United States v. Lionel Marquez, 909 F.2d 738 (2d Cir. 1990). · Go Syfert
United States v. Lionel Marquez, 909 F.2d 738 (2d Cir. 1990). Cases Citing This Book View Copy Cite
“where the plea is entered after the prosecutor threatens prosecution of a third party, courts have afforded the defendant an opportunity to show that probable cause for the prosecution was lacking when the threat was made.”
80 citation events (46 in the last 25 years) across 23 distinct courts.
Strongest positive: United States v. Seng Yong (ca9, 2019-06-07)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 47 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) United States v. Seng Yong (2×) also: Cited as authority (rule)
9th Cir. · 2019 · signal: see, e.g. · quote attribution · 1 verbatim quote · confidence high
where the plea is entered after the prosecutor threatens prosecution of a third party, courts have afforded the defendant an opportunity to show that probable cause for the prosecution was lacking when the threat was made.
cited Cited as authority (rule) Garrio v. United States
S.D.N.Y. · 2024 · confidence medium
Instead, the defendant bears “the burden of persuading the trial court that valid grounds for withdrawal exist.” United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990).
discussed Cited as authority (rule) Quinones v. United States
2d Cir. · 2016 · confidence medium
See, e.g., Ciak v. United States, 59 F.3d 296, 306 (2d Cir.1995), abrogated on other grounds, Mick-ens v. Taylor, 535 U.S. 162 , 122 S.Ct. 1237 , 152 L.Ed.2d 291 (2002); United States v. Marquez, 909 F.2d 738, 741 (2d Cir.1990).
cited Cited as authority (rule) United States v. Davis
S.D.N.Y. · 2012 · confidence medium
United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990).
discussed Cited as authority (rule) United States v. Salazar (2×) also: Cited "see, e.g."
2d Cir. · 2012 · confidence medium
“The inclusion of a third-party benefit in a plea bargain is simply one factor for a district court to weigh in making the overall determination whether the plea is voluntarily entered.” United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990); see also id. (“Since a defendant’s plea is not rendered involuntary because he enters it to save himself many years in prison, it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on others.”).
discussed Cited as authority (rule) United States v. Khan
2d Cir. · 2009 · confidence medium
It is well established that “[a] guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” United States v. Doe, 537 F.3d 204, 211 (2d Cir.2008) (quoting Machibroda v. United States, 368 U.S. 487, 493 , 82 S.Ct. 510 , 7 L.Ed.2d 473 (1962)). “‘It does not follow, however, that all inducements for a defendant to plead guilty render either a plea or the consequent waiver of the right to trial by jury involuntary.’ ” Id. (citation omitted). “ ‘Voluntary’ for purposes of entering a lawful plea to a criminal charge has never mean…
discussed Cited as authority (rule) United States v. Khan
2d Cir. · 2009 · confidence medium
It is well established that “[a] guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void.” United States v. Doe, 537 F.3d 204, 211 (2d Cir.2008) (quoting Machibroda v. United States, 368 U.S. 487, 493 , 82 S.Ct. 510 , 7 L.Ed.2d 473 (1962)). “‘It does not follow, however, that all inducements for a defendant to plead guilty render either a plea or the consequent waiver of the right to trial by jury involuntary.’ ” Id. (citation omitted). “ ‘Voluntary’ for purposes of entering a lawful plea to a criminal charge has never mean…
discussed Cited as authority (rule) United States v. Doe
2d Cir. · 2008 · confidence medium
“It does not follow, however, that all inducements for a defendant to plead guilty render either a plea or the consequent waiver of the right to trial by jury involuntary.” McMahon v. Hodges, 382 F.3d 284, 290 (2d Cir.2004). “ ‘Voluntary’ for purposes of entering a lawful plea to a criminal charge has never meant the absence of benefits influencing the defendant to plead.” United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990).
discussed Cited as authority (rule) United States v. Doe
2d Cir. · 2008 · confidence medium
“It does not follow, however, that all inducements for a defendant to plead guilty render either a plea or the consequent waiver of the right to trial by jury involuntary.” McMahon v. Hodges, 382 F.3d 284, 290 (2d Cir. 2004). “‘Voluntary’ for purposes of entering a lawful plea to a criminal charge has never meant the absence of benefits influencing the defendant to plead.” 9 United States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990).
