Petition for Writ of Certiorari — Mizani v. United States

Supreme Court, us.

FILED

()

96 6BOSNOV 119%

No-CPPICE OF THE CLERK

In The ‘

Supreme Court of the United States

October Term, 1996

¢

MOHAMMED MIZANI, a/k/a JOHN MARJANI,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

4

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Third Circuit

¢

PETITION FOR WRIT OF CERTIORARI

*

EvizaBeTH K. AINSLIE

Counsel of Record

Attorney for Petitioner

Mohammed Mizani

AINSLIE & BRONSON

1101 Market Street, Suite 2630

Philadelphia, PA 19107

(215) 574-0800

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

1. What sort of “fair and just reason”, other than an

outright violation of Boykin v. Alabama, 395 U.S. 238 (1969)

or Federal Rule of Criminal Procedure 11, must be shown

under Rule 32(e) of the Federal Rules of Criminal Pro-

cedure in order to permit a criminal defendant to with-

draw his guilty plea before sentencing?

2. Did the refusal to allow petitioner to withdraw

his guilty plea, despite his presentation of a fair and just

reason, deprive him of due process under the Fifth

Amendment?

ii

TABLE OF CONTENTS

Page

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CONSTITUTIONAL PROVISIONS AND CRIMINAL

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STATEMENT OF TRE CASE. «0 +0 cserscacweieecdves 2

REASON FOR GRANTING THE WRIT............. 4

MOST FEDERAL CRIMINAL CASES TODAY ARE

DISPOSED OF BY GUILTY PLEA, YET THIS COURT

HAS NEV<R IDENTIFIED THE CIRCUMSTANCES

UNDER WHICH A GUILTY PLEA MAY BE WITH-

DRAWN. IN THE EXERCISE OF ITS SUPERVISORY

POWERS, THIS COURT SHOULD EXPLICATE THE

FEDERAL RULE PERMITTING WITHDRAWAL FOR

“ANY FAIR AND JUST REASON.” PETITIONER’S

DUE PROCESS RIGHTS WERE ALSO ABRIDGED

WHEN HE WAS HELD TO A WAIVER OF A JURY

TRIAL MADE AT A TIME WHEN HE WAS INCAPA-

BLE OF UNDERSTANDING THE RAMIFICATIONS

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CAEP 0.s.0'e 0 duden vekuceneess ceeevepeasaees 6

iii

TABLE OF AUTHORITIES

Page

CASEs:

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709

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Linited States v. Jones, 979 F.2d 316 (3d Cir. 1992)..... 5

CONSTITUTION AND STATUTES:

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RULEs:

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PETITION FOR WRIT OF CERTIORARI

Petitioner, Mohammed Mizani, respectfully prays

that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Third Circuit

entered on August 8, 1996.

4

OPINIONS BELOW

The Memorandum Opinion of the United States

Court of Appeals for the Third Circuit was filed on

August 8, 1996. The Opinion and Order denying Defen-

dant’s Motion To Withdraw Guilty Plea was dated

December 19, 1995 and filed on December 22, 1995. Both

Opinions are unreported.

JURISDICTION

The jurisdiction of this Court is invoked pursuant to

28 U.S.C. § 1254(1).

¢

CONSTITUTIONAL PROVISIONS AND

CRIMINAL RULES INVOLVED

The Fifth Amendment to the Constitution of the

United States provides in pertinent part:

No person shall be . . . deprived of life, liberty, or prop-

erty without due process of law... .

Rule 32(e) of the Federal Rules of Criminal Procedure

provides in pertinent part:

If a motion to withdraw a plea of guilty or nolo conten-

dere is made before sentence is imposed, the Court may

permit the plea to be withdrawn if the defendant shows

any fair and just reason. At any later time, a plea may be

set aside only on direct appeal or by motion under 28

U.S.C. § 2255.

