Unpublished Disposition, 843 F.2d 502 (9th Cir. 1988)

MEMORANDUM^** 

Kellogg was indicted on one count of knowingly making false declarations to a grand jury in violation of 18 U.S.C. § 1503. Allegedly Kellogg, a certified public accountant, falsely declared to the grand jury that he did not possess records relevant to their investigation. By making these false declarations and by failing to produce subpoenaed records, Kellogg allegedly impeded the administration of justice.

Kellogg pled guilty to one count of obstructing justice. The district court, after conducting a Rule 11 examination, accepted Kellogg's guilty plea upon finding that there was a sufficient factual basis for his plea, and that Kellogg made the plea voluntarily with a full understanding of the charges against him.

After Kellogg obtained new counsel and before he was sentenced, Kellogg filed a motion to withdraw his guilty plea. The court denied the motion and later sentenced Kellogg to five years imprisonment. Kellogg timely appeals.

* Factual Basis for Guilty Plea

Kellogg first contends that the district court erred in accepting his guilty plea to the charge of obstructing justice without establishing that there was a factual basis for the plea as required by Fed. R. Crim. P. 11(f). Appellant's Brief at 5-7. This contention fails.

The district court should not enter judgment upon a guilty plea "without making such inquiry as shall satisfy it that there is a factual basis for the plea." Fed. R. Crim. P. 11(f). Although the rule prescribes no specific method for establishing a factual basis, the court must establish on the record that there is sufficient evidence supporting the conclusion that the defendant committed the charged offense. United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984).

Kellogg was charged with violating 18 U.S.C. § 1503¹  by willfully, knowingly and corruptly, making false material declarations to the grand jury, and failing to produce subpoenaed records in an effort to obstruct the due administration of justice. The concealment of documents with the purpose of obstructing justice falls within the scope of 18 U.S.C. § 1503. United States v. Lench, 806 F.2d 1443, 1445 (9th Cir. 1986); United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981). A subpoena requires turning over documents in one's constructive possession. See United States v. Lench, 806 F.2d 1445-46 (9th Cir. 1986). The term "constructive possession" has been defined as knowingly having both the power and intention at a given time to exercise dominion or control over the property. United States v. Rhodes, 713 F.2d 463, 471 (9th Cir. 1983); United States v. Cousins, 427 F.2d 382, 384 (9th Cir. 1970).

In the instant case, the district court, at the Rule 11 hearing, conducted a thorough inquiry to establish on the record whether there was a factual basis for Kellogg's plea of guilty to the charge of obstructing justice. Kellogg initially claimed that when he was served with a subpoena requesting the Gutierrezes' financial documents, he did not understand he was supposed to search for and produce subpoenaed documents held by others in his company. The proceedings stopped for a recess, and Kellogg conferred with his counsel. Thereafter, Kellogg admitted to the prosecutor's statement that he willfully failed to search his office to locate documents that he knew were probably there and then affirmatively represented to the grand jury that he had no documents while knowing that his failure to produce the subpoenaed documents would impede the grand jury investigation. Kellogg further admitted that he did not search for the documents because he was worried about his own financial investment in the Gutierrezes' company.

There is sufficient evidence from which the district court could conclude that Kellogg committed the charged crime of obstructing justice. He willfully failed to search for documents within his possession and falsely stated to the grand jury that he had no documents. See United States v. Lench, 806 F.2d 1443 (9th Cir. 1986). Therefore, an adequate factual basis for his plea was established on the record and the court did not err in accepting Kellogg's guilty plea. See McCarthy v. United States, 394 U.S. 459 (1969); United States v. Rivera-Ramirez, 715 F.2d 453, 457 (9th Cir. 1983), cert. denied, 467 U.S. 1215 (1984).

II

Withdrawal of Guilty Plea

Kellogg contends that the district court erred in denying his motion to withdraw his guilty plea, made prior to sentencing, because he met his burden of establishing a plausible reason for withdrawal of his plea. Appellant's Brief at 7-8.

The district court may permit a defendant to withdraw a guilty plea, before sentencing, if he meets his burden of establishing a fair and just reason. Fed. R. Crim. P. 32(d). United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987); United States v. Castello, 724 F.2d 813, 814 (9th Cir. 1984). This court reviews the district court's denial of a motion to withdraw a guilty plea for abuse of discretion. Rios-Ortiz, 830 F.2d at 1069; United States v. Johnson, 760 F.2d 1025, 1026 (9th Cir. 1985).

Kellogg principally contends that he should have been permitted to withdraw his plea because at the time he pled guilty, he did not understand the nature of the charges against him. Specifically, he contends that he did not understand that a subpoena required him to locate and produce subpoenaed documents within his constructive possession.

In denying Kellogg's motion to withdraw his plea, the district court stated that it could not believe Kellogg's claim that he did not understand the charges. As the court noted, Kellogg has a B.S. in Business Administration from Northwestern, an M.B.A. in Business Administration from Harvard, and has been a certified public accountant his entire adult life. When determining if a defendant has presented a fair and just reason for withdrawal of plea, judgments as to the credibility of a witness are primarily entrusted to the district court. United States v. Navarro-Flores, 628 F.2d 1178, 1183-84 (9th Cir. 1980).

Fed. R. Crim. P. 11(c) (1) requires the district court to "inform the defendant of and determine that he understands ... the nature of the charge to which the plea is offered." Although no specific method of advising defendant is mandated, the district court in accepting a plea should take the time and effort necessary to set forth the meaning of the charges and to demonstrate on the record that the defendant understands. See United States v. Kamer, 781 F.2d 1380, 1385 (9th Cir.), cert. denied, 107 S. Ct. 80 (1986). Here, the district court read the charge from the indictment and twice asked Kellogg if he understood the charges against him. Kellogg answered that he did. The district court met the requirements of 11(c) (1) by setting forth the nature of the charges and assuring Kellogg's understanding. See United States v. Kamer, 781 F.2d 1380, 1385 (9th Cir.), cert. denied, 107 S. Ct. 80 (1986).

Kellogg's solemn declaration made in open court that he understood the charges carries a strong presumption of verity. United States v. Moore, 599 F.2d 310, 314 (9th Cir. 1979), cert. denied, 444 U.S. 1024 (1980). The district court is entitled to credit his statements at the Rule 11 hearing over his subsequent contentions that he is not guilty based on a misunderstanding of nature of the charge. See United States v. Castello, 724 F.2d 813, 815 (9th Cir.), cert. denied, 467 U.S. 1254 (1984).

Finally, Kellogg contends that he should have been allowed to withdraw his guilty plea because he was innocent. Essentially, this duplicates his claim that the court established no factual basis for his plea. As discussed above, the district court established a sufficient factual basis for his plea to the charge of obstructing justice. The district court did not err in accepting Kellogg's guilty plea nor in denying his motion to withdraw his plea.

AFFIRMED.