U.S. v. Allen
| Decision Date | 08 October 1997 |
| Docket Number | No. CR 94-4030-MWB.,CR 94-4030-MWB. |
| Citation | 981 F.Supp. 564 |
| Parties | UNITED STATES of America, Plaintiff, v. Marsha S. ALLEN; Kenneth L. Moore; Marvin Van Voorst; Robert W. Blauwet and Loren E. Visser, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Robert L. Sikma, Souix City, IA, for Defendant Allen.
Randy S. Hisey, South Souix City, NE, for Defendant Moore.
Kevin C. Fletcher, Special Asst. U.S. Atty., Souix City, IA, Janet L. Papenthien, Asst. U.S. Atty., Souix City, IA, for Plaintiff.
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND.........................................566
II. FINDINGS OF FACTS ..................................................568
III. LEGAL ANALYSIS .....................................................570
A. Withdrawal of Guilty Plea ......................................570
1. Applicable standards and burdens ...........................570
2. The "Boone" factors. .......................................571
3. Specific grounds for withdrawal of pleas ...................573
a. Withdrawal based on severity of penalty imposed ........573
b. Non-compliance with plea agreements ....................574
c. "Ineffective assistance of counsel" ....................575
d. Incompetence or involuntariness of the original plea ...576
e. Innocence ..............................................576
B. Effect Of Deferral Of Acceptance Of Guilty Plea ................577
C. Withdrawal Of Defendant Allen's Plea In This Case ..............579
IV. CONCLUSION ..........................................................581
The defendant in this criminal case asks the court to take the rare step of disregarding her "solemn act" of pleading guilty in proceedings pursuant to Federal Rule of Criminal Procedure 11, and to allow her to withdraw her guilty plea pursuant to Federal Rule of Criminal Procedure 32(e). Her sole basis for withdrawing her plea of guilty is her claim that her plea was not knowing and voluntary. She claims she was suffering from the effects of Prozac, allegedly taken pursuant to a valid prescription for depression, facts she failed to disclose on the record during extensive plea proceedings. Recognizing that a defendant has no automatic right to withdraw her plea, the court must examine the standards applicable to a motion to withdraw a guilty plea under Federal Rule of Criminal Procedure 32(e), and determine whether the defendant has stated "fair and just reason" to withdraw her guilty plea in this case.
In a three count superseding indictment returned on February 7, 1995, defendants Kenneth L. Moore, Marsha S. Allen, Marvin Van Voorst, Robert W. Blauwet, and Loren E. Visser are charged with conspiring to distribute methamphetamine, in violation of 18 U.S.C. § 846. Defendants Allen, Moore and Van Worst are also charged with conspiring to launder the proceeds of an unlawful activity, the distribution of methamphetamine, in violation of 18 U.S.C. § 1956(a)(1)(A)(i).1
Trial in this case was set to commence on April 28, 1997. On April 28, 1997, change of plea hearings were held for defendants Allen and Moore. At her change of plea hearing, defendant Allen was represented by her counsel, Robert L. Sikma. Defendant Moore was represented by counsel Randy S. Hisey at his change of plea hearing. At their respective change of plea hearings, defendants Allen and Moore both withdrew their not guilty pleas in this case and entered pleas of guilty. The court deferred acceptance of the guilty pleas until the time of sentencing.
During defendant Allen's change of plea hearing, the court inquired whether she was taking any medications. The following colloquy between the court and defendant Allen regarding defendant Allen's use of medications, occurred:
THE COURT: Okay. Tell me about the
medication you're taking
DEFENDANT: It's for anxiety
THE COURT: Are you a little anxious
More than a little
DEFENDANT: A little
THE COURT: Yeah, I can understand
that. What's the name
of the drug? Do you recall?
DEFENDANT: You can read it to him.
THE COURT: Mr. Sikma might examine
the label and indicate
what it is.
MR. SIKMA: Clorazepate, 7.5 milligrams,
Your Honor.
THE COURT: And are you taking that
on a daily basis?
DEFENDANT: Yes.
THE COURT: And how long have you
been taking that medication?
DEFENDANT: Since 4-9.
THE COURT: Since April 9 of this year.
DEFENDANT: Yes.
THE COURT: Just a couple weeks ago.
DEFENDANT: Yes.
THE COURT: Is there anything about
that medication that affects
your ability to understand
these proceedings
this afternoon?