STATEMENT OF THE CASE

Petitioner was indicted on January 29, 1994 and

charged with criminal violations of federal environmental

laws. On the day he was to go to trial, petitioner pled

guilty. In the twenty-minute colloquy, petitioner’s partici-

pation was limited to yes or no answers to the district

court’s questions.

A few months later, at the hearing on his motion to

withdraw his guilty plea, petitioner’s attorney testified

that he believed that petitioner, at the time that he

entered his guilty plea, did not understand what he was

doing because he was “paralyzed by fear”. Petitioner’s

attorney, whose credibility was not challenged by the

government, further testified that “in retrospect .. . I

think this man was literally incapable of really under-

standing the ramifications.”

A large component of petitioner’s fear, according to

his counsel, was fear that petitioner would be unable to

oo

explain himself at trial, especially under cross-examina-

tion, since the language that petitioner speaks at home

and in his business is Farsi.

Both petitioner’s attorney and the government agent

who testified at the hearing agreed that the prosecution”

had been a difficult one for the government from the

beginning. When the agent was asked “what if any diffi-

culties the government would have preparing this case

for trial...” if petitioner were permitted to withdraw his

plea, the agent said, “I would have to reference the diffi-

culty we have had in preparing for the case previously.”

The district judge denied petitioner’s motion to with-

draw his guilty plea and that same day filed an eight-

page written opinion justifying his decision. The opinion

did not challenge the credibility of petitioner’s former

defense counsel, nor did it mention the government

agent’s concession that the government would experience

no greater prejudice if petitioner were permitted to with-

draw his plea than it had experienced all along.

The district court’s decision, filed on December 22,

1995, was affirmed by the United States Court of Appeals

for the Third Circuit on August 8, 1996. This petition

followed.

4

REASON FOR GRANTING THE WRIT

MOST FEDERAL CRIMINAL CASES TODAY ARE DIS-

POSED OF BY GUILTY PLEA, YET THIS COURT HAS

NEVER IDENTIFIED THE CIRCUMSTANCES UNDER

WHICH A GUILTY PLEA MAY BE WITHDRAWN. IN

THE EXERCISE OF ITS SUPERVISORY POWERS, THIS

COURT SHOULD EXPLICATE THE FEDERAL RULE

PERMITTING WITHDRAWAL FOR “ANY FAIR AND

JUST REASON.” HERE, PETITIONER’S DUE PRO-

CESS RIGHTS WERE ABRIDGED WHEN HE WAS

HELD TO A WAIVER OF A JURY TRIAL MADE AT A

TIME WHEN HE WAS INCAPABLE OF UNDER-

STANDING THE RAMIFICATIONS OF HIS PLEA.

Although Rule 32(e) of the Federal Rules of Criminal

Procedure provides that criminal defendant may with-

draw his guilty plea for “any fair and just reason”, busy

federal courts in practice almost never permit a defen-

dant to withdraw his guilty plea; certainly the Court of

Appeals for the Third Circuit has never in recent memory

reversed a district judge’s refusal to permit withdrawal of

a guilty plea. This Court has never, to the best of our

knowledge, given any guidance to the lower federal

courts with respect to the kinds of “fair and just” reasons

that permit withdrawal of a guilty plea.

This issue implicates this Court’s supervisory powers

but also, and more importantly, implicates the due pro-

cess rights of federal criminal defendants. When criminal

defendants plead guilty, they necessarily waive their con-

stitutional right to trial by jury, and a waiver of such an

important constitutional right should not be virtually

irrevocable, as it has become in the federal courts today.

This appeal presents the issue squarely and simply.

The district court ignored petitioner’s counsel’s opinion

that at the time of the guilty plea petitioner did not

understand the ramifications of the plea; the district

judge stated merely that the fact that petitioner may have

entered his plea while under physical and emotional

stress is not a sufficient reason to permit withdrawal of

the plea. Likewise, the district court recited, as evidence

of prejudice to the government, factors which were inher-

ent in the prosecution from the beginning, such as wit-

nesses who are homeless and/or addicted to narcotics.

