United States v. Hunt

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2000 FED App. 0084P (6th Cir.)

File Name: 00a0084p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

;



UNITED STATES OF AMERICA,



Plaintiff-Appellee,





Nos. 98-1047/1762

v.



>

DAVID CHARLES HUNT, 

Defendant-Appellant. 1

Appeal from the United States District Court

for the Eastern District of Michigan at Flint.

No. 95-50041—Paul V. Gadola, District Judge.

Argued: December 6, 1999

Decided and Filed: March 9, 2000

Before: COLE and GILMAN, Circuit Judges; CARR,

District Judge.*

_________________

COUNSEL

ARGUED: Kenneth R. Sasse, FEDERAL DEFENDER’S

OFFICE, Flint, Michigan, for Appellant. Mark C. Jones,

ASSISTANT UNITED STATES ATTORNEY, Flint,

*

The Honorable James G. Carr, United States District Judge for the

Northern District of Ohio, sitting by designation.

1

2 United States v. Hunt Nos. 98-1047/1762 Nos. 98-1047/1762 United States v. Hunt 11

Michigan, for Appellee. ON BRIEF: Kenneth R. Sasse, States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998). “If a

FEDERAL DEFENDER’S OFFICE, Flint, Michigan, for motion to a withdraw a plea of guilty or nolo contendere is

Appellant. Mark C. Jones, ASSISTANT UNITED STATES made before sentence is imposed, the court may permit the

ATTORNEY, Flint, Michigan, for Appellee. plea to be withdrawn if the defendant shows any fair and just

reason.” Fed. R. Crim. Pro. 32(e). The defendant has the

_________________ burden of proving that withdrawal of the plea is justified.

United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996). In

OPINION deciding whether a defendant has stated a fair and just reason

_________________ to allow withdrawal of a plea, the factors to be considered are:

JAMES G. CARR, District Judge. This is an appeal from 1) the amount of time that elapsed between the plea and

a criminal sentence imposed on defendant by the United the motion to withdraw it; 2) the presence (or absence) of

States District Court for the Eastern District of Michigan. a valid reason for the failure to move for withdrawal

Defendant pled guilty to conspiracy to distribute cocaine, earlier in the proceedings; 3) whether the defendant has

distribution of cocaine and felony possession of a firearm. asserted or maintained his innocence; 4) the

(J.A. at 26). circumstances underlying the entry of the guilty plea; 5)

the defendant’s nature and background; 6) the degree to

Before sentencing, defendant moved for an in camera which the defendant has had prior experience with the

hearing to determine whether, as he claimed, the government criminal justice system; and 7) potential prejudice to the

violated his plea agreement’s written terms. (J.A. at 36-44). government if the motion to withdraw is granted.

Specifically, defendant alleged that the government breached

his plea agreement by failing to: 1) release him on bond so United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994).

that he could actively assist the government in other

investigations, 2) interview him a series of times (i.e., more The district court applied the preceding factors and

than twice), thereby thwarting his ability to cooperate with determined, within its discretion, that withdrawal was

law enforcement officials, and 3) administer a lie detector test inappropriate. (J.A. at 84-85). The district court did not

to determine if he provided truthful information during two abuse its discretion given: 1) the length of time of time

interviews. In the alternative to a hearing, defendant between entry of defendant’s plea and his motion for

requested leave to withdraw his guilty plea. (Id.). withdrawal (almost one year), 2) the absence of any breach of

the plea agreement, 3) defendant’s confession of guilt, 4) the

The district court refused to hold a hearing, finding that the careful reading of the plea agreement’s terms to defendant at

plain and unambiguous terms of the plea agreement had not the plea hearing, and 5) defendant’s criminal history. (Id.).

been breached. (J.A. at 79-82). Further, the district court

would not allow defendant to withdraw his plea because he CONCLUSION

had not satisfied his burden of withdrawal under Rule 32 of

the Federal Rules of Criminal Procedure. (J.A. at 83-85). For the foregoing reasons, the opinion of the district court

is AFFIRMED.

