United States v. McTIERNAN ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50430
Plaintiff-Appellee, D.C. No.
v.  CR-06-00259-DSF-
JOHN MCTIERNAN, 01
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted
August 4, 2008—Pasadena, California
Filed October 21, 2008
Before: Stephen Reinhardt, Roger J. Miner,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Miner
*The Honorable Roger J. Miner, Senior United States Circuit Judge for
the Second Circuit, sitting by designation.
14655
UNITED STATES v. MCTIERNAN 14659
COUNSEL
Charles M. Sevilla, Law Office of Charles Sevilla, San Diego,
California, for the defendant-appellant.
S. Todd Neal, Sullivan, Hill, Lewin, Rez & Engel, San Diego,
California, for the defendant-appellant.
Christine C. Ewell, Robert E. Dugdale, Assistant United
States Attorneys (Thomas P. O’Brien, United States Attorney
for the Central District of California), Los Angeles, Califor-
nia, for the plaintiff-appellee.
OPINION
MINER, Circuit Judge:
Defendant-appellant John McTiernan (“Defendant” or
“McTiernan”) appeals from a judgment of conviction and sen-
tence entered in the United States District Court for the Cen-
tral District of California following a guilty plea to a single-
count information charging him with making a false statement
to an FBI agent in violation of 18 U.S.C. § 1001. Prior to sen-
tencing, McTiernan moved to withdraw his guilty plea, claim-
ing that he had not been informed of his right to seek
suppression, pursuant to 18 U.S.C. §§ 2511 and 2515, of an
incriminating recording seized by the government.
In an order entered September 25, 2007, the district court
denied McTiernan’s motion to withdraw his guilty plea, find-
ing that McTiernan simply changed his mind once he learned
that the government intended to seek a custodial sentence.
The district court then sentenced McTiernan to a four-month
term of imprisonment, a two-year period of supervised
release, a fine of $100,000, and a special assessment of $100.
14660 UNITED STATES v. MCTIERNAN
On appeal, McTiernan claims that he should have been
allowed to withdraw his guilty plea because he was not
informed by his previous counsel at or before the time of his
guilty plea that he could move to suppress the incriminating
recording seized by the government and allegedly used to per-
suade McTiernan to plead guilty. McTiernan claims that such
a motion would have been successful. He also contends that
the district court clearly erred by determining that his effort
to withdraw his guilty plea was based on an improper motive.
For the reasons that follow, we vacate the judgment of the dis-
trict court and remand the case so that the court may conduct
a full evidentiary hearing as to whether there is a fair and just
reason for McTiernan to withdraw his plea.
BACKGROUND
On February 13, 2006, McTiernan was interviewed by tele-
phone by Special Agent Stanley Ornellas of the Federal
Bureau of Investigation (“FBI”) in connection with an investi-
gation into former private investigator Anthony Pellicano’s
use of illegal wiretapping. Ornellas asked whether McTiernan
had knowledge of Pellicano’s wiretapping activities and had
previously discussed wiretapping with Pellicano. In response,
McTiernan stated that he had never discussed wiretapping
with Pellicano, that Pellicano had never mentioned his ability
to wiretap telephone calls, and that he had used Pellicano’s
services only once, in connection with his divorce.
The responses made to Special Agent Ornellas’ inquiries
were false. McTiernan later admitted that he had hired Pelli-
cano in or around August 2000 and paid him at least $50,000
to conduct an illegal wiretap of two individuals, one of whom
was Charles Roven, the producer of a movie that McTiernan
was then directing. Pellicano installed the wiretaps, listened to
the subjects’ business and personal telephone calls, and
reported their contents to McTiernan.
