Opinion
Case No. CR-3-98-81(1)
September 11, 2002
DECISION AND ENTRY OVERRULING DEFENDANT'S MOTION TO VACATE PLEAS (DOC. #247); CONFERENCE CALL SET
Defendant Keith Dewitt, Sr. ("Defendant" or "Dewitt"), was charged in Count 1 of the Indictment with conspiring to distribute and to possess with intent to distribute quantities of cocaine, crack cocaine and heroin. In Counts 2-5, he was charged with money laundering offenses, and it was alleged in Counts 6 and 7 that he made false statements in connection with federal income tax returns. The Defendant entered pleas of not guilty, and his trial commenced in January, 2000. On January 19, 2000, the fourth day of the trial, Dewitt entered pleas of guilty to Counts 1, 4 and 6, with the other charges to be dismissed. On July 11, 2000, the Defendant filed a pro se motion to vacate his pleas. See Doc. #247. Thereafter, Dewitt obtained new counsel. See Doc. #269. On July 23 and 24, 2001, this Court conducted an oral and evidentiary hearing on the Defendant's motion. In accordance with the Court's briefing schedule (Doc. #293), the parties have filed their post-hearing memoranda. See Docs. #298, #300 and #301. The Court now rules on that motion, beginning its analysis by setting forth the facts and circumstances leading to the entering of the guilty pleas by the Defendant. The Court will then review the standards which must be applied when any defendant moves to withdraw a guilty plea, following which it will apply those standards to the evidence presented during the hearing.
The Defendant has elaborated upon that motion with his pro se Addendum to Motion to Vacate (Doc. #252) and a letter to the Court (Doc. #256).
After the Indictment was returned in this prosecution, the Court initially appointed Gary Crim ("Crim") to represent the Defendant. At the time of the evidentiary hearing on Defendant's request to suppress evidence, Assistant United States Attorney J. Richard Chema ("Chema") and Special Agent Thomas Buchenroth ("Buchenroth") of the Internal Revenue Service, Criminal Investigation Division, had informal plea discussions with Crim. At that time, the Government suggested that the Defendant plead guilty to offenses which would result in a 10-year sentence. Crim indicated that the Defendant was not interested in entering a guilty plea. Subsequently, Crim was replaced as Defendant's counsel by Lawrence Greger ("Greger"), who had been retained by Dewitt's family. Shortly after Greger had been retained, Buchenroth mentioned the concept of the Defendant pleading guilty and receiving a 10-year sentence. Greger rejected Buchenroth's entreaty, indicating that he was not yet sufficiently knowledgeable about the discovery materials to enter into a discussion concerning a guilty plea. In October, 1999, Greger met with Chema and Buchenroth, during which meeting possible guilty pleas were discussed. Although the Government was under the impression that the discussions did not involve a formal offer, Greger came away from the meeting with the understanding that the Government had offered the Defendant the opportunity of pleading guilty and receiving a ten-year sentence. The Defendant rejected that offer.
Greger was paid a $25,000 retainer, which was significantly less than other attorneys had demanded to represent Dewitt.
Chema left the meeting under the impression that rather than conveying a firm plea offer to Greger, he and Greger had merely discussed possible plea scenarios. Given that the Defendant declined to enter guilty pleas in October, 1999, it is not necessary to decide whether the Government had made a firm offer at that time.
