1

Defendant filed a document entitled “Notice of Intention to Withdraw Plea of Guilty.” The court

treats this document as a motion to withdraw plea of guilty. 

Memorandum Opinion and Order - Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA §

§

v. § Criminal Action No. 3:03-CR-370-L (1)

§

JAMES LEE McELHANEY §

MEMORANDUM OPINION AND ORDER

Before the court is Defendant’s Notice of Intention to Withdraw Plea of Guilty, filed August

17, 2005.1

 Upon careful consideration of the motion, response, reply, the hearing, and the applicable

law, the court denies Defendant’s Notice of Intention to Withdraw Plea of Guilty. 

I. Factual and Procedural Background

On October 22, 2003, a grand jury returned a fifteen-count indictment charging Defendant

James Lee McElhaney (“Defendant” or “McElhaney”) and William Whisenant with mail fraud, wire

fraud, money laundering, and illegal money transactions. McElhaney was the Vice President of

Acquisition and Development of Triad Hospitals, Inc (“Triad”). On November 3, 2003, McElhaney

was arraigned and entered a plea of not guilty on all fifteen counts. A fifteen-count superseding

indictment was returned on January 21, 2004. On August 19, 2004, McElhaney and the United

States of America (“Government”) executed a plea agreement pursuant to Fed. R. Crim. P.

11(c)(1)(A) whereby McElhaney agreed to plead guilty to Count 5 of the superseding indictment

upon the condition that he and his wife would not be prosecuted for filing false tax returns. That

same day, the parties executed a factual resume, stipulating to the following facts: 

 

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Memorandum Opinion and Order - Page 2

From May 1998 through January 2002, defendant James L. McElhaney, who was

the Vice President of Acquisition and Development of [Triad], engaged in a scheme

to defraud Triad by inserting fictitious fees and costs in [a] real estate transaction

which benefited him personally.

During late 1999 and early 2000, Triad was seeking to purchase a parcel of land

in Sherman, Texas, on which Triad could buil[d] a medical facility. An agreement

was reached with an individual to purchase approximately 47 acres of undeveloped

land in Sherman, Texas, for approximately $1.2 million. Defendant McElhaney and

co-defendant William D. Whisenant devised a plan to defraud Triad by structuring

the purchase and acquisition through a “landflip” involving a “strawman”

intermediary whereby they fraudulently added approximately $750,000 into the cost

of the property of which they paid $50,000 to the “strawman” and divided the rest

between themselves. 

On July 27, 2000, McElhaney caused Triad to wire [transfer] $1,957,070.30,

from its account at Wachovia Bank, in Charlotte, North Carolina, to an account of

First Fidelity Title at Bank of Texas, N.A., Dallas, Texas, to fund and close the

Sherman Hospital land acquisition, which included the approximately $750,000 that

McElhaney and Whisenant had fraudulently inserted into the price of the property.

Factual Resume at 1-2. 

On September 2, 2004, McElhaney was rearraigned before a United States magistrate judge.

The magistrate judge informed McElhaney that he was under oath and could be charged with perjury

for answering a question falsely. McElhaney was instructed that, should he decide to plead guilty,

his plea cannot be induced by any threat or coercion, but must be purely voluntary and made only

because “you are guilty and for no other reason.” Transcript of Rearraignment at 8. Upon receiving

these instructions, McElhaney pleaded guilty to Count 5 of the superseding indictment pursuant to

the written plea agreement and in the presence of his private counsel, Mr. Jay Ethington and Mr.

Michael Gibson. The magistrate judge recommended that the court accept his guilty plea and that

he be sentenced accordingly. Following rearraignment, McElhaney and his attorneys signed a notice

regarding entry of guilty plea. The magistrate judge then issued a Report and Recommendation

 

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2

For reasons stated on record in open court at the hearing regarding Defendant’s Motion to Dismiss Indictment

and Motion to Withdraw Plea of Guilty held on September 26, 2005, the court denied Defendant’s Motion to Dismiss

Indictment. See Tr. of Mot. to Dismiss Indictment and Mot. to Withdraw Plea of Guilty Hr’g, 3:03-CR-370-L (1) at 39-

40. On these same grounds, the court granted the Motion to Quash Subpoenas filed by Donald P. Fay and Kevin

McGinnis, which the Government joined. To memorialize, the court’s findings at the hearing are incorporated by

reference as if repeated herein verbatim. 

