United States Court of Appeals

For the Eighth Circuit

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No. 13-1035

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Kevin Donnell White, also known as Jughead, also known as Jug, also known as

Puff, also known as P. Diddy

lllllllllllllllllllll Defendant - Appellant

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 Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

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 Submitted: September 27, 2013

 Filed: November 5, 2013

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Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.

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MELLOY, Circuit Judge.

Defendant Kevin White pleaded guilty to laundering money in violation of 18

U.S.C. § 1956(a)(1)(A)(I), (B)(I), and 1956(h), and conspiring to distribute and

possess with intent to distribute cocaine, heroin, and marijuana, in violation of 21

U.S.C. §§ 841(b)(1)(A) and 846. White argues on appeal that: (1) he was given
inadequate time to review the terms of a plea agreement prior to entering a guilty plea

and, as such, he did not make his plea knowingly and voluntarily; (2) his counsel

labored under an actual conflict of interest; and (3) his counsel was otherwise

ineffective. We do not address White's final argument as it relies upon evidence

outside the record of conviction and should be raised through collateral proceedings

rather than on direct appeal. Regarding his first and second arguments, we find no

error in the district court's acceptance of White's plea or in its determination that

White's counsel did not labor under a conflict of interest. Accordingly, we affirm.

I. Background

Investigators discoveredWhite's participation in a drug distribution conspiracy

after receiving information that he and another man were attempting to purchase

vehicles to be retrofitted with hidden compartments. The investigation eventually

revealed that, between early 2009 and mid-2011, White and several other conspirators

purchased drugs in Phoenix, Arizona, and distributed those drugs in St. Louis,

Missouri. Investigators obtained wiretaps and recorded several incriminating

conversations between members of the conspiracy, including White. In addition,

investigators collected a great deal of evidence including drug paraphernalia and

$360,000 cash during execution of a search warrant at White's home. Officers also

stopped two vehicles believed to be used by the conspirators, searched the vehicles,

and discovered cocaine and marijuana in both vehicles. Finally, officers discovered

marijuana, heroin, and drug paraphernalia at a second house believed to be used by

the conspirators.

White had prior convictions for felony drug offenses in 1995 and 1997. The

government filed an information pursuant to 21 U.S.C. § 851(a) in the present

proceedings seeking a mandatory statutory penalty of life imprisonment pursuant to

21 U.S.C. § 841(b)(1)(A) based upon the prior convictions. Trial was scheduled to

begin on a Monday. On the Friday before trial, the government reached a tentative

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plea agreement with White that contained an appeal waiver and eliminated the

§ 841(b) enhancement. 

At a change of plea hearing, the district court explored whether White was 1

entering into the plea agreement and changing his plea knowingly and voluntarily. 

The court also explored White's satisfaction with counsel. The colloquy between

White and the district court is pertinent to the issues on appeal, and we present it in

detail below.

The court first addressed whether White was currently under the influence of

drugs or alcohol and whether he had an opportunity to review the charges against

him. White responded that he was not under the influence of any substances and that

he understood the charges against him. The court then asked White if he was

"satisfied with the representation you've received in this case . . . ?" White

responded, "Somewhat." The following exchange then took place:

Q. Well, can you tell me a little bit more than that?

A. I'm keeping that confidential. I'm sorry, Your Honor.

Q. Well, we can clear the courtroom because I want to be sure you

feel you've had good representation in this matter.

A. Well, I —

Q. So if you want to go into detail, I'll clear the courtroom because

I don't want you to violate any attorney/client privilege.

A. Well, I mean I just want to keep it confidential for right now. I

mean — 

Q. Okay. Do you have any specific complaints against him without

going into any detail?

A. I asked him to do certain things, and it wasn't done.

Q. Well, I think maybe we better clear the courtroom.

The Honorable Jean C. Hamilton, United States DistrictJudge for the Eastern 1

District of Missouri.

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A. No. Mr. Pleban is a great attorney. I mean he's a great attorney,

but —

Q. Well, do you feel that you're in a position and you've discussed all

the evidence and all the mattersrelated to these charges with Mr.

Pleban so that you should go through this hearing as opposed to,

you know, going to trial which we're going to start on Monday?

A. Certain things was said to me to mislead me, and I believe those

things, you know. So now I'm into a plea agreement, so I'm going

to take my plea agreement and deal with that.

