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UNITED STATES v. VLAMAKIS

January 12, 1995

UNITED STATES OF AMERICA, Plaintiff,
v.
EMMANUEL VLAMAKIS, Defendant.



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

 Before this court is defendant Emmanuel Vlamakis' motion to withdraw his plea of guilty pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure. For the following reasons, Vlamakis' motion is denied.

 I. FACTS

 Emmanuel Vlamakis was the sole defendant named in a one-count information filed in the Northern District of Illinois on June 22, 1994. The sole count charged that on January 26, 1993, the defendant unlawfully possessed a 12 gauge sawed-off shotgun with a barrel length of 12 inches and an overall length of 24 inches, with no serial number, and which was not registered to him in the National Firearms Registration and Transfer Record, in violation of 26 U.S.C. § 5861(d), 5871.

 On July 21, 1994, appearing before this court, Vlamakis pled guilty to the one-count information pursuant to a written plea agreement. At the hearing, the court accepted Vlamakis' plea and entered a judgment of guilty. Transcript of Vlamakis' plea colloquy dated July 21, 1994 ("Tr."), at 20. This court also ordered a pre-sentence investigation by the United States Probation Office and set the sentencing for October 25, 1994.

 On October 25, the defendant filed a motion for leave to retain additional counsel and to reset the sentencing date. In his motion, defendant asserted that because the calculations in the pre-sentence investigation report were significantly higher than what were estimated in the written plea agreement, he wished to hire additional counsel to assist present counsel with respect to the guidelines. This court granted the motion and reset sentencing for November 30, 1994. On November 30, the defendant apprised the court of his intention to withdraw his plea of guilty. A few days later, on December 5, 1994, the defendant filed the motion which now comes before this court.

 In his motion, the defendant argues that there was not a sufficient factual basis upon which to grant his plea of guilty. Specifically, the defendant asserts that he: (1) did not know that the firearm was illegal; and (2) was unsure of the length of the weapon. The Government, in its objection to the defendant's motion, outlines a number of factors which the court must consider before deciding the motion and argues that none of these factors, individually or together, warrants withdrawal of the guilty plea.

 II. DISCUSSION

 Rule 32(e) of the Federal Rules of Criminal Procedure *fn1" provides that if a motion to withdraw a plea of guilty is made before sentence is imposed, the court "may permit the plea to be withdrawn if the defendant shows any fair and just reason." However, a defendant bears the burden of proving that such a "fair and just reason" exists, United States v. Coonce, 961 F.2d 1268, 1275 (7th Cir. 1992), and has no absolute right to withdraw the plea. United States v. Caban, 962 F.2d 646, 649 (7th Cir. 1992). See also United States v. Malave, 22 F.3d 145 (7th Cir. 1994).

 Furthermore, when evaluating a motion to withdraw a plea, the 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 (1987), 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. The court 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.

 While keeping in mind the solemnity of the plea-taking process and the burden that the defendant bears when seeking a withdrawal of his plea, the court has carefully considered the arguments set forth by Vlamakis. The court finds that the defendant has failed to articulate a valid reason for granting his motion under Rule 32(e). Below, the court addresses each argument set forth in Vlamakis' motion and other factors that warrant denial of this motion.

 A. Vlamakis' Motion

 In the defendant's motion, he asserts that withdrawal of his plea is warranted because there was not a sufficient factual basis for his plea. The defendant argues that "while it may have been shown that the defendant knew he was transferring a weapon it is clear from the transcript of his plea of guilty, that he did not know it was illegal and he was unsure of the length of the weapon." Defendant's Motion to Withdraw Guilty Plea, at 3. The court considers each argument in turn.

 1. Knowledge of Illegality

 Vlamakis first argues that the government has the burden of proving that the defendant knew the law and intended to violate it. The defendant cites United States v. Obiechie, 38 F.3d 309 (7th Cir. 1994), for this proposition. In Obiechie, the defendant was charged with willfully engaging in the business of dealing in firearms without a license in violation of 18 U.S.C. § 922 (a)(1)(A). At the trial level, the district court held that knowledge of the law was not a necessary element under section 922(a)(1)(A) and found that the government had thus shown a willful violation of that section. On appeal, the Seventh Circuit explained that Congress, in the Firearms Owners' Protection Act of 1986, Pub. L. No. 99-308, 100 Stat. 449 (1986) ("FOPA"), added a set of mens rea requirements to a number of firearms crimes. Because of that addition, certain firearms violations would be punished only if they are committed "willfully" and others only if they are committed "knowingly". In Obiechie, there was no dispute between the government and the defendant that the government was required to prove a willful violation of section 922(a)(1)(A).

 The issue for the court thus became how it should construe Congress' use of the term "willfully", which attached to some firearm offenses, and its use of the term "knowingly", which attached to others. After analyzing how other circuits had split on the issue, the Seventh Circuit found that FOPA's "knowingly" and "willfully" standards were intended by Congress to create different scienter requirements. Obiechie, 38 F.3d at 315. "Knowingly," the lesser mental state, refers only to the intent to do the act that is proscribed by law. Id. "Willfulness" requires knowledge of the law. Id. Because the district court had only applied the lesser standard, the Seventh Circuit reversed Obiechie's conviction and remanded the case for a new trial. Id.

 2. Knowledge of the Characteristics of the Weapon

 Vlamakis next argues that there is an insufficient factual basis for the plea because the defendant did not know the characteristics of the weapon that brought it within the statutory definition of a firearm. *fn2" Section 5845(a)(2) defines a firearm as "a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length." 26 U.S.C. § 5845. The defendant argues that the transcript of his plea of guilty clearly shows that he was unsure of the length of his weapon. Because the court finds otherwise, the court holds that there was a sufficient factual basis for the defendant's plea of guilty.

 "Fed. Rule Crim. Proc. 11 ... makes clear that the sentencing judge must develop, on the record, the factual basis for the plea." Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). The judge can perform this function in a number of ways, e.g., by inquiry of the defendant, of the attorneys for the government and the defense, by a combination of those, or by whatever means is appropriate in a specific case. RULE 11, NOTES OF ADVISORY COMMITTEE ON RULES. In this case, the court used a combination and is certain that the colloquy which resulted, especially those comments which came from the defendant, shows that Vlamakis did know the characteristics of the weapon that brought it within the statutory definition of a firearm. A review of the transcript from the proceeding dated July 21, 1994, will make this much more clear.

 In order to establish the factual basis for the plea, the court first addressed the government. *fn3" ...


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