United States v. Bowman ( 2003 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4700
RONNIE BOWMAN, a/k/a Young,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-01-349)
Argued: September 24, 2003
Decided: October 30, 2003
Before NIEMEYER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Luttig and Judge Williams joined.
COUNSEL
ARGUED: Richard Ara Harpootlian, RICHARD A. HAR-
POOTLIAN, P.A., Columbia, South Carolina, for Appellant. John
Michael Barton, Assistant United States Attorney, Columbia, South
Carolina, for Appellee. ON BRIEF: J. Strom Thurmond, Jr., United
States Attorney, Mark C. Moore, Assistant United States Attorney,
Columbia, South Carolina, for Appellee.
2 UNITED STATES v. BOWMAN
OPINION
NIEMEYER, Circuit Judge:
Three months after Ronnie Bowman pleaded guilty to two counts
of drug trafficking, he filed a motion to withdraw his plea under what
was then Federal Rule of Criminal Procedure 32(e), but which is now
Rule 11(d), contending that he was actually innocent of the charges,
that he lied at the guilty-plea colloquy, and that he did not have the
close assistance of competent counsel. Finding that Bowman’s con-
clusory statement that he had "lied" at the guilty-plea colloquy pro-
vided no credible evidence of his innocence and that Bowman had the
close assistance of competent counsel, the district court denied Bow-
man’s motion. For the reasons that follow, we affirm.
I
Beginning at least as early as 1996, Ronnie Bowman participated
in a large drug conspiracy, distributing heroin from his apartment and
elsewhere in Columbia, South Carolina. The conspiracy, which lasted
four years, involved more than 39 co-conspirators, several of whom
were arrested and pleaded guilty, agreeing to testify against Bowman
and others.
In a superseding indictment, Bowman was indicted in six counts
for conspiracy, drug trafficking, and obstruction of justice, and on
October 22, 2001, trial on these counts commenced before a jury.
After the first day of trial, during which five witnesses testified on
behalf of the government, Bowman tendered a guilty plea to Count
1 (conspiracy to distribute one kilogram or more of heroin in violation
of 21 U.S.C. § 846) and Count 4 (distribution of a controlled sub-
stance that caused the death of another person in violation of 21
U.S.C. § 841(b)(1)(C)) pursuant to the terms of a written plea agree-
ment dated October 23, 2001. Under the agreement, the government
agreed to dismiss the remaining three counts and to file a motion for
a downward departure to give Bowman a sentence of 22 years’
imprisonment, provided Bowman thereafter cooperate with the gov-
ernment in several specified respects and tell the truth. The parties’
agreement to a 22-year sentence was subject to court approval and
foreclosed the potential life sentences that Bowman could otherwise
UNITED STATES v. BOWMAN 3
have received for the two counts. The agreement provided that if
Bowman failed to cooperate or failed to tell the truth, he would be
denied the benefit of the 22-year downward departure, but he could
not withdraw his guilty plea. In addition, the government reserved the
right to argue for a maximum sentence.
During a lengthy plea colloquy conducted on October 23, 2001, in
accordance with Federal Rule of Criminal Procedure 11, the district
court determined that Bowman’s plea was knowing and voluntary.
During critical portions of the colloquy, the court asked Bowman to
state his understanding of that portion of the proceeding in his own
words. Bowman thus testified under oath about his understanding of
the nature of the entire proceeding, the nature of the charges, and the
facts on which the charges were based. The court also made repeated
inquiries of Bowman with respect to the nature of his relationship
with his attorney. Bowman stated that he was satisfied with his attor-
ney’s representation and that his attorney "has been working hand in
hand with me" and did everything that Bowman asked him to do. At
the conclusion of the Rule 11 colloquy, the district court stated:
It is the finding of the court in the case of the U.S. versus
Ronnie Bowman, also known as "Young," that the defen-
dant knows his right to a trial, knows the maximum possible
punishment, is fully competent and capable of entering an
informed plea, and that his plea of guilty is a knowing and
voluntary plea supported by an independent basis in fact
containing each of the essential elements of these offenses.
His plea is, therefore, accepted and he is now adjudged
guilty of those offenses.
