F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                             JAN 10 2000
                                     TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,                        No. 98-3282
          v.                                           District of Kansas
 BERNARDINO GUEBARA,                                (D.C. No. 97-CR-10094)

               Defendant-Appellant.


                            ORDER AND JUDGMENT            *




Before BRORBY , HENRY , and LUCERO , Circuit Judges.


      Bernardino Guebara pleaded guilty to possession of a firearm by an

unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3), and

possession of cocaine, in violation of 21 U.S.C. § 844. He appeals two decisions

of the district court: 1) the denial of his motion to set aside the order denying his

motion to suppress; and 2) the denial of his motion to withdraw his guilty plea.

For the following reasons, we affirm the district court's decisions in all respects.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
                                I. BACKGROUND

      On July 11, 1997, the Garden City Police Department received information

from a concerned citizen describing a vehicle and its occupants leaving a possible

burglary. Approximately one hour after the police received this information,

Officer Cory Murrison stopped a truck matching the description. While

approaching the vehicle, Officer Murrison observed the driver, Mr. Guebara,

making furtive movements and therefore ordered him to place his hands outside

the window and exit the truck. As he approached the passenger side of the car,

Officer Murrison observed a cocked 9mm handgun on the driver’s seat. Upon

removing the passenger, Gary Wigner, from the truck, Officer Murrison found an

open bottle of liquor and a loaded .22 caliber revolver under the passenger seat.

As Mr. Guebara performed a variety of sobriety tests, Officer Murrison noticed a

baggie of cocaine residue hanging out of Mr. Guebara’s pants. A search of Mr.

Guebara’s person revealed ammunition for the 9mm handgun and other drug

paraphernalia.

      Mr. Guebara was arrested and charged with possession of crack cocaine

with intent to distribute, possession of a firearm in connection with a drug

trafficking crime, and unlawful use of a controlled substance while in possession

of a firearm and ammunition.   See Aplt’s App. vol. I, at 36-39 (Superseding




                                         -2-
Indictment, Sept. 4, 1997). The case was assigned to United States District Judge

Frank G. Theis.

       Mr. Guebara moved to suppress the stop of his vehicle and subsequent

search of his person.    See Aplt’s App. vol. I, at 32-35 (Motion to Suppress, Aug.

22, 1997). Judge Theis held a suppression hearing, at which Officer Murrison

and Mr. Wigner, the co-defendant, testified. At the suppression hearing, Mr.

Guebara was represented by Charles O’Hara. During Mr. O’Hara’s cross-

examination, Officer Murrison disclosed that there was a civilian rider with

Officer Murrison in the police vehicle at the time he stopped Mr. Guebara and

Mr. Wigner. See Aplt’s App. vol. II, at 276. Mr. Wigner’s attorney informed the

court that this was the first time he had been made aware of the additional witness

to the events leading up to Mr. Guebara’s arrest.   See 

Judge Theis

ordered the government to disclose the name and address of this witness.     See 

312-13. Judge Theis then gave Mr. O’Hara ten days to interview the

witness and inform the court whether an additional evidentiary hearing was

necessary. See Aplt’s App. vol. I, at 64. However, Mr. O’Hara took no further

action with regards to this witness, and, consequently, Judge Theis denied the

motion to suppress.     See 

77 (Order, Nov. 17, 1997). Subsequent to the

ruling, Judge Theis passed away and the case was reassigned to United States

District Judge Monti Belot.


                                            -3-
      On January 7, 1998, Mr. O’Hara filed a motion to withdraw as counsel for

Mr. Guebara. See 

On January 12, 1998, attorney Robert A. Levy

entered his appearance on Mr. Guebara’s behalf.        See 

      On March 9, 1998, Mr. Guebara entered a plea of guilty to both counts of

the indictment.   See 

On June 1, 1998, at the sentencing hearing,

Mr. Guebara expressed to Judge Belot that he was dissatisfied with the

representation he had received from his first attorney, Mr. O’Hara, during the

suppression hearing. He alleged that Mr. O’Hara neglected to follow up on the

witness whose identity the government was required to disclose.         See Aplt’s Supp.

