Unpublished Disposition, 889 F.2d 1096 (9th Cir. 1988)

MEMORANDUM^** 

Appellant James Michael Betz seeks reversal of an order of the United States District Court for the district of Arizona denying Appellant's motion to withdraw his plea of guilty under Rule 32(d) of the Federal Rules of Criminal Procedure. We hold that the district court did not abuse its discretion in denying defendant's motion to withdraw his plea. By his actions, Petitioner led the government to believe that he would go forward with an existing plea agreement and petitioner waited to file his motion until the time had expired for the government to present the matter to the grand jury for reindictment. We therefore affirm the district court order denying defendant's motion to withdraw his guilty plea.

STATEMENT OF FACTS

On April 14, 1987, Betz was indicted for tax evasion based on his failure to file personal and corporate tax returns. The income attributed to Betz for those years was earned mostly as a result of a fraudulent oil scheme. Betz had already been indicted for fraud and conspiracy to commit wire fraud in connection with his participation in this false oil pricing scheme on July 24, 1985. This indictment alleged that from January of 1980 through May of 1981, Betz and others devised a scheme to defraud the U.S. Department of Energy by fraudulently upgrading "old oil" classifications to "new oil," making the oil more valuable for resale.

After the tax indictment was filed, the parties negotiated a plea agreement which provided that Betz would plead guilty to one count of the oil indictment and Count II of the indictment in the tax action. The government agreed to dismiss all other counts and to recommend to the district court that Betz receive a sentence of probation, provided that Betz fully disclose his involvement, the involvement of charged and uncharged co-conspirators, and testify truthfully, if needed. Based on this agreement, Betz entered his guilty plea on May 27, 1987. Sentencing was set for July 6, 1987 and was continued to September 14, 1987.

Between the entry of the guilty plea and sentencing, the United States Supreme Court issued its opinion in McNally v. United States, 483 U.S. 350 (1987). This opinion had the effect of rendering invalid the oil fraud indictment. Betz then joined his co-defendants in the oil indictment in their motion to withdraw their pleas and to dismiss the oil indictment. The court vacated the sentencing of Betz and his co-defendants in the oil indictment on September 21, 1987 and dismissed the oil indictment on March 31, 1988. The government appealed the dismissal and the district court stayed Betz' sentencing on the tax indictment pending the outcome of that appeal.

Subsequently, Betz' co-defendants in the oil case negotiated new plea agreements with the government, resulting in misdemeanor pleas, even though they previously pled guilty to felonies. Betz also sought to negotiate a new plea agreement. At that time, the government informed Betz that there was a possibility that they might dismiss the appeal and reindict him under 18 U.S.C. § 3288 to correct the McNally defect. On July 21, 1988, Betz' counsel stated in a letter to the assistant United States attorney that any attempt by the government to resurrect the oil indictment would be a violation of the plea agreement, and that Betz would withdraw from the plea agreement if re-indicted. He did not object, however, to the alternative course of governmental action he identified: proceeding to sentencing on the guilty plea in the tax case. The government voluntarily dismissed the appeal in the oil case on August 19, 1988.

On September 30, 1988, just prior to sentencing on Count II of the tax evasion indictment, and two days after the six-month time period had elapsed during which, pursuant to 18 U.S.C. § 3288, the government could have obtained a superseding oil indictment, Betz filed his motion to withdraw his plea in the tax evasion case. Betz argues that because both he and the government in negotiating the plea agreement had proceeded on the mistaken assumption that the oil indictment was valid, the agreement was now voidable at Betz's election. Additionally, Betz cited as an alternative ground that the government had breached the plea agreement by failing to provide a written recommendation for probation, and had permitted one of its agents to recommend a period of incarceration.

The trial court denied Betz' motion to withdraw, concluding that there had been no mutual mistake and that the failure of the government to provide a recommendation of probation was premature because the sentencing had not yet taken place. On November 21, 1988, Betz was sentenced to four years of probation and a $10,000 fine.

ANALYSIS

Rule 32(d) of the Federal Rules of Criminal Procedure provides that a defendant may be permitted to withdraw his plea of guilty prior to sentencing "upon a showing by the defendant of any fair and just reason." A motion to withdraw is directed to the sound discretion of the trial court and we will overturn a denial of a motion to withdraw a guilty plea only if the trial court has abused its discretion. See United States v. Navarro-Flores, 628 F.2d 1178, 1183 (9th Cir. 1980). A defendant is not constitutionally or otherwise entitled to withdrawal of his guilty plea, and, as such, there is no "right" of withdrawal. See United States v. Castillo, 724 F.2d 813, 814 (9th Cir.), cert. denied, 467 U.S. 1254 (1984).

This court has held that withdrawal of a guilty plea prior to sentencing should be freely granted when there are "fair and just" reasons justifying this relief. The defendant has the burden of showing justification for withdrawal. See United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987).

Defendant argues that the dismissal of the oil indictment nullified the plea agreement, and that this change in the circumstances constitutes a "fair and just" reason for allowing withdrawal of defendant's guilty plea. Defendant argues that the principal reason for his acceptance of the plea agreement and his guilty plea to the tax evasion charge was to have all the remaining oil indictment charges dismissed. Because both he and the government proceeded on the mistaken assumption that the oil indictment was valid when they negotiated the plea agreement, Betz maintains that the agreement should be voidable.

We hold that the petitioner has not shown a "fair and just" reason to allow withdrawal of his guilty plea. We base this holding on two observations. First, Betz never objected to the government's going forward with the existing plea agreement following the dismissal of the oil indictment. Although he attempted to negotiate a new plea agreement, he did not inform the government that he considered the original agreement to be void. To the contrary, in his correspondence to the assistant United States attorney, Betz's counsel made it clear that Betz still considered the plea agreement to be valid. The government states that it then informed Betz that the government would go ahead with the plea agreement insofar as it pertained to the income tax charge and that Betz did not object. In any event, Betz's conduct led the government to believe that the existing plea agreement would go forward as anticipated. Based on that conduct, the government did not seek a superseding indictment.

Second, Betz waited a full month after the government filed its notice to proceed with the sentencing to file this motion to withdraw his plea. This filing occurred six months after the dismissal of the oil indictment and two days after the last date on which the government would have been able to present the matter to the grand jury for reindictment. In United States v. Navarro-Flores, supra, this court affirmed a district court order denying a motion to withdraw a guilty plea that was based on the misleading character of the defendant's interpreter's translation of the proceedings. The court also took into account the fact that the defendant had waited for more than a month to raise this claim and did so only after hearing of his co-defendant's imprisonment.

Because the petitioner led the government to believe that sentencing could proceed based on the existing plea agreement, and because of the petitioner's strategic delay in filing his motion to withdraw his guilty plea, we hold that Betz did not show a fair and just reason for withdrawal of his guilty plea. We therefore affirm the district court order denying defendant's motion to withdraw his guilty plea. AFFIRMED.