UNITED STATES of America, v. William P. MONAC, III, Appellant, 120 F. App'x 924

OPINION OF THE COURT YOHN, District Judge. On September 26, 2003, William P. Monac III pled guilty to sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a). On the day before sentencing, he filed a motion to withdraw his plea, claiming that he was actually innocent, that he had pled guilty only because he lacked the financial resources to pursue his defense, and that he had pled guilty on the belief that the government would move for a downward departure at sentencing.

After an evidentiary hearing, the district court denied the motion and sentenced Monac to the statutory mandatory minimum of ten years in prison. Monac now appeals the district court’s denial of his motion to withdraw his guilty plea. He argues that the district court erred in holding that he did not offer a “fair and just reason” to withdraw his plea. He also contends that his plea should be set aside because the district court failed to inform him during the Rule 11 plea colloquy that a mandatory minimum sentence was applicable in his case.

The district court had jurisdiction under 18 U.S.C. § 3281, and we have jurisdiction under 28 U.S.C. § 1291. For the reasons stated below, we will affirm. I. Monac agreed during his plea colloquy to the following

summary of the facts: The victim of Monac’s crime was a fifteen-year-old girl who had previously worked at his pizza shop. She had quit her job after being sexually assaulted by Monac while she was drunk and asleep in his apartment above the shop. She later reacquainted herself with Monac and asked him to lend her some money to finance a vacation. He lent her the money on the condition that she pose nude for him when she returned. She agreed. In July 1999, she posed nude for a sexually explicit photo shoot at Monac’s home. In October 1999, Monac made a sexually explicit video of the girl.

He later posted the photos on the Internet. Monac encouraged viewers to purchase additional pictures of the girl and directed interested individuals to the web site of his adult pornography business, “Erotic Excursions.” The girl did not find out that her pictures were on the Internet until someone in Chicago downloaded them and sent her copies. The Pennsylvania State Police eventually learned of Monac’s activities as well. They executed a search of Monac’s residence on July 18, 2001, seizing cameras, photographs, film, video tapes, and a computer.

Along with the pictures of the girl, Monac’s computer contained more than a thousand other images of child pornography. Monac was arrested and later indicted on one count of sexual exploitation of a minor in violation of 18 U.S.C. § 2251(

a) and one count of possession of material depicting the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(4)(B). In return for Monac’s entering a guilty plea, the government agreed to dismiss the second count in the indictment and not to supersede the indictment to add a third count charging him with producing the videotape of the victim.

Monac’s plea letter provided that “the maximum penalty that may be imposed” is “a minimum term of imprisonment of ten (10) years and a maximum of twenty (20) years.” Monac signed the plea letter, acknowledging that he had both read it and reviewed its terms with his attorney. During the Rule 11 plea colloquy, the court informed Monac that he was subject to a maximum sentence of 20 years, but made no explicit mention of a mandatory minimum sentence. The mandatory minimum was mentioned, however, by the Assistant U.S.

Attorney, who was asked by the court during the colloquy to explain the terms of the plea agreement. She said, in relevant part, that “[t]he maximum-and I would note in this case, the mandatory minimum-sentences are set forth in the plea letter which Mr. Monac has acknowledged.” The plea letter, signed by Monac, was moved into evidence by the U.S. Attorney at the hearing.

The Presentence Investigation Report (“PSR”), a copy of which was sent to Monac’s counsel after the entry of the guilty plea but well before sentencing, stated that “as statute mandates a minimum term of 10 years, pursuant to U.S.S.G. § 5G1.1(b), the guideline sentence shall be 120 months.” Monac was asked by the court at his sentencing whether he had read the PSR and reviewed it with his attorney. He replied that he had. The court then noted that the defendant had filed no objections to the PSR. The day before sentencing, Monac filed a motion to withdraw his guilty plea. He gave three reasons for his request.

First, he claimed that he was actually innocent. Second, he claimed that he had pled guilty only because he lacked the financial resources to pursue his defense. Third, he claimed that he had pled guilty on the belief that the government would move for a downward departure at sentencing based on his cooperation. Shortly before sentencing, however, he learned that the government had decided not to move for a downward departure. Monac did not raise any issue with reference to the mandatory minimum sentence in his motion.

The district court held an evidentiary hearing to address the issues raised in Monac’s motion to withdraw his plea. With respect to Monac’s first argument, the court held that Monac had not “meaningfully reasserted his innocence.” The court found that Monac had “failed to place on the record any facts that would support his argument of actual innocence of these charges.” With respect to Monac’s second argument, the court held that Monac’s financial situation was immaterial, because he had been fully apprised of his right to appointed counsel in the event that he could not afford to pay for his defense.