The Court of Appeals for the Third Circuit generated

a not-for-publication opinion which perfunctorily applied

its previous decision in United States v. Jones, 979 F.2d 316,

317 (3d Cir. 1992), to the effect that “a simple shift in

defense tactics, a change of mind or the fear of punish-

ment are not adequate reasons to force the government to

incur the expense, difficulty and risk of trying a defen-

dant, who had already acknowledged his guilt before the

court.” The Court of Appeais reiterated its position that a

defendant must not only reassert his innocence but give

sufficient reasons to explain why contradictory positions

were taken before the district court.

Presumably there are some fair and just reasons for a

defendant to withdraw his guilty plea, other than an

outright violation of the guilty plea colloquy standards

set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709

(1969) and Federal Rule of Criminal Procedure 11, but the

lower federal courts have not told criminal defendants or

their counsel what those reasons may be. Given the quan-

titative and qualitative importance of guilty pleas to the

federal criminal system of justice, it is time for this Court

to do that.

4

CONCLUSION

For all these reasons, petitioner respectfully requests

that his petition for a writ of certiorari to the United

States Court of Appeals for the Third Circuit be granted.

Respectfully submitted,

E.IzABETH K. AINSLIE

Attorney for Petitioner

Mohammed Mizani

AINSLIE & BRONSON

1101 Market Street, Suite 2630

Philadelphia, PA 19107

(215) 574-0800

App i

INDEX TO APPENDIX

Page

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT MEMORANDUM OPINION... App. 1

UNITED STATES DISTRICT COURT ORDER

AIND? DEBMORANDIUIM o.oo se cnccccavccdccccess App. 8

App. 1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-1118

UNITED STATES OF AMERICA

vs.

MOHAMMED MIZANI,

a/k/a JOHN MARJANI

Mohammed Mizani,

Appellant

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Crim. No. 94-cr-00485-1)

District Judge: Honorable Marvin Katz

Submitted Under Third Circuit LAR 34.1(a)

August 5, 1996

Before: MANSMANN, SCIRICA and WEIS, Circuit Judges.

(Filed AUG 8 1996)

MEMORANDUM OPINION OF THE COURT

MANSMANN, Circuit Judge.

Mohammed Mizani appeals from the district court’s

denial of his motion to withdraw his guilty plea. On

App. 2

November 29, 1994, Mizani, with three co-defendants,

was indicted by a grand jury and charged in a four-count

indictment with violations of the Clean Air Act arising

from Mizani’s attempts to remove asbestos from a build-

ing he owned in Philadelphia. On July 17, 1995, the day

that trial was scheduled to begin, Mizani and the govern-

ment entered into a written plea agreement.! Approxi-

mately four months later, on November 8, 1995, Mizani

filed a motion to withdraw his guilty plea. Following a

hearing held on this motion on December 19, 1995, the

court denied Mizani’s motion and sentenced him to eigh-

teen months of imprisonment.

On appeal to us, Mizani contends that the district

court should have permitted him to withdraw his guilty

plea. Mizani contends that he pled guilty because he was

“paralyzed by fear”, fear of an American jury which

might not understand or accept his testimony because of

his Iranian national origin and fear because of his virtual

certainty he would go to jail if convicted. Mizani also had

fears concerning his ability to explain his situation to an

American jury in English; Mizani was afraid that he

would be unable to express himself at trial, especially

1 Pursuant to the terms of this agreement, Mizani agreed to

plead guilty to one count of conspiracy to violate the Clear Air

Act in violation of 18 U.S.C. § 371, to pay a special assessment of

$50 at the time of sentencing, and to make voluntary restitution

in the amount of $40,000. In return, the government agreed that

at the time of sentencing, it would move to dismiss the

remaining counts of the indictment and would recommend that

no fine be imposed provided that the voluntary restitution had

been made.

