FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50430

Plaintiff-Appellee, D.C. No.

v.  CR-06-00259-DSF01 JOHN MCTIERNAN,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted

August 4, 2008—Pasadena, California

Filed October 21, 2008

Before: Stephen Reinhardt, Roger J. Miner,* and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Miner

*The Honorable Roger J. Miner, Senior United States Circuit Judge for

the Second Circuit, sitting by designation. 

14655
COUNSEL

Charles M. Sevilla, Law Office of Charles Sevilla, San Diego,

California, for the defendant-appellant. 

S. Todd Neal, Sullivan, Hill, Lewin, Rez & Engel, San Diego,

California, for the defendant-appellant. 

Christine C. Ewell, Robert E. Dugdale, Assistant United

States Attorneys (Thomas P. O’Brien, United States Attorney

for the Central District of California), Los Angeles, California, for the plaintiff-appellee. 

OPINION

MINER, Circuit Judge: 

Defendant-appellant John McTiernan (“Defendant” or

“McTiernan”) appeals from a judgment of conviction and sentence entered in the United States District Court for the Central District of California following a guilty plea to a singlecount information charging him with making a false statement

to an FBI agent in violation of 18 U.S.C. § 1001. Prior to sentencing, McTiernan moved to withdraw his guilty plea, claiming that he had not been informed of his right to seek

suppression, pursuant to 18 U.S.C. §§ 2511 and 2515, of an

incriminating recording seized by the government. 

In an order entered September 25, 2007, the district court

denied McTiernan’s motion to withdraw his guilty plea, finding that McTiernan simply changed his mind once he learned

that the government intended to seek a custodial sentence.

The district court then sentenced McTiernan to a four-month

term of imprisonment, a two-year period of supervised

release, a fine of $100,000, and a special assessment of $100.

UNITED STATES v. MCTIERNAN 14659
On appeal, McTiernan claims that he should have been

allowed to withdraw his guilty plea because he was not

informed by his previous counsel at or before the time of his

guilty plea that he could move to suppress the incriminating

recording seized by the government and allegedly used to persuade McTiernan to plead guilty. McTiernan claims that such

a motion would have been successful. He also contends that

the district court clearly erred by determining that his effort

to withdraw his guilty plea was based on an improper motive.

For the reasons that follow, we vacate the judgment of the district court and remand the case so that the court may conduct

a full evidentiary hearing as to whether there is a fair and just

reason for McTiernan to withdraw his plea.

BACKGROUND

On February 13, 2006, McTiernan was interviewed by telephone by Special Agent Stanley Ornellas of the Federal

Bureau of Investigation (“FBI”) in connection with an investigation into former private investigator Anthony Pellicano’s

use of illegal wiretapping. Ornellas asked whether McTiernan

had knowledge of Pellicano’s wiretapping activities and had

previously discussed wiretapping with Pellicano. In response,

McTiernan stated that he had never discussed wiretapping

with Pellicano, that Pellicano had never mentioned his ability

to wiretap telephone calls, and that he had used Pellicano’s

services only once, in connection with his divorce. 

The responses made to Special Agent Ornellas’ inquiries

were false. McTiernan later admitted that he had hired Pellicano in or around August 2000 and paid him at least $50,000

to conduct an illegal wiretap of two individuals, one of whom

was Charles Roven, the producer of a movie that McTiernan

was then directing. Pellicano installed the wiretaps, listened to

the subjects’ business and personal telephone calls, and

reported their contents to McTiernan. 

Several weeks after Ornellas interviewed McTiernan, the

government contacted McTiernan and suggested that he retain

14660 UNITED STATES v. MCTIERNAN
an attorney. On March 4, 2006, McTiernan retained the services of John Carlton, Esq. On March 16, 2006, McTiernan

met with Carlton and the government regarding McTiernan’s

statements to Special Agent Ornellas. At that meeting, the

government revealed its evidence of discussions between

McTiernan and Pellicano regarding the wiretapping. The evidence included a digital recording that Pellicano had made of

a telephone conversation between himself and McTiernan (the

“Recording”). The Recording, which was made on August 17,

2000, was recovered by the FBI from Pellicano’s computer

pursuant to a search warrant in the related investigation and

prosecution of Pellicano, who was charged with over onehundred Racketeer Influenced and Corrupt Organizations

(RICO) Act violations, bribery of police officers, and wiretapping. In the Recording, Pellicano informed McTiernan, who

at that time was directing a movie in Canada, that he had

intercepted “tons of stuff” and that he could not “even listen

to all of them.” McTiernan instructed Pellicano to focus on

instances where the producer was “saying one thing to the studio and saying something else to others,” and said that catching the producer “bad mouthing” the “studio guys” would

“really be useful.” 

