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April 3, 2003


The opinion of the court was delivered by: William T. Hart, United States District Judge


In October 2001, an indictment was returned charging defendant Peter Loutos with eight counts of wire fraud in violation of 18 U.S.C. § 1343 and 2, one count of conspiring to commit money laundering offenses in violation of 18 U.S.C. § 1956 (h), and seven substantive counts of money laundering in violation of 18 U.S.C. § 1956 (a)(1)(B)(i), 1957, and 2.*fn1 However, on October 30, 2002, shortly before Loutos and five co-defendants were scheduled to begin trial, a superseding information was filed and, in accordance with a written plea agreement, Loutos pleaded guilty to one count of making a false statement on an application for the purpose of influencing a federally insured bank in violation of 18 U.S.C. § 1014 and 2.*fn2 The provisional Sentencing Guidelines calculations contained in the Plea Agreement indicated a Guideline sentencing range of 0-6 months' incarceration. At that time of the plea, the court deferred its decision to accept or reject the Plea Agreement. As had been scheduled, the trial of Loutos's co-defendants began on November 4, 2002. On December 11, 2002, the jury returned a verdict of guilty as to all counts and defendants, except that they returned a verdict of not guilty as to one count of violating § 1957.

After receiving a copy of the presentence report ("PSR") which also calculated a sentencing range of 0-6 months, a minute order dated December 27, 2002 was entered requiring that the parties address some additional sentencing issues. Additionally, the January 22, 2003 sentencing date was vacated and a status hearing was instead held on January 23, 2003. At the status hearing, the court stated it was accepting the Plea Agreement. The court also informed the parties that it would issue a memorandum opinion informing the parties in greater detail as to additional sentencing issues that would need to be addressed and also setting a schedule for the parties filing memoranda and the probation officer preparing a supplemental or revised PSR. No new date was set for the actual sentencing.*fn3 Later that day, Loutos I was issued. Loutos I points to a number of issues that had to be considered in determining defendant's sentencing range, but leaves open the resolution of those issues. Potentially, resolution of those issues could resulting in a sentencing ranging substantially higher than the 0-6 month range contained in the initial PSR.

On February 27, 2003, Loutos filed a motion to vacate his guilty plea. Loutos raises four grounds for withdrawing his guilty plea: (1) Defendant has the absolute right to withdraw his guilty plea because the court has not actually accepted his plea in that U.S.S.G. § 6B1.1 precludes accepting the plea until after the supplemental or revised PSR has been considered. (2) Under Fed.R.Crim.P. 11, defendant was not properly advised by the court prior to pleading guilty. (3) Defendant has a fair and just reason for withdrawing the plea because of a mutual mistake of the parties as to the correct guideline calculation. (4) Defendant has a fair and just reason for withdrawing the plea because he is legally innocent of the bank fraud. Each of these grounds will be addressed in turn.


Defendant's Plea Agreement provides that, following sentencing, the government will move to dismiss the charges (investment fraud) contained in the original indictment. Plea Agreement ¶ 19. Therefore, the Plea Agreement is of the type described in current Fed.R.Crim.P. 11(c)(1)(A) (formerly 11(e)(1)(a)). Defendant contends that, in accordance with Sentencing Guidelines 6B1.1(c) and 6B1.2 (a), the court should have deferred acceptance of the plea until after reviewing the supplemental or revised PSR. Defendant further contends that the court's purported acceptance of the guilty plea was therefore without effect and thus he is free to withdraw his plea. Defendant's argument fails to recognize the distinction between accepting a guilty plea and accepting a plea agreement. See United States v. Hyde, 520 U.S. 670, 674 (1997).

At the October 30, 2002 plea colloquy, the following was stated:

Court: Now, do you understand that your plea of guilty here today will be on the basis of an offer to the court, but a presentence investigation will be undertaken to examine the plea and the background here?
Do you understand that?

Loutos: Yes, sir.

Court: And do you understand that I am not going to grant or deny your request to plead guilty today? I will not do that until I have seen the presentence investigation report. You will have a chance to see it, you will have a chance to comment on it.
Do you understand that?

