*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions 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, Colorado, for Plaintiff-Appellee.

Larry R. Keller (Charles R. Torres, Denver, Colorado, with him on the briefs), of

Keller & Lundgren, Salt Lake City, Utah, for Defendant-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 Criminal
1

 Mr. Monchecourt's plea agreement predates the federal sentencing

guidelines regime.

2

 Mr. Monchecourt was an owner, director and executive vice-president in

charge of sales and training for Power Securities Corporation. The government

alleged that brokers at Power Securities were engaged in an unlawful scheme to

use false or misleading statements and omissions to induce customers to purchase

or sell penny stocks, which the defendants secretly controlled 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).

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Procedure. Mr. Monchecourt also alleges the district court erred by failing to

recuse itself from ruling on his motion to withdraw his guilty plea. We have

jurisdiction under Fed. R. App. P. 4(b).1 We affirm.

Background

On October 15, 1992, Mr. Monchecourt was charged with laundering of

monetary instruments, and aiding and abetting, in violation 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 terms of this agreement, Mr.

Monchecourt agreed to provide truthful and candid testimony, and all relevant

documents in his control pertaining to the government'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 change
3

 Messrs. Marchese and Sandberg were identified as owners and directors

of Power Securities, Mr. Nemelka was a stock promoter, and Ms. Sorenson was

his assistant. Marchese, 46 F.3d at 1021.

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of plea hearing during which District Judge Lewis T. Babcock administered a

Fed. R. Crim. P. 11 protocol. Sentencing was postponed until after the trial of the

Power Securities principals.

As agreed, Mr. Monchecourt testified at the trial of Richard T. Marchese,

David R. Nemelka, Orville Leroy Sandberg, and Laura Lee Sorenson.3

 On April

15, 1996, at the conclusion of the bench trial before 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. Crim. 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 incredible.

Subsequently, on June 27, 1996, Mr. Monchecourt filed a motion to

withdraw his guilty plea, a motion the government opposed. 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 to twelve months
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imprisonment and imposed a $10,000 fine.

Discussion

Mr. Monchecourt contends the district court erred when 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 defendant shows any fair and

just reason." We review the district court's denial 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 and 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 sentencing 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 burden, we consider seven

factors: "(1) whether the defendant has asserted his innocence, (2) prejudice to

the government, (3) delay in filing defendant's motion, (4) inconvenience to the

court, (5) defendant's assistance of counsel, (6) whether the plea is knowing and
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voluntary, and (7) waste of judicial resources." Gordon, 4 F.3d at 1572. This

Court will not reverse unless Mr. Monchecourt can show 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 adequate factual basis, and that

he himself had violated the terms of the plea agreement. On appeal, Mr.

Monchecourt now raises four specific allegations regarding the plea agreement,

and then asserts the district court abused its discretion in denying his motion to

withdraw his plea. He argues his plea was not voluntary and knowing because it

was induced by government misrepresentations and because 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. Monchecourt 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 then turn to the more general

seven-factor analysis to determine whether the district court abused its discretion.

First, Mr. Monchecourt claims his due process rights were violated because

his guilty plea was induced by government misrepresentations and, therefore, was
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not voluntary and knowing. In essence, Mr. Monchecourt claims he pled guilty

because the government "promised" it could prove certain facts, and the

government "breached" the plea agreement when it failed 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 review 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, particularly the Rule 11 hearing

and the terms of the plea agreement, we are satisfied the government did not

induce Mr. Monchecourt's guilty plea through the use of misrepresentations or

false promises. The government promised Mr. Monchecourt a sentencing cap; the

government and the district court honored that promise. The government did not

"promise" Mr. Monchecourt his alleged co-conspirators 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 process 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 Conclusions of Law in the case of

United States v. Marchese, No. 93-CR-8 (D. Colo. Apr. 15, 1996), so undermine

certain statements in the plea agreement as to render the factual basis of his plea

agreement inadequate. Fed. R. Crim. P. 11(f) requires that "[n]otwithstanding the

acceptance of a plea of guilty, the court should not enter a judgment upon such

plea without making such inquiry as shall satisfy it that there is a factual basis for

the plea." The Advisory Committee Notes indicate the factual basis for a plea

may be developed by inquiry "of the defendant, of the attorneys for the

government and the defense, of the presentence report 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 subdivision (f)). A district

court's finding of a factual basis for a guilty plea is reviewed under the clearly

erroneous standard. United States v. Graves, 106 F.3d 342, 343 (10th Cir. 1997).
4

 The Defendant's Factual Statement provides:

The defendant, ERIC G. MONCHECOURT, admits that he

knowingly caused a transfer of $25,935.00 from David Nemelka's

control to the account of Ven Roc Capital Corporation 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 transferred represented

the proceeds of specified unlawful activity, that is, securities fraud

and mail fraud. The defendant knew that the transfer of the funds

was designed to conceal and disguise the source and the 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 plea hearing. At the Rule 11

hearing, Mr. Monchecourt ratified under oath the government's statement of the

case and the Defendant's Factual Statement, in which 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 evidence introduced against Mr.

