USCA1 Opinion

December 16, 1992

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 92-1475
UNITED STATES OF AMERICA,
Appellee,
v.
CLIFFORD A. DOYLE,
Defendant, Appellant.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
___________________
_________________________
Before
Breyer, Chief Judge,
___________
Bownes, Senior Circuit Judge,
____________________
and Selya, Circuit Judge.
_____________
_________________________

Kent I. Patashnick, with whom Patashnick Law Offices was on

___________________
______________________

brief, for appellant.

F. Mark Terison, Assistant United States Attorney, with whom
_______________
Richard S. Cohen, United States Attorney, was on brief, for the
________________
United States.
_________________________

_________________________

SELYA,
SELYA,
ponder the
plea

to

This

denial of appellant's
certain

weighing

Circuit Judge.
Circuit Judge.
_____________

of the

federal drug

appeal requires

motion to withdraw
and

relevant factors

tax

offenses.

virtually compels

that we

his guilty
Because

the result

reached below, we affirm.

I. BACKGROUND
I. BACKGROUND

On July 12, 1991, defendant-appellant Clifford A. Doyle

agreed

to

offenses.

plead guilty
See 21 U.S.C.
___

to

certain

narcotics

and income

841(a)(1), 841(b)(1)(B)

tax

(1988); 26

U.S.C.

7201, 7206(1)

appellant promised
for the

In the written

to cooperate with the

assurance that

assistance.

(1988).

government in exchange

the prosecutor would

According to

its terms

plea agreement,

herald appellant's

the bargain contained

"no

further or other agreements, either express or implied."

On September
hearing under

the aegis of

fac-tual basis
of

9, 1991,

Fed. R.

for the plea, and

the charges against him,

rights

the district judge

he relinquished,

Doyle's tender

Crim. P. 11,

ascertained a

elicited Doyle's understanding

the maximum sentence

and

to be knowing

conducted a

like matters.1

he faced, the

Upon

and voluntary, the

determining

court accepted

the guilty plea.

At the hearing's

end, the government filed a motion to

seal all records in the case.

was granted.

No objection appearing, the motion

But, as Homer had prophesied many centuries before,

____________________

1During the Rule 11 colloquy, appellant again assured the

court that no promises apart from those specified in the written
agreement had influenced his change of plea.
2

there was room for a slip 'twixt the cup and the lip.
of court neglected

properly to record and

The clerk

implement the sealing

order.

Two

days later, the press learned of

Doyle's plea and a

spate of publicity ensued.

Sentencing proved an unusually protracted affair.
initial sentencing hearing began
when

the

district judge

evidence

of attempted

on February 7, 1992.

granted appellant

flight.

It ended

time to

At adjournment,

The

respond to

the prosecutor

called the judge's attention to the clerk's bevue, reporting that

only the plea
result,

agreement itself had been impounded and that, as a

publicity about

identity of
was out

the case's

a confidential

of the

tube, the

motion to seal.

The

status had

informant.

jeopardized the

Although

the toothpaste

prosecution nevertheless renewed

court again granted the motion.

the

Appellant

stood mute.
The proceedings resumed nearly
2,

1992).

two months later (April

The judge apprised Doyle's counsel of his inclination

to mete out consecutive prison sentences totalling fourteen years

and

one

month.

hearing

Eventually,

without actually

however, the

imposing sentence

judge

recessed the

so that

a question

concerning the possibility of parole could be clarified.

The
The judge

third sentencing

settled

the parole

hearing took
issue at

place on

a chambers

April 6.

conference,

informing the lawyers that "any sentence I hand down will be with
the

contemplation that [Doyle] may

entire

[sentence]."

Appellant's
3

end up having
counsel inquired

to serve that

whether the

judge's thinking anent length of sentence had modulated, but

the

judge declined comment.

When the proceedings shifted into open court, appellant

moved

to withdraw

attention

surrounding

stymied complete
benefit

his guilty
the

plea.

case

He

argued that

had endangered

the media

his

cooperation, thereby depriving him

life

of the full

of the bargain commemorated in his plea agreement.2

district

court determined,

in

substance, that

retract derived from appellant's

sentence

rather than

from

the request

The

to

displeasure with the forecasted

any legally

therefore, denied the motion.

and

cognizable reason

and,

Following imposition of sentence,

Doyle appealed.
II.
II.

