A change of heart or a change of law? Withdrawing a guilty plea under Federal Rule of Criminal Procedure 32(e).

• Author: Weaver, Kirke D.

Our criminal justice system is awash in plea bargaining. Because of the overwhelming number of criminal cases processed through plea bargaining, courts are unquestionably reluctant to permit defendants to withdraw from their plea agreements once approved by the court. For if such agreements are readily open to second-guessing by defendants, the purpose of plea bargaining--the efficient adjudication of criminal cases--would be severely undermined. However, each significant appellate decision changing some aspect of criminal law raises a serious and potentially problematic question: Should that change permit each affected defendant to re-evaluate his or her decision to enter into the plea agreement and ultimately withdraw his or her guilty plea based upon the new ruling? In all but the most egregious cases, courts have emphatically answered no--even in cases where the defendant has yet to be sentenced under the agreement. Given the sheer number of potentially affected plea bargains, this result should come as no surprise. But are courts getting the answer fight? Are they paying homage to the goal of finality and efficiency at the expense of defendants' rights? This Article seeks to answer these questions using the very tools that courts often use to evaluate and to interpret plea agreements--the principles of contract law. While these doctrines do not permit defendants to re-open plea agreements at will, they do offer additional relief to some defendants by providing a more flexible method for analyzing such motions as well as a rational justification for granting the relief that the defendants seek.

1. WITHDRAWING A GUILTY PLEA (1)

   Under Federal Rule of Criminal Procedure 32(e), a defendant does not have an absolute right to withdraw his or her guilty plea prior to sentencing. (2) Instead, a court will permit a defendant to withdraw a guilty plea prior to sentencing only "if the defendant shows any fair and just reason." (3) To determine whether a defendant has met this standard, courts have developed a four-part balancing test: "(1) whether defendant established a fair and just reason to withdraw his plea; (2) whether defendant asserts his legal innocence of the charge; (3) the length of time between the guilty plea and the motion to withdraw; and (4) if the defendant established a fair and just reason for withdrawal, whether the government would be prejudiced." (4) Each of these factors poses a potential pitfall for the defendant seeking to withdraw a guilty plea.

   1. A FAIR AND JUST REASON

      In a fit of redundancy, courts have first required a defendant to demonstrate a "fair and just reason" to withdraw a guilty plea pursuant to the "fair and just reason" standard found in Rule 32(e). (5) Such a showing "is a necessary, but not sufficient, predicate to plea withdrawal. (6) Even though it is a required factor--and the only factor mentioned in Rule 32(e)---courts simply fail to discuss what a fair and just reason actually is. (7) Instead, courts merely examine whether the defendant has satisfied the other three factors of the balancing test. (8) In essence, this factor merely mimics the overall standard without providing any additional means for a court to evaluate whether the defendant has actually met the overall standard. Thus, the true analysis for the Rule 32 standard currently focuses only on innocence, delay, and prejudice.

   2. THE DECLARATION OF INNOCENCE

      Of these three remaining factors, the most critical is the defendant's declaration of innocence. In fact, failing to assert the defendant's innocence will result in the automatic denial of the motion. (9) Yet the defendant cannot merely claim innocence, for as one court has stated, "there are few if any criminal cases where the defendant cannot devise some theory or story which, if believed by a jury, would result in his acquittal." (10) Instead, the defendant must assert some factual (11) or legal (12) basis for the assertion of innocence. (13) Factual innocence, on the one hand, means that based upon all of the facts before the court, the defendant is not guilty of a crime that has been charged: for instance, the defendant has an airtight alibi, or the actual acts performed by the defendant do not amount to a crime. Under both situations, the defendant is "factually" innocent of the crime charged. Legal innocence, on the other hand, asks the court to disregard certain incriminating evidence in order to establish the defendant's innocence: for example, the only evidence linking the defendant to the crime was illegally seized or obtained in violation of the defendant's right against self-incrimination. Without that evidence, the prosecution cannot go forward, and the defendant will be found not guilty.

