U.S. v. Chong, CR 98-00416 ACK.

• Decision Date: 25 May 2001
• Docket Number: No. CR 98-00416 ACK.,CR 98-00416 ACK.
• Citation: 167 F.Supp.2d 1160
• Parties: UNITED STATE of America, Plaintiff, v. Richard Lee Tuck CHONG, Defendant.
• Court: Hawaii Supreme Court

167 F.Supp.2d 1160

UNITED STATE of America, Plaintiff, v. Richard Lee Tuck CHONG, Defendant.

No. CR 98-00416 ACK.

United States District Court, D. Hawai`i.

May 25, 2001.

Michael A. Weight, Office of Fed. Public Defender, Honolulu, HI, Marcia A. Morrissey, Santa Monica, CA, for Defendant.

Larry L. Butrick, Office of the U.S. Atty., Honolulu, HI, for U.S.

ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA

KAY, District Judge.

BACKGROUND

On July 9, 1998, Richard Lee Tuck Chong ("Chong") was indicted on drug conspiracy and murder related charges surrounding the September 24, 1997, shooting death of William Noa. The Government filed a superseding indictment on December 16, 1999, charging Chong with two capital counts. On February 12, 1999 the government filed a Notice of Intent to Seek a Sentence of Death. Trial was scheduled to begin January 19, 2000.

On January 12, 2000, Chong signed a plea agreement providing for a sentence of life imprisonment without parole, pursuant to Federal Rule of Criminal Procedure 11(e)(1)(C). After conducting a Rule 11 hearing¹ on January 13, 2000, this Court accepted Chong's plea of guilty, deferring acceptance of the plea agreement pending preparation of a pre-sentence investigation report. Chong was scheduled to be sentenced on July 24, 2000.

On July 10, 2000, this Court received a letter written by Chong, dated July 7, 2000, asking the Court to allow Chong to withdraw his plea of guilty (hereinafter "Chong Letter"). The Court construed this letter as a motion to withdraw such plea pursuant to Federal Rule of Criminal Procedure 32(e). The Government filed an Opposition on July 18, 2000. On July 21, 2000 a hearing on Chong's Motion was held and at that time Chong requested appointment of new counsel for the purpose of arguing the withdrawal motion. On July 24, 2000, Magistrate Judge Kurren appointed attorneys Richard Burr and Birney Brevar for the limited purpose of representing Chong in his Motion to Withdraw Guilty Plea.

On November 13, 2000 Chong filed a Motion to Withdraw Guilty Plea. On February 1, 2001 the parties stipulated to a waiver of attorney-client privilege. On March 9, 2001 the Government filed a supplemental response to Chong's Motion to Withdraw Guilty Plea. On March 21, 2001 Chong filed a Reply. The night before the scheduled hearing on the Motion, March 27, 2001, Chong was taken to the emergency room for a racing heart episode. At that time he was prescribed Digoxin to control future episodes. The Court continued the hearing to allow Chong to be examined concerning potential side-effects of the medication. Upon receiving declarations from Chong's cardiologist and primary physician and determining that Chong was prepared to go forward, and with Chong requesting the Court to proceed, a hearing on the Motion was held May 3, 2001 at 10:00 a.m.

DISCUSSION

Rule 32(e) of the Federal Rules of Criminal Procedure provides that a district court may allow a defendant to withdraw his guilty plea before he is sentenced "if the defendant shows any fair and just reason." The requirement applies after a plea of guilty has been accepted by the district court, regardless of whether or not a plea agreement has been accepted by the court. See United States v. Hyde, 520 U.S. 670, 671, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997) (overturning a Ninth Circuit decision which held a defendant need not show a fair and just reason to withdraw a guilty plea after a guilty plea had been accepted but before the court rendered a decision on acceptance of the plea agreement).

Withdrawal is freely given, but the burden is on the defendant to show a fair and just reason. United States v. Read, 778 F.2d 1437, 1440 (9th Cir.1985). The defendant has no right to withdraw a plea. Id. Whether to allow such a withdrawal "is committed to the sound discretion of the trial court." United States v. Navarro-Flores, 628 F.2d 1178, 1183 (9th Cir.1980).

A "fair and just reason" involves a plea that is "unfairly obtained or given through ignorance, fear or inadvertence." Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927) (cited in United States v. Rubalcaba, 811 F.2d 491, 492 (9th Cir.1987)). A claim of innocence, supported by evidence not available at the time of the entry of the plea, might be a fair and just reason for allowing withdrawal of a guilty plea. See United States v. Nagra, 147 F.3d 875, 880 (9th Cir.1998) (noting that when defendant asserts innocence based on evidence withheld by government and only discovered upon resentencing, "manifest injustice" might result if plea were not withdrawn); United States v. Turner, 898 F.2d 705, 713 (9th Cir.1990).

