United States v. Grant ( 1997 )

REVISED
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 96-10981
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WALTER V. GRANT, JR.,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
___________________________________________________
July 9, 1997
Before DAVIS, STEWART, and PARKER, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Walter V. Grant Jr. appeals the district court’s denial of his
motion to withdraw his guilty plea to a tax evasion charge. We
affirm.
I.
Grant, a Dallas, Texas, minister under investigation by the
IRS for suspected tax evasion, entered into a plea agreement with
the government. Pursuant to the agreement, Grant pleaded guilty to
one count of filing a false 1990 tax return, in violation of 26
U.S.C. § 7206(1). At a plea hearing on April 15, 1996, the
district court placed Grant under oath and questioned him as
1
required by Fed. R. Crim. P. 11. Grant stated that he understood
the nature of the charge against him and the consequences of
pleading guilty, including the possibility of 10 months to 16
months imprisonment. He also stipulated to the substantive facts
underlying the charge. The court found that the plea was made
“knowingly, freely, and voluntarily” and the plea was entered, but
the court deferred accepting Grant’s plea and the plea agreement
until it reviewed the presentence report and an incriminating
videotape made by the IRS.
On July 22, 1996, the scheduled date of sentencing, Grant
moved to withdraw his plea of guilty, claiming that he was innocent
of the tax evasion charge. After an evidentiary hearing, the
district court denied Grant’s motion to withdraw his plea and
accepted the plea and the plea agreement.1 Grant was sentenced to
16 months imprisonment and one year of supervised release and
ordered to pay fines totaling $60,812.88. In conjunction with his
supervised release, the court imposed 100 hours of community
service and required Grant to disclose information relating to his
financial status on a weekly basis. The court also required Grant
to publish notice of the offense in a publication of Grant’s
evangelistic association. However, on April 2, 1997, the district
court entered an amended judgment deleting the notification
requirement.
1
Brenda Grant, Walter Grant’s wife, pleaded guilty to one
count of misprision of a felony, in violation of 18 U.S.C. § 4. The
district court permitted Brenda Grant to withdraw her guilty plea,
noting that it had intended to reject her plea agreement. Brenda
Grant was subsequently tried and acquitted.
2
Grant appeals the district court’s denial of his motion to
withdraw his plea as well as the conditions of his supervised
release.
II.
A.
Under Rule 32(e) of the Federal Rules of Criminal Procedure,
the district court may grant a motion to withdraw a guilty plea
before a defendant is sentenced if the defendant shows “any fair
and just reason.” The denial of a Rule 32(e) motion is reviewed
for abuse of discretion. United States v. Henderson, 72 F.3d 463,
465 (5th Cir. 1995).
There is no absolute right to withdraw a guilty plea. United
States v. Badger, 925 F.2d 101, 103 (5th Cir. 1991). In reviewing
the denial of a motion to withdraw a guilty plea under Rule 32(e),
this court traditionally considers seven relevant factors: (1)
whether the defendant asserted his innocence, (2) whether
withdrawal would prejudice the government, (3) whether the
defendant delayed in filing the withdrawal motion, (4) whether
withdrawal would inconvenience the court, (5) whether adequate
assistance of counsel was available, (6) whether the plea was
knowing and voluntary, and (7) whether withdrawal would waste
judicial resources. United States v. Carr, 740 F.2d 339, 343-44
(5th Cir. 1984), cert. denied, 471 U.S. 1004 (1985). The district
court makes its determination based on a totality of circumstances.
Id. at 344.
To support his motion, Grant asserted that he was innocent of
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the charge against him. He cited no specific facts; instead, he
simply stated that “down deep I’ve always felt I was innocent. . .
. And I can’t in good conscience stand up here and say that I’m
guilty if I feel in my heart that I’m innocent.” This claim of
innocence, standing alone, does not justify withdrawal. United
States v. Rojas, 898 F.2d 40, 43 (5th Cir. 1990). And, as the
district court noted, the remaining Carr factors support the denial
of Grant’s motion. Grant delayed more than three months before
filing his eleventh-hour motion; during that time, he gave no
indication to the court that he was considering withdrawing his
plea. See Carr, 740 F.2d at 345 (concluding that defendant’s
filing of motion 22 days after plea was entered was untimely). By
the day of sentencing, the court had reviewed the presentence
report, voluminous objections, responses to those objections, and
various materials submitted by Grant. Plea withdrawal would have
disrupted the trial docket, inconveniencing the court and wasting
additional judicial resources. After reviewing the record, we
cannot conclude that, under the Carr test, the district court
abused its discretion in denying Grant’s motion.