App. to vol. II, at 482-85 (Transcript of Hearing, June 1, 1998). He also

suggested that Mr. O’Hara should have called Officer Millirons, a second officer

who was present during the arrest, to testify at the suppression hearing. Mr.

Guebara added that he was under the impression he was going to get another

hearing to call these additional witnesses whose testimony he believed would

support granting his motion to suppress.     See 

      The court then suggested that Mr. Guebara petition to withdraw his guilty

plea. It continued sentencing to allow him to do so.      See 

Soon

thereafter, Mr. Guebara filed a Motion to Set Aside the Judgment Denying

Defendant’s Motion to Suppress, and a Motion to Rescind the Plea Agreement.




                                            -4-
See Aplt’s App. vol. I, at 112 (Motion to Set Aside, Jun. 15, 1998);      

(Motion to Rescind, Jun. 15, 1998).

       On July 6, 1998, Judge Belot held a hearing on the motions.       See Aplt’s

App. vol. II, at 353-88 (Transcript of Motion Hearing, July 6, 1998). At the

hearing, Mr. Levy argued that Mr. Guebara should be allowed to withdraw his

plea and that the suppression hearing should be re-opened to allow Mr. Guebara

to present the testimony of an additional witness.      See 

claimed not

to have learned the name of the previously undisclosed witness, Manuel Ramirez,

until June 12, 1998.   See 

He further explained that, although he had

reviewed the transcript of the suppression hearing and, therefore, was aware of an

undisclosed witness, he did not know the name of this witness. Thus, Mr. Levy

maintained, he had been unable to contact and interview the witness prior to Mr.

Guebara’s entering a guilty plea.    See 

The government countered

that Mr. Levy could have determined the identity of the undisclosed witness prior

to the guilty plea proceedings by using due diligence. The government added that

Mr. Guebara had not demonstrated that Mr. Ramirez’s testimony would have

changed the ruling on his motion to suppress.        See 

The court orally

denied the motion to withdraw the plea and proceeded to sentencing.         See 

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       During sentencing, Mr. Guebara again expressed to the court his concern

that he did not receive a fair suppression hearing because he was not given the

opportunity to present the testimony of Mr. Ramirez and Officer Millirons.           See

Acting cautiously, the court decided to re-open the hearing for the

limited purpose of allowing Mr. Guebara to present additional witnesses.           See 

The government was not required to present any additional evidence.

See 

       On August 4, 1998, Mr. Guebara filed an Objection to the Use of the

October 6, 1997 Testimony of Officer Cory Murrison.          See Aplt’s App. vol. I at

141. In this objection, Mr. Guebara argued that Judge Belot could not rely on the

transcript of Officer Murrison’s testimony at the initial suppression hearing

before Judge Theis.    See 

       On August 10, 1998, the court conducted a supplemental suppression

hearing. Mr. Guebara called Officer Millirons, an officer present during the

search and seizure who did not testify at the initial suppression hearing.        See

Aplt’s App. vol. II at 395-422. Mr. Guebara also testified himself.          See 

Mr. Ramirez did not testify. Officer Murrison and Mr. Wigner were not

recalled to testify before Judge Belot. After considering the testimony at the

supplemental hearing, and the transcript of the testimony at the initial hearing

before Judge Theis, Judge Belot denied Mr. Guebara’s motion to set aside Judge


                                             -6-
Theis’s order denying his motion to suppress.       See Aplt’s App. vol. I, at 157-70

(Memorandum and Order, Sept. 18, 1998).           He also denied Mr. Guebara’s motion

to withdraw his guilty plea.   See 

A. Denial of the Motion to Set Aside the Order Denying the Motion to Suppress

       Mr. Guebara argues that Judge Belot erroneously relied on the transcript of

the first suppression hearing and Judge Theis’s credibility findings in denying his

motion to set aside Judge Theis’s order denying his motion to suppress. Mr.

