## *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

_____________ 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. *

____________ Submitted: March 11, 1997 Filed: October 2, 1997

____________ Before McMILLIAN and HANSEN, Circuit Judges, and MAGNUSON, * District Judge.

____________
McMILLIAN, Circuit Judge.

## The Hono rable Joseph E. Stevens, Jr., United States District Judge for th e 1 

## Western District of Missouri.
Defendant was also sentenced to the following concurrent terms o f 2 

## imprisonment: 240 months on two counts, 120 months on three counts, and 60 months on one count.
T his count was later dismissed because conspiracy to distribute cocaine an d 3 

## marijuana is a lesser-included offense of the continuing criminal enterprise count.
-2- Steven J. Vest (defendant) appeals from a final judgment entered in the United States District Court for the Western District of Missour i 1 denying defendant’s motion to withdraw his guilt y pleas and sentencing him to co ncurrent terms of life imprisonment on four counts charged in th e 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 distric t court erred in denying his motion to withdraw hi s guilty pleas because the pleas were coerced and thus involuntary. For th e reasons discussed below, we affirm the judgment of the district court.

Jurisdic tion 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. Th e notice of appeal was timely filed under Fed. R. App. P. 4(a).
I. Background

Fo llowing a two-year investigation, defendant and more than twent y others , including three of defendant's brothers, were arrested in earl y 1994 for drug trafficking offenses. A criminal complaint was filed i n earlyFebruary 1994. Following further investigation and debriefings of
seve ral 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 distr ibute cocaine and marijuana ; operation of a continuing crimina l 3 enterprise;

## Mark Vest and James Vest pleaded guilty to the capital murder counts o n 4 

## Januar y15, 1996, and January 2, 1996, respectively, and, like defendant, wer e sentenced to concurrent terms of life imprisonment.
-3- poss ession 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 m oney laundering; and multiple counts of capital murder under th e continuing criminal e nterprise 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 th e death penalty against defendant and two of his y ounger brothers, Mark Vest and James Vest, who were also charged in the capital murder coun ts. Those 4 count s were based upon the murders of Juan Manuel Bojorquez and Ernes t Serafin Carbajal, Mexican nationals who had repeatedly delivered 5 to 10 kilogram amounts of c ocaine to the Vests and their associates in the drug enterprise. Bojorque z and Carbajal transported the cocaine from Phoenix, Arizona, in a hidden compartment in their vehicl e and usually delivered it to Mark Vest at his r esidence at 110 Spruce, Kansas City, Missouri, which
was owned by defendant. Bojorquez and Carbajal arrived in Kansas City , Mis souri, on October 27, 1992, and checked into a hotel. After thei r arr ival, Arturo Gonzalez, Jr., met with defendant, James Vest, and Mar k Vest at the residence, and defendant outlined a plan to kill Bojorquez and Carbajal in order to steal their cocaine. The f ollowing day, Gonzalez was ordered by the Vests to pick up Bojorquez and Carbajal at their hotel and bring them back to th e residence. Upon entering the residence, defendant and James Vest pulled firearms and ordered the p arties to “hit the floor.” Defend ant handcuffed Bojorquez and Carbajal, and James Vest duct tape d their feet together. James Vest then duct taped their mouths and proceede d to wrap their faces i n the tape. Bojorquez and Carbajal suffocated. The bodies were transport ed 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.
-4- been dug the night before. After agreeing to cooperate with the governmen t in the prosecution of this case, Gonzalez informed investigators of th e murders and led authorities to the bodies on March 13, 1994. 5

On January 15, 1996, defendant pleaded guilty to all counts wit h 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 seekthe death penalty. A condition of defendant's plea agreement was that, if defendant pleaded guilty, Mark Vest would be allowe d to plead guilty and would not face the death penalty.
Prior to sentencing, defendant movedto withdraw his guilty pleas on three grounds: (1) the government withheld exculpatory evidence; (2) he was coerced into entering the pleas by the condi tion involving Mark Vest's ability to plead guilty and avoid the death penalty; and (3) he was coerce d by the possibility th at 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, th e district court denied defendant's motion to withdraw his pleas. Id. a t 234:16-235:10, 236:23-237:20. The district cour t then sentenced defendant to concurrent terms of life imprisonment on four counts, 240 months on two counts, 120 months onthree 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 with draw 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 ,