Three weeks later, Bowman filed a pro se motion to discharge his
trial counsel, which the court granted. With the assistance of new
counsel, Bowman then filed a motion on January 24, 2002, to with-
draw his guilty plea. The district court held hearings on this motion
on May 2 and August 12, 2002. Bowman based his motion principally
on a toxicology report developed as part of the autopsy of Mark
Nunn, the victim referred to in Count 4. Because the report indicated
a finding of no heroin or fentanyl in Nunn’s system, Bowman asserted
that it showed that he was not responsible for Nunn’s death, as
charged in Count 4. Bowman also stated to the court that he was actu-
4 UNITED STATES v. BOWMAN
ally innocent of the conduct charged in both Count 4 and Count 1.
Finally, Bowman claimed that he did not have the close assistance of
competent counsel in that counsel failed to review the toxicology
report with him closely and that counsel advised Bowman to enter a
plea as to both counts, regardless of Bowman’s guilt. To support his
motion to withdraw his guilty plea, Bowman conclusorily stated to
the district court that he had lied outright during his guilty-plea collo-
quy. When the district court pressed Bowman further on this state-
ment in connection with each count, Bowman said, first with respect
to his Count 1 plea:
THE COURT: What you told me then was a lie?
THE DEFENDANT: I have to say yes, now, yes, sir.
Similarly in connection with his plea on Count 4, Bowman said:
THE COURT: So, when you told me . . . [Nunn]
took that bag [of heroin] from you
and went in your bathroom and used
it, you were lying to me again?
THE DEFENDANT: Yes, Your Honor, I did not tell the
truth.
Finally, Bowman’s new attorney reaffirmed that his client was claim-
ing to have lied during the earlier guilty-plea proceeding:
THE COURT: So, let me ask you this, so he was
more than willing to lie to the court?
COUNSEL: He was willing to say whatever the
government asked him to say.
THE COURT: Well, was he willing to tell me
something that wasn’t the truth?
COUNSEL: I think he’s testified previously on
that point, Your Honor.
UNITED STATES v. BOWMAN 5
THE COURT: So that he is?
COUNSEL: I think he was willing to say what-
ever was necessary to get the plea.
THE COURT: So is he willing to say whatever is
necessary to try to win this motion
today?
COUNSEL: I’m not, Your Honor, but — and he
has not testified and will not testify.
The district court then reviewed the applicable factors articulated in
United States v. Moore, 931 F.2d 245 (4th Cir. 1991). It noted that
Bowman was not contending that his plea was unknowing or involun-
tary. It found that Bowman did not credibly assert his legal innocence.
It found that the delay between the plea and the filing of the motion
was not long and favored Bowman, but only slightly. It found that
Bowman "absolutely" had had the close assistance of competent
counsel. It found that the government would be prejudiced by the
withdrawal of the guilty plea because of the difficulty in reassembling
the long list of witnesses that the government had ready at the trial.
Finally, it found that the withdrawal would inconvenience the court
and waste judicial resources. Summarizing, the court stated:
[Bowman’s] only argument [for withdrawing his plea] is,
he’s willing to lie whenever he needs to help himself. That’s
basically what he said. And it makes me wonder about some
of his assertions now, although I haven’t really heard any
assertions now that really make a legal difference in this
case.
But he hasn’t offered any credible evidence of his innocence
as to either charge, quite frankly.
***
But let me make this very clear, I have had a number of
motions to withdraw guilty pleas in front of me in eleven
6 UNITED STATES v. BOWMAN
and a half years, and I would rate this motion at about the
bottom of credence and any basis to grant it.
The court accordingly denied Bowman’s motion to withdraw his
guilty plea. Hearing from the government on how Bowman breached
his plea agreement by refusing to cooperate, to be debriefed, to take
a polygraph test, and to stick with his plea agreement, the court pro-
ceeded to sentence Bowman to life imprisonment.
Bowman filed this appeal on the single issue of whether the district
court abused its discretion in denying Bowman’s motion to withdraw
his guilty plea.