In a motion for reconsideration, defendant raised a new

basis for a hearing. He argued that the government made oral

promises to him while negotiating the plea agreement. Those

promises, he claimed, had not been fulfilled. The district

10 United States v. Hunt Nos. 98-1047/1762 Nos. 98-1047/1762 United States v. Hunt 3

Further, bad faith on the part of the government is not the court denied defendant’s motion for reconsideration because,

standard of review in downward departure cases. We among other things, the plea agreement contained an

previously have held that a hearing is not needed unless the integration clause, restricting its terms to those written within

government’s refusal to recommend a downward departure its four corners. (J.A. at 100).

“was based on an unconstitutional motive.” United States v.

Bagnoli, 7 F.3d 90, 92 (6th Cir. 1993) (citing Wade v. United Defendant argues here that the district court erred in not

States, 504 U.S. 181 (1992)). No threshold showing of allowing a hearing. He claims a hearing was necessary to: 1)

unconstitutional motive has been made here. determine whether the government breached its oral promises;

2) assess whether the government failed to provide him with

Indeed, the district court demonstrated why the government a good faith opportunity to cooperate; and 3) establish

had fully complied with the terms of the plea agreement. whether his guilty plea was valid. (Defendant’s Brief at 11-

(J.A. at 79-82). In its order, the district court noted that the 17).

plain language of the plea agreement made clear that the

government did not have any obligation to release defendant For the following reasons, we AFFIRM the judgment of the

on bond, interview defendant any set number of times, or district court.

administer a lie detector test. (J.A. at 79-82). A review of the

plea agreement confirms this. (J.A. at 56-66). Thus, it was BACKGROUND

permissible to interview defendant twice for his cooperation,

and, when the government concluded substantial assistance A grand jury in the Eastern District of Michigan returned an

was not forthcoming, decline to recommend a downward indictment against defendant for seven counts of conspiracy

departure. (J.A. at 62). Nothing about the government’s to distribute cocaine, distribution of cocaine, use of a firearm

conduct raises constitutional concerns. during the commission of a drug offense, possession of a

firearm by a felon, and possession of a firearm with an

III. Plea Validity obliterated serial number. (J.A. at 18-24). On May 28, 1996,

defendant pled guilty to three of the seven counts and

Defendant argues that the district court should have held a forfeited two vehicles as part of his Rule 11 plea agreement.

hearing to consider whether he entered into his guilty plea (J.A. at 26).

voluntarily and, thus, validly.

Defendant’s plea agreement contains three clauses that are

Defendant, however, never moved the district court to hold relevant here. First, it contains an integration clause

a hearing to determine if his plea was valid. Rather, he asked, restricting its terms to those written within its four corners:

as an alternative to a hearing, that his plea be withdrawn

based on its alleged invalidity. That alternative request was No Other Terms. This agreement incorporates the

denied because defendant failed to satisfy his burden of complete understanding between the parties, and no other

withdrawal under Rule 32 of the Federal Rules of Criminal promises have been made by the government to the

Procedure. (J.A. at 83-85). Thus, the only question defendant or to the attorney for the defendant.

appropriately presented is whether the district court

misapplied Rule 32. (J.A. at 34). Second, the plea agreement contains a

cooperation clause, obligating defendant to assist the

Denial of a defendant’s motion to withdraw his guilty plea government in other investigations:

under Rule 32 is reviewed for an abuse of discretion. United

4 United States v. Hunt Nos. 98-1047/1762 Nos. 98-1047/1762 United States v. Hunt 9

Truthful Information and Assistance. Defendant reliance on the written plea agreement. Id. But we

promises to provide truthful and complete information to emphasized that an integration clause “would ordinarily

the United States Attorney’s office and to other law prevent any assertion that there were side deals or promises.”

enforcement agencies, including a full debriefing and Id. (emphasis added).

