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U.S. v. HARRIS
July 27, 2001
UNITED STATES OF AMERICA, PLAINTIFF,
EDWARD LEE HARRIS, DEFENDANT.
The opinion of the court was delivered by: David G. Larimer, Chief Judge, United States District Court
Defendant, Edward Lee Harris ("Harris"), was originally sentenced on
May 7, 1993, to 240 months imprisonment on his guilty plea to Counts 1
and 9 of the indictment. Harris had pleaded guilty during his trial for
cocaine conspiracy pursuant to a written plea agreement ("Agreement").
Harris was resentenced on October 7, 1998, as a result of matters raised
in his petition for habeas corpus relief pursuant to 28 U.S.C. § 2255.
On that day, Harris received the same sentence of imprisonment (240
months), and he timely appealed the Judgment and Commitment to the Second
Circuit Court of Appeals. On April 12, 2000, the Court of Appeals
affirmed Harris's conviction but remanded for resentencing. (United
States v. Harris, 209 F.3d 156). The case is now before me for sentencing
After an amended presentence report was prepared and distributed to the
parties, Harris moved, in the alternative, to withdraw his guilty plea
and/or to compel the Government to comply with the terms of the Agreement
and file a motion for departure based on his cooperation with the
Government subsequent to entry of the plea.
The Court heard argument on Harris's motion to withdraw the plea and
also held an evidentiary hearing on that part of the motion seeking
specific performance by the Government concerning the filing of a
MOTION TO WITHDRAW THE GUILTY PLEA
Harris claims that the Government acted in bad faith at his original
sentencing in 1993 when it declined to make a departure motion at his
sentencing. Harris claims that he cooperated with the Government, under
the terms of the Agreement, but that the Government failed to follow
through and move for a departure and that it did so in bad faith.
As a remedy for this defalcation, Harris seeks to either withdraw his
guilty plea or compel the Government to do what it should have done
— move for departure. Harris does not claim that there is any other
basis to withdraw his guilty plea except for the Government's failure to
abide by the Agreement. Under these circumstances, there is no basis to
vacate the plea.
If in fact the Government has acted in bad faith, the remedy is not to
vacate the plea but to enforce the agreement, as contemplated by the
parties. At oral argument on the motions, Harris's counsel recognized that
vacating the plea was not the sole remedy for breach of the Agreement due
to the Government's bad faith. Depending on the facts and circumstances,
enforcing the agreement is usually the more practical and appropriate
"A defendant has no absolute right to withdraw his plea of guilty,"
even prior to sentence. United States v. Williams, 23 F.3d 629, 634 (2d
Cir.), cert. denied, 513 U.S. 1045 (1994). See also United States v.
Reyes, 13 F.3d 638, 640 (2d Cir. 1994).
Under Rule 32(d), prior to sentencing, court may permit a defendant to
withdraw his plea "upon a showing by the defendant of any fair and just
reason." "Whether the movant has asserted his legal innocence is an
important factor to be weighed, as is the reason why the defenses were
not put forward at the time of the original pleading." Notes to 1983
amendment (citing United States v. Needles, 472 F.2d 652 (2d Cir. 1973))
(other citation omitted). "The amount of time which has passed between
the plea and the motion must also be taken into account." Id. The longer
it took the movant to seek withdrawal, the less likely his reasons will
justify permitting him to withdraw the plea. Id. Courts have also
considered whether the defendant could have presented the grounds for
withdrawal earlier, the defendant's nature and background, and his prior
experience with the criminal justice system. United States v. Bashara,
27 F.3d 1174, 1181 (6th Cir. 1994), cert. denied, 513 U.S. 1115 (1995).
Prejudice to the Government is another factor that may be considered,
although the Government has no burden to show prejudice where the
defendant has not shown sufficient grounds for permitting withdrawal.
United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992); United
States v. Saft, 558 F.2d 1073 (2d Cir. 1977). Possible reasons for
prejudice include loss of evidence or witnesses, or the fact that
codefendants have already been tried. 1983 Amendment Notes (citing United
States v. Lombardozzi, 436 F.2d 878 (2d Cir.) (other defendants had
already been tried), cert. denied, 402 United States 908 (1971)). The
defendant must satisfy the court that his reasons "are not outweighed by
any prejudice to the government." United States v. Vega, 11 F.3d 309, 313
(2d Cir. 1993).
Harris has not demonstrated a good and just reason to withdraw his
guilty plea. The plea was entered over eight years ago. There is no
suggestion that Harris was not fully apprised of the consequences of
pleading guilty, including the mandatory 20-year minimum term of
imprisonment. The colloquy between the Court and Harris was detailed and
clear and Harris has not suggested otherwise. Harris has never claimed
legal innocence concerning the charges against him nor has he justified
the delay occurring after the plea and sentence before he moved to vacate
the plea. The lengthy delay in moving to withdraw the plea is sufficient
reason by itself to deny the requested relief.
Furthermore, the Government has demonstrated significant prejudice
should the motion to vacate be granted now. All of Harris's codefendants
have either pleaded guilty or been found guilty after trial. Harris
himself pleaded in the middle of his own trial. Over a decade has elapsed
since the events occurred that resulted in Harris's indictment. In
addition, the cocaine seized as part of the investigation was routinely
destroyed pursuant to DEA regulations after the plea and sentencing. It
may well be difficult, if not impossible, for the Government to proceed
to trial now without the evidence seized during the conspiracy.
Harris pleaded guilty during his trial to Count 1 of the indictment,
which charged him with engaging in a criminal enterprise
(21 U.S.C. § 848) involving narcotics, and to Count 9, a forfeiture
count (21 U.S.C. § 853). He also pleaded guilty to an information
charging income tax evasion (26 U.S.C. § 7201).
The plea was entered pursuant to an eleven-page written Agreement. The
Agreement recited the minimum and maximum sentences faced by Harris, 240
months to life imprisonment, as well as the applicable Sentencing
Guideline range, 210-262 months imprisonment. The tax count provided for
a maximum sentence of 60 months imprisonment.
In consideration for Harris's guilty plea, the Government agreed to
three items, all of which benefitted Harris. The Government agreed to
recommend to the Court that Harris receive the lowest possible sentence
on Count 1, the statutory minimum of 240 months. In addition, the
Government agreed to recommend that the sentence on the tax count run
concurrently with the 240-month term on Count 1. At sentencing, the
Government did make those recommendations to the Court and sentence was
The third item placed in the Agreement in consideration for Harris's
guilty plea was the provision for cooperation by Harris, which carried
with it the potential for a reduction of the sentence below the 240-month
statutory minimum. Harris testified at the hearing on the motion that
inclusion of the cooperation provision in the Agreement was very
important to him. Both he and the prosecutor testified that the provision
was put in the Agreement at Harris's request, so that he ...