Summary
finding significant prejudice where key prosecution witness died between plea and motion to withdraw
Summary of this case from United States v. SeysOpinion
No. 02-075(3) ADM/RLE
March 12, 2003
Clifford B. Wardlaw, Esq., Assistant United States Attorney, Minneapolis, MN, on behalf of Plaintiff.
Gary R. Bryant-Wolf, Esq., Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Defendant Jeffery Lee Dolson ("Defendant") brings the instant Motion to Withdraw his Plea of Guilty [Docket No. 108] before the undersigned United States District Judge. On August 9, 2002, Defendant plead guilty to Count 2 of the Indictment [Docket No. 16], charging him and two additional defendants with Aggravated Assault with a dangerous weapon. He now seeks to withdraw his plea of guilty on the grounds that he acted in self-defense and was unaware of the availability of this defense prior to his plea, that he was depressed and "not cognizant" of his actions at the plea hearing, and that the prejudice to the Government is minimal. The Government responds that the death of the alleged victim after Defendant entered his plea creates significant prejudice and that the Defendant has not presented adequate justification for withdrawal of the guilty plea.
II. DISCUSSION
Federal Rule of Criminal Procedure 11(d) provides that "[a] defendant may withdraw a plea of guilty or nolo contendere:
The rules regarding a defendant's ability to withdraw a guilty plea were formerly addressed by Rule 32(e), which was moved to Rule 11 as part of the 2002 Amendments to the Federal Rules of Criminal Procedure, effective December 1, 2002. See Advisory Committee Notes on Rule 32; United States v. Couto, 311 F.3d 179, 185 n. 5 (2d Cir. 2002).
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes a sentence if: . . .
(B) the defendant can show a fair and just reason for requesting the withdrawal." Fed.R.Crim.Pro. 11(d).
Eighth Circuit precedent enumerates the factors a court is to assess when determining whether to grant or deny a presentence motion to withdraw a guilty plea. The court must consider:
(1) whether [the] defendant established a fair and just reason to withdraw his plea; (2) whether [the] defendant asserts his legal innocence of the charge; (3) the length of time between the guilty plea and the motion to withdraw; and (4) if the defendant established a fair and just reason for withdrawal, whether the government would be prejudiced.
United States v. Montag, No. 01-2820, 2002 WL 57264, at *2 (8th Cir. Jan. 16, 2002) (quoting United States v. Boone, 869 F.2d 1089, 1091-92 (8th Cir. 1989)). Absence of a "fair and just reason" for withdrawal is sufficient standing alone to deny withdrawal. See United States v. Vest, 125 F.3d 676, 679 (8th Cir. 1997). After a defendant has openly and knowingly acknowledged his culpability by entering a formal plea of guilty, repudiation of this "grave and solemn act" should not be allowed upon a mere caprice. United States v. Hyde, 520 U.S. 670, 677 (1997) (citing Advisory Committee Notes on Rule 32); accord United States v. Prior, 107 F.3d 597, 654 (8th Cir. 1997) ("A guilty plea is a solemn act not to be set aside lightly.").
Though the Court reserved formal acceptance of the plea agreement in this matter until after a review of the presentence report, the Court will apply the traditional rules of this Circuit regarding plea withdrawal motions made prior to sentencing. As quoted above, amended Rule 11 supplies different rules distinguishing between the time of acceptance of the plea and the time of sentencing, requiring no reason for withdrawal prior to judicial acceptance of the plea. Fed.R.Crim.Pro. 11(d)(1). Recognizing the potential literal application of this rule to Defendant's Motion, the assessment followed under former Rule 32(e) remains appropriate in situations such as the present and will be followed in this case. Represented by counsel, Defendant entered a plea at his hearing after full questioning and advisement by the Court, as mandated by Rules 11(b)(1)-(3). Thus, the same considerations of the seriousness of admitting guilt under oath, after full disclosure of the ramifications involved, and of upholding the finality of this judicial process should apply whether the guilty plea is accepted formally on the record or not. See United States v. Hyde, 520 U.S. 670, 676-77 (1997) (noting that submitting a plea to the court is not meant to be merely a tentative gesture). The Court made clear to Defendant on the record at the plea hearing that he would be bound fully and finally by his plea of guilty. Tr. at 22.
