U.S. v. Rowzer, 98-40074-01-SAC.

• Decision Date: 16 November 1999
• Docket Number: No. 98-40074-01-SAC.,98-40074-01-SAC.
• Citation: 80 F.Supp.2d 1212
• Parties: UNITED STATES of America, Plaintiff, v. Andrew B. ROWZER, Defendant.
• Court: U.S. District Court — District of Kansas

80 F.Supp.2d 1212

UNITED STATES of America, Plaintiff, v. Andrew B. ROWZER, Defendant.

No. 98-40074-01-SAC.

United States District Court, D. Kansas.

November 16, 1999.

COPYRIGHT MATERIAL OMITTED

Mark L. Bennett, Jr., Mark L. Bennett, Jr. & Associates, Topeka, KS, pro se.

Jerold E. Berger, Topeka, KS, pro se.

Anthony W. Mattivi, Office of U.S. Atty., Topeka, KS, for plaintiff.

Andrew B. Rowzer, Topeka, KS, pro se.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

On August 5, 1998, the grand jury returned a one count indictment charging the defendant, Andrew B. Rowzer, with violation of 18 U.S.C. § 922(g), felon in possession of a firearm. The indictment lists eleven different firearms including five assault weapons which Rowzer allegedly possessed. The firearms were apparently seized from Rowzer's home or shed near the defendant's home.

This case was set for a jury trial to commence on June 15, 1999. At the time, the defendant was represented by retained counsel, Jerold Berger. Immediately before selection of the jury was about to commence, the parties informed the court that they had reached a settlement in this case and that a plea agreement reflecting the terms and conditions of that settlement would be drafted. The salient terms of the plea agreement are as follows:

(1) The defendant agreed to plead to guilty to both counts charged in a superseding information;¹ that the superseding information charges one count of money laundering in violation of 18 U.S.C. § 1957 and one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g);

(2) In exchange for his plea, the government agreed to bring no further criminal charges against Rowzer for conduct resulting from the activities which form the basis of the indictment or for conduct which is known to the government at the time of the plea agreement.

(3) With respect to sentencing:

a) The defendant acknowledges and understands that all information in the possession of the government concerning the defendant's involvement in the offense as well as the nature, scope and extent of the defendant's cooperation will be made known to the Court for the purpose of imposing an appropriate sentence.

b) The Government will not object to the defendant's request that he receive a 2-level adjustment for acceptance of responsibility pursuant to this plea agreement is contingent upon the defendant's continuing manifestation of acceptance of responsibility. Should the defendant deny his involvement, give conflicting statements as to his involvement or engage in additional criminal conduct, including, but not limited to, personal use of a controlled substance, the government shall not be bound to recommend acceptance of responsibility.

Paragraph 5 of the plea agreement provides: "The defendant understands that the foregoing recommendations by the government as to the sentence to be imposed do not bind the court and that the defendant has no right to withdraw the plea of guilty in the event the court does not accept the government's recommendation."

Prior to accepting the defendant's pleas, the court engaged the defendant and his counsel in an extensive colloquy regarding the terms of the plea agreement, the maximum and minimum penalties the defendant faced by entering his pleas, and the defendant's understanding of the impact of the plea agreement. In response to the court's inquiry, the defendant stated that he understood that he could not withdraw his pleas if the court did not accept the government's sentencing recommendation and that the only circumstance in which he could withdraw his plea would be if the court did not grant the government's motion to dismiss the indictment at the time of sentencing. The defendant stated that no one had forced him to plead guilty and that he was pleading guilty because he was guilty. The defendant also stated that no one had promised him what sentence he would receive if he pleaded guilty. The defendant stated that he understood the constitutional rights he waived by entering a guilty plea and the consequences of his pleas.

The following is an excerpt of the transcript of the change of plea hearing regarding the government's proffer of facts it would prove had this matter proceeded to trial:

THE COURT: Okay. I'd like to ask the government to make a representation as to what you are prepared to prove.

MR. MATTIVI: Your Honor, on the 20th day of June, 1997, this defendant presented himself at Davis Cycle in Shawnee County, Kansas, and purchased a 1997 Honda CVR motorcycle, the list price of which was $10,583.59, and the government submits it would prove at trial that the proceeds used for this purpose were derived from the specified unlawful activity of narcotics distribution in violation of 21 United States to code section 841, thus making that transaction — a money laundering offense under title 18 United States Code section 1957.