On January 10, 2000, before Defendant's trial began, the Court conducted a proceeding with Dewitt, during which a best case/worst case scenario (i.e., the probable sentence the Defendant could expect, pursuant to the Sentencing Guidelines, if he were to plead guilty, as opposed to the probable sentence under the Guidelines, if he were to go to trial and be convicted of all offenses) and the status of plea negotiations were placed on the record. That proceeding did not result in the entry of guilty pleas. The following day, the Government made a plea offer to the Defendant, which he rejected. The Defendant's trial commenced on Thursday, January 13, 2000. At the conclusion of testimony on Tuesday, January 18, 2000, the Government provided materials in accordance with the Jencks Act, 18 U.S.C. § 3500, and Brady v. Maryland, 373 U.S. 83 (1963), for four individuals who would testify the following day, including transcripts of their testimony before the Grand Jury. Those four witnesses would all provide testimony directly linking Dewitt to the distribution of narcotics. At approximately 8:30 a.m., the following day, Wednesday, January 19, 2000, Greger met with the Defendant in the holding cell located in the Federal Building, and gave his client the materials he had been given the previous day. Greger told Dewitt that he had spent the previous night using those documents to prepare his cross-examination of the four witnesses and asked him to read the materials. Greger then left Dewitt for about 20 minutes, in order to allow him to read the documents, while he (Greger) asked the Court and the Government for a brief delay before starting the trial that day. He then returned to the holding cell and discussed the documents with Dewitt. At that point, the Defendant and Greger decided to pursue plea negotiations with the Government. Throughout the remainder of the morning, Greger shuttled back and forth between his client and representatives of the Government, discussing possible guilty pleas by the Defendant. Those discussions culminated in the Defendant agreeing to enter guilty pleas, under which he would plead guilty to Count 1 (conspiracy to possess with intent to distribute and to distribute powdered cocaine, crack cocaine and heroin), Count 4 (money laundering) and Count 6 (making a false statement in a federal income tax return). The Government agreed to drop Counts 2, 3 and 5 (money laundering) and Count 7 (making a false statement in a federal income tax return). Before Dewitt finally agreed to enter the guilty pleas, arrangements were made for him to speak with his mother, by telephone, from the office of the United States Marshal.
This was the third day of trial. The trial had not been in session the previous day.
The trial was scheduled to begin at 9:00 a.m.
During the change of plea hearing, the Court initially administered an oath to Dewitt. Transcript of January 19, 2000, Change of Plea Hearing (Doc. #275) at 3-4. On the date that he entered guilty pleas, Dewitt was 31 years of age, had completed 11 years of formal schooling and had operated two businesses. Id. at 2, 4-5 and 52. The Defendant, while under oath, admitted that, between October, 1987, and September, 1998, he had agreed with others to distribute powdered cocaine, crack cocaine and heroin, which he had obtained in the Southern District of Ohio and in other states. Id. at 5-7. On at least five occasions, the Court told the Defendant that his sentence would be between ten years and life imprisonment, and he indicated that he understood. Id. at 15, 16, 18. 29 and 40. On four occasions, the Court explained to Dewitt that his lawyer had computed the sentencing guideline range as being between 235 months (19 years and 7 months) and 293 months (24 years and 5 months), and the Defendant indicated that Greger had had those discussions with him and that he understood. Id, at 9, 10, 40 and 41. The Court also explained to the Defendant that the guideline range of 235 months to 293 months could be increased as a result of his role in the offense. Id. at 40-41.See also, Id. at 20 (Defendant acknowledging that he understood that the issue of whether his offense level would be increased as a result of his role in the offense was an "open issue"). When the Court offered the Defendant the opportunity to ask questions about his guilty pleas and/or the plea agreement, he indicated that he had no questions. Id. at 20, 31 and 52.
The Defendant also admitted facts which supported Counts 4 and 6.
Rule 32(e) of the Federal Rules of Criminal Procedure provides that a District Court may permit a defendant to withdraw his guilty plea, before sentence has been imposed, if he "shows any fair and just reason." This Rule is designed "to allow a hastily entered plea made with unsure heart and confused mind to be undone." United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991), cert. denied, 502 U.S. 1117 (1992). It is not designed "to allow a defendant to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes he made a bad choice in pleading guilty." Id. (internal quotation marks and citation omitted). In United States v. Spencer, 836 F.2d 236 (6th Cir. 1987), the Sixth Circuit announced a five-factor test to be applied when a defendant moves to withdraw his plea before he has been sentenced. The Sixth Circuit subsequently added a sixth factor to the calculus. In United States v. Durham, 178 F.3d 796 (6th Cir.),cert. denied, 528 U.S. 1033 (1999), the Sixth Circuit reviewed the applicable factors:
This Court reviews a district court's denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Bashara, 27 F.3d 1174, 1180 (6th Cir. 1994). Durham moved to withdraw his plea of guilty to the escape, alleging that the government had coerced him into pleading guilty. The district court denied the motion in light of this Court's decision in United States v. Spencer, 836 F.2d at 239-40, finding that Durham had not shown a "fair and just reason" for withdrawal.
