Opinion
S2 03 Cr. 156 (RWS).
July 21, 2005
HARRY SANDICK, ESQ., Assistant US Attorney, HONORABLE DAVID N. KELLEY, New York, NY, United States Attorney for the Southern District of New York.
LAWRENCE K. FEITELL, ESQ., New York, NY, Attorney for Defendant.
OPINION
Alfonso Fajardo (hereinafter "Fajardo") moves to withdraw from the plea agreement he entered into on February 15, 2005, while leaving his guilty plea, also entered on that date, intact. His motion is opposed by the government. For the reasons set forth below, the motion to withdraw from the plea agreement is denied.
Prior Proceedings
The government initially filed a sealed indictment against Fajardo and his co-defendants on February 6, 2003, and subsequently filed a superseding sealed indictment against them on May 15, 2003. An arrest warrant for Fajardo issued on that date. Fajardo resided in Colombia at that time and ultimately was extradited to the United States for prosecution in April 2004.
Donald Yannella (hereinafter "Yannella") was appointed counsel for Fajardo on April 16, 2004 and remained Fajardo's attorney through the entry of Fajardo's guilty plea. On February 15, 2005, Fajardo, while represented by Yannella and pursuant to a plea agreement signed on that day, entered a plea of guilty before the Honorable Debra C. Freeman of this district.
On June 2, 2005, Fajardo moved to withdraw from the terms of his plea agreement, while leaving his guilty plea intact. The government filed its opposition to this motion on June 22, 2005, at which time the motion was deemed fully submitted.
Withdrawal from the Plea Agreement is Denied
The Second Circuit in United States v. Lopez, 385 F.3d 245 (2d Cir. 2004), recently announced the governing standard for permitting a defendant's presentence withdrawal from a plea agreement when the underlying guilty plea is to remain binding:
. . . [T]he factors to be considered in determining whether a defendant has demonstrated a "fair and just reason" [to withdraw his plea agreement] should be tailored to the context of the plea agreement withdrawal. For example, . . . the district court should ask whether there is credible evidence that the defendant did not freely and voluntarily enter into the plea agreement, either because he was coerced or improperly induced to accept its terms, or because he misunderstood them. The court should also seek to determine the extent of any prejudice likely to be suffered by the Government, keeping in mind that, as we have explained, such prejudice will generally be considerably less than would attend withdrawal of a guilty plea. Other factors may be relevant to the analysis, but these two questions ought to be at its center.Id. at 255.
Fajardo must present credible evidence to demonstrate to the Court that he was either improperly induced or coerced into the agreement or that he failed to understand the terms and conditions of the plea agreement. In Lopez, the district court conducted an evidentiary hearing to assess the credibility of the defendant's claim that his attorney misrepresented to him the terms and conditions of the plea agreement. Both the defendant and the attorney who counseled him at the time of the entry of his plea agreement testified, and the district court credited the account presented by counsel, concomitantly discrediting the defendant's account. Id. at 248. The Second Circuit accepted the district court's conclusion that the defendant had not presented credible evidence supporting his claims of coercion and misunderstanding, holding "specifically . . . that [counsel] had not `made any representation to the defendant prior to the signing of the plea agreement [that] was at odds or variance with the plea agreement.'" Id. at 256 (citations omitted).
"A defendant is not entitled to an evidentiary hearing as a matter of right whenever he seeks to withdraw his guilty plea."United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992). Although Fajardo seeks to withdraw from his plea agreement while leaving his guilty plea in place, he is still not automatically afforded an evidentiary hearing without presenting "some significant questions concerning the voluntariness or general validity" of the plea agreement. Id. Statements by a defendant in a plea proceeding are made under oath and thus are "[s]olemn declaration[s] in open court [that] carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). As such, "no evidentiary hearing [is] required on the basis of unsupported allegations, which merely contradict [the defendant's] earlier statements made under oath at his plea allocution." Gonzalez at 1101.
Fajardo is not entitled to an evidentiary hearing. He has not presented any credible evidence to raise a "significant question" as to the voluntariness of his consent to the plea agreement. Instead, he simply states that he did not understand how the Guidelines would affect him (Fajardo Affirmation ¶ 3); that he was coerced into signing the agreement through his attorney's "goading and verbal pressure, and with no prior opportunity to see and discuss the proposed written agreement" (id.); that he did not understand the quantity of heroin distribution to which he was pleading guilty (id. at ¶ 6); and that he did not understand that his plea agreement denied him safety valve consideration (id.).
However, each of these allegations is contradicted directly by Fajardo's own sworn statements made during his plea allocution on February 15, 2005, the very same date on which he signed the plea agreement. Given that Fajardo presents no additional evidence to challenge the voluntariness of the entry of his plea agreement, and given the presumption of veracity afforded statements made at plea proceedings, no evidentiary hearing will be granted.
At his plea allocution, Fajardo was questioned extensively by Judge Freeman, unequivocally stating under oath that he: had sufficient time to discuss the case with his attorney (Trans. of Plea Allocution, February 15, 2005, p. 6); was satisfied with the representation and advice given to him by his attorney (id.); understood that any untruthful answers he gave to the court during the plea proceeding could result in a separate prosecution for perjury (id. at 10); had discussed the plea agreement with his attorney, who had explained all of its terms and conditions (id. at 13); understood that the stipulated sentence was 120 months imprisonment (id.); understood that the Sentencing Guidelines were advisory (id. at 15); understood that the plea agreement included a provision that made him ineligible for safety valve relief because he had not, until that time, met with the government for the requisite proffer session (id. at 16-18); and, had agreed with others to distribute one kilogram of heroin in New York knowing that it was illegal (id. at 20-22).
Although Fajardo now contests the informed and voluntary entry of his plea agreement, he unambiguously answered all of Judge Freeman's inquiries as to his understanding and willing consent to the terms and conditions of that plea agreement. "The fact that a defendant has a change of heart prompted by his reevaluation of either the Government's case against him or the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea." Gonzalez at 1100. Such a change of heart, absent credible evidence of coercion or misunderstanding as required under Lopez, is also not a sufficient reason to permit withdrawal of a plea agreement.
Thus, Fajardo's own sworn words demonstrate that he entered into the February 15, 2005 plea agreement with a full understanding of the agreement's implications and accepted the agreement's terms and conditions voluntarily and without improper inducement or coercion. Fajardo offers no "fair and just reason" to permit the withdrawal of his plea agreement, and consequently fails the Second Circuit test set forth in Lopez. The motion to withdraw from the plea agreement, while leaving the underlying guilty plea intact, is denied.
It is so ordered.