truthful testimony at all proceedings, . . . . Defendant

agrees to be available for interviews in preparation of all Here, there are no circumstances justifying a departure from

testimony. Defendant further agrees to submit, upon the ordinary rule set forth in Peavy. Unlike the defendant in

request, to government- administered polygraph Peavy, defendant in this case has filed no affidavit attesting to

examinations to verify defendant’s full and truthful a side agreement with the government. And the government,

testimony. though it has filed no supporting affidavits of its own, denies

that any such oral agreement exists. (Government’s Brief at

(J.A. at 30-31). Third, the plea agreement contains a clause 11) (“[T]here were no agreements whatsoever which were not

requiring the government to inform the district court of contained in the Rule 11 [plea agreement].”). Given this

defendant’s substantial assistance in other investigations and, denial, the integration clause, and defendant’s failure to file

if appropriate, recommend a downward departure from the an affidavit, the district court was correct in finding that no

sentencing guidelines: hearing was necessary.

Substantial Assistance Determination. Upon the Defendant attempts to distinguish Peavy on the basis that

government’s determination that defendant’s cooperation it was a post-sentencing challenge to a plea agreement

amounts to substantial assistance in the investigation of pursuant to 28 U.S.C. § 2255. (Defendant’s Brief at 12-13).

others, the government will advise the court of the But the fact that the challenge here occurred before sentencing

defendant’s cooperation at sentencing, and, if is unremarkable. Once the government enters into a Rule 11

appropriate, request the court to depart downward from plea agreement containing an integration clause, the result

the applicable sentencing range. The government ordinarily should be final and immune from collateral attack,

reserves the right to make the sole determination as to whether such attack occurs before or after sentencing.

whether and when defendant has provided substantial

assistance. II. Bad Faith

(J.A. at 31). Defendant claims the government frustrated his ability to

cooperate and, thus, qualify for a downward departure from

On May 29, 1996, the district court held a plea hearing in the sentencing guidelines. He further alleges that the

accordance with Rule 11. At the hearing, the district court government acted in bad faith, which he was not given an

reviewed the details of the plea agreement with defendant. opportunity to prove at a hearing. (Defendant’s Brief at 14-

(J.A. at 115-119). Defendant was asked whether he 16).

understood that the plea agreement was a fully integrated

document: Defendant’s allegation of bad faith is raised for the first

time on appeal. He never alleged bad faith to the district

THE COURT: Paragraph nine says this is a complete court. Rather, he simply maintained that the government

Agreement between yourself and the Government, and violated the plea agreement, without making any claim that

there have been no other promises made to you. Do you the government was improperly motivated. Defendant’s

understand that is in this document? argument is fatally flawed for this reason alone.

8 United States v. Hunt Nos. 98-1047/1762 Nos. 98-1047/1762 United States v. Hunt 5

I. Oral Promises DEFENDANT: Yes. . . .

In his motion for reconsideration, defendant claimed that ...

the government made two oral promises to him that had not

been fulfilled. First, he claimed the government promised THE COURT: Has anyone directly or indirectly made

him a polygraph test, which it never administered. (J.A. at any promises . . . other than the terms of this [p]lea

88). Second, he claimed the government promised not to [a]greement to get you to plead guilty to these charges?

confiscate two of his vehicles if the polygraph results showed

that he had not used those vehicles in the commission of a DEFENDANT: No.

drug offense, but then confiscated them without giving him a

chance to take the polygraph. (Id.). Defendant explained that (J.A. at 118-119) (emphasis added). The district court also

these unfulfilled promises were not included in the written confirmed that defendant understood that the government

plea agreement for his protection (id.), yet were intended to be alone, in its discretion, would determine whether he had

binding on the government. Defendant repeats this argument cooperated in other investigations and, thus, was eligible for

here. (Defendant’s Brief at 11-13). a recommendation of downward departure:

An integration clause normally prevents a criminal THE COURT: All right. Paragraph 3B says that if the

defendant, who has entered into a plea agreement, from Government determines that your cooperation has

asserting that the government made oral promises to him not amounted to substantial assistance in the investigation of

contained in the plea agreement itself. Peavy v. United States, other people, the Government will tell me about your

31 F.3d 1341, 1345 (6th Cir. 1994). In Peavy, the defendant cooperation at the time of sentencing, and if the

pled guilty to distribution of cocaine. His Rule 11 plea Government deems it appropriate, the Government will

agreement contained an integration clause. After sentencing, request that I depart downward from the applicable

he claimed to have had an oral arrangement with the sentencing range for you under the sentencing guidelines.

