author: LONGOBARDI, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Donald J. TROTT, Defendant.
    Crim. A. No. 83-29LON.
    United States District Court, D. Delaware.
    March 14, 1985.

      Richard G. Andrews, and Edmond Falgowski, Wilmington, Del., for plaintiff.
    John M. Willard, Wilmington, Del., for defendant.
   OPINION

LONGOBARDI, District Judge.

The issue before the Court is Defendant’s motion to withdraw his guilty plea. Having conducted an evidentiary hearing on February 21, 1985, these are the Court’s findings of facts and conclusions of law.

The instant motion was presented, tried and argued by self-retained counsel for the Defendant after the Court had allowed the withdrawal of his previous, court-appointed counsel. Defendant cites nineteen separate reasons why the Court should allow him, prior to sentencing, to withdraw his plea.

The allegations have nothing to do with the actual taking of the plea by the Court or the Court’s observance of the prerequisites of Federal Rule of Criminal Procedure 11. “We are not making an allegation at this time that the discussions between the Court and the Defendant on the day of the plea was not done with care and discern (sic) as required by (sic) the Court, or it was not in compliance with Rule 11.” Transcript (“Tr.”) February 21, 1985, p. 154, lines 12-15.

BACKGROUND

The indictment charges the Defendant with conducting, between September, 1976, and March 21, 1983, a continuing criminal enterprise. Count XII, Superseding Indictment. The first eleven counts of the indictment relate to specific events of “drug dealing” that in toto constitute the criminal enterprise charged in Count XII.

On the very morning of trial, after months of preparation, after pretrial evidentiary hearings on suppression motions were heard and decided, after continuances were granted to allow a more generous time for the preparation of his defense, after seven witnesses for the Government in the witness protection program were summoned to Delaware, and after seventy-three jurors were summoned and in attendance, Mr. Trott, through his attorney, requested a side-bar conference before the Court could even commence his initial address to the jury. His court-appointed attorney then presented to the Court six handwritten pages of motions. While the jury waited, the Court addressed each of the motions with the view that regardless of the disposition, they would be addressed again in Mr. Trott’s presence once the initial jury orientation had occurred. Tr. January 28, 1985, p. 8, lines 16-25, p. 14, lines 21-24, D.I. 67. The first motion was dated January 23, 1985, and requested a thirty day continuance of the trial. It alleged that the Defendant had retained private counsel on January 21, 1985, and that his new attorney could not possibly be ready for trial in one week. Two weeks previously, on January 14, 1985, the Defendant “suggested” he might get privately retained counsel. At that time, based on a need for more preparation, the Court granted the Defendant and his counsel another week in which to prepare their case. The Court indicated that the Defendant could not further delay the trial but, if and when a privately retained counsel appeared and requested a continuance of the trial, the Court would rule on the issue. Tr. January 14, 1984, p. 136, lines 18-21.

The Defendant’s allegation in D.I. 67 that he had retained counsel was an obvious prevarication. While on January 14, 1985, he said he had funds with which to hire counsel, Tr. January 14, 1985, p. 136, lines 9-13, and while his affidavit under oath, D.I. 67, indicated he had just retained counsel, the fact of the matter was that he had not retained counsel and did not then have in his possession money to do so. Tr. February 21, 1985, p. 61, lines 14-22. (Trott’s motion in D.I. 67 alleged there was an attached letter from Joseph Hurley, Esquire, which would allegedly corroborate the retention of counsel. No such letter was attached to the motion and none has since been presented to the Court. Tr. January 28,1985, p. 8, lines 3-10.) Defendant’s motion was denied. Tr. January 28, 1985, p. 5, lines 5-24, p. 15, lines 19-23.

In his second motion presented on the day of trial, that is, the moment before jury selection was to occur, the Defendant moved to dismiss his court-appointed counsel “due to ineffectiveness.” The basis for the “ineffectiveness” was Durkin’s failure to file motions requested by Trott: motions for severance, dismissal or change of venue based on pretrial publicity, an order requiring that Government witnesses be made available to him for interviews, leave to hire a private investigator, disqualification of this Judge for bias and discrimination, the production of statements, confessions, search warrants and affidavits, the results of scientific tests and “Brady” material.

In fact, Durkin had presented the motions on January 21, 1985, and they had been denied. Tr. January 21, 1985, pp. 42-62. The motion also suggested that Durkin was “ineffective” because he had not conferred sufficiently with Trott. Because “ineffective representation” is also a basis for the present motion to withdraw his plea of guilty, the Court will deal with that issue at length later in this opinion. Suffice it to say, however, the record did not then nor does it now support the Defendant’s allegation that Durkin had provided ineffective representation. To the contrary, as subsequent events were to reveal, Durkin had been extremely diligent and was well prepared for trial. One further comment about this motion may be illuminating in reference to the Defendant’s attempt to make a “record.” The motions that the Defendant insisted be presented at the hearing on January 21, 1985, had not been discussed with Durkin prior to that date. That was so very obvious because, in many respects, they were duplicative of what Durkin had already presented. Tr. February 21, 1985, p. 125, lines 23-25, p. 126, lines 1-9. In presenting the motions, the Defendant ignored facts that were known to him personally. For instance, his motion numbered D.I. 69 requested items that had already occurred in his presence on January 21, 1985.

After these motions had been decided preliminarily at side bar, counsel for the Government and the Defendant returned to their counsel tables and the Court began to address the jury. After eight words, Durkin rose again and asked for a side-bar conference. He advised the Court that after telling Trott his motions had been denied Trott told him he was prepared to plead guilty to Count XII.

Up to this point, the jury had waited for at least an hour to get started. The Court addressed them, advised them that legal questions had caused the delay and yet another matter would prevent the start of the jury selection process for some time. This was at 10:55 a.m. At 11:20 a.m., the Court returned and told the jury that the delay would continue. At 12:05 p.m., one hour and ten minutes after the first recess, during which the Defendant discussed his plea with the Assistant United States Attorney and his counsel, the Defendant returned to the court for the entry of his plea. At 12:55 p.m., that process was concluded.

Two days later, the Court received a pro se motion from the Defendant requesting that his guilty plea be withdrawn. Shortly thereafter, the Court received two other motions to withdraw the guilty plea, one from Trott’s court-appointed counsel (who has now withdrawn from the case) and one from Trott’s privately retained counsel, John M. Willard. Mr. Willard argued the motion before the Court on February 21, 1985.

LEGAL STANDARD

In considering Defendant’s motion, the Court must apply the standard for presentence withdrawal of a guilty plea set forth in Rule 32(d) of the Federal Rules of Criminal Procedure. A court may permit withdrawal of a guilty plea before sentence is imposed upon a showing by the defendant of any “fair and just reason.” Fed.R. Crim.P. 32(d). The rule incorporates the “fair and just” standard for withdrawal first set forth in Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). In Kercheval, the Supreme Court stated: “The court in exercise of its discretion will permit one accused to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just.” 274 U.S. at 224, 47 S.Ct. at 583 (emphasis added).

The Court’s use of the word “privilege” as opposed to “right” suggests the framework in which the withdrawal of a guilty plea must be considered. Although motions to withdraw guilty pleas before sentencing should be construed liberally in favor of the accused, United States v. Young, 424 F.2d 1276, 1279 (3d Cir.1970), there is no absolute right to withdraw a guilty plea before sentencing. Government of Virgin Islands v. Berry, 631 F.2d 214 (3d Cir.1980). The granting of a motion for withdrawal is left to the sound discretion of the trial court. Id.

In United States v. Crowley, 529 F.2d 1066, 1072 (3d Cir.), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976), the Third Circuit established three relevant factors to be considered in evaluating a presentence motion to withdraw a guilty plea: (1) the defendant’s assertion of his innocence; (2) the prejudice to the government that would result from such a withdrawal; and (3) the reasons for requesting withdrawal of the plea. Id. at 1072.

The Defendant has asserted his innocence to the charge to which he pled guilty. D.I. 89, ¶ 27(a); Tr. February 21, 1985, p. 29, lines 19-25. However, more than a bare assertion of innocence is required. “Were mere assertion of legal innocence always a sufficient condition for withdrawal, withdrawal would effectively be an automatic right. There are few if any criminal cases where the defendant cannot devise some theory or story which, if believed by a jury, would result in his acquittal.” Berry, 631 F.2d at 220 quoting United States v. Barker, 514 F.2d 208, 221 (D.C.Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). There are cases, however, which demonstrate situations which amount to more than mere assertion of innocence. For example, in United States v. Roberts, 570 F.2d 999 (D.C.Cir.1977), the D.C. Circuit allowed withdrawal of a guilty plea where the defendant had protested his innocence from the time of indictment, even to the point of entering an Alford plea. In another situation where the withdrawal was permitted, new evidence had arisen between the time the plea was entered and the time of sentencing. United States v. Morgan, 567 F.2d 479 (D.C.Cir.1977). On the other hand, in Government of the Virgin Islands v. Berry, the Third Circuit refused to allow withdrawal of a plea when the defendant did not proffer any specific defense but merely asserted his innocence. 631 F.2d at 220.

