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UNITED STATES v. ALLEN

September 11, 1987

United States of America
v.
William Emanuel Allen



The opinion of the court was delivered by: DIAMOND

 DIAMOND, J.

 On January 7, 1986, pursuant to a plea bargain with the government, the defendant, William Emanuel Allen, entered a plea of guilty to all counts of the indictments at Cr. Nos. 85-24 and 85-246 and was sentenced by the court precisely in accordance with the specific terms of that plea bargain. Presently before the court is defendant Allen's motion to withdraw those guilty pleas. The motions will be denied.

 Background

 On February 12, 1985, a federal grand jury returned a thirteen-count indictment at Cr. No. 85-24 against Allen and two others. The indictment charged Allen with various offenses, including the operation of a Continuing Criminal Enterprise ("C.C.E.") in violation of 21 U.S.C. § 848. On November 11, 1985, the indictment at Cr. No. 85-246 was returned against Allen charging him with several firearm offenses and an additional drug offense.

  Trial at Cr. No. 85-24 was scheduled to commence on January 7, 1986, but that morning, after jurors had been assembled, counsel informed the court that they were negotiating a plea agreement and needed additional time to finalize it. S.P. 1. *fn1" Finally, at 1:30 P.M., counsel for the government and for Allen advised the court that they had arrived at an agreement that pursuant to Rule 11(e)(1)(C), Fed.R.Crim.P., 18 U.S.C., Allen would plead guilty to all counts at Cr. No. 85-24 and Cr. No. 85-246 and, subject to approval by the court, would be sentenced to a term of imprisonment of twenty years under the C.C.E. count and to the forfeiture of certain property and to a special parole term of the remainder of his life for certain of the drug-related offenses. Id. After a two-hour plea hearing, the court accepted the plea and sentenced Allen in accordance with the terms of the plea agreement. *fn2"

 Allen appealed. On appeal he argued that there was no factual basis for his plea to the C.C.E. count and that his plea to that count was not knowing and voluntary. The Court of Appeals held "that Allen entered the plea voluntarily and knowingly and that he understood the elements of the C.C.E. offense." 804 F.2d 244, 248 (3d Cir. 1986). The Court further noted that we did not have to rely on the defendant's admissions to support a finding that there was a factual basis for the plea. Id. at 245, 248. However, the Court of Appeals was uncertain whether we relied upon Allen's insufficient admissions or the government's extensive proffer to provide the factual basis for the plea to the C.C.E. count. Therefore, the Court vacated the sentence and remanded the case for us to determine whether we were satisfied subjectively that there was a factual basis for his plea of guilty to the C.C.E. count. Id. at 248. In so doing, the Court explicitly rejected Allen's request that it set aside his plea so that he could replead. See id. at 247-248.

 The Court of Appeals denied Allen's petition for rehearing and rehearing en banc. Allen then petitioned the United States Supreme Court for a writ of certiorari, but this also was denied. 480 U.S. 922, 107 S. Ct. 1384, 94 L. Ed. 2d 697 (1987). In both petitions Allen emphasized the argument that a district court may look only to the defendant's admissions to find the factual basis for a plea of guilty. Allen also contended that the Court of Appeals should have set aside his plea and permitted him to plead anew.

 On remand, we pointed out that the Court of Appeals' uncertainty as to our basis for finding that there was factual support for Allen's plea stemmed from an incomplete reading of the record. F. Supp. at , slip op. 6-7. Scarcely five transcript pages and two minutes after the portion of the record that vexed the Court of Appeals, which had been cited to the court by the defendant and inexplicitly accepted as complete by the government, we stated clearly that, relying upon the government's proffer and "previous proceedings, hearings and other matters" in this case, and discounting Allen's quibbles with that proffer, we found an adequate factual basis for the plea. F. Supp. at , slip op. 8 (quoting S.P. 71-72). We concluded, therefore, that we were "more than satisfied 'that there was a factual basis for the plea,'" F. Supp. at , slip op. 9, and we ordered the defendant to be returned to the court on April 24, 1987, for the reimposition of sentence.

 On April 21, 1987, nearly one month after our opinion on remand, more than one year after Allen commenced his sentence, and three days before sentence was to be reimposed, Allen filed the instant motion to withdraw his guilty plea.

