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U.S. v. ROSEN

United States District Court, S.D. New York


June 2, 2004.

UNITED STATES OF AMERICA, -against- JEROME ROSEN, Defendant

The opinion of the court was delivered by: SHIRLEY KRAM, Senior District Judge

OPINION

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.

I. Applicable Law

  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 the Agreement:

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 be?
Defendant: No.
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 earlier?*fn3
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 5.

  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 Cir. 1984):

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 draw is that the defendant's plea was knowing and voluntary. Accordingly, Rosen's motion to withdraw his plea is DENIED.

  SO ORDERED.


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