UNITED STATES OF AMERICA v. DANTE GRAF
No. 15-2260
United States Court of Appeals, Seventh Circuit
June 27, 2016
Before EASTERBROOK and HAMILTON, Circuit Judges, and PALLMEYER, District Judge.
In the
United States Court of Appeals
For the Seventh Circuit
No. 15-2260
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANTE GRAF,
Defendant-Appellant.
Eastern District of Wisconsin.
No. 13-CR-54 — Rudolph T. Randa, Judge.
ARGUED DECEMBER 9, 2015 — DECIDED JUNE 27, 2016
Before EASTERBROOK and HAMILTON, Circuit Judges, and
PALLMEYER, District Judge.*
HAMILTON, Circuit Judge. Secret Service agents observed
Dante Graf twice sell counterfeit U.S. currency to an informant. Under a plea agreement, Graf pled guilty to one charge
of dealing in counterfeit currency in violation of
The district court accepted Graf’s plea agreement following a thorough colloquy under
Procedure 11. Graf later failed to appear for a bond revocation
hearing and managed to avoid law enforcement for several
months. After his eventual discovery and re-arrest, Graf’s
newly-assigned lawyer told him about the possibility of filing
a motion to compel the government to disclose the identity of
the confidential informant. Graf moved to withdraw his
guilty plea so he could file such a motion. The district court
denied the motion and then sentenced Graf to 63 months in
prison.
The only issue on appeal is whether the district court
abused its discretion in finding that Graf had not shown a
“fair and just reason” for withdrawing his plea within the
meaning of
United States v. Redmond, 667 F.3d 863, 870 (7th Cir. 2012)
(abuse of discretion standard). It did not, so we affirm.
Graf was indicted in April 2013 and arraigned on June 29,
2013. Three months later, he and his lawyer and the prosecution signed and filed a written plea agreement in which Graf
agreed to plead guilty to one charge under
ernment agreed to dismiss a second charge. The agreement
did not impose any limits on the court’s sentence of Graf.
At a change of plea hearing on September 26, 2013, Graf
was placed under oath and the district court undertook the
required colloquy with him. The colloquy established that
Graf was competent to decide how to plead, was pleading voluntarily, and was aware of the rights he would waive by
pleading guilty. Graf also told the judge that he was happy
with the way his lawyer had handled the case. The judge also
reviewed the maximum potential penalties the court could
impose, including imprisonment, fines, and restitution. After
all of that, Graf admitted he was guilty of the counterfeiting
charge. Assured that Graf was entering his guilty plea voluntarily and knowingly and that there was a sound factual basis
for the plea, the court accepted his plea, adjudged him guilty,
and scheduled sentencing for January 7, 2014.
Before sentencing, Graf absconded and failed to appear for
court hearings. Several months later, he was re-arrested. Following some unrelated proceedings in state courts, Graf’s federal sentencing was set for January 29, 2015. But on January
26, 2015, and represented by new counsel, Graf told the district court he wanted to withdraw the guilty plea the court
had accepted sixteen months earlier. He then filed a written
motion to withdraw his guilty plea, asserting that his first
lawyer had never told him about the possibility of filing a so-
called “Roviaro motion” to compel the government to disclose
the identity of the confidential source, with the prospect of
dismissing the case if the government were to refuse to make
the disclosure. See Roviaro v. United States, 353 U.S. 53, 60–61
(1957). Graf asserted that he would have pursued a Roviaro
motion before deciding whether to plead guilty.
The district court denied Graf’s motion, concluding that he
had “not offered any reasons, much less any just reasons, why
the disclosure of the confidential informant would have substantially altered the course of his case or the factual scenario
to which Graf admitted his guilt.” The court sentenced Graf
to 63 months in prison, which was the high end of the Sen-
tencing Guideline range for an offender with Graf’s criminal
history who manufactured counterfeit currency and obstructed justice by absconding and failing to appear at a subsequent hearing.
that a defendant “may withdraw a plea of guilty … after the
court accepts the plea, but before it imposes sentence if: … the
defendant can show a fair and just reason for requesting the
withdrawal.” This court has recognized three general
grounds that merit withdrawal of a guilty plea: where the defendant shows actual innocence or legal innocence, and
where the guilty plea was not knowing and voluntary. United States v. Mays, 593 F.3d 603, 607 (7th Cir. 2010). None of those
grounds applies here, however.
