United States of America v. David Charles Hunt

*The Honorable James G. Carr, United States District Judge for the
Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0084P (6th Cir.)
File Name: 00a0084p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
DAVID C HARLES HUNT ,
Defendant-Appellant.
;>

1
Nos. 98-1047/1762
Appeal from the United States District Court
for the Eastern District of Michigan at Flint.
No. 95-50041—Paul V. Gadola, District Judge.
Argued: December 6, 1999
Decided and Filed: March 9, 2000
Before: COLE and GILMAN, Circuit Judges; CARR,
District Judge.*
_________________
COUNSEL
ARGUED: Kenneth R. Sasse, FEDERAL DEFENDER’S
OFFICE, Flint, Michigan, for Appellant. Mark C. Jones,
ASSISTANT UNITED STATES ATTORNEY, Flint,

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2 United States v. Hunt Nos. 98-1047/1762
Michigan, for Appellee. ON BRIEF: Kenneth R. Sasse,
FEDERAL DEFENDER’S OFFICE, Flint, Michigan, for
Appellant. Mark C. Jones, ASSISTANT UNITED STATES
ATTORNEY, Flint, Michigan, for Appellee.
_________________
OPINION
_________________
JAMES G. CARR, District Judge. This is an appeal from
a criminal sentence imposed on defendant by the United
States District Court for the Eastern District of Michigan.
Defendant pled guilty to conspiracy to distribute cocaine,
distribution of cocaine and felony possession of a firearm.
(J.A. at 26).
Before sentencing, defendant moved for an in camera
hearing to determine whether, as he claimed, the government
violated his plea agreement’s written terms. (J.A. at 36-44).
Specifically, defendant alleged that the government breached
his plea agreement by failing to: 1) release him on bond so
that he could actively assist the government in other
investigations, 2) interview him a series of times (i.e., more
than twice), thereby thwarting his ability to cooperate with
law enforcement officials, and 3) administer a lie detector test
to determine if he provided truthful information during two
interviews. In the alternative to a hearing, defendant
requested leave to withdraw his guilty plea. (Id.).
The district court refused to hold a hearing, finding that the
plain and unambiguous terms of the plea agreement had not
been breached. (J.A. at 79-82). Further, the district court
would not allow defendant to withdraw his plea because he
had not satisfied his burden of withdrawal under Rule 32 of
the Federal Rules of Criminal Procedure. (J.A. at 83-85).
In a motion for reconsideration, defendant raised a new
basis for a hearing. He argued that the government made oral
promises to him while negotiating the plea agreement. Those
promises, he claimed, had not been fulfilled. The district
Nos. 98-1047/1762 United States v. Hunt 11
States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998). “If a
motion to a withdraw a plea of guilty or nolo contendere is
made before sentence is imposed, the court may permit the
plea to be withdrawn if the defendant shows any fair and just
reason.” Fed. R. Crim. Pro. 32(e). The defendant has the
burden of proving that withdrawal of the plea is justified.
United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996). In
deciding whether a defendant has stated a fair and just reason
to allow withdrawal of a plea, the factors to be considered are:
1) the amount of time that elapsed between the plea and
the motion to withdraw it; 2) the presence (or absence) of
a valid reason for the failure to move for withdrawal
earlier in the proceedings; 3) whether the defendant has
asserted or maintained his innocence; 4) the
circumstances underlying the entry of the guilty plea; 5)
the defendant’s nature and background; 6) the degree to
which the defendant has had prior experience with the
criminal justice system; and 7) potential prejudice to the
government if the motion to withdraw is granted.
United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994).
The district court applied the preceding factors and
determined, within its discretion, that withdrawal was
inappropriate. (J.A. at 84-85). The district court did not
abuse its discretion given: 1) the length of time of time
between entry of defendant’s plea and his motion for
withdrawal (almost one year), 2) the absence of any breach of
the plea agreement, 3) defendant’s confession of guilt, 4) the
careful reading of the plea agreement’s terms to defendant at
the plea hearing, and 5) defendant’s criminal history. (Id.).
CONCLUSION
For the foregoing reasons, the opinion of the district court
is AFFIRMED.