II
Bowman contends that the district court abused its discretion in
denying his motion to withdraw his guilty plea because (1) he credi-
bly asserted actual innocence; (2) there was "little delay" between his
plea and his motion; and (3) he did not have the close assistance of
competent counsel. Points (1) and (3) rest on Bowman’s contention
that he did not fully appreciate the contents of the toxicology report
prepared in connection with the autopsy of Nunn, which showed no
evidence of fentanyl or heroin in Nunn’s system, and that Bowman’s
trial counsel failed to make clear that Bowman understood this fact,
even though Bowman concedes that his trial counsel explained to him
both the report and the government’s position in response to the
report. Bowman asserts that had he appreciated the full import of the
toxicology report, he would not have pleaded guilty to Count 4,
charging him with distributing a controlled substance to Nunn and
thereby causing his death. And without pleading guilty to Count 4, he
asserts he would not have pleaded guilty to Count 1, the heroin con-
spiracy count.
In specific response to Bowman’s reliance on the toxicology report,
the government points out that Bowman not only had the report
before he pleaded guilty but he had also been provided with the gov-
ernment’s explanation of why fentanyl and heroin would not show up
in Nunn’s system under the circumstances of this case. More gener-
ally, the government contends that ample evidence of actual guilt was
before the court at the time it accepted Bowman’s guilty plea and that
UNITED STATES v. BOWMAN 7
Bowman failed to present any credible evidence of actual innocence
at the hearing on his motion to withdraw his guilty plea. The govern-
ment also contends that Bowman failed to present any evidence that
Bowman’s trial counsel was incompetent or failed to provide Bow-
man with close assistance.
Federal Rule of Criminal Procedure 11 authorizes the withdrawal
of a guilty plea before sentencing if "the defendant can show a fair
and just reason for requesting the withdrawal." Fed. R. Crim. P.
11(d)(2)(B). A defendant has no "absolute right" to withdraw a guilty
plea, and the district court has discretion to decide whether a "fair and
just reason" exists upon which to grant a withdrawal. United States
v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000); Moore, 931 F.2d at
248. The most important consideration in resolving a motion to with-
draw a guilty plea is an evaluation of the Rule 11 colloquy at which
the guilty plea was accepted. See United States v. Wilson, 81 F.3d
1300, 1307 (4th Cir. 1996). Thus, when a district court considers the
plea withdrawal motion, "‘the inquiry is ordinarily confined to
whether the underlying plea was both counseled and voluntary’ . . . .
A voluntary and intelligent plea of guilty ‘is an admission of all the
elements of a formal criminal charge,’ . . . and constitutes an admis-
sion of all ‘material facts alleged in the charge.’" United States v. Wil-
lis, 992 F.2d 489, 490 (4th Cir. 1993) (quoting United States v.
Broche, 488 U.S. 563, 569 (1989); McCarthy v. United States, 394
U.S. 459, 466 (1969); and United States v. Johnson, 888 F.2d 1255,
1256 (8th Cir. 1989)). Accordingly, a properly conducted Rule 11
guilty plea colloquy leaves a defendant with a very limited basis upon
which to have his plea withdrawn. As we stated in United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc):
If an appropriately conducted Rule 11 proceeding is to serve
a meaningful function, on which the criminal justice system
can rely, it must be recognized to raise a strong presumption
that the plea is final and binding.
When considering a defendant’s motion to withdraw his guilty plea,
the court may also consider other circumstantial factors that relate to
whether the defendant has advanced a fair and just reason. Thus, we
have articulated the following, nonexclusive list of factors for consid-
eration in deciding a withdrawal motion:
8 UNITED STATES v. BOWMAN
(1) whether the defendant has offered credible evidence that
his plea was not knowing or not voluntary, (2) whether the
defendant has credibly asserted his legal innocence, (3)
whether there has been a delay between the entering of the
plea and the filing of the motion, (4) whether defendant has
had close assistance of competent counsel, (5) whether with-
drawal will cause prejudice to the government, and (6)
whether it will inconvenience the court and waste judicial
resources.
Moore, 931 F.2d at 248.
In this appeal, Bowman rests his argument that the district court
abused its discretion in denying his motion on Moore factors (2), (3),
and (4): whether the defendant has credibly asserted his innocence;
whether there has been a delay between the entering of the plea and
the filing of the motion; and whether the defendant had close assis-
tance of competent counsel. We address these seriatim.