Several weeks after Ornellas interviewed McTiernan, the
government contacted McTiernan and suggested that he retain
UNITED STATES v. MCTIERNAN 14661
an attorney. On March 4, 2006, McTiernan retained the ser-
vices of John Carlton, Esq. On March 16, 2006, McTiernan
met with Carlton and the government regarding McTiernan’s
statements to Special Agent Ornellas. At that meeting, the
government revealed its evidence of discussions between
McTiernan and Pellicano regarding the wiretapping. The evi-
dence included a digital recording that Pellicano had made of
a telephone conversation between himself and McTiernan (the
“Recording”). The Recording, which was made on August 17,
2000, was recovered by the FBI from Pellicano’s computer
pursuant to a search warrant in the related investigation and
prosecution of Pellicano, who was charged with over one-
hundred Racketeer Influenced and Corrupt Organizations
(RICO) Act violations, bribery of police officers, and wiretap-
ping. In the Recording, Pellicano informed McTiernan, who
at that time was directing a movie in Canada, that he had
intercepted “tons of stuff” and that he could not “even listen
to all of them.” McTiernan instructed Pellicano to focus on
instances where the producer was “saying one thing to the stu-
dio and saying something else to others,” and said that catch-
ing the producer “bad mouthing” the “studio guys” would
“really be useful.”
On March 24, 2006, McTiernan entered into a written plea
and cooperation agreement with the government, in which he
agreed to plead guilty to a forthcoming information charging
him with making a false statement in violation of 18 U.S.C.
§ 1001(a)(2). The plea agreement set forth, inter alia, the ele-
ments of the offense, the statutory maximum sentence, the
constitutional rights that McTiernan would be giving up, the
stipulated Sentencing Guideline factors, and the factual basis
for the plea. McTiernan signed the agreement and the follow-
ing declaration, attesting that his attorney had advised him of
possible defenses and that he was satisfied with his legal rep-
resentation:
I have read this agreement and carefully discussed
every part of it with my attorney. I understand the
14662 UNITED STATES v. MCTIERNAN
terms of this agreement, and I voluntarily agree to
those terms. My attorney has advised me of my
rights, of possible defenses, of the Sentencing
Guideline provisions, and of the consequences of
entering into this agreement. No promises or induce-
ments have been made to me other than those con-
tained in this agreement. No one has threatened or
forced me in any way to enter into this agreement.
Finally, I am satisfied with the representation of my
attorney in this matter.
On April 3, 2006, the government filed a single-count
information against McTiernan, charging him with making a
false statement to an FBI agent in violation of 18 U.S.C.
§ 1001.
On April 17, 2006, pursuant to the written plea agreement
with the government, McTiernan re-executed the written
waiver of his right to be indicted by a grand jury on the
charge and pleaded guilty to the charged offense. Also on
April 17, 2006, the district court conducted McTiernan’s Rule
11 hearing. During the hearing, McTiernan’s attorney, in
response to the court’s inquiries, stated: that he had discussed
the contents of the plea agreement with McTiernan before
McTiernan signed it; that he had reviewed the facts of the
case with McTiernan; that he had pursued potential defenses
with McTiernan; and that he had advised McTiernan concern-
ing the legality or admissibility of any statements or confes-
sions or other evidence the government had against
McTiernan. McTiernan’s attorney further stated his belief that
McTiernan was entering his plea freely and voluntarily and
with full knowledge of the charge and the consequences of the
plea.
The court also questioned McTiernan about his attorney’s
representation and read aloud the stipulated factual basis from
McTiernan’s plea agreement. McTiernan confirmed that he
and his attorney had discussed his case candidly and that his
UNITED STATES v. MCTIERNAN 14663
attorney had considered and advised McTiernan as to the
existence of any possible defenses. McTiernan also confirmed
that he understood the consequences of his plea and that he
was competent to make the plea. He then allocuted to the
facts, admitting that he knowingly made false statements to
the FBI agent.
After making a full inquiry in compliance with Rule 11, the
district court found at the conclusion of the hearing that
McTiernan was fully competent and capable of entering an
informed plea; that he was aware of the nature of the charges
and the consequences of the plea; that the plea of guilty was
knowingly, voluntarily, and intelligently made with a full
understanding of the nature of the charge, the consequences
of the plea, and McTiernan’s constitutional rights; and that the
plea was supported by an independent factual basis containing
each of the essential elements of the offense. The court then
accepted the plea and ordered that it be entered.
