United States v. McElhaney

United States Court of Appeals
Fifth Circuit
F I L E D
November 1, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-10067
Summary Calendar
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JAMES LEE MCELHANEY
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
m 3:03-CR-370-ALL
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
James McElhaney pleaded guilty to one
count of a fifteen-count indictment for mail
fraud, wire fraud, money laundering, and il-
legal money transactions. He appeals the
judgment of conviction on the ground that the
district court should have granted his motion
to withdraw his plea of guilty because it was
entered involuntarily and because the indict-
ment should have been dismissed under the
Speedy Trial Act. Because the district court
did not abuse its discretion in denying the mo-

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tion to withdraw, and because McElhaney, by
pleading guilty, waived any right to dismissal
under the Speedy Trial Act, we affirm.1
I.
In October 2003 McElhaney was indicted
with his co-defendant, William Whisenant, on
fifteen counts of fraudulent activities stemming
from land transactions entered into by Triad
Hospital while McElhaney was its vice-
president. In support of his plea agreement,
McElhaney stipulated through factual resume
that he had “engaged in a scheme to defraud
Triad by inserting fictitious fees and costs in
[a] real estate transaction which benefitted him
personally.”
As elaborated in the resume, the fraud was
accomplished by a “straw man” real estate
transaction structure whereby Triad would pay
an intermediary who would add approximately
$750,000 to the purchase price of the land. Of
this money, $50,000 was to be paid to the in-
termediary, the remainder to be split between
McElhaney and Whisenant. McElhaney effect-
ed the transaction through wire transfer from
Triad’s accounts.
A fifteen-count superseding indictment was
returned in January 2004. After Whisenant
pleaded guilty in exchange for testifying
against McElhaney, McElhaney entered into a
plea agreement and, in September 2004, plead-
ed guilty to one count of the superseding in-
dictment. The plea agreement contained a
provision that immunized him and his family
from tax-related prosecution.
At the rearraignment, McElhaney testified
that he had read and signed the plea agreement
and entered into it voluntarily and of his free
will. He also said his guilty plea was not the
product of force or threats. The magistrate
judge recommended that the court accept the
guilty plea, and the district court did so.
Nearly a year later, in August 2005, less
than two weeks after learning that Whisenant
had slipped into an irreversible coma, McEl-
haney filed a notice of intention to withdraw
his plea. He asserted that he was innocent of
the charge in count 5 for the reason that his
conduct was authorized under Texas law as a
“referral fee paid by one licensed broker to
another licensed broker.” See 22 TEX. ADMIN
CODE § 535.148. He also contended that he
had pleaded under duress, because the govern-
ment had threatened his wife with prosecution
for unrelated tax issues if he did not plead
guilty.
The district court held a hearing at which
McElhaney and his lawyer testified. After
considering the factors laid out in United
States v. Carr, 740 F.2d 339, 344 (5th Cir.
1984), the court concluded that “McElhaney
[failed] to show a fair and just reason why his
guilty plea should be withdrawn.” United
States v. McElhaney, 2005 WL 3148234, at
1 McElhaney also contends that his plea should
be withdrawn because he received ineffective as-
sistance of counsel. Because this claim was not
raised in the district court, it is not ripe for review.
See United States v. Bounds, 943 F.2d 541, 544
(5th Cir. 1991) (“The general rule is that a claim of
ineffective assistance of counsel cannot be resolved
on direct appeal unless it has been first raised
before the district court . . . . Unless the district
court has developed a record on the defendant’s
allegations, we cannot fairly evaluate the merits of
the claim.”). See also United States v. Higdon,
832 F.2d 312, 314 (5th Cir. 1987) (“We have
undertaken to resolve claims of inadequate
representation on direct appeal only in rare cases
where the record allowed us to evaluate fairly the
merits of the claim.”).

