384 F.Supp.2d 495 (2005) | Cited 1 time | D. Massachusetts | August 25, 2005


Defendant was charged with conspiracy to defraud the UnitedStates in violation of 18 U.S.C. § 371; on June 17, 1992 heappeared with counsel, waived his right to indictment and pledguilty before Sr. Judge Frank H. Freedman. On Sunday, October 25,1992, the day before his scheduled sentencing, the defendantcontacted his attorney and indicated that he did not intend toappear in court the following day. On May 11, 1993, defendant wasindicted for failure to appear, in violation of 18 U.S.C. § 3146.He remained a fugitive until his arrest by U.S. Marshals onSeptember 10, 2004, in Memphis, Tennessee.

Defendant has now moved to withdraw his guilty plea, based uponalleged violations of his Fifth, Sixth and Fourteenth Amendmentrights, as well as a violation of Fed.R.Crim.P. 7(b). For thereasons set forth below, the court will deny this motion.


During the late 1980's the defendant was the owner and operatorof an adult entertainment bar in Springfield, Massachusetts,known as the Mardi Gras. In 1988 and 1989 the government beganinvestigating the defendant for "skimming" money from the bar —that is, failing to report business proceeds as taxable. Thegovernment was also looking into the defendant's investment ofthe skimmed funds in annuities, rare coins and a condominium.

During this investigation, the defendant was represented byAttorney Richard Birchall, who also represented Maurice Kirby,defendant's accountant and criminal associate. As theinvestigation unfolded, both Kirby and the defendant met with theprosecutor at proffer sessions. Kirby was eventually charged in aseparate proceeding, pled guilty on February 28, 1992 and wassentenced on April 24, 1992 to serve a fifteen-month term ofimprisonment.

On December 13, 1991, the government conveyed to thedefendant's counsel a plea agreement, which was signed bydefendant on February 18, 1992. In it, the defendant agreed towaive indictment and plead guilty to a one-count informationcharging him with violating 18 U.S.C. § 371 by conspiring toevade taxes owed to the federal government. The plea agreement laid out the potential penalty faced by the defendant and notedthat the U.S. Attorney would recommend a sentence within theGuideline range.

On June 17, 1992 the defendant appeared before Sr. Judge FrankH. Freedman to offer his plea. Judge Freedman confirmed that thedefendant was aware that his attorney had been representing Kirbyand that he was nevertheless willing to have Attorney Birchallcontinue to represent him.

It is significant that Kirby was not a co-defendant, but wascharged separately with offenses arising out of the same facts.Kirby had, as noted, already pled guilty and been sentenced bythe time this defendant appeared to offer his plea. Defendant'scounsel confirmed that he had been representing both Kirby andthe defendant "for about two years" and "we have all beenfamiliar with it." Docket No. 6, Transcript at 3. In addition,the Assistant U.S. Attorney prosecuting the case confirmed that,if the government had taken the case against this defendant totrial, Kirby would not have been called by the government as awitness.

The court then confirmed on the record that the defendantintended to waive prosecution by indictment and proceed byinformation. The waiver was confirmed by a written document thatthe defendant signed. Although Judge Freedman generally describedthe defendant's rights to him, and the defendant was aware of the nature of the charge against him, the judge did notspecifically advise the defendant of his right to indictment andthe particular rights he would be giving up by agreeing toprosecution by information. In addition, in discussing AttorneyBirchall's joint representation of Kirby, Judge Freedman did notenter into the detailed colloquy contemplated by United Statesv. Foster, 469 F.2d 1 (1st Cir. 1972), and its progeny. SeeFed.R.Crim.P. 44(c)(2), and the commentary on the 1979Amendment to the Rule.

The court did, however, go through a detailed colloquy indetermining that the defendant was offering his plea of guiltyknowingly and voluntarily. The Assistant U.S. Attorney summarizedthe evidence that the government would have offered, primarilythrough the defendant's co-defendant, George David, who wascooperating. The charge encompassed not only the skimming offunds and their investment in annuities, rare coins and thecondominium, but also perjury given by the defendant during thegrand jury proceeding. No objection was offered by the defendantor his counsel to the substance of the criminal activitysummarized by the prosecutor, although there was some discussionabout the impact of the plea upon any civil proceedingscontemplated by the defendant against the co-defendant David orby the Internal Revenue Service against the defendant "for incometax that they feel is due and owing." Docket No. 6, Transcript at 19.