After requesting and obtaining a continuance of his sen-
tencing date, McTiernan sought, in May 2007, another contin-
uance of his sentencing date. On this occasion, the
government informed McTiernan that it would not agree to
further continuances of his sentencing date because it was dis-
satisfied with his failure to provide truthful cooperation to the
government in connection with his offense.
On June 28, 2007, eleven days before McTiernan was
scheduled to be sentenced, S. Todd Neal, Esq. (“Neal”),
advised the government that he would be substituted for Carl-
ton as McTiernan’s new counsel and that he needed additional
time to prepare for sentencing. Neal informed government
counsel that he did not intend to seek to withdraw McTier-
nan’s plea. In light of that representation, the government
agreed to continue McTiernan’s sentencing, and a new sen-
tencing date was set for September 10, 2007.
After the government agreed to this continuance, it advised
Neal that McTiernan had lied during his proffer interviews
14664 UNITED STATES v. MCTIERNAN
and that if McTiernan continued to lie, the government would
seek a custodial sentence in his case. The government
repeated this concern during an August 14, 2007, meeting
with Neal’s associate.
On August 22, 2007, after the government had notified
defense counsel that it would not move for a downward
departure based on cooperation and would seek a custodial
sentence for McTiernan, McTiernan’s counsel informed the
government for the first time of McTiernan’s plan to file a
motion to withdraw his guilty plea and thereafter to suppress
the Recording.
On August 28, 2007, the government filed a sentencing
position paper advocating for the imposition of a six-month
term of imprisonment, the maximum sentence the government
could seek under the terms of the plea agreement it entered
with McTiernan.
McTiernan then moved to withdraw his guilty plea. The
motion came approximately seventeen months after the plea
but only two months after Neal was retained. McTiernan
claimed that he was entitled to withdraw his plea because his
former counsel had provided ineffective assistance. Specifi-
cally, McTiernan claimed that his former counsel (1) failed to
obtain any discovery materials from the government prior to
the time McTiernan entered his pre-indictment plea; and (2)
failed to advise him that he could have sought to suppress the
Recording on the ground that the Recording was made by Pel-
licano without McTiernan’s knowledge and consent and for
an allegedly “criminal or tortious purpose,” in violation of
Title III and 18 U.S.C. § 2515. In support of the motion,
McTiernan submitted a declaration of his former counsel,
Carlton. Regarding suppression, Carlton’s declaration was
limited to a statement that he “did not see any basis for sup-
pressing the [Recording] under the wiretap statute, and [that
he] could not predict that any such basis would be discovered
if [McTiernan] decided to reject the government’s offer and
UNITED STATES v. MCTIERNAN 14665
proceed with the case.” In what he claimed was further sup-
port for his motion, McTiernan referred to another criminal
case involving Pellicano’s illegal wiretap scheme. In that
case, defendant moved, albeit unsuccessfully, to suppress tape
recordings that Pellicano made of their telephone conversa-
tions.
On September 24, 2007, the district court held a hearing on
McTiernan’s motion to withdraw his guilty plea. The court
denied the motion, immediately proceeded to sentencing, and
sentenced McTiernan to a term of imprisonment of four
months, to be followed by a two-year period of supervised
release. The district court further ordered that McTiernan pay
a $100,000 fine and a $100 special assessment.
The following day, on September 25, 2007, the district
court issued a written order providing its reasons for the
denial of McTiernan’s motion to withdraw his guilty plea. In
its order, the court noted that the grounds raised by McTier-
nan in support of his motion were “many, varied, and muta-
ble” but that each had the common thread that none of them
provided a proper ground, supported by reliable evidence, to
allow McTiernan to withdraw his guilty plea.
