Opinion
CRIMINAL ACTION No. 03-0338, SECTION: 1/4
May 4, 2004
ORDER AND REASONS
On December 17, 2003, defendant, Anthony Thomas, plead guilty to one count of conspiracy to possess with intent to distribute 50 grams or more of cocaine base. This matter is now before the Court on defendant's motion to withdraw his guilty plea. For the following reasons, defendants motion is DENIED.
See Rec. Doc. No. 75.
PROCEDURAL BACKGROUND
On October 30, 2003, the defendant was indicted by a federal grand jury for conspiracy to possess with intent to distribute 50 grams or more of cocaine base and quantities of cocaine hydrochloride, in violation of 21 U.S.C. § 841and 846, and unlawful use of a communication facility, in violation of 21 U.S.C. § 843(b). On November 6, 2003, Warren Montgomery, Esq., was appointed defendant's counsel. On November 24, 2003, defendant made an oral motion before the United States Magistrate Judge for substitution of counsel which was denied. On December 17, 2003. the defendant plead guilty to one count of conspiracy to possess with intent to distribute 50 grams or more of cocaine base. On January 24, 2004, defendant mailed a letter to this Court asserting that he was innocent, that he had been manipulated by his counsel to plead guilty, that his counsel had not adequately investigated his case, that his counsel would not file motions on his behalf, that his counsel had promised him that he would only receive a seven-year sentence, and that he was upset at his rearraignment because he did not know that he was being charged with a cocaine offense.
Rec. Doc, No. 1.
Rec. Doc. Nos. 7, 3.
See Rec. Doc. No. 58.
See Rec. Doc. No. 75. During the rearraingment, the government stipulated that defendant's role in the conspiracy only involved cocaine base and not quantities of cocaine hydrochloride.
See Rec. Doc. No. 97.
Construing that letter as a motion for new counsel, this Court conducted a hearing to determine counsel on February 6, 2004. At that hearing, defendant expressed his desire to withdraw his plea. This Court informed the defendant that his desire to withdraw his guilty plea would be considered upon the filing of an appropriate motion. Defendant's motion for new counsel was granted and on February 12, 2004, Michael D. Rubenstein, Esq., was appointed defendant's counsel.
Rec. Doc. No. 75.
See Rec. Doc. No. 103.
On March 22, 2004, Rubenstein moved to withdraw as counsel of record citing defendant's repeated threats to report him to the state bar association and defendant's demand that he withdraw. On March 26, 2004, defendant sent a second letter dated March 16, 2004, to this Court complaining that Rubenstein was not filing certain motions quickly enough and that "the new counselor is no diffrent [sic] from the old counselor" in that Rubenstein would not listen to defendant's instructions with respect to how to proceed with his case.
Rec. Doc, No. 126.
On March 25, 2004, the United States Magistrate Judge granted defendant's second request for new counsel and Rubenstein's motion to withdraw. On April 5, 2004, defendant, represented by his third attorney, filed the instant motion to withdraw his guilty plea. An evidentiary hearing with respect to defendant's motion was held on April 29, 2004.
Rec. Doc. No. 129.
See Rec. Doc. No. 153.
A. Standard Governing Defendant's Motion to Withdraw his Guilty Plea
Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure states that a defendant may withdraw a guilty plea after the court has accepted the plea if "the defendant can show a fair and just reason for requesting the withdrawal." The legal standards that govern this Court's determination of defendant's motion to withdraw his plea are clearly set forth in United States v. Powell, 354 F.3d 362 (5th Cir. 2003):
A district court's denial of a motion to withdraw a guilty plea is reviewed for abuse of discretion. United States v. Lampazianie, 251 F.3d 519, 523 (5th Cir. 2001) (citation omitted); see also United States v. Mann, 161 F.3d 840, 860 (5th Cir. 1998) ("[A] district court abuses its discretion if it bases its decision on an error of law or a clearly erroneous assessment of the evidence."). A defendant does not have an absolute right to withdraw [his] guilty plea. United States v. Brewster, 137 F.3d 853, 857 (5th Cir. 1998). However, a district court may, in its discretion, permit withdrawal before sentencing if the defendant can show a "fair and just reason." Id. (citing former Fed.R.Crim.P. 32(e), now located at Rule 11(d)(2)).
