United States v. Laurence Keiswetter) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Laurence Keiswetter, 866 F.2d 1301, 1989 U.S. App. LEXIS 20803, 1989 WL 9028 (10th Cir. 1989).

Pincite

Opinions

ON REHEARING EN BANC

Before HOLLOWAY, Chief Judge, McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

This case is before the court sitting en banc to rehear the question of the appropriate remedy to apply following the panel’s determination that the record did not support defendant Keiswetter’s plea of guilty and remand was necessary to clarify the factual basis of the plea. United States v. Keiswetter, 860 F.2d 992 (10th Cir.1988). Mr. Keiswetter now contends on rehearing that the panel should not have ordered the partial remand, and the plea of guilty should be vacated. We agree.

Although protesting his innocence, Mr. Keiswetter entered a plea of guilty in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1302]*1302(1970). Eleven days later, and prior to sentencing, Mr. Keiswetter moved to withdraw the plea; but the trial court denied the motion, ostensibly after concluding the defendant demonstrated no fair and just reason to allow withdrawal. Fed.R.Crim.P. 32(d). Upon review of that holding, the panel concluded the record failed to demonstrate that the plea was properly accepted in the first instance because of the absence of evidence of a factual basis for the plea. Fed.R.Crim.P. 11(f). To overcome this gap in the record, the panel ordered a partial remand to allow the trial judge to clarify his reasons for having made that finding.

However, when it is determined that a plea of guilty is improvidently accepted by a trial court without full compliance with Fed.R.Crim.P. 11, the plea must be vacated. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). McCarthy mandates that remedy for this case. See also United States v. Theron, 849 F.2d 477 (10th Cir.1988); United States v. Blackner, 721 F.2d 703 (10th Cir.1983); United States v. Thomas, 468 F.2d 422 (10th Cir.1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1389, 35 L.Ed.2d 599 (1973); United States v. Townsend, 453 F.2d 1334 (10th Cir.1972). The judgment of the district court is REVERSED and REMANDED with instructions to vacate the defendant’s plea of guilty and undertake further proceedings upon his plea of not guilty to the original charge.

Free access — add to your briefcase to read the full text and ask questions with AI

ON REHEARING EN BANC

Before HOLLOWAY, Chief Judge, McKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY and EBEL, Circuit Judges.

JOHN P. MOORE, Circuit Judge.

This case is before the court sitting en banc to rehear the question of the appropriate remedy to apply following the panel’s determination that the record did not support defendant Keiswetter’s plea of guilty and remand was necessary to clarify the factual basis of the plea. United States v. Keiswetter, 860 F.2d 992 (10th Cir.1988). Mr. Keiswetter now contends on rehearing that the panel should not have ordered the partial remand, and the plea of guilty should be vacated. We agree.

Although protesting his innocence, Mr. Keiswetter entered a plea of guilty in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 [1302]*1302(1970). Eleven days later, and prior to sentencing, Mr. Keiswetter moved to withdraw the plea; but the trial court denied the motion, ostensibly after concluding the defendant demonstrated no fair and just reason to allow withdrawal. Fed.R.Crim.P. 32(d). Upon review of that holding, the panel concluded the record failed to demonstrate that the plea was properly accepted in the first instance because of the absence of evidence of a factual basis for the plea. Fed.R.Crim.P. 11(f). To overcome this gap in the record, the panel ordered a partial remand to allow the trial judge to clarify his reasons for having made that finding.

However, when it is determined that a plea of guilty is improvidently accepted by a trial court without full compliance with Fed.R.Crim.P. 11, the plea must be vacated. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). McCarthy mandates that remedy for this case. See also United States v. Theron, 849 F.2d 477 (10th Cir.1988); United States v. Blackner, 721 F.2d 703 (10th Cir.1983); United States v. Thomas, 468 F.2d 422 (10th Cir.1972), cert. denied, 410 U.S. 935, 93 S.Ct. 1389, 35 L.Ed.2d 599 (1973); United States v. Townsend, 453 F.2d 1334 (10th Cir.1972). The judgment of the district court is REVERSED and REMANDED with instructions to vacate the defendant’s plea of guilty and undertake further proceedings upon his plea of not guilty to the original charge.

Cite This Page — Counsel Stack

Bluebook (online)

866 F.2d 1301, 1989 U.S. App. LEXIS 20803, 1989 WL 9028, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-laurence-keiswetter-ca10-1989.

Opinions

Related

Cite This Page — Counsel Stack