discussed Cited as authority (rule) United States v. Bryan E. Spilmon
7th Cir. · 2006 · confidence medium
E.g., Politte v. United States, 852 F.2d 924, 929-30 (7th Cir.1988); United States v. Marquez, 909 F.2d 738, 741-43 (2d Cir.1990); United States v. Mescual-Cruz, 387 F.3d 1, 7-8 (1st Cir.2004); United States v. Hodge, 412 F.3d 479, 490-91 (3d Cir.2005).
discussed Cited as authority (rule) Howell v. State (2×)
Tenn. · 2006 · confidence medium
We, like the Eighth Circuit, observe that “ ‘[sjince a defendant’s plea is not rendered involuntary because he enters it to save himself [from the death penalty], it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on others.’ ” United States v. Vest, 125 F.3d 676, 679 (8th Cir.1997) (quoting United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990)).
cited Cited as authority (rule) United States v. Devin Hodge
3rd Cir. · 2005 · confidence medium
See id.; United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990).
cited Cited as authority (rule) United States v. Hodge
3rd Cir. · 2005 · confidence medium
See id.; United States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990).
discussed Cited as authority (rule) United States v. Mescual-Cruz
1st Cir. · 2004 · confidence medium
See United States v. Buckley, 847 F.2d 991 , 1000 n. 6 (1st Cir.1988) (rejecting the defendant's argument that an agreement promising lenient treatment of a pleading defendant’s family member is substantively unfair); United States v. Tursi, 576 F.2d 396, 398 (1st Cir.1978) (allowing defendant’s plea to be tied to the prosecutor's recommendation of a lighter sentence for the defendant's son, when defendant was advised of the consequences of pleading guilty and was counseled that any recommendation made by the prosecution regarding the son's sentence would in no way bind the court); see als…
discussed Cited as authority (rule) Alden Joe Daniel, Jr. v. State of Tennessee
Tenn. Crim. App. · 2003 · confidence medium
Hayes, 434 U.S. at 365 n.8, 98 S. Ct. at 669 . -9- Since that time, however, the federal circuit courts have consistently found that “a plea is not invalid if entered (a) under a plea agreement that includes leniency for a third party or (b) in response to a prosecutor’s justifiable threat to prosecute a third party if the plea is not entered.” United States v. Marquez, 909 F. 2d 738, 741 (2nd Cir. 1990), cert. denied, 498 U.S. 1084 , 111 S. Ct. 957 , 112 L.
examined Cited as authority (rule) Butala v. State (4×) also: Cited "see"
Minn. · 2003 · confidence medium
Danh, 516 N.W.2d at 542 (citing United States v. Marquez, 909 F.2d 738, 741 (2nd Cir.1990); In re Ibarra, 34 Cal.3d 277 , 193 Cal.Rptr. 538 , 666 P.2d 980, 986 (1983)).
discussed Cited as authority (rule) United States v. Fantauzzi
E.D.N.Y · 2003 · confidence medium
However, “a defendant has no absolute right to withdraw his plea of guilty,” see United States v. Avellino, 136 F.3d 249, 261 (2d Cir. 1998), but rather he bears “the burden of persuading the trial court that valid grounds for withdrawal exist.” United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990) (citing United States v. Figueroa, 757 F.2d 466, 475 (2d Cir.1985)).
discussed Cited as authority (rule) United States v. Shapiro
2d Cir. · 2002 · confidence medium
We have no reason to believe that the defendant’s statement was untrue: Pleas in exchange for a promise by the government not to prosecute a third party are valid, see United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990), and so the defendant would not have been under pressure to conceal a promise if one existed.
discussed Cited as authority (rule) United States v. Tavarez
S.D.N.Y. · 2001 · confidence medium
To the contrary, “a defendant has the burden of persuading the trial court that valid grounds for withdraw exist.” United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990). *279 Moreover, “[a] defendant is not entitled to an evidentiary hearing as a matter of right whenever he seeks to withdraw his guilty plea.” United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir.1992).
discussed Cited as authority (rule) State v. Bey
Kan. · 2001 · confidence medium
E.g., In re Ibarra, 34 Cal. 3d 277 , 193 Cal. Rptr. 538 , 666 P.2d 980, 986 (Cal. 1983); United States v. Marquez, 909 F.2d 738, 741 (2nd Cir. 1990); See also Bruce A. Green, ‘Package’ Plea Bargaining and the Prosecutor’s Duty of Good Faith, 25 Crim.