Loutos: Yes, sir.

Oct. 30, 2002 Tr. at 9-10.

After a few questions verifying the Plea Agreement, defendant's signature thereon, and his having read it, the court made reference to the Sentencing Guidelines and statutory maximums and then stated:

And as this is a guideline case, the preliminary calculation specifies the period of incarceration that I believe counsel said to be zero to six months.
I, again, sir, caution you that I have not made any such determination and will not make it until I have decided to accept the plea agreement and make the determination that it should be as stated in the agreement or in the presentence report as the case may be.
All right, now then, has anyone forced you to plead guilty here today?
Id. at 11.

At the conclusion of the colloquy, immediately after defendant admitted his guilt, the court stated:

Since you acknowledge that you are, in fact, guilty as charged in the criminal information, and you have freely waived indictment, and you have had the assistance of counsel, you know your right to a trial, you know what the maximum possible punishment is, and you are voluntarily waiving indictment and pleading guilty, I will accept your waiver of indictment and your plea of guilty, and I will take under consideration whether or not to enter a judgment after I have seen a presentence investigation.
Id. at 14-15.

The minute order that was thereafter issued stated in part:

Defendant enters guilty plea to Count 1 of the superseding information. Defendant informed of rights. Court defers its acceptance or rejection of the plea agreement as stated in open court.
Order dated Oct. 30, 2002 (Docket Entry 154).

At the January 23, 2003 status hearing, which was after receiving the PSR, the court stated near the beginning of the hearing that it would accept the Plea Agreement and proceed from that point forward on the basis of the plea of guilty to the bank fraud charge. The minute order that was thereafter issued stated in part: "Hearing held. Court accepts the plea agreement. Judgment of guilty entered on Count 1 of the superseding information." Order dated Jan. 23, 2003 (Docket Entry 231). In Loutos I, which was issued the same day, it was stated: "After hearing the evidence that was presented at the trial of Loutos's codefendants and having considered the PSR, submissions of the parties, and possible Guideline results, on January 23, 2003, the court accepted Loutos's plea of guilty. However, a determination of the appropriate sentencing range will only be made after considering additional facts not presently disclosed in the Plea Agreement or PSR." 2003 WL 168627 at *1.

First, it should be recognized that the Federal Rules of Criminal Procedure, including Rules 11 and 32, were amended effective December 1, 2002.*fn4 The 2001 Rules were in effect when defendant pleaded guilty in October 2002. The 2002 Rules are presently in effect and were in effect as of the January 23, 2003 status hearing and ruling and when defendant filed his motion to withdraw his plea. In the 2001 Rules, Rules 11(c), 11(d), and 11(f) applied to accepting a guilty plea, whereas Rule 11(e) applied to accepting or rejecting a plea agreement. In the 2002 Rules, Rule 11(b) applies to accepting a guilty plea and Rule 11(c) applies to accepting or rejecting a plea agreement. In the 2001 Rules, Rule 32(e) applied to withdrawal of a guilty plea. Under the 2002 Rules, procedures for withdrawing a guilty plea are now codified as Rules 11(d) and 11(e).

The 2002 version of Rule 11(b) provides for essentially the same plea acceptance procedure as under the 2001 Rules, but does modify the list of and stylistic description of issues on which the defendant is to be advised and questioned. For example, whereas Rule 11(c)(1) (2001) (emphasis added) referred to advising the defendant as to "the maximum possible penalty provided by law, including the effect of any . . . supervised release term," Rule 11(b)(1)(H) (2002) provides that the defendant should be advised as to "any maximum possible penalty, including . . . term of supervised release." See also Advisory Committee Notes for 2002 Amendments to Fed.R.Crim.P. 11, 2d & 3d ¶¶ (hereinafter "2002 Committee Notes").

As to the procedure for accepting or rejecting a plea agreement, the 2002 version of Rule 11(c) has no substantive changes applicable to this case*fn5 and was not intended to change the practice for accepting plea agreements. However, the amendments do attempt to make clear the distinction and interplay ...

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