Unpublished Disposition, 912 F.2d 470 (9th Cir. 1989)

Appellant Maxine Elliott ("Elliott") appeals her conviction for conspiracy and aiding and abetting the filing of false tax returns. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

FACTS

On July 19, 1985 a special agent of the Internal Revenue Service ("IRS") interviewed Elliott and her husband concerning a federal criminal investigation of their promotion of allegedly fraudulent tax shelters. Between December 1988 and February 1989 a special agent of the IRS and the U.S. Attorney's Office contacted Elliott and her husband on several occasions, inquiring into the possibility of a preindictment disposition of the criminal tax fraud case. During this time, the government made a plea offer to Elliott and her husband which would have permitted them to plead guilty to one felony count. Neither Elliott nor her husband was represented by counsel. Both rejected the government's offer.

On March 22, 1989 the grand jury issued subpoenas to Elliott and her husband requiring them to produce certain documents and records in their possession and control relating to the tax shelter program. Elliott's husband telephoned the government's counsel to inquire about the consequences of noncompliance with the subpoenas. Government counsel informed him that failure to comply without good cause could result in a contempt order by the court. At this point, Elliott and her husband procured counsel to contact the government on their behalf regarding a possible plea agreement.

Following discussions which their defense counsel had with the Assistant U.S. Attorney and an IRS special agent, Elliott and her husband agreed to plead guilty to two felony counts. On April 6, 1989 the government filed an information against Elliott and her husband. Count I of the information charged Elliott with conspiracy pursuant to 18 U.S.C. § 371, and Count II charged her with aiding and counseling the filing of false federal income tax documents under 26 U.S.C. § 7206(2).

On April 10, 1989 Elliott pleaded guilty to both counts. At her sentencing hearing on August 31, 1989, Elliott moved the court for permission to withdraw her guilty plea. The district court denied the motion, requested Elliott file a written motion to withdraw her guilty plea and set a hearing date for the motion.

On October 30, 1989 the district court denied Elliott's written motion for withdrawal of her guilty plea and sentenced her to eighteen months in prison. Elliott timely filed a notice of appeal.

DISCUSSION

Elliott contends she was denied effective assistance of counsel during her plea negotiations. Elliott claims that the attorney representing her during plea negotiations labored under a conflict of interest, because he also represented her husband.

Multiple representation when there is an actual conflict of interest will trigger a sixth amendment violation if the conflict of interest adversely affected the lawyer's performance. United States v. Sutton, 794 F.2d 1415, 1419 (9th Cir. 1986). We have held, however, that "sufficiently independent and effective counsel at trial and sentencing [may render] pre-trial conflicts immaterial." United States v. Allen, 831 F.2d 1487, 1502 (9th Cir. 1987), cert. denied, 487 U.S. 1237 (1988). Although the same attorney represented Elliott and her husband during plea negotiations, Elliott was represented by her own separate counsel at the time she entered her guilty plea and at the time she was sentenced. Elliott does not allege that her separate counsel had a conflict of interest or was ineffective. Thus, we conclude that any conflict of interest by Elliott's counsel during plea negotiations was rendered harmless by her separate representation when she entered her plea and when she was sentenced.

A district court may permit withdrawal of a guilty plea prior to sentencing upon a showing by the defendant of any fair and just reason. It is well-established that a defendant has no right to withdraw his guilty plea, and that a withdrawal motion is committed to the sound discretion of the district court. Moreover, although a motion to withdraw a guilty plea should be freely allowed, the defendant has the burden on appeal 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) (citations omitted).

Elliott contends the district court abused its discretion in denying her motion to withdraw her guilty plea, because (1) she was coerced into pleading guilty as part of a "package deal" to protect her husband from the possibility of a multicount indictment, (2) she has claimed she is innocent of the charges against her, and (3) she and her husband were represented by the same counsel during plea negotiations. Elliott's arguments are not persuasive.

Although a prosecutor's offer of leniency for a third party " 'might pose a great danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider,' ... [no court] has held that third party threats or promises are coercive per se. Rather, they have held that the trial court should make a more careful examination of the voluntariness of a plea when it is induced by such threats or promises." United States v. Castello, 724 F.2d 813, 815 (9th Cir.) (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8 (1978)), cert. denied, 467 U.S. 1254 (1984).

Here, the district court performed a very thorough and searching Rule 11 inquiry before it accepted Elliott's plea. At the hearing, Elliott never mentioned that her guilty plea was part of a package and specifically testified that a guilty plea was in her best interests. Moreover, the court held a full hearing on Elliott's motion to withdraw. The court reviewed the evidence submitted by Elliott and considered the arguments of her counsel. We conclude the district court was entitled "to credit [Elliott's] testimony at the Rule 11 hearing over her subsequent [assertions]" when she later attempted to withdraw her guilty plea. Id.

The district court was also entitled to disregard Elliott's claim of innocence. While a declaration of "legal innocence is an important factor to be weighed," Fed. R. Crim. P. 32(d), advisory committee notes to 1983 amendments, Elliott's claim of innocence was "mere assertion. [She did] not retract the statements that [she] made [at her plea hearing] concerning [her] involvement in the crime." United States v. Erlenborn, 483 F.2d 165, 168 (9th Cir. 1973).

As to the joint representation of Elliott and her husband during plea negotiations, the district court was entitled to rely on the statements of Elliott's separate counsel that he had adequately discussed the plea arrangement with her and that the plea was in her best interests.

In sum, we find no basis for holding that the district court abused its discretion in denying Elliott's motion to withdraw her guilty plea.

Elliott argues that the prosecutors in her case abused the grand jury process by issuing her a subpoena on the eve of indictment and failing to inform her of her fifth amendment right to refuse to incriminate herself. She further claims that the purpose of the subpoena was not to aid the grand jury in its investigation, but to coerce her and her husband into accepting a plea agreement.

Elliott's argument lacks merit. She was the target of a grand jury investigation. She knew this. The government had a right to issue the challenged subpoena to call her to testify before the grand jury and to produce documents. Elliott chose to enter a plea rather than appear and testify. She made this choice with the advice and participation of her attorney. Nothing the government did or failed to do compelled Elliott to plead guilty or violated her rights under the fifth amendment.

AFFIRMED.