examined Cited as authority (rule) United States v. Shapiro (4×) also: Cited "see", Cited "see, e.g."
D. Conn. · 2001 · confidence medium
United States v. Marquez, 909 F.2d 738, 741 (2d Cir.1990) (government may threaten to prosecute a defendant’s wife if defendant did not accept plea bargain).
discussed Cited as authority (rule) United States v. Steven J. Vest (2×)
8th Cir. · 1997 · confidence medium
United States v. Wright, 43 F.3d 491, 498 (10th Cir. 1994); Weisberg, 29 -6- F.3d at 1279.6 “Since a defendant’s plea is not rendered involuntary because he enters it to save himself [from the death penalty], it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on others.” United States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990), cert. denied, 498 U.S. 1084 (1991).
discussed Cited as authority (rule) United States v. Steven J. Vest, Also Known as Norm (2×)
8th Cir. · 1997 · confidence medium
United States v. Wright, 43 F.3d 491, 498 (10th Cir.1994); Weisberg, 29 F.3d at 1279 . 6 “Since a defendant’s plea is not rendered involuntary because he enters it to save himself [from the death penalty], it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on others.” United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990), cert. denied, 498 U.S. 1084 , 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991).
discussed Cited as authority (rule) Gatto v. United States (2×) also: Cited "see"
E.D. Pa. · 1997 · confidence medium
See United States v. Clements, 992 F.2d 417, 419 (2d Cir.), cert. denied, 510 U.S. 919 , 114 S.Ct. 316 , 126 L.Ed.2d 262 (1993); United States v. Seligsohn, 981 F.2d 1418, 1426 (3d Cir.1992); United States v. Pollard, 959 F.2d 1011, 1020-21 (D.C.Cir.), cert. denied, 506 U.S. 915 , 113 S.Ct. 322 , 121 L.Ed.2d 242 (1992); United States v. Marquez, 909 F.2d 738, 741-42 (2d Cir.1990), cert. denied, 498 U.S. 1084 , 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991); Politte v. United States, 852 F.2d 924, 930-31 (7th Cir.1988); United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir.1987), aff'd, 486 U.S. 153 , …
discussed Cited as authority (rule) United States v. Sonia Mejia
2d Cir. · 1997 · confidence medium
United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990). 11 In this case, Judge Trager found that even if Mejia was truly concerned about her daughter's merely being subpoenaed, the plea would not thereby be rendered involuntary.
cited Cited as authority (rule) Torrez v. State
Tex. App. · 1996 · confidence medium
United States v. Marquez, 909 F.2d 738, 742 (2nd Cir.1990), cert. denied, 498 U.S. 1084 , 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991).
examined Cited as authority (rule) Vernard Miles, Jr. v. Donald A. Dorsey, Warden Attorney General of the State of New Mexico (6×) also: Cited "see"
10th Cir. · 1995 · confidence medium
See Mosier, 790 F.2d at 66 (plea offered by man to protect his validly indicted wife and mother-in-law from prosecution held not involuntary); Marquez, 909 F.2d at 741-42 (plea entered by man to protect his wife from prosecution held not involuntary); LoConte v. Dugger, 847 F.2d 745, 752-53 (11th Cir.) (same), cert. denied, 488 U.S. 958 , 109 S.Ct. 397 , 102 L.Ed.2d 386 (1988). 27 In the instant case, Petitioner does not argue that the government lacked probable cause to charge his family with offenses relating to their concealment of evidence of his alleged crimes.
discussed Cited as authority (rule) Terry P. Daniels v. United States
7th Cir. · 1995 · confidence medium
See Winkler v. Keane, 7 F.3d 304, 308 (2d Cir.1993) (contingent fee in criminal case created actual conflict of interest), ce rt. denied, — U.S. —, 114 S.Ct. 1407 , 128 L.Ed.2d 79 (1994); United States v. Marrera, 768 F.2d 201, 207 (7th Cir.1985) (attorney’s interest in movie rights to client’s story created potential conflict of interest), cert. denied, 475 U.S. 1020 , 106 S.Ct. 1209 , 89 L.Ed.2d 321 (1986); United States v. Marquez, 909 F.2d 738, 741 (2d Cir.1990) (noting that prosecutor’s attempt to use release of confiscated funds, which would be used to pay defense attorney, as …
discussed Cited as authority (rule) State v. Danh (2×)
Minn. · 1994 · confidence medium
E.g., In re Ibarra, 34 Cal.3d 277 , 193 Cal.Rptr. 538 , 666 P.2d 980, 986 (Cal.1983); United States v. Marquez, 909 F.2d 738, 741 (2nd Cir.1990); See also Bruce A. Green, “Package” Plea Bargaining and the Prosecutor’s Duty of Good Faith, 25 Crim.L.Bull. 507, 516-521 (1989).
cited Cited as authority (rule) USA v. Giovanella, Jr.
