*

The Honorable James G. Carr, Unit

Northern District of Ohio, sitting by desi

1

RECOMMENDED FOR FULL-

Pursuant to Sixth Circ

ELECTRONIC CITATION: 2000 F

File Name: 00a0

UNITED STATES COU

FOR THE SIXTH 

____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DAVID CHARLES HUNT,

Defendant-Appellant.

Appeal from the United St

for the Eastern District of 

No. 95-50041—Paul V. Gad

Argued: Decembe

Decided and Filed: M

Before: COLE and GILMAN, 

District Jud

____________

COUNSE

ARGUED: Kenneth R. Sasse, FOFFICE, Flint, Michigan, for ApASSISTANT UNITED STATE
2 United States v. Hunt Nos. 98-1047/1762

Michigan, for Appellee. ON BRIEF: Kenneth R. Sasse,FEDERAL DEFENDER’S OFFICE, Flint, Michigan, forAppellant. Mark C. Jones, ASSISTANT UNITED STATESATTORNEY, Flint, Michigan, for Appellee.

_________________

OPINION

_________________

JAMES G. CARR, District Judge. This is an appeal from

a criminal sentence imposed on defendant by the UnitedStates District Court for the Eastern District of Michigan.Defendant pled guilty to conspiracy to distribute cocaine,distribution of cocaine and felony possession of a firearm.(J.A. at 26).

Before sentencing, defendant moved for an in camera

hearing to determine whether, as he claimed, the governmentviolated his plea agreement’s written terms. (J.A. at 36-44).Specifically, defendant alleged that the government breachedhis plea agreement by failing to: 1) release him on bond sothat he could actively assist the government in otherinvestigations, 2) interview him a series of times (i.e., morethan twice), thereby thwarting his ability to cooperate withlaw enforcement officials, and 3) administer a lie detector testto determine if he provided truthful information during twointerviews. In the alternative to a hearing, defendantrequested leave to withdraw his guilty plea. (Id.).

The district court refused to hold a hearing, finding that the

plain and unambiguous terms of the plea agreement had notbeen breached. (J.A. at 79-82). Further, the district courtwould not allow defendant to withdraw his plea because hehad not satisfied his burden of withdrawal under Rule 32 ofthe Federal Rules of Criminal Procedure. (J.A. at 83-85).

In a motion for reconsideration, defendant raised a new

basis for a hearing. He argued that the government made oralpromises to him while negotiating the plea agreement. Thosepromises, he claimed, had not been fulfilled. The district

Nos. 98-1047/1762 UStates v. Pluta, 144 F.3d 968, 97motion to a withdraw a plea of gumade before sentence is imposed, plea to be withdrawn if the defendreason.” Fed. R. Crim. Pro. 32(eburden of proving that withdrawaUnited States v. Baez, 87 F.3d 80deciding whether a defendant has sto allow withdrawal of a plea, the fa

1) the amount of time that elapsthe motion to withdraw it; 2) the a valid reason for the failure tearlier in the proceedings; 3) whasserted or maintained his circumstances underlying the enthe defendant’s nature and backwhich the defendant has had prcriminal justice system; and 7) pgovernment if the motion to wit

United States v. Bashara, 27 F.3d 1

The district court applied th

determined, within its discretioinappropriate. (J.A. at 84-85). abuse its discretion given: 1) thbetween entry of defendant’s pwithdrawal (almost one year), 2) ththe plea agreement, 3) defendant’s careful reading of the plea agreemthe plea hearing, and 5) defendant

CONCLUS

For the foregoing reasons, the o

is AFFIRMED.
10 United States v. Hunt Nos. 98-1047/1762

Further, bad faith on the part of the government is not the

standard of review in downward departure cases. Wepreviously have held that a hearing is not needed unless thegovernment’s refusal to recommend a downward departure“was based on an unconstitutional motive.” United States v.

Bagnoli, 7 F.3d 90, 92 (6th Cir. 1993) (citing Wade v. UnitedStates, 504 U.S. 181 (1992)). No threshold showing ofunconstitutional motive has been made here.

Indeed, the district court demonstrated why the government

had fully complied with the terms of the plea agreement.(J.A. at 79-82). In its order, the district court noted that theplain language of the plea agreement made clear that thegovernment did not have any obligation to release defendanton bond, interview defendant any set number of times, oradminister a lie detector test. (J.A. at 79-82). A review of theplea agreement confirms this. (J.A. at 56-66). Thus, it waspermissible to interview defendant twice for his cooperation,and, when the government concluded substantial assistancewas not forthcoming, decline to recommend a downwarddeparture. (J.A. at 62). Nothing about the government’sconduct raises constitutional concerns.