App. 3

under cross-examination. According to Mizani, these

fears prevented him from making an intelligent decision.

I.

Federal Rule of Criminal Procedure 32(e) provides,

“If a motion to withdraw a plea of guilty or nolo conten-

dere is made before sentence is imposed, the court may

permit the plea to be withdrawn if the defendant shows

any fair and just reason.” In United States v. Huff, 873 F.2d

709, 712 (3d Cir. 1989), we identified the factors to be

considered in determining whether a defendant has dem-

onstrated a fair and just reason for withdrawing a guilty

plea: (1) whether the defendant asserts his innocence; (2)

whether the government would be prejudiced if the plea

were withdrawn; and (3) the strength of the defendant's

reasons for withdrawing his plea. We have made explicit

that “there is no absolute right to withdraw a guilty plea

and acceptance of the motion is within the discretion of

the trial court whose determination will only be dis-

turbed if the court has abused its discretion.” Gov't of

Virgin Islands v. Berry, 631 F.2d 214, 219 (3d Cir. 1980). It is

the defendant’s burden to establish that there are

grounds for withdrawal. Id.

Il.

Regarding the first Huff factor, the defendant's asser-

tion of his innocence, Mizani testified at the hearing on

his motion to withdraw his plea that he “didn’t do any-

thing” (74a). Nonetheless, this conclusory claim of inno-

cence does not explain why Mizani agreed at his plea

colloquy with the government’s proffer of the evidence

App. 4

against him, why Mizani waited approximately four

months to raise doubts about his plea, or why Mizani

honored the plea agreement by contributing $40,000 to

two non-profit organizations in an effort to comply with |

the agreement. In United States v. Jones, 979 F.2d 316, 318 |

(3d Cir. 1992), we required that a “defendant must... not

only reassert [his] innocence, but give sufficient reasons

to explain why contradictory positions were taken before

the district court and why permission should be given to

withdraw the guilty plea and reclaim the right to trial.”

Here, the district court concluded that Mizani’s claim of

innocence “rings hollow when it was [as] conclusory as it

was. ... And when the Court asked whether the defen-

dant agreed with the government’s summary of what he

had done[,] . . . [Mizani] answered at page 16, ‘Yes, I do.’ ”

(102a). The court in making these findings was acting

within its discretion and we cannot say that they are

clearly erroneous. See United States v. Washington, 341 F.2d

277, 281 (3d Cir.), cert. denied, 382 U.S. 850 (1965) (the

good faith, credibility and weight of a defendant’s asser-

tions in support of a motion for withdrawal of a plea are

preeminently issues for the hearing court to decide).

a gy een et nS ~

With respect to the second relevant factor, prejudice

to the government, we find that the district court did not

err in concluding that the government would be preju-

diced if Mizani were permitted to withdraw his plea. The

government clearly established justifiable concern about

its ability to locate and produce witnesses who were

either homeless, addicted to crack cocaine, or dead. In

addition to the difficulty in locating these witnesses,

there was the risk that the memory of a key witness had

faded and the likelihood that another key witness was

sia |

App. 5

now hostile to the government because he had been

sentenced in the interim.

Finally, in assessing the strength of Mizani’s reasons

for withdrawing his plea, the trial court concluded that

Mizani did not proffer a good and sufficient reason for

withdrawing his plea. Although the district court

acknowledged Mizani’s proffered reason for the plea,

fear, the court found that Mizani’s fear, understandably,

was a fear of sentence, but that Mizani understood the

consequence of his guilty plea. Mizani is fluent in English

due to his education in the United States and his exten-

sive commercial dealings conducted here. These findings

also are not clearly erroneous.

In sum, the district court concluded that there was no

untoward pressure on Mizani to enter his guilty plea.