On March 24, 2006, McTiernan entered into a written plea

and cooperation agreement with the government, in which he

agreed to plead guilty to a forthcoming information charging

him with making a false statement in violation of 18 U.S.C.

§ 1001(a)(2). The plea agreement set forth, inter alia, the elements of the offense, the statutory maximum sentence, the

constitutional rights that McTiernan would be giving up, the

stipulated Sentencing Guideline factors, and the factual basis

for the plea. McTiernan signed the agreement and the following declaration, attesting that his attorney had advised him of

possible defenses and that he was satisfied with his legal representation:

I have read this agreement and carefully discussed

every part of it with my attorney. I understand the

UNITED STATES v. MCTIERNAN 14661
terms of this agreement, and I voluntarily agree to

those terms. My attorney has advised me of my

rights, of possible defenses, of the Sentencing

Guideline provisions, and of the consequences of

entering into this agreement. No promises or inducements have been made to me other than those contained in this agreement. No one has threatened or

forced me in any way to enter into this agreement.

Finally, I am satisfied with the representation of my

attorney in this matter. 

On April 3, 2006, the government filed a single-count

information against McTiernan, charging him with making a

false statement to an FBI agent in violation of 18 U.S.C.

§ 1001. 

On April 17, 2006, pursuant to the written plea agreement

with the government, McTiernan re-executed the written

waiver of his right to be indicted by a grand jury on the

charge and pleaded guilty to the charged offense. Also on

April 17, 2006, the district court conducted McTiernan’s Rule

11 hearing. During the hearing, McTiernan’s attorney, in

response to the court’s inquiries, stated: that he had discussed

the contents of the plea agreement with McTiernan before

McTiernan signed it; that he had reviewed the facts of the

case with McTiernan; that he had pursued potential defenses

with McTiernan; and that he had advised McTiernan concerning the legality or admissibility of any statements or confessions or other evidence the government had against

McTiernan. McTiernan’s attorney further stated his belief that

McTiernan was entering his plea freely and voluntarily and

with full knowledge of the charge and the consequences of the

plea. 

The court also questioned McTiernan about his attorney’s

representation and read aloud the stipulated factual basis from

McTiernan’s plea agreement. McTiernan confirmed that he

and his attorney had discussed his case candidly and that his

14662 UNITED STATES v. MCTIERNAN
attorney had considered and advised McTiernan as to the

existence of any possible defenses. McTiernan also confirmed

that he understood the consequences of his plea and that he

was competent to make the plea. He then allocuted to the

facts, admitting that he knowingly made false statements to

the FBI agent. 

After making a full inquiry in compliance with Rule 11, the

district court found at the conclusion of the hearing that

McTiernan was fully competent and capable of entering an

informed plea; that he was aware of the nature of the charges

and the consequences of the plea; that the plea of guilty was

knowingly, voluntarily, and intelligently made with a full

understanding of the nature of the charge, the consequences

of the plea, and McTiernan’s constitutional rights; and that the

plea was supported by an independent factual basis containing

each of the essential elements of the offense. The court then

accepted the plea and ordered that it be entered. 

After requesting and obtaining a continuance of his sentencing date, McTiernan sought, in May 2007, another continuance of his sentencing date. On this occasion, the

government informed McTiernan that it would not agree to

further continuances of his sentencing date because it was dissatisfied with his failure to provide truthful cooperation to the

government in connection with his offense. 

On June 28, 2007, eleven days before McTiernan was

scheduled to be sentenced, S. Todd Neal, Esq. (“Neal”),

advised the government that he would be substituted for Carlton as McTiernan’s new counsel and that he needed additional

time to prepare for sentencing. Neal informed government

counsel that he did not intend to seek to withdraw McTiernan’s plea. In light of that representation, the government

agreed to continue McTiernan’s sentencing, and a new sentencing date was set for September 10, 2007.

After the government agreed to this continuance, it advised

Neal that McTiernan had lied during his proffer interviews

UNITED STATES v. MCTIERNAN 14663
and that if McTiernan continued to lie, the government would

seek a custodial sentence in his case. The government

repeated this concern during an August 14, 2007, meeting

with Neal’s associate.

On August 22, 2007, after the government had notified

defense counsel that it would not move for a downward

departure based on cooperation and would seek a custodial

sentence for McTiernan, McTiernan’s counsel informed the

government for the first time of McTiernan’s plan to file a

motion to withdraw his guilty plea and thereafter to suppress

the Recording. 

