The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge
On January 21, 2004, Defendant Jerome Rosen pled guilty to one count
of conspiracy to commit securities fraud and wire fraud in violation of
18 U.S.C. § 371 and one count of securities fraud in violation of
15 U.S.C. § 78j(b) and 78ff. Faced with the prospect of an undesirable
sentence,*fn1 Rosen now moves to withdraw his guilty plea.
Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a
defendant who has pled guilty may withdraw his plea before he is
sentenced if he shows "a fair and just reason for requesting the withdrawal."*fn2 It is
well-settled, however, that a "defendant has no absolute right to
withdraw his plea of guilty." United States v. Williams,
23 F.3d 629, 634 (2d Cir. 1994). In fact, it is the defendant who bears the
burden of demonstrating valid grounds for withdrawal. See e.g.,
United States v. Avellino, 136 F.3d 249, 261 (2d Cir. 1998).
In determining whether there is a "`fair and just reason" to grant a
motion to withdraw a guilty plea prior to sentencing, a district court
should consider: (1) whether the defendant has asserted his legal
innocence; (2) the amount of time that has elapsed between the plea and
the motion; and (3) whether the Government would be prejudiced by a
withdrawal of the plea. See Fed.R.Cr.P. 32(d), Advisory
Committee Notes (1983 Amendment); United States v. Torres,
129 F.3d 710, 715 (2d Cir. 1997). In order to withdraw a guilty plea, a
defendant "must raise a significant question about the voluntariness of
the original plea." Torres, 129 F.3d at 715. These stringent
standards reflect a recognition that "[s]ociety has a strong interest in the finality of guilty pleas, and allowing
withdrawal of pleas `undermines confidence in the integrity of our
[judicial] procedures, . . . increas[es] the volume of judicial work,
[and] delays and impairs the orderly administration of justice.'"
United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989)
(quoting United States v. Timmreck, 441 U.S. 780, 784 (1979).
II. The Defendant Has Failed To Present A Fair And Just Reason
To Permit Withdrawal Of His Plea
Defendant Rosen makes several arguments in support of his motion for
withdrawal. First, the defendant argues that principles of contract law
appear to render the agreement void or voidable. Memorandum of Law in
Support of Motion to Withdraw Plea, dated May 14, 2004 ("Def. Memo") at
6. While defendant is correct that plea agreements are often interpreted
using contract law as a backdrop, he is incorrect in asserting that
contract law provides a basis for plea withdrawal here. For example, the
defendant argues that his plea "was unquestionably predicated on his
understanding that . . . the offered plea would permit him to resolve the
case with a substantial likelihood of no incarceration." Def. Memo at 7.
However, such a position is difficult to reconcile with the unambiguous
text of the Plea Agreement, dated January 20, 2004, and signed by the defendant and his attorney. According to
It is understood that the sentence to be imposed
upon the defendant is determined solely by the
Court. This Office cannot, and does not, make any
promise or representation as to what sentence the
defendant will receive. Moreover, it is understood
that the defendant will have no right to
withdraw his plea of guilty should the sentence
imposed by the Court be the result of calculations
different from those stipulated to herein.
Plea Agreement at 4 (emphasis added).
In addition to the above provision, the defendant's plea allocution
further undermines his claim that "had Mr. Rosen been confronted with a
plea agreement that required that he serve a substantial period of time
in prison, he would certainly have rejected it." Def. Memo at 9. At the
January 21, 2004 plea allocution, Rosen was asked a series of questions
by the Court. In pertinent part, what follows is a brief excerpt from the
colloquy that took place between the Court and the defendant:
Court: Has anyone made any prediction, prophecy,
or promise to you as to what your sentence will
Court: Do you understand that any recommendation
of sentence agreed to by you and the prosecution
or any agreement [that] the prosecution will not
oppose your attorney's requested sentence or
anything in that plea agreement or anyone's predictions
are not binding on the Court and that you might,
on the basis of your guilty plea receive up to the
maximum sentence that I have described to you
Defendant: Yeah, I do.
(1/21/04 Tr. at 11-12). Much like the written agreement, the above
plea colloquy makes abundantly clear that the defendant was fully aware
of the potential sentencing consequences of pleading guilty. Accordingly,
Defendant's argument: that there are "clear issues concerning the
voluntariness of the plea" is entirely unpersuasive.
The defendant's primary basis for seeking to withdraw his plea is that
the "possibility and likelihood of no period of incarceration" resulting
from the Plea Agreement "has been seemingly upended by the Probation
Office." Def. Memo at. 6. The Second Circuit, however, has explicitly
rejected such a rationale for plea withdrawal. In United States v.
Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992), the Circuit ruled that
"the fact that a defendant has 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."
In addition to Gonzalez, none of the factors that a district
court should consider in deciding whether there is a "fair and just
reason" to grant a motion to withdraw a guilty plea (1) whether
the defendant has asserted his legal innocence; (2) the amount of time
that has elapsed between the plea and the motion; and (3) whether the
Government would be prejudiced by a withdrawal of the plea-weigh in favor
of the defendant. First, the defendant has not asserted that he is
innocent; in fact, just the opposite. In the plea agreement signed by the
defendant, he acknowledged "that he has accepted this plea Agreement and
decided to plead guilty because he is in fact guilty." Plea Agreement at
The second factor to consider in determining whether withdrawal is
appropriate-the time that elapsed between the defendant's guilty plea and
his motion to withdraw-also weighs against granting the motion. In this
case, the defendant has waited approximately four months to attempt to
withdraw his plea. Such a strategic maneuver is plainly contrary to the
rationale for plea withdrawal as contemplated by most circuit courts. As
the Fifth Circuit held in United States v. Carr, 740 F.2d 339
, 345 (5th
The rationale for allowing a defendant to withdraw
a guilty plea is to permit him to undo a plea that
was unknowingly made at the time it was entered.
The purpose is not to allow a defendant to make a
tactical decision to enter a plea, wait several
weeks, and then obtain a withdrawal if he believes
that he made a bad choice in pleading guilty.
Here, permitting the defendant to withdraw his plea would serve to
undermine, rather than effectuate, the rationale for plea withdrawal.
Finally, the defendant cannot, and does not, make any plausible claim
that his plea was coerced. Indeed, at the January 21, 2004 allocution,
the defendant confirmed that no one threatened him or forced him in any
way to plead guilty. See 1/21/04 Tr. at 10. Additionally, the
defendant stated that outside the parameters of the plea agreement, no
one made any promises to Rosen to force him to plead guilty.
Id. at 11.
The circumstances in which a court should grant a defendant's motion to
withdraw a plea are extremely narrow. In essence, withdrawal is only
permitted when a defendant has raised a "significant question about the
voluntariness of the original plea." See Torres, 129 F.3d at
715. No such question exists here. In fact, after a thorough review of both the text of the plea agreement and the transcript of
the plea allocution, the only reasonable conclusion to ...