Memorandum Opinion and Order - Page 3

Concerning Plea of Guilty, notifying that he had 10 days to file written objections pursuant to 28

U.S.C. § 636(b)(1)(B). McElhaney did not object. 

On September 30, 2004, the court issued its Order Accepting Report and Recommendation

of the United States Magistrate Judge Concerning Plea of Guilty. After the court granted three

sentencing extensions, McElhaney filed his Motion and Brief to Dismiss Indictment on July 6, 2005,

nine months after pleading guilty.2 Six weeks later, on August 17, 2005, he filed his Notice of

Intention to Withdraw Plea of Guilty. After “careful reconsideration,” McElhaney now asserts his

innocence to Count 5 of the superseding indictment and requests the court to withdraw his plea of

guilty and place the case on the trial docket. Def.’s Notice of Intention to Withdraw Plea of Guilty

at 2. He contends that, because he was a licensed real estate broker representing Triad at the time

he committed the conduct forming the basis of Count 5, such conduct was authorized by 22 Tex.

Admin. Code § 535.148, a Texas Real Estate Commission rule titled “Receiving an Undisclosed

Commission of Rebate.” The relevant portion of the rule is set forth below:

(a) A licensee may not receive a commission, rebate, or fee in a transaction from a

person other than the person the licensee represents without first disclosing to the

licensee’s client that the licensee intends to receive the commission, rebate, or

fee, and obtaining the consent of the licensee’s client. This subsection does not

apply to referral fees paid by one licensed real estate broker or salesperson to

another licensed broker or salesperson. 

22 Tex. Admin. Code § 535.148(a) (2005) (emphasis added). McElhaney maintains that, in spite

of his guilty plea, he has always believed that he did not violate a federal criminal statute.

 

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3

When the court denied McElhaney’s Motion to Dismiss, it stated its reasons for rejecting his contention that

Count 5 should be dismissed because § 535.148 permitted him to accept undisclosed referral fees from other licensed

brokers. See Hr’g Tr. at 39-40. The court now rejects McElhaney’s argument that he performed no illegal act by

committing the conduct underlying Count 5, to which he pleaded guilty. The conduct forming the basis of Count 5

involves obtaining money by means of a fraudulent transaction; such conduct clearly surpasses the mere receipt of

undisclosed referral fees. See Superseding Indictment at 12. 

Memorandum Opinion and Order - Page 4

In his Notice of Intention to Withdraw Plea of Guilty, McElhaney makes numerous

contentions purporting to show a “fair and just reason” for withdrawal pursuant to United States v.

Carr, 740 F.2d 339 (5th Cir. 1984), cert. denied, 471 U.S. 1004 (1985). The Government filed its

Response to Defendant’s Notice of Intention to Withdraw Plea of Guilty on August 29, 2005. It

contends that McElhaney cannot demonstrate a fair and just reason for withdrawing his guilty plea,

arguing that all 7 factors set forth in Carr cut against him. It further asserts that McElhaney offers

mere conclusory allegations of innocence and therefore cannot provide the evidence necessary for

the court to grant a withdrawal. 

On September 26, 2005, the court held a hearing regarding McElhaney’s Motion to Dismiss

Indictment and Notice of Intention to Withdraw Plea of Guilty (“hearing”). At the hearing, the court

denied the Motion to Dismiss Indictment.3 

II. Withdrawal of Plea of Guilty Standard

Prior to sentencing, the court may use its discretion to grant a motion to withdraw a guilty

plea if the defendant presents a “fair and just reason for requesting the withdrawal.” Fed. R. Crim.