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10 United States v. Hunt Nos. 98-1047/1762
Further, bad faith on the part of the government is not the
standard of review in downward departure cases. We
previously have held that a hearing is not needed unless the
government’s refusal to recommend a downward departure
“was based on an unconstitutional motive.” United States v.
Bagnoli, 7 F.3d 90, 92 (6th Cir. 1993) (citing Wade v. United
States, 504 U.S. 181 (1992)). No threshold showing of
unconstitutional motive has been made here.
Indeed, the district court demonstrated why the government
had fully complied with the terms of the plea agreement.
(J.A. at 79-82). In its order, the district court noted that the
plain language of the plea agreement made clear that the
government did not have any obligation to release defendant
on bond, interview defendant any set number of times, or
administer a lie detector test. (J.A. at 79-82). A review of the
plea agreement confirms this. (J.A. at 56-66). Thus, it was
permissible to interview defendant twice for his cooperation,
and, when the government concluded substantial assistance
was not forthcoming, decline to recommend a downward
departure. (J.A. at 62). Nothing about the government’s
conduct raises constitutional concerns.
III. Plea Validity
Defendant argues that the district court should have held a
hearing to consider whether he entered into his guilty plea
voluntarily and, thus, validly.
Defendant, however, never moved the district court to hold
a hearing to determine if his plea was valid. Rather, he asked,
as an alternative to a hearing, that his plea be withdrawn
based on its alleged invalidity. That alternative request was
denied because defendant failed to satisfy his burden of
withdrawal under Rule 32 of the Federal Rules of Criminal
Procedure. (J.A. at 83-85). Thus, the only question
appropriately presented is whether the district court
misapplied Rule 32.
Denial of a defendant’s motion to withdraw his guilty plea
under Rule 32 is reviewed for an abuse of discretion. United
Nos. 98-1047/1762 United States v. Hunt 3
court denied defendant’s motion for reconsideration because,
among other things, the plea agreement contained an
integration clause, restricting its terms to those written within
its four corners. (J.A. at 100).
Defendant argues here that the district court erred in not
allowing a hearing. He claims a hearing was necessary to: 1)
determine whether the government breached its oral promises;
2) assess whether the government failed to provide him with
a good faith opportunity to cooperate; and 3) establish
whether his guilty plea was valid. (Defendant’s Brief at 11-
17).
For the following reasons, we AFFIRM the judgment of the
district court.
BACKGROUND
A grand jury in the Eastern District of Michigan returned an
indictment against defendant for seven counts of conspiracy
to distribute cocaine, distribution of cocaine, use of a firearm
during the commission of a drug offense, possession of a
firearm by a felon, and possession of a firearm with an
obliterated serial number. (J.A. at 18-24). On May 28, 1996,
defendant pled guilty to three of the seven counts and
forfeited two vehicles as part of his Rule 11 plea agreement.
(J.A. at 26).
Defendant’s plea agreement contains three clauses that are
relevant here. First, it contains an integration clause
restricting its terms to those written within its four corners:
No Other Terms. This agreement incorporates the
complete understanding between the parties, and no other
promises have been made by the government to the
defendant or to the attorney for the defendant.
(J.A. at 34). Second, the plea agreement contains a
cooperation clause, obligating defendant to assist the
government in other investigations:

