United States v. Oyerinde, CRIMINAL ACTION NO. 11-514
| Decision Date | 20 June 2013 |
| Docket Number | CRIMINAL ACTION NO. 11-514 |
| Parties | UNITED STATES OF AMERICA v. ISMAIL OYERINDE |
| Court | U.S. District Court — Eastern District of Pennsylvania |
On September 26, 2011, Defendant Ismail Oyerinde pleaded guilty to an Information charging him with conspiracy to commit bank fraud in violation of 18 U.S.C. § 1349, and aggravated identity theft in violation of 18 U.S.C. § 1028A. The Information charging the defendant had been transferred to this district from the Southern District of Texas. See Rule 20 of the Federal Rules of Criminal Procedure. On February 16, 2012, I imposed a sentence of forty-two months' incarceration, five years of supervised release, restitution in the amount of $53,819.90, and a special assessment of $200. See Document #29. Upon appeal, the Third Circuit Court of Appeals granted the government's motion to enforce Mr. Oyerinde's appellate waiver. See Document #42.
Mr. Oyerinde has filed a motion for relief from judgment pursuant to Rule 60(b)(4) and from the unsigned "Waiver of Indictment." See Document #34. He asks for his immediate release from the "executive custody of the United States," because his Guilty Plea Agreement was predicated upon an unsigned waiver of indictment. Id. He insists, therefore, that his Guilty Plea Agreement is null and void and "of no legal effect with respect to this court's jurisdiction." Id.
Initially, I must note that the rule under which Mr. Oyerinde seeks relief is inapplicable in criminal cases. Rule 60(b) of the Federal Rules of Civil Procedure applies only in civil proceedings. Because he essentially asks to withdraw his guilty plea, I will construe this motion to have been more properly brought under Rule 11(d) of the Federal Rules of Criminal Procedure, which provides:
"A defendant may withdraw a plea of guilty or nolo contendere: (1) before the court accepts the plea, for any reason or no reason; or (2) after the court accepts the plea, but before it imposes sentence if: (A) the court rejects a plea agreement under Rule 11(c)(5); or (B) the defendant can show a fair and just reason for requesting the withdrawal." (Emphasis added).
Unfortunately for Mr. Oyerinde, his motion is untimely and must be denied. The rules contemplate that a defendant may withdraw his plea either before the court accepts it, or after the court accepts it but before the court imposes sentence. Neither choice is currently available to Mr. Oyerinde because I have accepted his guilty plea and imposed his sentence.
Even if the motion were timely, however, the defendant bears the burden of demonstrating a fair and just reason, and that burden is substantial. United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). In evaluating a motion to withdraw a guilty plea, a court must consider the following factors: (i) whether the defendant asserts his innocence; (ii) the strength of the defendant's reasons to withdraw the plea; and (iii) whether the government would be prejudiced by the withdrawal. United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001); United States v. Trott, 779 F.2d 912, 915 (3d Cir. 1985). "The government is not required to show prejudice when a defendant has shownno sufficient grounds for permitting withdrawal of a plea." United States v. Martinez, 785 F.2d 111, 115-116 (3d Cir. 1986). As the Third Circuit has noted, "[a] shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons to impose on the government the expense, difficulty, and risk of trying a defendant who has already acknowledged his guilt by pleading guilty." Brown, 250 F.3d at 815; United States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992).
A review of the history of Mr. Oyerinde's case while in this district belies his contentions of an unsigned waiver of indictment and resultant void plea agreement. During his plea colloquy, Mr. Oyerinde admitted that he had obtained the personal identification information of non-consenting third parties and then used the information to open new bank accounts or, in other cases, to access existing bank accounts. See N.T. 9/26/11 at 26-32. The defendant arranged to have credit cards and debit cards issued under these accounts sent to his co-conspirator in Houston, Texas. Id. at 32-34. The co-conspirator used the credit and debit cards to make cash withdrawals and then deposited a portion of the proceeds...
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