The defendant bears the burden of establishing a fair and just reason for withdrawing his plea. Id. at 858. This Circuit considers seven factors when deciding whether the defendant has met this standard: whether (1) the defendant asserted his innocence, (2) withdrawal would cause the government to suffer prejudice, (3) the defendant delayed in filing the motion, (4) withdrawal would substantially inconvenience the court, (5) close assistance of counsel was available, (6) the original plea was knowing and voluntary, and (7) withdrawal would waste judicial resources. United States v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984).Id. at 370 (alteration supplied). The decision to permit or deny the motion is based on the totality of the circumstances. Brewster, 137 F.3d at 858 (citation omitted). A district court is not required to make findings as to each of the Carr factors. Id. (citing United States v. Badger, 925 F.2d 101, 104 (5th Cir. 1991)). "Neither is any single factor dispositive." United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001). "Although defendants are not entitled to an evidentiary hearing, a hearing is required `when the defendant alleges sufficient facts which, if proven, would justify relief'" Powell, 354 F.3d at 370 (quoting United States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984)).
Although defendant's written submission to this Court addresses all of the Carr factors, defendant primarily argues that (1) he has asserted his innocence; (2) that prior to entering his guilty plea, he received ineffective assistance of counsel; and (3) that his plea was not voluntary because his counsel pressured him into pleading guilty. In his written submission to this Court, defendant claims that prior to entering his plea of guilty, his counsel did not accept his desire to go to trial, did not contact witnesses on his behalf, and that counsel informed defendant that his innocence or guilt was irrelevant to the outcome of the proceedings.
B. Analysis
(1) Assertion of Innocence
When a defendant claims innocence of a crime, that claim alone does not justify withdrawal of the guilty plea. See United States v. Grant, 117 F.3d 788, 789-90 (5th Cir. 1997) (noting that an assertion of innocence unsupported by specific facts is insufficient, standing alone, to justify allowing a defendant to withdraw a guilty plea); United States v. Rojas, 898 F.2d 40, 43 (5th Cir. 1990); Carr, 740 F.2d at 340; "Otherwise, the mere assertion of legal innocence would always be a sufficient condition for withdrawal, and withdrawal would effectively be an automatic right." Carr, 740 F.2d at 344. Conferring on a defendant an automatic right to withdraw a guilty plea which has been accepted by the Court would "degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess." United States v. Hyde, 520 U.S. 670, 677, 117 S.Ct. 1630, 1634, 137 L.Ed.2d 935 (1997). Moreover, "[i]t is well established that `[s]olemn declarations in open court carry a strong presumption of verity.'" Lampazianie, 251 F.3d at 524.
During defendant's plea colloquy, the Court advised the defendant that if he did not understand any question, he should ask the Court to explain it. In the course of that plea hearing, the defendant affirmatively answered that, (1) he had read the indictment; (2) that he understood the crime charged in the indictment; (3) that he understood the elements of that crime as explained by this Court (4) and that he understood the penalty to which he was subject as a result of pleading guilty to the crime charged in the indictment,
United States v. Gershone Johnson, et al, 03-CR-338, Section "I", transcript of rearraignment proceedings as to Anthony Thomas, December 17, 2003, ("Rearraignment Tr.") at 3.
Id. at 4-10.
The defendant stated that he was pleading guilty because he was, in fact, guilty; that is, in response to questions by this Court, the defendant affirmatively answered that he was pleading guilty because he committed the crime of conspiracy to possess with the intent to distribute more than 50 grams of cocaine base. The Assistant United States Attorney summarized the Government's evidence in a factual basis which the defendant signed. The defendant advised the Court that he understood the evidence and that he agreed that the evidence set forth in the factual basis was correct. At that time, the Court specifically cautioned the defendant that if he had any questions about the facts stated in the factual basis, he should ask those questions at that time. This Court cautioned defendant that he was facing a lengthy prison sentence and that the plea hearing could be the only opportunity for him to ask questions; the defendant stated that he did not have any questions.
Id. at 12, 22.
