U.S.A v. Gates

• Decision Date: 24 March 2010
• Docket Number: Criminal No. 08-42-P-H-01.
• Citation: 698 F.Supp.2d 212
• Parties: UNITED STATES of Americav.Frederick GATES, Defendant.
• Court: U.S. District Court — District of Maine

698 F.Supp.2d 212

UNITED STATES of Americav.Frederick GATES, Defendant.

Criminal No. 08-42-P-H-01.

United States District Court,

D. Maine.

March 24, 2010.

Daniel J. Perry, David B. Joyce, Kate Lawrence, Assistant United States Attorneys, Office of the United States Attorney, Portland, ME, for United States of America.

Thomas S. Marjerison, Norman Hanson & DeTroy, Portland, ME, for Defendant.

MEMORANDUM DECISION AND ORDER ON DEFENDANT'S AMENDED MOTION TO WITHDRAW GUILTY PLEA

D. BROCK HORNBY, District Judge.

On September 23, 2009, at the start of the second day of his jury trial, the defendant Frederick Gates entered a conditional plea of guilty ¹ to one count of conspiracy to distribute and possess with intent to distribute fifty grams or more of cocaine base, or aiding and abetting; and one count of possession of fifty grams or more of cocaine base with an intent to distribute, or aiding and abetting. 21 U.S.C. §§ 846, 841(a)(1); 18 U.S.C. § 2. Now, before sentencing, Gates moves to withdraw his mid-trial guilty plea. Def.'s Am. Mot. to Withdraw Guilty Plea (Docket Item 292). His grounds are: (1) he is innocent and a witness committed perjury when testifying against him at the trial, Gates Aff. ¶¶ 3-6 (Ex. 1 to Am. Mot.) (Docket Item 292-1); (2) he “felt that [he] could not receive a fair trial because ... there were no African-Americans on the jury,” id. ¶ 7; and (3) his plea was not voluntary, intelligent, and knowing because his trial counsel promised him that he would receive a five-year sentence when, in fact, he faces a ten-year mandatory minimum sentence id. ¶¶ 9-10, 12. Gates requests an evidentiary hearing to resolve factual disputes. Am. Mot. at 3. The government objects. Gov't's Resp. to Def.'s Am. Mot. to Withdraw Guilty Plea (Docket Item 293). For the reasons stated below, the request for an evidentiary hearing and the motion are Denied.

Analysis

Rule 11 provides that a defendant can withdraw a guilty plea before he is sentenced if he “can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P. 11(d)(2)(B). The First Circuit has elaborated this standard into five factors: “[1] whether the plea was voluntary, intelligent, knowing and in compliance with Rule 11; [2] the strength of the reasons offered in support of the motion; [3] whether there is a serious claim of actual innocence; [4] the timing of the motion; and [5] any prejudice to the government if the withdrawal is allowed.” United States v. Isom, 580 F.3d 43, 52 (1st Cir.2009) (citing United States v. Padilla-Galarza, 351 F.3d 594, 597 (1st Cir.2003)). The key issues here are whether Gates voluntarily, intelligently, and knowingly pleaded guilty and whether he has presented plausible reasons for withdrawing his plea, including a serious claim of innocence.

A. Voluntary, Intelligent, Knowing and Rule 11-Compliant Plea

The colloquy required by Rule 11 is “designed to confirm a knowing, voluntary, and intelligent plea.” United States v. Cheal, 389 F.3d 35, 44 (1st Cir.2004); see also United States v. Padilla-Galarza, 351 F.3d 594, 597 (1st Cir.2003) (“[T]he formalities imposed by Rule 11 ... are intended to assure that the defendant understands the charge and the consequences of the plea.” (citing United States v. Cotal-Crespo, 47 F.3d 1, 4 (1st Cir.1995))). Gates points to no defect in how I conducted the Rule 11 hearing.²

A defendant's statements during a properly conducted plea colloquy carry a “presumption of truthfulness.” Hernandez-Hernandez v. United States, 904 F.2d 758, 762 (1st Cir.1990); see also United States v. Mescual-Cruz, 387 F.3d 1, 9 (1st Cir.2004) (“The defendant['s] ‘declarations in open court carry a strong presumption of verity.’ ” (quoting Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977))). Here, as in all cases, I warned Gates that he had to tell the truth during the plea colloquy. See Rule 11 Hr'g Tr. 17:1-4, Sept. 23, 2009 (Docket Item 296) (“[Court:] You must answer my questions truthfully. I'm going to take your answers as true and act accordingly; do you understand? [Gates:] Yes.”). In determining whether Gates's plea was knowing, voluntary and intelligent, I therefore give great weight to his answers in the Rule 11 hearing (absent a “good reason for disregarding them,” such as “undisclosed threats of violence” or “highly specific” allegations of attorney misrepresentations that are independently corroborated). United States v. Pulido, 566 F.3d 52, 59 (1st Cir.2009) (citations omitted); see also Padilla-Galarza, 351 F.3d at 598 (“Ordinarily, a defendant is stuck with the representations that he himself makes in open court at the time of the plea.” (citing United States v. Butt, 731 F.2d 75, 80 (1st Cir.1984))).

