Gooding v. United States

GOODING, Appellant, John H. STATES, Appellee.

UNITED

No. 84-753. Appeals.

District Columbia Court of

Submitted Nov. Aug.

Dеcided 1987.* * Today August opinion form the division. The en banc order the division issued (reported by today’s is vacated en banc March (D.C.1986) A.2d 1320 vacated en banc order. 18,1987) order of March is reissued in amended DiFonzo, D.C., Washington, ap-

J. Herbie court, pointed by the was on the brief for appellant. diGenova,

Joseph Atty., E. U.S. and Mi- Farrell, Hetherton, Darryl chael W. Judith Jackson, Thomas, L. Jackson and Debra N. Diener, Attys., Washington, Asst. U.S. D.C., appellee. were on the brief for PRYOR, Judge, Before Chief NEBEKER, MACK, NEWMAN, FERREN, BELSON, TERRY, ROGERS STEADMAN, Judges. Associate ORDER PER CURIAM.

By en order banc filed March (D.C.1987), granted 522 A.2d we petition of the United States to rehear this banc; opinion case en we vacated the reported division (D.C.1986). In its 513 A.2d petition, the United stated: States believe, While we for the reasons stated dissent, Judge Ferren in id. at 1335- panel also erred in сonclud- ing that the trial discre- court abused its denying tion in withdrawal of the standard, just” under the “fair and consideration we would not seek en banc premised its panel of this case if the Indeed, holding solely on that basis. we He was taken to Columbia. an address in panel, Washington would be satisfied on rehear- Northwest he where ing, against were to delete the Rule 11 handcuffed and held basis will. holding. However, McIntyre subsequently its moved to Balti- because of the more, Maryland, Springfield, impact Virginia. “independent threatened of this incarceration, During period ground” panel’s ruling scores following day, McIntyre lasted until the guilty pleas, long of convictions based on gun. was assaulted with a final, thought to have been we believe question this case raises exception- “a of According testimony plea to his at the importance” warranting al en banc con- hearing, appellant’s withdrawal involve- 40(c)(2). D.C.App.R. sideration under when, began in ment this crime for an purpose, apart- unrelated he called at the Upon consideration, further the division codefendant, ment his of Kenneth Bass.1 suggestion has decided to accede to the of discovering McIntyre being After was opinion the United States that its be will, premises against held his and, amended, reissued, amended as to re- stayed lant in posture nevertheless there holding flect premised that its is not kidnapping. that facilitated the In contrast ground appellant’s plea was Bass, appellant appear does not to have involuntarily entеred under Rule 11. The employed guns either or handcuffs. He today division has opinion reissued its acted with consideration towards the vic- thus Accordingly, amended. the en banc tim. 18, 1987, order of March is vacated. MACK, Before kidnapping McIntyre among FERREN and The was ROGERS, Judges. involving Associate a series of connected offenses two other victims. Bass was the acknowl-

MACK, Judge: Associate edged principal in all of these A crimes.2 denial, participant We are asked to third seemingly review the has never been hearing, appellant apprehended. Gooding’s John H. become ac- 32(e) quainted Rule years motion to with Bass several earlier plea withdraw his they prison kidnapping. court, In when served a sentence in But- the trial ner, men, appellant argued North Carolina. Both at that plea that his was involun- time, tarily religious group were of a entered and members that it fair was Temple known as the Moorish Science that it be withdrawn. On the record before America, appellant us, to which was introduced we conclude that withdrawal of the prisoners. other should permitted have been as fair and We, therefore, under the circumstances. 30, 1983, appellant pled On November reverse and remand so that can aiding abetting Bass in the opportunity have the an asserted kidnapping McIntyre.3 See D.C.Code coercion jury. defense before a (1981). sentencing, 22-2101 Prior to § days entry, appellant within a few of its sought guilty plea. to withdraw his New Briefly, surfacing the facts from the appointеd January counsel was and on government’s cursory proffer of evidence the Rule withdrawal motion was at the time of April show that on April filed in the trial court. On McIntyre Lawrence abducted appellant presented testimony gunpoint from a voluntarily street the District of had not en- been trial, 1.Appellant jury testified that he visited Bass in 2. Bass was convicted after a entered, appellant’s guilty plea prom- and sen- District of Columbia in order to obtain eighty-seven years imprison- tenced to to life help mortgage pay- $800 ised loan to him make ment. We affirmed his convictions in an un- ments on the North Carolina house in which he published opinion. Bass v. United No. lived with his wife and children. The (D.C. June does not disclose whether the loan was ever rate, any рay- received. At unable to make the remaining 3. The nine counts of the indictment ments, appellant later lost the residence. were dismissed under the terms of a bar- gain. participation tered and that his guilty pleas the McIn- must be set is the dominance tyre kidnapping had been coerced dispositions such justice our criminal admittedly violent May codefendant. On system. In guilty pleas accounted 18, 1984, the trial court denied the with- of all adult felony 87.1% convictions and proceeded drawal motion and to sentence of all adult 91.4% misdemeanor convictions thirty-six to twelve to years in Superior Court. The Dist. of Colum- prison, all years but five suspended, Gov’t, bia Indices —A Statistical Index to year with a five probation period to follow DistRict (1986). of Columbia Sеrvices his release. By pleading guilty, an accused surrenders panoply a whole rights.4 of constitutional