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4 United States v. Hunt Nos. 98-1047/1762
Truthful Information and Assistance. Defendant
promises to provide truthful and complete information to
the United States Attorney’s office and to other law
enforcement agencies, including a full debriefing and
truthful testimony at all proceedings, . . . . Defendant
agrees to be available for interviews in preparation of all
testimony. Defendant further agrees to submit, upon
request, to government- administered polygraph
examinations to verify defendant’s full and truthful
testimony.
(J.A. at 30-31). Third, the plea agreement contains a clause
requiring the government to inform the district court of
defendant’s substantial assistance in other investigations and,
if appropriate, recommend a downward departure from the
sentencing guidelines:
Substantial Assistance Determination. Upon the
government’s determination that defendant’s cooperation
amounts to substantial assistance in the investigation of
others, the government will advise the court of the
defendant’s cooperation at sentencing, and, if
appropriate, request the court to depart downward from
the applicable sentencing range. The government
reserves the right to make the sole determination as to
whether and when defendant has provided substantial
assistance.
(J.A. at 31).
On May 29, 1996, the district court held a plea hearing in
accordance with Rule 11. At the hearing, the district court
reviewed the details of the plea agreement with defendant.
(J.A. at 115-119). Defendant was asked whether he
understood that the plea agreement was a fully integrated
document:
THE COURT: Paragraph nine says this is a complete
Agreement between yourself and the Government, and
there have been no other promises made to you. Do you
understand that is in this document?
Nos. 98-1047/1762 United States v. Hunt 9
reliance on the written plea agreement. Id. But we
emphasized that an integration clause “would ordinarily
prevent any assertion that there were side deals or promises.”
Id. (emphasis added).
Here, there are no circumstances justifying a departure from
the ordinary rule set forth in Peavy. Unlike the defendant in
Peavy, defendant in this case has filed no affidavit attesting to
a side agreement with the government. And the government,
though it has filed no supporting affidavits of its own, denies
that any such oral agreement exists. (Government’s Brief at
11) (“[T]here were no agreements whatsoever which were not
contained in the Rule 11 [plea agreement].”). Given this
denial, the integration clause, and defendant’s failure to file
an affidavit, the district court was correct in finding that no
hearing was necessary.
Defendant attempts to distinguish Peavy on the basis that
it was a post-sentencing challenge to a plea agreement
pursuant to 28 U.S.C. § 2255. (Defendant’s Brief at 12-13).
But the fact that the challenge here occurred before sentencing
is unremarkable. Once the government enters into a Rule 11
plea agreement containing an integration clause, the result
ordinarily should be final and immune from collateral attack,
whether such attack occurs before or after sentencing.
II. Bad Faith
Defendant claims the government frustrated his ability to
cooperate and, thus, qualify for a downward departure from
the sentencing guidelines. He further alleges that the
government acted in bad faith, which he was not given an
opportunity to prove at a hearing. (Defendant’s Brief at 14-
16).
Defendant’s allegation of bad faith is raised for the first
time on appeal. He never alleged bad faith to the district
court. Rather, he simply maintained that the government
violated the plea agreement, without making any claim that
the government was improperly motivated. Defendant’s
argument is fatally flawed for this reason alone.

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8 United States v. Hunt Nos. 98-1047/1762
I. Oral Promises
In his motion for reconsideration, defendant claimed that
the government made two oral promises to him that had not
been fulfilled. First, he claimed the government promised
him a polygraph test, which it never administered. (J.A. at
88). Second, he claimed the government promised not to
confiscate two of his vehicles if the polygraph results showed
that he had not used those vehicles in the commission of a
drug offense, but then confiscated them without giving him a
chance to take the polygraph. (Id.). Defendant explained that
these unfulfilled promises were not included in the written
plea agreement for his protection (id.), yet were intended to be
binding on the government. Defendant repeats this argument
here. (Defendant’s Brief at 11-13).
An integration clause normally prevents a criminal
defendant, who has entered into a plea agreement, from
asserting that the government made oral promises to him not
contained in the plea agreement itself. Peavy v. United States,
31 F.3d 1341, 1345 (6th Cir. 1994). In Peavy, the defendant
pled guilty to distribution of cocaine. His Rule 11 plea
agreement contained an integration clause. After sentencing,
he claimed to have had an oral arrangement with the
government to reduce his sentence if he cooperated in an
ongoing FBI investigation. He further claimed the
government failed to live up to its end of the bargain after he
provided the cooperation requested. Accordingly, defendant
sought a hearing at which to contest his guilty plea.
Defendant’s attorney, who was with him at the time the
government’s alleged promise was made, filed an affidavit
with the district court attesting to the existence of an oral
promise.
The government in Peavy conceded that it had entered into
a oral promise with the defendant, and that the promise was
omitted from the plea agreement. But the government
disputed the terms of the oral promise.
A hearing was necessary in Peavy because both sides
acknowledged an oral promise and the government placed no
Nos. 98-1047/1762 United States v. Hunt 5
DEFENDANT: Yes. . . .
. . .
THE COURT: Has anyone directly or indirectly made
any promises . . . other than the terms of this [p]lea
[a]greement to get you to plead guilty to these charges?
DEFENDANT: No.
(J.A. at 118-119) (emphasis added). The district court also
confirmed that defendant understood that the government
alone, in its discretion, would determine whether he had
cooperated in other investigations and, thus, was eligible for
a recommendation of downward departure:
THE COURT: All right. Paragraph 3B says that if the
Government determines that your cooperation has
amounted to substantial assistance in the investigation of
other people, the Government will tell me about your
cooperation at the time of sentencing, and if the
Government deems it appropriate, the Government will
request that I depart downward from the applicable
sentencing range for you under the sentencing guidelines.
You understand that, sir?
DEFENDANT: Yes.
THE COURT: It goes on to say that the Government
has the right to make the sole determination as to
whether you have provided that cooperation and
substantial assistance and as to whether you have
provided it. You understand that, sir?
DEFENDANT: Yes.
(J.A. at 116-17) (emphasis added). Following this
questioning, the district court found that the plea agreement
satisfied Rule 11. (J.A. at 118).