 According to Allen, he has presented a fair and just reason for the withdrawal of his plea in that the tearful entreaties of his fiancee that he plead guilty and the United States Attorney's "threat" to seek life imprisonment, all coming on the day of his plea, coupled with Allen's belief that the trial judge would accept the recommendation of the United States Attorney, overworked Allen and clouded his judgment when he pled guilty. Allen also argues that the trial judge unintentionally misled him at the plea hearing. He claims that the court assured him that it would not accept his plea unless he admitted guilt as to all elements of the C.C.E. charge, which include the requirement that the defendant have organized, managed or supervised five people in the unlawful activities set forth in 21 U.S.C. § 848. According to Allen, although he admitted to organizing, supervising, or managing only four people, the court mistakenly advised him that he had admitted to five people, and Allen pled guilty in reliance on this misrepresentation.

 In the alternative, Allen argues that he has satisfied the Crowley factors. He contends that he sufficiently asserted his innocence by maintaining that he has a defense to the C.C.E. charge and that the government has not shown that it would suffer substantial prejudice due to the unavailability of witnesses.

 Discussion

 It is unnecessary for us to decide which vehicle is correct, since it is clear that Allen fails to meet the more liberal standard for relief set forth in Rule 32(d).

 Permission to withdraw a guilty plea under Rule 32(d) is within the discretion of the court; it is not a matter of right. Government of the Virgin Islands v. Berry, 631 F.2d 214, 219-220 (3d Cir. 1980). Before sentence, withdrawal should be allowed liberally. Id. at 219. Nonetheless, the defendant has the burden of establishing that there are grounds for withdrawal. Id. at 220.

 The Court of Appeals for the Third Circuit has prescribed three factors that we should consider in evaluating a motion to withdraw a plea of guilty: "(1) whether the defendant asserts his innocence; (2) whether the government would be prejudiced by withdrawal; and (3) the strength of the defendant's reasons for moving to withdraw." United States v. Trott, 779 F.2d 912, 915 (3d Cir. 1985); see United States v. Crowley, 529 F.2d 1066, 1072 (3d Cir. 1976). Whether to allow withdrawal depends upon an individualized consideration of the facts of each case. See Crowley, 529 F.2d at 1071. The three factors we have quoted are "guideposts" to direct our discretion so that we may determine if "fair and just" reasons exist for the withdrawal of a plea in a principled, not an arbitrary, manner. See United States v. Martinez, 785 F.2d 111, 114 (3d Cir. 1986).

 Allen challenges the applicability of the Crowley factors to motions to withdraw pleas made after the 1983 amendments to Rule 32(d). Before 1983, Rule 32(d) lacked any explicit standard for presentence motions to withdraw pleas. *fn3" However, courts, including our Court of Appeals in Crowley, had fashioned standards to guide the application of Rule 32(d). Allen construes the absence of explicit reference to those standards in the amended version of Rule 32(d) as a repudiation of them.

 Even were Allen's argument cogent, it would be foreclosed by United States v. Trott, 779 F.2d 912 (3d Cir. 1985), and United States v. Martinez, 785 F.2d 111 (3d Cir. 1986). In Trott and Martinez, our Court of Appeals reaffirmed the Crowley factors and applied them to motions to withdraw guilty pleas under the amended version of Rule 32(d). The Crowley standard remains binding precedent even if, as Allen contends, the parties in Trott and Martinez did not brief or argue the issue of Crowley's continued vitality. See Monell v. Department of Social Services, 436 U.S. 658, 709 n.6, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) (Powell, J., concurring).

 Moreover, in Martinez, the defendant did make - and the court rejected - one of the same arguments that Allen urges upon us. Martinez contended that unless the government proved prejudice, withdrawal should be granted. Looking to the Advisory Committee Notes to the 1983 amendments to Rule 32(d), the Court of Appeals concluded that, despite the lack of reference to prejudice in the text of the Rule, the Rule was intended to embody the approach of United States v. Saft, 558 F.2d 1073 (2d Cir. 1977): "'the Government is not required to show prejudice when a defendant has shown no sufficient grounds for permitting withdrawal of a plea.'" Martinez, 785 F.2d at 115-116 (quoting Saft, 558 F.2d at 1083).

 Further, Allen's reasoning is not valid. Rules and statutes frequently commit matters to courts' discretion without specifying standards for the exercise of that discretion. Vague and general language often reflects not a prohibition against the formulation of more exact standards but an invitation to interstitial lawmaking. See Lane, Legislative Process and Its Judicial Renderings: A Study in Contrast, 48 U.Pitt.L.Rev. 639, 650-51, 659-60 (1987). Committal of a determination to the courts' discretion requires the courts to fashion and follow guideposts for the exercise of that discretion; "that the court's discretion is equitable in nature, . . . hardly means that it is unfettered by meaningful standards . . . ." Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 45 L. Ed. 2d 280, 95 S. Ct. 2362 (1975). Indeed, the drafters of the amendments to ...


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