Gates argues that he “was coerced” into pleading guilty “by a promise made to him by counsel and he reasonably did not understand the consequences of his plea.” Am. Mot. at 2. He says that his trial attorney told him (1) that “[b]ased on the drug quantity, [he] would likely receive a 5-year sentence”; (2) that his attorney had spoken with the prosecutor who “would be recommending a 5-year sentence”; and (3) that “new drug laws ... would preclude the imposition of the ten-year minimum mandatory sentence.” Gates Aff. ¶¶ 9, 12.

During the Rule 11 hearing, Gates denied that he had been coerced into pleading guilty or that anyone had promised him anything. When I first asked him if anyone had tried to force him to plead guilty, he asked to speak with his lawyer. Tr. 22:6-9. After talking with Gates, his lawyer told me that Gates had not been coerced but felt pressured by the “evidence ... here in court” and believed it was “in his best interest to plead at this point and pursue acceptance of responsibility.” Id. at 22:12-17. However, I required an answer from Gates directly:

[COURT] I know that it's a difficult choice between going to trial and not going to trial, but my question to you, has anybody threatened you or has anybody tried to force you to plead guilty?

[GATES] No.

[COURT] Do you have any agreement with the Government, written or verbal, about your sentence or about other charges ... [or] any other kind of agreement with the prosecution?

[GATES] No.

Id. at 22:19-23:6. At the end of the hearing, I again questioned Gates about anything that might have improperly influenced his plea.

[COURT] Has anyone made any promise to you as to what kind of sentence I will impose?

[GATES] No.

[COURT] Has anyone made any promise to you as to what the prosecutor's sentencing recommendation is going to be?

[GATES] No.

[COURT] I ask you finally then, do you still want to plead guilty to Counts 1 and 2 and agree to the forfeiture?

[GATES] Yes.

Id. at 26:8-18. Gates's answers at his Rule 11 hearing therefore plainly contradict the allegations of coercion in his Amended Motion.

Gates cannot seriously maintain that he did not understand what was happening in the Rule 11 hearing; that he was not informed of the nature and elements of the charged offenses; that he did not admit the factual basis for his plea; or that he was not told that he faced a ten-year mandatory minimum sentence.

When Gates said that he did not understand something, I asked him what he did not understand and had him confer with his attorney. Id. at 5:5-9. When he suggested that the proceeding was simply a formality (“I mean I got to deal with this ... [i]t doesn't matter anymore”), I told him, “Well, it matters to me. I'm not taking a plea unless you understand what you're doing.” Id. at 5:13-16.³ When I asked if he authorized his attorney to speak for him and he said, “I have to,” I reminded him that he did not “have to” and that he had a constitutional right to proceed without a lawyer. Id. at 7:13-20. Similarly, when Gates stated that he had to agree to forfeit a vehicle, I told him, “No, you don't have to. You have a choice.” Id. at 9:14-20. In response to his body language, I added: “This is not a humorous issue, Mr. Gates. If at any point I decide that you're not proceeding with all your faculties, I'm just going to discontinue this. So this is not a joke.” Id. at 9:21-24. At no point during the hearing, however, did Gates appear not actually to understand the proceeding or his situation. Rather, he appeared frustrated with his difficult situation and distinctly unhappy with his choices, namely, entering a guilty plea or going forward with the trial. ⁴

I also carefully determined that Gates understood the elements of the charged offenses, and Gates admitted that he committed both crimes. I asked him, “[H]ave you pleaded guilty to these two counts and agreed to the forfeiture because you actually committed those two crimes?” Id. at 10:20-22. He answered, “Yes.” Id. at 10:23. When he complained that he was merely present during drug transactions (and had not therefore agreed to distribute cocaine), I told him that “[p]resence doesn't do it,” and he responded, “I agree. That's about it.... I helped.” Id. at 20:2-6. But after discussing the elements of conspiracy with his lawyer off the record, Gates changed his mind and admitted that he had conspired with Brandon Jones. Id. at 20:15. To make sure that Gates understood this element of a conspiracy charge, I also explained to him that an illegal agreement could be spoken or unspoken, but that the government had to show that Gates and Johnson shared a general understanding about their crime. Id. at 20:6-21:11. Gates stated that he understood the explanation and again admitted that he had an agreement with Johnson to possess cocaine base with the intent to distribute it. Id. at 21:11-16. Finally, the record shows clearly that I advised Gates that he faced a minimum of ten years in prison id. at 14:2-3, and after conferring with his lawyer, Gates indicated that he understood the penalties id. at 14:16.

Gates argues, however, that I should not credit his answers during the plea colloquy. He says that he answered my questions falsely because his lawyer...