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UNITED STATES v. STEVENS

May 17, 1993

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL STEVENS, et al., Defendants.


ALESIA


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

Before the court is defendant Michael Stevens' 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, Stevens' motion is denied.

 I. FACTS

 Michael Stevens 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). Stevens pled guilty to Count One before this court on November 12, 1992. Stevens pled guilty to Count One pursuant to a Rule 11(e)(1)(C) plea agreement with the government that required Stevens to provide substantial assistance to the government and, in return, the government promised to move for a downward departure pursuant to U.S.S.G. ยง 5K1.1 to an agreed sentence of incarceration of nineteen years. Plea Agreement, at PP 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. Plea Agreement, at P 17. The Court accepted the plea and entered a judgment of guilty. Transcript dated November 12, 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 January 29, 1993, over two and one half months after he pled guilty, Stevens filed a pro se motion to withdraw his plea agreement, alleging ineffective assistance of counsel and an irreconcilable conflict of interest with his former appointed counsel, Robert Clarke. The court denied Stevens' motion without prejudice and appointed new counsel, David Gleicher. On March 25, 1993, David Gleicher withdrew as counsel due to irreconcilable conflicts with Stevens. The third court-appointed attorney for Stevens, Ronald Bredemann, filed the instant motion to withdraw Stevens' plea. Defendant Stevens has not yet been sentenced.

 Stevens seeks to withdraw his guilty plea alleging that: he had little contact with his attorney; he did not have an opportunity to read the plea agreement; prior counsel was unprepared to go to trial; he pled guilty because he thought he would lose at trial with an unprepared attorney representing him; and his attorney pressured him into pleading guilty. Despite Stevens' plea of guilty, entered under oath, Stevens now asserts that he "believes he is innocent of the charges . . . ." Stevens' Affidavit dated April 5, 1993 ("Aff."), at P 11.

 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 the defendant's burden to prove such a reason exists. United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992). Clearly, Stevens "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 baffle in persuading the judge that his purported reason for withdrawing his plea is 'fair and just'"). Stevens 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 Stevens. The court concludes that Stevens' motion is woefully inadequate. Stevens' motion and attached affidavit failed to articulate any reason for allowing Stevens to withdraw his plea of guilty. The court will address each contention set forth in Stevens' affidavit and other factors that warrant denial of this motion.

 A. Stevens' Arguments

 Stevens presents basically two types of arguments in his motion and supporting affidavit. First, he claims that the performance of his former court-appointed counsel, Robert Clarke, was inadequate. Second, he asserts that "he believes he is innocent of the charges. . . ." Aff. at P 11. Both arguments are without merit.

 Stevens was also dissatisfied with what his former attorney failed to do. The defendant argues that his former counsel did not file any pre-trial motions even though Stevens had requested that counsel do so. Aff. at PP 3, 4. Specifically, Stevens had requested that his attorney file a motion to assert a claim that his rights to a speedy trial were denied, to request a bill of particulars, for severance, and to obtain discovery. Aff. at P 4. None of these motions were filed on behalf of Stevens. Stevens also criticizes his former attorney for failing to discuss with Stevens any defense strategy or evidence the government would attempt to introduce against him. Aff. at PP 5, 7.

 Stevens' criticisms of his attorney do not sufficiently support his motion to withdraw his plea. Stevens' present claims are belied by his own statements made under oath at the plea colloquy and specific provisions in the Plea Agreement. Furthermore, Stevens' misgivings about his former attorney's performance do not rise to the level of ineffective assistance of counsel. Therefore, the court finds these arguments do not sufficiently state a fair and just reason to allow Stevens to withdraw his plea.

 Stevens claims that at the time of his plea colloquy, he was acting on the instructions of his prior counsel who told him to lie to the Court and "answer yes to all the questions other than those which would require a no answer." Aff. at P 9. Stevens gave no hint of this "advice" at the plea colloquy, during which he answered several questions posed by the court with responses contradicting his instant contentions. Stevens' sworn testimony at the plea colloquy belies his claim that he is dissatisfied with his former attorney's advice, preparedness, and performance:

 
COURT: Are you satisfied with the advice and efforts of Mr. Clarke in your behalf?
 
STEVENS: Yes.
 
COURT: Have you had an opportunity to read a copy of the indictment in this case, specifically Count One of the indictment, to which ...

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