In this case, the Defendant has done little more than make a bare assertion of innocence. On the other hand, he has stated that he told the truth in the January 28, 1985, Rule 11 hearing. Tr. February 21, 1985, p. 32, line 19. At the time of the plea on January 28, 1985, Trott admitted that he committed every element of the continuing criminal enterprise charge. Tr. January 28, 1985, p. 53, lines 1-25, p. 54, lines 1-23. His disagreement with some of the specifics of the Assistant United States Attorney’s lengthy summary of what the Government could prove did not amount to a denial of any of the elements of the offense. His protestations were more to scope than to the substance of the elements of the offense. Tr. January 28, 1985, p. 53, lines 22-25, p. 54, lines 1-4, Í5-20.

The Court recognizes that a motion for withdrawal is not the time to determine the merits of any proffered defense. Morgan, 567 F.2d at 494. And the Court refuses to speculate about the effectiveness of any proffered defense. Rather, the Court’s analysis centers on how credible Trott's protestations of innocence really are. For the convenience and accommodation of any number of personal reasons, any defendant can conjure all sorts of defenses and proclaim his innocence but the core issue is how credible those protestations really are. In this regard, the record conclusively demonstrates that Trott’s claim of innocence was only raised conveniently since the time he filed his motion to withdraw the plea. From the date of his arrest in August of 1984 up until the very morning of his trial, the Defendant has not protested his innocence but has consistently and diligently negotiated for a plea of guilty and some favored treatment in return for his cooperation with the Government. Tr. February 21, 1985, p. 98, lines 7-13, p. 101, lines 13-18, p. 136, lines 22-25, p. 137, lines 1-15, p. 138, lines 11-25, pp. 139-142, p. 143, lines 1-5. These facts and circumstances cast considerable doubt on the sincerity of the Defendant’s claim that he is innocent. All this Court has before it on the record is the Defendant’s repeated assertions of guilt made at the Rule 11 inquiry and his testimony at the February 21, 1985, hearing that unnamed witnesses will exonerate him. In the absence of a more substantive assertion, the Court cannot accept the Defendant’s present claim of innocence as sufficient cause to allow him to withdraw his previous admissions of guilt.

The second factor to be considered in a motion for withdrawal is the prejudice to the Government that will result from withdrawal of the plea.

Prejudice to the Government inevitably arises when a defendant enters his plea on the day of trial after jurors, witnesses and court personnel are assembled and ready to proceed. United States v. Crowley, 529 F.2d at 1072; United States v. DeCavalcante, 449 F.2d 139, 141 (3d Cir.1971). In the present case, seventy-three jurors were present and waiting for voir dire to begin. In addition, two witnesses in the witness security program had already traveled to Wilmington. One other witness had been transferred from a federal prison in Lewisburg, Pennsylvania, to Wilmington. Tr. February 21, 1985, p. 128, line 23, p. 129, lines 20-22. Special arrangements had been made for five other witnesses protected by the witness security program to attend the trial and for two other prisoners to be transferred to Wilmington to testify. Tr. February 21, 1985, p. 129, lines 1-15, p. 130, lines 1-2. The attorneys for both the prosecution and the defense were ready to proceed.

The Court, in addition, will not treat lightly the real threat of violence that hung like a pall over the pretrial proceedings and which would have been present at any trial of Mr. Trott. The major witnesses who will testify for the Government against Mr. Trott are in the protection of the Government because they fear for their safety. Bringing those witnesses to Delaware exposes them to the “danger zone” from which they have negotiated anonymity, new identities and a new way of life. Tr. February 21, 1985, p. 132, lines 23-25, p. 133, lines 1-11. Obviously, bringing them here on more than one occasion only heightens the risk to their personal safety and to those innocent Government employees who are charged with their safety. It also creates a need for serious and costly protective measures to ensure their safety. Tr. February 21, 1985, p. 133, lines 5-10. The recital of these details is not pure speculation. Trott himself has alluded to such risks when he testified to his being a possible witness against the Pagans. Tr. February 21, 1985, p. 57, lines 10-14, p. 67, lines 22-25, p. 68, lines 1-3. To require the Government to begin all over again in assembling these witnesses and preparing for trial would be unfair and prejudicial.

Finally, the Court must consider the reasons the Defendant has offered for withdrawal of his guilty plea. He claims withdrawal should be allowed for a number of reasons. He first contends that his emotional state was such at the time of the plea that he did not plead voluntarily. The “strain, stress, duress and pressure” arose from: (a) a heart attack two years previous that left him with “bad nerves”; (b) the loss of his wife on September 7, 1984; (c) his confinement in a maximum security prison in which he gets one hour per day for recreation; (d) his lack of contact with people; (e) his fears for his safety while confined based on an incident in 1976 while a prisoner in Danbury; and (f) his cell was flooded one time in the recent past. Tr. February 21,1985, pp. 6-9. As a result of all these things, he was a “nervous wreck.” Tr. February 21, 1985, p. 8, line 14.

His description certainly does not describe the person who appeared before this Court on January 28, 1985. This Court observed the Defendant while seated with his counsel and noted the command he had of the situation before the trial started, advising his attorney of his pretrial pro se motions and his response when Durkin advised him his motions had been denied. His demeanor thereafter was one of a calm and mentally alert person who knew exactly what was transpiring. He was so alert during the Rule 11 inquiry that he even advised his counsel that a question from the Court was not addressed to him but to his attorney. Tr. January 28, 1985, p. 55, lines 13-20. There was not an instance during the fifty minutes when he was not articulate and intelligently responsive to all the questions from the Court. He never had to ask the Court to explain a word or term used by the Court. Admittedly, he said he had a migraine headache. Tr. January 28, 1985, p. 36, lines 14-15. But the Court offered him a recess, some respite, a glass of water and he refused. Tr. January 28, 1985, p. 36, lines 16-24.

The Court’s conclusions about the Defendant’s mental state were also those of his attorney and Lewis W. Hyden, II, an F.B.I. Special Agent. Tr. January 28, 1985, p. 55, lines 6-24; Tr. February 21, 1985, p. 145, lines 13-25, p. 147, lines 22-25, p. 148, lines 1-6. This conclusion persists notwithstanding the testimony of Jackie Christian, a witness for the Defendant who testified that Trott did not seem himself that day. Christian testified that he was surprised at the Defendant’s plea of guilty. Tr. February 21, 1985, p. 83, lines 12-19. His testimony is rejected because it does not provide any objective basis for describing Trott’s mental state that day. To say that “it just wasn’t him” because of the way Trott was “standing and listening” is purely conclusory. This is especially true in light of the testimony of other witnesses who had more interaction with Trott on the day of the plea than did Christian. Indeed, the Defendant’s back was to Mr. Christian during the whole process.

Paragraph 8 of Defendant’s motion to withdraw his plea indicates he was rushed into pleading guilty and that he had “inadequate time to consider the bargain prior ...” to entry of the plea. He also alleges the time spent discussing the plea that morning went like a “flash” and he did not understand any discussion of the plea by his lawyer or by the Assistant United States Attorney. Tr. February 21, 1985, p. 11, lines 3-25. The allegations are incredible in light of the testimony that was developed during the hearing on February 21, 1985. F.B.I. Special Agent Hyden testified that he knew Trott before he was arrested in August, 1984. Tr. February 21, 1985, p. 136, lines 9-11. Shortly after his apprehension, Hyden had an occasion to talk to Trott that lasted for about forty-five minutes. Tr. February 21, 1985, p. 136, lines 16-17. During that discussion, Trott did not protest his innocence but rather offered his services in return for a plea which would minimize his expected incarceration. Tr. February 21, 1985, p. 137, lines 3-15. Shortly thereafter, Trott’s first attorney initiated plea negotiations. Tr. February 21, 1985, p. 138, lines 11-25, p. 139, lines 1-6. In discussions with Durkin, his subsequently court-appointed counsel, the Government reiterated its position that the only plea that would be accepted was a plea to the charge to which he finally pleaded guilty. Tr. February 21, 1985, p. 139, lines 10-14, p. 141, lines 9-16. As a matter of fact, the plea offer that was finally accepted by Trott was the only plea offer extant since at least November 5, 1984. Tr. February 21, 1985, p. 101, lines 19-25. The Court accepts that as fact. In addition, Durkin revealed that he spent over an hour with Trott on Friday, January 25, 1985, explaining to him the very plea offer which he accepted on January 28, 1985. Consequently, even if Trott had forgotten all that had previously transpired, he still had the balance of Friday, all of Saturday, all of Sunday and Monday morning to think about this plea. Tr. February 21, 1985, p. 104, lines 7-25, p. 105, lines 1-14.

Under these circumstances, the Court rejects Trott’s contention that this plea was foisted on him with insufficient time to reflect on its implications. The Court finds that the plea of guilty entered on January 28, 1985, was entered after months of serious deliberations by Trott with the aid of Durkin and of his previous, privately retained counsel, Jeffrey C. Zucker.