D.N.H. · 1993 · confidence medium
United States v. Tursi, 576 F.2d 396, 398 (1st Cir. 1978); United States v. Marquez, 909 F.2d 738, 741-42 (2d Cir. 1990), cert, denied, 498 U.S. 1084 (1991).
cited Cited as authority (rule) State v. Danh
Minn. Ct. App. · 1993 · confidence medium
United States v. Marquez, 909 F.2d 738, 741 (2nd Cir.1990), cert. denied, 498 U.S. 1084 , 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991).
discussed Cited as authority (rule) United States v. Millan-Colon
S.D.N.Y. · 1993 · confidence medium
The defendant has the burden of persuading the Court that valid grounds exist for the plea’s ■withdrawal, see United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir.1992); United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990), cert. denied, 498 U.S. 1084 , 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991), and that such action is “fair and just” taking into account any prejudice resulting to the government.
discussed Cited as authority (rule) United States v. Jonathan Jay Pollard (2×) also: Cited "see"
D.C. Cir. · 1992 · confidence medium
SeeUnited [ 295 U.S.App.D.C. 17 ] States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990) (citing cases from First, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits), cert. denied, --- U.S. ----, 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991). 29 We agree with our sister circuits that plea wiring does not violate the Constitution.
discussed Cited as authority (rule) United States v. Rodriguez
2d Cir. · 1992 · confidence medium
He bears the burden of persuading the trial court that valid grounds for withdrawal exist, and the district court's decision to deny a motion to withdraw a guilty plea will be reversed only if its factual findings are clearly erroneous, see United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991), or the denial is an abuse of discretion, see United States v. Figueroa, 757 F.2d 466, 475-76 (2d Cir.), cert. denied, 474 U.S. 840 , 106 S.Ct. 122 , 88 L.Ed.2d 100 (1985). 61 In his plea allocution, Rodriguez gave no indication th…
discussed Cited as authority (rule) United States v. Rodriguez
2d Cir. · 1992 · confidence medium
He bears the burden of persuading the trial court that valid grounds for withdrawal exist, and the district court’s decision to deny a motion to withdraw a guilty plea will be reversed only if its factual findings are clearly erroneous, see United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990), cert. denied, - U.S. -, 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991), or the denial is an abuse of discretion, see United States v. Figueroa, 757 F.2d 466, 475-76 (2d Cir.), cert. denied, 474 U.S. 840 , 106 S.Ct. 122 , 88 L.Ed.2d 100 (1985).
discussed Cited as authority (rule) United States v. Contractor, Robert Sebastian D'Souza
2d Cir. · 1991 · confidence medium
We have recently held that pressure on a defendant “arising from the Government’s insistence that a plea bargain would not be offered to his wife unless he pled guilty” was not a sufficient ground to withdraw a guilty plea under Rule 32(d), United States v. Marquez, 909 F.2d 738, 741 (2d Cir.1990); therefore, pressure based on a benefit bestowed on a mere friend is certainly not an adequate basis for withdrawal of the plea.
discussed Cited "see" United States v. Beltran-Leyva (Guzman Loera)
2d Cir. · 2022 · signal: see · confidence high
See United States v. Marquez, 909 F.2d 738 , 740 n.1 (2d Cir. 1990). 3 The numbering of the counts is from the jury’s verdict sheet and differs from the numbering of the counts in the superseding indictment. 6 Discussion 1.
cited Cited "see" State v. McIntosh
Ohio Ct. App. · 2018 · signal: see · confidence high
See generally U.S. v. Marquez, 909 F.2d 738 , 741- Scioto App. Nos. 17CA3792 and 17CA3801 14 742 (2d Cir.1990).
cited Cited "see" Garafola v. United States
S.D.N.Y. · 2012 · signal: see · confidence high
See United States v. Marquez, 909 F.2d 738, 741-42 (2d Cir. 1990); see also Babi v. LaClair, No. 06 Civ. 14204, 2009 WL 1181615 , at *12 (S.D.N.Y.
cited Cited "see" United States v. Marlene Esther Seligsohn, A/K/A Esther Demarco, in No. 91-2083. United States of America v. Melvin Seligsohn, A/K/A Mickey Demarco, in No. 91-2093. United States of America, in No. 92-1038 v. Melvin Seligsohn, A/K/A Mickey Demarco. United States of America v. Mark Seligsohn, A/K/A Mark Mancini, in No. 91-2100
3rd Cir. · 1993 · signal: see · confidence high