P. 11(d)(2)(B); United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001). There is no

absolute right to withdraw a guilty plea, and the defendant bears the burden of establishing a fair and

just reason for withdraw. United States v. Brewster, 137 F.3d 853, 857-58 (5th Cir. 1998). When

ruling on the motion, the court should consider whether: (1) the defendant asserted his innocence;

(2) withdrawal would prejudice the government; (3) the defendant delayed in filing the withdrawal

 

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Memorandum Opinion and Order - Page 5

motion; (4) withdrawal would inconvenience the court; (5) adequate assistance of counsel was

available; (6) the plea was knowing and voluntary; and (7) withdrawal would waste judicial

resources. United States v. Mendoza-Mata, 322 F.3d 829, 834 (5th Cir. 2003) (citing Carr, 740 F.2d

at 343-44). 

The court need not make a finding as to each Carr factor, as it makes its determination based

on the totality of the circumstances. United States v. Powell, 354 F.3d 362, 370-71 (5th Cir. 2003);

Brewster, 137 F.3d at 858. Moreover, a defendant’s assertion of conclusory allegations do not

warrant withdrawal of a plea of guilty, at least where such allegations are clearly refuted by the

record. United States v. Bounds, 943 F.2d 541, 543 (5th Cir. 1991). 

III. Analysis

The court has considered all seven Carr factors and determines, based on a totality of the

circumstances, that McElhaney fails to show a fair and just reason why his guilty plea should be

withdrawn. Although the court need not make specific findings in denying McElhaney’s motion,

it addresses each factor below. 

A. Knowing and Voluntary

McElhaney contends that the guilty plea he entered at rearraignment was not knowing and

voluntary. For a plea to be knowing and voluntary, a “defendant must be advised of and understand

the consequences of the [guilty] plea.” United States v. Gaitan, 954 F.2d 1005, 1011 (5th Cir. 1992)

(citing United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990)). The consequences of a guilty

plea, with respect to sentencing, “mean only that the defendant must know the maximum prison term

and fine for the offense charged.” United States v. Rivera, 898 F.2d 442, 447 (5th Cir. 1990)

(citations and quotations omitted). 

 

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4

Five years is the correct maximum term of imprisonment, since the conduct underlying Count 5 of the

superseding indictment occurred on or about July 27, 2000. Such conduct preceded the 2002 amendment to 18 U.S.C.

§ 1343, which increased the maximum term of imprisonment for an ordinary violation from 5 years to 20 years. See 18

U.S.C. § 1343. In addition, $250,000, or twice any pecuniary gain to the defendant or loss to the victims, is the correct

maximum fine. See 18 U.S.C. § 3571(b), (d). 

Memorandum Opinion and Order - Page 6

The court determines that McElhaney was aware of the consequences of his plea. The plea

agreement he signed correctly states the maximum statutory term of imprisonment and fine.4 See

Plea Agreement at 2. Prior to accepting a plea, the magistrate judge informed McElhaney about

these statutory maximums. Thereafter, McElhaney acknowledged that he realized the possible

punishment entailed if he entered a plea of guilty. He also stated that he understood the essential

elements of wire fraud in violation of 18 U.S.C. § 1343, and then admitted to committing each. In

addition, he averred that the facts set forth in the factual resume were true. Finally, McElhaney

confirmed his understanding that, by pleading guilty, he would be adjudged guilty of Count 5 and

waive his right to appeal or otherwise challenge his sentence. McElhaney made the above

concessions in open court, and each carries a strong presumption of verity. See Blackledge v.

Allison, 431 U.S. 63, 74 (1977); Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001).

McElhaney also asserts that he pleaded under duress, stating that the Government threatened

to prosecute his wife for unrelated tax issues if he did not plead guilty. McElhaney testified before

the magistrate judge, however, that his plea was not the product of threats or coercion. He now

avers that he agreed to plead guilty “to insure his family’s safety,” and, as a consequence, signed a

factual resume that was “untrue” and admitted to the magistrate judge that everything the

Government said was true even though “he knew it was not.” Def.’s Notice of Intention to

Withdraw Plea of Guilty at 4-5. The Government denies that it improperly coerced McElhaney’s

plea, contending that it made only good faith representations supported by probable cause. It also

 

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5

See also Nuckols, 606 F.2d at 569 (“It is generally within a prosecutor’s discretion merely to inform an

accused that an implicated third person will be brought to the book if the accused does not plead guilty . . . if an accused

elects to sacrifice himself for such motives, that is his choice.”) (internal quotations omitted). 