Guebara asserts that this error denied him due process. Mr. Guebara further

contends, albeit less emphatically, that reassignment of the case to Judge Belot

also constituted a due process violation. Both of these arguments raise legal

questions that we review de novo.      See United States v. Diaz , 

,

1243 (10th Cir. 1999); United States v. Nichols , 

, 1267 (10th Cir.),

cert. denied , 

(1999).



       1. Reliance on the Transcript of the First Suppression Hearing and Judge
       Theis’s Credibility Findings.

       Mr. Guebara argues that, although Judge Belot was correct in allowing him

to present additional witness testimony in support of his motion to suppress, he

erred in relying on the transcript of the first suppression hearing instead of

                                            -7-
rehearing all of the testimony. Mr. Guebara contends that due process requires

one fact-finder to hear and weigh all of the evidence, whereas here, his second

suppression hearing involved two different fact-finders, each hearing only part of

the evidence. He maintains that, by relying on Judge Theis’ finding that the

testimony was credible, the court violated the fundamental rule that “[t]he one

who decides must hear . . . .” Aplt’s Br. at 6 (quoting   United States ex rel

Graham v. Marcus , 

, 469 (2d Cir. 1972)).

           Due Process guarantees a meaningful hearing and procedures that

sufficiently ensure a reliable determination of the facts underlying a motion to

suppress. See Jackson v. Denno , 

, 376-77 (1964);       see also Logan v.

Zimmerman Brush Co. , 

, 433-34 (1982);         Board of Regents v. Roth ,

, 570-71 n. 8 (1972).        “‘One of the most important principles in our

judicial system is the deference given to the finder of fact who hears the live

testimony of witnesses.’”      Moore v. Dubois , 

, 1118 (10th Cir. 1988)

(quoting Louis v. Blackburn , 

, 1109 (5th Cir. 1980)). This

deference is based on the fact-finder’s “opportunity to judge the credibility of

those witnesses.”      Louis , 630 F.2d at 1107.

           In general, “the process due at a suppression hearing may be less

demanding and elaborate than the protections accorded the defendant at the trial

itself.”     United States v. Johnson , 

, 1366 (10th Cir. 1994) (quoting


                                             -8-
United States v. Raddatz , 

, 679 (1980)). Constitutional concerns

arise, however, where a successor judge relies on a transcript of testimony

presented at a suppression hearing, over which he or she did not preside, in order

to make an initial ruling on the defendant’s motion to suppress.       See United States

v. Mejia , 

(9th Cir. 1995).

       In Mejia , Judge Richard A. Gadbois, Jr. heard testimony from the

defendant’s wife and two detectives at a suppression hearing and then continued

the hearing so that the government could present one additional witness. In the

meantime, the case was reassigned to Judge Manuel Real. Judge Real set a date

for a new suppression hearing, stating initially that he would conduct the hearing

from scratch. However, the defense requested a continuance because the two

detectives who testified before Judge Gadbois were not available on the scheduled

date. Judge Real denied the continuance and decided that he would recall the

defendant’s wife and listen to the government’s new witness, but that he would

rely on the transcript of the testimony of the two detectives from the first hearing.

       In reviewing Judge Real’s denial of the defendant’s motion for a

continuance, the court concluded that “Mejia was denied the opportunity to

present live testimony before any person who acted as a fact-finder, preliminary

or otherwise. Judge Gadbois, before whom the detectives did testify, does not

qualify: He made no findings of any kind.”         

The court found error in


                                             -9-
the fact that “Judge Real made a conclusive evaluation of credibility on the basis

of the written transcript without hearing live testimony from witnesses whose

credibility he was evaluating, and   without the benefit of any credibility findings

by the judicial officer who had presided over the taking of the witnesses’

testimony .” 

         Here, unlike Mejia , Mr. Guebara received a full and fair hearing before the

judicial fact-finder (Judge Theis) who ruled on his motion to suppress. Before

Judge Theis issued the ruling, Mr. Guebara had the opportunity to present

witnesses and evidence and cross-examine the government’s witnesses. When the

issue of the undisclosed witness arose, the name of the witness was ordered to be

disclosed, and Mr. Guebara was given a fair opportunity to contact the witness

and inform the court whether there was a need for a further evidentiary hearing.