Federal Rule of Criminal Procedure 32(e) provides that a court may permit a defendant to withdraw a plea prior to sentencing if he shows any "fair and just reason" for the withdrawal. Fed.R.Crim.P. 32(e). In Spencer, 836 F.2d at 239-40, this Court promulgated five factors for a court to consider in determining whether to grant a motion to withdraw: (1) the length of time between the guilty plea and the filing of the motion to withdraw, (2) the defendant's reason for not presenting the grounds earlier, (3) whether the defendant has asserted or maintained his innocence, (4) the circumstances surrounding the plea, the nature and background of the defendant, and whether the defendant has admitted guilt, and (5) any potential prejudice to the government, although a showing of prejudice is not necessary. In United States v. Pluta, 144 F.3d 968, 973 (6th Cir. 1998), this Court added the defendant's prior experience with the criminal justice system as a sixth factor.Id. at 798-99. See also, United States v. Mader, 251 F.3d 1099, 1105 (6th Cir. 2001) (listing the defendant's nature and background as an additional factor, rather than as part of another factor); United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994) (same). The defendant has the burden of proving that the withdrawal of his plea is justified.United States v. Baez, 87 F.3d 805, 807 (6th Cir.), cert. denied, 519 U.S. 973 (1996); United States v. Stephens, 906 F.2d 251, 252 (6th Cir. 1990). As a means of analysis, the Court will discuss the six factors in the order in which they appear in Durham.
1. The Length of Time Between the Guilty Plea and the Filing of the Motion to Withdraw
The Defendant plead guilty to Counts 1, 4 and 6 on January 19, 2000. He filed his pro se motion seeking to withdraw those guilty pleas approximately six months later, on July 11, 2000. See Doc. #247. InUnited States v. Alexander, 948 F.2d 1002 (6th Cir. 1991), cert. denied, 502 U.S. 1117 (1992), the Sixth Circuit discussed the length of time between the entry of the guilty plea and the filing of a motion to withdraw that plea:
Courts have noted that the aim of the rule is to allow a hastily entered plea made with unsure heart and confused mind to be undone, not to allow a defendant "to make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if he believes that he made a bad choice in pleading guilty." United States v. Carr, 740 F.2d 339, 345 (5th Cir. 1984), cert. denied, 471 U.S. 1004 (1985). For these reasons, courts have denied motions to vacate entered after any substantial time has passed after the entry of the plea. See, e.g., Carr, 740 F.2d 339 (22 days); Spencer, 836 F.2d 236 (five weeks). Alexander's delay of almost five months is certainly beyond the bounds of the time frame ordinarily considered appropriate for motions to vacate.Id. at 1004. See also, Durham, 178 F.3d at 798 (terming seventy-seven day delay the strongest factor supporting the district court's denial of the defendant's motion to withdraw his plea); United States v. Baez, 87 F.3d 805, 807 (6th Cir. 1996) (calling a sixty-seven-day delay the strongest factor supporting its denial of the motion to withdraw); United States v. Goldberg, 862 F.2d 101, 104 (6th Cir. 1988) (terming a fifty-five-day gap a "lengthy delay").
Even though nearly six months passed before the Defendant filed his motion seeking to withdraw his pleas, he argues that the Court should treat that motion as having been filed in a timely fashion, because the day after he had entered the pleas, January 20, 2000, he requested that Greger file a motion to withdraw those pleas. On January 20th, Greger visited the Defendant at the Montgomery County Jail. During the evidentiary hearing, the Defendant testified that he had asked Greger to withdraw the guilty pleas on the day after they had been entered. In his post hearing memorandum, Defendant argues that during this visit he discovered that the terms of his plea agreement had not been adequately explained to him, and realized that he did not understand the terms of that agreement or the implications of his pleas for purposes of sentencing. Doc. #300 at 3. The Court cannot accept any of the Defendant's arguments as justification for waiting six months before moving to withdraw his guilty pleas.
