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December 9, 1991


The opinion of the court was delivered by: JOHN A. NORDBERG


 Defendants Chi Chak Leung and Irving Chin (also known as Chan Mong Chin and Chan Hong Chiu) were indicted by the United States as part of its investigation of an alleged illegal gambling operation and related activities conducted by the National On Leong Chinese Merchant's Association and its local affiliates. Defendant Chin pleaded guilty to Count II of the indictment at a hearing conducted on March 26, 1991. Defendant Leung pleaded guilty to Counts I, III and XXX at a hearing conducted on April 1, 1991. Before the court are the motions of both defendants to withdraw their pleas, pursuant to Fed. R. Crim. P. 32(d). Defendant Leung indicates he wishes to withdraw his plea to "at least, Count I and, if necessary, to all Counts."

 Defendant Leung cites as grounds for withdrawal the wide cultural and language barrier which existed at the time his plea was accepted which, he contends, prevented him from knowing or understanding the consequences of his plea or the nature of the charges he pleaded to. In support of this contention, Dr. Leung cites to several examples of this barrier which manifested themselves at his plea hearing and later during his trial testimony. Dr. Leung contends that at his plea hearing he stated he did not understand English and was dependant on an interpreter, and that he did not know how the American legal system worked. He also contends he stated that his job for the On Leong was to cash chips and that he didn't know anything else. Although he admits stating he discussed the nature of the charges he was pleading to with his attorney *fn1" prior to the hearing, he contends he did not admit to understanding them. Dr. Leung also contends he had difficulties with his interpreter at the hearing, which the court acknowledged.

 At trial, Dr. Leung testified that he was totally dependant on his attorney at his hearing to inform him of the consequences of his plea agreement and, had he truly understood the consequences of the agreement, he would not have agreed to it even with a gun to his head. Dr. Leung also testified to his previous problems with interpreters, and reiterated his earlier claim that he "just worked there." He also testified he only had general conversations with his prior attorney before his plea hearing as to the consequences of application of the Federal Sentencing Guidelines to his case. Dr. Leung has also submitted an affidavit averring his innocence as to Count I of the indictment, and that he did not fully understand the nature of what he had done until he was asked questions during his trial testimony via a new interpreter.

 Defendant Chin, who used an interpreter, also cites to cultural and linguistic differences as grounds for withdrawal, as well as his advanced age. *fn2" Support for Mr. Chin's motion comes largely from the affidavit submitted by his attorney at the time of his hearing. Mr. Chin's former attorney avers that at the time of Mr. Chin's hearing, she believed his plea was knowing and voluntary, but that subsequent discussions with Mr. Chin indicated it was not. specifically, she avers that prior to trial Mr. Chin told her that he did not understand he would be regarded as a criminal, and told her to go to trial clear his name and to appeal. Between May and September, she deliberated with Mr. Chin as to whether to file for withdrawal of his plea, a procedure made difficult by his inability to understand the consequences of his options. This situation was reported to Mr. Chin's probation officer in August.

 Mr. Chin's attorney also cited to two additional factors which to support his motion. First, she attests that in her conversations with Mr. Chin, she has observed noticeable short term memory loss on his part. Further, she believes her conversations with Mr. Chin were further handicapped by his unwillingness to express disagreement, a Chinese cultural trait.


 The decision to permit withdrawal of a guilty plea rests within the sound discretion of the trial court. U.S. v. Knorr, 942 F.2d 1217, 1219 (7th Cir. 1991). The court may permit the withdrawal of a plea of guilty before sentence is imposed upon a showing by the defendant of any fair and just reason. Fed. R. Crim. P. 32(d). If the defendant establishes a fair and just reason, the court must then consider whether the government would be prejudiced by withdrawal. Fed. R. Crim. P. 32(d) advisory committee's note. Although the phrase "fair and just" is, to say the least, "lacking in scientific exactness," some guiding factors are apparent, such as the movant's assertion of innocence, the reasons asserted for not putting forward a defence at the time of pleading and the amount of time between the plea and the motion to withdraw. Id.

 Prior to 1983, the prevailing view was that any desire to withdraw a plea before sentencing constituted a fair and just reason for withdrawal. The advisory committee's note to the 1983 revisions to the Rules of Criminal Procedure make it clear that revisions to Rule 11 make this view untenable. The 1974 revisions to Rule 11 require the trial court to make a record of the plea agreement proceedings, and to make inquiry as to whether the plea was made voluntarily, and with an understanding as to its contents and consequences. Fed. R. Crim. P. 11(c)(g). The care imposed upon the court by these revisions removes any remaining notion of a plea of guilty as a tentative gesture by the defendant.

 One fair and just reason justifying withdrawal of a guilty plea is that it was not made voluntarily. U.S. v. Ellison, 835 F.2d 687, 692-93 (7th Cir. 1987), cert. denied, Granger v. U.S., 475 U.S. 1029 (1986). A defendant's plea must be voluntarily both in the sense that it was not coerced, and that the defendant understood the nature of the charges pled to. U.S. v. Fountain, 777 F.2d 351, 355 (7th Cir. 1985). This merely restates the obvious proposition that a fair and just reason for withdrawal is that the plea was unconstitutionally obtained. See Brady v. U.S, 397 U.S. 742, 748 (1970) (plea, as waiver of constitutional rights, must be made voluntarily, knowingly and intelligently). It is this ground defendants rely on for withdrawal, claiming that linguistic and cultural differences rendered their pleas insufficient under both Rule 11 and the Constitution.

 The government argues that Ellison and U.S. v. Scott, 929 F.2d 313 (7th Cir. 1991) stand for the proposition that if a plea is entered in compliance with Rule 11, a defendant may not later contradict his sworn testimony at the plea hearing or sworn statements in his plea agreement. In the first place, this argument is irrelevant, since defendants contend their pleas were not entered in compliance with Rule 11. In the second, Scott and Ellison stand for a narrower proposition than the government claims.

 The defendant in Ellison attempted to withdraw his plea alleging that he deliberately lied at his plea hearing in the mistaken belief that he could recant his plea later. Ellison, 835 F.2d at 693. The defendant in Scott sought to withdraw his plea because he incorrectly estimated his sentence according to the Sentencing Guidelines. Scott, 943 F.2d at 315. Hence in both cases defendants sought to withdraw their pleas because future events did not conform to their "secret expectations" Id. The Constitution and Rule 11 do not allow withdrawal for strategic reasons. Brady, 397 U.S. at 757; U.S. v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, Aguas v. U.S., 488 U.S. 863 (1988). The present defendants' cases are distinguishable because they claim they genuinely did not understand the nature of the charges against them, or the legal consequences of pleading guilty to them.

 The government also argues that a motion for withdrawal cannot challenge the sufficiency of the government's evidence. The appropriate response to this argument is that defendant's do not seek to challenge the court's determination of the factual basis for their pleas pursuant to Rule 11(f), but seek to assert their innocence, and show a lack of substantial prejudice to the government from withdrawal. A defendant must be able to contest his prior admission of guilt in his motion to withdraw, or the purpose of the motion would be meaningless. In any event, a counseled plea ...

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