The government further submits it would prove that on the 25th day of June, 1997, officers from the Kansas Bureau of Investigation and the Jackson County sheriff's department executed a search warrant at the home of the defendant, who on that date was a prohibited person by means of two prior felony convictions, one in Shawnee County for burglary and another in Pottawatomie County for burglary. At the time of that search warrant, the defendant was found to be in possession of 11 different firearms, each of which is set out in the superseding information, and which the government submits was in violation of title 18 United States Code section 922(g).

THE COURT: All right, thank you. Counsel for the defendant, you've heard what the Assistant United States Attorney has said would be the evidence offered against your client in this case. Do you agree that that could be offered against him?

MR. BERGER: Yes, your Honor, I do.

THE COURT: And Mr. Rowzer, you've heard what your counsel has said, the Assistant United States Attorney has said as to the evidence that could be offered against you, have you not heard that?

DEFENDANT ROWZER: Yes, sir.

THE COURT: All right. Is that true?

DEFENDANT ROWZER: That I'm in violation of 922(g)? Yes, sir.

THE COURT: All right the things that he said in regard to the factual.

DEFENDANT ROWZER: Yes, sir.

THE COURT: As it relates to the, what is it, can I call it a motorcycle? That might not be the right terminology. And also as to the handguns and other guns?

DEFENDANT ROWZER: Yes, sir.

THE COURT: All right. It's all true, correct?

DEFENDANT ROWZER: Yes, sir.

Transcript of change of plea hearing at 17-19.

Only after meticulously following the protocols established by Fed.R.Crim.P. 11 did the court accept the defendant's plea.

This case comes before the court upon Rowzer's "Motion to Withdraw and Set Aside Pleas of Guilty Previously Entered Herein" (Dk.48). Rowzer filed his motion to withdraw his guilty plea on August 20, 1999, over two months after the date that he entered his guilty plea. Rowzer is now represented by retained counsel, Mark Bennett.

Rowzer makes several allegations of ineffective assistance of counsel in his motion to withdraw his plea. Included among his claims that Berger's performance was constitutionally deficient are: (1) Berger's alleged failure to file pretrial motions (2) Berger's alleged failure to explain the essential elements of the crime of unlawful possession of a firearm/failure to explore the defenses available to the charge (3) Berger's convincing him to plead to the money laundering count and (4) Berger's inaccurate estimate of the likely sentencing range. In a supplemental pleading, the defendant argues that the superseding information charging him with money laundering is defective as it omits an essential element of the crime charged.

The government responds, opposing the defendant's motion. In its brief, the government recounts the history of this case. The government also provides a summary of the evidence it would have offered against the defendant had this case proceeded to trial. The government's brief explains the substantial benefits the defendant enjoys by the operation of the plea agreement — namely the limitation of potential criminal liability. In short, the government contends that the defendant cannot carry his burden of proving that it is appropriate to withdraw his pleas.

On November 9, 1999, the court conducted a hearing to consider the evidence and arguments offered by the parties. Having considered that evidence, the briefs and arguments of counsel, and the applicable law, the court is now prepared to rule.

Voluntariness of Guilty Plea

"The longstanding test for determining the validity of a guilty plea is `whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985) (quoting North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970)). A guilty plea entered upon the advice of counsel is invalid if the plea was coerced, Osborn v. Shillinger, 997 F.2d 1324, 1327 (10th Cir.1993), or if the advice of defendant's counsel was not within the range of competence demanded of attorneys in criminal cases, Hill v. Lockhart, 474 U.S. at 56, 106 S.Ct. at 369; McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).

United States v. Carr, 80 F.3d 413, 416 (10th Cir.1996).

Withdrawal of Guilty Plea

"There is no absolute right to withdraw a guilty plea." United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.1990). See United States v. Vidakovich, 911 F.2d 435, 439 (10th Cir.1990) ("[A] defendant does not have any absolute right to withdraw his plea of guilty even though the motion is made before sentencing."). Under Fed.R.Crim.P. 32(e), the district court may permit a defendant to withdraw a plea of guilty before sentence is imposed "if the defendant shows any fair and just reason" for doing so.

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