As noted, defendant failed to appear for his sentencing andremained at large for nearly thirteen years. At the time he wasarrested, the defendant was found in possession of over $700,000in cash, either on his person or in a storage box maintainedoutside his residence.


Fed.R.Crim.P. 11(d) permits a defendant to withdraw his pleaof guilty where the defendant can show a fair and just reason forrequesting the withdrawal. The First Circuit has noted a numberof factors to be considered by the court in determining whetherwithdrawal is appropriate. These include whether the defendant'sguilty plea was knowing, voluntary and intelligent; "the forceand plausibility of the proffered reason;" whether the defendantis asserting legal innocence; the existence of a plea agreement,and the timing of the request. U.S. v. Isom, 85 F.3d 831, 834(1st Cir. 1996); U.S. v. Kobrosky, 711 F.2d 449, 455 (1st Cir.1983).

Even if the defendant successfully brings forward a fair andjust reason for withdrawing his guilty plea, the court's analysisdoes not end there. The court must next consider "undueprejudice" that might be suffered by the government as a resultof withdrawal of the plea. Kobrosky, 711 F.2d at 455; seealso Isom, 85 F.3d at 835; U.S. v. Ramos, 810 F.2d 308, 313 (1st Cir. 1987) (stating that an analysis of prejudice is notnecessary unless the defendant makes a requisite showing of afair and just reason for withdrawing the plea). Additionally, thecourt may consider any "substantial inconvenience it would sufferwere the plea to be withdrawn." Kobrosky, 711 F.2d at 455.

The court notes from the outset that the defendant waited overthirteen years after he entered his plea before filing a motionto withdraw his guilty plea. This substantial delay has relevanceboth to the timing of the defendant's motion, as well as theplausibility of his proffered reason for withdrawing his plea.

The First Circuit has upheld findings of unreasonable delay incases involving one-tenth the amount of time in this case. U.S.v. Pagan-Ortega, 372 F.3d 22, 31 (1st Cir. 2004) (involving atwo-month delay); U.S. v. Solano-Moreta, No. 98-1091, 1998 WL1085815, at *2 (1st Cir. Dec. 1, 1998) (involving an"unreasonable" delay of six months); U.S. v. Marreno-Rivera,124 F.3d 342, 353 (1st Cir. 1997) (involving an "extended" delayof fourteen weeks). Furthermore, the longer a defendant waits towithdraw his plea, the "more forceful his reasons in support ofwithdrawal must be." U.S. v. Laliberte, 25 F.3d 10, 15 (1stCir. 1994); U.S. v. Parrilla-Tirado, 22 F.3d 368, 373 (1st Cir.1994) (stating that a delay of six months between the plea and defendant's motion to withdraw his plea "cast[s] a longshadow over the legitimacy of his proffered reasons for seekingto change course"). The defendant's "extended delay in seeking tovacate the guilty plea likewise diminishes [the] plausibility" ofthe principal grounds on which his motion is based.Marreno-Rivera, 124 F.3d at 353.

Thus, defendant's motion to withdraw his plea fares poorly withrespect to the factors of plausibility and timing. Additionally,the government and the defendant did reach a plea agreement here,which also cuts against the defendant. The court will nowconsider the defendant's three principal arguments in support ofhis effort to withdraw his plea.

First, the defendant points to the alleged failure of the courtto advise the defendant as to his rights in connection with thewaiver of indictment and agreement to proceed by information, asset forth in Fed.R.Crim.P. 7(b). Courts have frequently found,however, that, where the defendant's essential rights wereadequately protected, a technical violation of Rule 7 will notentitle the defendant to substantive relief. See U.S. v.Moore, 37 F.3d 169, 173 (5th Cir. 1994) ("Rule 7(b) requiresthat the defendants be informed of the nature of the charge andtheir rights, but does not impose on the court an obligation todo anything."); Ornelas v. U.S., 840 F.2d 890, 892 (11th Cir.1988) ("A technical violation of Rule 7(b) is not an error that warrants reliefpursuant to 28 U.S.C. § 2255."); U.S. v. Ferguson,758 F.2d 843, 852 (2nd Cir. 1985); U.S. v. Montgomery, 628 F.2d 414, 416(5th Cir. 1980); U.S. v. Travis, 735 F.2d 1129, 1131 (9th Cir.1984), and U.S. v. Hammerman, 528 F.2d 326, 332 (4th Cir.1975).