government to reduce his sentence if he cooperated in an You understand that, sir?

ongoing FBI investigation. He further claimed the

government failed to live up to its end of the bargain after he DEFENDANT: Yes.

provided the cooperation requested. Accordingly, defendant THE COURT: It goes on to say that the Government

sought a hearing at which to contest his guilty plea. has the right to make the sole determination as to

Defendant’s attorney, who was with him at the time the whether you have provided that cooperation and

government’s alleged promise was made, filed an affidavit substantial assistance and as to whether you have

with the district court attesting to the existence of an oral provided it. You understand that, sir?

promise.

The government in Peavy conceded that it had entered into DEFENDANT: Yes.

a oral promise with the defendant, and that the promise was (J.A. at 116-17) (emphasis added). Following this

omitted from the plea agreement. But the government questioning, the district court found that the plea agreement

disputed the terms of the oral promise. satisfied Rule 11. (J.A. at 118).

A hearing was necessary in Peavy because both sides

acknowledged an oral promise and the government placed no

6 United States v. Hunt Nos. 98-1047/1762 Nos. 98-1047/1762 United States v. Hunt 7

Defendant’s sentencing was set for September 12, 1996, In December 1997, nearly a year after the adjournment, the

and then moved to January 9, 1997. (J.A. at 121). Between district court reconvened the parties for sentencing.

the plea hearing and January 9, 1997, law enforcement Defendant’s lawyer asked for another delay of sentencing and

officials interviewed defendant twice. (J.A. at 38). During an extension of time to cooperate. (J.A. at 120-21). But the

those interviews, the government claims defendant was district court denied this request:

uncooperative, and that he did not proffer any information

regarding his knowledge of illegal activities. (Government’s THE COURT: . . . I’m aware that we were back then on

Brief at 6). Defendant claims he “fully cooperated” during January 9th, 1997 for sentencing and then there was – I

the interviews, “providing sensitive information . . . that believe the matter was adjourned so that your client

clearly would aide in seeking independent indictments.” (J.A. [defendant] could have an opportunity to provide some

at 38). cooperation to the government. And so now almost a

year has passes since then . . . . Here we are again, and

Because the government found the interviews to be you want more time? I’m not disposed to give it. . . .

unproductive, it adjourned the January 9th sentencing to

provide defendant with another chance to cooperate. (J.A. at ...

81). Confirming by letter the adjournment with defendant’s

lawyer, the government requested a written proffer from [W]ithin one year after sentencing if Mr. Hunt can

defendant: furnish some substantial assistance during that period,

the government, within one year, can come back and

As you know, I agreed, with some reluctance, to an make a motion to reduce the sentence. We’re all aware

adjournment . . . on January 9, 1997. I am writing to of that, but I don’t see any reason why at this point . . . I

advise you of my position as to the issue of cooperation. should again adjourn this sentencing so that Mr. Hunt

can cooperate with the government.

I have previously written to you about my concern with

the fact that Mr. Hunt has been reluctant to cooperate. (J.A. at 121-22).

Indeed, my investigating officers have expressed to me

their views that there is no point in a further proffer from The district court sentenced defendant to 136 months in

him. prison (J.A. at 102-03), and this appeal followed.

As such, at this point, I am respectfully asking that you DISCUSSION

meet with Mr. Hunt and prepare a specific and detailed

explanation of his knowledge of illegal activities and his Defendant asserts that the district court erred in not

proposed cooperation. I will submit it to the allowing a hearing. He claims a hearing was necessary for

investigating officers. If we feel that it justifies a re- three reasons: first, to determine whether the government

examination of the cooperation issue, we will advise you. breached its oral promises; second, to assess whether the

government failed to provide him with a good faith

(J.A. at 67-68) (emphasis original). opportunity to cooperate; and third, to establish whether his

guilty plea was valid. (Defendant’s Brief at 11-17). None of

Defendant never accepted the government’s invitation to these contentions has merit.

submit a written proffer. (Government’s Brief at 7).