DEFENDANT: No, sir.
THE COURT: Are you taking any other
type of medication?
DEFENDANT: No, sir.
THE COURT: Any other medications
other than what you just
indicated for anxiety?
DEFENDANT: No, sir.
Hearing Tr. at 3-5. The court then twice made inquiries as to whether defendant Allen was under treatment for any type of mental condition other than anxiety. Defendant Allen responded both times, "No, sir." Hearing Tr. at 5.
The court then made some inquiries into the state of defendant Allen's health. In response to a question from the court as to whether she was receiving any treatment from her family physician, other than the Clorazepate for her anxiety, defendant Allen-responded, "No, sir." Hearing Tr. at 6. The court specifically inquired whether defendant Allen understood "that you have the right at any time until we finish this proceeding to change your mind and say, No, I want to go to trial tomorrow morning at nine o'clock?" Hearing Tr. at 16. Defendant Allen responded, "Yes, I do." Hearing Tr. at 16. The court then inquired whether defendant Allen understood that "by pleading guilty this afternoon you give up forever the right to have a jury trial?" Hearing Tr. at 16. Defendant Allen again responded, "Yes, I do." Hearing Tr. at 17.
The court also asked defendant Allen if she understood the finality of her decision to plead guilty:
THE COURT: Do you understand that
by pleading guilty this
afternoon, if you change
your mind a month from
now, a year from now,
five years from now,
you're just never going
to have the opportunity
to have a jury determine
your innocence or guilt?
Do you understand that?
DEFENDANT: Yes, I do.
After discussing with defendant each of the rights she was waiving by not going to trial, the court then again sought to inquire whether defendant Allen understood the finality of her decision to plead guilty:
THE COURT: Do you understand if
you change your mind tomorrow
morning or next
week or next month or
next year or five years
from now or 20 years
from now, in all likelihood
you will never, ever,
you will never, ever have
a chance to have a jury
of 12 citizens determine
whether you're innocent
or guilty? Do you understand
that?
DEFENDANT: Yes, sir.
THE COURT: It's as irrevocable decision
- in other words,
once you make that decision
today, I'm not saying
it's impossible to ever
get a right to trial by
jury because there is a
rule that allows you to
try and set aside your
guilty plea. But it's
next - it's very difficult
to do. Do you understand
that?
DEFENDANT: (Defendant nodded
head.)
THE COURT: You have to answer yes
or no.
DEFENDANT: Yes, sir.
THE COURT: And so you better - if I
take this plea today, you
know, the odds are you
will never have a jury trial.
Do you understand
that?
DEFENDANT: Yes, sir.
On September 17, 1997, defendant Allen filed a motion to withdraw her guilty plea. Defendant Allen alleges in her motion that at the time of her change of plea hearing she was under the influence of the prescription medication Prozac, which had been prescribed to her by a physician to treat "severe depression" she was then experiencing. She further alleges that as a result of that medication she was unable to think rationally. Defendant Allen thus asserts that, as a result of the Prozac she was taking, her decision to plead guilty was not made knowingly and voluntarily. On September 25, 1997, defendant Moore filed a motion to withdraw his guilty plea. As grounds for his motion, he asserts the same grounds raised by defendant Allen in her motion to withdraw her guilty plea. He further asserts that the only reason he entered a plea of guilty on April 28, 1997, "was because co-defendant Marsha Allen entered a guilty plea on that same date." Def. Moore's Motion To Withdraw at 1. The Government has filed resistances to defendant Moore and defendant Allen's respective motions.
An evidentiary hearing on defendants' motions was held on October 1, 1997, at which defendant Allen presented the testimony of herself, her sons Dominick Feole and Dennis Feole, and her daughter-in-law Jennifer Feole. The United States presented no evidence. The United States was represented by Special Assistant United States Attorney Kevin C. Fletcher and Assistant United States Attorney Janet L. Papenthien. Defendant Allen was represented by Robert L. Sikma, Sioux City, Iowa. Defendant Moore was represented by Randy S. Hisey, South Sioux...
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...counsel and wanted him to remain on his case. This also defeats his ineffective assistance of counsel claim. See United States v. Allen, 981 F.Supp. 564, 575 (N.D.Iowa 1997)(any claim of ineffective assistance of counsel as a basis for withdrawing a defendant's guilty plea was refuted by a ......
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