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UNITED STATES v. FERNANDEZ

March 7, 1990

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JOSE FERNANDEZ, DEFENDANT.



The opinion of the court was delivered by: Walker, Circuit Judge[fn1]:

OPINION AND ORDER

Defendant has moved, pursuant to Fed. R.Crim.P. 32(d), to withdraw his guilty plea entered on May 10, 1989. For the reasons set forth below, defendant's motion is denied.

I. BACKGROUND

On March 9, 1989, defendant Jose Fernandez ("Fernandez") was indicted with two co-defendants, Nelson Marte ("Marte") and Rafael Garcia-Flores ("Garcia-Flores"), in two counts for (1) conspiracy to distribute and possess with intent to distribute cocaine, and (2) possession with intent to distribute cocaine, pursuant to 21 U.S.C. § 812, 841(a)(1) and (b)(1)(B) and 845(a). Marte and Garcia-Flores entered pleas of guilty to both counts of the indictment. Fernandez proceeded to trial, during which he entered a guilty plea.

Trial commenced on May 9, 1989, and the government concluded its case that day. Javier Diaz ("Diaz"), a paid confidential informant, testified that on February 27, 1989, he and an individual named Gabriel, another informant working with the Drug Enforcement Administration ("DEA"), met with Marte and Fernandez to negotiate the sale of cocaine and that on February 28, 1989, after Marte called him to confirm the sale and arrange a meeting to complete the sale, he and Gabriel met Marte and Fernandez at 3:00 p.m. on 136th Street, between Broadway and St. Nicholas Avenue in Manhattan. According to Diaz, Fernandez asked Diaz to show him the money, which Fernandez and Marte visually inspected in Diaz's car, and then Fernandez and Marte left together. Two DEA surveillance agents corroborated Diaz's testimony as to the activities on February 28. The agents also testified that after they observed Marte and Fernandez leaving the meeting, they later observed Fernandez driving alone in a car downtown, in the vicinity of 136th Street.

Diaz concluded by testifying that a short while later that same afternoon he met Fernandez in front of a grocery store on 136th Street, between Broadway and St. Nicholas Avenue, and further discussed the sale with him. According to Diaz, Marte arrived and asked him to accompany him to a taxicab where he could get the narcotics. In the cab, Diaz saw a third individual, Garcia-Flores, holding a package which Marte took and examined. Diaz gave a pre-arranged signal to the DEA agents on the scene who proceeded to arrest Marte, Fernandez and Garcia-Flores. The government then rested its case.

On May 10, 1989, after calling a character witness, Fernandez took the stand. He denied knowing involvement in any narcotics transaction. He testified that on February 27, 1989, he saw Diaz and another individual (Gabriel) at a restaurant where the two asked Fernandez if he knew where Marte was. Fernandez admitted that on February 28, 1989, he met Marte in front of a grocery store on 136th Street between Broadway and St. Nicholas Avenue, but said he was there to borrow Marte's car because his own car was broken. Fernandez testified that he agreed to drive Marte to 143rd Street, where Marte had "an errand" to run, and then drive back to the grocery store on 136th Street where he would meet Marte. Finally, Fernandez testified that later on the afternoon of February 28 he was waiting for Marte in front of the grocery store on 136th Street when he was arrested, and that Marte was near a taxicab.

Upon completion of direct, and cross-examinations of Fernandez, the defense rested and the court adjourned for lunch. After lunch and on the eve of summations, Fernandez's attorney informed the court that after "very, very extensive" discussions with Fernandez and his family, Fernandez now wished to change his plea to guilty to both counts of the indictment. The court allowed the application, placed Fernandez under oath and conducted an allocution pursuant to Fed.R.Crim.P. 11(d).

The allocution was in stark contrast to the testimony Fernandez had given earlier that day. In the plea proceeding, Fernandez admitted that he conspired with Marte on February 28, 1989, by agreeing to ask the informants to show him the money for the cocaine. Fernandez also admitted that he understood that if the informants showed them the money, Fernandez and Marte, or Marte alone, would arrange to get the cocaine. Finally, Fernandez admitted that he had agreed to count the money to ensure Marte received the amount Diaz had agreed to pay. However, Fernandez maintained that after he requested to see the money, he simply drove Marte to his errand on 143rd Street and returned to 136th Street to wait for him, as they had agreed. Fernandez said that he did not know whether he would receive any compensation for this participation in the conspiracy.

The court advised Fernandez that he faced a five-year statutory minimum sentence and a possible 160 year maximum sentence for the crimes to which he was pleading guilty. The court also explained that Fernandez could not withdraw his plea of guilty simply because the sentencing range might be higher than he or his attorney expected. Fernandez stated that he understood the charges, that he was satisfied with his representation and that he knowingly waived his right to trial and the related rights enumerated in Fed.R.Crim.P. 11. During the course of ascertaining the factual basis for the plea, the court asked Fernandez if he was "pleading guilty to the crimes charged in counts one and two because, in fact, [he was] guilty of the crimes charged in counts one and two," and Fernandez replied affirmatively. Plea Tr. at 19. The court then accepted and entered Fernandez's guilty plea to both counts of the indictment on May 10, 1989.

In September, 1989, after receiving the presentence report containing the calculated sentencing range under the sentencing guidelines, Fernandez' attorney notified the Court that his client now took the position that he was innocent and that he wished to move to withdraw his guilty plea. Counsel stated that since one of the grounds asserted by Fernandez as a basis for withdrawing his plea was ineffective assistance of counsel, he wished to withdraw from the case. The Court allowed a substitution of counsel and permitted the defendant to move to change his plea. On November 29, 1989, the present motion pursuant to Fed.R.Crim.P. 32(d) followed.

II. DISCUSSION

It is well settled that a defendant has no absolute right to withdraw his guilty plea. United States v. Figueroa, 757 F.2d 466, 475 (2d Cir.), cert. denied, 474 U.S. 840, 106 S.Ct. 122, 88 L.Ed.2d 100 (1985). Accord Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 1473, 25 L.Ed.2d 747 (1970). A motion pursuant to Fed.R.Crim.P. Rule 32(d) to withdraw a guilty plea may be granted only if (1) the motion is made before sentencing, (2) "valid grounds" for the withdrawal exist, and (3) granting the motion would be "fair and just" considering any prejudice the government may suffer as a result. See United States v. Figueroa, 757 F.2d at 475. Whether to grant the motion falls within the broad discretion of the trial court. United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989). Furthermore, when the defendant has failed to show valid grounds in support of his withdrawal motion, the government need not demonstrate that withdrawal of the plea would prejudice it. United States v. Saft, 558 F.2d 1073, 1083 (2d Cir. 1977).

In deciding whether or not to grant a withdrawal motion, the court should balance each of the three elements articulated in Figueroa to reach the most equitable result. An ...


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