Paragraphs 9, 10, 17 and 23 of Trott’s motion to withdraw allege he was inadequately represented by his court-appointed attorney, that he wanted to obtain a “competent legal advisor” and that he was unable to communicate efficiently with his counsel, all of which prevented him from knowingly, intelligently and voluntarily entering his plea of guilty.

The record does not support any of these contentions. The Court finds that Durkin’s representation in no way affected the Defendant’s ability to knowingly, intelligently and voluntarily enter a plea. Durkin is a member of the Pennsylvania and Delaware bar and has been practicing law in Delaware since 1968. Tr. February 21, 1985, p. 91, lines 5-10. He was a former Deputy Attorney General. He was appointed to represent Trott on November 5, 1984, and from that very first day, met with Trott on nine separate occasions. Tr. February 21, 1985, p. 121, lines 11-25, p. 122, lines 1-12. He communicated with Trott by letter on at least twelve occasions. Tr. February 21, 1985, p. 122, lines 17-25. And in his thoroughness “boxcarred literally all of the discovery materials down in shifts for him to read.” Tr. February 21, 1985, p. 126, lines 7-9. (And Trott had no trouble reading and understanding the material. Tr. February 21, 1985, p. 126, lines 19-25, p. 127, lines 1-7.) Furthermore, Durkin’s affidavit concerning the services rendered in this case demonstrates an unusual diligence and devotion to his duties. In all, he spent 209.25 hours on the case between November 5,1984, the day of his appointment, and January 27, 1985, the day before the scheduled trial. Court’s Exhibit #1. (A copy was used because the Court would require the original to be submitted to the Third Circuit for Durkin’s fee application.)

The expenditure of such time was necessary to digest the tremendous volume of discovery material which included a number of surreptitiously taped conversations of allegedly inculpatory conversations, the typewritten transcripts of those tapes and a tremendous volume of other discovery material. In all, the Assistant United States Attorney described the material as so extensive that if if were “stacked in a pile”, it would be at least two feet high. Tr. January 14, 1985, p. 134, lines 20-25, p. 135, lines 1-4.

To get a fuller appreciation of the more than adequate representation rendered by Durkin, one need only read his entire testimony rendered on February 21, 1985. The Court accepts that testimony. Indeed, Trott himself acknowledged that Durkin “did a fine job as any attorney” at the Rule 11 inquiry. Tr. January 28, 1985, p. 56, lines 11-25. His later allegation that he was forced to state that Durkin’s representation was adequate is not credible in light of the testimony of Agent Hyden and Trott’s own demeanor at the Rule 11 inquiry. At that time, Trott stated without hesitation that he was satisfied with Durkin’s representation and that he was not entering a plea because of any dissatisfaction with Durkin. Tr. January 28, 1985, p. 56, lines 9-10, 25.

The Court finds nothing in the record to suggest that Durkin’s representation of Trott was inadequate. The proper standard for attorney performance is that of “reasonably effective assistance.” Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). As the foregoing discussion indicates, Durkin’s expenditure of time and effort on Trott’s defense clearly meets and surpasses any reasonableness standard.

The Court also rejects Trott’s allegation that his inability to communicate with Durkin made it impossible for him to knowingly and voluntarily enter a plea. Durkin was certainly articulate. Trott himself was articulate and had absolutely no difficulty in either understanding or communicating with the Court, with the Assistant United States Attorney or with his counsel. On February 21,1985, the day of the evidentiary hearing on his motion to withdraw, he was the same. Durkin indicated he had no trouble communicating with Trott or Trott with him. Tr. February 21, 1985, p. 123, lines 10-17. The same can be inferred with regard to all his conversations with Hyden. Considering all of the above, the Court concludes that the Defendant’s allegations that he was unable to communicate with his counsel are groundless and without support in the record. The Court further finds from personal observation and otherwise that Mr. Durkin’s representation did not impair Defendant’s ability to enter a knowing, intelligent and voluntary plea.

Paragraphs 12, 13, 15, 19, 20 and 21 of Defendant’s motion to withdraw center around the assertion that he did not understand the nature of his plea, the waiver of his rights or the severity of the sentence on the charge to which he pled guilty. As already discussed, there was nothing in Mr. Trott’s physical appearance or activities on the day of the entry of the plea that led the Court, or any other participant in the proceedings, to believe that Trott did not understand what was going on.

Indeed, it is likely that Trott had a better than average understanding of the nature of the proceedings. Trott has entered guilty pleas on two other occasions, one in 1977 and one in 1980. He specifically recalled the entry of the 1977 plea and the judge’s explanation of the meaning of that proceeding and the waiver of rights involved. Tr. February 21, 1985, p. 65, lines 7-25, p. 66, lines 1-17.

Further, Defendant’s assertions of confusion completely contradict his own statements at the Rule 11 inquiry and the testimony of witnesses present with him on the day the plea was entered. At the Rule 11 inquiry, Trott acknowledged that his counsel had explained the nature of the charge to which he was pleading and that he was familiar with the indictment. Tr. January 28, 1985, p. 27, lines 4-14. He also admitted awareness of his fifth and sixth amendment rights and expressed the understanding that the entry of a guilty plea was a waiver of those rights. Tr. January 28, 1985, pp. 27-30. At no time during the Rule 11 inquiry did Trott give any indication whatsoever to the Court that he did not know exactly what he was doing or that the waiver of his rights was not voluntary.

In addition, Trott expressed understanding of the nature of the plea agreement. He stated that he had read the document and that the Assistant United States Attorney had read the document with him. He also expressed an understanding of the possible sentence that he could receive. In fact, he was so cognizant of the events taking place that he stopped the Court to clarify a point about sentencing. Tr. January 28,1985, p. 33, lines 8-10. The Court then offered to answer any questions Trott might have about the sentence but no questions were asked. Tr. January 28, 1985, p. 33, lines 18-21. When questioned about whether he knew that absolutely no sentencing recommendation would be binding on the Court, he expressed understanding. Tr. January 28, 1985, p. 35, line 13.

Testimony at the hearing on February 21, 1985, further indicated that Trott’s entry of the plea was done voluntarily, with a full understanding of his rights, despite Trott’s own self-serving assertions that he did not understand the plea agreement and he did not intend to waive his rights. However, when taken in context, his statements are bare assertions without any basis in fact. Durkin testified that prior to the taking of the plea, he went over the questions asked in the Rule 11 inquiry with Trott to ensure that he realized the consequences of the entry of the plea. In response, Trott expressed his understanding of all portions of the inquiry. Tr. February 21, 1985, p. 112, lines 5-14. Durkin testified, “He never evidenced any problem of understanding or use of words or anything of that sort.” Tr. February 21, 1985, p. 113, lines 2-3.

Agent Hyden of the F.B.I. was also present when the plea agreement was initially explained to Trott. He testified that after the agreement was read, Trott indicated that he understood and that he had no questions. In fact, Agent Hyden testified that after the agreement was read Trott replied, “let’s go for it, or something to that effect.” Tr. February 21, 1985, p. 145, lines 13-24. Hyden further testified that after the plea agreement was signed, Trott became more amicable and visibly relaxed. Tr. February 21, 1985, p. 148, lines 1-6.

Such testimony corroborates Trott’s answers given at the Rule 11 proceeding. Thus, the Court finds that there is no basis in fact for Trott’s allegations that he did not understand the nature of the plea agreement, the possible sentence or the waiver of his fifth and sixth amendment rights.

In paragraphs 24 and 25 of the Defendant’s motion to withdraw, he alleges that the entry of the plea was not voluntary because it was entered pursuant to promises and threats made to him by Special Agent Lewis W. Hyden of the F.B.I. Once again, the Defendant’s own testimony at the Rule 11 inquiry and the testimony of other witnesses at the hearing on the motion to withdraw refute his allegation. At the Rule 11 inquiry, when asked whether any threats or promises had been made to induce him to enter the plea, Trott replied in the negative. Tr. January 28, 1985, p. 36, lines 1-11. Later, when he decided he wanted to withdraw the plea, he stated that Agent Hyden had promised him favorable placement within the prison system if he pled guilty. Tr. February 21, 1985, p. 24, line 13. Agent Hyden refuted this allegation with testimony that he had made no promises to Trott. Hyden merely told Trott that if he entered a plea, he would contact an agent of the F.B.I. in Philadelphia where Trott had additional charges pending and have the agent contact Trott about the possibility of cooperation with the United States Attorney for the Eastern District of Pennsylvania. Hyden told Trott that if the United States Attorney in Philadelphia wanted to use him as a witness, he could be placed in a witness protection unit within the bureau of prisons. Tr. February 21, 1985, p. 142, lines 1-8. Trott’s own testimony concerning this incident corroborates the fact that Hyden never stated that he could “guarantee” such placement. Tr. February 21, 1985, p. 23, lines 24-25. No other promises were made. Hyden did not threaten Trott with incarceration in a maximum security prison in Atlanta. Hyden merely indicated to Trott that, he could expect to do time in a “hard time prison.” Tr. February 21,1985, p. 148, line 17. Such a statement was not a threat but rather an observation given to Trott in an open discussion of his “options.” Tr. February 21, 1985, p. 149, lines 7-10. The Court accepts Hyden’s version of the facts and rejects Trott’s version in its entirety.