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*3 (N.D. Tex. 2005).
II.
There is no absolute right to withdraw a
guilty plea before sentencing, although a dis-
trict court may allow it if the defendant can
show “a fair and just reason for requesting the
withdrawal.” FED. R. CRIM. P. 11(d)(2)(B).
The burden “rests with the defendant.” United
States v. Brewster, 137 F.3d 853, 857-58 (5th
Cir. 1998). We will reverse the denial of a
motion to withdraw only if the court abuses its
“broad discretion.” Carr, 740 F.2d at 344.
In Carr, id. at 343-44, we laid out an illus-
trative list of factors for deciding whether a
fair and just reason exists for withdrawal:
(1) whether or not the defendant has as-
serted his innocence; (2) whether or not the
government would suffer prejudice if the
withdrawal motion were granted;
(3) whether or not the defendant has de-
layed in filing his withdrawal motion;
(4) whether or not the withdrawal would
substantially inconvenience the court;
(5) whether or not close assistance of coun-
sel was available; (6) whether or not the
original plea was knowing and voluntary;
and (7) whether or not the withdrawal
would waste judicial resources; and, as ap-
plicable, the reason why defenses advanced
later were not proffered at the time of the
original pleading, or the reasons why a de-
fendant delayed in making his withdrawal
motion.
Although this illustrative list should be con-
sidered, the ultimate decision should be based
on the “totality of the circumstances.” Id. at
344.
In arguing that he should be allowed to
withdraw his plea, McElhaney relies principally
on two of the Carr factors: the voluntariness
of the original plea and his assertions of
innocence. He claims that his plea was not
voluntary because he was coerced by the
threatened tax charges against his wife. He
also argues that he has asserted his innocence
throughout these proceedings and that he ad-
mitted to the factual resume underlying the
original plea only because of coercion stem-
ming from the government’s threats.
“[G]uilty pleas made in consideration of
lenient treatment as against third parties pose
a greater danger of coercion than purely bilat-
eral plea bargaining.” United States v. Nuck-
ols, 606 F.2d 566, 569 (5th Cir. 1979). Even
so, there is no “intrinsic constitutional infir-
mity” in promising leniency to a third party in
exchange for a guilty plea. Id. A prosecutor
has discretion to “inform an accused that an
implicated third person will be brought to
book if he does not plead guilty.” Id. The
prosecutor has a duty of good faith in making
such a representation, which duty is satisfied
where he has probable cause to believe the
third person has committed a crime. Id.; Unit-
ed States v Diaz, 733 F.2d 371, 375 (5th Cir.
1984).
Diaz illustrates these principles. There, the
defendant challenged the voluntariness of his
plea in a habeas corpus petition, claiming that
the government had threatened to prosecute
his siblings if he did not plead guilty. The
court first noted that there is a “heavy burden”
on a defendant who seeks to overcome an at-
testation of voluntariness in open court at a
Federal Rule of Criminal Procedure 11 hear-
ing. Id. at 374. The court concluded that
even if such threats had occurred, the
prosecutor had probable cause to bring charg-
es against the defendant’s siblings. The

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defendant’s plea “would not be involuntary by
reason of a desire to extricate his relatives
from such a possible good faith prosecution.”
Id. at 375.
Similarly, McElhaney attested to the volun-
tariness of his plea at his rearraignment and
now claims only that his plea was influenced
by a desire to extricate his wife from possible
criminal charges. As the district court noted,
however, “the record is devoid of evidence
demonstrating that the Government had a bad
faith basis for making such threat.” McElhan-
ey, 2005 WL 3148234, at *4. Where the pro-
secution has a good-faith basis to threaten
charges against a third-party, a defendant’s
election to “sacrifice himself for such motives”
is not a basis to challenge the voluntariness of
the plea. Nuckols, 606 F.2d at 569.
Examining the remainder of the district
court’s analysis, we cannot say that the court
abused its broad discretion to deny McElhan-
ey’s withdrawal motion. We need not parse
each Carr factor but instead can look to the
totality of the circumstances.
The court noted that McElhaney did not
assert his innocence until nearly nine months
after his guilty plea, and he delayed six weeks
more before attempting to withdraw his plea.
See Carr, 740 F.2d 339 (describing as “not
promptly filed” a motion to withdraw filed
twenty-two days after plea). The court also
properly concluded that the likelihood of pre-
judice to the government is considerable where
the withdrawal occurs after a key witness has
become unavailable for trial. The court found
that none of the other Carr factors cuts in Mc-
Elhaney’s favor. Given such a long delay, the
possible prejudice to the government, and a
lack of any considerations in McElhaney’s fa-
vor, the court properly denied the motion to
withdraw his guilty plea.
III.
McElhaney contends that his plea should be
withdrawn and the indictment dismissed for
violations of the Speedy Trial Act.2 Title 18
U.S.C. § 1362(a)(2) provides that “[f]ailure of
the defendant to move for dismissal prior to
trial or entry of a plea of guilty or nolo conten-
dere shall constitute a waiver of the right to
dismissal under [the Speedy Trial Act].” This
language “manifestly provides” that the right
to a speedy trial can be waived. United States
v. Hernandez, 457 F.3d 416 (5th Cir. 2006).
McElhaney failed to move for dismissal under
the Speedy Trial Act before pleading guilty
and has raised this claim for the first time on
appeal. His right to dismissal is therefore
waived.
AFFIRMED.3
2 The Speedy Trial Act requires all trials in
cases where a defendant does not plead guilty to
“commence within seventy days from the filing
date (and making public) of the information or in-
dictment, or from the date the defendant has ap-
peared before a judicial officer of the court in
which such charge is pending, whichever date last
occurs.” 18 U.S.C. § 3161(c)(1).
3 The motion to expedite appeal is DENIED as
moot.

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