ANALYSIS
ANALYSIS
We

start with an

then proceed to survey

overview of the

legal landscape and

the precise terrain on which

this appeal

is constructed.
A
A
A
sentencing
request.

defendant
only

See
___

may

withdraw

upon showing

United States
_____________

a fair

guilty
and

plea

just reason

v. Pellerito, 878
_________

prior

to

for the

F.2d 1535,

1537

(1st

Cir. 1989);

factors

enter

see also
___ ____

the

trial

Fed.

R. Crim.

P.

court's decisional

32(d).
calculus.

include the force of defendant's proffered reason;

Several

They

the timing of

____________________

2While
appellant's motion
offered other
reasons for
withdrawing his plea, he argues none of them on appeal.
We deem
those arguments waived. See United States v. Dietz, 950 F.2d 50,
___ _____________
_____
55 (1st Cir. 1991); United States v. Rivera-Martinez, 931 F.2d
_____________
_______________
148, 150 n.3 (1st Cir.), cert. denied, 112 S. Ct. 184 (1991).
_____ ______
4

the request; the defendant's assertion of legal innocence (or the

lack of such an

assertion); and

the likely voluntariness of the

plea, given the newly emergent circumstances.

See Pellerito, 878

___ _________

F.2d at 1537; United States v. Kobrosky, 711 F.2d

______________
________
Cir. 1983).

449, 455 (1st

If the combined weight of these factors tilts in the

defendant's favor, then the court must also assess the quantum of
prejudice,

if any,

that

will inure

Pellerito,
_________

878 at

1537.

The nisi

vantage point from which

to

the government.

prius court

See
___

has a

special

it may evaluate these factors.

Hence,

its decision

about whether

it is fair

and just to

plea will

extricate a

particular defendant

from his

be overruled

only for

abuse of discretion.

See id. at 1538; Kobrosky, 711 F.2d at 454.

___ ___
________
B
B

Having

limned the

salient factors

in

the decisional

calculus, we examine the lower court's findings on each.

1.

The Proffered Reason.

A defendant may not renounce

____________________
his guilty

plea

without advancing

plausible reason

for

so

doing.

See United States v. Tilley, 964 F.2d 66, 72-73 (1st Cir.
___ _____________
______

1992);

Pellerito,
_________

plea

rested

fruits
media

878 F.2d at 1538.

on the

mistaken

deriving from
intensity

maintains

full

dictated

that the

Appellant

understanding

cooperation would
the

tone

government breached

of

his

claims that his

that all

possible

be his.

Because

cooperation,

an implicit

he

promise to

safeguard his opportunity to cooperate fully and, thus, precluded

him

from reaping

the perceived

benefits of

argument rings hollow.

5

his bargain.

The

For

one thing,

unwarranted.

The

Dolye's

plea agreement

government's part either to

other

repeatedly

refused

expressly

articulated

479 (1st

or

we discern

would

because,

be

necessarily

district court
induce

We have

promises

implied

by,

not

plea

F.2d 476,

12, 17

862 F.2d 386, 388 (1st

retreating today

Indeed, speculation
inconcinnous

Rule 11

the

take any

Garcia, 954 F.2d

______

no basis for

especially

during the

of

United States v. Atwood, 963

_____________
______

salutary proposition.

promise

existence

1992); United States v. Hogan,

_____________
_____

Cir. 1988), and

to

in,

the

were

promise on

defendant's cooperation.

infer

see, e.g.,
___ ____

contained no

Cir. 1992); United States v.

______________

(1st Cir.

that

to

expectations

seal the proceedings or to

steps to facilitate the

agreements,3

professed

in

from

about such
this

proceeding, appellant

instance

assured the

that no one "made a promise to [him] in an effort

[him]

to plead

guilty

aside

from

[those promises

contained in] the plea agreement."

