# Petition for Writ of Certiorari — Mizani v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 1030

## Text

Supreme Court, us.
FILED

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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

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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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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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1720%3A1. Public record. Not legal advice.