As an initial matter, in Bashara, the Sixth Circuit held that the date upon which the defendant moved to withdraw his guilty plea is dispositive, rather than the date upon which he initially complains about having entered a guilty plea. 27 F.3d at 1181. More importantly, this Court cannot credit the Defendant's self-serving testimony to the effect that he asked Greger to withdraw the guilty pleas the day after they had been entered. During the evidentiary hearing, Greger testified that he had met with the Defendant in the Montgomery County Jail, shortly after the guilty pleas had been entered. According to Greger's testimony, Dewitt did not mention withdrawing his guilty pleas during that meeting. Rather, Greger testified that it was not until much later, at least until after the Probation Department had issued its preliminary presentence investigation report, that his client raised the possibility of withdrawing his guilty pleas. For reasons which follow, the Court finds Greger's testimony to be credible, while finding that the Defendant's testimony lacked credibility.
As an initial matter, the Court notes that, on January 19, 2000, the Defendant swore under oath that he was guilty of three offenses and admitted the truth of facts supporting his guilty pleas to those offenses. Nevertheless, the Defendant asserted under oath during the evidentiary hearing that he is not guilty of any of the offenses with which he is charged. The diametrically opposite positions, taken under oath by the Defendant, certainly do not lend credence to his testimony at the hearing. Moreover, some of the Defendant's testimony during that evidentiary hearing directly contradicted his statements during the change of plea hearing. During the evidentiary hearing, the Defendant testified that Greger assured him that he would be sentenced to 19 years in prison as a result of pleading guilty. Doc. #295 at 171-72. In contrast, during the change of plea hearing conducted on January 19, 2000, the Court told the Defendant on at least five occasions that his sentence would be between ten years and life imprisonment, and he indicated that he understood. Id. at 15, 16, 18. 29 and 40. On four occasions, the Court explained to Dewitt that his lawyer had computed the sentencing guideline range as being between 235 months (19 years and 7 months) and 293 months (24 years and 5 months), and the Defendant indicated that Greger had had those discussions with him and that he understood the discussions. Id, at 9, 10, 40 and 41.
Six months passed before the Defendant filed his pro se motion to vacate those pleas. Based upon the foregoing, the Court finds that the passage of that amount of time strongly favors denying the Defendant's request to withdraw his pleas.
2. The Defendant's Reason for Not Presenting the Grounds Earlier
In his post-hearing memorandum (Doc. #300), the Defendant has not suggested that he had a reason for failing to move to withdraw his guilty pleas earlier. Therefore, the Court concludes that this factor does not support Dewitt's request to withdraw his guilty pleas.
3. Whether the Defendant Has Asserted or Maintained His Innocence
The Defendant argues that the evidence establishes that he has maintained his innocence. The Court agrees that, prior to entering the guilty pleas, Dewitt had declined to enter guilty pleas and had maintained his innocence. In addition, the Court will agree that, since he filed his motion seeking to withdraw his guilty pleas, the Defendant has asserted that he is innocent. However, the Government argues that the Defendant has not consistently maintained his innocence, because he admitted, under oath, that he was guilty of Counts 1, 4 and 6. This Court agrees. The Sixth Circuit has indicated that a defendant's "post plea claims of innocence mock his courtroom declarations of guilt under oath." United States v. Mise, 2001 WL 1356235 (6th Cir. 2001) at *5.Accord United States v. Ford, 1994 WL 567593 (6th Cir. 1994); United States v. Robinson, 1994 WL 287388 (6th Cir. 1994). During the colloquy between the Court and the Defendant, he admitted under oath that he was guilty of the charges set forth in Counts 1, 4 and 6, as well as admitting the truth of the facts supporting his pleas of guilty to those Counts. See Transcript of January 19, 2000 Change of Plea Hearing (Doc. #275) at 49, 3-7. See also, Plea Agreement (Doc. #220).
