United States v. Graf
2016 U.S. App. LEXIS 11730
| 7th Cir. | 2016Background
- Graf sold counterfeit currency to a confidential informant twice; Secret Service observed the sales. He was indicted and, after a Rule 11 colloquy, pleaded guilty under a plea agreement to one count under 18 U.S.C. § 473; a second count was dismissed.
- The district court accepted Graf’s guilty plea after finding it knowing and voluntary and set sentencing.
- Graf absconded, was later re-arrested, and received new counsel. Shortly before sentencing, he moved to withdraw his plea so he could file a Roviaro motion to compel disclosure of the informant’s identity.
- The district court denied the motion to withdraw, finding Graf had not shown a fair and just reason demonstrating the disclosure would have altered his decision to plead. Graf was sentenced to 63 months (top of Guidelines range).
- On appeal the sole issue was whether the district court abused its discretion in denying withdrawal under Fed. R. Crim. P. 11(d)(2)(B). The Seventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument (Graf) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| Whether Graf showed a “fair and just reason” to withdraw his plea under Rule 11(d)(2)(B) | His original counsel failed to advise him about a Roviaro motion; had he known, he would have pursued disclosure and might not have pled | Graf’s desire to litigate a late tactical Roviaro motion does not affect the voluntariness of his plea; he offered no evidence that disclosure would have changed the outcome | Denied — no abuse of discretion: Graf failed to show a fair and just reason |
| Whether plea was knowing and voluntary given counsel’s alleged omission | New counsel argued ineffective assistance for not discussing Roviaro before plea | Government relied on the Rule 11 colloquy and presumption of voluntariness; lack of discovery does not invalidate a voluntary plea | Denied — Graf did not satisfy Strickland prejudice or show plea was unknowing |
| Whether Seventh Circuit should adopt Ninth Circuit’s McTiernan standard (subjective plausibility test) | Graf urged adoption to allow withdrawal based on subjective choice if additional advice “could have plausibly motivated” not pleading | Court rejected McTiernan as inconsistent with Seventh Circuit precedent and Rule 11 purposes | Denied — Court declines to adopt McTiernan; retains stricter, deferential standard |
| Whether a post-acceptance tactical motion (Roviaro) constitutes a fair and just reason | Graf argued identity of informant could support defenses (entrapment/impeachment) and might have led to different plea decision | Court emphasized the plea’s solemnity, prior sworn statements, and that speculative tactical benefits do not undermine voluntariness | Denied — speculative and strategic motives amount to gamesmanship, not a fair and just reason |
Key Cases Cited
- United States v. Redmond, 667 F.3d 863 (7th Cir. 2012) (abuse-of-discretion standard for plea-withdrawal review)
- United States v. Mays, 593 F.3d 603 (7th Cir. 2010) (grounds permitting withdrawal: actual/legal innocence or involuntary plea; presumption of truth for Rule 11 colloquy answers)
- Roviaro v. United States, 353 U.S. 53 (1957) (informant-identity disclosure requires showing relevance and necessity to defense)
- United States v. Underwood, 174 F.3d 850 (7th Cir. 1999) (incomplete government discovery does not by itself render plea involuntary)
- Strickland v. Washington, 466 U.S. 668 (1984) (effective assistance test: deficient performance and prejudice)
- Hill v. Lockhart, 474 U.S. 52 (1985) (Strickland standard applied to advice regarding guilty pleas)
- United States v. Hyde, 520 U.S. 670 (1997) (allowing easy withdrawal would reduce plea’s solemnity; Rule 11 protections necessary)
- United States v. Jefferson, 252 F.3d 937 (7th Cir. 2001) (balancing test for informant disclosure)
- United States v. Davey, 550 F.3d 653 (7th Cir. 2008) (a plea can be voluntary despite incomplete information)
- United States v. Pike, 211 F.3d 385 (7th Cir. 2000) (ineffective-assistance claim in plea context requires showing reasonable probability of a different result)