* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 17 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. ERIC G. MONCHECOURT, Defendant-Appellant. No. 96-1510 (D.C. No. 92-CR-334-B) (D. Colo.)

ORDER AND JUDGMENT * Charlotte J. Mapes (Henry L. Solano, United States Attorney, with her on the brief), Assistant United States Attorney, Denver, C olorado, for Plaintiff-Appellee . Larry R. Keller (Charles R. Torres, Denver, Colorad o, with him on the briefs), of Keller & Lundgren, Salt Lake City, Utah, for Defend ant-Appellant.
Before BRORBY, EBEL and KELLY , Circuit Judges.
Eric G. Monchecourt appeals from the district court 's denial of his Rule 32(e) motion to withdraw his guilty plea. See Federal Rules of Criminal1 Mr. Monchecourt's plea agreement predates the fed eral sentencing

guidelines regime.

2Mr. Monchecourt was an owner, director and execut ive vice-president in charge of sales and training for Power Securities C orporation. The government alleged that brokers at Power Securities were engag ed in an unlawful scheme to use false or misleading statements and omissions to induce customers to purchase or sell penny stocks, which the defendants secretlycontrolled and for which brokers received kickbacks. See United States v. Marchese , 46 F.3d 1020, 1021- 22 (10th Cir.), cert. denied, 515 U.S. 1105 (1995).
-2- Procedure. Mr. Monchecourt also alleges the distri ct court erred by failing to recuse itself from ruling on his motion to withdrawhis guilty plea. We have jurisdiction under Fed. R. App. P. 4(b). 1 We affirm.
Background On October 15, 1992, Mr. Monchecourt was charged wi th laundering of monetary instruments, and aiding and abetting, in v iolation of 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2. On October 30, 1992, Mr . Monchecourt entered into a plea agreement with the government. Under the term s of this agreement, Mr. Monchecourt agreed to provide truthful and candid t estimony, and all relevant documents in his control pertaining to the governme nt's investigation of Power Securities Corporation. 2 In exchange, the government agreed to a sentence of no more than twelve months imprisonment, a fine of no more than $50,000, and no restitution. On October 30, 1992, Mr. Monchecourt entered his plea in a change3 Messrs. Marchese and Sandberg were identified as owners and directors

of Power Securities, Mr. Nemelka was a stock promot er, and Ms. Sorenson was his assistant. Marchese , 46 F.3d at 1021.
-3- of plea hearing during which District Judge Lewis T . Babcock administered a Fed. R. Crim. P. 11 protocol. Sentencing was postp oned until after the trial of the Power Securities principals.
As agreed, Mr. Monchecourt testified at the trial o f Richard T. Marchese, David R. Nemelka, Orville Leroy Sandberg, and LauraLee Sorenson. 3 On April 15, 1996, at the conclusion of the bench trial befo re Judge Babcock, the district court found Messrs. Marchese, Nemelka, and Sandberg not guilty, already having dismissed Ms. Sorenson from the case on a Fed. R. C rim. P. 29 motion. As part of its Findings of Fact and Conclusions of Law, the district court specifically rejected Mr. Monchecourt's testimony, finding it in credible.
Subsequently, on June 27, 1996, Mr. Monchecourt fil ed a motion to withdraw his guilty plea, a motion the government o pposed. After a hearing on the matter, Judge Babcock denied Mr. Monchecourt's motion. Notwithstanding the government's recommendation that Mr. Monchecourt receive a non-jail sentence and no fine, Judge Babcock sentenced him t o twelve months-4-

imprisonment and imposed a $10,000 fine.

Discussion Mr. Monchecourt contends the district court erred w hen it denied his motion to withdraw his guilty plea. Fed. R. Crim. P. 32(e) provides that if a motion to withdraw a plea is made before sentencing , as it was here, a district court "may permit the plea to be withdrawn if the d efendant shows any fair and just reason." We review the district court's denia l of Mr. Monchecourt's motion to withdraw his guilty plea for abuse of discretion
. United States v. Carr , 80 F.3d 413, 419 (10th Cir. 1996).