A
Bowman’s principal argument rests on his claim that the toxicol-
ogy report prepared as part of Nunn’s autopsy indicated that Nunn
had no heroin or fentanyl in his system and therefore that Bowman
could not have caused Nunn’s death by giving him heroin laced with
fentanyl. Although Bowman admits that his trial attorney discussed
the toxicology report with him before he pleaded guilty, Bowman
asserts that his decision to plead guilty was not adequately informed
by this discussion because Bowman neither physically saw the report
nor read it in full. But Bowman has presented no explanation why
reading the report would have added anything. Nor has he proffered
any reason why the government’s proposed testimony explaining the
report would be false or irrational. In its opening statement before the
jury, the government acknowledged that the toxicology report failed
to show the presence of heroin, but it stated that it was prepared to
prove, through the testimony of an expert witness, that a negative tox-
icology report was not unusual and that the evidence in fact showed
that Nunn’s death was drug induced.
Whatever the strength of the government’s evidence, however, the
record demonstrates that Bowman was aware of the toxicology report
UNITED STATES v. BOWMAN 9
before tendering his plea and that he discussed the substance of the
report with his attorney. Both Bowman and his attorney admitted this.
Having full notice of this evidence before his plea, Bowman nonethe-
less testified under oath during the Rule 11 plea hearing that he was
in fact guilty of the crime charged in Count 4, charging Bowman with
distributing drugs that caused a death. Bowman stated:
On around about August 15, 1999 a friend of mine named
Mark Nunn came to my house to purchase some heroin. He
was ill and sick and I gave him a bag. He went into my bath-
room and used it in my bathroom and came out, and the
results of using it, the dope, he OD’d.
In addition to this factual confession, two witnesses had already testi-
fied at trial that they came to Bowman’s apartment shortly after Nunn
took the heroin that Bowman had given him and that Bowman admit-
ted to them that he had provided Nunn with the heroin on which Nunn
had fatally overdosed. These two witnesses testified to then helping
Bowman remove Nunn’s body from Bowman’s apartment. Bowman’s
conclusory statement made later at the hearing on the withdrawal
motion that he had lied is thus belied by the record.
With respect to the record relating to Bowman’s guilty plea on the
conspiracy count, the facts again belie Bowman’s statement at the
plea withdrawal hearing that he had lied. At the guilty plea hearing,
Bowman confessed under oath specifically to the illegal conduct
charged in Count 1 as follows:
THE COURT: And did you enter into a conspiracy
that involved at least one kilogram
of heroin?
THE DEFENDANT: Yes, sir.
THE COURT: Tell me in your own words what
you did under the conspiracy count.
THE DEFENDANT: Me and a few other people that was
in the original indictment of 39 peo-
10 UNITED STATES v. BOWMAN
ple or more, a few of them in the
indictment I conspired with and sold
drugs to some of the people in and
out of the indictment, probably was
indicted and some wasn’t indicted.
Through the course and between
that time I might have sold a kilo or
more of heroin.
THE COURT: And you knew it was heroin at the
time you were selling it?
THE DEFENDANT: Yes, sir.
This admission was corroborated by the testimony of four witnesses
who had already testified at the trial. These witnesses testified in labo-
rious detail about hundreds of transactions over a period of four years,
involving the sale of thousands of bags of heroin. One witness alone
testified to buying 3,000-4,000 "bags" of heroin from Bowman
through daily transactions over a period of years. Moreover, there is
simply no evidence in the record to contradict these facts on which
the court relied to accept Bowman’s guilty plea.
Based on this record, we agree with the district court that the
defendant did not "credibly assert[ ] his legal innocence."
B
On the third Moore factor — that there had not been a prejudicial
delay between the entering of the plea and the filing of the motion —
the district court agreed with Bowman that the delay of three months
was not too long. But this single factor, which the district court indi-
cated slightly favored Bowman’s cause, is insufficient to justify a
withdrawal of his plea in view of all the other factors weighing heav-
ily against granting the motion. See Ubakanma, 215 F.3d at 425.
C
Finally, Bowman contends that he did not have the close assistance
of competent counsel, the fourth Moore factor. To prevail on this fac-
UNITED STATES v. BOWMAN 11
tor, Bowman must demonstrate "(1) that his counsel’s performance
‘fell below an objective standard of reasonableness’ and (2) that
‘there [was] a reasonable probability that, but for counsel’s error, he
would not have pleaded guilty and would have insisted on going to
trial.’" United States v. DeFreitas, 865 F.2d 80, 82 (4th Cir. 1989)
(quoting Hill v. Lockhart, 474 U.S. 52, 57, 59 (1985)); see also Uba-
kanma, 215 F.3d at 425. Under this standard, our inquiry is limited
to whether Bowman’s counsel "was reasonable ‘under prevailing pro-
fessional norms,’ and in light of the circumstances." Carter v. Lee,
283 F.3d 240, 249 (4th Cir. 2002) (stating standard in a Sixth Amend-
ment context) (quoting Strickland v. Washington, 466 U.S. 668, 688
(1984)); see also Hill, 474 U.S. at 58 (holding that the two-part
Strickland test applies to motions to withdraw guilty pleas based on
ineffective assistance of counsel).
