*The Honorable Paul A. Magnuson, Chief Judge, United States District

Court for the District of Minnesota, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3589

____________

United States of America, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the

Steven J. Vest, also known as * Western District of Missouri

Norm, *

*

Appellant. *

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 Submitted: March 11, 1997

 Filed: October 2, 1997

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Before McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON,*

District Judge.

____________

McMILLIAN, Circuit Judge.
The Honorable Joseph E. Stevens, Jr., United States District Judge for the

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Western District of Missouri.

Defendant was also sentenced to the following concurrent terms of

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imprisonment: 240 months on two counts, 120 months on three counts, and 60 months

on one count.

This count was later dismissed because conspiracy to distribute cocaine and

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marijuana is a lesser-included offense of the continuing criminal enterprise count.

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Steven J. Vest (defendant) appeals from a final judgment entered in

the United States District Court for the Western District of Missouri

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denying defendant’s motion to withdraw his guilty pleas and sentencing him

to concurrent terms of life imprisonment on four counts charged in the

indictment. United States v. Vest, No. 94-00037-01-CR-W-8 (W.D. Mo. Sept. 2

9, 1996) (Judgment). For reversal, defendant argues that the district

court erred in denying his motion to withdraw his guilty pleas because the

pleas were coerced and thus involuntary. For the reasons discussed below,

we affirm the judgment of the district court.

Jurisdiction was proper in the district court based upon 18 U.S.C.

§ 3231. Jurisdiction on appeal is proper based upon 28 U.S.C. § 1291. The

notice of appeal was timely filed under Fed. R. App. P. 4(a).

I. Background

Following a two-year investigation, defendant and more than twenty

others, including three of defendant's brothers, were arrested in early

1994 for drug trafficking offenses. A criminal complaint was filed in

early February 1994. Following further investigation and debriefings of

several cooperating defendants and other witnesses, an indictment and,

subsequently, two superseding indictments were filed, charging defendant

and more than thirty others with related offenses, including: conspiracy

to distribute cocaine and marijuana ; operation of a continuing criminal

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enterprise; 
Mark Vest and James Vest pleaded guilty to the capital murder counts on

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January 15, 1996, and January 2, 1996, respectively, and, like defendant, were

sentenced to concurrent terms of life imprisonment.

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possession with intent to distribute cocaine; distribution of cocaine;

distribution of marijuana; arson of a building used in interstate commerce;

interstate transportation of property obtained by fraud; multiple counts

of money laundering; and multiple counts of capital murder under the

continuing criminal enterprise statute, 21 U.S.C. § 848(e). In addition,

defendant's interests in various real properties were the subjects of four

forfeiture counts.

The Attorney General granted the government authority to seek the

death penalty against defendant and two of his younger brothers, Mark Vest

and James Vest, who were also charged in the capital murder counts. Those 4

counts were based upon the murders of Juan Manuel Bojorquez and Ernest

Serafin Carbajal, Mexican nationals who had repeatedly delivered 5 to 10

kilogram amounts of cocaine to the Vests and their associates in the drug

enterprise. Bojorquez and Carbajal transported the cocaine from Phoenix,

Arizona, in a hidden compartment in their vehicle and usually delivered it

to Mark Vest at his residence at 110 Spruce, Kansas City, Missouri, which

was owned by defendant. Bojorquez and Carbajal arrived in Kansas City,

Missouri, on October 27, 1992, and checked into a hotel. After their

arrival, Arturo Gonzalez, Jr., met with defendant, James Vest, and Mark

Vest at the residence, and defendant outlined a plan to kill Bojorquez and

Carbajal in order to steal their cocaine. The following day, Gonzalez was

ordered by the Vests to pick up Bojorquez and Carbajal at their hotel and

bring them back to the residence. Upon entering the residence, defendant

and James Vest pulled firearms and ordered the parties to “hit the floor.”