Whether to allow withdrawal of an accepted guilty plea is
left to the sound discretion of the district court. United States
v. Redmond, 667 F.3d 863, 870 (7th Cir. 2012); United States v.
Peleti, 576 F.3d 377, 382 (7th Cir. 2009). Reversals are
though not unheard of. See, e.g., United States v. Fard, 775 F.3d
939 (7th Cir. 2015) (transcript showed plea was not knowing
and voluntary); United States v. Gomez-Orozco, 188 F.3d 422
(7th Cir. 2003) (after pleading guilty, defendant learned he
might be a U.S. citizen, which would be complete defense to
charge); United States v. Groll, 992 F.2d 755 (7th Cir. 1993) (va-
cating unexplained denial of motion to withdraw where un-
contested facts in presentence report supported entrapment
defense and defendant had not known of that possible de-
fense).
A plea of guilty is a formal and solemn step, where the defendant admits his guilt under oath after assuring the court,
also under oath, that he is ready, willing, and able to make
that decision after consulting sufficiently with his lawyer and
being informed about all matters that he needs to know about
to make the decision. See
motion to withdraw is unlikely to have merit if it seeks to dis-
pute his sworn assurances to the court. United States v. Collins,
796 F.3d 829, 834 (7th Cir. 2015) (district court may presume
truth of defendant’s prior sworn statements in plea colloquy);
see also Mays, 593 F.3d at 607 (answers to proper Rule 11 col-
loquy are presumed true, imposing heavy burden on defend-
ant and leaving the “fair and just” escape hatch “narrow”). Of
particular relevance here, we have often held that a defendant
can offer a knowing and voluntary plea without having re-
ceived full discovery from the government. See United States
v. Underwood, 174 F.3d 850, 853–54 (7th Cir. 1999) (collecting
cases).
In this case, Graf’s motion to withdraw did not call into
question his factual or legal guilt. Rather, long after he had
offered his plea and had it accepted, and knowing he faced a
more severe sentence than he had expected as a result of his
intervening obstruction of justice, his motion indicated only
that he wanted to try a new tactical defense gambit in an oth-
erwise defenseless case: a Roviaro motion seeking the identity
of the informant to whom he sold the counterfeit currency. We
find no abuse of discretion in the district court’s denial of the
motion to withdraw the plea. Graf’s motion reflected no more
than a desire to pursue a last, desperate defense tactic that
would have had nothing to do with guilt or innocence.
As a general rule, ineffective assistance of counsel may
prevent a defendant’s guilty plea from being knowing and
voluntary. United States v. Lundy, 484 F.3d 480, 484 (7th Cir.
2007); see generally Lafler v. Cooper, 566 U.S. 156, 132 S. Ct. 1376
(2012) (right to effective assistance of counsel in plea negotia-
tions); Missouri v. Frye, 566 U.S. 134, 132 S. Ct. 1399 (2012)
(same). To demonstrate ineffective assistance of counsel, a de-
fendant must show both that counsel’s performance was ob-
jectively unreasonable and that, but for counsel’s errors, there
is a reasonable probability that the result would have been
different. Strickland v. Washington, 466 U.S. 668, 694 (1984); see
also Hill v. Lockhart, 474 U.S. 52, 56–57 (1985) (Strickland stand-
ard applies to complaint about counsel’s assistance regarding
guilty plea). A motion to withdraw a guilty plea as having
been based on inadequate legal advice will succeed only if the
defendant shows “that the advice on which his plea was pred-
icated not only was not within the range of competence de-
manded of attorneys in criminal cases, but also that there is a
reasonable probability that but for [counsel’s] unprofessional
errors, the result would have been different.” United States v.
Pike, 211 F.3d 385, 390 (7th Cir. 2000). “Courts begin with the
Graf has not even attempted to show these element under
Strickland. He has not attempted to show that his original law-
yer acted outside the realm of competence in opting not to
discuss or pursue a Roviaro motion. Nor has he shown any
reasonable prospect that the outcome of the case would have
been more favorable to him if he had pursued such a motion.
Disclosure of an informant’s identity is not a matter courts
take lightly, but rather requires a balancing of “the public in-
terest … against the individual’s right to prepare his defense.”
