UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK PIKE, Defendant-Appellant.
No. 99-2532
United States Court of Appeals For the Seventh Circuit
Argued December 8, 1999--Decided May 1, 2000
Before HARLINGTON WOOD, JR., COFFEY and FLAUM, Circuit Judges.
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 98 CR 48--Robert L. Miller, Jr., Judge.
I. BACKGROUND
On five occasions in the month of July, 1998, Pike used his Chevrolet Camaro to deliver and sell marijuana and LSD to an undercover police officer of the Multi-County Drug Task Force in
As stated before, Pike initially pled guilty, but before sentencing, on January 5, 1999, Pike’s original counsel, Timothy P. McLaughlin, filed a motion to withdraw because Pike informed him that he wished to retain other counsel. The district court granted the motion. On January 8, 1999, Pike’s new counsel, John Theis, filed a Motion to Vacate Plea of Guilty, arguing that Pike could not be guilty of the
The district court held a two-day hearing on the Rule 32 motion. At the hearing, Pike claimed that he purchased the shotgun for hunting purposes only and that the gun was normally kept at his grandmother’s house and not in his car. Pike, in an obvious fabrication, further testified that a friend brought the gun to him and placed it in the trunk of the Camaro, where it was found by police officers, in between the time of the first and second drug transactions on July 22nd, the date of his arrest. Pike explained that he only told the officers on the scene that the shotgun was always kept in his car because he did not want his grandmother to lose her home; a concern that has no basis in the law. Finally, Pike claimed that he would not have pled guilty if McLaughlin had adequately explained the “in relation to” element of
The government countered Pike’s arguments at the Rule 32 hearing by pointing out that at no other time during the investigation of this case had Pike claimed to have used the shotgun for hunting purposes. The government also pointed out that Pike purchased the shotgun and ammunition during the time frame he was engaged in the sale and distribution of narcotics, and had informed police officers on the scene at the time of his arrest that he kept the weapon in his car at all times during the drug transactions with the undercover police officer. Finally, the
At the hearing, attorney McLaughlin did admit that he never discussed the “in relation to” element with Pike “in those terms . . . not with the words ’in relation to.’” But, contrary to Pike’s assertion that his original attorney failed to advise him of the meaning of the phrase “in relation to“, McLaughlin stated that he did advise Pike that there was a relationship between Pike’s firearm and his drug trafficking because Pike carried the shotgun in his car during a drug transaction: “because the weapon--the firearm was found in the car at the time of his arrest, that he was not going to be able to beat this case.” Moreover, Pike admitted that McLaughlin discussed the “in relation to” element, although not in those exact terms, with him “two or three times.”
In denying Pike’s amended motion to withdraw his guilty plea, the judge stated that:
Mr. Pike was his only witness, and he was not a credible witness in any respect. He contradicted countless of his own prior statements--statements reportedly (and admittedly) made to law enforcement agents, statements made in writing to his lawyer, statements this court finds to have been made verbally to his lawyer, and statements (oral and written) made to the court during the guilty plea process. His smirking while testifying further detracted from his credibility. Whatever support Mr. Pike is to find for his motion [to withdraw his guilty plea] then, he must find outside his own testimony.”
The judge went on to conclude that:
[t]he issue before the court, of course, is not whether Mr. Pike might have been convicted at trial, but whether fair and just reason exists to withdraw his plea. Mr. McLaughlin advised that Mr. Pike--having been arrested minutes later with a gun in the car in which the drugs were distributed--probably would not be able to beat the gun charge. Why should reliance on sound legal advice warrant the plea’s withdrawal? Mr. Pike points to Mr. McLaughlin’s concession that he never explained the “in relation to” element to Mr. Pike. . . .
* * *
[But] Mr. Pike plainly understood that “in
relation to” was an element, and recognized that it might present an impediment to conviction: notwithstanding having carried the shotgun during the transaction, he told Mr. McLaughlin that he did not believe that he was guilty--a belief that could find logical basis only in this allegedly inadequate explained element. Perhaps Mr. McLaughlin might have explained the law more fully to Mr. Pike, rather than simply stating his ultimate opinion, but doing so would have amounted to explaining the absence of a defense not the availability of a defense.
(Emphasis added). Based on these findings, the trial judge concluded that Pike failed to convince the court that a fair and just reason existed for withdrawing his guilty plea. Pike appeals.