For
order

another

render

gratuitous.

appellant's
The government

court accepted
that

thing, the

it wanted

investigations."

the guilty
to

circumstances of

professed
moved

to seal

plea, stating

"protect the
We simply do

reliance

the secrecy

on

after the
_____

in its

integrity of

it

wholly

district

written motion

ongoing criminal

not see how imperfect compliance

with an order mentioned for the first time after appellant's plea

____________________

3This familiar precept has particular applicability when, as

in this case, the plea agreement itself specifically states that
"there are no further or other agreements, either express or
implied," other than those explicitly set forth in the document.
6

had

been accepted,

vehicle

to

serve

and represented
the

to the

government's

interests, could conceivably constitute

for

retraction.

This is

about

keeping his

(not

case under

the

as a

defendant's)

a "fair and just" reason

especially so, we

appellant's grudging admission that any

court chiefly

suggest, in view of

prosecutorial assurances

wraps came

only after

the court

allowed his change of plea.

Thirdly,
flawed premise.

appellant's argument depends

on a profoundly

He says his ability to cooperate was hampered by

unforeseen events,

specifically, the

clerk's blunder.

any

host of

conditions may

given case

accused's cooperation.

external

Yet, in
impede

an

In the last analysis, criminal defendants

occupy no special refuge from the vagaries of an uncertain world.

Cf.
___

Tilley, 964 F.2d at

______

defendant asserted

72-73 (denying a

a breakdown

inability fully to perform

plea withdrawal where

in cooperation).

A defendant's

his own undertakings, if attributable

to

a circumstance

constitute

beyond

the prosecution's

control, does

not

a cogent reason for allowing him to withdraw a guilty

plea (unless, of course, the plea was expressly conditioned

upon

nonoccurrence of the event).4

____________________

4Appellant argues that his situation is exceptional inasmuch

as the court's own mistake frustrated specific performance. This
asseveration might have some
force if the plea agreement
contained a promise to impound records and the clerk's miscue
effectively deprived appellant of the benefit of the promise.
Here, however, for sentencing purposes, the court, by its own
appraisal, took into account "the fact that [Doyle] did intend to
and wanted to cooperate even though he was frustrated in doing
so." Where no apparent loss of benefit exists there is simply no
warrant for judicially rewriting plea agreements in an effort to
ward off all contingencies harmful to one side.
7

2.

Timing.
_______

attempted plea
scrutiny of
retraction

Because

withdrawal is

the

highly probative of

the chronology is important

is fair and just.

timing of

defendant's

motive, close

in adjudicating whether

While an immediate change of heart

may

well lend considerable force to a plea withdrawal request, a

long

interval between the plea and the request often weakens any

claim

that

pretenses.

the plea

was entered

See United States v.

in

confusion or

under false

Daniels, 821 F.2d 76,

79 (1st

___ _____________
Cir. 1987);
1987);

United States v. Ramos, 810

_____________
_____

United States v. Barker,

_____________
______

cert. denied, 421 U.S.

_____ ______
delay
See
___

_______

saps strength

514 F.2d 208,

1013 (1975).
from any

Barker, 514 F.2d at

______

F.2d 308, 313 (1st Cir.

222 (D.C. Cir.),

Put another

proffered reason

222 (observing that,

has long delayed his withdrawal

way, excessive

for withdrawal.

"if the defendant

motion, . . . the reasons

given

to support withdrawal must have considerably more force").

Here,

appellant's timing belies his rationale.

As

we

have

said,

seeking

to

withdraw his

founded

on

the

cooperate
inexorably

plea is

mistaken

would

be

implies

that

the plea

assumption that

protected.
that

this

"reason"

more

doorstep,

station

court's

than

50

making "cooperation

miles"
more
8

promptly
than a

appeared
little

forecasted

testified that "every newspaper, radio

within

to

events

Appellant learned of the leak two days after the

TV

district

no

of

sentence.

and

the

opportunity

chronology
was

for

agreement was

excuse

He

escape

The

his

reason

contrived

11 hearing.

to

appellant's proffered

Rule

station,
on

his

difficult."

Nonetheless,

he did not

seven months.

seek to withdraw

his plea for

nearly

That date, April 6, 1992, was (a) a mere four days

after appellant

discovered that the court

was contemplating the

imposition of a

lengthy incarcerative sentence, and (b) a matter

of minutes after defense counsel's failed attempt to elicit a new

sentencing prognosis from the judge.