The burden is on Mr. Monchecourt to show a "fair an d just reason" for allowing withdrawal of his guilty plea. United States v. Gordon , 4 F.3d 1567, 1572 (10th Cir. 1993), cert. denied, 510 U.S. 1184 (1994). However, we have held motions to withdraw guilty pleas prior to sent encing are to be viewed with favor and freely allowed. Carr , 80 F.3d at 419-20 (citing multiple cases). In determining whether Mr. Monchecourt has met his bur den, we consider seven factors: "(1) whether the defendant has asserted h is innocence, (2) prejudice to the government, (3) delay in filing defendant's mot ion, (4) inconvenience to the court, (5) defendant's assistance of counsel, (6) w hether the plea is knowing and-5-

voluntary, and (7) waste of judicial resources." Gordon , 4 F.3d at 1572. This Court will not reverse unless Mr. Monchecourt can s how the district court acted "unjustly or unfairly." Id . at 1573.
In his Rule 32(e) motion to the district court, Mr. Monchecourt contended only that his guilty plea was not supported by an a dequate factual basis, and that he himself had violated the terms of the plea agree ment. On appeal, Mr. Monchecourt now raises four specific allegations re garding the plea agreement, and then asserts the district court abused its disc retion in denying his motion to withdraw his plea. He argues his plea was not volu ntary and knowing because it was induced by government misrepresentations and be cause it lacked an adequate factual basis. He further alleges his guilty plea to a charge of aiding and abetting cannot stand because the government failed to prove someone committed the underlying substantive offense. Finally, Mr. Monch ecourt contends the district court failed to inform him that he would be unable to withdraw his guilty plea. We will address these specific allegations and thenturn to the more general seven-factor analysis to determine whether the district court abused its discretion.
First, Mr. Monchecourt claims his due process right s were violated because his guilty plea was induced by government misrepres entations and, therefore, was-6-

not voluntary and knowing. In essence, Mr. Monchec ourt claims he pled guilty because the government "promised" it could prove ce rtain facts, and the government "breached" the plea agreement when it fa iled to prove those facts, i.e. , when his alleged co-conspirators were acquitted.
Plea agreements are governed by contract principles
. United States v. Massey , 997 F.2d 823, 824 (10th Cir. 1993). Whether the government has breached a plea agreement is a question of law we r eview de novo
. Allen v. Hadden , 57 F.3d 1529, 1534 (10th Cir.), cert. denied, 116 S. Ct. 544 (1995). The United States Supreme Court has made it clear that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello v. New York, 404 U.S. 257, 262 (1971).
Having thoroughly reviewed the record, particularlythe Rule 11 hearing and the terms of the plea agreement, we are satisfi ed the government did not induce Mr. Monchecourt's guilty plea through the us e of misrepresentations or false promises. The government promised Mr. Monche court a sentencing cap; the government and the district court honored that prom ise. The government did not "promise" Mr. Monchecourt his alleged co-conspirato rs would be convicted. Nor-7-

does the acquittal of those individuals establish that the government could not have proven its case against Mr. Monchecourt. Mr. Monchecourt's argument is simply wrongheaded.
Second, Mr. Monchecourt argues his rights to due pr ocess have been violated because his guilty plea lacked an adequate factual basis and was, therefore, not knowing and voluntary. The gist of Mr. Monchecourt's argument is that the district court's Findings of Fact and Conc lusions of Law in the case of United States v. Marchese , No. 93-CR-8 (D. Colo. Apr. 15, 1996), so undermin e certain statements in the plea agreement as to rend er the factual basis of his plea agreement inadequate. Fed. R. Crim. P. 11(f) requi res that "[n]otwithstanding the acceptance of a plea of guilty, the court should no t enter a judgment upon such plea without making such inquiry as shall satisfy i t that there is a factual basis for the plea." The Advisory Committee Notes indicate t he factual basis for a plea may be developed by inquiry "of the defendant, of t he attorneys for the government and the defense, of the presentence repo rt when one is available, or by whatever means is appropriate in a specific case ." Fed. R. Crim. P. 11 Advisory Committee Notes (1974 Amendment note to su bdivision (f)). A district court's finding of a factual basis for a guilty ple a is reviewed under the clearly erroneous standard. United States v. Graves , 106 F.3d 342, 343 (10th Cir. 1997).4The Defendant's Factual Statement provides: The defendant, ERIC G. MONCHECOURT, admits that he knowingly caused a transfer of $25,935.00 from Davi d Nemelka's control to the account of Ven Roc Capital Corporati on on October 14, 1987. The defendant also caused a transfer of $25,000 from Ven Roc Capital Corporation's account to the account of Power Securities Corporation on October 27, 1987. The defendant further admits that he knew that the funds which he caused to be transf erred represented the proceeds of specified unlawful activity, that i s, securities fraud and mail fraud. The defendant knew that the transf er of the funds was designed to conceal and disguise the source andthe ownership of the proceeds of the specified unlawful activity.
-8- The district court scrupulously administered a Fed. R. Crim. P. 11 protocol at Mr. Monchecourt's October 30, 1992 change of ple a hearing. At the Rule 11 hearing, Mr. Monchecourt ratified under oath the go vernment's statement of the case and the Defendant's Factual Statement, in whic h he allocuted to the essential elements of money laundering. 4 See 18 U.S.C. § 1956(a)(1)(B)(i).
During the Rule 32(e) motion hearing, the district court carefully considered the impact of its findings in the bench trial of Mr. Monchecourt's alleged co-conspirators on the factual basis for Mr . Monchecourt's guilty plea. The district court concluded that while the evidenc e introduced against Mr. Monchecourt's co-conspirators did not meet the beyo nd a reasonable doubt standard, it was "substantial" and did meet the pre ponderance standard. The-9-