Accordingly, the Court concludes that this factor does not favor the Defendant's request to withdraw his guilty pleas.
4. The Circumstances Surrounding the Plea, the Nature and Background of the Defendant, and Whether the Defendant Has Admitted Guilt
In his post-hearing memorandum (Doc. #300), the Defendant argues that the inadequate representation he received from his former counsel, Lawrence Greger ("Greger"), inexorably leads to the conclusion that he should be permitted to withdraw his guilty pleas. In particular, the Defendant contends that Greger rendered substandard representation by failing to investigate the charges in the Indictment, by failing to retain a private investigator or a forensic accountant, by failing to explain adequately all of the applicable provisions of the Sentencing Guidelines and by failing to provide a periodic accounting of how the $25,000 retainer that had been paid to him had been spent. In addition, the Defendant argues that Greger coerced him into pleading guilty on January 19, 2000.
As an initial matter, the Court rejects the Defendant's argument that Greger rendered ineffective assistance of counsel, which led to the guilty pleas and that said ineffective assistance of counsel is, in the words of Rule 32(e), a "fair and just reason" for permitting Dewitt to withdraw his guilty plea. In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court ruled that the two-part test established in Strickland v. Washington, 466 U.S. 668 (1984), must be utilized when a defendant claims that he was forced to enter a guilty plea because of ineffective assistance rendered by his counsel. The Hill Court indicated that to satisfy the prejudice prong of that test, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."Id. at 59. With the exception of Greger's alleged failure to explain adequately the Sentencing Guidelines, an issue which is discussed below, the Court is unable to conclude that the Defendant demonstrated that he suffered prejudice as a result of Greger's asserted shortcomings. The Defendant testified during the evidentiary hearing conducted on his request to withdraw his guilty pleas. During that testimony, he did not indicate that he decided to plead guilty because Greger had failed to conduct an adequate investigation of the charges in the Indictment, because he had failed to retain either a private investigator or a forensic accountant to assist in the defense and because he had failed to provide a periodic accounting of how the $25,000 retainer that had been paid to him had been spent. In the absence of such evidence, this Court is unable to find that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Accordingly, the Defendant has failed to demonstrate that he suffered prejudice as a result of Greger's alleged errors.
With respect to Greger's alleged failure to explain in adequate fashion all of the relevant provisions of the Sentencing Guidelines, the Defendant did testify that, on the day following the guilty pleas, Greger visited him in the Montgomery County Jail. According to the Defendant's testimony, Greger left a copy of the Sentencing Guidelines during that visit. As a result of receiving that book, the Defendant claims that he learned for the first time about certain enhancements under the Sentencing Guidelines that were applicable to him. As a consequence, he decided that he did not understand the plea agreement into which he had entered and, as a consequence, sought to withdraw his guilty pleas. The only enhancement about which there was testimony during the hearing was one for the Defendant's leadership role in the conspiracy to which he pled guilty. See U.S.S.G. § 3B1.1. In contrast to the Defendant's testimony, Greger testified that he had explained all applicable provisions of the Sentencing Guidelines to his client, including the potential enhancement for leadership role in the offense, before Dewitt entered the guilty pleas. Above, the Court has found Greger's testimony to be credible, while that of the Defendant to be otherwise. Based upon that reasoning, the Court finds Greger's testimony that he explained all applicable enhancements to be believable, while the Defendant's testimony about Greger's asserted failure to explain the applicable enhancements is not credible. In addition, Greger's testimony is supported by the colloquy the Court conducted with the Defendant, during the change of plea hearing on January 19, 2000. During that proceeding, the Court explained to the Defendant that the guideline range of 235 months to 293 months could be increased as a result of his role in the offense. Id. at 40-41. See also, Id. at 20 (Defendant acknowledging that he understood that the issue of whether his offense level would be increased as a result of his role in the offense was an "open issue"). Therefore, the Court cannot conclude that Greger rendered ineffective assistance of counsel by failing to provide an adequate explanation of a possible role in the offense enhancement, before the Defendant entered the guilty pleas.