When the time for notifying the court expired without action, Judge Theis

carefully weighed the evidence and explicitly found that Mr. Wigner’s testimony

at the suppression hearing was “not particularly credible.”      See Aplt’s App. vol. I,

at 69.

         As stated above, Mr. Guebara received a full and fair suppression hearing,

conducted by one neutral fact-finder, Judge Theis, who decided his motion to

suppress. As such, Mr. Guebara was not necessarily entitled to a second hearing

or even to reconsideration of the denial of his motion to suppress.     See United


                                            -10-
States v. Wiseman , 

, 1207-08 (10th Cir.),    cert. denied , 

(1999). Wiseman points out that in a rare case (i.e., where there is grave

doubt about the fairness of the proceedings) a judge might abuse his discretion in

not re-opening the suppression hearing or reconsidering the ruling denying the

motion to suppress.   See 

grave doubt exists here, and the action the

court took, a partial re-opening of the suppression hearing to evaluate excluded

witness testimony, was clearly within the court’s discretion and was a proper

exercise of judicial caution. Because Judge Theis had already made a ruling on

Mr. Guebara’s motion to suppress, which contained specific credibility findings,

Judge Belot’s decision to rely on those findings, rather than recall the witnesses

from the first hearing, did not violate due process.

       In support of his argument that Judge Belot’s reliance on the transcript of

the testimony and Judge Theis’s credibility findings violated due process, Mr.

Guebara directs us to three decisions --   United States v. Girolamo , 

(10th Cir. 1994), United States v. Guerrero-Herrera    , 

(7th Cir. 1978),

and United States v. Raddatz , 

(1980). He notes that in these

decisions, a judge’s reliance on a prior judge’s findings was based on either a

stipulation of the parties or express statutory authority. He reads these decisions

as establishing that one of these circumstances must be present in order for




                                           -11-
reliance on prior findings to comport with due process. We are not persuaded by

his argument.

       Girolamo merely holds that the chief circuit judge has the authority to

designate a circuit judge to displace an available sitting judge for the purpose of

conducting one hearing in a pending case.      

. It does not

address a successor judge’s reliance on prior findings. Although the Seventh

Circuit’s decision in Guerrero-Herrera involves the reassignment of a case from

one judge to another before the first one had ruled on the motion to suppress, the

court’s rejection of the defendant’s due process argument is based on the fact that

the defendant stipulated to the challenged reassignment procedure.        

. Contrary to Mr. Guebara’s suggestion, there is no indication in

Guerrero-Herrera that such a stipulation is required in order to satisfy due

process. Finally, the Supreme Court’s decision in       Raddatz holds that a district

judge may rely on the credibility findings of a magistrate.     

-

84. Although the court based that conclusion on a statute that authorizes the

referral of cases to magistrates,   Raddatz does not suggest that a successor judge

may only rely on the predecessor judge’s findings when a statute expressly

authorizes such reliance.

       Accordingly, we conclude that because Mr. Guebara had already received a

full and fair suppression hearing, Judge Belot did not offend due process by


                                            -12-
relying on the transcript of that hearing and the credibility findings of Judge

Theis, in addition to the new testimony, in denying Mr. Guebara’s motion to set

aside the order denying his motion to suppress.

          2. Judicial Substitution

          Mr. Guebara also appears to challenge, albeit less directly, the propriety of

judicial substitution in this case. The assertion that judicial substitution in this

case was somehow illegitimate is unfounded.

          First, we cannot possibly entertain, let alone sustain, a challenge to judicial

reassignment where, as here, the judge initially assigned to the case passed away

prior to its resolution. Short of dismissing the case, there was no practicable

alternative to reassigning the case to a different judge.