6

The court determined that, by making selective disclosures in his briefing and testimony, McElhaney waived

the attorney-client privilege as to communications between him and Gibson underlying the subject matter found on the

second and third pages of the Affidavit of James Lee McElhaney, attached to the Notice of Intention to Withdraw Plea

of Guilty. See Hr’g Tr. at 112-14; see also Nguyen v. Excel Corp., 197 F.3d 200, 206 n.19 (5th Cir. 1999); United States

v. Woodall, 438 F.2d 1317, 1324 (5th Cir. 1971) (holding “a client’s offer of his own or his attorney’s testimony as to

a specific communication constitutes a waiver as to all other communications on the same matter . . . .”). The court also

observed the testimony and demeanor of McElhaney and Gibson. In evaluating their testimony and demeanor, the court

Memorandum Opinion and Order - Page 7

contends that, even if it indeed threatened to prosecute McElhaney’s wife, such threat does not affect

the voluntariness of his guilty plea. 

To withdraw his guilty plea based on involuntariness, McElhaney must show that his plea

was “so much the product of . . . misunderstanding, duress, or misrepresentation by others as to

make the guilty plea a constitutionally inadequate basis for imprisonment.” Blackledge, 431 U.S.

at 75; United States v. Diaz, 733 F.2d 371, 374 (5th Cir. 1984). Guilty pleas made in consideration

of lenient treatment for a third person pose a greater danger of coercion than purely bilateral plea

bargaining. United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979). A threat by the Government

to prosecute a third party family member, however, is not itself legally impermissible. Diaz, 733

F.2d at 374.5

 Prosecutors who use this technique must observe a high standard of good faith.

Nuckols, 606 F.2d at 569. Such good faith is established when the prosecutor has probable cause

to bring charges. Id.; Diaz, 733 F.2d at 374. 

At the hearing, McElhaney testified that his former attorney, Mike Gibson (“Gibson”),

informed him that the Government would prosecute him and his wife for tax matters unless he

agreed to plead guilty to Count 5. Gibson then testified, pursuant to the court’s oral order, stating

that the Government disclosed that it had opened a separate tax fraud investigation against

McElhaney, but at no time threatened to prosecute McElhaney’s wife if he did not plead guilty.6

 

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finds Gibson’s testimony to be more credible than McElhaney’s. 

Memorandum Opinion and Order - Page 8

Gibson explained that, upon learning this information, he demanded that a provision be included in

any plea agreement exonerating McElhaney and his wife, a jointly filing spouse, from tax fraud

prosecution. The resulting plea agreement states the following: 

9. Government’s agreement: The government will not bring any additional

charges against defendant based upon the conduct underlying and related to

defendant’s plea of guilty. The government will dismiss, at sentencing, the

remaining counts in the pending indictment. This will include possible prosecution

of him, or his jointly filing spouse, for filing false tax returns with the Internal

Revenue Service if defendant complies with ¶ 8, above. 

Plea Agreement ¶ 9. The court notes that this condition does not solely benefit McElhaney’s wife;

it also benefits McElhaney. Likewise, Gibson testified that the type of plea negotiation the parties

conducted “is done a lot.” Hr’g Tr. at 138. In addition, it is undisputed that the Government made

no direct threat and also had no representatives present when McElhaney signed the agreement.

Clearly, this type of plea bargaining does not render a guilty plea involuntary. See Diaz, 733 F.2d

at 375. Indeed, the record indicates that McElhaney pleaded guilty in order to obtain the exact

benefit of the bargain he received. See id. 