To satisfy his burden, Bowman again pointed to his lack of specific
knowledge of the contents of the toxicology report; to the fact that his
trial counsel did not hire an expert witness to testify to other causes
of Nunn’s death; and to his trial counsel’s efforts in convincing him
to plead guilty to Counts 1 and 4.
Again, nothing in the record supports Bowman’s contentions. To
the contrary, Bowman asserted, and his counsel testified to the fact,
that Bowman and his counsel discussed the toxicological report and
its importance. Whether counsel should have retained an expert is
speculative, and this argument falls into the category of merely
second-guessing a defense strategy. Bowman’s counsel testified at the
withdrawal hearing that he did not seek to hire an expert witness pre-
cisely because the government’s own toxicology report was so weak
that it could well be used to provide a strong defense on Bowman’s
behalf. His counsel was genuinely worried that an additional expert
witness might actually work to Bowman’s disadvantage. Moreover,
he testified that he advised Bowman that if Bowman disagreed with
the strategy, Bowman could and should hire new counsel.
As for recommending the decision to plead guilty, such a recom-
mendation was a judgment call that was discussed with Bowman. The
record shows that Bowman and his counsel discussed the relative
strengths and weaknesses of the case and the sentences that Bowman
was facing, both under the plea agreement and as a result of a convic-
12 UNITED STATES v. BOWMAN
tion at trial. If Bowman were to fulfill his obligations under the pro-
posed plea agreement, he would receive a sentence of 22 years’
imprisonment. On the other hand, if he were to be found guilty at trial
on either Count 1 or Count 4, he would face a minimum sentence of
20 years’ imprisonment and a maximum sentence of life imprison-
ment. This record simply fails to support Bowman’s contention that
he suffered from a lack of close assistance of competent counsel.
At bottom, the record relevant to Bowman’s withdrawal motion
reveals at most an attempt by Bowman to second guess his guilty
plea, for whatever reason, by manipulating known beneficial evidence
contained in the toxicology report and by claiming that he lied to the
court. The district court was well within its discretion to reject this
effort.
III
The Rule 11 colloquy is designed to provide a structure to protect
the defendant against making an uninformed and involuntary decision
to plead guilty and to protect the public from an unjust judgment of
guilty when a public trial has not been conducted. Because a trial is
not held when a defendant pleads guilty, the court must be able to rely
on the defendant’s self-interest and his truthful testimony in deciding
to find the defendant guilty based on a guilty plea. Moreover, to avoid
dependence on pre-colloquy statements, agreements, advice, and mis-
understandings, the court at the Rule 11 colloquy is required to review
with the defendant de novo all of the material components of the
guilty plea. As a consequence, when a defendant says he lied at the
Rule 11 colloquy, he bears a heavy burden in seeking to nullify the
process. We repeat what we said before, that an appropriately con-
ducted Rule 11 colloquy can only serve meaningfully if the court is
entitled to rely on the defendant’s statements made under oath to
accept a guilty plea. United States v. Lambey, 974 F.2d 1389, 1394
(4th Cir. 1992) (en banc); see also United States v. Wilson, 81 F.3d
1300, 1307 (4th Cir. 1996) (noting that the key to whether a motion
to withdraw a guilty plea should be granted is "whether or not the
Rule 11 proceeding was properly conducted"). To view the Rule 11
plea colloquy as a procedural game in which pieces are moved and
manipulated to achieve a result that can beat the system established
for providing due process to the defendant undermines that very pro-
UNITED STATES v. BOWMAN 13
cess. And when a defendant asserts, in support of a motion to with-
draw a guilty plea, that he lied in pleading guilty — and repeatedly
so — he provides an example of such manipulation.
The judgment of the district court is
AFFIRMED.