Regarding the reasons behind modification of these rules, the Advisory Committee's comments to Rule 11 reveal a desire to separate, pursuant to United States v. Hyde, the standards involved in judicial acceptance or rejection of the plea and acceptance or rejection of the plea agreement. Advisory Committee Notes on Rule 11 (emphasis added). There is no indication that it intended to change the concerns of finality with, or the Court's inquiry in addressing, a motion to withdraw a plea that has been accepted for purposes of the defendant's guilt but is awaiting formal acceptance until review of the pre-sentence materials.
Defendant plead guilty to assaulting Kevin Boland ("Boland") during an argument among several individuals. Change of Plea Tr. at 24-26 ("Tr.") [Docket No. 107]. Since the time of the plea hearing, Boland has died and thus the Government is undeniably prejudiced by the unavailability of the alleged victim to testify against Defendant at trial. Defendant argues that, nonetheless, the court should permit withdrawal of his plea because prejudice is cured or diminished by Defendant's waiver of any argument against substantive use of Boland's prior sworn testimony of the event and by the availability of the testimony of the two co-defendants. Further, he claims retraction of the plea is fair and just because he is legally innocent by virtue of self-defense and was not cognizant of the import of his actions at the plea hearing.
In response, the Government asserts that Defendant has no legitimate justification to support his Motion, as evidenced by his admissions under oath and the obvious disadvantage the Government would face at trial without the crucial eyewitness, the victim of the offense. Regarding the intertwined considerations of a "fair and just reason" and Defendant's assertion of innocence based on self-defense, the transcript of Defendant's sworn testimony at the plea hearing is instructive. Though he now claims lack of knowledge of the option of a self-defense claim, Defendant plainly represented that he was not defending himself during the alleged assault and that he was in fact guilty of the charged offense:
THE COURT: . . . Were you acting in self-defense or in defense of another? It's alleged here that you were not.
THE DEFENDANT: No, I wasn't, your Honor.
THE COURT: Okay, do you feel yourself that you are guilty of this offense?
THE DEFENDANT: Yes, I do, your Honor.
THE COURT: No doubt in your mind about that, is there? . . .
THE DEFENDANT: No. No, your Honor, there's no doubt in my mind.
Tr. at 25-26.
With respect to his contention of depression and resultant unawareness of his actions at the hearing, the hearing transcript is equally revealing. When asked about his mental state and clarity, Defendant stated that he had consumed no alcohol or drugs in preceding 24 hours and that he was able to think lucidly:
THE COURT: Is there anything that's interfering with your ability to think clearly today?
THE DEFENDANT: No, your Honor.
THE COURT: You are not making any claim, are you, of insanity or mental illness or anything of that nature?
THE DEFENDANT: No, your Honor. . . .
THE COURT: Are you under the care of any physician or any psychiatrist for any ongoing treatment?
THE DEFENDANT: Um, I'm taking amitriptyline because I can't sleep at night. Other than that, no. I haven't taken it for a few days, though.
THE COURT: Okay. So there's no interference today with your ability.
THE DEFENDANT: No.
Tr. at 6-7.
The record is replete with such unwavering responses to the Court's questions and explanations, including:
THE COURT: Do you know that when you leave here today you're stuck with this [plea] agreement, you're locked into what it says on paper? I'm not, I'll decide later, but this ends your case as far as your guilt or innocence, correct?
THE DEFENDANT: Yes, I understand.
Tr. at 22. And finally:
THE COURT: And you are doing this voluntarily and you do believe you are in fact guilty?
THE DEFENDANT: Yes, your Honor.
Tr. at 27-28.
Additionally, notwithstanding Defendant's stipulation to use of the prior sworn testimony of Boland, the absence of a live victim to testify in front of the jury presents significant prejudice to the Government's case.
Defendant should not be allowed to trivialize his somber admissions by now revising his position after his perceived advantage gained by the death of the victim witness in December, 2002. Under the circumstances discussed above, permitting withdrawal of Defendant's plea would "degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess." Hyde, 520 U.S. at 677. Defendant has not established a fair and just reason for withdrawing his plea of guilty, and despite his concessions relating to the prior testimony of Boland, prejudice to the government remains without the availability of the live testimony of the alleged victim. See Boone, 869 F.2d at 1091-92. Thus, the plea of guilty remains of record and the Motion is denied.
III. CONCLUSION
Based on the foregoing, and all the files, records and proceedings herein, IT IS HEREBY ORDERED that Defendant's Motion to Withdraw Plea [Docket No. 108] is DENIED. Counsel are to contact the Court's calendar clerk to schedule a sentencing date.