A defendant's mere change of heart about pleading guilty, or unsupported claims of innocence, are insufficient to allow him to withdraw his plea. See United States v. Rios-Ortiz, 830 F.2d 1067, 1069-70 (9th Cir.1987); Turner, 898 F.2d at 713. Statements made during the plea hearing are entitled to a strong presumption of veracity in later attacks on the plea. See United States v. Anderson, 993 F.2d 1435, 1438 (9th Cir.1993); United States v. Mims, 928 F.2d 310, 313 (9th Cir.1991); United States v. Hoyos, 892 F.2d 1387, 1400 (9th Cir.1989) (holding that district court was entitled to credit defendant's testimony at time he entered plea and to disbelieve the allegations in affidavit in support of motion to withdraw guilty plea). A court may also consider the time elapsed between the entering of such plea and his withdrawal request. See United States v. Alber, 56 F.3d 1106, 1111 (9th Cir.1995) (noting fact that defendant waited until three months after guilty plea to make withdrawal motion undermined his position that there had been a misunderstanding during his plea hearing); United States v. Navarro-Flores, 628 F.2d 1178, 1184 (9th Cir.1980) (rejecting motion to withdraw guilty plea made over a month after plea entered and after co-defendant sentenced).

Chong has failed to present a fair and just reason to withdraw the plea. Chong presents three reasons why the court should grant the motion. First, he argues that he was innocent of the murder of William Noa as charged in the superceding indictment. Secondly, he argues the Rule 11 hearing was inadequate because the Court did not "clarify" several of Chong's responses which Chong now characterizes as non-responsive or inappropriate. Lastly, Chong argues that his prescription medication Wellbutrin made his guilty plea unintelligent and involuntary.

The Court finds that Chong's conduct has been consistent with his plea of guilty and Chong has presented no facts which suggest the existence of exonerating evidence not available to him at the time of the plea. In light of the Rule 11 hearing transcript read as a whole and the Court's lifelong knowledge, experience and understanding of the local pigeon dialect, its colloquy with Chong during the change of plea hearing was sufficient to determine that Chong had made an intelligent, knowing and voluntary plea. Additionally, the Court finds that the prescription drug Wellbutrin did not interfere with Chong's ability to make a careful, rational and reasoned decision to plea guilty. Accordingly, Chong has presented no evidence of a just and fair reason for this Court to grant his motion and the Motion to Withdraw Guilty Plea is DENIED.

I. CLAIM OF INNOCENCE

A claim of innocence, supported by evidence not available at the time of the entry of the plea, might be a fair and just reason for allowing withdrawal of a guilty plea. See United States v. Nagra, 147 F.3d 875, 880 (9th Cir.1998). However, a mere change of heart or unsupported claims of innocence, are insufficient to allow him to withdraw his plea. See United States v. Rios-Ortiz, 830 F.2d 1067, 1069-70 (9th Cir.1987). Chong neither points to newly discovered evidence nor provides any other form of support for his claim of innocence. Moreover, Chong swore at his plea hearing that he was in fact guilty of the crime to which he pleaded guilty. See Tr. at 25, 29-33. These solemn declarations of guilt are presumed truthful. See Rubalcaba, 811 F.2d at 494. Chong's conduct has also been consistent with his plea of guilty, in that he has authored letters to the victim's mother and girlfriend, apologizing for killing William Noa. See Ex. B to Government's Response dated July 18, 2000, Letter from Chong to Raynette Olivia of December 21, 1999 ("I have decided to plead guilty to life in prison without possibility of parole that puts me away forever!") (hereinafter "Raynette Letter"); Ex. C to Government's Response dated July 18, 2000, Letter from Chong to Mrs. Noa ("I write to you to miki miki (apologize) and seek your forgiveness for this unfortunate incident which took from you your son and there [sic] brother.") (hereinafter "Mrs. Noa Letter"). These letters quite naturally do not, however, explicitly admit that Chong committed murder "with premeditation".

Chong's contention that he is innocent of the crime to which he pled guilty, without the support of any new information or evidence of his innocence is not by itself a fair and just reason to allow withdrawal of the guilty plea.

II. ADEQUACY OF THE RULE 11 HEARING

Chong's next claim is that the Rule 11 hearing was inadequate because the Court did not sufficiently determine that Chong's plea was knowing, intelligent, and voluntary. Chong argues that although he admitted that he was guilty of premeditated murder on many occasions during the plea hearing, when asked directly and explicitly whether he committed premeditated murder, his responses either expressed initial confusion or were non-responsive. Chong argues that his "correct" answers were simple rote responses without underlying understanding and the "incorrect" responses are a better representation of his inability to understand the proceedings.

Chong argues his responses on these occasions during the plea hearing required clarification or follow-up...