Finally, the Defendant contends that he should be allowed to withdraw his plea because the Government has violated the plea agreement by moving to forfeit Defendant’s property when it had promised that none of Defendant’s property would be forfeited as a result of the plea. This allegation arises from the fact that on February 8, 1985, Trott received a letter informing him of the possible forfeiture of a Winnebago motor home which Trott claims he owns although the title for the vehicle is not in his name. This contention has no merit in light of the Government’s representation that if Trott can show that the Winnebago is his vehicle, the Government will not proceed with the forfeiture. Tr. February 21, 1985, p. 174, lines 15-19. At this time, the Government has no conclusive proof that the vehicle belongs to Trott so they have done nothing to violate the plea agreement.

CONCLUSION

The reasons set forth by the Defendant as to why he should be permitted to withdraw his plea do not meet the standard set forth by the Third Circuit in Crowley, 529 F.2d 1066. The Defendant has offered little more than a bare assertion of innocence as a justification for withdrawal. On the other hand, the Government has demonstrated that it will be substantially prejudiced if withdrawal is permitted. In addition, as the previous discussion indicates, the Defendant has advanced absolutely no persuasive reasons as to why his plea should be withdrawn.

Finally, and perhaps most importantly, this Court finds that withdrawal is not merited in light of the thorough Rule 11 examination conducted before the acceptance of the Defendant’s plea. Rule 11 provides for the placing of plea agreements in the record, for full inquiry into the voluntariness of the plea, for detailed advice to the defendant concerning his rights and the consequences of his plea and for a determination of the defendant’s understanding of the charge and the plea. “Given the great care with which pleas are taken under this revised Rule 11, there is no reason to view pleas so taken as merely ‘tentative’ subject to withdrawal before sentence____” Comment to Fed.R.Crim.P. 32(d).

Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant’s whim. In fact, however, a guilty plea is no such trifle but “a grave and solemn act,” which is “accepted only with care and discernment.”

U.S. v. Barker, 514 F.2d at 221, quoting from Brady v. U.S., 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970).

The very purpose of the Rule 11 inquiry is to thoroughly guarantee that when a defendant enters a plea of guilty he is fully apprised of the nature of the charge and the consequences of the plea. The inquiry ensures that such understanding is demonstrated by the record so that a defendant, dissatisfied with his decision to enter a guilty plea, cannot easily ignore the importance of the decision and change his mind on the slightest whim. The goals of Rule 11 are clearly undermined when a mere assertion of confusion by a defendant with little basis in substantive fact is allowed to defeat a properly entered plea. Thus, the extent of the Rule 11 inquiry must be an important consideration in determining whether a defendant may withdraw his plea. United States v. Strauss, 563 F.2d 127, 131 (4th Cir.1977).

In the present case, the Defendant did not equivocate, express confusion or a reluctance to enter a plea of guilty throughout the entire Rule 11 inquiry. As both the previous discussion and the record indicate, the Defendant was thoroughly questioned on the state of his physical and mental condition and on his understanding of his rights, the nature of the charge to which he pled guilty, the plea agreement itself and the sentence to which he could be subjected. Never during the entire course of the inquiry (which lasted nearly an hour) did the Court get even the slightest indication that the plea should not be entered. To allow the withdrawal of this plea would make a mockery of the judicial proceedings that occurred on January 28, 1985 and undermine the integrity of the Rule 11 inquiry. Under all of these circumstances, it would not be fair and just to allow the Defendant to withdraw his plea of guilty. His motion is denied.

      . Transcripts of various hearings in this case will hereafter be referred to as “Tr., (date of hearing), page and line number."

      . See Docket Item (“D.I.") 67, 68, 69.

      . Although Trott testified that the incident occurred in 1976, Tr. February 21, 1985, p. 7, line 10, it appears that he was not convicted and sentenced to federal prison until 1977. Tr. February 21, 1985, p. 63, line 13.


source: Caselaw Access Project

author: BATTISTI, Chief Judge.

license: Public Domain

text:
    RINI WINE CO., INC., Plaintiff, v. GUILD WINERIES AND DISTILLERIES, Defendant.
    No. C85-144.
    United States District Court, N.D. Ohio, E.D.
    March 14, 1985.

      Bernard S. Goldfarb, Mark V. Webber, Goldfarb & Reznick, Cleveland, Ohio, for plaintiff.
    James F. DeLeone, Jack Gregg Haught, Topper, Alloway & Goodman, Columbus, Ohio, for defendant.
   ORDER

BATTISTI, Chief Judge.

Defendant Guild Wineries [hereinafter referred to as “Guild”], a California corporation, has moved for change of venue to the United States District Court for the Northern District of California pursuant to 28 U.S.C. § 1404(a) and 1406(a). Defendant contends that a “choice of forum” clause which appears in the distributorship agreement between the parties places venue for any action arising out of that agreement in the State of California.

Plaintiff contends, inter alia, that the “choice of forum” clause is inapplicable in the instant case since its cause of action does not arise solely out of a breach of the distributorship agreement; rather, plaintiff alleges violations of both federal and state antitrust laws. Hence, plaintiff argues its choice of forum here in the Northern District of Ohio should be accorded great weight and accordingly, that venue be retained here.

For the reasons outlined below, Defendant’s Motion for Change of Venue is granted.

I.

Plaintiff Rini Wine Co. (“Rini”) is an Ohio corporation with its principal place of business in Cleveland, Ohio. Rini distributes wine, beer and other beverages in Cuyahoga County, Ohio. Rini has been distributing Cribari wine since 1952.

Sometime before June 1981, the defendant, Guild Winery and Distilleries, assumed production of Cribari wine (whether by purchase or license is not known to the Court). In June 1981, Guild sent Rini a so-called “Standard Form Distributor Agreement” distributorship agreement for Rini to execute. Paragraph 16 of the 20 paragraph agreement states:

LAW OF AGREEMENT. This agreement is to be governed by and construed according to the laws of the State of California and venue for any action entered under the agreement is agreed to be the State of California.

Rini executed the agreement on June 16, 1981. On December 8, 1984, Rini received a letter from Guild dated December 3,1984 in which Guild stated that it would terminate its distributorship agreement with Rini, effective sixty days from date of receipt of that letter, on February 6, 1985. The parties subsequently stipulated that the termination would not become effective until March 15, 1985.

On December 20, 1984, plaintiff filed suit against defendant in Cuyahoga County [Ohio] Commons Pleas Court. The action was removed on defendant’s motion to the United States District Court for the Northern District of Ohio on January 18, 1985. On January 22, 1985, plaintiff filed a five count amended complaint praying for injunctive and compensatory relief. Counts 1 and 2 allege violation of the Sherman Act and Ohio’s Valentine Antitrust Act, Ohio Rev.Code Ann. §§ 1331.01-14. Counts 3 and 4 claim violations of the Ohio Trade Practices Act, Ohio Rev.Code Ann. § 1333.-85, specifically the section entitled “Alcoholic Beverages Franchise Act”. Count 5 alleges a willful breach of the distributorship agreement on the part of the defendant.

On February 20, 1985, defendant filed the instant motion for change of venue.

II.

28 U.S.C. § 1404(a) states: “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

28 U.S.C. § 1406(a) states “The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.”

The Court adopts the reasoning of Pompei Winery v. Guild Wineries and Distilleries, Case No. C79-1670, slip op. (N.D. Ohio) (Krupansky, J) and finds its holding applicable and apposite to this case. In that case the same Defendant as the Court has here was alleged to have broken a distributorship agreement in violation of the Ohio Alcoholic Beverages Franchise Act. In addition the distributorship agreement in that case was identical in all material respects to the instant one. For the sake of completeness and responsiveness to nonmovant’s arguments, however, the Court will expand on its conclusions as they apply to the facts of the instant case.

Although forum selection clauses were once disfavored, they are now considered “prima facie valid” provided they are reasonable on their face. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)); In-Flight Devices Comp. v. Van Dusen Air, Inc., 466 F.2d 220 (6th Cir.1972). In order to defeat the forum selection clause, the party opposing enforcement of the clause must meet the burden of showing “enforcement would be unreasonable and unjust, or that the clause [is] invalid for such reasons as fraud or overreaching.” Bremen, 407 U.S. at 15, 92 S.Ct. at 1916.

Plaintiff has not met this burden in the instant case. The agreement that was made on June 16, 1981 shows the parties jointly consenting to venue; there is no allegation of fraud. Plaintiff, however, contends that the clause was part of a standard form agreement, that the clause was not freely bargained, and that it received no extra consideration for these provisions.