See United States v. Marquez, 909 F.2d 738, 741-42 (2d Cir.1990); United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir.1987), aff'd, 486 U.S. 153 , 108 S.Ct. 1692 , 100 L.Ed.2d 140 (1988).
cited Cited "see" United States v. Seligsohn
3rd Cir. · 1992 · signal: see · confidence high
See United States v. Marquez, 909 F.2d 738, 741-42 (2d Cir.1990); United States v. Wheat, 813 F.2d 1399, 1405 (9th Cir.1987), aff'd, 486 U.S. 153 , 108 S.Ct. 1692 , 100 L.Ed.2d 140 (1988).
cited Cited "see" United States v. Diaz
S.D.N.Y. · 1991 · signal: see · confidence high
United States v. Quinones, 906 F.2d 924, 928 (2d Cir.1990); see United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990); United States v. Figueroa, 757 F.2d 466, 475 (2d Cir.1985).
discussed Cited "see, e.g." State of Iowa v. Nicholas Thorne Wireman
Iowa Ct. App. · 2016 · signal: see, e.g. · confidence low
See, e.g., United States v. Marquez, 909 F.2d 738 , 741–42 (2d Cir. 1990) (holding the defendant’s plea was voluntary despite the prosecutor’s offer of leniency to defendant’s wife being conditioned on his pleading guilty and discussing other federal circuit court cases concluding the same); see also United States v. Gamble, 327 F.3d 662, 664 (8th Cir. 2003) (holding plea was voluntary even though “the government would only agree to more lenient treatment for his brother if Gamble himself pleaded guilty”).
discussed Cited "see, e.g." United States v. Cruz
W.D.N.Y. · 2007 · signal: see also · confidence medium
See also United States v. Marquez, 909 F.2d 738, 742 (2nd Cir.1990) (“Since a defendant’s plea is not rendered involuntary because he enters it to save himself many years in prison, it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on others”); Politte v. United States, 852 F.2d 924, 930 (7th Cir.1988) (“We hold that a good faith prosecution of a third party, coupled with a plea agreement which provides for a recommendation of a lenient sentence for that third party, cannot form the basis of a claim of coercion by a de…
discussed Cited "see, e.g." United States v. Speed Joyeros, S.A.
E.D.N.Y · 2002 · signal: see, e.g. · confidence low
See, e.g., United States v. Marquez, 909 F.2d 738 (2d Cir.1990) (“Any attempt to use the prospect of getting the defendant’s lawyer paid from seized funds as a bargaining chip to obtain a concession from the defendant poses the potential for a serious conflict of interest.”); cf. Cuyler v. Sullivan, 446 U.S. 335, 343-45 , 100 S.Ct. 1708 , 64 L.Ed.2d 333 (1980) (states may not conduct trials in a way that unconstitutionally impairs a defendant’s right to effective counsel).
discussed Cited "see, e.g." United States v. Harvey Russell Wright, Jr.
10th Cir. · 1994 · signal: see, e.g. · confidence medium
See, e.g., United States v. Marquez, 909 F.2d 738, 742 (2d Cir.1990) (“Where the plea is entered after the prosecutor threatens prosecution of a third party, courts have afforded the defendant an opportunity to show that probable cause for the prosecution was lacking when the threat was made.”), cert. denied, 498 U.S. 1084 , 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991); Martin v. Kemp, 760 F.2d 1244, 1247-48 (11th Cir.1985) (holding that defendant demonstrated that the “government did not observe a ‘high standard of good faith’ based upon probable cause to\believe that the third party had…
discussed Cited "see, e.g." United States v. Robert D. O'Hara
2d Cir. · 1992 · signal: compare · confidence medium
Compare United States v. Marquez, 909 F.2d 738, 740 (2d Cir.1990) (applying “clearly erroneous” standard), cert. denied, — U.S. -, 111 S.Ct. 957 , 112 L.Ed.2d 1045 (1991); United States v. Michaelson, 552 F.2d 472, 475 (2d Cir.1977) (same); and United States v. Podell, 519 F.2d 144, 148 (2d Cir.) (same), cert. denied, 423 U.S. 926 , 96 S.Ct. 270 , 46 L.Ed.2d 252 (1975), with United States v. Needles, 472 F.2d 652, 656 (2d Cir.1973) (applying “abuse of discretion” standard); United States v. Hughes, 325 F.2d 789, 792 (2d Cir.) (same), cert. denied, 377 U.S. 907 , 84 S.Ct. 1167 , 12 L.…
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Lionel MARQUEZ, Defendant-Appellant
1150, Docket 89-1609.
Court of Appeals for the Second Circuit.
Jul 26, 1990.
909 F.2d 738
Lawrence A. Vogelman, New York City, (Barry C. Scheck, Ellen Yaroshefsky, New York City, on brief), for defendant-appellant., Anne T. Vitale, Asst. U.S. Atty., New York City (Otto G. Obermaier, U.S. Atty., Joan McPhee, Asst. U.S. Atty., New York City, on brief), for appellee.
Van Graafeiland, Newman, Kearse.
Cited by 56 opinions  |  Published
JON O. NEWMAN, Circuit Judge:

This appeal presents the issue of whether a guilty plea is lawful where the Government informs the defendant that it will agree to a plea bargain in his wife’s ease only if he pleads guilty. The appeal also implicates the issue of whether the Government may obtain concessions from defense counsel by offering to release seized funds for payment of attorney’s fees. These issues arise on an appeal by Lionel Marquez from the November 17, 1989, judgment of the District Court for the Southern District of New York (Gerard L. Goettel, Judge) convicting him upon his plea of guilty to charges involving drug trafficking and tax evasion. We conclude that the guilty plea was validly entered, that leave to withdraw the plea was validly denied, and that the judgment should be affirmed.

Facts

On December 14, 1987, Government agents arrested Marquez and his wife for conspiracy to distribute narcotics and seized various items from their home, including $876,915 in cash. After indicting the couple and others on various charges, the Government obtained a restraining order against the cash, pursuant to the criminal forfeiture provisions of 21 U.S.C. § 853(e)(1)(A) (1988).. Thereafter, this Court ruled that funds legitimately needed for living expenses, including attorney’s fees, were not subject to restraint or forfeiture under section 853. See United States v. Monsanto, 852 F.2d 1400 (2d Cir.1988) (in banc), rev’d, — U.S. -, 109 S.Ct. 2657, 105 L.Ed.2d 512 (1989).

In the interim between this Court’s decision in Monsanto and the Supreme Court’s reversal of that decision, the Government initiated civil forfeiture proceedings against the cash seized from Marquez, pursuant to 21 U.S.C. § 881 (1988). Judge Goettel ruled that our decision in Monsanto controlled and ordered the Government to release $100,000 of the seized funds to pay the retainer of Marquez’s lawyer and to release additional funds for legal fees, if needed. On the Government’s appeal, we affirmed. United States v. $876,915.00 United States Currency, 874 F.2d 104 (2d Cir.1989). We also directed Judge Goettel to take all necessary steps, within reason, to bring the criminal case to trial at the earliest possible date. Id. at 107.

A pretrial conference was held in the criminal case on May 12, 1989. The Government informed Judge Goettel that the $100,000 check had not yet been turned over to Marquez’s lawyer, Richard Reh-bock. The prosecutor also announced that it would turn over the check only if Reh-bock agreed to a firm trial date no later than June 12, 1989. The prosecutor added that, if agreement to such a date was not reached, it would ask the Supreme Court to stay the order requiring the turnover of[*740] $100,000, anticipating that the Court would reverse Monsanto, which had already been argued. Rehbock strenuously objected, calling the Government’s position “extortion” and contending that the Government “is putting me once again in the position of conflict of interest. I sacrifice my client’s rights in exchange for mine.” He told Judge Goettel that he needed 60 days to prepare for trial and would be ready immediately after July 4.

Judge Goettel stated that he wanted to bring the case to trial quickly in view of the incarceration of Marquez and his wife and that “forgetting [the prosecutor’s] position completely,” he had “more or less fixed” on a trial date of June 12 before the Government announced its position. After being informed that counsel for Mrs. Marquez had a scheduling conflict, Judge Goet-tel set a trial date of June 19. That date was subsequently postponed to July 5.

On June 30, Marquez and his wife pled guilty pursuant to plea agreements. At that time Marquez was named in 23 counts of a superseding indictment, and his wife was named in 19 counts. [1] The indictment alleged various narcotics, gambling, racketeering, money laundering, and tax offenses, including a violation of 21 U.S.C. § 848(a) (1988) (continuing criminal enterprise). Marquez pled guilty to six counts, including the section 848(a) violation, and his wife pled guilty to three counts. The plea agreements included a stipulation that his sentence would be within the range of 240 to 293 months and his wife’s sentence would be within the range of 121 to 151 months, significantly below the guideline range of 360 months to life, which the Government represented would apply to the facts of their most serious offenses. See U.S.S.G. § 6B1.2(c)(2).

On September 5, Marquez moved pro se to withdraw his guilty plea, pursuant to Federal Rule of Criminal Procedure 32(d). He alleged inadequate legal representation in that his lawyer was unprepared and had been interested only in obtaining a fee from the seized funds. He also alleged that the circumstances concerning his wife put undue pressure on him to plead guilty and that he had had insufficient time to become aware of the plea agreement and to discuss it with his lawyer. A hearing was held on October 13, at which time his current counsel entered their appearances in substitution of Attorney Rehbock and filed supplemental motion papers. At the hearing, Rehbock testified that the $100,000 had been released to him on June 6 and that he had spent most of his time in June preparing for' trial. He also testified to extensive conversations that he had had with Marquez both before and after discussing the general outlines of the plea agreement with senior officials of the United States Attorney’s office. Finally he expressed his opinion that Marquez had pled voluntarily and that all of his answers to the Rule 11 allocution had been truthful. At the conclusion of the hearing, Judge Goettel denied the motion, finding that the plea was voluntary and that Marquez had been well represented by counsel. The District Judge acknowledged that part of Marquez’s motivation to enter his plea may have been a desire to assist his wife, but concluded that this circumstance did not render the plea involuntary.