II Because consequences grave, are so backdrop against 11 lays Rule stringent procedural down discussion concerning the requirements regulating 4. The Supreme (1979); Court has determined that a 60 L.Ed.2d 1055 and the Sixth Amend guilty plea operates trial, valid right as a waiver of speedy several e.g., ment Tiemens v. Unit (11th rights. States, 928, constitutional These include Cir.) the Fifth ed curiam), 724 (per F.2d 929 right against compulsory Amendment crimination, denied, 837, self-in cert. 469 U.S. 105 S.Ct. 134, rights the Sixth Amendment (1984); to a 83 L.Ed.2d 74 United States v. Yun jury opposing is, 795, trial and to confront the (11th Cir.1984). witness 723 F.2d 796 An asser ‍‌‌​‌​‌‌‌‌​‌​​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌‌​​​​​‌‌‌​​​​​‌‍es, Alabama, 238, 243, Boykin v. 395 U.S. process 89 tion of by a due violation reason of 1709, 1712, (1969); S.Ct. 23 L.Ed.2d 274 McCar excessive by bail was also waived a valid States, 459, 466, thy v. States, 476, United 394 U.S. plea. 89 S.Ct. Lambert v. United 600 F.2d 1166, 1170-71, (1969), (5th 22 Cir.1979). L.Ed.2d 418 and the 477-78 right agаinst Fourteenth racially Apart Amendment rights, from the loss of constitutional selection, discriminatory grand jury appellate Tollett v. some federal courts have also held Henderson, 258, 266, 1602, other, 411 U.S. 93 S.Ct. rights by that non-constitutional are lost 1607, (1973). 36 L.Ed.2d “Brady entry 235 In the guilty plea. Again, of a valid our adver- Trilogy” Supreme specific Court held that necessarily tence to these cases does not denote against Fifth approval. Amendment claims Examples self-incrimina are decisions that an ac by guilty pleas. tion were waived valid Parker prosecu- cused cannot obtain review of various Carolina, 790, 796-98, defects, v. North Fletcher, 397 U.S. e.g., 90 S.Ct. torial United States v. 731 1458, 1462-63, (1970) (claim 581, (8th Cir.) curiam), 25 L.Ed.2d (per 785 that F.2d 582-83 cert. inadmissible); denied, 845, 155, confession was McMann v. Rich 469 U.S. 105 S.Ct. 83 L.Ed.2d ardson, 759, 774, 1441, 1450, (1984); 397 U.S. 90 Boniface, S.Ct. 25 92 United v. States 631 F.2d (1970) (same); 1228, Brady (5th L.Ed.2d States, Cir.1980) curiam); 763 (per 1229 or statu 742, 748, 758, 1463, tory 397 U.S. occurring 90 S.Ct. violations 1468-69, 1474, (1970) (claim Hobson, guilty plea, e.g., 25 L.Ed.2d 747 that United States v. 686 628, penalty (8th unconstitutionally Cir.1982) curiam). state death statute (per F.2d 629 guilty pleas however, Entry coerced in order guilty plea, for defendants to of a valid does not sentences). obtain jurisdictional lesser foreclose attacks which assert that constitutionally prosecute. the state could not appeals Various federal courts of have decid York, 61, 2, Menna v. New U.S. rights 423 63 n. 96 S.Ct. ed that other constitutional are also lost 241, 2, (1975) (per 242 n. 46 by entry L.Ed.2d 195 cu- guilty plea. By of a valid reference to riam) decisions, (prosecution Jeopardy barred Double suggest these we do not that we Clause); 21, 30-31, Blackledge Perry, 2098, 2103-04, v. necessarily aрprove 417 U.S. holdings their if sim (1974) 94 S.Ct. 40 L.Ed.2d 628 presented jurisdiction. ilar issues were in this (prosecution Clause); barred Due Process pled Such cases hold defendant who has States, 85, 2, Haynes v. United 390 U.S. n. 87 88 appellate "nonju- cannot obtain review of 722, 2, (1968) (rais- See, S.Ct. 725 n. L.Ed.2d 19 923 challenges risdictional” e.g., to the conviction. ing previously prosecution 631, asserted claim Willingham, Slayton v. 726 F.2d 634 (10th Cir.1984) curiam); barred because statute unconstitutional (per under Rogers Maggio, v. right against 35, (5th Fifth tion); Cir.1983). Amendment self-incrimina- 714 F.2d n. 38 5 Particular Curcio, generally see examples holdings United States v. 712 are that the accused cannot 1532, (2nd Cir.1983) (citing right F.2d 1538 n. 10 against assert the Fourth Amendment il Westen, seizures, Way A e.g., Waiver: A Rationale searches and United States v. from Johnson, 385, (8th Cir.1980) Rights (per Constitutional 634 F.2d in Criminal 386 Forfeiture of Procedure, curiam); INS, 144, (1977)). v. 75 Mich.L.Rev. 1214 Nor 597 F.2d Larios-Mendez (9th Cir.1979) curiam); (per guilty plea preclude 145-46 does a valid the assertion in the Fifth confessions, right against corpus proceedings Amendment coerced federal habeas of constitu- 56, e.g., Magnuson, United States v. 680 F.2d tional claims which 58 were not forfeited under (8th Cir.1982) curiam); (per by entry plea. Franklin v. United state law v. Lefkowitz curiam), States, 192, (5th Cir.) Newsome, 283, 886, (per 589 F.2d 194-95 420 U.S. 95 S.Ct. 43 L.Ed.2d denied, 950, 2177, (1975). rt. 441 U.S. 99 S.Ct. 196 And the loss of constitutional ce