It is indeed clear that the Guild distributor agreement is a two-page printed form with blanks provided for the particulars; otherwise the agreement is in boilerplate. There are no modifications on the agreement that Rini and Guild executed; the only additions are the date of the agreement, plaintiff’s name and address, the products which are covered by the agreement and the territory covered, all of which are typed into the appropriate blanks. To this extent, the form in the instant case is comparable to the one that was used in Cutter v. Scott & Fetzer Co., 510 F.Supp. 905, 908 (W.D.Wisc.1981).

But the fact that the distributor agreements are boilerplate forms should not inherently defeat the validity of a forum-selection clause. Indeed, it is obvious that the boilerplate forms are not “freely bargained” contracts: the whole purpose of adhesion contractors is to expedite commercial transactions, eliminating the time spent in individual contract negotiations with a particular client. There would be little value in form contracts if extra consideration had to be exchanged for each provision. The true inquiry in examining whether a choice of forum clause is enforceable should not be the formal appearance of the contract but whether the party claiming the clause’s invalidity was aware of the provision, could have objected at the time, and had the means of doing so.

Both the Supreme Court in Bremen and the court in Cutter appear to have followed this approach: their examination is whether there was “fraud, undue influence, or overweening bargaining power.” Bremen, 407 U.S. at 12, 92 S.Ct. at 1914. The Cutter court looked at bargaining power not whether there was bargaining. In invalidating the clause, the Cutter court used the statutory presumption in the Wisconsin Fair Dealership Law that the manufacturer “is assumed to have ‘inherently superior economic power and superior bargaining in the negotiation of dealerships.’ ” Cutter, 510 F.Supp. at 908. The parties have not presented, nor is the Court aware from its own examination of the Alcoholic Beverages Franchise Agreement, a similar statutory presumption in Ohio. Section 1333.83 of the Ohio Rev. Code on written franchise agreements merely calls for “every manufacturer of alcoholic beverages [to] contract with or offer in good faith to its distributors a written franchise...” Plaintiff has not alleged excessive bargaining power on the part of Guild or stated that plaintiff was in any way coerced or defrauded into the agreement. There is no reason to believe with such a short agreement of only a few paragraphs that Rini did not know of paragraph 16 at the time of signing. The inconvenience and possible objections that plaintiff would “suffer by being forced to litigate in the contractual forum as it agreed to do was clearly foreseeable at the time of contracting.” Bremen, 407 U.S. at 17-18, 92 S.Ct. at 1917. Indeed, it appears that Rini was so willing to continue its arrangement with Guild and preserve the goodwill and business built up over 30 years that it promptly executed the form agreement, knowing and forewarned that there had been a change in management. It is unnecessary for all the specific conditions which were present in the Bremen case to attend here in order to uphold the validity of the clause. Specifically, whether the clause is a “vital part of the agreement” or the deal was “extraordinary” were merely factors mentioned in dicta in Bremen which fortified the Court’s view that the parties were aware of the clause and intended its effect when they entered into an agreement. These are not necessary conditions to enforcing the instant clause’s validity.

Plaintiff’s contends that even if the clause were valid, only actions for violation of the distributor agreement would be covered by the forum selection clause. Since plaintiff claims the “predominant claims of [its] amended complaint are other than breach of contract causes of action”, plaintiff argues the clause is inapplicable. Essentially, plaintiff alleges this is an antitrust action which also alleges violation of the Ohio Alcoholic Beverages Franchise Act. This Court does not believe determining the nature of this dispute can be determined simply by counting the number of causes of action and the order in which they appear in the complaint. Rather, the Court must look to the circumstances provoking the instant case. The incident from which this dispute arises is indeed the termination of the distributor agreement between Rini and Guild. Plaintiff has chosen to explain defendant’s conduct as an “unlawful combination and conspiracy” in violation of federal and state antitrust laws in its complaint. The question is whether plaintiff's mere characterization of this dispute as an antitrust matter should override the clause in the agreement which it freely entered. The Court thinks not.

Furthermore, plaintiff contends that defendant’s agreement to a stipulated extension of the effective termination date is an acknowledgment by defendant that this is an action under the Ohio Alcoholic Beverages Franchise Act, and not simply a breach of contract action. The Court, however, does not believe the stipulation can be so interpreted. The Court is not aware, of course, of the negotiations between counsel as to the contents of the stipulation. However, the stipulation states that “this extension is without prejudice to or waiver of any of the rights of the parties to contest or defend the legitimacy of the cancellation and/or to raise any other issues pending or to be pending in this case.” Hence, the defendant appears to explicitly have provided that its acquiescence would not be considered an acknowledgment of the Ohio statute’s applicability so as to bar venue or jurisdictional challenges.

The Court does not find that enforcement of the forum clause would contravene a strong public policy of the forum in which the suit is brought. Bremen, 407 U.S. at 15, 92 S.Ct. at 1916. As Judge Krupansky noted in Pompei, the forum clause also provided that the laws of the State of California would govern the distributor agreement and the constriction of that agreement. Plaintiff has not shown that Ohio’s interest in this action overwhelms or is different from that of California. There has been no showing that California does not have an interest in promoting fair trade practices, (which is the name of the chapter of the Ohio Revised Code in which the Alcoholic Beverages Franchise Act appears) or that California seeks to guarantee less than “good faith,” “reasonable cause” or “reasonable notice” in the franchise agreements executed by citizens of its state. It is true that Ohio has an interest in providing a local forum for its residents to enforce their rights but this interest is not substantial enough to defeat an otherwise valid “choice of forum” and choice of law clause. Finally, Ohio is not unique in enacting “its own antitrust laws.” See Areeda & Turner, I Antitrust Law 58 (1978). California has such an antitrust policy. While it is true that in the area of antitrust enforcement, federal law gives great deference to the state regulation of alcohol trade, see Areeda & Turner, supra at 57, 64, the instant motion presents not a choice between a state interest and a federal interest but between that of two states. Given all the other factors, the choice of forum clause does not contravene any strong public policy of the state of Ohio or the United States.

The final consideration under Bremen and sections 1404 and 1406 is whether the chosen forum is “seriously inconvenient for the trial of the action.” Bremen, 407 U.S. at 16, 92 S.Ct. at 1916. However, the showing of inconvenience must be substantial: “In such circumstances it should be incumbent on the party seeking to escape his contract to show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court.” Id. at 18, 92 S.Ct. at 1917. Plaintiff has not made such a showing. The claim is that by conducting the action in California, plaintiff’s business would suffer. However, litigation to one degree or another subjects all parties, whether corporations or individuals, to hardship. The essential inquiry is whether plaintiff could foresee these inconveniences at the time of entering into the agreement, and it is clear that it could. Finally, since there are at least two officers of Rini Wine Co., George Thomas and Edmund Thomas, plaintiff may need to take steps to schedule the participation at trial of only one officer at a time so the other may attend to the business. Since this action is essentially one for the termination of a distributorship agreement by Guild, it is not clear that the inconvenience of the officers of Rini outweighs that to the officers and witnesses of Guild who are in California and who would be questioned as to why, when and how they terminated the agreement with Rini.

Therefore, defendant Guild Wineries and Distilleries’ Motion for Change of Venue is granted. Accordingly, the above captioned case is transferred pursuant to 28 U.S.C. § 1404(a) to the United States District Court for the Northern District of California at San Francisco.

IT IS SO ORDERED.


author: CONABOY, District Judge.

text:
    UNITED STATES of America v. John M. COCCO, Defendant.
    No. CR 85-00043.
    United States District Court, M.D. Pennsylvania.
    March 15, 1985.
    Bernard V. O’Hare, Asst. U.S. Atty., M.D. of Pa., Bethlehem, Pa., for plaintiff.
    Joseph Sklarosky, Wilkes-Barre, Pa., for defendant.
   MEMORANDUM AND ORDER

CONABOY, District Judge.

We consider here a motion to revoke the order of United States Magistrate Robert C. Lear detaining Defendant Coceo pending his trial on criminal charges.

For the reasons outlined below, the motion will be denied.

i

The Defendant has been indicted and charged with violating Title 18 U.S.C. § 2252(a)(2), in that he did knowingly receive, through the U.S. Mails, an illustrated advertisement containing the visual depiction of minors engaging in sexually explicit conduct.

On March 1, 1985, Magistrate Lear held a detention hearing and found the Defendant presents a clear danger to the safety of persons in the community; that the Defendant constitutes a serious risk of attempting to obstruct justice by threatening to injure or intimidate prospective witnesses; and that no combination of conditions— short of confinement — can insure the safety of both potential witnesses and the community at large. As a result of these findings, the Defendant was ordered detained until trial and remains confined at the present time.

After the motion to revoke the detention order was filed, we issued a rule on the Government to show cause why this detention order should not be revoked and bail set. Pursuant to that rule both sides have filed briefs and provided the court with the transcript of the hearing before the magistrate, as well as the magistrate’s detailed detention order.