(100a). Rather, the court found that Mizani had evaluated

the strengths and weaknesses of the government's case

with his counsel prior to Mizani’s plea colloquy and that

Mizani he ' made a decision, based upon an understand-

ing of the risks of going to trial. The district court deter-

mined that Mizani was experiencing a change of mind,

based upon consultation with other lawyers and his fear

of sentence. (100a). The district court declined to permit

Mizani to withdraw his plea relying upon our decision in

United States v. Jones, supra, that “a simple shift in defense

tactics, a change of mind or the fear of punishment are

not adequate reasons to force the government to incur the

expense, difficulty and risk of trying a defendant, who

had already acknowledged his guilt before the court.” 979

F.2d at 317.

App. 6

Ill.

Under all of these circumstances, we believe that the

district court’s decision was within the sound exercise of

its discretion. Although Mizani points out, at page 11 of

his brief, that the district court did not mention the

testimony of his former cour sel (Mr. Sciolla) in its order

and memorandum denying Mizani’s motion to withdraw

his guilty plea, we are confident that the district court

considered Mr. Sciolla’s testimony that Mizani was para-

lyzed by fear and incapable of understanding the ram-

ifications of his plea. Mizani also observes that the

allegations of ineffective assistance of his former counsel

were withdrawn prior to the hearing, but the district

court nonetheless made the finding that Mr. Sciolla’s

representation did not fall “below an objective standard

of reasonableness.” (111a-113a). Although the district

court made this finding unnecessarily, the court’s discus-

sion of Mizani’s reasons for moving to withdraw his plea

was not entirely based on the allegations of incompetence

of counsel.

Indeed, in addressing Mizani’s reasons supporting

the motion, the court found that Mizani’s contention that

he did not understand the terms of the plea agreement

was not supported by the record. The court also found

that although Mizani may have entered his guilty plea

while under physical and emotional stress, this was not a

sufficient reason to permit its withdrawal. We conclude

that these findings are not clearly erroneous. Thus, the

district court did not abuse its discretion in rejecting

Mizani’s reasons for withdrawing his plea.

App. 7

IV.

For the foregoing reasons, we will affirm the judg-

ment of the district court.

TO THE CLERK:

Please file the foregoing opinion.

/s/ Carol Los Mansmann

Circuit Judge

App. 8

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA CRIMINAL

ACTION

No. 94-485-1

V.

MOHAMMED MIZANI

a/k/ja JOHN MARJANI

ORDER & MEMORANDUM

AND NOW, this 19th day of December, 1995, upon

consideration of the defendant’s Motion to Withdraw

Guilty Plea, the government’s response thereto, and the

defendant’s reply, and after a hearing, it is hereby

ORDERED that the said motion is DENIED.

On July 17, 1995, the day trial was scheduled to

begin, the defendant and the government entered into a

written guilty plea agreement, the essential terms of

which were as follows:

1. The defendant agreed to plead guilty to one

count of conspiracy to violate the Clean Air

Act in violation of 18 U.S.C. § 371, to pay a

special assessment of $50 at the time of sen-

tencing, and to make voluntary restitution in

the amount of $40,000;

2. The government promised that at the time of

*~~ sentencing, it would move to dismiss the

remaining counts of the indictment and

would recommend that no fine be imposed

(provided that the voluntary restitution had

been made);

3. The government retained the right to make

whatever sentencing recommendation it

deemed appropriate and to comment on the

App. 9

evidence and all other facts relevant to sen-

tencing;

4. The defendant and the government entered

into certain stipulations regarding the appli-

cation of the United States Sentencing

Guidelines; and

5. The defendant and the government agreed

that “no additional promises, agreements or

conditions have been entered into other than

those set forth in this document, and none

will be entered into unless in writing and

signed by all parties.”