Moreover, even if the court were to assume that the Government actually threatened to

prosecute McElhaney’s wife, the record is devoid of evidence demonstrating that the Government

had a bad faith basis for making such threat. In fact, the record suggests the opposite. An Internal

Revenue Service agent who was assigned to the investigation testified that evidence indicated tax

fraud may have taken place concerning the tax returns for McElhaney and his wife in the years 1998

through 2002. Likewise, Leonard Senerote (“Senerote”), the former prosecutor on the case,

described the factual basis for the tax fraud investigation. Gibson also testified that he believed the

factual assertions underlying the Government’s disclosure were true. In light of such testimony, the

 

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7

The court also finds it hard to fathom that McElhaney entered a guilty plea to protect his wife and family, but

now seeks to withdraw his guilty plea, which would have the effect of re-exposing his wife to potential criminal liability.

Memorandum Opinion and Order - Page 9

court determines that the Government had a good faith basis for opening its tax fraud investigation

and, moreover, acted well within its discretion by making its disclosure. See Nuckols, 606 F.2d at

569. Accordingly, to whatever extent McElhaney may have pleaded guilty solely to extricate his

wife from possible tax fraud prosecution, his plea is still voluntary.7

 See United States v. Clark, 917

F.2d 177, 180 (5th Cir. 1990); Diaz, 733 F.2d at 374. In any event, McElhaney fails to carry his

heavy burden of showing his plea was involuntary. 

B. Delay and Assertion of Innocence

McElhaney asserts that he did not delay in filing his motion to withdraw, contending his reevaluation process required many months to accomplish. The Government counters, insisting that

McElhaney’s filing was untimely, citing the eleven months that passed between his plea of guilty

on September 2, 2004, and his Notice of Intention to Withdraw Plea of Guilty, filed August 17,

2005. The court agrees with the Government that McElhaney’s motion to withdraw is untimely.

McElhaney asserted his innocence for the first time in his Motion to Dismiss Indictment,

filed July 6, 2005, nine months after pleading guilty. He then waited an additional six weeks before

filing his Notice of Intention to Withdraw Plea of Guilty. Both motions were filed after the United

States Probation Office filed its Presentence Report (“PSR”) on November 22, 2004. At the hearing,

the court learned that McElhaney first discussed his desire to withdraw his guilty plea with his

attorneys on November 4, 2004, some two months after pleading guilty. Further, it learned that the

first effort to draft a motion to withdraw began in early March, 2005, six months after the guilty

plea. 

 

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8

See also United States v. Hyde, 520 U.S. 670, 677 (1997) (stating “[w]ere withdrawal automatic in every case

where the defendant decided to alter his tactics . . . the guilty plea would become a mere gesture, a temporary and

meaningless formality at the defendant’s whim”) (internal citations omitted). 

Memorandum Opinion and Order - Page 10

The “rationale for allowing a defendant to withdraw a guilty plea is to permit him to undo

a plea that was unknowingly made at the time it was entered.” Carr, 740 F.3d at 345 (citing Everett

v. United States, 336 F.2d 979, 984 (D.C. Cir. 1964)). The purpose is not to enable a defendant “to

make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he

believes that he made a bad choice in pleading guilty.” Id. (emphasis added). The court in Carr

found defendant’s motion to withdraw to be “not promptly filed” where defendant filed the motion

22 days after entering his guilty plea. See Carr, 740 F.2d at 345. Moreover, the court in Brewster

denied defendant’s motion to withdraw his plea of guilty where defendant sought to withdraw three

months after his plea. See Brewster, 137 F.3d at 858. McElhaney waited eleven months. He is

prohibited from filing a motion to withdraw as a tactical decision to quell any sensation of buyer’s

remorse. See Carr, 740 F.3d at 345.8

 

C. Prejudice to the Government

McElhaney also contends that withdrawal of the plea will not prejudice the Government nor

place it in a position for which it is unprepared. The Government counters, asserting that

McElhaney filed his motion to withdraw immediately after learning that co-indictee William

Whisenant, who was likely to testify against him had trial been necessary, had suffered a severe

heart attack and remained unconscious. Accordingly, the Government contends it would suffer

substantial prejudice were McElhaney allowed to withdraw his guilty, since he learned that, had he

pleaded not-guilty, a key witness would likely be unavailable to testify against him at trial. The

court agrees. 