In addition, the Defendant argues that Greger coerced him into pleading guilty on January 19, 2000. This Court cannot agree with the Defendant that the evidence presented during the evidentiary hearing establishes that Greger coerced him into entering guilty pleas to three charges. On January 19, 2000, when he first met with the Defendant that morning, Greger gave him transcripts of Grand Jury testimony and other Jencks andBrady material relating to that day's four witnesses, all of whom would testify about Dewitt's participation in the distribution of controlled substances. After the Defendant had read those materials, he and his attorney discussed the possibility of entering guilty pleas, with Greger raising the subject. Nevertheless, the Court finds that the Defendant knowingly and voluntarily decided to enter guilty pleas, rather than being coerced into that action by Greger. Indeed, Greger testified that the decision to plead guilty was the Defendant's, thus discounting the Defendant's assertion that it was the product of his attorney's coercion. For the reasons set forth above, the Court finds that Greger's testimony on this subject is believable, while that presented by the Defendant is not. Moreover, the Court, having observed the Defendant not only during the evidentiary hearing but throughout this prosecution, is firmly convinced that this Defendant would make up his own mind about something as important as entering into guilty pleas, rather than being bullied into doing so by his attorney. It bears noting that, when the Defendant was charged with murder in Montgomery County Common Pleas Court, he became dissatisfied with the advice being provided by counsel. As a result, he fired that attorney, thus demonstrating that he can and will control the progress of his defense.
Based upon the foregoing, the Court concludes that this factor does not support the Defendant's request to withdraw his guilty pleas.
5. Any Potential Prejudice to the Government
The Government argues that the evidence establishes that it will suffer, if the Defendant is allowed to withdraw his guilty pleas. This Court agrees. The Government planned to call Patricia Ann Gullatte ("Gullatte") as a witness to testify against the Defendant. The Government anticipated that Gullatte would testify that she purchased a house which Dewitt used to distribute heroin and to torture people whom he believed had stolen cocaine from him or were acting as police informants. In addition, Gullatte would have testified that Dewitt sent her to New York to obtain kilogram quantities of heroin for him and that she had distributed that controlled substance for him in Indiana. She would also have testified that she observed Dewitt in the possession of large sums of currency and that he (Dewitt) had traveled to Detroit in order to purchase cocaine. The Government also planned to elicit testimony from Gullatte about Dewitt's money laundering activities. In addition, the Government anticipated that Gullatte would have testified that the Defendant was involved in the murder of Walter Coles. Gullatte could have been a very convincing witness for the Government, since she was not only was a Co-Defendant and an alleged Co-Conspirator of Dewitt, but she was his aunt and a principal participant in his drug activity, as well. If the Court permits Dewitt to withdraw his pleas, the Government will not be able to call Gullatte at the trial of this prosecution, since she died on May 18, 2000. Courts have held that the death of a key prosecution witness is sufficiently prejudicial to deny a request to withdraw a guilty plea, even though the defendant has presented a fair and just reason for doing so. See United States v. Nahodil, 776 F. Supp. 991, 996 (M.D.Pa. 1991), affirmed, 972 F.2d 1334 (3rd Cir.) (Table), cert. denied, 506 U.S. 1026 (1992).
She also served as the Defendant's heroin tester.
During the evidentiary hearing, Greger testified that he had more material with which to impeach Gullatte than any other Government witness. Seizing upon that testimony, the Defendant argues that the loss of Gullatte as a witness will not cause the Government to suffer prejudice. The Court cannot agree. Greger also testified that Gullatte appeared to have two personas, the Defendant's aunt who could provide credible testimony and the heroin addict who was less believable. According to Greger, whether he would have been able to impeach Gullatte would have depended upon which Patricia Gullatte (i.e., the aunt or the heroin addict) appeared at trial and testified. Moreover, it bears emphasis that this factor requires that the Court examine the potential for prejudice to the Government. All evidence indicated that the loss of Gullatte as a witness had the potential for causing the Government to suffer prejudice.