Several factors support the government's position that thewaiver of indictment was valid here. First, the fact thatdefendant would be waiving indictment and proceeding byinformation appeared in the plea agreement, signed four monthsprior to the plea proceeding. Clearly, the defendant had ampletime to discuss this issue before pleading. Second, the courtorally confirmed to the defendant that he was agreeing to waiveindictment and proceed by information. Third, this waiver wasfurther confirmed in writing, at a time when the defendant wasfully aware of the charges against him.1 Under thesecircumstances, even assuming a technical violation of Rule 7(b),the defendant has not shown that he suffered any sufficientlysubstantive prejudice to justify withdrawal of his guilty plea, especially after such a long period of time.

Defendant's second argument is that the conflict created by hisattorney's representation simultaneously of himself and of Kirbywas so gross as to create a conclusive presumption of prejudice.In support of this argument, the defendant cites Wheat v. UnitedStates, 486 U.S. 153 (1988). Wheat involved a situation wherethe Supreme Court affirmed a trial judge's denial of adefendant's request to be represented by an attorney representinga co-defendant as a proper exercise of the court's discretion.Nothing in the decision suggests that, where a conflict exists,substantive prejudice must be presumed.

Here, it is unclear whether any inquiry pursuant toFed.R.Crim.P. 44(c)(2) was required. Kirby was not a co-defendant. Hewas not slated to be a witness in the government's case. He hadalready pled guilty and been sentenced. Moreover, Judge Freedmandid specifically inquire about the existence of the conflict andobtained the defendant's consent to proceed. Again, in thecontext of a thirteen-year delay, the substantive prejudice, ifany, to the defendant in these circumstances is simplyinsufficient to justify withdrawal of the guilty plea.

If, as the defendant now alleges, he was unaware of the extentof Kirby's cooperation against him, and unaware of his attorney's purported orchestration of cooperation by one clientagainst another, then defendant's unhappiness with theprofessional and ethical behavior of his attorney is certainlyunderstandable. At the same time, the record does not presentevidence of any substantive prejudice to the defendant. SeeBrien v. U.S., 695 F.2d 10, 15 (1st Cir. 1982) (stating thatthe conflict "must be real, not some attenuated hypothesis havinglittle consequence to the adequacy of representation"). In otherwords, the defendant has not pointed to anything that hisattorney did, or failed to do, as a result of his representationof Kirby that placed the defendant in a more disadvantageousposition than he would have occupied had his attorney notrepresented Kirby at all. The fact of the matter was, as theAssistant U.S. Attorney pointed out, the government did not needKirby's testimony at trial, because it had the defendant'sco-defendant, David, actively cooperating and prepared to testifyagainst the defendant. While Attorney Birchall's conduct may havebeen reprehensible, if defendant's allegations are believed, thisis simply a case of no harm, no foul. Neither Wheat nor anyother case suggests that prejudice must be presumed.2 The defendant's last argument is that he was simply not awareof the full nature of the charges against him and the potentialconsequences of his plea, and therefore failed to offer his pleaof guilty knowingly and intelligently. The transcript of the pleaproceeding belies this broad argument.

Finally, even if the court were to find that the defendant'sarguments establish a fair and just reason, the more thanthirteen-year delay between the defendant's initial plea and hismotion to withdraw the plea presents a significant risk of unfairprejudice to the government. It is true, as defense counsel haspointed out, that the defendant's cooperating co-defendant,David, is apparently still alive and available. Also, almost allthe documents associated with the case have been located. Thesefactors, however, cannot offset the obvious difficulties thatarise following such a lengthy delay. Far shorter delays havebeen found to constitute unfair prejudice. See i.e., U.S. v.Pellerito, 878 F.2d 1535, 1541 (1st Cir. 1989) (eight-week delayprejudicial); Kobrosky, 711 F.2d at 455 ("[T]he longer thedelay in moving for a plea withdrawal, the greater this prejudice[to the government] is likely to be."). In sum, in "calibrating the scales," all the factors the courtmust consider to decide defendant's motion to withdraw his pleaweigh against allowing his motion. Pellerito, 878 F.2d at 1541.


For the foregoing reasons, the defendant's Motion to Withdrawhis Guilty Plea is hereby DENIED. The clerk will set this matterdown for a prompt status conference to establish a date forsentencing.3

It is So Ordered.

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