A few days later, Marquez was sentenced to an aggregate prison term of 23 years and fined $100,000. A judgment of forfeiture was also entered as to all of the seized assets.

Discussion

On a Rule 32(d) motion to withdraw a guilty plea, a defendant has the burden of persuading the trial court that valid grounds for withdrawal exist, United States v. Figueroa, 757 F.2d 466, 475 (2d Cir.), cert. denied, 474 U.S. 840, 106 S.Ct. 122, 88 L.Ed.2d 100 (1985), and the court’s decision that the burden has not been met will be reversed only if clearly erroneous, United States v. Michaelson, 552 F.2d 472, 475 (2d Cir.1977).

[*741] 1. Marquez contends, first, that his plea should have been withdrawn because he was denied the effective assistance of counsel, a claim he premises on the assertion that his former lawyer had a conflict of interest because of concern for obtaining a fee from the seized money. In this case, the release of the $100,000 to pay Rehbock’s fee was ordered by this Court under the then applicable authority of our Monsanto decision. Rehbock had no conflict of interest in seeking and obtaining the benefit of that decision. However, the Government came perilously close to creating a conflict of interest situation by attempting to extract a concession from Rehbock concerning a trial date as a condition of its compliance with the order to turn over the funds. Fortunately, Judge Goettel wisely brushed aside the Government’s position and set a trial date entirely independently of that position. The initial trial date, June 19, was set without regard to the $100,000 payment, which the Government was ordered to make without any concession on the part of Rehbock. Moreover, the initial trial date was later postponed to July 5, thereby giving Rehbock precisely the amount of trial preparation time that he had requested.

Although the Government’s demand at the hearing was without consequence, the prosecution nonetheless seeks to justify its linkage of release of $100,000 of forfeited funds with starting the trial in 30 days by pointing out the reasons for beginning the trial promptly. Thus, the Government notes that this Court had expressed concern about a prompt trial in order to safeguard the speedy trial rights of Marquez’s wife and because of the incarceration of Marquez and his wife. The prosecutor’s solicitude for a speedy trial misses the point. Though the Government has an interest in compliance with speedy trial requirements, any attempt to use the prospect of getting the defendant’s lawyer paid from seized funds as a bargaining chip to obtain a concession from the defendant poses the potential for a serious conflict of interest. Now that the Supreme Court has upheld the lawfulness of a pretrial seizure of forfeitable money, without an exception for reasonable expenses such as legal fees, trial courts must scrutinize with utmost care any effort by the Government to use its control of seized funds in negotiating with defense counsel. We need not rule in this case whether any such negotiation would affect the validity of concessions made by defense counsel, since no concession was made in this case. However, we caution that if such negotiations are valid, the informed consent of the defendant should be obtained on the record.

Marquez’s claim that Rehbock devoted inadequate attention to representing him is belied by the record. As a result of Reh-bock’s efforts, the maximum sentence Marquez faced was reduced from life to 293 months, and the minimum was reduced from 360 to 240 months. The sentence ultimately imposed was seven years less than the minimum term Marquez faced before the plea agreement was negotiated. Moreover, Judge Goettel was entitled to credit Rehbock’s testimony concerning the time devoted to trial preparation.