Defendant handcuffed Bojorquez and Carbajal, and James Vest duct taped

their feet together. James Vest then duct taped their mouths and proceeded

to wrap their faces in the tape. Bojorquez and Carbajal suffocated. The

bodies were transported in a van which had been procured by Mark Vest and

were buried in a shallow grave which had 
The facts underlying the capital murder counts were admitted by defendant at 5

his plea hearing. Brief for Appellee at 9 n.7, citing Tr. of Plea Hearing at 30-34, 46.

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been dug the night before. After agreeing to cooperate with the government

in the prosecution of this case, Gonzalez informed investigators of the

murders and led authorities to the bodies on March 13, 1994.5

 

On January 15, 1996, defendant pleaded guilty to all counts with

which he was charged, admitting each element of each offense, in exchange

for a stipulated sentence of life imprisonment and the government's

agreement not to seek the death penalty. A condition of defendant's plea

agreement was that, if defendant pleaded guilty, Mark Vest would be allowed

to plead guilty and would not face the death penalty.

Prior to sentencing, defendant moved to withdraw his guilty pleas on

three grounds: (1) the government withheld exculpatory evidence; (2) he

was coerced into entering the pleas by the condition involving Mark Vest's

ability to plead guilty and avoid the death penalty; and (3) he was coerced

by the possibility that his wife would lose her house if he did not plead

guilty. See Tr. of Sentencing Proceedings at 4:15-4:24. (Aug. 5-6, 1996).

Following the testimony of several witnesses at the sentencing hearing, the

district court denied defendant's motion to withdraw his pleas. Id. at

234:16-235:10, 236:23-237:20. The district court then sentenced defendant

to concurrent terms of life imprisonment on four counts, 240 months on two

counts, 120 months on three counts, and 60 months on one count. Judgment

at 2. This appeal followed.

II. Discussion

We normally review a district court's denial of a presentence motion

to withdraw a guilty plea for an abuse of discretion. United States v.

Jones, 111 F.3d 597, 601 (8th Cir. 1997); United States v. Abdullah, 947

F.2d 306, 311 (8th Cir. 1991), cert. denied, 
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504 U.S. 921 (1992). However, where the district court’s decision hinges

upon the voluntariness of the defendant’s guilty plea, a mixed question of

law and fact is presented and is subject to our independent, or de novo,

review. United States v. Morgan, 958 F.2d 847, 849 (8th Cir.), cert.

denied, 504 U.S. 990 (1992). 

Defendant argues that the district court erred in denying his motion

to withdraw his guilty pleas because he entered into them involuntarily.

Defendant’s only contention on appeal is that the government coerced him

into entering the guilty pleas by promising to allow defendant's brother,

Mark Vest, to plead guilty and avoid the death penalty in exchange for

defendant’s guilty pleas. Defendant maintains that one of the major

inducements for pleading guilty, the government's promise of lenient

treatment for Mark Vest, “‘might pose a great danger of inducing a false

guilty plea by skewing the assessment of the risks [] defendant might

consider.’” Brief for Appellant at 8, quoting Bordenkircher v. Hayes, 434

U.S. 357, 364 n.8 (1978) (Bordenkircher). Defendant contends that he

should have been allowed to withdraw his guilty pleas prior to sentencing

because the coercive circumstances surrounding the plea agreement made them

involuntary.

We disagree and hold that the district court did not err in denying

defendant's motion to withdraw his guilty pleas. The factors to be

considered by the district court in determining whether to grant a motion

to withdraw a guilty plea before sentencing are: 

(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 will be prejudiced. 
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Abdullah, 947 F.2d at 311, quoting United States v. Boone, 869 F.2d 1089,

1091-92 (8th Cir.), cert. denied, 493 U.S. 822 (1989); see also Fed. R.

Crim. P. 32(e). However, “[i]f the defendant does not present a fair and

just reason for withdrawal of a guilty plea, no need exists for the

district court to examine the other Boone factors.” Abdullah, 947 F.2d at

311. 