First, the district court rejected McTiernan’s “evolving
laundry list of complaints about his former counsel,” finding
that McTiernan’s former counsel provided neither erroneous
advice nor ineffective assistance in representing McTiernan.
The court ruled that McTiernan’s claims concerning his for-
mer counsel’s performance were either immaterial or — in
the case of his allegation that his former counsel failed to dis-
cuss the charge or available defenses to it with McTiernan
prior to the guilty plea — contradicted by other evidence. The
court further found that McTiernan’s claims concerning his
former counsel’s performance were dishonest, noting:
McTiernan is clearly willing to lie whenever it
suits his purpose, whether or not he has been advised
14666 UNITED STATES v. MCTIERNAN
of the ramifications of doing so. He has several times
admitted that he lied to the FBI agent, and he is
either lying to this Court now or he lied when sign-
ing the plea agreement and entering his plea in open
court [concerning what he had and had not been told
by his former counsel].
(footnote omitted).
The court also rejected McTiernan’s claim that he should
be allowed to withdraw his guilty plea so that he would be
able to bring a motion to suppress the Recording in which
they discussed Pellicano’s plan to wiretap an individual ille-
gally on McTiernan’s behalf. The district court also found that
Carlton had discussed a possible suppression motion prior to
McTiernan’s guilty plea and that such a motion, if brought,
would not be meritorious:
McTiernan argues that his desire to obtain suffi-
cient evidence to entitle him to a hearing on a motion
to suppress the recording of his conversation with
Pellicano constitutes a “fair and just reason” to per-
mit withdrawal of his guilty plea. But this Court has
already made clear that much of the alleged support
for this proposed motion doesn’t even come close to
entitling another vigorously represented defendant to
an evidentiary hearing — much less suggesting that
[McTiernan] might ultimately prevail. If anything,
that Pellicano never used the [R]ecording to black-
mail McTiernan detracts from Christiansen’s — and
McTiernan’s — request for suppression.
The Court does not agree that speculation con-
cerning a criminal or tortious purpose for Pellicano’s
recordings is a “fair and just reason” for permitting
withdrawal of the plea. McTiernan does not suggest
he has new evidence, and Title III was certainly the
law at the time of McTiernan’s plea. Cf. Ortega-
UNITED STATES v. MCTIERNAN 14667
Ascanio, 376 F.3d at 885-86 (plea may be withdrawn
where post-plea change in law would cause dis-
missal of indictment). Therefore, his only hope is
again to claim ineffective assistance of counsel.
However, McTiernan’s former counsel has testified
by declaration that he advised McTiernan on the
topic of possible suppression of the recording —
concluding that he did not see any basis for sup-
pressing the recording and could not predict that any
basis would be discovered if McTiernan chose to go
to trial. For the reasons described above, the Court
accepts Carlton’s declaration testimony and rejects
McTiernan’s.
(footnotes omitted).
The court determined that in light of the chronology of
events in the case and the court’s finding “that McTiernan’s
alleged other reasons for seeking withdrawal lack credibility,
the most reasonable conclusion is that McTiernan seeks to
withdraw his plea because the government has asked for a
custodial sentence.” (footnote omitted). As the court correctly
found, “[t]his is unquestionably not valid grounds to grant
permission to withdraw a plea.”
The judgment of the district court was entered September
29, 2007, and McTiernan filed his timely notice of appeal on
October 2, 2007. McTiernan is currently free on bail pending
the result of this appeal.
DISCUSSION
A district court’s denial of a motion to withdraw a guilty
plea is reviewed for abuse of discretion. United States v. Ruiz,
257 F.3d 1030, 1033 (9th Cir. 2001) (en banc); United States
v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995). However, find-
ings of fact supporting the district court’s exercise of its dis-
cretion are reviewed for clear error. See United States v.
14668 UNITED STATES v. MCTIERNAN
Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003). The defendant
bears the burden of establishing that withdrawal is warranted.