III. Plea Validity

Defendant argues that the district court should have held a

hearing to consider whether he entered into his guilty pleavoluntarily and, thus, validly.

Defendant, however, never moved the district court to hold

a hearing to determine if his plea was valid. Rather, he asked,as an alternative to a hearing, that his plea be withdrawnbased on its alleged invalidity. That alternative request wasdenied because defendant failed to satisfy his burden ofwithdrawal under Rule 32 of the Federal Rules of CriminalProcedure. (J.A. at 83-85). Thus, the only questionappropriately presented is whether the district courtmisapplied Rule 32. 

Denial of a defendant’s motion to withdraw his guilty plea

under Rule 32 is reviewed for an abuse of discretion. United

Nos. 98-1047/1762 Ucourt denied defendant’s motion foamong other things, the plea integration clause, restricting its teits four corners. (J.A. at 100).

Defendant argues here that the 

allowing a hearing. He claims a hedetermine whether the government 2) assess whether the government a good faith opportunity to coowhether his guilty plea was valid. 17). 

For the following reasons, we AF

district court.

BACKGRO

A grand jury in the Eastern Distri

indictment against defendant for sto distribute cocaine, distribution oduring the commission of a drug firearm by a felon, and possessiobliterated serial number. (J.A. at defendant pled guilty to three oforfeited two vehicles as part of hi(J.A. at 26).

Defendant’s plea agreement con

relevant here. First, it containrestricting its terms to those writte

No Other Terms. This agree

complete understanding between promises have been made by defendant or to the attorney for 

(J.A. at 34). Second, the plecooperation clause, obligating government in other investigation
4 United States v. Hunt Nos. 98-1047/1762

Truthful Information and Assistance. Defendant

promises to provide truthful and complete information tothe United States Attorney’s office and to other lawenforcement agencies, including a full debriefing andtruthful testimony at all proceedings, . . . . Defendantagrees to be available for interviews in preparation of alltestimony. Defendant further agrees to submit, uponrequest, to government- administered polygraphexaminations to verify defendant’s full and truthfultestimony.

(J.A. at 30-31). Third, the plea agreement contains a clauserequiring the government to inform the district court ofdefendant’s substantial assistance in other investigations and,if appropriate, recommend a downward departure from thesentencing guidelines:

Substantial Assistance Determination. Upon thegovernment’s determination that defendant’s cooperationamounts to substantial assistance in the investigation ofothers, the government will advise the court of thedefendant’s cooperation at sentencing, and, ifappropriate, request the court to depart downward fromthe applicable sentencing range. The governmentreserves the right to make the sole determination as towhether and when defendant has provided substantialassistance.

(J.A. at 31). 

On May 29, 1996, the district court held a plea hearing in

accordance with Rule 11. At the hearing, the district courtreviewed the details of the plea agreement with defendant.(J.A. at 115-119). Defendant was asked whether heunderstood that the plea agreement was a fully integrateddocument: 

THE COURT: Paragraph nine says this is a completeAgreement between yourself and the Government, andthere have been no other promises made to you. Do youunderstand that is in this document?

Nos. 98-1047/1762 Ureliance on the written plea agemphasized that an integration prevent any assertion that there weId. (emphasis added). 

Here, there are no circumstances 

the ordinary rule set forth in PeavyPeavy, defendant in this case has fia side agreement with the governmthough it has filed no supporting athat any such oral agreement exist11) (“[T]here were no agreements wcontained in the Rule 11 [plea adenial, the integration clause, and an affidavit, the district court was hearing was necessary.

Defendant attempts to distingui

it was a post-sentencing challenpursuant to 28 U.S.C. § 2255. (DeBut the fact that the challenge here ois unremarkable. Once the governplea agreement containing an intordinarily should be final and immwhether such attack occurs before 

II. Bad Fa

Defendant claims the governme

cooperate and, thus, qualify for a the sentencing guidelines. He government acted in bad faith, wopportunity to prove at a hearing. 16).

Defendant’s allegation of bad f

time on appeal. He never allegecourt. Rather, he simply maintaviolated the plea agreement, withothe government was improperly argument is fatally flawed for this 
8 United States v. Hunt Nos. 98-1047/1762

I. Oral Promises

In his motion for reconsideration, defendant claimed that

the government made two oral promises to him that had notbeen fulfilled. First, he claimed the government promisedhim a polygraph test, which it never administered. (J.A. at88). Second, he claimed the government promised not toconfiscate two of his vehicles if the polygraph results showedthat he had not used those vehicles in the commission of adrug offense, but then confiscated them without giving him achance to take the polygraph. (Id.). Defendant explained that

these unfulfilled promises were not included in the writtenplea agreement for his protection (id.), yet were intended to bebinding on the government. Defendant repeats this argumenthere. (Defendant’s Brief at 11-13).