With respect to Monac’s third and final argument, the court found that Monac had no reason to believe that the government would move for a downward departure, because the record was devoid of evidence that the government had promised to do so. Monac’s motion to withdraw his plea was denied, and he was sentenced to the statutory minimum of ten years in prison. He appealed. II. We review the district court’s denial of a motion to withdraw a guilty plea before sentencing for abuse of discretion. United States v. Harris, 44 F.3d 1206, 1210 (3d Cir.1995). Under Rule 11(

d) of the Federal Rules of Criminal Procedure, a district court may allow a defendant to withdraw his guilty plea before sentencing “if the defendant can show a fair and just reason for requesting withdrawal.” The burden of demonstrating a “fair and just reason” falls on the defendant. United States v. Isaac, 141 F.3d 477, 485 (3d Cir.1998). Once a court accepts a defendant’s guilty plea, the defendant is not entitled to withdraw his plea simply on a whim. United States v. Brown, 250 F.3d 811, 815 (3d Cir.2001).

In deciding whether a defendant has met his burden, the district court must consider three factors: (1) whether the defendant has asserted his innocence; (2) the strength of the defendant’s reasons for withdrawing his plea; and (3) whether the government would be prejudiced by the withdrawal. United States v. Jones, 336 F.3d 245, 252 (3d Cir.2003). A shift in defense tactics, a change of mind, or fear of punishment are not sufficient reasons for forcing the government to try a defendant who has already admitted his guilt. United States v. Jones, 979 F.2d 317, 318 (3d Cir.1992).

In his appellate brief, Monac offers the following list of reasons for withdrawing his plea and urges that they are sufficient to satisfy the “fair and just” standard: (1) he became financially able to present a defense; (2) he hired a private investigator who uncovered information that others, including the victim’s sister, had access to his computer and could have downloaded the pornographic images; (3) the investigator uncovered evidence that the victim and her sister harbored a grudge against Monac, potentially undermining their credibility as witnesses;

(4) Monac wanted to hire an expert on pedophilia to undercut the probable cause for the issuance of the search warrant, which relied on affidavits making reference to Monac as a likely pedophile; and (5) the government would not be prejudiced by the withdrawal of the plea. In addition to this list of reasons, Monac alleges that he is actually innocent and that he pled guilty because he could not afford to continue to pay counsel. He alleges, too, that he pled guilty because he reasonably believed that the government would move for a downward departure in the guideline sentence.

The district court held that Monac did not “meaningfully reassert his innocence” when he moved to withdraw his plea. During his plea colloquy, Monac admitted to producing sexually explicit photographs and a sexually explicit videotape of the minor victim. When asked by the district court if he did, “as charged in count one of the indictment, use, persuade, induce, entice, coerce a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct” in violation of 18 U.S.C. § 2251(a), Monac replied without qualification that he did.

As to the additional evidence that Monac claims to have uncovered in the wake of his plea, it does nothing to further his cause. Even if Monac could prove that the victim had a grudge against him or that others had access to his computer and could have downloaded the pornographic images found on it, such facts are irrelevant to the issue of whether he committed the violation alleged in the count to which he pled guilty.

And even if he could prove “legal innocence” by introducing expert testimony on pedophilia that would require the suppression of the search warrant, an assertion of “legal innocence” is insufficient to justify the withdrawal of a guilty plea; proof of factual innocence is required. Brown, 250 F.3d at 818. We agree with the district court that the evidence offered by Monac to prove his actual innocence is woefully lacking. “Bald assertions of innocence are insufficient to permit a defendant to withdraw his guilty plea.” Jones, 336 F.3d at 253. Monac’s other claims, too, are unpersuasive.

The claim that he pled guilty for purely financial reasons is undermined by the fact that he was expressly informed by the court during the plea colloquy that counsel would be appointed for him if he could not afford representation. . The third count would have been brought under 18 U.S.C. § 2251. At the time of Monac's sentencing, § 2251(

d) required a minimum sentence of 15 years for any defendant having a prior conviction under the same section. The government was prepared to argue that one of Monac’s two § 2251 offenses was a prior conviction. See United States v. Randolph, 364 F.3d 118 (3d Cir. 2004) (holding that multiple counts in one indictment are multiple “convictions” under § 2251). . The long list of reasons Monac offers on appeal is arguably an elaboration of the three reasons he originally brought in district court. Monac makes the additional argument on appeal that his trial counsel was ineffective, but he acknowledges that the proper posture for the ineffectiveness claim is collateral attack.