          Second, Mr. Guebara’s reliance on Federal Rule of Criminal Procedure

25(a) is unavailing. Rule 25(a) states:

          If by reason of death, sickness or other disability the judge before whom a
          jury trial has commenced is unable to proceed with the trial, any other
          judge regularly sitting in or assigned to the court, upon certifying
          familiarity with the record of the trial, may proceed with and finish the
          trial.

Mr. Guebara maintains that, because this rule addresses the substitution of judges

only in the specific context of jury trials, “Congress clearly intended not to allow

the substitution of judges in either a pre-trial setting or a bench trial.” Aplt’s Br.,

at 6-7.


                                             -13-
      We are not persuaded by Mr. Guebara’s interpretation of Rule 25(a). There

is nothing in Rule 25(a) to suggest that judicial substitution is only permissible in

jury trials, and Mr. Guebara has failed to present any other authority to support

this contention. Furthermore, Mr. Guebara’s narrowing construction of Rule

25(a) conflicts with federal statute, 28 U.S.C. § 137, which vests the district court

with broad power to divide court business among judges.     See Diaz , 189 F.3d at

1244 (rejecting the argument that Fed. R. Crim. P. 25 enumerates the only

circumstances in which judicial reassignment is permissible because such a

construction of Rule 25 conflicts with the broad grant of power to courts under 28

U.S.C. § 137).

      Therefore, we reject Mr. Guebara’s assertion that judicial substitution was

improper in this case.



B. Denial of the Motion to Withdraw the Guilty Plea

      Mr. Guebara also alleges that the district court erred in denying his motion

to withdraw his guilty plea. Federal Rule of Civil Procedure 32(e) provides that

“[i]f a motion to withdraw a plea of guilty. . . 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. Civ. P. 32(e). The Tenth Circuit has delineated seven




                                         -14-
factors that courts should weigh in determining whether a defendant has shown a

fair and just reason for allowing withdrawal of a guilty plea:

       (1) whether the defendant has asserted innocence; (2) prejudice to the
       government if the motion is granted; (3) whether the defendant has delayed
       in filing the motion to withdraw his plea; (4) inconvenience to the court if
       the motion is granted; (5) the quality of the defendant’s assistance of
       counsel during the plea; (6) whether the plea was knowing and voluntary;
       and (7) the waste of judicial resources.

United States v. Killingsworth      , 

, 1162 (10th Cir.),   cert denied , 

(1997) (citing       United States v. Gordon , 

(10th Cir. 1993)).

Although motions to withdraw guilty pleas prior to sentencing should be “freely

allowed and treated with liberality,”     Barker v. United States , 

, 1223

(10th Cir. 1978), the court’s decision is discretionary and consequently we review

it for abuse of discretion.     See United States v. Guthrie , 

, 1513 (10th

Cir. 1995).

       After reviewing the record we are convinced that the district court carefully

weighed the relevant factors, and therefore we conclude that the court did not

abuse its discretion in denying Mr. Guebara’s motion to withdraw his guilty plea.

       In its order, the court stressed that Mr. Guebara’s failure to assert his

innocence to the offenses to which he pleaded guilty unequivocally favored denial

of the motion to withdraw the guilty plea.       See Aplt’s App. vol. I, at 167

(Memorandum and Order, Sept. 18, 1998). Mr. Guebara clearly admitted that he

was guilty of these crimes at his plea hearing, and continued to admit his guilt

                                              -15-
even after he had filed his motion to withdraw his plea.       See Aplt’s App. vol. II,

at 444-45 (Transcript of Motion Hr’g, Aug. 10, 1998).

       The court also noted the government’s contention that it would be severely

prejudiced if Mr. Guebara was allowed to withdraw his guilty plea because the

government’s primary witness, Officer Murrison, is no longer employed by the

Garden City Police and his whereabouts are presently unknown.            See Aplt’s App.

vol. I, at 167 (Memorandum and Order, Sept. 18, 1998).

       As to delay in filing the motion, the court found that Mr. Guebara had

offered no reason for waiting until just prior to sentencing, approximately three

months after he had entered his plea, to file the motion to withdraw his plea.

Moreover, it is clear from the colloquy at sentencing, that it was the court that

initially suggested that Mr. Guebara consider filing a motion to withdraw his plea.