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6 United States v. Hunt Nos. 98-1047/1762
Defendant’s sentencing was set for September 12, 1996,
and then moved to January 9, 1997. (J.A. at 121). Between
the plea hearing and January 9, 1997, law enforcement
officials interviewed defendant twice. (J.A. at 38). During
those interviews, the government claims defendant was
uncooperative, and that he did not proffer any information
regarding his knowledge of illegal activities. (Government’s
Brief at 6). Defendant claims he “fully cooperated” during
the interviews, “providing sensitive information . . . that
clearly would aide in seeking independent indictments.” (J.A.
at 38).
Because the government found the interviews to be
unproductive, it adjourned the January 9th sentencing to
provide defendant with another chance to cooperate. (J.A. at
81). Confirming by letter the adjournment with defendant’s
lawyer, the government requested a written proffer from
defendant:
As you know, I agreed, with some reluctance, to an
adjournment . . . on January 9, 1997. I am writing to
advise you of my position as to the issue of cooperation.
I have previously written to you about my concern with
the fact that Mr. Hunt has been reluctant to cooperate.
Indeed, my investigating officers have expressed to me
their views that there is no point in a further proffer from
him.
As such, at this point, I am respectfully asking that you
meet with Mr. Hunt and prepare a specific and detailed
explanation of his knowledge of illegal activities and his
proposed cooperation. I will submit it to the
investigating officers. If we feel that it justifies a re-
examination of the cooperation issue, we will advise you.
(J.A. at 67-68) (emphasis original).
Defendant never accepted the government’s invitation to
submit a written proffer. (Government’s Brief at 7).
Nos. 98-1047/1762 United States v. Hunt 7
In December 1997, nearly a year after the adjournment, the
district court reconvened the parties for sentencing.
Defendant’s lawyer asked for another delay of sentencing and
an extension of time to cooperate. (J.A. at 120-21). But the
district court denied this request:
THE COURT: . . . I’m aware that we were back then on
January 9th, 1997 for sentencing and then there was – I
believe the matter was adjourned so that your client
[defendant] could have an opportunity to provide some
cooperation to the government. And so now almost a
year has passes since then . . . . Here we are again, and
you want more time? I’m not disposed to give it. . . .
. . .
[W]ithin one year after sentencing if Mr. Hunt can
furnish some substantial assistance during that period,
the government, within one year, can come back and
make a motion to reduce the sentence. We’re all aware
of that, but I don’t see any reason why at this point . . . I
should again adjourn this sentencing so that Mr. Hunt
can cooperate with the government.
(J.A. at 121-22).
The district court sentenced defendant to 136 months in
prison (J.A. at 102-03), and this appeal followed.
DISCUSSION
Defendant asserts that the district court erred in not
allowing a hearing. He claims a hearing was necessary for
three reasons: first, to determine whether the government
breached its oral promises; second, to assess whether the
government failed to provide him with a good faith
opportunity to cooperate; and third, to establish whether his
guilty plea was valid. (Defendant’s Brief at 11-17). None of
these contentions has merit.

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