district court further concluded the government's e vidence was sufficient to carry the case to the trier of fact, and enhanced rather than eroded the factual basis of Mr. Monchecourt's plea. Moreover, the district cou rt found Mr. Monchecourt's self-incriminating testimony at the bench trial als o enhanced the factual basis for the guilty plea. The district court satisfied itse lf that an adequate factual basis for Mr. Monchecourt's guilty plea existed at the time t he plea was taken and at the time of his Rule 32(e) motion. In view of the reco rd before us, we cannot say the district court's finding of an adequate factual bas is for the guilty plea is clearly erroneous. Mr. Monchecourt's claim that his plea w as not knowing and voluntary must fail.
Third, in an argument not presented to the districtcourt, Mr. Monchecourt asserts his guilty plea was to a charge of aiding a nd abetting and cannot stand because the government failed to prove someone comm itted the underlying substantive offense. Mr. Monchecourt allocuted to the facts of and pled guilty to the charge of money laundering under 18 U.S.C. § 19 56(a)(1)(B)(i) as well as aiding and abetting under 18 U.S.C. § 2. In additi on to the explicit terms of the plea agreement, the district court made it quite cl ear to Mr. Monchecourt that the primary charge was money laundering. This argumentis unavailing.5 Fed. R. Crim. P. 11(e)(2) provides in relevant pa rt: "If the agreement is

of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendatio n or request [for a particular sentence] the defendant nevertheless has no right t o withdraw the plea."
-10- Finally, in yet another new argument on appeal, Mr. Monchecourt contends the district court erred when it failed to inform h im he would be unable to withdraw his guilty plea if the sentencing court di d not follow the government's sentencing recommendation in all particulars. Notw ithstanding the fact the plea agreement is designated a Fed. R. Crim. P. 11(e)(1) (C) agreement, Mr. Monchecourt would have us believe the agreement is actually a "hybrid" agreement entitling him to the notice provisions af forded under Rule 11(e)(1)(B). 5
While this court can appreciate his distress at bei ng sentenced to twelve months imprisonment and a $10,000 fine after receiv ing a no-jail, no-fine sentencing recommendation from the government, Mr. Monchecourt provides us with no basis for concluding his was a hybrid plea agreement. By its terms, Mr. Monchecourt's plea agreement was entered pursuant t o Fed. R. Crim. P. 11(e)(1)(C). We also note that in taking his plea, the district court was careful to ensure Mr. Monchecourt understood both the terms of the agreement and the finality of his plea. The district court specifica lly referred to the sentencing cap and informed Mr. Monchecourt the sentence to be imp osed from the cap-11-

downward was the court's decision alone. The distr ict court specifically inquired into whether Mr. Monchecourt and his counsel had th oroughly reviewed the possible penalties and consequences of a guilty ple a, and was assured they had. Mr. Monchecourt bargained only for a sentencing cap and he received the benefit of that bargain. The district court had no furtherobligation to inform Mr. Monchecourt that he would be unable to freely withd raw his plea.
Having addressed Mr. Monchecourt's specific allegat ions, we now consider generally whether he has shown there is a fair and just reason for allowing withdrawal of his guilty plea under our seven-facto r analysis. See Gordon , 4 F.3d at 1572. Having seen his colleagues at Power Secur ities acquitted, Mr. Monchecourt now asserts his innocence, so the firstfactor weighs in his favor, notwithstanding his earlier inculpatory admissions. The second factor, prejudice to the government if he is allowed to withdraw his plea, weighs heavily against Mr. Monchecourt. The district court expressed conc ern as to whether the statute of limitations had run on much of Mr. Monchecourt's chargeable conduct. His alleged co-conspirators have been acquitted so the government can provide no incentive to secure their testimony against Mr. Mon checourt. Finally, the government would have to expend considerable resour ces to try Mr. Monchecourt in a trial the district court predicted would be lo ng and complex. While some-12-