Defendant presents no fair and just reason for granting his motion

to withdraw. “To prove that his plea was not a knowing and voluntary plea,

[defendant] must show that he did not make a voluntary and intelligent

choice among the alternative courses of action.” Weisberg v. Minnesota,

29 F.3d 1271, 1278 (8th Cir.) (Weisberg), cert. denied, 513 U.S. 1126

(1994). While the Supreme Court, in Bordenkircher, suggested cautious

consideration of promises for lenient treatment, it held that “[d]efendants

advised by competent counsel and protected by other procedural safeguards

are presumptively capable of intelligent choice in response to

prosecutorial persuasion, and unlikely to be driven to false selfcondemnation." 434 U.S. at 363. Defendant has not presented any evidence

that he did not understand the nature of the plea proceeding or that he

entered his pleas involuntarily. See Weisberg, 29 F.3d at 1278. Moreover,

during the Rule 11 inquiry conducted at the plea hearing, defendant

admitted each element of every offense covered by the plea agreement and

conceded that he had not been coerced into entering the guilty pleas. See

Brief for Appellee at 13, citing Tr. of Plea Hearing at 16, 46-47. The

plea and sentencing transcripts contain ample evidence that defendant

understood the consequences of his guilty pleas and that he entered them

voluntarily. See Weisberg, 29 F.3d at 1278.

 

Furthermore, so-called "wired" plea agreements, in which the

agreement of one defendant is conditioned upon the similar agreement of

another defendant, are not per se invalid. United States v. Wright, 43

F.3d 491, 498 (10th Cir. 1994); Weisberg, 29 
See also United States v. Farley, 72 F.3d 158, 164 (D.C. Cir. 1995) (wired plea 6

did not require district court to undertake a special voluntariness inquiry beyond that

provided by Fed. R. Crim. P. 11); United States v. Bellazerius, 24 F.3d 698, 704 (5th

Cir.) (guilty plea induced by promise of leniency toward defendant’s wife was not

involuntary), cert. denied, 513 U.S. 954 (1994); United States v. Marquez, 909 F.2d

738, 741-742 (2d Cir. 1990) (guilty plea was not involuntary even though defendant’s

wife’s ability to plead guilty was contingent on defendant’s pleading guilty), cert.

denied, 498 U.S. 1084 (1991); United States v. Carasis, 863 F.2d 615, 616 (8th Cir.

1988) (guilty pleas were not coerced where plea agreements were contingent on all

defendants pleading guilty); United States v. Bartoli, 572 F.2d 188, 189 (8th Cir.)

(guilty plea was not coerced where entered by defendant pursuant to condition that

indictment against defendant’s father be dismissed), cert. denied, 438 U.S. 905 (1978).

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F.3d at 1279. “Since a defendant’s plea is not rendered involuntary

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because he enters it to save himself [from the death penalty], it is

difficult to see why the law should not permit the defendant to negotiate

a plea that confers a similar benefit on others.” United States v.

Marquez, 909 F.2d 738, 742 (2d Cir. 1990), cert. denied, 498 U.S. 1084

(1991). Furthermore, “[i]t is the prosecutor’s prerogative to offer a

‘package deal’ or no deal at all.” Nguyen v. United States, 114 F.3d 699,

704 (8th Cir. 1997) (citation omitted). The condition that Mark Vest be

allowed to plead guilty and avoid the death penalty only if defendant

pleaded guilty is merely one factor to be considered in determining whether

defendant’s guilty pleas were voluntary. See Weisberg, 29 F.3d at 1279.

A plea agreement containing such a condition is proper so long as the

government acts in good faith based upon probable cause to file charges

against or to prosecute the third party named in the agreement. Wright,

43 F.3d at 499; United States v. Bellazerius, 24 F.3d 698, 704 (5th Cir.),

cert. denied, 513 U.S. 954 (1994). There is nothing in the record to

suggest that the government did not act in good faith in obtaining

defendant’s guilty pleas, and, in fact, it appears that he entered the

guilty pleas not as an act of self-sacrifice for his brother, but rather

as an attempt to avoid the harsher death sentence himself. See United

States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996). Therefore, we hold that

the district court did not err in denying defendant’s motion to withdraw

his guilty pleas. 
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III. Conclusion

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.