FED. R. CRIM. P. 11(d)(2)(B); United States v. Davis, 428 F.3d
802, 805 (9th Cir. 2005).
[1] Federal Rule of Criminal Procedure 11(d)(2)(B) pro-
vides that a defendant may withdraw a plea of guilty prior to
the imposition of sentence if he “can show a fair and just rea-
son for requesting the withdrawal.” While the defendant is not
permitted to withdraw his guilty plea “simply on a lark,”
United States v. Hyde, 520 U.S. 670, 676-77 (1997), the “fair
and just” standard is generous and must be applied liberally.
“Prior to sentencing, the proper inquiry is whether the defen-
dant has shown a fair and just reason for withdrawing his plea
even if the plea is otherwise valid.” Davis, 428 F.3d at 806.
Although procedural errors and intervening circumstances
are commonly raised as grounds for withdrawal, each case
must be reviewed in the context in which the motion arose to
determine whether, ultimately, a “fair and just” reason exists.
In this regard, the Advisory Committee on Criminal Rules has
adopted guidelines developed in the case law:
Although the terms “fair and just” lack any pretense
of scientific exactness, guidelines have emerged in
the appellate cases for applying this standard.
Whether the movant has asserted his legal innocence
is an important factor to be weighed, as is the reason
why the defenses were not put forward at the time of
original pleading. The amount of time which has
passed between the plea and the motion must also be
taken into account.
FED. R. CRIM. P. 32 advisory committee’s note (1983) (cita-
tions and internal quotation marks omitted).
[2] In this Circuit, “[f]air and just reasons for withdrawal
include inadequate Rule 11 plea colloquies, newly discovered
UNITED STATES v. MCTIERNAN 14669
evidence, intervening circumstances, or any other reason for
withdrawing the plea that did not exist when the defendant
entered his plea.” Davis, 428 F.3d at 805 (internal quotation
marks omitted). Erroneous or inadequate legal advice may
also constitute a fair and just reason for plea withdrawal, even
without a showing of prejudice, when the motion to withdraw
is made presentence. Id. at 806. Where a defendant shows
“that his counsel’s gross mischaracterization [of a possible
sentence] plausibly could have motivated his decision to plead
guilty[,] [n]othing in Rule 11(d)(2)(B) requires a defendant to
show more in order to satisfy the ‘fair and just reason’ stan-
dard.” Id. at 808.
[3] Here, McTiernan claims that he was never made aware
by his counsel at any time prior to his plea of the potential
basis for a suppression motion. McTiernan claims that Special
Agent Ornellas’s phone call to McTiernan in February 2006,
which led to the charged offense, was generated by the
Recording. The basis for suppression of the Recording urged
by McTiernan is codified in 18 U.S.C. § 2511(2)(d), which
provides:
It shall not be unlawful under this chapter for a per-
son not acting under color of law to intercept a wire,
oral, or electronic communication where such person
is a party to the communication or where one of the
parties to the communication has given prior consent
to such interception unless such communication is
intercepted for the purpose of committing any crimi-
nal or tortious act in violation of the Constitution or
laws of the United States or of any State.
18 U.S.C. § 2511(2)(d) (emphasis supplied); see also 18
U.S.C. § 2515 (“Whenever any wire or oral communication
has been intercepted, no part of the contents of such commu-
nication and no evidence derived therefrom may be received
in evidence in any trial, hearing, or other proceeding in or
before any court, grand jury, department, officer, agency, reg-
14670 UNITED STATES v. MCTIERNAN
ulatory body, legislative committee, or other authority of the
United States, a State, or a political subdivision thereof if the
disclosure of that information would be in violation of this
chapter.”). McTiernan claims that if his previous counsel had
informed him of the possibility of moving to suppress the
Recording on the stated ground, he could have demonstrated
at an evidentiary hearing that “Pellicano’s intended purpose in
secretly recording their phone call in 2000 was to use the
recording for a criminal or tortious purpose, [and thus] the
[R]ecording would be unlawful under 18 U.S.C.