On August 28, 2007, the government filed a sentencing

position paper advocating for the imposition of a six-month

term of imprisonment, the maximum sentence the government

could seek under the terms of the plea agreement it entered

with McTiernan. 

McTiernan then moved to withdraw his guilty plea. The

motion came approximately seventeen months after the plea

but only two months after Neal was retained. McTiernan

claimed that he was entitled to withdraw his plea because his

former counsel had provided ineffective assistance. Specifically, McTiernan claimed that his former counsel (1) failed to

obtain any discovery materials from the government prior to

the time McTiernan entered his pre-indictment plea; and (2)

failed to advise him that he could have sought to suppress the

Recording on the ground that the Recording was made by Pellicano without McTiernan’s knowledge and consent and for

an allegedly “criminal or tortious purpose,” in violation of

Title III and 18 U.S.C. § 2515. In support of the motion,

McTiernan submitted a declaration of his former counsel,

Carlton. Regarding suppression, Carlton’s declaration was

limited to a statement that he “did not see any basis for suppressing the [Recording] under the wiretap statute, and [that

he] could not predict that any such basis would be discovered

if [McTiernan] decided to reject the government’s offer and

14664 UNITED STATES v. MCTIERNAN
proceed with the case.” In what he claimed was further support for his motion, McTiernan referred to another criminal

case involving Pellicano’s illegal wiretap scheme. In that

case, defendant moved, albeit unsuccessfully, to suppress tape

recordings that Pellicano made of their telephone conversations.

On September 24, 2007, the district court held a hearing on

McTiernan’s motion to withdraw his guilty plea. The court

denied the motion, immediately proceeded to sentencing, and

sentenced McTiernan to a term of imprisonment of four

months, to be followed by a two-year period of supervised

release. The district court further ordered that McTiernan pay

a $100,000 fine and a $100 special assessment. 

The following day, on September 25, 2007, the district

court issued a written order providing its reasons for the

denial of McTiernan’s motion to withdraw his guilty plea. In

its order, the court noted that the grounds raised by McTiernan in support of his motion were “many, varied, and mutable” but that each had the common thread that none of them

provided a proper ground, supported by reliable evidence, to

allow McTiernan to withdraw his guilty plea. 

First, the district court rejected McTiernan’s “evolving

laundry list of complaints about his former counsel,” finding

that McTiernan’s former counsel provided neither erroneous

advice nor ineffective assistance in representing McTiernan.

The court ruled that McTiernan’s claims concerning his former counsel’s performance were either immaterial or — in

the case of his allegation that his former counsel failed to discuss the charge or available defenses to it with McTiernan

prior to the guilty plea — contradicted by other evidence. The

court further found that McTiernan’s claims concerning his

former counsel’s performance were dishonest, noting: 

McTiernan is clearly willing to lie whenever it

suits his purpose, whether or not he has been advised

UNITED STATES v. MCTIERNAN 14665
of the ramifications of doing so. He has several times

admitted that he lied to the FBI agent, and he is

either lying to this Court now or he lied when signing the plea agreement and entering his plea in open

court [concerning what he had and had not been told

by his former counsel]. 

(footnote omitted). 

The court also rejected McTiernan’s claim that he should

be allowed to withdraw his guilty plea so that he would be

able to bring a motion to suppress the Recording in which

they discussed Pellicano’s plan to wiretap an individual illegally on McTiernan’s behalf. The district court also found that

Carlton had discussed a possible suppression motion prior to

McTiernan’s guilty plea and that such a motion, if brought,

would not be meritorious: 

McTiernan argues that his desire to obtain sufficient evidence to entitle him to a hearing on a motion

to suppress the recording of his conversation with

Pellicano constitutes a “fair and just reason” to permit withdrawal of his guilty plea. But this Court has

already made clear that much of the alleged support

for this proposed motion doesn’t even come close to

entitling another vigorously represented defendant to

an evidentiary hearing — much less suggesting that

[McTiernan] might ultimately prevail. If anything,

that Pellicano never used the [R]ecording to blackmail McTiernan detracts from Christiansen’s — and

McTiernan’s — request for suppression. 

The Court does not agree that speculation concerning a criminal or tortious purpose for Pellicano’s

recordings is a “fair and just reason” for permitting

withdrawal of the plea. McTiernan does not suggest

he has new evidence, and Title III was certainly the

law at the time of McTiernan’s plea. Cf. Ortega14666 UNITED STATES v. MCTIERNAN
Ascanio, 376 F.3d at 885-86 (plea may be withdrawn

where post-plea change in law would cause dismissal of indictment). Therefore, his only hope is

again to claim ineffective assistance of counsel.