Prior to accepting the guilty plea, the court con-

ducted a colloquy with the defendant in open court. The

court informed the defendant that it would question him

under oath and that his answers might later be used

against him in a prosecution for perjury or making false

statements. (Tr. at 4.) The defendant acknowledged that

he was aware of his right to the assistance of counsel, his

right to persist in the plea of not guilty, his right to a jury

trial, his right to confront and cross-examine witnesses,

and his right against compelled self-incrimination. (Tr. at

6.) He told the court that he realized he would waive his

right to a trial by pleading guilty. (Tr. at 8.) The defendant

indicated that he understood the charges against him, the

maximum possible penalty provided by law, the fact that

the court would be required to consider the applicable

sentencing guidelines, and the possibility that he would

be required to make restitution. (Tr. at 8-10.)

The court determined that the defendant's guilty plea

was voluntary and was not the result of force or threats

App. 10

or of promises apart from the plea agreement. This find-

ing was based in part on the following exchange:

THE COURT: Has anyone threatened you or

forced you to plead guilty this morning?

THE DEFENDANT: No.

THE COURT: You've heard the lawyers sum-

marize the plea agreement and you've signed a

plea agreement. Do you have any secret side

deals of any kind with regard to your plea that

have not been disclosed to me?

THE DEFENDANT: No, Your Honor.

(Tr. at 12.) In addition, paragraph 9 of the plea agreement

provided: “It is agreed that no additional promises,

agreements or conditions have been entered into other

than those set forth in this document, and none will be

entered into unless in writing and signed by all parties.”

The defendant now moves to withdraw his guilty

plea. Federal Rule of Criminal Procedure 32(e) provides:

“If a motion to withdraw a plea of guilty or nolo conten-

dere is made before sentence is imposed, the court may

permit the plea to be withdraw [sic] if the defendant

shows any fair and just reason.” In considering whether a

defendant has demonstrated a fair and just reason for

withdrawing a guilty plea, a court must consider the

following factors: (1) whether the defendant asserts his

innocence; (2) whether the government would be preju-

diced if the plea were withdrawn; and (3) the strength of

the defendant's reasons for withdrawing his plea. United

States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989). Upon

application of these factors to the case at hand, the court

App. 11

concludes that the defendant should not be permitted to

withdraw his plea of guilty.

A. Assertion of Innocence by Defendant

The defendant claims that he is innocent of the

charges against him. (Mizani Aff., at { 2). At the plea

colloquy held on July 17, 1995, however, he told the court

he agreed with the government’s summary of what he

had done.! (Tr. at 16.)

1 The government summarized the evidence it would have

offered against the defendant if the case had proceeded to trial.

This evidence included:

1. a tape recording of a telephone conversation

between the defendant and an inspector from Air

Management Services in which the defendant

stated that he was not aware of any asbestos

abatement activities at the Beury Building, and

that no one was available to grant access to

inspectors from the City of Philadelphia’s Air

Management Services;

2. testimony from two cooperating co-defendants,

Lalit Verma and Lloyd Smith, that the defendant

directed them to rent a truck and to remove bags

of asbestos from the Beury Building before Air

Management Services inspected the site;

3. testimony from Air Management Services

inspectors regarding the extent of contamination

they found at the building; and

4. testimony from Gregg Fuller, a homeless man

Mizani hired in 1988 to help remove asbestos

from the Beury Building.

(Tr. at 12-16.)

App. 12

The defendant has not provided “sufficient reasons

to explain why contradictory positions were taken before

the district court and why permission should be given to

withdraw the guilty plea and reclaim the right to trial.”

United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992).

Almost four months elapsed between his guilty plea and

his first claims of innocence. During that time, he per-

formed several acts consistent with guilt. In accordance

with the plea agreement, he contributed $40,000 to two

non-profit organizations. He also pledged to donate

$100,000 to a non-profit organization if he receives a

sentence of probation. In light of these circumstances, his

recent assertions of innocence are not credible.

B. Prejudice to Government

The government’s case against the defendant is

weaker than it would have been if this case had pro-

ceeded to trial on July 17, 1995. The future cooperation of

co-defendants Lalit Verma and Lloyd Smith, who have

already been sentenced, is uncertain. Government of the

Virgin Islands v. Berry, 631 F.2d 214, 221 (3d Cir. 1980).