305 pleas, provides while Rule a remedial the court to meet these Rule 11 standards mechanism for their withdrawal where the require subsequent will grant of a Rule justice require. interests of so appeal, On 32(e) withdrawal motion unless is appar it rigorously this court pro- scrutinizes both ent, 11(h), under the terms of Rule ceedings to ensure that majority vast purely variance was technical and affects of criminal plead defendants who right McCar no any way.7 substantial truly have abandoned their constitutional thy, supra 4, 471-72, note 394 U.S. at 89 right to a trial with its attendant safe- Barker, United States v. 1173-74; S.Ct. at guards. 312, 325-26, 168 514 F.2d denied, cert. (en banc),

An accused can successfully move U.S. 95 S.Ct. L.Ed.2d 682 guilty plea 32(e)5 withdraw a under Rule (1975). by establishing independent either of strictness of our review of two grounds. proven The first necessary if the Rule 11 violations is defend because a ant shows that there was a fatal defect cannot have the effect of waiv proceeding the Rule 11 at which the ing rights pro constitutional without due Paragraph (d) was entered.6 Zerbst, of Rule Johnson v. cess, 458, 464, 304 U.S. obliges the trial court to ensure that (1938) 58 S.Ct. 82 L.Ed. 1461 “any guilty plea represent voluntary in McCarthy, supra note (quoted intelligent among choice the alternative U.S. at 89 S.Ct. at open defendant,” courses of action Byrd way Another which an accused A.2d (D.C.1977), (f) can seek to paragraph puts while withdraw a an ad under obligation 32(e) ditional by Rule showing, court to make is not that the Rule inquiry “such satisfy defective, shall 11 proceeding it that there but rather is a factual plea.” basis for the Failure justice demands withdrawal in the cir- (f) claims occasioned Determining does not accuracy plea. Notwith- of beyond extend pro- standing acceptance confínes of the plea guilty, criminal of a of ceeding Prosise, Haring 306, itself. judgment v. upon 462 U.S. Court should not enter a such 322-23, 2368, 2377-78, plea 103 S.Ct. making inquiry 76 L.Ed.2d 595 without such as shall (1983) (42 satisfy U.S.C. § 1983 claims it that there is survive a basis for the factual plea). plea. (g) proceedings. Record A verbatim of Super.Ct.Crim.R. 32(e) provides: 5. proceedings record of the at which the de- and, plea fendant enters a shall be made plea guilty. Withdrawal A motion to of contendere, plea there is a or nolo plea withdraw a or of nolo conten- include, limitation, the record shall without may dere only be made before sentence is defendant, the Court’s advice to the the in- imposed imposition or suspend- of sentence is quiry into the voluntariness includ- ed; injustice but to correct manifest the Court ing any plea agreement, inquiry and the into may judgment sentence set aside the accuracy guilty plea. a permit conviction and the defendant to with- (h) Any Harmless error. variance from the plea. draw his [or her] procedures required by this Rule which does substantially Rule is identical to Fed.R. rights disregard- not affect substantial shall be 32(d); frequently Crim.P. this court borrows ed. from federal interpreta- caselaw to assist our Emphasis ‍‌‌​‌​‌‌‌‌​‌​​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌‌​​​​​‌‌‌​​​​​‌‍partially added. Rule 11 is substan- tially identical to Fed.R.CrimP.11 tion of it. and, like Rule 32(e), often we draw from federal caselaw to Super.Ct.Crim.R. provides, part: 11 in relevant interpret it. (d) Insuring voluntary. that the is accept plea Court shall not a or nolo Supreme ap- 7.The Court has found on direct first, by addressing contendere without peal "prejudice in a com- inheres failure to court, personally open defendant determin- 11,” 4, ply McCarthy, supra with Rule note 394 ing voluntary is and not the 471, 1173; see, e.g., Canady U.S. at 89 S.Ct. at promises аpart result or threats or of force States, 203, (5th Cir.1977), United 554 F.2d 205 plea agreement. from a The Court shall also concerning but a 11 has found Rule violation inquire willing- as to whether the defendant’s requirements "the formal to be [r]ule" plead guilty ness to or nolo contendere results purely postconviction technical on a collateral prior prosecu- from discussions between the attack, Timmreck, 780, United States v. 441 U.S. attorney. tor and the or his defendant [or her] 784-85, 2085, 2088, S.Ct. 60 L.Ed.2d 634 99 ****** (1979).