See Aplt’s Supp. App. to vol. II, at 492 (Transcript of Hr’g, June 1, 1998).

       Additionally, the court found that Mr. Guebara’s plea was knowing and

voluntary and not the result of threat or coercion. This finding is supported by

the plea colloquy, in which Mr. Guebara acknowledged understanding that he did

not have to plead guilty and that the decision to plead guilty was his alone.     See

Aplt’s App. vol. II, at 317-46 (Transcript of Plea of Guilty, Mar. 9, 1998).

       Next, the court addressed the quality of the defendant’s assistance of

counsel during the plea. The court found that even though Mr. Guebara’s counsel


                                            -16-
(Mr. Levy) had not performed “up to the standards of most other defense

attorneys who practice in this court,” Mr. Guebara had made no showing that, but

for his counsel’s errors, namely, failing to locate Mr. Ramirez, the alleged key

witness, he would have insisted on a trial instead of pleading guilty.      See Aplt’s

App. vol. I, at 168-69 (Memorandum and Order, Sept. 18, 1998).

       Finally, although the court believed that allowing Mr. Guebara to withdraw

his plea would be an inconvenience to the court, it did not go so far as to say that

withdrawal would constitute a waste of judicial resources.        See 

The

court thus found these factors somewhat neutral as applied to Mr. Guebara.

       On balance, the relevant    factors weighed in favor of the government and

against Mr. Guebara. We therefore conclude that the district court did not abuse

its discretion in denying Mr. Guebara’s motion to withdraw his guilty plea.



C. The Decision to re-open the suppression hearing

       On a final note, we address the government’s contention in its response

brief that the court’s decision to re-open the suppression hearing to allow Mr.

Guebara to present additional witnesses was erroneous. This contention is

entirely misplaced in this case.

       Although the government’s contention is not made within a formal cross-

appeal, we point out that to find error here, we would have to conclude that the


                                            -17-
district court’s decision to re-open the hearing was an abuse of discretion.       See

Wiseman , 172 F.3d at 1207-1208. Thus, in essence, the government asserts that

court’s decision to re-open the hearing was “an arbitrary, capricious, whimsical,

or manifestly unreasonable judgment.”       Coletti v. Cudd Pressure Control     , 

, 777 (10th Cir. 1999) (internal quotations omitted).

       Perhaps the government was emboldened by the court’s oral rationale for

its decision:

       [B]ut I will have another suppression hearing. Not so much because of
       what you say, but because, frankly, I am never sure what the Court of
       Appeals will do any more and . . . the interests of justice and my time are
       not served by going ahead and sentencing you today and then having the
       Court of Appeals tell me two years from now or longer that I should have
       given you a hearing on this.

Aplt’s App. vol. II, at 384 (Transcript of Motion Hr’g, July 6, 1998)       .

       But, whatever the reason for the court’s concern, we support its solution:

re-opening the suppression hearing to ensure that evidence which possibly should

have been considered in the first hearing was now before the court. As the

government concedes in its brief, the decision to allow additional witnesses to

testify “was the result of the court’s admirable attempt to make certain the

defendant’s rights were not violated,” Aple Br., at 13, and is therefore, hardly

“arbitrary, capricious, whimsical, or manifestly unreasonable.”         Coletti , 165 F.3d

at 777. Indeed, the court’s care might have resolved any problems caused by the

first counsel’s failings, if any, to present key testimony at the hearing. The

                                            -18-
district court’s actions may have conserved judicial –and governmental– resources

with respect to future hearings, and further confirmed the justice of the result.

Although such a re-opening may indeed not have been required, it is discouraging

to suggest or imply it was an abuse of discretion.



                                III. CONCLUSION

      For the foregoing reasons we AFFIRM the district court’s denial of the

motion to set aside the order denying the motion to suppress. Additionally, we

AFFIRM the court’s order denying the motion to withdraw the guilty plea.



                                 Entered for the Court,


                                 Robert H. Henry
                                 United States Circuit Judge




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