II. ISSUES
On appeal, Pike argues that the district court erred in denying his motion to vacate his guilty plea because he presented two “fair and just” reasons: 1) he had a valid defense to the
III. ANALYSIS
A. Standard of Review
It is axiomatic that defendants do not have an absolute right to withdraw their guilty pleas. See United States v. Schilling, 142 F.3d 388, 398 (7th Cir. 1998). Of course prior to sentencing, a judge may permit an individual to withdraw his plea, upon the filing of the proper motion, if the defendant presents a “fair and just” reason for doing so to the court, see
Initially, Pike argues that the district court committed error in not allowing him to withdraw his guilty plea and go to trial because he had a “viable, triable, and valid defense” to the
Contrary to Pike’s assertions, sufficient evidence exists to satisfy the “in relation to” element of
[t]he “during and in relation” element of
sec. 924(c)(1) has also certainly been met for “if the drugs and gun are together in the same place it is nearly an inescapable conclusion that they satisfy the in relation to prong ofsec. 924(c)(1) .” Molina, 102 F.3d at 932 (emphasis in original). The “during and in relation to” determination is based on the location of the firearm with respect to the drugs. Id. “The relation between the firearm and the drugs--which is, after all, the core of the offense--is best established by their relation to each other, and not by the distance between owner and gun at the moment of arrest.” Id. In order for a firearm to satisfy the “in relation to” prong of the offense it must at least “’facilitat[e], or ha[ve] the potential of facilitating,’ the drug trafficking offense.” Smith, 508 U.S. at 238, 113 S. Ct. at 2059 (quoting United States v. Stewart, 779 F.2d 538, 540 (9th Cir. 1985)). “This explanation of the ’in relation to’ element is valid precedent, unaffected by Bailey.” Cotton, 101 F.3d at 56. The facts of this case reveal that the gun was located in a plastic bag positioned directly on top of the drugs and therefore Wilson would have had to, at the very least, remove the gun and hold it in order for him to gain access to the drugs. Thus, in this case, just as in Molina, the firearm was “surely carried in relation to the crime when it was transported in a car in the same compartment that contain[ed] drugs possessed with the intent to distribute.” Molina, 102 F.3d at 932.
Initially, let us point out that in both his plea agreement and again during his plea hearing Pike stated that he was guilty of the
In addition to Pike’s own representations, the evidence reflects that Pike carried the shotgun with him during each of the five drug transactions with the undercover officer;5 that Pike’s shotgun was “accessible though not gracefully or rapidly so” from within Pike’s car;6 and that Pike bought the shotgun during the time he was engaging in his drug trafficking activity. This evidence establishes that the presence of the shotgun in Pike’s Chevy Camaro was neither the result of accident nor mere coincidence. See Smith, 508 U.S. at 238. Accordingly, we conclude that the district court’s determination that there was a relationship between Pike’s shotgun and his drug offense was not clearly erroneous, and therefore the trial judge did not abuse his discretion in denying Pike’s motion to withdraw his guilty plea.
C. Ineffective Assistance of Counsel
Pike next argues that the judge should have
In an attempt to demonstrate prejudice, Pike argues that because his original attorney, McLaughlin, failed to adequately explain the “in relation to” element of
Let us initially make clear that the record in this case is entitled to a presumption of verity. See United States v. Standiford, 148 F.3d 864, 868 (7th Cir. 1998). “When, as here, a defendant wishes to withdraw his plea after he states at a Rule 11 hearing that it was given freely and knowingly, he faces an uphill battle in persuading the judge that his purported reason is fair and just.” Salgado-Ocampo, 159 F.3d at 325 (internal quotations and citations omitted).
Furthermore, we are of the opinion that in relation to is an understandable phrase common in ordinary speech; evidenced by the fact that it is the precise language used in the jury instruction for
Additionally, count six of the indictment charged that Pike “knowingly and intentionally carried a firearm, specifically, a .410 shotgun, during and in relation to drug trafficking crimes . . . .” Moreover, the plea agreement Pike signed recited that he “told his lawyers the facts and surrounding circumstances as known to me concerning the matters mentioned in the Indictment and the complaint and believe and feel that my lawyer is fully informed as to all such matters. My lawyer has since informed me and has
In particular, I [Pike] acknowledge that on July 10, 1998, I knowingly possessed with intent to distribute and then distributed to a person who turned out to be an undercover police officer approximately 1 oz. of marijuana, all in Plymouth, Indiana. I also acknowledge that on July 22, 1998 I knowingly possessed with intent to distribute and distributed to a person who turned out to be an undercover police officer 17 hits of LSD acid in Plymouth, Indiana. Further, I acknowledge that during and in relation to the drug trafficking crime on July 22, 1998 described above, I knowingly carried in my car a .410 shotgun which belonged to me[.]
(Emphasis added). Also in the plea agreement, Pike acknowledged, when referring to his original counsel, McLaughlin, that “I believe and feel that my lawyer has done all that anyone could do to counsel and assist me, and that I now understand the proceedings in this case against me.” (Emphasis added).
Not only did Pike acknowledge his understanding of the charges against him and his guilt by signing the plea agreement, but at the plea hearing, the following dialogue took place with the presiding judge:
THE DEFENDANT: I acknowledge that during and in relation to the drug trafficking crime on July 22, 1998 described above, I knowingly carried in my car a .410 shotgun which belonged to me. . . .
THE COURT: Everything in there is right?
THE DEFENDANT: Yes.
Also during the plea hearing, the prosecutor listed the essential elements of the
With respect to count 6, your Honor, carrying a weapon during a drug trafficking crime, the government would have to prove that the defendant knowingly carried a firearm during and in relation to a drug trafficking crime, in this case, the distribution and possession with intent to distribute LSD.
The district court then asked Pike if he still believed that he was guilty, and Pike responded that he was.
After reviewing the record before us, we agree with the trial judge’s determination that, based on the facts set forth above, Pike “knowingly and voluntarily” chose to plead guilty to the
The district court’s decision is
AFFIRMED.