On this record, appellant's professed reason for moving

to withdraw

his plea

would have

to believe

smacks of post-hoc
in

the Tooth

rationalization.

Fairy to

think it

One

merely

coincidental that, on the heels of the court's divulgement of the

likely sentence,

the defendant

month-old

had

error

agreement rested.
newfound

suddenly realized that

destroyed

the

basis

on

a seven-

which his

plea

We agree with the court below that appellant's

desire to hazard

a trial can

only be

attributed to a

dawning awareness "of what the likely sentence would be."

3.

Legal Innocence.
________________

Courts look more hospitably on a

motion to withdraw a guilty plea when the motion

an assertion of innocence.

See Tilley, 964 F.2d at 73; Kobrosky,

___ ______
________

711 F.2d

at 455.

claim of

innocence weighs in favor of

stand.
the

Rule

The reverse is also

Here, appellant
11 proceeding

true:

the

absence of a

allowing a guilty plea to

unconditionally admitted his

and

withdraw his plea nor, indeed,

assertion of innocence.

is coupled with

neither his

subsequent

guilt at

motion to

his appellate brief, contains

an

4.
to

Voluntariness.
______________

In assaying the merits of a motion

withdraw, an inquiring court must determine whether, in light

9

of

the

defendant's proffered

facts, the
See
___

plea may still

United States v.
______________

1991);

reason

and

any newly

be deemed voluntary

Austin, 948
______

F.2d

disclosed

and intelligent.

783, 786-87

(1st Cir.

United States v. Allard, 926 F.2d 1237, 1245-47 (1st Cir.

_____________
______

1991).

In this

case, the

district

court conducted

the plea

proceedings in strict conformity

with Rule 11's requirements and

succedent

events cast

on the

conclusion

that the

In

no doubt
plea was

court's contemporaneous

both voluntary

and intelligent.5

and of itself, the seven-month period preceding the motion to

withdraw

an interval wholly unexplained by plausible inferences

consistent with appellant's proffered reason for wanting to scrap

his

plea

coerced.

serves to

cripple

any notion

See Pellerito, 878 F.2d at 1541-42.

___ _________

that

the

plea was

Moreover, the lack

of any evidence that sealing the proceedings was part of the plea
bargain militates strongly against

appellant's argument that the

plea

was

unintelligent

government would
all,

related

at

the very
to a

to

mistaken

belief

safeguard his opportunity to

to invalidate

must,

due

a guilty
least,

material

plea, a
be both

matter.

that

cooperate.

the

After

defendant's misimpression
objectively

See id.
___ ___

at

reasonable and
1538.

Doyle's

"mistake" does not qualify on either score.

____________________

5We need not linger over appellant's claim that, as early as

February 7, 1992, the court should have
probed anew the
voluntariness and intelligence of his plea. To be sure, courts
will sometimes
inquire sua
sponte into alleged
Rule 11
___
______
violations. See, e.g., Daniels, 821 F.2d at 81. Yet here, as we
___ ____ _______
have pointed out, the absence of a stated term in the plea
agreement left the court without any practical way of tying the
thwarted impoundment order to the plea. Thus, the district court
did not err by failing to undertake a further inquiry sua sponte.
___ ______
10

C
C
We
no part

of

need go no further.6
the plea

As

agreement, there

the motion to seal formed

was never

Furthermore,

by communicating the

and his good

intention to do even more, the

any breach.

extent of Doyle's cooperation

government lived up

to its end of the bargain.

was exigible.
prosecutor
claim
Hence,

See
___

the

Atwood, 963 F.2d

______

did exactly

that the

plea

district

It had promised no more

what the

appellant advanced no fair

did

("When .

government

agreement was
court

at 479

not

. .

promised to

breached
err

and no more

will not

the

do, a

lie.").

in

determining that

and just reason for

retreating from

his guilty plea.

Affirmed.
Affirmed.
_________

____________________

6Since all the critical integers in the decisional calculus

counsel affirmance, we need not embark upon an analysis of
possible prejudice to the government.
See Ramos, 810 F.2d at
___ _____
315.
11