II

The proceedings we are concerned with here are all pursuant to Chapter 207 of the Comprehensive Crime Control Act of 1984, (the Act) (18 U.S.C.A. § 3141, et seq.). One of the dramatic nuances of the Act is the provision for pretrial detention — the basis of this motion. Section 3141 provides generally that a judicial officer (a magistrate) has the authority to detain or release a defendant pending judicial proceedings. Section 3142(e) provides the reasoning for ordering detention and § 3142(f) sets the parameters of the detention hearing. Section 3145 provides for review of the magistrate’s detention order by the district court. This section provides that the court may revoke or amend any such order.

The entire concept of pretrial detention is extremely controversial and invokes significant dispute as to its impact on very basic constitutional and legal rights such as the presumption of innocence, the burden of proof in criminal cases, the prohibition against self incrimination, and various other evidentiary and procedural problems. Traditionally, anyone accused of a crime is considered innocent until proven guilty at trial — and thus — with the exception of very specific instances — entitled to remain free on bail unless and until convicted. Bail, however, is an often misunderstood concept, and this misunderstanding, coupled with a natural concern with repeat commission of crimes by those on bail, or probation, or parole, led to a growing demand for a change in the law that would allow for pretrial detention. This public clamor had much to do with the bail reform provisions of the new crime control act.

Among the earliest of the pretrial detention acts was that passed in the District of Columbia (D.C.Code 1973 § 23-1322) and that Act soon brought attacks of constitutional proportions. The preventive detention (pretrial detention) feature of that Act passed constitutional muster however, and was the source of the provisions of the federal statute we discuss here. See U.S. v. Edwards, 430 A.2d 1321 (D.C.1981) (en banc), cert. denied, 455 U.S. 1022, 102 S.Ct. 1721, 72 L.Ed.2d 141 (1982) for a lengthy discussion and historical background of the concepts of bail and pretrial detention, etc.

Closer to home, we have the benefit of a memorandum of Judge William Caldwell of our court on the role of the district court pursuant to the review section of the Act— see U.S.A. v. Yeaple, 605 F.Supp. 85 (M.D.Pa.1985). In Yeaple, Judge Caldwell noted the statute gave no guidance as to the scope of the court’s review, but pointed out that a new hearing is not specifically required. He thus reviewed the hearing officer’s (the magistrate) findings to determine if they were supported by competent evidence, and determined whether there was an abuse of discretion or an error of law. We are in accord with this review process.

Where the Government seeks to detain a defendant prior to trial, it must proceed under § 3142(e) of the Act. The Government must allege the existence of one or more circumstances, which in this case are (1) that the crime involved is one of violence; and (2) that there is a serious threat of intimidation or harm to potential witnesses. Upon such allegations § 3142(f) requires the judicial officer to determine “whether any condition or combination of conditions set forth in subsection' (c) “will reasonably assure the appearance of the person as required and the safety of any other person and the community ...”. If the magistrate finds no condition or combination thereof can be established, he “shall order the detention of the person prior to trial”. § 3142(e).

Ill

The Act indicates the magistrate need only find a crime of violence or possible intimidation alleged by the Government to precipitate the need for further inquiry. But in this case the magistrate found evidence of both. Acknowledging that the concept of violence might be more readily apparent in other types of crimes, he found the crime charged against the Defendant “is that of corrupting the minds and morals of young adults, a crime of violence though of a much more insidious nature.” In face of the abundance of public information on the impact of aberrant sexual conduct on children one can readily agree with that finding in this case. The lengthy record (some 160 pages) of the detention hearing is replete with testimony describing the deviate conduct of a pedophile and the Defendant’s admission of such conduct over a long period of time in various sections of a number of communities in Northeastern Pennsylvania. The conduct included photography, and video-taping of young children in various states of dress and undress, in sexually explicit poses and positions, and sexually oriented interviews or conversations. Since “injury by or as if by distortion, infringement, or profanation” is an accepted definition of violence, certainly that conduct falls within the statute’s comprehension. [3142(f)(1)(A) ].

The magistrate also found that “by virtue of the Defendant having names and addresses of various potential witnesses perpetuated by virtue of videotape, there also exists a substantial risk to those witnesses that the Defendant would endanger them to prevent them from testifying in subsequent criminal proceedings arising by virtue of the fruits of the search.” (See Finding 22). Again, based upon the testimony referred to, that finding makes this a case that involves “a serious risk that the person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure or intimidate, a prospective witness or juror.” [See Section 3142(f)(2)(B)],

In addition to having heard sufficient testimony to justify a positive finding on these two predicate conditions — the magistrate also heard abundant testimony to conclude, as required by Section 3142(g), that “no conditions of release would reasonably assure the appearance of the person as required, and the safety of any other person in the community.”

There is testimony in the record, that on several occasions, prior to that for which he is charged, the Defendant had been advised by the postal service and U.S. Customs that they had seized child pornography addressed to him from overseas’ senders, and still his conduct with various aspects of child pornography (i.e. receipt of material and taking of photographs and videotapes) continued unabated.

There was testimony, too, in describing the known conduct of pedophiles, that it is common for them to continue their aberrant conduct even in the face of warnings. In addition, there was lengthy testimony about the large number of photographs and videotapes secreted in both Defendant’s home and office. There was also testimony of the admissions of the Defendant of his pedophiliac tendencies when confronted with the materials found in his possession.

To the Defendant’s credit the testimony also describes him as a good father and husband, a successful and respected businessman and generally, bearing a good reputation in his community. He is a substantial property owner and has no criminal record.

Based on our thorough review of the record of the detention hearings, the magistrate’s findings and detention order, as well as the submissions of the Government and the Defendant, we find that the magistrate properly considered (1) the nature of the offense charged; (2) the weight of the evidence against the Defendant; (3) the history and characteristics of the Defendant; and (4) the nature and seriousness of any danger to any person or the community posed by the Defendant’s released. We find further that there is clear and convincing testimony and evidence on which his conclusions were based. We, therefore, adopt and approve the order of detention and will deny the motion for revocation or amendment.

      . The court offered to provide time to allow either the Government or the Defendant to provide additional evidence or testimony, but the offer was declined and this decision is based on the record at the detention hearing.

      . No one would deny that any detention effects a clear and vital liberty interest — liberty from bodily restraint. Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1971); Greenholtz v. Nebraska, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1978). But in considering or writing about “pretrial detention statutes” courts and commentators distinguish between detention for "punishment” i.e. after conviction — and detention for "purpose of preventing flight or intimidating witnesses, etc.” Since the latter is usually allowed only for shorter periods — in this instance mandated by the Speedy Trial Rules — protection against it is obviously less than detention for punishment. See Wong Wing v. U.S., 163 U.S. 228 at 235, 16 S.Ct. 977 at 980, 41 L.Ed. 140 (1896); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963); and Bell v. Wolfish, 441 U.S. 520, 526, 99 S.Ct. 1861, 1867, 60 L.Ed.2d 447 (1979). But to the detainee — as pointed in the dissent in U.S. v. Edwards, infra — the detention may have the same painful impact as incarceration by any other name. See U.S. v. Edwards, infra, at 1355.

      . i.e. see 3142(f) which provides "The rules concerning admissibility of evidence in criminal trials do not apply to the presentation and consideration of information at the hearing.

      . A finding that no condition or combination of conditions will reasonably assure safety must be supported by clear and convincing evidence. 18 U.S.C. § 3142(f).

      . See Webster’s New Collegiate Dictionary, 1980.


author: HILLMAN, District Judge.

text:
    Daniel Lee HAYES, Plaintiff, v. David Duane HALL, Charles Edgar Smith, Pamela McCabe, Susan Marshall and Okemos Enterprises Incorporated, Defendants.
    No. G84-79 CA5.
    United States District Court, W.D. Michigan, S.D.
    March 15, 1985.

      Franklin Richard Brussow, Brussow & Krause, Lansing, Mich., for plaintiff.
    Norman H. Pylman II, Cholette, Perkins & Buchanan, Grand Rapids, Mich., for Smith and Okemos.
    John Tallman, Grand Rapids, Mich., for David Hall.
    Patrick A. Aseltyne, Cohl, Salstrom, Stoker & Aseltyne, Lansing, Mich., for McCabe & Marshall.
   OPINION RE MOTION TO DISMISS

HILLMAN, District Judge.

Defendants Susan Marshall and Pamela McCabe have filed a motion to dismiss for failure to state a claim, pursuant to Fed.R. Civ.P. 12(b)(6), and the matter is now before the court on that motion. They argue that plaintiff’s suit against them is barred by absolute prosecutorial immunity. Plaintiff disputes’ their entitlement to such immunity.

