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United States v. Ellison

decided: August 21, 1986.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MAX ALLEN ELLISON, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Central District of Illinois, Springfield Division, Nos. 84 CR 30099, 85 CR 30003 & 30023, James T. Moody, Judge.

Author: Flaum

BEFORE Cudahy, Coffey, and Flaum, Circuit Judges.

Flaum, Circuit Judge. Defendant Max Allen Ellison appeals from the district court's denial of his motion to withdraw his pleas of guilty prior to acceptance of the plea agreement by the court. The district court's decision is reversed and remanded for further proceedings.

Defendant was charged in three separate indictments with kidnapping, receiving ransom money, violating the Hobbs Act, interstate transportation of a firearm to commit a felony, carrying a firearm in a federal crime of violence, interstate transportation of stolen property, and attempted escape. Counsel was appointed and defendant initially pleaded not guilty to all charges. Defendant then entered into a plea agreement with the government whereby he agreed to plead guilty to charges of kidnapping and carrying a firearm in a crime of violence, interstate transportation of stolen property, and attempted escape. in exchange, the government agreed to dismiss the remaining charges in the indictments and to not recommend consecutive sentences. Other than this restriction on sentencing, the parties were free to recommend whatever sentences they deemed appropriate. On March 19, 1985, defendant, as agreed, entered pleas of guilty to the four charges. After questioning the parties and the attorneys in substantial compliance with Federal Rule of Criminal Procedure 11,*fn1 the district court accepted the guilty pleas but deferred its decision of whether to accept the plea agreement.

Three days prior to sentencing, the defendant sent the court a letter which the court construed as a motion to withdraw his guilty pleas pursuant to Federal Rule of Criminal Procedure 32(d). Defendant alleged that his pleas of guilty had resulted from the psychological pressures of solitary confinement, the exclusion from family and friends, and the advice of his court-appointed attorney "that an immediate guilty plea would place [him] in better and more humane living conditions and renew my contact with family and friends." Although defendant had difficulty "pleading guilty to charges I do not consider myself guilty of," his counsel allegedly advised defendant that he, the attorney, would have to work with the "federal people" in the future and that, therefore, it was "best not to make waves when there is little if any chance of fighting Federal Prosecutors."

The court conducted a hearing on defendant's motion prior to sentencing. Counsel for defendant denied the accusations against him. Defendant maintained his innocence and stated that, at the time of the pleas, he would have pled guilty to "treason" for an opportunity to see his son once more. The court denied defendant's motion. the court noted that defendant had been adequately represented by counsel at the time the guilty pleas had been entered and that defendant was a person of normal understanding and intelligence. The court further found:

The written plea agreement which the Defendant acknowledged that he read and signed, it set out in great detail the particular facts of each of the counts, and the indictments to which he pled guilty. Moreover, those--each of those counts were described and explained and admitted to by the Defendant during the plea hearing.

I found then, and I find now, that he understood and understands the nature of the charges against him, and I find that he was adequately instructed as to the consequences of his plea, and that a factual basis for that plea was established, and I further find that the Defendant has failed to present any reason which would allow the withdrawal of his guilty pleas.

Further, a great deal of very precious Court time was spent on the taking of that-those pleas, and again, it was entered by the Defendant with full knowledge of the facts, a fair warning of the consequences, and with exhaustive reflection on the part of the Defendant and his lawyer . . . .

(TR. 9-10, March 19, 1985).

Defendant first argues on appeal that the plea agreement is contractual in nature and that, because the court had not yet accepted or rejected the agreement, there was no contract and therefore he was not bound by the agreement. According to defendant, he had the right to withdraw his guilty plea until the court accepted the plea agreement. Defendant's contract analysis is erroneous and disregards the clear language of Rule 32(d). His argument implies that the court is a party to the contract, which is not correct. Defendant and the government, having made mutual promises, were the only parties to the contract. Defendant pled guilty pursuant to his promise to the government and, absent some breach by the government, now cannot attempt to repudiate the contract unless he does so pursuant to Rule 32(d).

Under Rule 32(d), "a court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason." Fed. R. Crim. P. 32(d). The defendant has the burden of demonstrating valid grounds justifying withdrawal. United States v. Thompson, 680 F.2d 1145, 1151 (7th Cir. 1982), cert. denied, 459 U.S. 1089, 103 S. Ct. 573, 74 L. Ed. 2d 934 (1983). Although the standards for granting a Rule 32(d) motion prior to sentencing are fairly liberal, United States v. Teller, 762 F.2d 569, 574 (7th Cir. 1985), the decision is within the sound discretion of the trial court and will not be reversed except upon an abuse of discretion. United States v. Fountain, 777 F.2d 351, 358 n.3 (7th Cir. 1985); United States v. Suter, 755 F.2d 523, 525 (7th Cir.), cert. denied, 471 U.S. 1103, 105 S. Ct. 2331, 85 L. Ed. 2d 848 (1985); United States v. Thompson, 680 F.2d at 1151. The trial court's findings on the issue will be upheld unless clearly erroneous. Suter, 755 F.2d at 525.

Despite Rule 32(d)'s unambiguous "fair and just" standard, defendant maintains that Federal Rule of Criminal Procedure 11 requires application of a different standard for withdrawal of guilty pleas entered pursuant to plea agreements that have not yet been accepted by the court. Rule 11(e)(1), in recognizing three different types of plea agreements, provides:

The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussion with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related ...


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