Unpublished Disposition, 872 F.2d 431 (9th Cir. 1988)

MEMORANDUM^* 

Warren Thompson appeals the denial of his motion to withdraw his guilty plea. Thompson argues that the district court failed to comply with Rule 11 of the Federal Rules of Criminal Procedure and that "fair and just" reasons within the meaning of Fed.R.Crim. 32(d) existed, requiring the court to allow Thompson to withdraw his guilty plea. We find no abuse of discretion, and affirm. In addition, we deny Thompson's postargument application to either augment the record on appeal or remand to the district court to consider an alleged Brady violation.

On the advice of counsel, and pursuant to a written plea agreement, Thompson pled guilty to Count Two of an indictment charging violations of 50 U.S.C. § 2410(a) and 50 U.S.C. § 1705(b). Count Two charged knowing concealment of a change in material facts in the exportation of a semiconductor chip test system.

Five months later, but prior to sentencing, Thompson filed a motion to withdraw his guilty plea. The court denied the motion and sentenced Thompson to a three-year suspended prison sentence, three years of probation, a $2,500 fine, and ordered him to perform 360 hours of community service.

Before accepting a plea of guilty, the court must address the defendant personally and determine that he understands the nature of the charge to which he pleads. Fed. R. Crim. P. 11(c) (1).

The record belies Thompson's assertion that there was a Rule 11 violation. The portion of the transcript quoted by Thompson himself reveals that the Court advised him that the charged offense involved the concealment of material facts from the Department of Commerce with respect to an export license. It was specifically explained that Thompson was accused of concealing the fact that the consignee of the computer was not the company named in the export license.

Thompson also claims that the district court did not make a proper factual basis determination before accepting the guilty plea as required by Rule 11(f). The sufficiency of any particular inquiry depends on the "peculiar facts of each situation" including "the complexity of the charges," the "age, education, intelligence" of the defendant, the character and "alacrity of his responses" and whether he is represented by counsel. United States v. Kamer, 781 F.2d 1380, 1384 (9th Cir. 1986), cert. denied, 479 U.S. 819 (1986).

Thompson's own counsel, the district court, and government counsel all discussed and explained the charge in Thompson's presence. The charge was stated in simple terms, and Thompson is an experienced businessman, familiar with export laws. During the Rule 11 hearing, Thompson himself provided the factual basis for the plea. He admitted on the record that he found out that the buyer had cancelled the sale. He admitted that he did not inform the Department of Commerce that he was selling to another purchaser. He admitted that he planned to sell to the highest bidder. The district court determined through questions put to Thompson that a factual basis existed for the plea. There was no error.

The district court also correctly relied on the presentence report. See United States v. Burton, 483 F.2d 1182, 1190 (9th Cir. 1973) (Rule 11 permits reliance on the presentence report); see also Fed. R. Crim. P. 11(h) (1975) advisory committee note (to determine if factual basis exists for a plea, court can look at the presentence report, if available). The presentence report summarized tape recorded conversations in which Thompson acknowledged that the original buyer had dropped out and that a sale to the highest bidder was contemplated. The presentence report also showed that Thompson was experienced in export transactions and was aware of the law requiring notice to the Commerce Department.

The record also indicates that the district court made a sufficient finding of a factual basis to support the plea. The district court questioned Thompson extensively. Thompson admitted on the record that he had concealed material facts from the Department of Commerce.

Thompson also contends that the district court violated Rule 11(c) (1) when it incorrectly advised him that the maximum penalty provided by law for a violation of 50 U.S.C. § 1705(b) as charged in Count Two was five years, when in fact the maximum penalty was ten years. Ordinarily this is a per se violation of Rule 11. United States v. Jamarmillo-Suarez, 857 F.2d 1368 (9th Cir. 1988).

The district court held that because the plea bargain made it clear that Thompson knew the actual statutory maximum as well as the likely sentence and was not confused or misled, Rule 11(c) (1) did not mandate that Thompson be allowed to withdraw his plea. This was no error, because Thompson's rights were not affected.