Q. Okay. So you feel that you've had enough time and you

understand enough to proceed with this plea of guilty. Is that

correct?

A. Yes.

Q. And do you have — Do you feel that you've had enough time to

go over all of this and have all the discussions you need with Mr.

Pleban about the plea agreement versus going to trial and how to

handle this case?

A. To be honest with you, Your Honor, we haven't had enough time.

I was presented with it yesterday.

Q. To look at the plea agreement you mean?

A. Yes. I was — It was given to me yesterday.

Q. Well, why don't you — 

A. I just reviewed it. I mean — 

Q. Well, why don't we take a few minutes and have you and Mr.

Pleban go over this.

A. I mean I don't want to waste the Court's time.

Q. You're not wasting my time.

A. Okay.

Q. I want — This is very important that you know what you're doing.

I don't want you to agree to something that you don't feel you've

had enough time to think about and talk to Mr. Pleban and consult

your attorney. Why don't you and Mr. Pleban go over there. We'll

take a few minutes or however long you want to go over this

because you have reviewed it but there may be some provisions

you want to talk to him about. Is that correct?

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(Mr. White consulting with his attorney)

ATTORNEY: Can I have just a second?

THE COURT: Sure.

(Mr. Pleban consulting with his client)

ATTORNEY: I think we're ready, Your Honor.

THE COURT: Okay.

Q. Mr. White, have you had a few moments now to talk with Mr.

Pleban?

A. Yes.

Q. And do you feel that you've had sufficient time to talk with him

about the provisions of this document? We're going to talk — I'm

going to talk about it with you, too, in the next few minutes.

A. Okay, thanks.

Q. But if you have any questions that you want to consult your

lawyer about, then I want — I want you to know that you can do

that. Okay?

A. Okay.

The court then reviewed the written plea agreement with White, confirmed that

White understood and agreed with its contents, confirmed that White understood the

rights he was giving up by pleading guilty, and confirmed that White had received no

promises or assurances outside the plea agreement to cause him to change his plea. 

Finally, the court heard a recitation of the facts from the government in support of the

guilty plea, and White confirmed that he agreed with the factual basis of the plea. At

no point in the transcript of the change of plea hearing is there a suggestion that the

court doubted White's mental capacity, his ability to understand the proceedings or

the agreement, or the voluntariness of White's change of plea.

After the court accepted White's plea, but before sentencing, White moved to

withdraw his plea, arguing that his counsel had labored under an actual conflict of

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interest. White asserted that counsel previously had represented a police investigator

who had been convicted of federal crimes and who had been involved in earlier

investigations that led to White's prior felony drug convictions. Counsel's

representation of the officer had ended prior to White's commission of the present

offense and prior to the investigation into the present offense. There is no allegation

that the officer was involved in the present investigation. The district court held an

expedited hearing and found no conflict of interest.

The plea agreement indicated that the parties agreed the total offense level

pursuant to the advisory sentencing guidelines would be 32 if White were to receive

a two-level downward adjustment for acceptance of responsibility. The agreement

also stated that an adjustment for acceptance of responsibility was dependent upon

evidence currently known and that if:

the government receives new evidence of statements or conduct by the

defendant which it believes are inconsistent with defendant's eligibility

for this deduction, the government may present said evidence to the

court, and argue that the defendant should not receive all or part of the

deduction . . . without violating the plea agreement.

The presentence report asserted that White's attempt to withdraw his plea involved

an assertion of facts inconsistent with his plea and served as statements or conduct

inconsistent with acceptance of responsibility. Accordingly, the presentence report

recommended a total offense level of 34. The district court adopted this total offense

level, resulting in an advisory range of 188–235 months, and imposed a sentence of

188 months. 

II. Discussion

A defendant may withdraw a guilty plea prior to sentencing if the defendant

presents a fair and just reason to withdraw. Fed. R. Crim. P. 11(d)(2)(B); United

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States v. Alvarado, 615 F.3d 916, 920 (8th Cir. 2010). We review a district court's

denial of a motion to withdraw a guilty plea for abuse of discretion. Alvarado, 615

F.3d at 920. Here, White appears to challenge the denial of his motion to withdraw

on two grounds: (1) an initial alleged failure by the district court to ensure that White

made his plea knowingly and voluntarily; and (2) the later denial of his motion to

withdraw on the grounds that counsel labored under an actual conflict of interest.