§ 2511(2)(d).”
[4] McTiernan dedicates much of his argument to the mer-
its of a motion predicated upon Sections 2511 and 2515. But
McTiernan need not show that his motion will be successful
on its merits. His burden is to show that proper advice “could
have at least plausibly motivated a reasonable person in
[McTiernan’s] position not to have pled guilty had he known
about the [grounds for suppression now advanced] prior to
pleading.” See United States v. Garcia, 401 F.3d 1008,
1011-12 (9th Cir. 2005). There is no indication that the dis-
trict court applied this standard.
[5] Moreover, the district court erred in accepting Carlton’s
declaration as the basis for a finding that Carlton “advised
McTiernan on the topic of possible suppression of the
[R]ecording.” Carlton declared only that he “did not see” any
grounds “under the wiretap statute” for suppression of the
Recording and that he “could not predict” any such basis
would be discovered. Carlton did not assert that he reviewed
the specific statutory grounds that might support suppression.
Indeed, his notes and records do not reflect such a review as
to any specific provision that might support suppression, let
alone the specific provisions of Section 2511. Carlton referred
only generally to “the wiretap statute.” Although Carlton may
have advised McTiernan generally that there was no basis for
a suppression motion, his declaration lacks the clarity and pre-
UNITED STATES v. MCTIERNAN 14671
cision that would enable us to conclude that McTiernan was
properly and adequately advised.
[6] The district court also erred in determining that McTier-
nan’s failure to “suggest he has new evidence” and his mere
“speculation concerning a criminal or tortious purpose for
Pellicano’s recording” bar a finding of a fair and just reason
for withdrawal of the guilty plea. As previously noted,
McTiernan is not required to produce evidence at this point.
He is required to establish only that proper advice about the
possibility of suppression under section 2511 could plausibly
have motivated a reasonable person in his position not to have
pled guilty. As long as a criminal or tortious purpose is a real-
istic possibility under the circumstances — which it assuredly
is here — there is nothing inherently implausible about the
proposition that a reasonable person would not have pled
guilty and would instead have sought through discovery to
establish an illicit motive for the taping. Nor does the district
court’s finding that McTiernan sought to withdraw his guilty
plea only to avoid a custodial sentence bear upon the standard
for determining a fair and just reason for withdrawal of the
plea. The desire to avoid a custodial sentence may well be the
motivation for the motion to withdraw the plea, but that moti-
vation is not disqualifying if there is otherwise a fair and just
reason to withdraw the plea.
[7] In accordance with the foregoing, we remand this case
to enable the district court, after a full evidentiary hearing, to
determine whether McTiernan can establish a fair and just
reason to withdraw his plea. We note that on remand, McTier-
nan’s “failure to proclaim his innocence should not count
against him when he seeks to withdraw his plea under the
‘fair and just reason’ standard.” Garcia, 401 F.3d at 1012. As
to the factor of delay, we have opined that “[d]elay itself does
not make an otherwise valid reason for withdrawal any less
‘fair’ or ‘just,’ ” especially where there is nothing in the
record to indicate that the “reasons for withdrawal were not
bona fide, or that the government suffered great prejudice as
14672 UNITED STATES v. MCTIERNAN
the result of [the] delay.” Id. at 1013. Thus, we note that,
although the motion to withdraw came approximately seven-
teen months after the plea, it was filed only two months after
Neal was retained and McTiernan allegedly was first advised
of a specific basis for suppression.
* * *
The judgment of the district court is vacated, and the case
is remanded for a full evidentiary hearing, to be followed by
a decision consistent with the foregoing. In preparation for the
evidentiary hearing, the parties may utilize such methods of
discovery as may by law be available to them, subject to the
supervision of the district court. We deny as moot McTier-
nan’s “Motion for Judicial Notice of Certain Proceedings in
Related Case.”
VACATED AND REMANDED.