The Government also presented evidence that it might suffer prejudice if the Defendant is permitted to withdraw his guilty pleas, because other witnesses may not be available to testify against him. For instance, the Government has presented evidence that Jack Greist ("Greist"), a person it would have called as a witness in Defendant's trial, is in poor health and of advanced age. Greist is a New York City jeweler who would have testified about Dewitt's money laundering activities. In particular, he would have indicated that Co-Defendant Larry Watson attempted to purchase a $19,000 Rolex watch for Dewitt, using cash and a Ohio welfare card as identification. Due to Greist's frail health and advanced age, it is improbable that he will be able to travel to Dayton to testify, if Dewitt is to be tried as a result of being permitted to withdraw his guilty pleas. In addition, the Government presented evidence that another prosecution witness, Kelvin Isaac ("Isaac"), may not be available to testify, since he has left this area. Isaac would have testified that Dewitt tortured him, at the house Gullatte had purchased for Dewitt to use to distribute drugs, because the Defendant suspected that he was an informant being used by the police.
Greist would have testified that the Defendant initially paid $3,000 toward the purchase of the watch and that Watson completed the transaction, by giving the jeweler $19,000 in cash.
The unavailability of witnesses is not the only manner in which the Government will be prejudiced if the Defendant is permitted to withdraw his pleas. Special Agent Robert Brawner ("Brawner") of the Federal Bureau of Investigation ("FBI") has retired. Brawner has been the case agent on this prosecution for the FBI. If the Defendant is permitted to withdraw his pleas, thus necessitating a trial, the Government will be prejudiced by Brawner's retirement and concomitant unavailability to serve as case agent for the Government.
Brawner is one of the two law enforcement officers most involved in this prosecution. The other is Buchenroth, who has not retired.
Moreover, the Sixth Circuit has indicated that the Government is prejudiced whenever it is required to expend time and resources to prepare a second time. Durham, 178 F.3d at 799 ("allowing [the defendant] to withdraw his plea and forcing the government to prepare its case once again would prejudice the government").
Based upon the foregoing, the Court concludes that the Government would suffer significant prejudice, if the Defendant were permitted to withdraw his guilty pleas, and that, therefore, this factor strongly favors denying the Defendant's request to withdraw same.
6. Defendant's Prior Experience with the Criminal Justice System
The Sixth Circuit has indicated that a defendant with extensive experience with the criminal justice system will be less likely to be permitted to withdraw a guilty plea, than one without such experience.Durham, 178 F.3d at 799. The Defendant has been involved with the criminal justice system on a number of instances prior to this prosecution. He was charged and tried on two occasions in the Montgomery County Common Pleas Court for murder. During the course of that prosecution, Dewitt fired one attorney, because he did not agree with his counsel's advice on how to proceed with the defense. In addition, the Defendant pled guilty to a state charge of carrying a concealed weapon in 1989. In 1996, he pled guilty to a second state charge of carrying a concealed weapon. The Defendant's extensive prior experience with the criminal justice system causes this Court to find that this factor does not support the withdrawal of his guilty pleas.
As the Defendant points out, in none of his prior prosecutions was he to be sentenced under a sentencing structure similar to the United States Sentencing Guidelines. That fact does not cause this Court to alter its finding that this factor does not support the withdrawal of the guilty pleas, given that the impact of the Sentencing Guidelines was explained to the Defendant by his counsel prior to the change of plea hearing and by the Court during that proceeding.
In sum, none of the relevant factors favors permitting the Defendant to withdraw his guilty pleas, while the passage of time and the prejudice to the Government strongly support denying that request. Therefore, the Court concludes that the Defendant has failed to prove the existence of a "fair and just reason" for permitting him to withdraw his guilty pleas. Accordingly, the Court overrules the Defendant's Motion to Vacate Plea (Doc. #247).
Counsel listed below will take note that the Court has scheduled a telephone conference call on Thursday, September 19, 2002, at 8:45 a.m., for the purpose of selecting a date to sentence the Defendant. The Court wishes to emphasize to the Defendant that, when sentencing him, it will consider denying him any reduction for acceptance of responsibility, under the theory that he has now, by moving to vacate his pleas, denied all responsibility for the crimes to which he pled guilty.