However, Grant contends that application of the Carr test is
inappropriate. In Carr, the defendant sought to withdraw a guilty
plea that had already been accepted. Here, in contrast, the
district court deferred acceptance of both the plea and the plea
agreement until it reviewed the presentence report. Grant argues
that because the plea had not been accepted, it could be withdrawn
at any time by either party.
4
At the outset, we note that neither Rule 32(e), which governs
plea withdrawal, nor Rule 11, which governs plea agreements
generally, indicates whether a plea must be accepted, rather than
merely entered, before the “fair and just reason” standard
applies.2 Nor has any court spoken clearly on this issue. See
United States v. Washman, 66 F.3d 210, 212 (9th Cir. 1995) (stating
that a defendant should be allowed to withdraw a plea without
offering any reason when plea has not been accepted); United States
v. Ewing, 957 F.2d 115, 118 n.2 (4th Cir.) (noting, in dicta, that
“[t]here is no reason apparent to us that the district court could
not have deferred acceptance of the guilty plea as well as the plea
agreement until consideration of the presentence report”), cert.
denied, 505 U.S. 1210 (1992).3 However, after reviewing relevant
case law and the language of pertinent rules, we conclude that Rule
32(e)’s “fair and just reason” standard was triggered upon entry of
Grant’s plea and that Grant failed to satisfy that standard.
This court and others have considered an analogous question:
whether a plea may be withdrawn as a matter of right after its
acceptance by the court but before acceptance of the plea
agreement. In United States v. Hyde, 117 S. Ct. 1630 (1997), the
Supreme Court, resolving a circuit split, applied Rule 32(e)’s
2
Rule 32(e) provides:
If a motion to withdraw a plea of guilty or nolo contendere is
made before sentence is imposed, the court may permit the plea
to be withdrawn if the defendant shows any fair and just
reason.
3
The Ninth Circuit’s reasoning in Washman has been called into
question by the Supreme Court’s decision in United States v. Hyde,
117 S. Ct. 1630 (1997), discussed below.
5
“fair and just reason” standard to a defendant’s attempt to
withdraw his accepted plea before acceptance of the plea agreement.
The Ninth Circuit had held that the defendant had an absolute right
to withdraw his guilty plea before the district court accepted the
plea agreement. United States v. Hyde, 92 F.3d 779, 781 (9th Cir.
1996), rev’d, 117 S. Ct. 1630 (1997). It reasoned that by
deferring its decision on whether to accept the plea agreement, the
district court automatically deferred accepting the guilty plea
because the guilty plea and plea agreement are “‘inextricably bound
up together.’” Id. at 780 (citation omitted).
In reversing, the Supreme Court first examined the language of
Rule 11 and concluded that, by its terms, the rule distinguished
between pleas and plea agreements. By failing to acknowledge those
distinctions, the Court reasoned, the Ninth Circuit stripped Rule
11 of its intended effect. Hyde, 117 S. Ct. at 1634. Second, the
Court noted that the appellate decision rendered the Rule 11 plea
hearing inconsequential:
After the defendant has sworn in open court that he actually
committed the crimes, after he has stated that he is pleading
guilty because he is guilty, after the court has found a
factual basis for the plea, and after the court has explicitly
announced that it accepts the plea, the Court of Appeals would
allow the defendant to withdraw his guilty plea simply on a
lark. . . . We think the Court of Appeals’ holding would
degrade the otherwise serious act of pleading guilty into
something akin to a move in a game of chess.
Id. The Court ultimately held that when the district court has
accepted a defendant’s plea but deferred accepting the plea
agreement, the plea may not be withdrawn unless the defendant
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provides a “fair and just reason” under Rule 32(e).4 See also
Ewing, 957 F.2d at 118; United States v. Ellison, 798 F.2d 1102,
1104 (7th Cir. 1986).
We believe that the Supreme Court’s reasoning in Hyde applies
with equal force here. At the Rule 11 plea colloquy, Grant was
questioned under oath about his understanding of the charge and the
facts underlying it. Grant stated that he understood the
consequences of pleading guilty, admitted that he had understated
his income on his 1990 federal tax return in violation of 26 U.S.C.