United States v. Jefferson, 252 F.3d 937, 940–41 (7th Cir. 2001).
To compel disclosure, a defendant must establish that the
source’s identity is “relevant and helpful” to his defense or
“essential to a fair determination of a cause.” Roviaro, 353 U.S.
at 60–61. Even if a Roviaro motion might have been granted,
there is no good reason to expect that it would have benefited
Graf. His assertions regarding possible entrapment defenses
or impeachment for bias are entirely speculative. And even if
a Roviaro motion had been granted, there is no reason to be-
lieve the government would have refused to identify the in-
formant or made any concessions in the plea agreement. Also,
the government would have been within its rights by re-
sponding to a Roviaro motion by taking the plea offer off the
table.
Rather than attempt to show ineffective assistance of
counsel, Graf has argued to the district court and on appeal
that the focus should be on his subjective state of mind. He
contends this circuit should apply a standard for withdraw-
ing a guilty plea that was applied by the Ninth Circuit in
United States v. McTiernan, 546 F.3d 1160 (9th Cir. 2008). That
standard would be more generous to defendants and less def-
erential to district judges. The defendant in McTiernan moved
to withdraw his guilty plea on the theory that his original law-
yer had provided ineffective assistance by failing to advise
him that he could move to suppress key government evi-
dence. 546 F.3d at 1165. The district court denied the motion
to withdraw, but the Ninth Circuit reversed.
The Ninth Circuit did not apply the Strickland standard or
require the defendant to show that the motion to suppress
had at least a reasonable prospect of success, which would
seem to be essential under the Strickland prejudice require-
ment. The Ninth Circuit held instead that the defendant
needed to show only that additional advice about another de-
fense strategy (filing a motion to suppress) “could have at
least plausibly motivated a reasonable person in [defendant’s]
position not to have pled guilty had he known” before plead-
ing about the grounds offered for suppression. Id. at 1168.1
In an attempt to satisfy the McTiernan approach, Graf as-
serts that if he had known of Roviaro, he would have sought
the identity of the informant before deciding whether to plead
guilty. We decline to adopt that approach. No other circuit has
adopted the McTiernan standard, which conflicts with our
long-standing approach to the “fair and just” standard under
drawal for sound reasons, but to minimize the use of such mo-
tions to withdraw based on gamesmanship and strategic
hindsight. “A plea can
complete information.” United States v. Davey, 550 F.3d 653,
656 (7th Cir. 2008). We have often held that a defendant’s lack
of knowledge about the evidence that would be offered
against him at trial does not constitute a fair and just reason
for him to withdraw his plea as long as there is a sound factual
basis for the plea. United States v. Bryan, 557 F.3d 489, 496 (7th
Cir. 2009) (collecting cases). Similarly, a defendant is not enti-
tled to withdraw his guilty plea simply because he later dis-
covers a weakness in the government’s ability to prove its case
at trial. This reasoning applies with even more force to Graf’s
desire to try to create such a weakness even after the court had
accepted his plea of guilty.
Such defense strategies may be perfectly legitimate in the
first instance, but they do not involve questions of legal or fac-
tual innocence. They do not undermine the voluntary and
knowing character of the plea when it was offered and ac-
cepted. To the contrary, the filing of such a motion after ac-
ceptance of a plea smacks of gamesmanship. Granting a mo-
tion to withdraw in such instances “would degrade the other-
wise serious act of pleading guilty into something akin to a
move in a game of chess.” United States v. Hyde, 520 U.S. 670,
677 (1997) (reversing appellate court’s reversal of denial of
motion to withdraw a guilty plea).
Requiring a district court to allow such a tactic would “di-
minish[] the solemnity of the taking of the plea” because
pleas to ensure that entry of a plea is not a meaningless act.
United States v. Ellison, 798 F.2d 1102, 1106 (7th Cir. 1986); see
also Hyde, 520 U.S. at 677 (allowing automatic withdrawal un-
less government could show prejudice would reduce guilty
plea to “a mere gesture, a temporary and meaningless formal-
ity reversible at the defendant’s whim”), quoting
and just reason” standard for withdrawing pleas).
The district court did not abuse its discretion by denying
the defendant’s motion to withdraw his guilty plea. The judg-
ment of the district court is AFFIRMED.