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UNITED STATES v. RAINONE

August 6, 1992

UNITED STATES OF AMERICA, Plaintiff,
v.
MARIO RAINONE, et al., Defendants.


ALESIA


The opinion of the court was delivered by: JAMES H. ALESIA

ORDER

 Before the court is the motion of defendant, Mario Rainone ("Rainone"), to withdraw his plea of guilty to the superseding indictment pursuant to Rule 32(d) of the Federal Rules of Criminal Procedure. The court has carefully considered the parties' pleadings and the pertinent law. We deny Rainone's motion without a hearing.

 The facts are straightforward. On or about December 18, 1991, the grand jury returned its six-count superseding indictment against Rainone (along with three other defendants) charging him with racketeering conspiracy (Count One), racketeering (Count Two), attempted extortion (Counts Three and Six), conspiracy to commit extortion (Count Four) and extortion (Count Five). In addition, there is a forfeiture count. Trial was scheduled for May 4, 1992.

 On April 16, 1992, Rainone's attorney, Martin Agran ("Agran"), advised the court in Rainone's presence that Rainone wished to enter a blind plea of guilty. At this status hearing, the court directed Assistant United States Attorney Chris Gair ("AUSA Gair") to prepare a letter to Agran and the court which set forth the maximum penalties on each count. Several days later, on April 21, 1992, Rainone withdrew his plea of not guilty to counts one through six and entered a blind plea of guilty to counts one, two, three, four, five and six of the superseding indictment. *fn1" The court conducted an extensive Rule 11 hearing which covers approximately 40 pages of transcript. The court set sentencing for July 27, 1992.

 However, several days before his scheduled sentencing, Rainone sought leave of court to substitute attorney Agran with Jo-Anne Wolfson. On July 20, 1992, the court granted Rainone's motion to substitute counsel and reset sentencing for August 19, 1992. On July 29, 1992, Rainone filed his motion to withdraw his plea of guilty. This motion to withdraw was filed more than three months after Rainone entered his presentence plea of guilty.

 II. DISCUSSION

 Rule 32(d) provides, in relevant part, that prior to sentencing "the 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). It is Rainone's burden to prove such a reason exists. United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992). Clearly, Rainone faces an uphill battle. United States v. Ellison, 835 F.2d 687, 693 (7th Cir.), cert. denied, 479 U.S. 1038, 93 L. Ed. 2d 845, 107 S. Ct. 893 (1987) (The record created by a Rule 11 inquiry provides a "presumption of verity."); United States v. Coonce, 961 F.2d at 1276 (Rule 11 "provides a thorough hearing to determine the voluntariness and intelligence of guilty pleas, and that defendants afforded such a hearing should not be easily let off the hook when they feel like changing their minds."); United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992) ("A defendant who presents a reason for withdrawing his plea that contradicts the answers he gave at a Rule 11 hearing faces an uphill battle in persuading the judge that his purported reason for withdrawing his plea is "fair and just.") Rainone has wholly failed to advance any fair and just reason.

 As an initial matter Rainone's memorandum in support of his presentence motion to withdraw plea was woefully inadequate. Not only was Rainone's opening brief devoid of any pertinent legal authority, it failed to articulate any reason for allowing Rainone to withdraw his plea of guilty. Instead, Rainone set forth a series of unrelated events from the Rule 11 hearing perhaps in the hope that the court could divine some independent fair and just reason. Unfortunately, it was not until Rainone's reply brief that he even attempted to articulate any fair and just reasons. We address each of his reasons in turn.

 A. Nature of the Charges

 First, Rainone argues that he should be allowed to withdraw his plea because the nature of the charges was never sufficiently explained to him. Specifically, Rainone contends that neither the court nor his attorney explained the elements of the charged crimes. Apparently, Rainone believes that he should have been instructed element by element what a jury must determine in order to convict him. This argument is without merit.

 Rule 11 requires no such explanation. Rule 11(c)(1) provides that the court must address the defendant and determine that he understands "the nature of the charge to which the plea is offered." Conspicuously absent from the plain language of the rule is any requirement that the court explain the elements of the charged offenses.

 However, the transcript of the Rule 11 hearing clearly reveals that Rainone understood the nature of the charges to which he pled guilty. The court explained the nature of the plea proceeding and then asked Rainone whether he had read the indictment and discussed it with his attorney, whether he understood the nature of the charges, and whether he had ...


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