Verma has recently expressed hostility to the government.

Smith, a recovering crack addict, has recently had diffi-

culty remembering the events underlying the indictment.

The government is concerned about its ability to locate

and produce other witnesses who are homeless, addicted

to crack cocaine, or dead. The government would be

prejudiced if the defendant were permitted to withdraw

his plea at this point.

ne Fs pm Ra A cig

App. 13

C. Strength of Reasons for Withdrawing Plea

The defendant argues that he should be permitted to

withdraw his plea because (1) he did not understand the

terms of the plea agreement; (2) he was frightened and

physically and mentally exhausted: and (3) his former

attorney, Guy Sciolla, was ineffective and pressured him

to plead guilty.

The defendant’s contention that he did not under-

stand the terms of the plea agreement is not supported by

the record. It was evident at the plea colloquy that the

defendant is an intelligent man and is fluent in English.

He was educated in Iran and, for three and one-half

years, at Georgetown University. During the more than 30

years that he has lived in the United States, he has been

involved in a number of different business ventures. He

can fill out Customs forms in English.

The fact that the defendant may have entered his

guilty plea while under physical and emotional stress is

not a sufficient reason to permit its withdrawal. United

States v. Harris, 44 F.3d 1206, 1210 (3d Cir. 1995). The

defendant's claims that he was afraid an American jury

would be biased against him because of his national

origin and that he was overwhelmed by the Jencks Act

material provided by the government shortly before the

trial date are simply not credible. The defendant had, and

continues to have, a fear of sentencing. After observing

his demeanor at the plea colloquy and at the hearing on

the present motion, the court finds the former testimony

under oath credible and the latter an attempt to avoid an

unpleasant reality.

App. 14

The defendant’s complaints about his former attor-

ney, withdrawn at the hearing on the instant motion,

were part of a last ditch effort to escape the consequences

of his decision to plead guilty. At the plea colloquy, the

defendant indicated that he had had ample opportunity

to discuss the case with his attorney, expressed satisfac-

tion with Mr. Sciolla’s representation of his best interests,

and said that no one had threatened or coerced him to

plead guilty. (Tr. at 6, 12.) Now he claims (1) that Mr.

Sciolla was not qualified or prepared to mount an ade-

quate defense; (2) that Mr. Sciolla pressured him to plead

guilty by suggesting that a jury might be biased against

him because of his Iranian origin; (3) that Mr. Sciolla was

ineffective because he did not interview the government’s

witnesses, retain an expert, or review grand jury testi-

mony and witness statements with him.

The court finds that Mr. Sciolla’s representation of

the defendant did not fall “below an objective standard of

reasonableness.” Strickland v. Washington, 466 U.S. 668,

688 (1984).

Mr. Sciolla is an experienced and able trial counsel.

He has practiced criminal law for more than 20 years as a

prosecutor and a defense attorney. Mr. Sciolla’s perfor-

mance in this case was reasonable under prevailing pro-

fessional norms. He filed a variety of pretrial motions,

one of which resulted in the dismissal of Count IV. He

was prepared to represent the defendant at trial. Mr.

Sciolla thoroughly counseled the defendant as to the

potential consequences of his decision to plead guilty, but

did not exert any pressure on him to do so. The defen-

dant and Mr. Sciolla knew the strengths and weaknesses

of the government's case before the plea.

App. 15

In sum, the court does not find a fair and just reason

to allow the defendant’s change of mind to justify a

withdrawal of his guilty plea. “A simple shift in defense

tactics, a change of mind, or the fear of punishment are

not adequate reasons to force the government to incur the

expense, difficulty and risk of trying a defendant who has

already acknowledged his guilt before the court.” United

States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992).

BY THE COURT:

/s/ Marvin Katz

MARVIN KATZ, J.