Id. at 19-22. The following colloquy took place at defendant's plea hearing on December 17, 2003:
MR. ALUISE: The evidence would indicate that Mr. Thomas was involved in a conspiracy, the investigation of which included a wire tap, a lawful order initially signed by your honor and the extension was signed by Judge Porteous. During the pendency of that wire tap, which occurred between all of the cases, telephone calls between Mr. Thomas and the target of that, who is Sterling Lewis, were intercepted. Those telephone calls indicated that Mr. Lewis and Mr. Thomas were going to meet for the purpose of engaging in a drug transaction. It also indicates that Mr. Lewis and another co-conspirator of Mr. Lewis' by the name of Lionel Cooley, who has also pled guilty and agreed to testify, they would each testify as to Mr. Thomas' involvement in the drug conspiracy. And specifically as to Mr. Thomas' meeting with Mr. Lewis on September 9th, 2002, as indicated by those telephone calls that I previously mentioned for the purpose of obtaining or of entering into a transaction for two and a quarter ounce of crack cocaine, which is over 50 grams, it's 63 grams of crack cocaine. There would be further testimony from another co-conspirator that Mr. Thomas obtained another 50 grams of crack cocaine from this conspiracy on another date. That would have been on or about August 12th. And Mr. Thomas is also agreeing that he did, in fact, have the intention to further redistribute those drugs received from Mr. Lewis and his other co-conspirators. THE COURT: All right, sir. Do you wish to ask or have your attorney ask the U.S. Attorney any questions about the factual basis? DEFENDANT, ANTHONY THOMAS: Not at this time. THE COURT: You say at this time. This may be the only time to ask it. This is important, you're facing a lot of time. I'll ask you again, do you wish to ask or have your attorney ask the U.S. Attorney any questions? DEFENDANT, ANTHONY THOMAS: No, sir. THE COURT: Have you heard the evidence and facts which detail the charge against you? DEFENDANT, ANTHONY THOMAS: Yes, sir. THE COURT: Have you read the factual basis? DEFENDANT, ANTHONY THOMAS: Yes, sir. THE COURT: Do you understand what you read? DEFENDANT, ANTHONY THOMAS: Yes, sir. THE COURT: You signed it? DEFENDANT, ANTHONY THOMAS: Yes, sir. THE COURT: And you say you understand the government's evidence; is that right? DEFENDANT, ANTHONY THOMAS: Yes, sir. THE COURT: Are the statements that the assistant U.S. Attorney made correct? DEFENDANT, ANTHONY THOMAS: Yes, sir. THE COURT: You agree that is what you did? DEFENDANT, ANTHONY THOMAS: Yes, sir. THE COURT: Let me fully ask you again. Do you fully understand the charge against you? DEFENDANT, ANTHONY THOMAS: Yes, sir, I do. THE COURT: Do you fully understand the consequences of your plea of guilty? DEFENDANT, ANTHONY THOMAS: Yes. THE COURT: Are you pleading guilty because you are, in fact, guilty of the crime charged? DEFENDANT, ANTHONY THOMAS: Yes. THE COURT: Are you pleading guilty voluntarily and of your own free will? DEFENDANT, ANTHONY THOMAS: Yes, sir. THE COURT: Although you've indicated throughout these proceedings a desire to plead guilty, do you realize you still have the right to persist in your not guilty plea? DEFENDANT, ANTHONY THOMAS: Yes, sir. THE COURT: I ask you one last time. How do you wish to plead? DEFENDANT, ANTHONY THOMAS: I plead guilty, sir.
The Court repeatedly questioned the defendant with respect to whether he understood the crime charged, the consequences of his plea, and whether he was pleading guilty because he was, in fact, guilty. In response to this Court's questions, the defendant stated, under oath, that he was pleading guilty because he was, in fact, guilty.
At the evidentiary hearing, defendant suggested that two FBI investigative reports point to his actual innocence of a drug offense involving crack cocaine. The two reports contain information provided to government agents during two interviews with Sterling Lewis, an alleged co-conspirator. During those interviews, Lewis provided his interpretation of the content and meaning of certain telephone calls between defendant and other alleged co-conspirators. The reports reflect that although Lewis consistently implicated defendant in crack cocaine transactions, Lewis' gave the agents inconsistent interpretations of one or more telephone calls with respect to whether the particular calls involved crack cocaine transactions. Any inconsistencies in Lewis' statements do not support defendant's assertions of actual innocence and are far from sufficient to outweigh defendant's admissions of guilt in open court. The Court finds that defendant's statements made at his rearraignment are credible and it accords these statements substantial weight.
The September 16, 2003, FBI 302 reflects that in call number 3214, defendant purchased from Lewis a large amount of crack cocaine. The December 23, 2002, FBI 302 reflects that "although [defendant] sells crack", call number 3214 did not involve crack cocaine. See Rec. Doc. No. 153, Exs. 1 2.