However, McTiernan’s former counsel has testified

by declaration that he advised McTiernan on the

topic of possible suppression of the recording —

concluding that he did not see any basis for suppressing the recording and could not predict that any

basis would be discovered if McTiernan chose to go

to trial. For the reasons described above, the Court

accepts Carlton’s declaration testimony and rejects

McTiernan’s. 

(footnotes omitted). 

The court determined that in light of the chronology of

events in the case and the court’s finding “that McTiernan’s

alleged other reasons for seeking withdrawal lack credibility,

the most reasonable conclusion is that McTiernan seeks to

withdraw his plea because the government has asked for a

custodial sentence.” (footnote omitted). As the court correctly

found, “[t]his is unquestionably not valid grounds to grant

permission to withdraw a plea.” 

The judgment of the district court was entered September

29, 2007, and McTiernan filed his timely notice of appeal on

October 2, 2007. McTiernan is currently free on bail pending

the result of this appeal.

DISCUSSION

A district court’s denial of a motion to withdraw a guilty

plea is reviewed for abuse of discretion. United States v. Ruiz,

257 F.3d 1030, 1033 (9th Cir. 2001) (en banc); United States

v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995). However, findings of fact supporting the district court’s exercise of its discretion are reviewed for clear error. See United States v.

UNITED STATES v. MCTIERNAN 14667
Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003). The defendant

bears the burden of establishing that withdrawal is warranted.

FED. R. CRIM. P. 11(d)(2)(B); United States v. Davis, 428 F.3d

802, 805 (9th Cir. 2005). 

[1] Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a defendant may withdraw a plea of guilty prior to

the imposition of sentence if he “can show a fair and just reason for requesting the withdrawal.” While the defendant is not

permitted to withdraw his guilty plea “simply on a lark,”

United States v. Hyde, 520 U.S. 670, 676-77 (1997), the “fair

and just” standard is generous and must be applied liberally.

“Prior to sentencing, the proper inquiry is whether the defendant has shown a fair and just reason for withdrawing his plea

even if the plea is otherwise valid.” Davis, 428 F.3d at 806.

Although procedural errors and intervening circumstances

are commonly raised as grounds for withdrawal, each case

must be reviewed in the context in which the motion arose to

determine whether, ultimately, a “fair and just” reason exists.

In this regard, the Advisory Committee on Criminal Rules has

adopted guidelines developed in the case law:

Although the terms “fair and just” lack any pretense

of scientific exactness, guidelines have emerged in

the appellate cases for applying this standard.

Whether the movant has asserted his legal innocence

is an important factor to be weighed, as is the reason

why the defenses were not put forward at the time of

original pleading. The amount of time which has

passed between the plea and the motion must also be

taken into account. 

FED. R. CRIM. P. 32 advisory committee’s note (1983) (citations and internal quotation marks omitted). 

[2] In this Circuit, “[f]air and just reasons for withdrawal

include inadequate Rule 11 plea colloquies, newly discovered

14668 UNITED STATES v. MCTIERNAN
evidence, intervening circumstances, or any other reason for

withdrawing the plea that did not exist when the defendant

entered his plea.” Davis, 428 F.3d at 805 (internal quotation

marks omitted). Erroneous or inadequate legal advice may

also constitute a fair and just reason for plea withdrawal, even

without a showing of prejudice, when the motion to withdraw

is made presentence. Id. at 806. Where a defendant shows

“that his counsel’s gross mischaracterization [of a possible

sentence] plausibly could have motivated his decision to plead

guilty[,] [n]othing in Rule 11(d)(2)(B) requires a defendant to

show more in order to satisfy the ‘fair and just reason’ standard.” Id. at 808. 

[3] Here, McTiernan claims that he was never made aware

by his counsel at any time prior to his plea of the potential

basis for a suppression motion. McTiernan claims that Special

Agent Ornellas’s phone call to McTiernan in February 2006,

which led to the charged offense, was generated by the

Recording. The basis for suppression of the Recording urged

by McTiernan is codified in 18 U.S.C. § 2511(2)(d), which

provides:

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire,

oral, or electronic communication where such person

is a party to the communication or where one of the

parties to the communication has given prior consent

to such interception unless such communication is

intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or

laws of the United States or of any State. 