2. Marquez next contends that his plea was involuntary because of the pressure on him arising from the Government’s insistence that a plea bargain would not be offered to his wife unless he pled guilty. In Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, 668 n. 8, 54 L.Ed.2d 604 (1978), the Supreme Court noted but found no need to consider “the constitutional implications of a prosecutor’s offer during plea bargaining of adverse or lenient treatment for some person other than the accused.” This Circuit appears not to have ruled on the matter, though all of the other circuits that have considered the issue have concluded that a plea is not invalid if entered (a) under a plea agreement that includes leniency for a third party or (b) in response to a prosecutor’s justifiable threat to prosecute a third party if the plea is not entered: First Circuit, Kent v. United States, 272 F.2d 795, 798 (1st Cir.1959) (threat to prosecute defendant’s fiancé); Fourth Circuit, Harman v. Mohn, 683 F.2d 834, 836-38 (4th Cir.1982) (dismissal of charges against defendant’s wife); Fifth Circuit, United States v. Diaz, 733 F.2d[*742] 371, 375 (5th Cir.1984) (threat to prosecute defendant’s sister and brother-in-law); Sixth Circuit, United States v. Usher, 703 F.2d 956, 958 (6th Cir.1983) (reduced sentence for defendant’s wife); Seventh Circuit, Politte v. United States, 852 F.2d 924, 929-31 (7th Cir.1988) (same); Ninth Circuit, Cortez v. United States, 337 F.2d 699 (9th Cir.1964) (reduced charges against defendant’s wife), cert. denied, 381 U.S. 953, 85 S.Ct. 1811, 14 L.Ed.2d 726 (1965); Tenth Circuit, Mosier v. Murphy, 790 F.2d 62, 66 (10th Cir.) (charges dismissed against defendant’s wife and mother-in-law), cert. denied, 479 U.S. 988, 107 S.Ct. 582, 93 L.Ed.2d 584 (1986); Eleventh Circuit, Martin v. Kemp, 760 F.2d 1244, 1248 (11th Cir.1985) (threat to prosecute defendant’s wife); see also ALI Model Code of Pre-Ar-raignment Procedure § 350.3 commentary at 616-17 (1975) (noting unanimous rejection by ALI Council of recommendation to forbid plea bargains containing third-party benefits); cf. United States v. Castello, 724 F.2d 813 (9th Cir.) (prosecutor conditions plea agreement on guilty pleas from all defendants), cert. denied, 467 U.S. 1254, 104 S.Ct. 3540, 82 L.Ed.2d 844 (1984). Where the plea is entered after the prosecutor threatens prosecution of a third party, courts have afforded the defendant an opportunity to show that probable cause for the prosecution was lacking when the threat was made. Martin v. Kemp, 760 F.2d at 1248; United States v. Nuckols, 606 F.2d 566, 569-70 (5th Cir.1979).

We agree with this unanimity of view. The question in every case resolved by a guilty plea is whether the plea is voluntary. “Voluntary” for purposes of entering a lawful plea to a criminal charge has never meant the absence of benefits influencing the defendant to plead. Since a defendant’s plea is not rendered involuntary because he enters it to save himself many years in prison, it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on others. Some courts have expressed the view that the prospect of a benefit to a third party poses a greater risk of undue pressure upon a defendant than the chance to secure a reduced sentence for himself, see United States v. Nuckols, 606 F.2d at 569; United States v. Tursi, 576 F.2d 396, 398 (1st Cir.1978), though this view has been doubted, see Allyn v. Commissioner of Correctional Services, 708 F.Supp. 592, 594 n. 3 (S.D.N.Y.1989).

A plea negotiation that includes a benefit to a third person can place pressure on a defendant in two respects. The defendant feels the weight of his own concern to have the benefit conferred and also endures the entreaty of the third person who is anxious to receive the benefit. Such pressures can arise in at least three contexts: (a) the defendant can offer to plead if the benefit is conferred, [2] (b) the prosecutor can inform the defendant that the benefit will be conferred if the defendant pleads, and (c) the prosecutor can inform the third party that the benefit will be conferred if the defendant pleads. The first context might seem least likely to create undue pressure for the defendant, since the third-party arrangement originates with him. The third context might seem likely to pose the greatest likelihood of pressure, since the third party’s urging will weigh with the defendant in addition to the defendant’s desire to help the third party. In most cases, however, the extent of the pressure arising from the prospect of conferring a benefit on a third party will probably be most significantly affected, not by the way the offer arose, but by the extent of the benefit to be conferred and the relationship of the defendant to the third party.

The inclusion of a third-party benefit in a plea bargain is simply one factor for a district court to weigh in making the overall determination whether the plea is voluntarily entered. See United States v. Daniels, 821 F.2d 76, 80 (1st Cir.1987). In this case, Judge Goettel conducted a thorough Rule 11 allocution. Moreover, the facts concerning the involvement of defendant’s wife in the criminal activity and the[*743] extent of her benefit were fully aired before the District Court when she and her husband entered their pleas at the same hearing. Both were ably represented by separate counsel. The record supports the finding that Marquez’s plea was voluntary, and there is no basis for disturbing the District Court’s decision denying the motion to withdraw the plea.

The judgment of the District Court is affirmed.

1

. The indictment is identified as "SSSSSSSSS 87 Cr. 974”. The profusion of S’s, we are told, indicates that it is the ninth superseding indictment. Perhaps consideration might be given to designating such an indictment as "87 Cr. 974(S9)” or "87 Cr. 974-S9”.

2

. Of the reported federal appellate decisions concerning plea agreements benefitting third parties, the proposal for the benefit originated with the defendant only in United States v. Usher, 703 F.2d at 958.