United States District Court, Eastern District of New York
July 24, 2001
UNITED STATES OF AMERICA, PLAINTIFF,
ARCHIE LAANO, M.D. DEFENDANT.
The opinion of the court was delivered by: Wexler, District Judge.
MEMORANDUM AND ORDER
Defendant Archie Laano ("Defendant" or "Laano"), who entered a
plea of guilty in this matter on May 21, 2001, now moves for an
order pursuant to Rule 32(e) of the Criminal Rules of Civil
Procedure to withdraw his plea of guilty For the reasons set
forth below, the motion is denied.
I. Pre-Plea Proceedings and The Plea of Guilty
On March 1, 2000, Laano was arrested pursuant to an arrest
warrant. On May 7, 2001, after issuance of several orders of
excludable delay, a jury was selected. At the time of the
selection, a firm trial date of May 23, 2001 was set. On
Saturday, May 19, 2001, Laano's counsel contacted the government
and said his client was interested in a plea agreement offered
earlier in the week but wished to discuss the matter with his
family. That evening, Laano, through counsel, accepted the plea
agreement. On Sunday, May 20, 2001, the defendant executed and
faxed the plea agreement to the government. The next morning,
two days before the trial was scheduled to begin, Laano pled
guilty to count one of a two-count superseding indictment. That
count charged Laano with
health care fraud in violation of 18 U.S.C. § 1347.
II. The Plea Agreement and the Court's Acceptance of Laano's
The plea agreement between Laano and the government was a
level 15 offense. In the event the Laano had proceeded to trial,
Laano would not have had the possibility of the benefit of a
downward departure for acceptance of responsibility and could
have been sentenced to a higher level pursuant to the sentencing
When Laano entered his guilty plea he was questioned by the
court regarding his state of mind and his understanding of the
consequences of entry of the plea. Questioning in open court,
however, was not the first time that the court inquired as to
Laano's state of mind and his understanding of the consequences
of his plea.
It is the practice of this court to provide a written plea to
all defendants prior to pleading guilty before the court. That
written plea sets forth each and every question that the court
intends to pose to defendant at the time of the plea. It also
sets forth, in detail, the rights that the defendant is
surrendering by choosing to enter a plea of guilty. The written
plea is more than a statement; it is written in question and
answer format and seeks written responses from defendant and his
counsel prior to commencement of proceedings in court.
Importantly, the court allows the defendant to meet with defense
counsel, in private, prior to entry of the plea to allow counsel
to review the written plea and explain all aspects of the plea
procedure and its consequences prior to signing the document and
entering the plea on the record.
In the written plea, Laano stated that his mind was clear and
that he understood the proceedings. Laano's counsel indicated
that he had discussed the matter with his client, that his
client understood the nature of the proceedings and that there
was no doubt about Laano's competence to plead guilty.
Laano's written responses to the questions posed in the plea
document also indicated his knowledge that he had the right to
plead not guilty and to proceed to trial. He was informed of the
trial rights that he was waiving, including the right to a
speedy trial, the government's responsibility to prove guilt by
proof beyond a reasonable doubt and the right against
self-incrimination. Laano responded affirmatively to the
question in the written plea asking whether he was making his
guilty plea voluntarily and of his own free will. Further, he
replied "no" when asked whether anyone had threatened him or
forced him to plead guilty.
After Laano was given ample to time review the written plea,
proceedings were commenced in court. At those proceedings, the
court asked Laano the same questions posed in the written plea.
Upon Laano's recitation of the statements set forth in the plea,
this court accepted the plea of guilty.
III. The Present Motion
In support of his motion to withdraw his plea, Laano argues
that he was not thinking clearly when he decided to plead
guilty. He states that he "felt compelled to accept the plea" to
avoid financial consequences of potential civil actions and that
in accepting the plea, he was trying to preserve assets for his
wife. Laano characterizes the present motion as "not a case of
changing my mind," but, instead, a case where his "ability to
make a rational decision was impaired because [he] was under
mental distress and duress."