§ 7206(1), and pleaded guilty. Responding to the district court’s
questioning as to the voluntariness of his plea, Grant repeatedly
acknowledged his guilt. In conducting this questioning, the
district court meticulously satisfied its obligations under Rule
11. Allowing Grant to withdraw his plea without a fair and just
reason would defeat the purpose of the plea hearing and diminish
the significance of entering pleas. As the Supreme Court
explained, such a result is contrary to Rule 11's intended purpose:
‘Were withdrawal automatic in every case where the defendant
decided to alter his tactics and present his theory of the
case to the jury, the guilty plea would become a mere gesture,
a temporary and meaningless formality reversible at the
defendant’s whim. In fact, however, a guilty plea is no such
trifle, but a “grave and solemn act,” which is “accepted only
with care and discernment.”’
4
In United States v. Ocanas, 628 F.2d 353, 358 (5th Cir.
1980), cert. denied, 451 U.S. 984 (1981), we held that either party
to a plea agreement could modify its position until the plea and
plea bargain were accepted by the court. This reasoning is
contrary to our decision in United States v. Foy, 28 F.3d 464 (5th
Cir.), cert. denied, 513 U.S. 1031 (1994), discussed below, and,
more importantly, it is undermined by the Supreme Court’s decision
in Hyde.
7
Hyde, 117 S. Ct. at 1634 (citations omitted).
Grant’s position is undermined further by case law
characterizing the acceptance of a plea as provisional in nature
when the plea is accepted before the plea agreement. In deferring
consideration of the plea agreement, the district court acted
pursuant to § 6B1.1(c) of the Sentencing Guidelines, which requires
a sentencing court to defer its decision on whether to accept a
plea agreement under Fed. R. Crim. P. 11(e)(1) “until there has
been an opportunity to consider the presentence report.” We
examined § 6B1.1(c) in United States v. Foy, 28 F.3d 464 (5th
Cir.), cert. denied, 513 U.S. 1031 (1994); there, the district
court accepted a plea but later rejected the plea agreement after
reviewing the presentence report. This court concluded that, under
§ 6B1.1(c), a district court’s acceptance of a guilty plea is
contingent upon the court’s review of the presentence report and,
therefore, that the court’s denial of the defendant’s motion to
withdraw his guilty plea was proper. Id. at 471. Notably,
however, in Foy, we advised district courts that “the better
practice would certainly be for the district court to expressly
point out at the Rule 11 hearing that although the plea met all the
requirements for acceptance . . . and was provisionally accepted,
final acceptance was contingent on the court’s review of the PSR.”
Id. The district court here acted pursuant to our recommendation
in Foy; it expressly found that all of the Rule 11 requirements
were present and deferred its acceptance of the plea until it
reviewed the presentence report. We can see no practical
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distinction between accepting a plea provisionally until a
presentence report has been reviewed and deferring acceptance of a
defendant’s plea for the same reason.
In sum, we conclude that the “fair and just reason” standard
is properly applied when the defendant agreed to a plea agreement
and entered a plea pursuant to that agreement and Rule 11. Because
Grant entered his plea knowingly, freely, and voluntarily and
because he failed to supply a fair and just reason for withdrawing
the plea, the district court’s denial of his motion to withdraw his
plea was not an abuse of discretion.5
5
Under Rule 11, there are three types of plea agreements.
Under Rule 11(e)(1)(A), the government promises to move for
dismissal of other charges. Under Rule 11(e)(1)(B), the government
may agree to recommend that a particular sentence be imposed if the
defendant enters a plea of guilty, with the understanding that such
a recommendation is not binding on the court. “If the agreement is
of the type specified in subdivision (e)(1)(B), the court shall
advise the defendant that if the court does not accept the
recommendation or request the defendant nevertheless has no right
to withdraw the plea.” Fed. R. Crim. P. 11(e)(2) (emphasis added).
Finally, under Rule 11(e)(1)(C), the government agrees that the
defendant should receive a specific sentence.
If the court rejects an (A)- or (C)-type agreement, the
defendant must be allowed to withdraw his plea. However, in a (B)-
type agreement, “there is no `disposition provided for’ . . . so as
to make the acceptance provisions of subdivision (e)(3) applicable,
nor is there a need for rejection with opportunity for withdrawal
under subdivision (e)(4) in light of the fact that the defendant
knew the nonbinding character of the recommendation or request.”
Fed. R. Crim. P. 11 advisory committee’s note; see also United
States v. Clark, 931 F.2d 292, 296 (5th Cir. 1991).
Here, the nature of the plea agreement is a matter of some
confusion. The district court apparently viewed the plea agreement
as a (C)-type agreement and stated at the Rule 11 plea colloquy
that “this being an 11(e)(1)(C) plea agreement, the Court is going
to defer acceptance of each of your pleas of guilt until a
presentence investigation is conducted and I have a chance to
review that.” While the agreement governing Grant’s wife, Brenda
Grant, was a (C)-type agreement, Grant’s agreement provided that
“the court is not bound by the parties’ calculations of the
probable offense level, and that the court could determine that the
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B.
