United States of America, Plaintiff-appellee, v. Jack Simmons, Jr., Defendant-appellant, 497 F.2d 177 (5th Cir. 1974)

It is the well-settled rule in this Circuit that, even prior to the imposition of sentence, an accused has no absolute right to withdraw a guilty plea, and that the grant or denial of such a motion is within the sound discretion of the trial court. United States v. Valdez, 5 Cir. 1971, 450 F.2d 1145; United States v. Arredondo, 5 Cir. 1971, 447 F.2d 976, cert. denied, 404 U.S. 1026, 92 S. Ct. 683, 30 L. Ed. 2d 676; Kirshberger v. United States, 5 Cir. 1968, 392 F.2d 782.

Conceding that discretion rests with the trial judge, appellant urges that Rule 32(d) should, nevertheless, be liberally construed; and he has mustered formidable authority to support his contention. Almost fifty years ago the Supreme Court declared that 'the court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just.' Kercheval v. United States, 1927, 274 U.S. 220, 224, 47 S. Ct. 582, 583, 71 L. Ed. 1009. The rationale for such a policy is that the public interest in protecting a defendant's right to trial by jury usually outweighs any inconvenience that the court or the prosecution is likely to suffer as a result of a withdrawn plea prior to sentencing. See Kadwell v. United States, 9 Cir. 1963, 315 F.2d 667.³  Noting these considerations, Professor Wright has proposed that courts allow pre-sentencing withdrawals of guilty pleas virtually as a matter of course 'unless the prosecution has been substantially prejudiced by reliance upon the defendant's plea.' 2 C. Wright, Federal Practice and Procedure, Criminal 538, at 474-75 (1969). In United States v. Presley, 5 Cir. 1973, 478 F.2d 163, 167, we noted our adherence to 'the general principle that Rule 32(d) should be construed liberally in favor of the accused when a motion is made to withdraw before sentence is imposed.'

Appellant's statement of the law is very persuasive. Unfortunately for him, even under the most enlightened application of Rule 32(d), the facts of his case do not justify the conclusion that the district court erred in refusing to permit the guilty plea to be withdrawn. First, in recommending a guilty plea appellant's counsel made no representation to him that any deal had been made, but merely expressed his opinion that appellant would receive only a probated sentence. Only after appellant's brother Willie Simmons-- who had pleaded guilty to one count of a similar indictment and who appeared with appellant for sentencing-- was sentenced to four years imprisonment, did appellant move to withdraw his guilty plea.⁴  To have granted the motion under these circumstances would have been to permit appellant to use the guilty plea as a means of testing the weight of the potential sentence-- a primary policy ground for denying plea changes. See footnote 3, supra.

Another important factor supporting the trial court's order in this case is the likelihood of substantial prejudice to the prosecution. In issuing its order, the district court made the finding that, as of the day the case was set for trial:

At great expense and with considerable difficulty the Government had secured the presence of sufficient witnesses to go to trial on seven of the fifteen counts charged in the indictment. Most of the witnesses were transients who had been difficult to locate. Subsequently, in reliance upon the guilty plea, the Government released and no longer maintained contact with these witnesses.

Locating those witnesses again would be extremely onerous and, in many cases, perhaps impossible.

Finally, appellant's argument that the court should have granted his motion because he is functionally illiterate, has had no formal education, and was in 'an arena that instills fear,' is amply refuted by the record concerning his apparent success as an 'entrepreneur.' Appellant operated a migrant farm labor camp for several years, never employing fewer than fifteen people and averaging gross revenues of $1200 to $1300 per week. In light of these facts, we are convinced that the court's finding that the guilty plea 'was factually based and freely, intelligently, and voluntarily made' is not clearly erroneous.

Recognizing the care with which the district court accepted appellant's guilty plea,⁵  the basis upon which its withdrawal was sought, and the likelihood of substantial prejudice to the government, we conclude that the district court did not abuse its discretion in denying appellant's motion to withdraw his plea.

Affirmed.