306 cumstances of the individual case. This The fair just standard, route, understandably, latter will most fre governs presentence withdrawal mo quently upon by be relied defendants tions 11 absent a Rule violation is viewed guilty pleas whose are not vulnerable to light of a number of factors. None of E.g., Gear аttack for violation of Rule 11. controlling these factors is and the trial States, hart v. United 106 U.S.App.D.C. court must consider cumulatively them 270, 273-74, 499, (1959). 272 F.2d the context of the individual case. Where applied The standard to be to these defend asserts, establish, accused fails but applicable ants—unlike that to those whose violation, Rule 11 the trial court should guilty pleas were not shown at the Rule 11 nonetheless consider the just fair and proceeding to be voluntary, intelligent and factors in order to determine whether that supported by a factual basis—varies de alternative standard demands that pending on whether the withdrawal motion granted. withdrawal motion be “We would brought before or after sentencing. In caution the trial that, courts when faced cases, presentence such mo presentencing with a request for withdraw regarded tion is leniently much more guilty plea, al of a full inquiry should be granted should “if for reason the beyond made the confines of the Rule 11 granting privilege seems fair and hearing.” Taylor, supra, 366 A.2d at 447. States, Kercheval v. United just.” 274 220, 224, 582, 583, U.S. 47 important S.Ct. 71 L.Ed. One factor in these (1927); Taylor see also 1009 v. United withdrawal motions is wheth States, 444, (D.C.1976) 366 A.2d (per 447 er the defendant has asserted his or her States, curiam); Jordan v. States, innocence.8 Everett v. United 350 735, (D.C.1976). A.2d On fair and 119 U.S. 63 n. 336 F.2d 982 n. motions, “[ljeave (1964). withdraw standing Such an assertion prior sentencing freely not, course, should be al require alone does States, lowed.” Poole granted. 102 U.S. motion be Patterson v. United (1957) States, App.D.C. (D.C.1984); 250 F.2d Aus 479 A.2d (citations omitted). A tin v. United withdrawal motion 356 A.2d (D.C.1976) curiam). which does not Howevеr, establish a Rule violation (per brought sentencing, however, and is “[wjhere the accused seeks to his withdraw prevail only upon showing will a of “mani sentencing on [or her] injustice.” Shepard States, fest ground the he has a defense [or she] 291, (D.C.1976); 363 A.2d Bettis v. 293 charge, to the should ... not [c]ourt States, United 190, (D.C. attempt 325 A.2d 195 prof to decide the merits of the brought defense, Whether determining guilt before or after fered thus Gearhart, sentence, these motions are addressed to or innocence of the defendant.” supra, 273, the sound U.S.App.D.C. discretion of the trial court and 106 at 272 F.2d only upon we reverse showing hand, a of abuse may at 502. On the other the court of such discretion. Lorimer v. United consider a weak government proffer of evi States, 1306, (D.C.1981) 425 A.2d Taylor, supra, (per prove guilt. 1308 dence to Cf. curiam). 366 A.2d at 447. Where innocence is as- Although important, (court legal permit presentence a claim of inno- has discretion to by appellant grounds cence such as that made is not withdrawal of in- not dispositive innocence). way determining, cluding either where a assertion of The dis- issue, describing Rule 11 violation is not at whether it is sent "[a]n is therefore mistaken in presentence virtually prerequi- fair and a withdrawal mo- assertion of innocence [as] granted. Taylor, supra, voluntary tion be plea.” See at 366 A.2d site to withdrawal of a See ("one Barker, dissent, consideration”); Similarly, 447 relevant su- 513 A.2d at 1342. the dissent 324, pra, U.S.App.D.C. throughout 168 at 514 F.2d at 220 mischaracterizes a claim of inno- ("an factor"); Everett, important supra, independent ground justifying 119 U.S. cence as “an 10, ("not App.D.C. guilty plea,” at 63 n. 336 F.2d at 982 n. 10 rather than cor- withdrawal of a accord, dispositive”); Nagelberg rectly treating many in itself v. Unit- as one of factors to be it 266, 266-67, 1252, presentence ed 377 U.S. 84 S.Ct. considered under the 1252-53, (1964) curiam) (per 12 L.Ed.2d 290 standard. Id. at 1341.

