U.S. v. Okelberry
| Decision Date | 13 September 2000 |
| Docket Number | No. 00-CR-99 RNB.,00-CR-99 RNB. |
| Citation | 112 F.Supp.2d 1246 |
| Parties | UNITED STATES of America, Plaintiff, v. Ray Lee OKELBERRY, Defendant. |
| Court | U.S. District Court — District of Utah |
Christopher Chaney, Asst. U.S. Attorney, Salt Lake City, UT, for Plaintiff.
Kenneth R. Brown, Salt Lake City, UT, for Defendant.
The defendant, Ray Lee Okelberry, has made a motion for this court to reconsider its previous ruling denying a motion by defendant to withdraw his guilty plea.
Defendant is charged by misdemeanor information with a violation of the Federal Eagle Protection Act (16 USC § 668(a)). The information alleges that on or about May 8, 1999 defendant knowingly possessed and transported a Golden Eagle carcass. Defendant appeared before this court with counsel and entered a plea of not guilty. A plea agreement was worked out between defendant and the government. The defendant then entered a plea of guilty pursuant to the agreement. At the time of the plea, which was completely voluntary, and complied fully with Rule 11, F.R.Cr.P., the defendant orally admitted to facts constituting a violation of 16 USC § 668(a). He also accepted and executed a six page statement in advance of plea of guilty, which contained a statement of facts constituting admissions of the offense (¶ 12(a)). He admitted his conduct violated the statute, 18 USC § 668(a). The case was then set for a presentence report and sentencing.
Thereafter, defendant obtained new counsel and a motion was made to withdraw the plea of guilty. Rule 32(e) F.R.Cr.P. The first motion did not specify any "fair and just reason" to support setting aside the plea. See United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997) (); Rule 32(e) F.R.Cr.P. The motion was denied. Thereafter, this motion for reconsideration was made with a supporting memorandum, affidavit and documents. The United States replied and opposed the motion.
The defendant contends his guilty plea was not proper and was not voluntary. Defendant contends the plea of guilty could effect defendant's grazing rights by virtue of 16 USC § 668(c) and therefore defendant's plea was not knowing and voluntarily made. He contends counsel was ineffective because defendant was not made aware of the possibility of loss of grazing rights on conviction.
Counsel has no obligation to advise defendant of collateral consequences of his plea. Varela v. Kaiser, 976 F.2d 1357 (10th Cir.1992); Harris v. Allen, 929 F.2d 560, 562 (10th Cir.1991); Rivera-Esquivel v. United States, 198 F.3d 258 (Table) (10th Cir.1999) (1999 WL 820232); Johnson v. United States, 650 F.2d 1, 4 (1st Cir.1981); Advisory Notes To Rule 11(e) 1974 F.R.Cr.P.
In United States v. Morse, 36 F.3d 1070, 1072 (11th Cir.1994) the defendant asserted his plea was improper where he was not advised as to loss of federal benefits. The court rejected the argument. It said:
The same standard applies to counsel's effectiveness Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). 16 USC § 668(c) provides for administrative authority in the Department of Interior, to cancel a grazing permit on conviction of an offense under 16 USC § 668. The sanction is a matter that is collateral to the charge and also is couched in permissive language.
Consequently, the defendant has not shown either a deficiency in his plea of guilty nor has he met the standard of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) or Hill v. Lockhart to establish ineffectiveness of counsel in the plea process for a basis to set aside the defendant's plea of guilty because of possible loss of grazing rights. Therefore defendant has not provided a "fair and just" reason to set aside his plea pursuant to Rule 32(e) F.R.Cr.P. United States v. Hyde, 520 U.S. 670, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997).
Defendant Okelberry makes a second argument as a basis to withdraw his plea of guilty. He contends he has an available entrapment defense and that prior counsel did not make inquiry about that matter. If Okelberry has a submissible entrapment claim, that would be a "fair and just" reason for allowing withdrawal of the plea of guilty. Rule 32(e) F.R.Cr.P. The defendant submitted an affidavit in support of his motion to withdraw. However, no facts are presented in the affidavit that would show a basis for an entrapment defense.
