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July 27, 2001


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 de novo.

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 departure motion.


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 remedy.

"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.

After reviewing the record, I conclude that Harris has not carried his burden of demonstrating a "fair and just reason" for allowing him to withdraw his guilty plea. This is so even if Harris prevails on his argument that the Government acted in bad faith in refusing to make a motion for a reduction of the sentence. If it is determined that the Government has acted in bad faith, the remedy is not to vacate the guilty plea but to enforce the Agreement, as contemplated by the parties. Enforcing the contractual obligations of the parties under such an agreement is the proper and appropriate remedy. United States v. Knights, 968 F.2d 1483, 1486 (2d Cir. 1992).


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 imposed accordingly.

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 ...

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