(2) Timeliness of motion to withdraw
As noted, defendant plead guilty on December 17, 2003. Thirty-eight days later, this Court was first made aware of defendant's claims that he was innocent and that his plea was not voluntary. Fifty-three days after his guilty plea, on February 6, 2004, during the hearing on his motion to determine counsel, defendant made known his desire to withdraw his guilty plea.
Rec. Doc. No 103,
"[T]he longer a defendant delays in filing a withdrawal motion, the more substantial reasons he must proffer in support of his motion." Carr, 740 F.2d at 344. Conversely, "a prompt withdrawal may indicate that a plea was unknowingly entered in haste." Id. "The rationale for allowing a defendant to withdraw a guilty plea is to permit him to undo a plea that was unknowingly made at the time it was entered. The purpose is 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." Id. at 345.
The Court finds that defendant was not prompt. See id. at 345 (holding that a twenty-two day delay was not prompt); see also United States v. Thomas, 13 F.3d 151, 153 (5th Cir. 1994) (six week delay held to be "significant"). Instead of demonstrating that defendant's plea was unknowingly made, the delay suggests a tactical decision and defendant's belief that he made a bad choice in pleading guilty. Accordingly, the Court finds that defendant's delay favors denial of his motion to withdraw his guilty plea.
(3) Knowing and voluntary plea
In any criminal case, a competency determination must be made by a court "when a court has reason to doubt the defendant's competence." Godinez v. Moran, 509 U.S. 389, 402 n. 13, 113 S.Ct. 2680, 2688 n. 13. 125 L.Ed.2d 321 (1993); DeVille v. Whitley, 21 F.3d 654, 656 (5th Cir. 1994). The legal standard governing a defendant's competency to enter a guilty plea is identical to that which governs a defendant's competency to stand trial. See Godinez, 509 U.S. at 399, 113 S.Ct. at 2686; DeVille, 21 F.3d at 656. A defendant is competent to enter a guilty plea when "the defendant has `sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding' and has `a rational as well as factual understanding of the proceedings against him.'" Godinez, 509 U.S. at 396, 113 S.Ct. at 2685 (citing Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960)); DeVille, 21 F.3d at 656.
After a court has determined that a defendant is competent to enter a guilty plea, the court must then satisfy itself that the defendant's decision to plead guilty is knowing and voluntary. Godinez, 509 U.S. at 400-401, 113 S.Ct. at 2687-88 (describing the "two-part inquiry" into competence and knowing and voluntary waiver of constitutional rights with respect to a guilty plea); DeVille, 21 F.3d at 657 (citation omitted). For a guilty plea to be knowing and intelligent, "the defendant must have `a full understanding of what the plea connotes and of its consequence.'" United States v. Hernandez, 234 F.3d 252, 255 (5th Cir. 2000) (quoting See Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). The defendant must have notice of the nature of the charges against him, the defendant must understand the consequences of his plea, and he must understand the nature of the constitutional protections he is waiving. Matthew v. ohnson, 201 F.3d 353, 365 (5th Cir. 2000). For a guilty plea to be "voluntary," it must "not be the product of actual or threatened physical harm, or . . . mental coercion overbearing the will of the defendant' or of state-induced emotions so intense that the defendant was rendered unable to weigh rationally his options with the help of counsel.'" Id. (quoting Brady v. United States, 397 U.S. 742, 750, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).
During his rearraignment hearing, defendant stated that he had not recently been under the care of a doctor and that he had not taken any narcotics, medicine, or pills within twenty-four hours of his guilty plea. Defense counsel and the Assistant United States Attorney had no doubt that the defendant was competent to enter a plea of guilty. Based upon the representations by the defendant and counsel, this Court found that the defendant was competent to plead guilty.
Rearraignment Tr. at 3-4.
Before accepting his plea of guilty, this Court painstakingly explained the elements of the crime of conspiracy and the elements of possession with intent to distribute crack cocaine. The Court then explained that, upon a plea of guilty, defendant was subject to a minimum often years imprisonment and a maximum of life imprisonment. After explanation of the crime charged and the elements of that offense, the defendant acknowledged that he understood the elements of the crime charged and the minimum and maximum sentences to which he was exposed as a result of pleading guilty. The defendant affirmatively answered that he understood that the Court could impose the maximum sentence and that any estimate of his sentence made by counsel pursuant to the sentencing guidelines could only be understood to be a rough estimate as this Court was not bound by such an estimate.
Id. at 4-10.
