Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


April 14, 1993



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


Before the court is defendant Delwin Langston's motion to withdraw his plea of guilty pursuant to Rule 32(d) of the Federal Rules of Criminal Procedure. The court has carefully considered the parties' pleadings and the pertinent law. For the following reasons, Langston's motion is denied without a hearing.


 Delwin Langston was charged in the indictment with narcotics conspiracy (Count One), RICO (Count Two), commission of aggravated battery in aid of racketeering (Count Four) and three counts of distribution of cocaine (Counts Five, Six, and Seven). Langston pled guilty to Count One before this court on November 13, 1992 pursuant to a plea agreement that required him to agree to provide substantial assistance to the government in return for a downward departure motion from the government. Pursuant to Rule 11(e)(1)(C), the parties agreed to a sentence of twenty years incarceration. Plea Agreement at P 12, 15. In addition the government agreed to dismiss the remaining counts against the defendant, including the RICO count which carried potential criminal liability for the murder racketeering act. At the plea colloquy, the court accepted Langston's plea and entered a judgment of guilty. Transcript of Langston's plea colloquy dated November 13, 1992 ("Tr."), at 20.

 The court held a seven week trial in this case that began on November 23, 1992 and ended on January 8, 1993. At the trial, the jury convicted defendant Richard Goldstein on all counts and acquitted defendant Eric Smith on the one count in which he was charged. After the trial, on March 4, 1993, almost four months after he pled guilty, Langston filed a pro se motion to substitute counsel, alleging an irreconcilable conflict of interest with his current appointed counsel. The court granted Langston's motion and appointed new counsel. Langston now seeks to withdraw his guilty plea. Defendant has not yet been sentenced.


 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 the defendant's burden to prove such a reason exists. United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992). Clearly, Langston "faces a heavy burden of persuasion." United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987) (record created by a Rule 11 inquiry provides a "presumption of verity"). See also 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 . . . 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'"). Langston has wholly failed to advance any fair and just reason.

 Furthermore, in evaluating a motion to withdraw a plea under Rule 32(d), this court must be mindful of "the solemnity of the taking of the plea." United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir. 1986), cert. denied, 479 U.S. 1038, 93 L. Ed. 2d 845, 107 S. Ct. 893, aff'd on remand, 835 F.2d 687 (7th Cir. 1987). In Ellison, the Seventh Circuit stressed the importance of preserving "the integrity of the plea-taking process." Id. (reasoning that Congress purposefully limited withdrawal of a plea to those situations where defendant demonstrates a fair and just reason). The Seventh Circuit stated:

Rule 11's provisions specifically seek to ensure that entry of a plea is not a meaningless act. Great care is taken when accepting pleas under Rule 11. Plea agreements are placed on the record, the voluntariness and accuracy of the plea is ascertained, and detailed advice is provided to the defendant concerning his rights and the consequences of his plea as well as a determination that defendant understands these matters.

 Id. The court further noted that district courts must prevent guilty pleas from becoming "a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, . . . a guilty plea is no such trifle, but a 'grave and solemn act,' which is 'accepted only with care and discernment.'" Id. (quoting Rule 32(d) Advisory Committee Notes and United States v. Barker, 168 U.S. App. D.C. 312, 514 F.2d 208, 221 (D.C. Cir. 1975)).

 Keeping in mind the solemnity of the plea taking process and the "uphill battle" facing a defendant who wants to withdraw his or her plea, the court has carefully considered the arguments set forth by Langston. The court concludes that Langston's motion is woefully inadequate. Not only was Langston's motion devoid of any pertinent legal authority, the motion and attached affidavit failed to articulate any reason for allowing Langston to withdraw his plea of guilty. The court will address each contention set forth in Langston's affidavit and other factors that warrant denial of this motion.

 A. Langston's Arguments

 Langston claims that he should be allowed to withdraw his guilty plea because it was unknowing, unintelligent, and involuntary. Langston raised none of these concerns with the court at the time of the plea. Furthermore, Langston's own statements made under oath at the plea colloquy belie his new contentions.

 1. Erroneous Advice from Former Attorney

 First, Langston claims that his attorney misled him by advising him to "plead out" because he did not have a defense. Affidavit in Support of Motion to Withdraw Guilty Plea ("Langston's Affidavit"), at 1. Langston states that he could not understand that "not having a defense" didn't matter because the government has the burden of proving him guilty beyond a reasonable doubt. Id. Furthermore Langston contends that his former attorney never told him that challenging witnesses' motives to testify can be a "defense." Id. at 2.

 The plea agreement and the plea colloquy, however, indicate that Langston fully understood his rights to challenge the motives of testifying co-defendants on cross-examination and put the government to its burden of proof without offering a defense at trial. In particular, Langston replied affirmatively when the court asked him under oath whether he understood that "Mr. Willis would have the right to cross-examine the government witnesses." Tr. at 7. With respect to Langston's understanding of the government's burden of proof, the colloquy is presumptively correct:

COURT: Do you understand that at trial you would be presumed to be innocent and the government would be required to prove you guilty beyond a reasonable doubt before you could be found guilty and you would not have to prove that you were innocent?

 Tr. at 7. Shortly thereafter, Langston again acknowledged that he understood that the jury would have to find him guilty "beyond a reasonable doubt" and that he would waive the right to put the government to its proof by pleading guilty. Tr. at 8, lines 11-17. Thus, Langston's present claim directly contradicts his testimony at the plea hearing.

 The Seventh Circuit has stated that "[a] judge is entitled to hold a defendant to statements made in open court and need not give him a hearing so that he may more readily contradict himself." United States v. Roth, 860 F.2d 1382, 1387 (7th Cir. 1988) (citing United States v. Ellison, 835 F.2d 687, 693 (7th Cir. 1987)). Thus, responses given under oath are entitled to a presumption of truthfulness. United States v. Trussel, 961 F.2d 685, 689 (7th Cir. 1992). See also United States v. Price, 988 F.2d 712, slip op. at 7 (7th Cir. 1993) ("Voluntary responses made by a defendant when entering a guilty plea are binding.") (citing Trussel, 961 F.2d at 689).

 In addition to his testimony at the plea hearing, Langston signed and filed with the court a detailed written plea agreement in this case which further belies his instant claims of confusion. Langston's plea agreement states:

Defendant understands that by pleading guilty he surrenders certain rights, including the following:
(a) If defendant persisted in a plea of not guilty to the charges against him, he would have the right to a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.