Thompson contends that any violation of Rule 11, no matter how remedied elsewhere, requires an automatic setting aside of the guilty plea. However, Rule 11(h) states "(a)ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Fed. R. Crim. P. 11(h). Here, the Judge misadvised Thompson as to the maximum penalty, but the record shows that his plea was not affected. The plea-bargain sentence did not remotely approach the maximum that the district court had erroneously stated, much less the correct statutory maximum. Thus, any error in the statement of the statutory maximum penalty was harmless beyond a reasonable doubt.

It is undisputed that Thompson was not advised that restitution could be imposed as required by Rule 11(c) (1). However, in view of the fact that restitution was not ordered, the omission is clearly harmless. No substantial right was affected. See United States v. Pomazi, 851 F.2d 244 (9th Cir. 1988) (Defendant not advised that restitution could be ordered, but he was advised that he was subject to pay a fine, Defendant ordered to pay restitution, no fine imposed. Held: Error harmless because the money penalty, irrespective of the label, was less than the minimum amount represented by the court).

Thompson claimed that he should be allowed to withdraw his guilty plea because he was innocent, he was subject to governmental misconduct (entrapment), and because he was under severe financial, physical, and emotional pressure.

The district court refused to find the above grounds to be "fair and just reasons" for withdrawal of the plea. The district court found "no showing of a conspiracy by the government to entrap the defendant." The district court was entitled to credit Thompson's admission of guilt over his subsequent claim of innocence. See United States v. Castello, 724 F.2d 813, 815, cert. denied, 467 U.S. 1254 (1984). Thompson, after several months of advice by counsel, admitted guilt in open court. Declarations in open court carry a strong presumption of verity. United States v. Moore, 599 F.2d 310, 314 (9th Cir. 1979) cert. denied, 444 U.S. 1024 (1980). Furthermore, the district court properly took into consideration that Thompson's counsel had explored with him the possibility of entering a plea for almost six months.

The burden of showing a "fair and just" reason for withdrawal of a guilty plea rests with the defendant. United States v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985), cert. denied, 107 S. Ct. 131 (1986). The defendant does not have a "right" to withdraw his guilty plea. Castello, 724 F.2d at 814. A discovery, after a probationary sentence, that a criminal record of export law violation is bad for business in the export trade is not a "fair and just" reason for changing one's mind about a carefully bargained guilty plea. The district court retains discretion, and withdrawal is not automatic. Id. On appeal, the defendant has the burden "to show that the district court abused its discretion in denying the motion." United States v. Signori, 844 F.2d 635, 637 (9th Cir. 1988).

The record does not indicate that the district court abused its discretion in finding that Thompson did not present any "fair and just" reasons to withdraw his guilty plea.

On November 30, 1988, Thompson filed an application to this court to reopen his appeal. He claimed that evidence released under protective order to Thompson's former employer during the discovery phase of a related civil proceeding may be exculpatory. Accordingly, he requested either in camera review by this court, disclosure to Thompson of the evidence for use in this appeal, or a remand to the district court for post-conviction proceedings based upon Brady v. Maryland, 373 U.S. 83 (1963).

The government may not suppress exculpatory evidence where such evidence is material either to guilt or to punishment. Id. at 87. However, Brady neither grants criminal defendants unfettered access to government files, United States v. Bagley, 473 U.S. 667 (1985), nor assures criminal defendants in camera review of those files, United States v. Michaels, 796 F.2d 1112 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), to test a suspicion that they contain exculpatory evidence. See also United States v. Endicott, 803 F.2d 506, 514 (9th Cir. 1986) (bald assertion that codefendant told accused that additional exculpatory evidence had been seized in search but not made available to defense not sufficient to order new trial based on Brady violation). Based on the outline of the disputed evidence submitted by Thompson's former employer and Thompson's own assertions, we conclude that Thompson has made no showing that exculpatory information exists. Accordingly, we need not reach the question of the appropriate procedure to follow if a colorable showing of prosecutorial misconduct in violation of Brady had been made.

AFFIRMED.