Id.
This Court then advised the defendant of his constitutional right to a trial by jury and the other constitutional rights attendant to such a trial. The defendant stated to this Court that he understood that he was waiving his right to trial by jury, that the Government would not be required to prove him guilty, and that he understood that if the Court accepted his guilty plea there would be no further trial and the Court would simply enter a judgment of guilty and sentence him on the basis of his guilty plea. Finally, the defendant answered in the negative in response to this Court's inquiry as to whether he had been influenced, induced, or persuaded in any manner to plead guilty because of any promises or threats made by anyone. This Court asked the defendant directly, "Are you pleading guilty voluntarily and of your own free will?" The defendant answered, "Yes, sir."
Id. at 11-12.
Id. at 13.
Id. at 22: line 11.
There is no evidence before this Court that defendant was not competent to enter a plea of guilty. Neither is there any evidence that defendant's plea was not knowingly and intelligently made. Defendant asserted in his January 24, 2004, letter that, prior to entering his plea, his attorney promised him that his sentence would not exceed seven years. However, any such claim is belied by defendant's acknowledgment to this Court that he understood that the Court was not bound by defense counsel's estimates of the guidelines and that he understood that this Court could impose the maximum sentence explained to him by this Court. Defense counsel, an experienced former federal prosecutor, testified that he discussed with defendant a number of different calculations regarding his guideline sentence, but he informed defendant that the Court was not bound by those estimates.
In his January 24, 2004, letter, defendant also asserted that he was upset at the rearraignment hearing because he knew that he was not charged with a cocaine offense. However, not only did this Court explain in detail the charge to which defendant was pleading guilty, but defendant was advised on November 24, 2003, at the hearing before the United States Magistrate Judge, that he was charged with a serious drug offense and that because of his two prior felony convictions he was exposed to a mandatory life sentence.
See United States v. Gershone Johnson, et al, 03-CR-338, Section "I", transcript of detention hearing, November 24, 2003. Furthermore, defendant stated at the evidentiary hearing that he understood everything that occurred during the prior proceedings in this Court.
The Court finds that defendant's answers under oath were credible and that his belated assertion that his plea was not knowing and intelligent lack credibility, Therefore, this Court turns to defendant's claims that his lawyer's conduct prior to his plea was ineffective and rendered his plea involuntary.
(4) Whether close assistance of counsel was available
The defendant's declarations under oath and in open court that his guilty plea was freely and voluntarily made and that it was not the product of threats or coercion carry a strong presumption of veracity. United States v. Adam, 296 F.3d 327, 333 (5th Cir. 2002); Lampazianie, 25 1 F.3d at 524; United States v. Young, 981 F.2d 180, 184 n. 5 (5th Cir. 1992). The Fifth Circuit has noted that in order for a defendant's guilty plea to be valid, "the defendant must have available the advice of competent counsel. The advice of competent counsel exists as a safeguard to ensure that pleas are voluntarily and intelligently made." Matthew, 201 F.3d at 365.
Defendant's attack on defense counsel's performance is two-prong. First, defendant claims that his plea was not voluntary because defense counsel pressured him into pleading guilty. Second, defendant claims that prior to entering into plea negotiations with the government, defense counsel failed to adequately investigate the facts and available defenses. The majority of the evidence at the evidentiary hearing was addressed to these two claims.
Defendant's first attorney was Warren L. Montgomery, a former Assistant United States Attorney, who also had substantial experience in the criminal defense arena. Montgomery first met with defendant at his November 10, 2004, arraignment. Subsequent to the arraignment, counsel made notes pertaining to the charges against the defendant, the penalties to which defendant was exposed, and advantages and disadvantages of certain strategies with respect to defendant's upcoming detention hearing. In a letter from the government dated November 17, 2003, the defense was notified that the trial evidence in the case would include recorded telephone conversations between defendant and Sterling Lewis. On November 19, 2003, counsel received discovery provided by the government. Defense counsel then met with defendant on November 20, 2003, at the St. Charles Parish facility. Contemporaneous with and following that meeting, counsel did not make notes pertaining to the details of the meeting.
See Rec. Doc. No. 153, Ex. 3.
On November 21. 2004. defendant and Montgomery met with the Assistant United States Attorney assigned to this case and FBI agents. At that meeting, the FBI and the government attorney reviewed the evidence against defendant which included taped telephone calls purporting to be calls between defendant and other co-conspirators engaging in drug transactions. The government attorney also informed the defense that the government expected two co-conspirators, Sterling Lewis and Lionel Cooley, to testify against defendant. During that meeting, the government introduced the possibility of a plea agreement.