Finally, Laano argues he is deeply sorry for the inconvenience
he has caused the Court and the government by preparing for a
trial, selecting a jury, pleading guilty and seeking to withdraw
his plea. However, he claims that since he is innocent he has
the right to a fair jury trial and that his request is
reasonable under the circumstances.
I. Legal Principles: Fair and Just Reason to Withdraw a Plea
A motion to withdraw a plea of guilty can be sustained only if
the defendant can show a "fair and just reason" pursuant
Rule 32(e) of the Federal Rules of Criminal Procedure. Although the
standard appears broad and permissive, the Second Circuit has
held that a defendant has no absolute right to withdraw his plea
and this court's discretion is broad. United States v.
Goodman, 165 F.3d 169, 173 (2d Cir. 1999); see United States
v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989). The defendant bears
the burden of proving that a fair and just reason exists for the
court to grant the requested withdrawal. See United States v.
Williams, 23 F.3d 629, 635 (2d Cir. 1994).
There is no automatic entitlement to an evidentiary hearing on
a motion to withdraw a plea. Instead, a hearing is required only
where defendant presents some "significant questions regarding
the voluntariness or general validity of the plea. . . ."
Gonzalez, 970 F.2d at 1100. Importantly, the fact that a
defendant had "a change of heart prompted by his reevaluation of
either the Government's case against him or the penalty that
might be imposed is not a sufficient reason to permit withdrawal
of a plea." United States v. Gonzalez, 970 F.2d 1095, 1100 (2d
The reluctance to liberally grant a request to withdraw a plea
reflects the "strong interest" of society "in the finality of
guilty pleas, and allowing withdrawal of pleas not only
undermines confidence in the integrity of our judicial
procedures but also increases the volume of judicial work,
delays and impairs the orderly administration of justice."
Id., quoting, United States v. Sweeney, 878 F.2d 68, 70 (2d
Cir. 1989). A defendant may not be allowed to make a tactical
decision to enter a plea, and then obtain a withdrawal simply
because he has decided that he made a bad decision in pleading
II. Disposition of the Motion
Applying the aforementioned principles, the Court must reject
Laano's Rule 32(e) motion. As noted above, Laano's motion to
withdraw his plea is based upon his assertion of actual
innocence. Additionally, he states that he was not thinking
clearly when he decided to plead guilty and that he "felt
compelled to accept the plea" to avoid financial consequences of
potential civil actions. Laano states that his "ability to make
a rational decision" at the time of the plea "was impaired
because [he] was under mental distress and duress."
Laano's current claim of innocence is not reason enough to
allow withdrawal of his plea. "Self-inculpatory statements . . .
made under oath carry a strong presumption of veracity." United
States v. Sagginario, 2001 WL 185051, at *2 (E.D.N.Y. Feb. 16,
2001), quoting, United States v. Maher, 108 F.3d 1513, 1530
(2d Cir. 1997). Allowing Laano to withdraw his plea of guilty
based on his claim of innocence requires the court to disregard
prior written and oral statements made under oath that were
treated as conclusive and truthful statements at the time they
were made. This, the court is unwilling to do.
Laano's claim of duress stems from his stated anticipation of
financial loss to him and concern for his wife at the time of
the pleading. Laano never conveyed to the court that he was
suffering under any duress. He is a highly educated physician
and submits no objective evidence in support of his current
claim. His claims of mental distress and family pressure are not
sufficient to allow withdrawal of a guilty plea. Accord United
States v. Diaz, 1997 WL 5907, at *1, 2 (S.D.N.Y. Jan. 7, 1997).
At the time of the plea, this court went to great lengths to
ensure that Laano entered his plea willingly, on the advice of
competent counsel and with a clear mind. Laano's confidential
review of the written plea with counsel and his ability to take
the time to understand the nature of the proceedings, makes its
difficult, if not impossible, to accept a claim that Laano was
under duress at the time of the plea.
Laano has raised no ground upon which his Rule 32(e) motion
can be granted. Nor has he set forth any information requiring
an evidentiary hearing. Under these circumstances, the motion
pursuant to Rule 32(e) of the Federal Rules of Criminal
Procedure is denied.
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