307 serted, consider, according denying the court should cretion withdrawal of the case, particular standard, to the circumstances of the under that we balance the rele- why reason the claimed defense was properly vant factors which should have original forward at the time of been considered. Barker, supra, pleading. U.S.App. 325, at D.C. 514 F.2d at 221. Ill The court should look also to Appellant’s Assertion Innocence length delay of the between asserted innocence desire to withdrаw it: insisting by unequivocally upon the exist change strong “A swift heart is itself a ence of a coercion defense on several occa indication that was entered in before, during sions and after the with confusion; furthermore, haste and with hearing motion. He testified ‍‌‌​‌​‌‌‌‌​‌​​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌‌​​​​​‌‌‌​​​​​‌‍at the drawal shortly rarely drawal after the event will motion, prejudice government’s legitimate example, in follows: States v. Strauss, withdrawal been prejudice er the Withdrawal motions terests.” 570 F.2d 1977); garded delay, regard may 999, 1008(1977). Roberts, is absent or 563 F.2d Id. (4th Cir.1977), “particular States 326, would be plea, promptly minimal, U.S.App.D.C. 514 F.2d at 222. Savage, United States v. 130-31 be had to wheth United favor.” and “where such Where there has prejudiced by made are re (4th F.2d Cir. A. Kenneth Bass. APPELLANT: ing? DEFENSE COUNSEL: structions. Bass and the ing independently Q. course somebody’s instructions? ^[*] Whose ^[*] thеse transactions with Mr. instructions were complainants, Following somebody’s ^[*] or were ^[*] you following were During you ^[*] you follow- ^[*] act in- which the defendant seeks to withdraw the Prejudice interests is measured as of the time at F.2d at 1011 n. 51. Another consideration guilty plea, not later. Roberts, supra, routinely permitted,” U.S.App.D.C. Id. at 102 n. 570 F.2d at 1011.9 legitimate A. Q. Bass’ instructions? happen Q. ^[*] What was Yes, Did you sir. # you have that belief? ^[*] you belief what would ^[*] didn’t follow Mr. # ^[*] possibly or A. That would be harmed is whether the accused has had full maybe killed. even competent benefit of counsel at all relevant Barker, supra, times. at Appellant told the court that he feared for 326, 514 F.2d at 221. The circumstances of victims, himself, lives may the individual case reveal other depart family, should he abandon Bass and factors the which will affect calculation thought: kidnapping. He the scene of the to withdrawal of the under the I that if some “that if were to leavе and just standard. I mischief befell Mr. Bass that would death, possible harm or subject turn be to

Appellant argued in the trial court that it my family.” Ap- along members of with just would be fair and that his he also feared that pellant testified that be In of the fact that withdrawn. view if he left come to the victims harm would appellant sought his to withdraw something were and he “knew that plea immediately entry, its the Bass almost after possibly I be happen to them that would to accepting trial court correct in the fair was inconsequences as a re- facing some controlling. In con- and standard as [sic] cluding trial its dis- sult of that.” court abused prosecu- any unless the reason 14-2.- for fair § See also Standards Criminal Justice for 1(a) (1980) ("After substantially prejudiced re- plea entry or tion has been of a sentence, (emphasis plea”) add- liance on the defendant’s the court nolo contendere and before ed). plea the should allow the defendant to withdraw

Appellant’s appellant’s fears Bass stemmed from refusal testify due to his fear acquaintance prison in North their Car- of Bass.