In 1982, plaintiff Daniel Lee Hayes (“Hayes”) was charged in the 55th District Court in Ingham County, Michigan, with assault and battery, a misdemeanor. The complaining witness was defendant Charles Edgar Smith (“Smith”), an employee of defendant Okemos Enterprises, Inc. The criminal proceeding followed from an altercation between Hayes and Smith in the Meridian Mall parking lot on January 31, 1982. The altercation was investigated by defendant David Duane Hall (“Hall”), a sargeant with the Meridian Township Police Department. Hall interviewed Hayes and Smith and Ginger Burns, an eyewitness, regarding the altercation. Defendants Susan Marshall and Pamela McCabe (“Marshall” and “McCabe”) were both assistant prosecuting attorneys with the Ingham County Prosecutor’s Office at the time, who briefly handled the resulting criminal proceeding at two stages prior to trial. The criminal trial resulted in a hung jury and charges against Hayes were dismissed by the district court on July 28, 1983. Plaintiff Hayes now sues defendants Hall, Smith, Marshall, McCabe and the Okemos Enterprises, Inc., alleging their conduct with respect to that criminal proceeding violated his civil rights. He seeks monetary damages in excess of $300,000 pursuant to 42 U.S.C. §§ 1983 and 1985. He also appears to be asserting tort claims under state law for intentional infliction of emotional distress.

I.

The purpose of a Rule 12(b)(6) motion to dismiss for failure to state a claim is to test the formal sufficiency of the complaint to state a redressable claim. However, the final sentence of Rule 12(b) provides that a 12(b)(6) motion to dismiss may be converted into a Rule 56 motion for summary judgment whenever matters outside the pleadings are presented to and accepted by the court. Wright & Miller, Federal Practice & Procedure: Civil §§ 1356 and 1366. On a motion for summary judgment under Rule 56, the movant bears the burden of showing conclusively that there is no genuine issue of material fact and that the movant is entitled to summary judgment as a matter of law. Smith v. Hudson, 600 F.2d 60 (6th Cir.1979); Tee-Pak, Inc. v. St. Regis Paper Co., 491 F.2d 1193 (6th Cir.1974); Fed.R.Civ.P. 56(a). The court is obligated to consider all “pleadings, depositions, answers to interrogatories, and admissions” on file, in addition to the material specifically offered in support of the motion. Smith, 600 F.2d at 64. In determining whether there are issues of fact requiring trial, “the inferences to be drawn from the underlying facts contained in the [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). A court may not resolve disputed questions of fact in a summary judgment decision and if a disputed question of fact remains, the motion should be denied, and the case should proceed to trial. United States v. Articles of Device, 527 F.2d 1008, 1011 (6th Cir.1976). In making its determination, the court must make reference to the entire record and all well-pleaded allegations are to be accepted as true. Daco Corp. v. Goodyear Tire and Rubber Co., 523 F.2d 389 (6th Cir.1975).

In support of their motion to dismiss, defendants McCabe and Marshall submitted affidavits and exhibits. Having accepted that extra-pleading material, I have examined the full record in the case in deciding defendants’ motion under Rule 56, including all depositions, affidavits, exhibits, answers to interrogatories and answers to requests to admit, as well as the briefs submitted by both sides. The conclusions flowing from that review follow.

II.

Plaintiff’s complaint contains the following allegations as to defendants McCabe and Marshall:

“1113. Defendants Pamela McCabe and Susan Marshall, who were at all times pertinent hereto, employees of the Ingham County Prosecutor’s Office, sought to continue to prosecute the Plaintiff without probable cause although they became aware that Defendant Hall withheld information from the Prosecutor’s Office in an attempt to cause criminal process to be issued for the arrest and prosecution of the Plaintiff.
¶ 14. That Defendant McCabe in defiance of a Court Order from the bench of the 55th District Court refused to provide exculpating evidence which would have assisted Plaintiff in his defense and thereby deprived Plaintiff of the due process and equal protection rights assured to him by the Federal and State Constitutions.
******
1129. That Defendant Susan .Marshall did knowingly take steps to intimidate Plaintiff to cause him to pay money to Defendant Smith.
¶ 30. That Defendant Marshall did refuse to terminate the prosecution of Plaintiff, notwithstanding, her having talked to an eyewitness whose testimony exculpated Plaintiff with regard to the criminal prosecution.
1131. That Defendant Marshall conspired with others and members of the Ingham County Prosecutor’s Office to continue to bring stress to bear upon Plaintiff and to cause Plaintiff to plead guilty to a lesser charge.
1132. That Defendant Marshall used her position as a Prosecutor in an attempt to coerce and force Plaintiff to forego his rights to a civil suit against Defendant Smith.
1133. That Defendant Marshall sought to withhold from Plaintiff rights assured to Plaintiff by the Federal Constitution and statutes, as well as the laws of the State of Michigan.
1134. That Defendant Marshall engaged in extreme and outrageous acts.
U 35. That Defendant Marshall intended to cause, or by her reckless disregard for the consequences of her acts, sought to cause Plaintiff to suffer severe emotional distress.
¶ 36. That Defendant Marshall, in fact, caused such severe emotional distress.”

The full record reveals that Marshall was an assistant prosecuting attorney for the Ingham County Prosecutor’s Office during pendency of the criminal charges against Hayes. In that capacity, she represented the People at a pre-trial conference held on June 9, 1982. Thereafter, she contacted two witnesses, at the request of Attorney Brussow, counsel for Hayes — witnesses Brussow contended would exculpate Hayes. After discussing the underlying altercation with them, it was Marshall’s opinion that their statements did not exculpate Hayes and she refused to terminate his prosecution. Marshall further participated in plea bargain negotiations with Hayes and his attorney in attempts to resolve the case short of trial. Plaintiff and his attorney characterize her efforts as a conspiracy to act as private counsel for Hall and Smith, in an effort to insulate them from civil liability. Plaintiff alleges that Marshall offered to dismiss the prosecution if Hayes would pay Smith $1,000 to cover Smith’s medical bills arising from the assault. What Hayes characterizes as a conspiracy, Marshall characterizes as normal plea bargain negotiations in an effort to resolve a criminal proceeding short of trial.

The record reveals that McCabe, in her capacity as an assistant prosecuting attorney for Ingham County, represented the People at a September 22, 1982, hearing before Judge Thomas R. Roberts in the 55th District Court on Hayes’ motions to quash, for a bill of particulars and to preserve testimony. The motion for bill of particulars requested at ¶ 10(D) “any recordation prior to the formulation of the formal police report that indicates [Smith] admitted responsibility for using language and physical force to escalate the tenor” of the underlying altercation between Hayes and Smith. In deciding the motion, Judge Roberts ruled that “[i]f there is any writing of any nature contained in the police report or otherwise” or “if there are any notes,” a copy was to be produced. Following the hearing, and while in the process of preparing answers to the .bill of particulars, McCabe contacted Sgt. Hall to discuss the police report and any notes he had. She met with Hall, asked him whether Smith had made the admission referenced in paragraph 10(D) of the motion, and when Hall said Smith had made no such statement to him, McCabe didn’t investigate further nor ask for a copy of Hall’s notes.

On September 24, 1982, one day prior to trial and two days following the hearing, McCabe filed the People’s answers to the bill of particulars indicating “no records or notes known to the police or the Prosecuting Attorney indicating the complainant admitted responsibility for using language or physical force to escalate the tenor of the transaction.” On September 24, 1982, she also received a proposed order regarding Judge Roberts’ rulings on the motion, which Mr. Brussow had drafted and signed. She crossed out the language therein calling for production of “any notes from which the police reports were formulated,” so that the amended order comported with her recall of the judge’s bench ruling. She then signed the amended proposed order and gave it to Prosecuting Attorney Seidlin, who was to try the case for the People beginning the following day. She asked Seidlin to give the order to Mr. Brussow and to have Mr. Brussow raise with the judge prior to trial any objections he might have to the amended order. Mr. Brussow was given the proposed amended order, but never obtained Judge Roberts’ signature on it.

The deposition testimony of Hayes reveals that Mr. Brussow, on the morning of the trial, showed Hayes the “proposed amended order” from McCabe, so both Hayes and Brussow knew before the trial began that the police notes had not been provided. Portions of the criminal trial transcript, which are attached to defendants’ motion, show that McCabe’s failure to produce the police notes was never brought to the court’s attention before or during the trial, notwithstanding at least one clear opportunity to do so — when Brussow cross-examined Sgt. Hall, Hall testified that he had his notes with him. Brussow asked to see them to determine if they comported with the typed police report. The prosecuting attorney objected on grounds that Sgt. Hall had not used the notes to refresh his memory. Mr. Brussow, despite the judge’s questioning regarding the notes, never told the judge that the notes were purportedly part of what the judge had ordered McCabe to produce. Mr. Brussow simply withdrew his request to see the notes. Brussow and Hayes now contend the notes constituted “exculpating evidence which would have assisted plaintiff in his defense.”

The record in this case is repleat with facts which Hayes characterizes one way and defendants characterize another. However, those factual disputes are irrelevant. Even accepting all of plaintiff’s allegations as true, and viewing all inferences in the light most favorable to plaintiff as the party opposing the motion, the conclusion is inescapable that plaintiff has failed to state a cognizable claim against McCabe and Marshall, as a matter of law.

III.