### -5-

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

. denied , 504 U.S. 990 (1992).
Defendant argues that the district c ourt 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 gui lty pleas by promising to allow defendant's brother, Mark Vest, to plead guilty and avoid the death penalty in exchange fo r defe ndant’s guilty pleas. Defendant maintains that one of the majo r in ducements for pleading guilty, the government's promise of lenien t treatment for Mark Vest, “‘might pose a great danger of inducing a false guilty ple a by skewing the assessment of the risks [] defendant migh t consider.’” Brief for Appellant at 8, quoting B ordenkircher v. Hayes , 434 U.S. 35 7, 364 n.8 (1978) ( Bordenkircher ). Defendant contends that h e should have been allo wed to withdraw his guilty pleas prior to sentencing because the coercive circumstances surrounding the plea agreement made the m involuntary.
We disagr ee and hold that the district court did not err in denying defendant 's motion to withdraw his guilty pleas. The factors to b e considered by the dis trict court in determining whether to grant a motion to withdraw a guilty plea before sentencing are:
(1) whether defendant established a fair and jus t reaso n to withdraw his plea; (2) whether defendan t ass erts his legal innocence of the charge; (3) th e length of time between the guilty plea and the motion to withdraw; and (4) if the defendant established a fai r and just reason for withdrawal, whether th e government will be prejudiced.

### -6-

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). Howe ver, “[i]f the defendant does not present a fair and just reas on for withdrawal of a guilty plea, no need exists for th e district court to examine the other Boone factor s.” Abdullah , 947 F.2d at 311.

Defendan t presents no fair and just reason for granting his motio n to withdraw. “To prove that his plea was not a knowing and voluntary plea , [defe ndant] must show that he did not make a voluntary and intelligen t choice among the alternative courses of action.” Weisberg v. Minnesota , 29 F.3d 12 71, 1278 (8th Cir.) ( Weisberg ), cert. denied , 513 U.S. 112 6 (1994)

. While the Supreme Court, in Bordenkircher , suggested cautiou s consideration of promises for lenient treatment, it held that “[d]efendant s advised by competent counsel and protected by other procedural safeguards
are presumptively capable of intelligent choice in response t o prosec utorial persuasion, and unlikely to be driven to false self

condemnation." 434 U.S. at 363. Defendant has not presented any evidence that he did not understand the nature of the plea proceeding or that h e entered his pleas involuntarily. See Weisberg , 29 F.3d at 1278. Moreover , during the Rule 11 inquiry conducted at the plea hearing, defendan t admitted each element of every offense covered by the plea agreement and conceded that he had not been coerced into enter ing the guilty pleas. See Brief for Appellee at 13, citing Tr. of Plea Hearing at 16, 46-47. Th e plea an d sentencing transcripts contain ample evidence that defendan t understood the consequences of his guilty pleas and that he entered them voluntarily. See Weisberg , 29 F.3d at 1278.

Furth ermore, so-called "wired" plea agreements, in which th e agr eement of one defendant is conditioned upon the similar agreement o f another d efendant, are not per se invalid. United States v. Wright , 4 3 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 

## didnot 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 Ci r.) (guilty plea induced by promise of leniency toward defendant’s wife was no t 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 al l 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 tha t indictment against defendant’s father be dismissed), cert. denied , 438 U.S. 905 (1978).

-7- F.3d at 127 9. “Since a defendant’s plea is not rendered involuntar y 6 becaus e he enters it to save himself [from the death penalty], it i s difficult to see why the law should not permit the defendant to negotiate
a plea th at confers a similar benefit on others.” United States v

. Marquez , 909 F.2d 738, 742 (2d Cir. 1990), cert. denied , 498 U.S. 108 4 (1991). Furthermore, “[i]t is the prosecutor’s prerogative to offer a ‘package deal’ or no deal at all.” Nguyen v. Un ited 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 defendan t pleaded guilty is merely one factor to be considered in determining whethe r defendant’s guilty pleas were voluntary. See Weisberg , 29 F.3d at 1279. A p lea agreement containing such a condition is proper so long as th e government acts in good faith based upon probable cause to file charge s 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. den ied , 513 U.S. 954 (1994). There is nothing in the record t o sug gest that the government did not act in good faith in obtainin g defen dant’s guilty pleas, and, in fact, it appears that he entered th e guiltypleas not as an act of self-sacrifice for his brother, but rather
as an attempt to avoid the harsher death sentence himself. See Unite d States v. Carr , 80 F.3d 413, 417 (10th Cir. 1996). Therefore, we hold tha t the district court did not err in denying defendant’s motion to withdraw his guilty pleas.

### -8- III. Conclusion
Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

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