olina, appellant where was introduced Thus, the confirms that appellant prisoners other to the Moorish Science had talked to his counsel about his coercion America, Temple group which he defense proceeding Rule 11 en- longer According no ap- is associated. tering on November 1983.11 pellant, on several Bass had occasions told While the coercion defense was not ex- mеmber, might that “if you say, him pressly during entry raised betrayed member, another or turned plea, appellant’s cryptic responses en- were member, against another the wrath tirely consistent with it.12 upon great- that would come him be following Thus the record shows the collo- er than torture he had ever known.” quy: Appellant further testified to his under- THE you pleading guilty COURT: Are standing that Bass time had served kidnapping this count of unarmed be- names, contract murder and had the ad- you cause committed the crime? telephone dresses and numbers respect, APPELLANT: In that sir. yes family. lant himself and members of THE going COURT: There’s not He told the court these facts had any hedging here. him opportunity influenced not to take an In respect. APPELLANT: escape had to he from scene of thе DEFENSE COUNSEL: Yes. kidnapping.10 right. THE All COURT: I’ll hear Appellant’s former counsel also testified government’s proffer. hearing 32(e) at the on the Rule After an inconclusive proffer motion. She told ‍‌‌​‌​‌‌‌‌​‌​​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌‌​​​​​‌‌‌​​​​​‌‍the court that guilt, accompany- see note 18 and infra prior informed had her— ing text, exchange continued: during his fears of Bass —of THE I COURT: What need to know now commission of the crime: you you participate is did or did as a acting said crazy He that Bass like a was undertaking in knowing associate in the person, [appellant] was about the afraid kidnapping as I it to have described religious aspects, religious retalia- you McIntyre? of Mr. Lawrence acting very tion. Bass was bizarre and Yes, Honor, par- APPELLANT: Your violent, [appellant] was afraid that if however, ticipatеd knowingly, I would leave, he were to that Bass would come be noted unwillingly. like it to It was him, because he knew where he knowingly. family lived. He knew where his was. I voluntarily THE You did it but COURT: family know that Mr. Gooding’s was also reservations, you you’re that what afraid Bass. saying? Having fears, listened to Yes, APPELLANT: sir. then possible counsel discussed a coercion colleagues defense with entered, in her office. The After eventually rejected coercion defense coercion asserted the defense his written guilty plea, partly favor plea,13 because of Rule motion to withdraw 74-75, 47-50, id., McIntyre 1984); (April after- testified that he and were "convoy" session, 4, 13-17; one in Baltimore; of a cars transcript of two driven to noon Proceed- hostage Bass and the second were in ings on court's denial of With- trial Motion to other. the gave McIntyre The court was that told 18, Guilty, (May transcript of draw Plea at 4 opportunity escape. an McIn- 1984). declined, tyre perhaps out of concern for his captive, fellow back and was to Bass. handed Proceedings 12. trial court’s According testimony, appellant made no 30, (Nov. 1983). plea, transcript at 7-9 attempt escape at that time because he feared victims, family the and himself. Guilty, to Withdraw Plea at 13. Motion (Jan. 1984) ("Counsel Hearing deter- has 11. on Motion to Plea of Withdraw session, 21, 31-35, Guilty, morning transcript con- at mined the defendant’s conduct herein hearing the on the withdrawal motion14 in claim of innocence. The weakness of the proposed findings of fact and conclusions government proffer tends towards with- filed motion,15 law after the withdrawal drawal. and in this appeal court on from denial of why The Reason the Asserted was Defense the Appellant’s withdrawal motion.16 re- put not at the Time Original forward peated assertions innocence Pleading throughout proceedings weigh these heavi- Another factor in the fair calcu- ly in favor of the conclusion that withdraw- lation is why al the reason the guilty plea of the asserted de- would be fair and just.17 fense was not forward at the time of original pleading. regard In this The Government’s Inconclusive Proffer we note again language the in which Nothing government in the proffer at the lant’s couched —“Your time the negates was entered Honor, I participated knowingly, howеver, appellant’s participation claim that his I would like it unwillingly” to be noted —is by coerced Many fear of Bass.18 by no means inconsistent coercion acts example described —for the abduction theory urged at the withdrawal motion. handcuffing gunpoint at place —took supra See p. at 308. But it was not until appellant’s arrival on the scene and motion ex- most of the including the as- remainder — plicitly addressed his coercion sault defense to gun with the apparently done —were attention of the trial Bass and the court. The reason participant third who es- caped apprehension.19 why this proved formally defense was not Even in its asserted therefore, entirety, government proffer at or before the proсeeding Rule is necessarily appellant’s defeat a factor determining to be considered in virtually only Honor, following sisted codefendant by, by Your I have been struck what Bass' instructions ... [and that] defendant I, Mr. felt would befall him. All that believed that his failure to do so would have government say regard can in that resulted in bodily injury death or serious very that it is the kind of fear that Mr. Good- Bass, himself at the hands of and that the de- ing promotes has that that same kind of fear fendant did not believe that he had a reasonable people. participated in other He in this situa- opportunity escape following without Bass’ somebody tion because he was afraid that else orders”). else, somebody would hurt him. Yet he hurt promoting Hearing myth this 14. entire of this sect that on Motiоn to Withdraw Plea of Guilty, session, morning supra betrays going great one who it is note tran- to have some 6-7, 19-20, script 23-25, 32-34, 56, catastrophe 61-62. befall him. Proposed Findings 15. of Fact and Conclusions government 18. proffer The entire was as fol- of Law on Defendant’s Motion to Withdraw lows: previously Guilty, Entered Plea of record at Honor, Your evidence at 16, 1984). (May April April trial would show that on 5th and 16. Brief for (April at 8-10 case, complainant 6th in this Mr. McIntyre, against Lawrence was held his will bound, dissenting 17. We are colleague, as is our against and abducted his will the defend- by authority speculating which forbids us from began kidnapping ant and others. The at 12th appellant's on the merits of asserted coercion Avenue, Northwest, and New York here in the Gearhart, supra, defense. 273, Columbia, complainant District of where the passing, 272 F.2d at 502. We note in how- point gun. was abducted at He was hand- ever, court, that the trial which was in a better there, cuffed he was—there was someone who vantage are, point accepted than we at least guard period stood over him for a of time. some substance in cence, claim of inno- against up He was then moved his will government. During as did the sentenc- Baltimore, Maryland, Springfield, Virgi- ing, immediately after its denial of the with- motion, against during nia. All his will drawal the course of “just the trial court remarked: Bass, you gun. as were afraid community of Mr. which he was also assaulted with a and, you” point, is afraid of ”[j]ust at another Bass, During entry you plea, appellant's counsel feared Mr. I’m sure the [victims] inadequacy feared him as much if alerted the trial court to the not more." Counsel for government previously proffer. declared: grant genuine. to supra or not the withdrawal his codefendant were