Monchecourt's co-conspirators did not meet the beyond a reasonable doubt

standard, it was "substantial" and did meet the preponderance standard. The
-9-

district court further concluded the government's evidence 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 court found Mr. Monchecourt's

self-incriminating testimony at the bench trial also enhanced the factual basis for

the guilty plea. The district court satisfied itself that an adequate factual basis for

Mr. Monchecourt's guilty plea existed at the time the plea was taken and at the

time of his Rule 32(e) motion. In view of the record before us, we cannot say the

district court's finding of an adequate factual basis for the guilty plea is clearly

erroneous. Mr. Monchecourt's claim that his plea was not knowing and voluntary

must fail.

Third, in an argument not presented to the district court, Mr. Monchecourt

asserts his guilty plea was to a charge of aiding and abetting and cannot stand

because the government failed to prove someone committed 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. § 1956(a)(1)(B)(i) as well as

aiding and abetting under 18 U.S.C. § 2. In addition to the explicit terms of the

plea agreement, the district court made it quite clear to Mr. Monchecourt that the

primary charge was money laundering. This argument is unavailing.
5

 Fed. R. Crim. P. 11(e)(2) provides in relevant part: "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 recommendation or request [for a particular

sentence] the defendant nevertheless has no right to withdraw the plea."

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Finally, in yet another new argument on appeal, Mr. Monchecourt contends

the district court erred when it failed to inform him he would be unable to

withdraw his guilty plea if the sentencing court did not follow the government's

sentencing recommendation in all particulars. Notwithstanding 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 afforded under Rule 11(e)(1)(B).5

While this court can appreciate his distress at being sentenced to twelve

months imprisonment and a $10,000 fine after receiving 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 to 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 specifically referred to the sentencing cap

and informed Mr. Monchecourt the sentence to be imposed from the cap
-11-

downward was the court's decision alone. The district court specifically inquired

into whether Mr. Monchecourt and his counsel had thoroughly reviewed the

possible penalties and consequences of a guilty plea, 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 further obligation to inform Mr.

Monchecourt that he would be unable to freely withdraw his plea.

Having addressed Mr. Monchecourt's specific allegations, 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-factor analysis. See Gordon, 4 F.3d

at 1572. Having seen his colleagues at Power Securities acquitted, Mr.

Monchecourt now asserts his innocence, so the first factor 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 concern 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. Monchecourt. Finally, the

government would have to expend considerable resources to try Mr. Monchecourt

in a trial the district court predicted would be long 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 withdrawal 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 Securities were acquitted before

filing his withdrawal motion, which could suggest manipulation. 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 against 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 claimed ineffective assistance

of counsel. To the contrary, he expressed satisfaction 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 factor cannot weigh in Mr.

Monchecourt's favor. To the extent waste of judicial 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 factors weigh

against Mr. Monchecourt. He has failed to show the district court acted unjustly

or unfairly in denying his motion to withdraw his guilty plea. Consequently,

under the circumstances of this case, we find no abuse of discretion in the district

court's denial of Mr. Monchecourt's motion to withdraw 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 requiring disqualification of

judges). Since Mr. Monchecourt did not move for recusal, 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 reasonable 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 relies on Judge

Babcock's credibility assessment of Mr. Monchecourt's testimony in the Marchese

bench trial, particularly focusing on the Judge's description of Mr. Monchecourt
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as a "crass liar." Each remark Mr. Monchecourt points to was made in the course

of ongoing judicial proceedings and did not rely on any "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 motion "unless they display a

deep-seated favoritism or antagonism that would make fair judgment impossible." 

Id. at 555. While unflattering to Mr. Monchecourt, Judge Babcock's remarks

describing him as a liar do not display the "deep-seated" 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 determination

that a defendant had not been candid was "no basis for disqualification").

Finally, Mr. Monchecourt contends Judge Babcock's decision to disregard

the government's sentencing recommendation evidences 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 was 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.
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We hold Mr. Monchecourt's guilty plea was voluntary and knowing and the

district court's denial of his plea withdrawal motion was proper. We find no

evidence the district court should have recused itself from ruling on Mr.

Monchecourt's motion. Therefore, the decision of the district court is

AFFIRMED, and we remand this case to the district court for such other

proceedings as may be required.

Entered for the Court

WADE BRORBY

United States Circuit Judge