Defense counsel testified that he reviewed the telephone wiretap tapes and Sterling Lewis' statements made to the government interpreting the telephone calls. Subsequent to the meeting with the government, counsel discussed with defendant the probable testimony of Lewis and Cooley and the consequences of that testimony. Counsel testified that although he felt that the telephone conversations, standing alone, were inconclusive as to defendant's guilt, defendant's chances for a favorable outcome at trial were substantially reduced if the alleged co-conspirators testified as anticipated. Additionally, counsel testified that he was aware that Lewis had given inconsistent accounts of the telephone conversations and that Lewis' credibility could be attacked. Nevertheless, counsel's analysis of the case, discussed with the defendant, was that in light of the recorded telephone calls and the anticipated testimony of the alleged co-conspirators, the defendant would have to present a credible defense to rebut the government's evidence and such a defense would likely have to include defendant's own testimony. In counsel's view, the probability of an acquittal was jeopardized if defendant testified because defendant had two prior felony drug convictions. Counsel was also concerned because defendant's two prior felony drug convictions exposed the defendant to a mandatory life sentence if he was convicted at trial. Counsel testified that subsequent to the meeting with the government and after consultation with defendant pertaining to possible trial strengths, weaknesses, and outcomes., defendant, on several occasions, expressed his desire to plead guilty.
On November 24, 2003, three days after the meeting with the government, defendant made an oral motion during proceedings before the United States Magistrate Judge to have Montgomery discharged as his counsel. Defendant explained to the Magistrate Judge that he did not believe that counsel was acting in his best interest and that he thought his lawyer was ineffective because he was unable to provide defendant with information concerning his case. During that hearing, defendant did not specifically identify what information defense counsel was unable to furnish. The Magistrate Judge noted that defense counsel had only recently received a large amount of discovery from the government and that defendant should allow his counsel some time to investigate his case. However, the court informed the defendant that it would look into defendant's complaint if he could specifically identify the reasons for his dissatisfaction and submit those reasons in writing. Accordingly, the court denied defendant's oral motion. The record reveals no submission by the defendant to the court between November 24, 2003, and his rearraignment on December 17, 2003.
See Tr. of proceedings on November 24, 2003.
Defense counsel testified that the day of defendant's plea, defendant was naturally hesitant to enter into the plea agreement and plead guilty, but that defendant never expressed a desire to change his mind and go to trial. He also testified that defendant had never asserted his innocence of the crime. Counsel stated that he has never counseled or pressured a client to plead guilty if that client claimed innocence or expressed a desire to proceed to trial.
Defendant claims that he had no choice but to plead guilty because his attorney had not properly investigated his case and he had ignored his claims of innocence. The evidence shows that at some point during the discussions between defendant and counsel, defendant gave counsel the names of several witnesses that defendant believed could testify on his behalf. Counsel spoke with several of the witnesses, but was unable to reach all of them. Counsel did not attempt to interview either Lewis or another co-conspirator identified by the government as potential witnesses against defendant.
Defendant offered the testimony of a lawyer, Randy Dukes, who testified that defendant's girlfriend had contacted him prior to defendant's rearraignment in an effort to secure other representation for him. Dukes, however, never met with the defendant, could not offer any testimony with respect to the facts of the case, and ultimately he was not retained. Rubenstein, defendant's second lawyer, testified that upon his appointment, defendant expressed dissatisfaction with Montgomery and defendant informed Rubenstein that he wanted to withdraw his plea.
At defendant's rearraignment, he stated that he had sufficient time to discuss with his attorney the facts of his case and any possible defenses that he might have. The record reflects that Montgomery negotiated a plea agreement which precluded the government from filing a "multiple bill" pursuant to 21 U.S.C. § 851. As a result of that plea agreement, defendant is not subject to a mandatory life sentence. Defendant stated that he understood the terms of the plea agreement and that, other than rough estimates of the guidelines applicable in his case, no one had made any promises to him with respect to what his sentence would be. Additionally, defendant answered affirmatively when asked whether he was entirely satisfied with his attorney's advice and services.
Rearraignment Tr. at 13.
Id. at 14; see Rec. Doc. No. 77, plea agreement as to Anthony Thomas, at 1.