whether See note 17. motion. addition, In appellant's former counsel appellant’s court described ex- The trial that, prior testified to reprisals against fear planation as his plea, appellant afraid of court “was family by himself and Bass and other proceeding say where he would have to Temple of the Moorish Science members anything way one or the other about if he went to trial. In the America words Appellant’s testify refusal to Bass.” due court when it denied the of the trial Bass, coupled to fear of with the fact that motion, defendant withdrawal “[t]he very coercion “is a difficult defense to although longer that he is no now asserts raise,” prompted discourage his counsel sect, exposed of that member he would be upon him from reliance that defense. She and, spe- to retribution other members told the trial court that cifically, the codefendant should the de- testify. did not want to And betray the codefendant.” In this fendant only way that this defense would even given respect failing pre- the reason prayer have a of a chance is that Mr. defense, viously assert the coercion al- Gooding testify were to all about Mr. distinct, though overlapped conceptually him why Bass and he was afraid of and the asserted itself. coercion defense extremely all of Mr. Bass’ erratic actions

The trial court’s him. why own words and actions and he was afraid of And Mr. Gooding Mr. Bass to hear conclusion, doesn’t want denying belied its in the with- about this. motion, drawal appellant’s that fears of Bass if he “speculative.” went to trial were testimony The uncontradicted separate three On occasions the trial court attorney casts further doubt lant’s former ordered the entire question the case sealed whether intelligent represented voluntary protect order to “a appellant from Bass. courses of choice between the alternative hearing At the end of the on the withdraw- Byrd, su- open [appellant].”20 action motion, denial, al but before its the trial pra, 377 A.2d at 404. court ordered be afforded protective custody light conclusively unnecessary of a recent as- It is for us reprisals appellant’s fear of upon sault him evaluate custody by while in un- family as the rea- against himself and his known assailants. The trial de- court assert the coercion why son he failed to scribed segregate appellant efforts to from original pleading. defense at the time of members of the “worthy Moorish sect as motions are to be Presentence withdrawal requests” and it “con- observed that was dispos- at the freely The evidence allowed. cerned Gooding’s about The safety.” Mr. to rank court was sufficient al the trial trial court further demonstrated its belief positive in the as a factor appellant’s legitimate by fears were of Bass аs a appellant’s fear calculation ordering separation from Bass while invoking coercion de- for not reason custody, “so time appropriate that at the original pleading. time of fense at the that, Mr. can be somewhere Entry Delay Length between where he jeopardy will be free from the Desire to Withdraw and the Guilty Plea that we are all Immedi- concerned about.” it ately after denial of the motion, just prior sentencing, a few Next, delay only turn to the we it informed the trial court that entry days between was prosecuting expression of prison Bass for a breach. November Appel- The trial it. appellant’s court’s and the re- to withdraw desire particular that, marks during due sentencing similarly showed lant testified housеd, he was jail their in which recognition section of the fears of assistance of ineffective testimony This claim The trial alternative was not discredited. upon dispose appellant's court relied counsel. it to