degree of prejudice to the government is inevitable from a plea withdrawal, here it is significant. See Carr , 80 F.3d at 420.
The third factor, delay in filing the plea withdraw al motion, is a tossup. As the district court noted, the unique and protracted circumstances of the underlying case made considerable delay inevitable. However, Mr. Monchecourt did wait until two months after his colleagues at Power Secu rities were acquitted before filing his withdrawal motion, which could suggest m anipulation. See, e.g.,United States v. Vidakovich , 911 F.2d 435, 439-40 (10th Cir. 1990), cert. denied, 498 U.S. 1089 (1991); Carr , 80 F.3d at 420. The fourth factor, inconvenience to the court, while not particularly compelling, weighs ag ainst Mr. Monchecourt. See Carr , 80 F.3d at 420-21.
The fifth factor, defendant's assistance of counsel , does not weigh in favor of Mr. Monchecourt. Mr. Monchecourt has never clai med ineffective assistance of counsel. To the contrary, he expressed satisfac tion with his counsel during the Rule 11 hearing and retained them on appeal. We have already concluded the plea was voluntary and knowing, so the sixth factorcannot weigh in Mr. Monchecourt's favor. To the extent waste of judici al resources should be considered, similar to inconvenience to the court, it weighs against Mr.-13-

Monchecourt. See Carr , 80 F.3d at 421. Taken together, the seven factor s weigh against Mr. Monchecourt. He has failed to show the district court acted unjustly or unfairly in denying his motion to withdraw his g uilty plea. Consequently, under the circumstances of this case, we find no ab use of discretion in the district court's denial of Mr. Monchecourt's motion to withd raw his guilty plea.
However, Mr. Monchecourt also alleges the district court erred by failing to recuse itself from ruling on his Rule 32(e) motion because Judge Babcock's impartiality was in question and he had a personal bias against Mr. Monchecourt. See 28 U.S.C. § 455 (discussing circumstances requirin g disqualification of judges). Since Mr. Monchecourt did not move for re cusal, we review under a plain error standard. United States v. Kimball , 73 F.3d 269, 273 (10th Cir. 1995). We use an objective test, asking "'whether a reason able person, knowing all the relevant facts, would harbor doubts about the judge 's impartiality.'" United States v. Burger , 964 F.2d 1065, 1070 (10th Cir. 1992) (quoting Hinman v. Rogers , 831 F.2d 937, 939 (10th Cir. 1987)), cert. denied, 507 U.S. 1033 (1993).
In arguing for recusal, Mr. Monchecourt primarily r elies on Judge Babcock's credibility assessment of Mr. Monchecourt 's testimony in the Marchese bench trial, particularly focusing on the Judge's d escription of Mr. Monchecourt-14-

as a "crass liar." Each remark Mr. Monchecourt poi nts to was made in the course of ongoing judicial proceedings and did not rely onany "extrajudicial source." See Liteky v. United States , 510 U.S. 540, 549-51 (1994) (explicating extrajudicial source doctrine). Judicial opinions formed in the course of current or prior proceedings will not support a recusal mot ion "unless they display a deep-seated favoritism or antagonism that would mak e fair judgment impossible." Id. at 555. While unflattering to Mr. Monchecourt, J udge Babcock's remarks describing him as a liar do not display the "deep-s eated" antagonism that would render fair judgment impossible. Cf. United States v. Young , 45 F.3d 1405, 1416 (10th Cir.), cert. denied, 515 U.S. 1169 (1995) (concluding judge's determin ation that a defendant had not been candid was "no basis for disqualification").
Finally, Mr. Monchecourt contends Judge Babcock's d ecision to disregard the government's sentencing recommendation evidence s a clear inability to render fair judgment. When he entered his guilty plea, Mr . Monchecourt was informed the sentence to be imposed from the cap downward wa s the court's decision alone. The term of imprisonment imposed, twelve months, is within the cap and the $10,000 fine is well below the cap. Again, we find no evidence of disqualifying bias or prejudice. Thus, we are unable to conclude a reasonable person would doubt the impartiality of the district judge.-15-

We hold Mr. Monchecourt's guilty plea was voluntaryand knowing and the district court's denial of his plea withdrawal moti on was proper. We find no evidence the district court should have recused its elf from ruling on Mr. Monchecourt's motion. Therefore, the decision of t he district court is AFFIRMED , and we remand this case to the district court forsuch other proceedings as may be required.

Entered for the Court
WADE BRORBY United States Circuit Judge