Regarding the first challenge, we find no abuse of discretion. Through the plea

colloquy, as described and quoted at length above, the district court questioned and

personally observed White and confirmed the voluntary and knowing nature of his

plea. White confessed his guilt to the crime and admitted to the underlying facts as

described by the government and as described in the plea agreement. We do not

lightly ignore the impact ofthese actions when reviewing the underlying proceedings. 

See, e.g., United States v. Green, 521 F.3d 929, 931 (8th Cir. 2008) ("There is no

right to withdraw; 'the plea of guilty is a solemn act not to be disregarded because of

belated misgivings about its wisdom.'" (quoting United States v. Fitzhugh, 78 F.3d

1326, 1328 (8th Cir. 1996))).

To the extent White argues his plea was involuntary because he was afforded

inadequate time to review his plea agreement or that he was not adequately

questioned after expressing inconclusive and less-than-complete satisfaction with

counsel, the transcript adequately demonstrates the propriety of the district court's

actions. When White suggested he was not fully satisfied with counsel, the court

followed-up repeatedly and White confirmed his satisfaction with counsel. When he

suggested he needed additional time, the district court gave him additional time. 

Although White emphasizes the language "take a few minutes," this emphasis is

unfair. The court suspended proceedings and instructed White to take "however long

you want." White then, in fact, consulted with counsel and confirmed to the district

court that he needed no additional time. 

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Further, if White's time-related challenge to the court's voluntariness

determination is premised on the general proximity of the Friday hearing to the

pending Monday trial date, we have repeatedly rejected similar arguments. See, e.g.,

United States v. Pacheco, 641 F.3d 970, 975 (8th Cir. 2011) ("The stress arising from

an imminent trial and the potential of a lengthy loss of liberty naturally creates

pressure even in the most competent person."); United States v. Swick, 262 F.3d 684,

686–87 (8th Cir. 2001) ("All defendants in plea negotiations struggle with the issue

of whether to plead guilty or to take their chances at trial. There is nothing in the

record to indicate [the] situation wasthat different fromany other ordinary defendant,

or that he was under any greater pressure than any other defendant who is weighing

the option of pleading guilty or going to trial."). Simply put, the fact of a pending

trial does not serve to make an eve-of-trial plea involuntary.

Regarding the second challenge, the district court held an expedited hearing on

White's claim that counsel labored under an actual conflict. The district properly

found no conflict because no active dual representation of conflicting interests

occurred. Counsel's prior client was not alleged to have been involved in the present

investigation, and representation of that client ended prior to the present offense and

investigation. In the absence of conflicting and active dual representation, prejudice

is not presumed. United States v. Flynn, 87 F.3d 996, 1001 (8th Cir. 1996). Further,

even if counsel's prior client had been offered as a witness against White, counsel's

prior representation of a government witness does not give rise to a presumption of

prejudice. See id. ("The mere fact that a trial lawyer had previously represented a

prosecution witness does not entitle a defendant to relief. The defendant must show

that this successive representation had some actual and demonstrable adverse effect

on the case, not merely an abstract or theoretical one.") (internal citation omitted). 

And here, counsel's prior client was not even a witness against White.

To the extent White argues prejudice existed, his arguments are without merit. 

Although counsel's prior client was involved in unrelated earlier investigations that

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led to White's earlier convictions, any such representation was immaterial to the

present case. The validity of the prior convictions was not an issue before the district

court. Indeed, even if White had gone to trial and even if the enhancements had

remained in the case, White would have been precluded by statute from challenging

the validity of his convictions because they "occurred more than five years before the

date of the information alleging such prior conviction." 21 U.S.C. § 851(e).

Finally, we note that the district court granted a motion for the allegedly

conflicted counsel to withdraw, and a different attorney represented White at

sentencing. As such, he cannot argue that the allegedly conflicted counsel somehow

affected his ability to address the prior convictions as relevant to his criminal history

determination.

We affirm the judgment of the district court.2

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We make no comment upon the validity or applicability of the appeal waiver 2

contained in the plea agreement in this case. See United States v. Dace, 660 F.3d

1011, 1014 n.2 (8th Cir. 2011) (rejecting a criminal defendant's substantive

arguments on appeal in lieu of deciding the validity and applicability of an appeal

waiver). We deny as moot the government's pending motion to dismiss.

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