18 U.S.C. § 2511(2)(d) (emphasis supplied); see also 18

U.S.C. § 2515 (“Whenever any wire or oral communication

has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received

in evidence in any trial, hearing, or other proceeding in or

before any court, grand jury, department, officer, agency, regUNITED STATES v. MCTIERNAN 14669
ulatory body, legislative committee, or other authority of the

United States, a State, or a political subdivision thereof if the

disclosure of that information would be in violation of this

chapter.”). McTiernan claims that if his previous counsel had

informed him of the possibility of moving to suppress the

Recording on the stated ground, he could have demonstrated

at an evidentiary hearing that “Pellicano’s intended purpose in

secretly recording their phone call in 2000 was to use the

recording for a criminal or tortious purpose, [and thus] the

[R]ecording would be unlawful under 18 U.S.C.

§ 2511(2)(d).” 

[4] McTiernan dedicates much of his argument to the merits of a motion predicated upon Sections 2511 and 2515. But

McTiernan need not show that his motion will be successful

on its merits. His burden is to show that proper advice “could

have at least plausibly motivated a reasonable person in

[McTiernan’s] position not to have pled guilty had he known

about the [grounds for suppression now advanced] prior to

pleading.” See United States v. Garcia, 401 F.3d 1008,

1011-12 (9th Cir. 2005). There is no indication that the district court applied this standard. 

[5] Moreover, the district court erred in accepting Carlton’s

declaration as the basis for a finding that Carlton “advised

McTiernan on the topic of possible suppression of the

[R]ecording.” Carlton declared only that he “did not see” any

grounds “under the wiretap statute” for suppression of the

Recording and that he “could not predict” any such basis

would be discovered. Carlton did not assert that he reviewed

the specific statutory grounds that might support suppression.

Indeed, his notes and records do not reflect such a review as

to any specific provision that might support suppression, let

alone the specific provisions of Section 2511. Carlton referred

only generally to “the wiretap statute.” Although Carlton may

have advised McTiernan generally that there was no basis for

a suppression motion, his declaration lacks the clarity and pre14670 UNITED STATES v. MCTIERNAN
cision that would enable us to conclude that McTiernan was

properly and adequately advised. 

[6] The district court also erred in determining that McTiernan’s failure to “suggest he has new evidence” and his mere

“speculation concerning a criminal or tortious purpose for

Pellicano’s recording” bar a finding of a fair and just reason

for withdrawal of the guilty plea. As previously noted,

McTiernan is not required to produce evidence at this point.

He is required to establish only that proper advice about the

possibility of suppression under section 2511 could plausibly

have motivated a reasonable person in his position not to have

pled guilty. As long as a criminal or tortious purpose is a realistic possibility under the circumstances — which it assuredly

is here — there is nothing inherently implausible about the

proposition that a reasonable person would not have pled

guilty and would instead have sought through discovery to

establish an illicit motive for the taping. Nor does the district

court’s finding that McTiernan sought to withdraw his guilty

plea only to avoid a custodial sentence bear upon the standard

for determining a fair and just reason for withdrawal of the

plea. The desire to avoid a custodial sentence may well be the

motivation for the motion to withdraw the plea, but that motivation is not disqualifying if there is otherwise a fair and just

reason to withdraw the plea. 

[7] In accordance with the foregoing, we remand this case

to enable the district court, after a full evidentiary hearing, to

determine whether McTiernan can establish a fair and just

reason to withdraw his plea. We note that on remand, McTiernan’s “failure to proclaim his innocence should not count

against him when he seeks to withdraw his plea under the

‘fair and just reason’ standard.” Garcia, 401 F.3d at 1012. As

to the factor of delay, we have opined that “[d]elay itself does

not make an otherwise valid reason for withdrawal any less

‘fair’ or ‘just,’ ” especially where there is nothing in the

record to indicate that the “reasons for withdrawal were not

bona fide, or that the government suffered great prejudice as

UNITED STATES v. MCTIERNAN 14671
the result of [the] delay.” Id. at 1013. Thus, we note that,

although the motion to withdraw came approximately seventeen months after the plea, it was filed only two months after

Neal was retained and McTiernan allegedly was first advised

of a specific basis for suppression. 

* * *

The judgment of the district court is vacated, and the case

is remanded for a full evidentiary hearing, to be followed by

a decision consistent with the foregoing. In preparation for the

evidentiary hearing, the parties may utilize such methods of

discovery as may by law be available to them, subject to the

supervision of the district court. We deny as moot McTiernan’s “Motion for Judicial Notice of Certain Proceedings in

Related Case.” 

VACATED AND REMANDED.

14672 UNITED STATES v. MCTIERNAN