Appeal from the United States District Court for the Southern District of Illinois. No. 97-CR-30006-01-WDS--William D. Stiehl, Judge.
Before Posner, Easterbrook, and Diane P. Wood, Circuit Judges.
The opinion of the court was delivered by: Diane P. Wood, Circuit Judge.
Rickey B. Wallace was a big-time marijuana dealer in Southern Illinois. Over the years, he was responsible for transactions amounting to a whopping 13,471 kilograms of that substance, according to one of his co-conspirators, Ubaldo Diaz II. Law enforcement authorities caught up with him in early 1997, when he was indicted along with several others for conspiring to distribute "divers amounts of marihuana" from approximately 1987 through September 1997, in violation of 21 U.S.C. þþ 841(a)(1) and 846. He pleaded guilty, but then thought better of matters after he learned that he would be held responsible for such a large quantity. His motion to withdraw his guilty plea became complicated by the near-simultaneous discovery that his first lawyer allegedly had a serious conflict of interest. In the end, the district court denied Wallace's motion (filed by a new lawyer) to withdraw the plea and sentenced Wallace to 240 months' imprisonment. Wallace appeals, and we affirm.
At the time of his guilty plea, Wallace was 50 years old and the owner of a roofing business in Southern Illinois. Represented by attorney Clifford Schwartz, Wallace stipulated in writing that between 1987 and November of 1994, he was a leader of an organization that distributed marijuana in and around Granite City, Illinois. Wallace admitted that during this period he regularly received large quantities of marijuana from suppliers in Texas, including co-conspirator Diaz. Wallace also admitted that on two different occasions in 1994 (July and October), law enforcement officials seized from Diaz separate 800-pound shipments of marijuana (a total of over 700 kilograms) that were intended for Wallace.
In his plea agreement, Wallace acknowledged that his offense was subject to the United States Sentencing Guidelines and that his sentence would be determined by the court. The plea agreement noted that the sentence would depend on the amount of marijuana the court found should be counted as relevant conduct, and that if the amount exceeded 100 kilograms, he was facing a sentence ranging from 5 to 40 years. Finally, Wallace confirmed in the plea agreement that there were no agreements or promises relating to the length of his sentence.
On February 3, 1998, prior to accepting Wallaceþs plea, the district court conducted a lengthy Rule 11 colloquy. In the course of that exchange, Wallace stated under oath that he had discussed the indictment and the evidence against him with his attorney, Schwartz. Turning to the plea agreement, the court asked Wallace to confirm the fact that the plea agreement contained no commitments about his expected sentence. Asked if he understood this, Wallace replied, þYes, sir.þ The court then again asked whether þanyone made any other or different promise or assurance of any kind to you,þ and Wallace replied, þNo, sir.þ
The court then explained to Wallace that þthe penalty provided by law for the offense to which you are pleading is governed by the amount of controlled substance found to constitute your relevant conduct. Here we have no agreement as to that amount. That is something that I will have to determine at a later date.þ After reviewing all the possible relevant conduct ranges and the potential sentences that could attach, the court asked, þNow do you understand all of those possible consequences of your plea?þ Wallace said that he did. He also affirmed that he had þdiscussed how the sentencing guidelines might apply in his caseþ with Schwartz. Finally, Wallace agreed that he understood that the court þwill not be able to determine the applicable guideline range in your case until after a presentence report has been prepared.þ
Next, the government spelled out what it was prepared to prove at trial, including the two 800-pound shipments of marijuana that government agents seized from Diaz in 1994. Following the recitation the court asked, þMr. Wallace, is what [the government] has just told us substantially correct?þ Wallace responded: þWould that total be 1,600 pounds?þ Clarifying, the court answered, þWell, as I understand it, the amount constituting your relevant conduct is not agreed to, but that there, in this recital of the facts . . . [the government] talked about . . . two shipments of 800 pounds. So is what he told us substantially correct?þ Wallace agreed that it was, and also agreed that the stipulation of facts was accurate.
After entering his guilty plea, but before the conclusion of the change of plea hearing, Wallace interrupted the court to ask whether at sentencing the court would þjudge what can be put in?" He asked, "When the government puts on what I consider to be lies that has been told, then you are going to judge that, is that true?þ The court answered that þ[i]t will be just like a trial. The government is going to put on evidence. . . . You are going to have the right, or your attorney will have the right, to cross-examine their witnesses. Your side is going to have the right to put on witnesses . . . and after all of that, then I have to make a determination.þ Wallace then asked, þWeþre almost having a trial then, arenþt we?,þ and the court replied that þ[s]ome of these sentencings come down to a mini trial. All it is is a trial over the amounts. . . . Does that answer your question?þ Wallace said it did.
Following Wallaceþs guilty plea, the United States Probation Office prepared a presentencing report. Relying largely on information provided by Diaz, the report found Wallaceþs relevant conduct during the seven years of the conspiracy to include marijuana transactions totaling 13,471 kilograms (almost 30,000 pounds). Apparently surprised by the relevant conduct recommendation, Wallace filed, through Schwartz, a motion to withdraw his guilty plea.
This was where matters veered from the beaten track. Before the court had an opportunity to rule on Wallaceþs motion, the government moved to disqualify Schwartz. It accused Schwartz of either witnessing or participating in suborning perjury and witness tampering by Wallace. In particular, it alleged that while Wallace was out on bond, he and Schwartz had gone to Rio Grande City, Texas, to interview members of Diaz's family. While there, Wallace told Diazþs sister Isabel that they had to þshut [her brother] up.þ He asked Isabel to lie about her relationship with Wallace and told Diazþs father that he should testify that Diaz was lying. In exchange, Wallace offered to pay the family $50,000. The government argued that whether or not Wallace was allowed to withdraw his guilty plea, Wallaceþs actions on the trip to Rio Grande City were relevant to the case, and Schwartz would potentially be put in the position of being called as a witness against his client. Both Schwartz and Wallace objected to the governmentþs motion and submitted affidavits denying the supporting allegations. The district court held a hearing on the motion to disqualify and, in a subsequent written order, disqualified Schwartz on the ground asserted by the government.
Following Schwartzþs disqualification, attorney John OþGara entered his appearance on behalf of Wallace. OþGara immediately filed an amended motion to withdraw Wallaceþs guilty plea. Whereas the Schwartz motion to withdraw the plea had argued that the government was impermissibly shifting theories from a single conspiracy to multiple conspiracies, the O'Gara motion focused principally on the conflict of interest between Schwartz and Wallace that (it argued) tainted the original guilty plea proceedings. Schwartz, Wallace now urged, had a powerful motive to induce Wallace to plead guilty, because by avoiding a trial, Schwartz could avoid having his unethical and potentially criminal conduct come to light. In his amended motion, however, Wallace made clear that he was not conceding any wrongdoing while visiting Diazþs family: þThe defendant by this motion does not admit to the governmentþs allegations in its motion to disqualify Mr. Schwartz.þ According to Wallace, þ[t]he actual conflict of interest in this case is created by the governmentþs allegations and implications arising from the allegations.þ In his amended motion to withdraw, Wallace also ...