It must be kept in mind that under federal law, the entrapment defense is a subjective standard. Early on, the Supreme Court recognized that where a suspect merely accedes to a criminal opportunity, entrapment is not present. Casey v. United States, 276 U.S. 413, 48 S.Ct. 373, 72 L.Ed. 632 (1928). In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932) the court held the persistent importuning by a federal agent and playing on mutual experiences between agent and defendant was enough to raise an entrapment defense for jury consideration. The court, however, expressly said that merely affording opportunities or facilities to commit the crime does not, of itself, defeat the prosecution. The court then said:
A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.
The Court in Sorrells said the thread of the focus is on the intent or predisposition of the defendant. See United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973).
The Supreme Court revisited the entrapment issue in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). A government informant met defendant in a doctor's office where each was being treated for narcotics addiction. The informant made repeated requests of defendant as to a source of drugs and the informant manifested "suffering" for which he needed drugs. The defendant supplied drugs to the informant and the Supreme Court concluded entrapment existed as a matter of law. The court spoke of beguiling an innocent party to committing crimes. Id. at p. 376, 78 S.Ct. 819.
The objective entrapment standard was rejected in Russell, supra, and the Supreme Court reaffirmed that defendant's state of mind is determinative. Id. at pp. 433-434, 93 S.Ct. 1637. In Jacobson v. United States, 503 U.S. 540, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), government agents, over a 2½ year period made "repeated efforts" through five fictitious organizations and a bogus pen pal "to induce defendant to violate" the federal child pornography law. The Court found entrapment as a matter of law. However, the court said "Had the agents in this case simply offered petitioner the opportunity to order child pornography [through] the mail and petitioner — who must be presumed to know the law — had promptly availed himself of this criminal opportunity, it is unlikely that his entrapment defense would have warranted a jury instruction." Id., 112 S.Ct. p. 1541.
Entrapment requires government inducement, which is also a legitimate governmental effort to apprehend law violators. United States v. Russell, supra, 411 U.S. at p. 432, 93 S.Ct. 1637; Mathews v. United States, 485 U.S. 58, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988). Merely offering an opportunity to commit the offense is insufficient to satisfy the inducement element. United States v. Christopher, 488 F.2d 849, 850-51 (9th Cir.1973). An element of "persuasion or mild coercion" is required United States v. Andrews, 765 F.2d 1491, 1499 (11th Cir.1985); see also United States v. Poehlman, 217 F.3d 692, 2000 WL 821290 (9th Cir.2000); Paul Marcus, The Entrapment Defense, 2 Ed § 4.04 (1995). If inducement is shown, then under the subjective test, evidence of defendant's predisposition may be presented by the government to rebut an entrapment claim. More than a scintilla of evidence must be shown to raise a jury issue of entrapment. Rather some founded evidence of inducement must be shown. Id. The evidence must be sufficient for a reasonable jury to accept the claim. United States v. Bradfield, 113 F.3d 515, 522 (5th Cir.1997). A defendant may present an entrapment defense to a jury only if he comes forth with "evidence from which a reasonable juror could derive a reasonable doubt as to the origin of the criminal intent." United States v. Duran, 133 F.3d 1324, 1331 n. 6 (10th Cir.1998). "[I]t is not entrapment if government agents merely provide an opportunity to commit the crime." Id. at p. 1327. "The defendant must point to evidence of both lack of predisposition and government inducement before the trial judge can determine whether entrapment has been shown sufficiently to present to the jury." United States v. Ortiz, 804 F.2d 1161, 1165 (10th Cir.1986).
"[I]nducement is any government conduct which creates a substantial risk an undisposed person or otherwise law abiding citizen would commit the offense." United States v. Mendoza-Salgado, 964 F.2d 993, 1004 (10th Cir.1992); United States v. Sullivan, 919 F.2d 1403, 1418 (10th Cir.1990). See also Ortiz, supra. "Inducement may arise from persuasion, fraudulent representations, threats, coercive tactics, harassment, promises of reward, or pleas based on need, sympathy or friendship." Mendoza-Salgado, at p. 1004. None of the above situations apply in this case, unless there is...
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