      As a further illustration, in United States v. Groll, (14) the defendant moved to withdraw her guilty plea at her sentencing hearing based upon her legal innocence. After retaining new counsel, Groll learned that because the witness who had goaded her into selling drugs was actually a confidential informant, she had a viable entrapment defense to the charges. (15) Even though Groll had admitted the underlying facts that amounted to a crime during the guilty plea hearing, she asked the court to disregard that evidence because it was improperly obtained through her entrapment. (16) The court recognized that although "claims of innocence alone do not mandate permission to withdraw a plea ... being legally innocent of the crime is a fair and just reason to withdraw a guilty plea" as long as such assertions are "substantiated by evidence." (17) Because her entrapment claim was colorable and did "not contradict her admissions at the change of plea hearing," the court permitted Groll to withdraw her guilty plea. (18) As this case demonstrates, once innocence is established, a court is hard-pressed to deny a defendant's motion to withdraw a guilty plea.

   3. DELAY IN BRINGING THE MOTION TO WITHDRAW

      Beyond requiring an assertion of innocence, courts also demand that defendants take prompt action to make that assertion. (19) The longer the wait to bring a motion to withdraw a plea, the less likely a court will be to grant the motion. (20) Courts view timeliness as a rough proxy for the strength of the reason to withdraw the guilty plea. If a defendant had been truly mistaken in entering the plea, the defendant would move quickly to withdraw it. The longer the defendant waits to withdraw the plea, the less likely the decision was made in error. The longer the defendant waits, the more likely the defendant's motion is based on strategic reasons unrelated to whether the defendant properly entered into the plea agreement.

      As a method to refine this rough factor of delay, courts evaluate whether the defendant gained any strategic benefit by waiting to withdraw the guilty plea. (21) Delaying such a motion until after the trial or sentencing of co-defendants could provide the defendant with the opportunity to preview the government's evidence and trial strategy, as well as to discover the potential punishments. If a defendant has enjoyed such benefits through delay, courts examine such motions with a much more discriminating eye. (22) Thus, delay in bringing a motion to withdraw a guilty plea only serves to impose a greater burden on the defendant to convince the court to grant relief. (23)

   4. PREJUDICE TO THE GOVERNMENT

      If a defendant has put forth evidence of innocence without undue delay, courts then consider whether the government would be prejudiced by permitting the defendant to withdraw the guilty plea. (24) Such prejudice could arise where the government would have difficulty presenting its case at a subsequent trial--because witnesses have dispersed or cannot be located (25) or where evidence has already been destroyed. (26) More mundane tasks, such as the re-assembly of trial preparation materials, have also been deemed to establish prejudice to the government. (27) In fact, the same factors considered in whether a defendant gained a strategic benefit through delay also can establish prejudice to the government--such as waiting to withdraw a plea until the eve of trial (28) or waiting until after the government has presented its case against a co-defendant. (29) The longer the delay, the more likely the defendant has gained a tactical advantage at the government's expense. (30)

      A finding of prejudice, however, will not automatically result in the denial of the defendant's motion. Instead, such a finding heightens the defendant's burden to withdraw the plea, requiting the defendant's justification for the withdrawal to meet "exceptionally high standards." (31) Thus, as with a finding of undue delay, the defendant must prove to the court that the reasons for withdrawing the plea heavily outweigh the potential prejudice that such an action would impose on the government.

2. AN INTERVENING CHANGE IN THE LAW

   Weighing these four factors (and primarily the innocence factor), courts decide whether a defendant should be permitted to withdraw a guilty plea prior to sentencing under Rule 32(e). One event that can prompt a defendant to bring this type of a motion is a change in the law, such as a judicial decision invalidating part of a criminal statute that relates to the defendant's plea. (32)

   Under the current Rule 32(e) test for withdrawing guilty pleas, if a defendant brings the motion to withdraw promptly after learning of the change, delay should not be an issue--the defendant could not have brought the motion previously because the change had not yet occurred. (33)

   The government might oppose such a motion on the ground of prejudice, but it is far more likely to argue that the defendant has waived any right to challenge the plea by admitting the criminal conduct at issue during the guilty plea hearing. Fearing the re-opening of a wave of guilty pleas, courts have, on occasion, accepted this argument. (34) However, in order for the waiver of the right to...