See Rearraignment Tr. at 15-18.
Id. at 13:line 19.
The Court finds that defendant's statements during his original plea colloquy and the testimony of defense counsel pertaining to discussions with the defendant are credible. The Court recognizes that defendant claimed that he was receiving ineffective assistance of counsel and that there is some evidence to support defendant's assertion that counsel did not contact all of the witnesses identified by defendant. However, there was also evidence that counsel had contacted several of the witnesses and there was no evidence to suggest that counsel refused to continue to attempt to contact witnesses not yet contacted. Moreover, Montgomery testified that the witnesses he did contact could not offer information relevant to any defense. Significantly, there is no evidence before the Court with respect to what evidence those witnesses could or would have provided or how those witnesses might have helped defendant's case.
The Court further finds that counsel's analysis of the case and his advice to his client prior to entering his plea was reasonable and adequate. Counsel was aware of the government's evidence and, due to his experience as a former prosecutor, the probable impact of the testimony of defendant's alleged co-conspirators. Although counsel did not interview the co-conspirators, it was reasonable for counsel to presume that their testimony would directly implicate the defendant. Based on that evidence and his review of discovery materials provided to him by the government, counsel advised defendant of possible outcomes of a trial. Faced with the reality of a mandatory life sentence if his client was convicted at trial, counsel successfully negotiated a plea agreement with the government which obligated the government to refrain from establishing his prior convictions for the purpose of increasing defendant's sentence. Finally, there is no evidence that defendant's decision to plead guilty was the result of pressure brought to bear on defendant by his attorney. There is no evidence that defendant had ever asserted his innocence to his counsel (or anyone else) prior to pleading guilty or that counsel had ignored his alleged assertion and counseled him to plead guilty against his wishes. In short, there is no evidence contradicting defendant's statements to this Court during rearraignment that his plea of guilty was not the result of any threat or promise made by anyone to defendant. Accordingly, the Court finds that defendant's plea was voluntary and that he received close and competent assistance of counsel during the plea negotiations and proceedings in this Court.
(5) Remaining Factors
The remaining factors for the Court to consider are (1) whether withdrawal would cause the government to suffer prejudice if the motion were granted; (2) whether withdrawal would substantially inconvenience the court; and (3) whether withdrawal would waste judicial resources.
This case is a multi-defendant conspiracy case that is scheduled for trial on August 2, 2004. Two co-defendants are currently scheduled to proceed with trial on that date. Therefore, the Court finds that any prejudice to the Government and inconvenience to the Court are minimal in this case. However, the Fifth Circuit has made clear that "the absence of a showing of prejudice by the government is not sufficient to require withdrawal of the plea where `no credible reason is proffered.'" United States v. Benavides, 793 F.2d 612, 617 (5th Cir. 1986) (quoting United States v. Rasmussen, 642 F.2d 165, 168 n. 6 (5th Cir. 1981)). In other words, "there is no occasion to inquire into the matter of prejudice unless the defendant first shows a good reason for being allowed to withdraw his plea . . ." Id. (quoting the Advisory Committee note to former Fed.R.Crim.P. 32(d)).
The United States Supreme Court has noted:
Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely `tentative,' subject to withdrawal before sentence whenever the government cannot establish prejudice. Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but a grave and solemn act, which is accepted only with care and discernment.Hyde, 520 U.S. at 676-677, 117 S.Ct. at 1634 (internal quotations and citations omitted).
C. Conclusion
This Court finds that the factors governing the determination of defendant's motion to withdraw his guilty plea weigh overwhelmingly in favor of denying the motion. The defendant's claim of factual innocence is not credible in light of the defendant's acknowledgment, under oath, of his factual guilt at the time defendant plead guilty and the lack of any credible evidence to the contrary. Additionally, the defendant has failed to carry his burden of establishing a credible claim that his guilty plea was not knowing and voluntary and that it was the result of coercion by defense counsel. Finally, the defendant unduly delayed in asserting his intention to withdraw his guilty plea. Given the weight of the foregoing factors, the remaining factors pertaining to prejudice and judicial efficiency are substantially outweighed. Therefore, the Court finds that the defendant, Anthony Thomas, has failed to carry his burden to establish a fair and just reason to justify withdrawal of his guilty plea.
Accordingly, and for the above and foregoing reasons,
IT IS ORDERED that the motion, filed on behalf of defendant, Anthony Thomas, to withdraw his guilty plea is DENIED.