Grant also challenges the court’s financial disclosure
requirement. During Grant’s one-year supervised release, the
court’s sentencing order requires him to:
disclose to the probation office on at least a weekly basis,
all information and documentation relating to any monetary or
financial transaction, both business and personal, in which
the defendant, any affiliated entity, or any person
representing the defendant or affiliated entity participates.
The defendant shall disclose all documents and/or agreements
which may affect the defendant’s financial condition, both
personal and business. The Court shall be informed weekly of
all money coming in, its source (in detail) and where it is
spent, in detail.
Grant contends that this requirement offends his free exercise of
religion under the First Amendment.6
appropriate offense level is higher or lower than the parties’
estimates.” However, Grant’s agreement also included a guaranteed
guideline range--10 months to 16 months--and provided that Grant
could withdraw his plea if the court determined that the sentencing
level was higher than 12, thus requiring a more stringent sentence.
Therefore, the agreement has elements of both (B)- and (C)-type
agreements.
For our purposes, however, this is immaterial because our
reasoning applies to all three types of agreements. Regardless of
the type of agreement at issue, the district court usually must
review the presentence report before accepting the agreement. See
U.S.S.G. § 6B1.1 (“The court shall defer its decision to accept or
reject any nonbinding recommendation pursuant to Rule (e)(1)(B),
and the court’s decision to accept or reject any plea agreement
pursuant to Rules 11(e)(1)(A) and 11(e)(1)(C) until there has been
an opportunity to consider the presentence report, unless a report
is not required under § 6A1.1.”). Any acceptance of the plea
before a review of the presentence report is at most a provisional
acceptance. Thus, the court’s decision to defer acceptance of a
plea, regardless of the type of plea agreement presented, is of no
consequence.
6
Grant also contends that this requirement violates the
Religious Freedom Restoration Act (RFRA). The Supreme Court’s
decision in City of Boerne v. Flores, 1997 WL 345322 (June 25,
1997), striking down RFRA as it applies to state and local
governments, arguably casts some doubt on the continued viability
of that legislation in the federal context. We need not address
10
The court acted pursuant to § 5D1.3 of the Sentencing
Guidelines. Under that provision:
The court may impose other conditions of supervised release,
to the extent that such conditions are reasonably related to
(1) the nature and circumstances of the offense and the
history and characteristics of the defendant, and (2) the need
for the sentence imposed to afford adequate deterrence to
criminal conduct, to protect the public from further crimes of
the defendant, and to provide the defendant with needed
educational or vocational training, medical care, or other
correctional treatment in the most effective manner.
U.S.S.G. § 5D1.3(b). Section 5D1.3(c) states that “[r]ecommended
conditions of supervised release are set forth in § 5B1.4.” In
turn, § 5B1.4(b)(18) of the Sentencing Guidelines provides that
“[i]f the court . . . orders the defendant to pay a fine, it is
recommended that the court impose a condition requiring the
defendant to provide the probation officer access to any requested
financial information.”
Grant argues that the disclosure condition requires him and
all churches with which he is affiliated to provide financial
information to the probation officer; such a requirement, he
claims, substantially burdens his free exercise of religion because
any church through which he exercises his beliefs will be subjected
to the order. However, Grant reads the order too broadly. While
the order requires Grant to report income that he receives
personally or on behalf of the two closely-held church-related
entities that he controls, it does not require any church to
provide the probation officer with financial information. We
this issue; because we conclude that the disclosure order does not
substantially burden Grant’s free exercise of religion, his RFRA
claim must fail.
11
conclude that the disclosure order does not substantially burden
Grant’s free exercise of religion.
C.
Grant initially challenged the court’s requirement that he
publish notice of the offense in a publication of Grant’s
evangelistic association. However, on April 2, 1997, nearly a year
after its initial judgment, the district court entered an amended
judgment deleting the notification requirement. While we have no
quarrel with the amendment, the court lacked jurisdiction to take
such action. See Fed. R. Crim. P. 35(c) (permitting court to
correct sentence within seven days after imposing sentence).
Therefore, we remand this case to the district court to give it
jurisdiction to re-enter its order.
III.
The judgment of the district court is AFFIRMED except that the
case is REMANDED to permit the district court to re-enter its April
2, 1997 order.
AFFIRMED AND REMANDED.
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