 

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9

Whisenant remained comatose as of September 26, 2005, the date of the hearing. On October 31, 2005, the

court dismissed the indictment returned against Whisenant upon receiving confirmation that he expired the week of

October 17, 2005. 

Memorandum Opinion and Order - Page 11

At the hearing, the court learned that Whisenant suffered a massive heart attack on August

6, 2005 and became comatose.9 McElhaney testified that he visited the hospital and learned of

Whisenant’s condition “a matter of days” before filing his Notice of Intention to Withdraw Plea of

Guilty. Hr’g Tr. at 97. It is undisputed that Whisenant pleaded guilty to Count 5 on January 26,

2004, and that part of his plea agreement required him to cooperate with the Government in its case

against McElhaney. The court will not grant McElhaney a withdrawal, seeing that he waited eleven

months to file a motion, and such motion came only days after he discovered Whisenant’s condition.

Accordingly, the court finds that the Government would suffer prejudice were McElhaney allowed

to withdraw his guilty plea.

D. Inconvenience to the Court and Waste of Judicial Resources

McElhaney contends that withdrawal will not inconvenience the court, and that any

inconvenience the court faces is minimal and outweighed by Defendant’s constitutional right to trial.

Id. The court disagrees. McElhaney has no absolute right to withdraw his guilty plea. See

Brewster, 137 F.3d at 857. The court has already consumed scarce judicial resources in deciding

McElhaney’s Motion to Dismiss Indictment as well as this motion. Is it axiomatic that additional

time would be expended if the court were to allow McElhaney to withdraw his guilty plea and

proceed to trial. McElhaney has avoided sentencing for fourteen months; this needs to come to an

end. The court does not take this factor lightly, as it will spend whatever time is necessary to further

the ends of justice; however, after a thorough and exhaustive review of the record and applicable

authority, the court is convinced that this motion borders on being frivolous. Accordingly, the court

 

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Memorandum Opinion and Order - Page 12

should not expend further time beyond what is necessary to conduct a sentencing hearing and

matters associated with such sentencing. 

E. Availability of Adequate Assistance of Counsel

McElhaney finally contends that his reliance upon the advice provided by his counsel

resulted in a detrimental misunderstanding of plea proceedings and ramifications. Specifically, he

asserts that Gibson and Mr. Ethington (“Ethington”) did not have a full comprehension of real estate

principles and regulations, which resulted in an inadequate evaluation of law and facts.

McElhaney’s contention is contradicted by the record, which indicates that his counsel was

highly active in protecting his rights. See Lampazianie, 251 F.3d at 525. Gibson testified that he

informed McElhaney that an argument contending the money at issue was legally acquired through

undisclosed referral fees had little or no chance of prevailing in light of the breadth of Count 5 and

other charges. Both Messrs. Gibson and Ethington represented McElhaney during plea negotiations,

and they successfully added to the plea agreement a condition exonerating McElhaney and his

jointly filing spouse from tax fraud prosecution. At his rearraignment, McElhaney acknowledged

that he was fully satisfied with the advice and representation his counsel provided. Even after

McElhaney’s guilty plea, Ethington asserts the same arguments that McElhaney requests be made.

The court is profoundly aware of the reputation, skill, and competence of Messrs. Gibson and

Ethington. Put simply, McElhaney hired two of the finest criminal defense attorneys in the Northern

District of Texas. These attorneys, through vigorous advocacy, enabled McElhaney to receive the

high quality representation he desired. 

IV. Conclusion

 

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Memorandum Opinion and Order - Page 13

For the reasons stated herein, the court determines that the totality of the circumstances do

not establish a fair and just reason for allowing McElhaney to withdraw his guilty plea.

Accordingly, the court denies McElhaney’s Notice of Intention to Withdraw Plea of Guilty. For the

reasons stated at the hearing, and to memorialize the actions taken, the court denies McElhaney’s

Motion to Dismiss Indictment and grants the Motion to Quash Subpoenas. A sentencing scheduling

order will issue by separate document. 

It is so ordered this 17th day of November, 2005.

_________________________________

Sam A. Lindsay

United States District Judge

 

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