An integration clause normally prevents a criminal

defendant, who has entered into a plea agreement, fromasserting that the government made oral promises to him notcontained in the plea agreement itself. Peavy v. United States,31 F.3d 1341, 1345 (6th Cir. 1994). In Peavy, the defendant

pled guilty to distribution of cocaine. His Rule 11 pleaagreement contained an integration clause. After sentencing,he claimed to have had an oral arrangement with thegovernment to reduce his sentence if he cooperated in anongoing FBI investigation. He further claimed thegovernment failed to live up to its end of the bargain after heprovided the cooperation requested. Accordingly, defendantsought a hearing at which to contest his guilty plea.Defendant’s attorney, who was with him at the time thegovernment’s alleged promise was made, filed an affidavitwith the district court attesting to the existence of an oralpromise. 

The government in Peavy conceded that it had entered into

a oral promise with the defendant, and that the promise wasomitted from the plea agreement. But the governmentdisputed the terms of the oral promise.

A hearing was necessary in Peavy because both sides

acknowledged an oral promise and the government placed no

Nos. 98-1047/1762 U

DEFENDANT: Yes. . . .. . .THE COURT: Has anyone dirany promises . . . other than t[a]greement to get you to plead DEFENDANT: No. 

(J.A. at 118-119) (emphasis addedconfirmed that defendant understalone, in its discretion, would dcooperated in other investigations a recommendation of downward d

THE COURT: All right. ParaGovernment determines that amounted to substantial assistanother people, the Government cooperation at the time of sGovernment deems it appropriarequest that I depart downwarsentencing range for you under thYou understand that, sir?DEFENDANT: Yes.THE COURT: It goes on to shas the right to make the sowhether you have provided substantial assistance and as provided it. You understand thaDEFENDANT: Yes.

(J.A. at 116-17) (emphasis aquestioning, the district court founsatisfied Rule 11. (J.A. at 118).
6 United States v. Hunt Nos. 98-1047/1762

Defendant’s sentencing was set for September 12, 1996,

and then moved to January 9, 1997. (J.A. at 121). Betweenthe plea hearing and January 9, 1997, law enforcementofficials interviewed defendant twice. (J.A. at 38). Duringthose interviews, the government claims defendant wasuncooperative, and that he did not proffer any informationregarding his knowledge of illegal activities. (Government’sBrief at 6). Defendant claims he “fully cooperated” duringthe interviews, “providing sensitive information . . . thatclearly would aide in seeking independent indictments.” (J.A.at 38). 

Because the government found the interviews to be

unproductive, it adjourned the January 9th sentencing toprovide defendant with another chance to cooperate. (J.A. at81). Confirming by letter the adjournment with defendant’slawyer, the government requested a written proffer fromdefendant:

As you know, I agreed, with some reluctance, to anadjournment . . . on January 9, 1997. I am writing to

advise you of my position as to the issue of cooperation.I have previously written to you about my concern withthe fact that Mr. Hunt has been reluctant to cooperate.Indeed, my investigating officers have expressed to metheir views that there is no point in a further proffer fromhim.As such, at this point, I am respectfully asking that youmeet with Mr. Hunt and prepare a specific and detailedexplanation of his knowledge of illegal activities and hisproposed cooperation. I will submit it to theinvestigating officers. If we feel that it justifies a reexamination of the cooperation issue, we will advise you.

(J.A. at 67-68) (emphasis original). 

Defendant never accepted the government’s invitation to

submit a written proffer. (Government’s Brief at 7).

Nos. 98-1047/1762 U

In December 1997, nearly a year 

district court reconvened the Defendant’s lawyer asked for anothan extension of time to cooperate. district court denied this request:

THE COURT: . . . I’m aware thJanuary 9th, 1997 for sentencinbelieve the matter was adjourn[defendant] could have an oppocooperation to the governmentyear has passes since then . . . . you want more time? I’m not d. . . [W]ithin one year after sentenfurnish some substantial assistathe government, within one yemake a motion to reduce the senof that, but I don’t see any reasoshould again adjourn this sentecan cooperate with the governm

(J.A. at 121-22).

The district court sentenced de

prison (J.A. at 102-03), and this ap

DISCUSSI

Defendant asserts that the di

allowing a hearing. He claims a three reasons: first, to determine breached its oral promises; secongovernment failed to provide opportunity to cooperate; and thirguilty plea was valid. (Defendant’these contentions has merit.