A. Civil Rights Claims.

The functional nature of the activities performed by McCabe and Marshall involved prosecutorial conduct for which they are absolutely immune under Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976); Hilliard v. Williams, 540 F.2d 220 (6th Cir.1976); Stefaniak v. State of Michigan, 564 F.Supp. 1194 (W.D.Mich.1983); Campbell v. Patterson, 724 F.2d 41 (6th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1613, 80 L.Ed.2d 142 (1984).

The scope of prosecutorial immunity under Imbler is wide, enveloping all prosecutorial functions “intimately associated with the judicial [as opposed to the administrative or investigative] phase of the criminal process.” Imbler, 424 U.S. at 430, 96 S.Ct. at 994. Even when the acts and omissions of the prosecutor deprive a criminal defendant of his constitutional right to a fair trial (as where a prosecutor knowingly suppressed Brady [v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)] material which would exonerate defendant, Hilliard, 540 F.2d at 221, or knowingly uses perjured testimony, Imbler, supra), as long as the conduct involves the decision to initiate, the initiation and/or the prosecution of a criminal proceeding, the policy underlying the grant of absolute immunity is invoked. Because section 1983 liability for damages would “prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system,” Imbler, 424 U.S. at 427-428, 96 S.Ct. at 993-994, conduct as egregious and reprehensible as that referenced above in Hilliard and Imbler enjoys immunity from section 1983 liability because that conduct comprises an integral part, of the prosecutor’s role in the judicial system.

The conduct alleged against McCabe and Marshall, no matter how it is characterized, involved functions “intimately associated with the judicial phase of the criminal process.” This is true even though McCabe and Marshall did not participate in the decision to issue the warrant or in the actual trial of the case. Once criminal charges have been filed, the handling of evidence, including witness statements, and police reports and notes, qualifies as part of the pursuit and presentation of the State’s case and hence qualifies for Imbler immunity, as would contacts with police and witnesses pertaining to such evidence. See Stefaniak, 564 F.Supp. at 1197. Finally, it cannot seriously be argued that representation of the People at the pre-trial conference and motion hearing, and participating in plea bargain negotiations is not “intimately associated with the judicial phase of the criminal process.” See Campbell v. Patterson, 724 F.2d 41 (6th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1613, 80 L.Ed.2d 142 (1984).

It is the intimate association between the prosecutorial conduct and the judicial phase of the criminal proceeding which is the supporting rationale for absolute immunity. Once that association and immunity are shown to exist, immunity is not ousted by characterizing the protected conduct as conspiratorial, unconstitutional, extreme, outrageous and/or reckless. Id., at 43. Indeed, applying Imbler, a prosecuting attorney was held immune even though the court found he had withheld an FBI report indicating there was no blood on an accused’s jacket, failed to prevent or to correct deceptive and misleading testimony, and instructed a witness to testify evasively, if not falsely. Hilliard, 540 F.2d at 221. Accordingly, defendants McCabe and Marshall are absolutely immune from section 1983 liability.

The reasons supporting absolute immunity in section 1983 cases apply with equal force to cases pursued under section 1985. Therefore, defendants McCabe and Marshall are also immune from section 1985 liability. See Cribb v. Pelham, 552 F.Supp. 1217, 1221 (D.So. Carolina 1982); White v. Bloom, 621 F.2d 276 (8th Cir. 1980), cert. denied, 449 U.S. 995 and 1089, 101 S.Ct. 533 and 882, 66 L.Ed.2d 292, 816; Universal Amusement Co., Inc. v. Hofheinz, 616 F.2d 202 (5th Cir.1980); Halpern v. City of New Haven, 489 F.Supp. 841 (D.C.Conn.1980); Raitport v. Provident National Bank, 451 F.Supp. 522 (E.D.Penn.1978).

B. State Tort Claims

The viability of any state tort claims against defendants McCabe and Marshall is controlled by state law. The prevailing Michigan view, up until very recently, favored “the Imbler policy of protecting the prosecutor’s independence of judgment from harassment due to the constant threat of potential litigation,” and accordingly held prosecutors absolutely immune from tort liability for conduct within the scope of their prosecutorial authority and duties. Payton v. Wayne County, 137 Mich.App. 361, 357 N.W.2d 700, 704-705 (1984); Bloss v. Williams, 15 Mich.App. 228, 166 N.W.2d 520 (1968).

Nine state cases involving governmental immunity issues were consolidated for expedited hearing before the Michigan Supreme Court in August, 1983, so the Court could reassess the issue of governmental immunity and the standards for applying same. On January 22, 1985, the Michigan Supreme Court released its long-awaited governmental immunity decision in Ross v. Consumers Power Co., 420 Mich. 567, 363 N.W.2d 641. After examining the history of governmental immunity and the governmental immunity statute, the court rejected prior tests for determining what qualified as a “government function” under the statute and formulated a new test defining a governmental function as “an activity which is expressly authorized by the Constitution, statute or other laws.”

The court then promulgated a test governing individual (as opposed to governmental agency) liability by establishing different categories of governmental employees and setting different liability standards for those categories. In support of adopting this test, the court noted the following policy justification for disparate treatment of individuals based upon their official function:

“ ‘ * * * The policy which only provides a limited immunity to lower level executive officials, unlike the justifications for absolute immunity, reflects a recognition that official immunity should not shield malicious or intentionally unlawful behavior when the actor is not engaged in broad, essential governmental decision-making. Holding these public servants liable does not hamper or intimidate them in the faithful discharge or [sic] their duties since they are responding to established administrative guidelines, regulations and informal policy. It is assumed, therefore, that an unreasonable burden does not fall on an administrative system when courts hold lower level executive employees liable for their acts performed in bad faith.”

(Emphasis added; citations omitted.) Id., at 632, 363 N.W.2d 641. Using that policy justification, the Michigan Supreme Court proceeded to hold that:

“5) Judges, legislators, and the highest executive officials of all levels of government are absolutely immune from all tort liability whenever they are acting within their respective judicial, legislative, and executive authority. Lower level officials, employees, and agents are immune from tort liability only when they are:
a) acting during the course of their employment and are acting, or reasonably believe they are acting, within the scope of their authority;
b) acting in good faith; and
c) performing discretionary-decisional, as opposed to ministerial-operational acts.
‘Discretionary-decisional’ acts are those which involve significant decision-making that entails personal deliberation, decision and judgment. ‘Ministerial-operational’ acts involve the execution or implementation of a decision and entail only minor decision-making.”

Id., at 592, 363 N.W.2d 641. The court went on to explain that determining whether- an act is “discretionary-decisional” or “ministerial-operation” requires an examination of the specific acts complained of, and no immunity would exist for ultra vires acts.

None of the nine cases consolidated in Ross involved immunity claims of prosecuting attorneys, and the Ross decision does- not specifically address how such claims should fare under the new rules. We are, therefore, left to decide whether prosecuting attorneys are included in the rule according absolute immunity from tort liability to “judges, legislators and the highest executive officials of all levels of government” acting within their respective authority, or whether prosecuting attorneys are governed by the “lower level officers, employees and agents” portion of the ruling. Having reviewed Michigan’s historical approach to prosecutional immunity and the complete opinion, I am satisfied that the Michigan Supreme Court would include prosecuting attorneys within the former, rather than the latter, category of governmental employees.

Historically, prosecuting attorneys have been recognized as “quasi-judicial” officers, whose duties are sufficiently judicial to cloak them with the same immunity afforded judges for the same reason: the public interest in having persons so closely identified with the judicial departments of government speak and act freely and fearlessly in discharging their official functions. The duties and functions of prosecuting attorneys are broadly construed to include express statutory functions and “such additional functions as may be necessarily implied from those specifically mentioned.” Bloss, 15 Mich.App. at 233, 166 N.W.2d 520. Furthermore, conduct of the prosecution of a case on behalf of the People is deemed to be an executive act, and as the “chief law enforcement officer of the county,” a prosecutor has the right to exercise broad discretion in instituting and pursuing prosecutions. People ex rel. Leonard v. Papp, 386 Mich. 672, 194 N.W.2d 693, 698 (1972). From any perspective, prosecuting attorneys are simply not “lower level” governmental employees. The policy justification quoted above distinguishes between high level officials (such as prosecutors) who are statutorily charged with broad and essential governmental decision-making (such as deciding when to initiate and/or terminate criminal prosecutions, and how to present the People’s case during the pre-trial and trial stages) and lower level officials not engaged in those essential activities. For all of these reasons, I interpret the Ross decision to accord absolute immunity from tort liability to prosecuting attorneys acting within the scope of their prosecutorial duties and authority.

Applying that rule to the case at hand, I am satisfied from the record in this case that all conduct alleged of defendants McCabe and Marshall occurred within the scope of their prosecutorial authority and duties. Accordingly, defendants McCabe and Marshall are entitled to summary judgment of dismissal as to any and all state tort claims asserted against them by plaintiff.

CONCLUSION

Defendants McCabe and Marshall’s motion to dismiss, converted to a Rule 56 motion for summary judgment of dismissal, is hereby granted. Plaintiff’s complaint against them is hereby dismissed.