(D.C. Criminal No. 71-229). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Van Dusen, Gibbons and Hunter, Circuit Judges.
VAN DUSEN, Circuit Judge.
David Miller appeals the May 22, 1972, district court order denying his motion to withdraw before sentencing his guilty plea to Count I of a five-count indictment.*fn1 Miller also contends that the court failed to comply with F. R. Crim. P. 11 when he was not advised of his privilege against self-incrimination and that this failure should render his plea invalid. We have carefully examined the record and conclude that each of these contentions is without merit. We therefore affirm.
The district court opinion fully sets forth the facts. See United States v. Miller, Crim. No. 71-229 (E.D. Pa. May 22, 1972). For our purposes, it is only necessary to briefly summarize the events that transpired prior to Miller's sentencing.
Miller had been indicted along with six others on charges relating to the illegal transportation of a ton of marijuana. After his arrest, Miller offered to act as an informer for the Government. On November 5, 1971, he filed a motion to dismiss the indictment against him, or, in the alternative, to permit him to enter a plea of guilty to a nonmandatory count of the indictment. His motion was premised on the claim that the Government breached its agreement to dismiss the charges against him. He alleged that the Government's promise had been made in return for his promise to act as an informer and to provide sufficient information that would lead to the successful prosecution of other persons involved in the sale and distribution of narcotics. The Government opposed this motion, claiming Miller failed to perform his side of the bargain. A series of evidentiary hearings were conducted beginning on November 11, 1971, and continuing until November 23, 1971, where Miller produced evidence in support of his motion.
Meanwhile, the trial, with Miller and four other defendants, commenced on November 15 and continued on a daily basis until December 3. However, on November 23, 1971, Miller, in the presence of the court and his counsel, agreed to withdraw his motion, with prejudice, and requested leave of the court to change his not guilty plea to Counts I and V of the indictment to guilty. The court accepted his plea. Sentencing was postponed from February 24, 1972, until May 4, 1972. On the day of sentencing, Miller presented the court with a motion to withdraw his guilty plea pursuant to F. R. Crim. P. 32(d).*fn2
Although Rule 32(d) does not establish a standard governing the withdrawal of a plea prior to sentencing,*fn3 the district court may, in its discretion, permit a defendant to substitute a plea of not guilty "if for any reason the granting of the privilege seems fair and just. . . ." Kercheval v. United States, 274 U.S. 220, 224, 71 L. Ed. 1009, 47 S. Ct. 582 (1927) (emphasis supplied); United States v. Young, 424 F.2d 1276, 1279 (3d Cir. 1970). However, this is not an absolute right to be made in a vacuum without reference to surrounding circumstances. See United States v. Stayton, 408 F.2d 559, 561 (3d Cir. 1969); cf. United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3d Cir. 1972).
Acceptance of a motion to withdraw a plea of guilty lies within the sound discretion of the trial court and its determination will only be disturbed where it has abused its discretion, United States v. Stayton, supra at 561. There has been no abuse of discretion in denying Miller's motion to withdraw his guilty plea. The trial court properly considered the substantial prejudice that would have resulted to the Government if Miller's motion had been granted. It noted:
"Witnesses for the government who were presented in opposition to the defendant's motion to dismiss the indictment and who were trial witnesses had been assembled to appear in Philadelphia from several far western and southwestern states. Testimony most damaging to the defendant and which resulted in guilty verdicts against co-defendants had been received in evidence prior to the defendant's change of plea.
"Finally it appears appropriate to again point out that Miller changed his plea on November 23rd, 1971. He waited until the day of sentencing, a time factor of almost six months, before filing the motion under consideration." United States v. Miller, supra at 7.
Furthermore, Miller's request to withdraw his plea appears to be merely a reassertion of the same allegations raised in his earlier motion. Miller withdrew that motion with prejudice on the advice of his counsel on the basis of a carefully worked out stipulation between him and the Government. Nevertheless, he claims that at the time he entered his plea of guilty to the mandatory count of the indictment, he relied upon United States v. Stephens, 449 F.2d 103 (9th Cir. 1971), which provided that one who was convicted before the effective date (May 1, 1971) of 21 U.S.C. § 844(a) and (b) (The Comprehensive Drug Abuse Prevention and Control Act of 1970), but sentenced after such effective date, could receive less than the sentence provided under 21 U.S.C. § 176a and 26 U.S.C. § 7237(d). 21 U.S.C. § 176a specified mandatory sentences of not less than five, nor more than twenty, years. The new Act does not prescribe any mandatory minimum sentence and permits the grant of probation. After Miller entered his plea and prior to March 11, 1972, the Second Circuit, in United States v. Fiotto, 454 F.2d 252 (2d Cir. 1972), and the First Circuit, in United States v. Bradley, 455 F.2d 1181 (1st Cir. 1972), aff'd, 410 U.S. 605, 93 S. Ct. 1151, 35 L. Ed. 2d 528, 41 U.S.L.W. 4368 (1973), rejected the rationale of Stephens.*fn4 The Supreme Court in Bradley stated (410 U.S. at 609, 4369 of 41 U.S.L.W.);
"The District Judge had no power to consider suspending petitioners' sentences or placing them on probation. . . . The mandatory minimum sentence of five years must therefore be imposed on offenders who violated the law before May 1, 1971. And Congress specifically provided that section 4208(a) does ...