311 fear a reason library appellant’s no access to the until the of Bass as he had law rated Then, Fourth, entering upon guilty the day plea. plea. after the for of the involved, discovering appellant attempted the to consequences speed full with which immediately placed attorney he to the and counsel change plea a call obtain new represented him time and in- guilty suggests who that a pleading at breakdown seriously formed her that he was consider- point, at even in communicatiоn some later, ing its withdrawal. About week attorney nor at fault. client was neither the appellant notified trial court reduce to some extent These considerations effect, whereupon counsel was same new competent the tendency the existence represent mo- appointed to him. A formal weigh against finding that to counsel together the guilty plea, to withdraw tion fair of the would be plea withdrawal authorities, points and filed on with was just. and 30, testimony January presented was the qualified exception the With the denied on April and motion was counsel, the competent all of benefit May suggestion There 1984. can be no or weigh more factors we have identified delay ap- undue either doubt on that cast in favor of the conclusion that with less failing raise pellant’s asserted reason for to been drawal of the should have prejudiced defense or the coercion earlier already Although, allowed. as we have legitimate the interests. noted, grant the decision whether or not accordingly This factor lends considerable motion is vested the sound discretion the weight in favor of withdrawal court, we that this of the trial conclude plea the fair just under and standard. Appellant’s has been discretion abused. Prejudice the Government brought prior motion to sentence and was government The made no claim of has therefore, was, show required he not legitimate nor, prejudice to its interests Instead, appellant had injustice. manifest so, given speed it presumably, could do the much lower He was to cross a threshold. appellant with which to withdraw moved reason, that, only obliged to show guilty plea. The prejudice lack of just plea that his be with it was favors withdrawal. this We think that the facts of drawn. Competent Assistance Counsel showing and amply support case such change denying that motion to finding Finally, we note the trial court’s beyond court set plea the trial a standard competent that had the benefit required to reach. that was counsel at the time the was entered. sentencing, Prior leave to withdraw Although weight to its finding such a adds pleas under the stan fair conclusion that withdrawal v. freely allowed. Durante dard should be impact fair just, would not be (D.C. 309 323 United A.2d is to some extent reduced the circum- Morgan, States v. 1973); 185 U.S. United First, this case. the inherent stances of (1977); App.D.C. F.2d appellant’s ambiguity responses at Poole, supra, implies the time the was entered guiding princi Applying this F.2d at 400. na- possibility of some confusion as to the us, con we must ple to the defense, irrespective of ture of the coercion trial was that “the court’s action clude ability with which he was advised range alter permissible Second, testimony within counsel. [not] States, Johnson natives." throughout the motion to withdraw (D.C.1979). totality of 354, 367 In the possi- A.2d guilty plea was consistent this case, fair Third, of this it was his counsel the circumstances bility.21 testimony the Rule corrobo- at the time was entered dependent person my testified: mind ... I “In being guilty saying myself interpreting it. I’m that I wasn’t never ... considered not And, saying pleaded guilty merely during to." present that crime that these I’m events. point: alleged any participation another to have that I'm willingly concerning or vol- my this not say like to as far as What I would is that saying occur. opinion untary. that it didn’t guilt my I'm or innocence would—in granted.22 motion be We reverse so that

appellant can opportunity have the jury.

his asserted coercion defense before Reversed and remanded for farther

proceedings in opin- accordance with this

ion.

FERREN, Judge, dissenting: Associate

I respectfully incorporate dissent. expressed

views originally when this case division, before

States, 1320, 1335 (D.C.1986) (Fer- 513 A.2d

ren, J., dissenting). Particularly respon

sive to the majority rehearing division

are Parts III. and IV. the dissent. ‍‌‌​‌​‌‌‌‌​‌​​​​​‌‌​‌​​‌‌‌​‌‌‌​​‌‌‌​​​​​‌‌‌​​​​​‌‍SMITH, Jr., Appellant,

Dennis G. STATES, Appellee.

UNITED

No. 85-729.

District Court of Appeals. Columbia

Argued 1987. June Aug.

Decided 1987. issue, Significantly, dissenting colleague our con- claimed On this the dis- innocence. curs our inquiry evaluation all but one of the sent's into merits of as- "seriously factors relevant to the conclusion that with- serted coercion defense misconceives just. drawal of would be fair and the ... court’s in these mo- role" Specifically, appear they Morgan, supra, U.S.App.D.C. the order which tions. at Gearhart, opinion, (citing supra, Part III our dissent acknowl- 567 F.2d at (1) edges proffer that: at F.2d Even if it defense," forbidden, analysis “not inconsistent with a coercion were dissent’s 16; (2) provides A.2d at 1342-43 n. the record wrongly coercion focuses on defense asserted support appellant’s explanation made, as- for not ignoring when the threats the real were serting origi- coercion defense the time of question for the factfinder —whether (“The pleading accept nal trial court did well-grounded apprehension "a of immedi- 1339; Bass”), (3) appellant had feared see id. at bodily injury.” death or serious Stewart v. ate "appellant steps took immediate withdraw (D.C.1977). 370 A.2d 16; (4) plеa," id. n. "the see at 1342-43 unsupported position the dissent’s Also specifically has not shown how it the absence of a claim of innocence—a claim prejudiced would be from withdrawal of repeatedly appears in the this guilty plea," dispute lant’s see id. There is no event automati- case—would somehow factor, competent assist- between us one By cally override all the other relevant factors. counsel, ruling. supports ance of the trial court’s requiring court of the accused convince the unstated, getting jury, her necessary, his or innocence The dissent’s but conclu- presen- replace the time-honored sion dissent that withdrawal of the would not analysis fair strictest of solely rests on its tence standard with the i.e., factor, remaining injustice postsentence one whether manifest standards.

Case Details

Case Name: Gooding v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Aug 10, 1987

Citation: 529 A.2d 301

Docket Number: 84-753

Court Abbreviation: D.C.