United States v. Yazzie

• Decision Date: 06 February 2014
• Docket Number: No. CR 10–1761 JB.,CR 10–1761 JB.
• Citation: 998 F.Supp.2d 1044
• Parties: UNITED STATES of America, Plaintiff, v. Willis YAZZIE, Defendant.
• Court: U.S. District Court — District of New Mexico

998 F.Supp.2d 1044

UNITED STATES of America, Plaintiff,

v.Willis YAZZIE, Defendant.

No. CR 10–1761 JB.

United States District Court, D. New Mexico.

Feb. 6, 2014.

Kenneth J. Gonzales, United States Attorney, Jacob Wishard, Assistant United States Attorney, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

Kimberly A. Middlebrooks, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the Letter from Willis J. Yazzie, Sr. to Judge James O. Browning, sent June 7, 2013, filed June 10, 2013 (Doc. 113)(“Motion to Reconsider”); (ii) the Defendant's Motion to Withdraw Plea of Guilty, filed November 29, 2011 (Doc. 59)(“1st Motion”); and (iii) the Defendant's Motion to Withdraw Plea of Guilty, filed April 4, 2012 (Doc. 64) (“2nd Motion”). The Court held hearings on February 4, 2013, and September 13, 2013. The primary issues are: (i) whether the Court should reconsider its previous decision to deny Defendant Willis Yazzie's 1st Motion and 2nd Motion, in which Yazzie requested the Court to allow him to withdraw his guilty plea; and (ii) whether Yazzie has given the Court a fair and just reason to allow him to withdraw his guilty plea. The Court has reconsidered its previous decision, but reaches the same conclusion: after weighing the seven factors the United States Court of Appeals for the Tenth Circuit requires the Court to consider when determining whether to allow a defendant to withdraw a guilty plea, the Court determines that the factors as a whole weigh against permitting Yazzie to withdraw his plea. The Court, therefore, grants the Motion to Reconsider in part and will reconsider its previous decision, but will deny it in part and will continue to deny the 1st Motion and 2nd Motion.

FACTUAL BACKGROUND

Yazzie lived in an “eight-foot-by-eight-foot shack” in Two Grey Hills, New Mexico, with his wife and their four children, two of which were Jane Doe 1 and Jane Doe 2, Yazzie's stepdaughters. United States' Response to Defendant's Motion Withdraw [sic] His Plea of Guilty at 1, filed December 30, 2011 (Doc. 62)(“Response”) (citation omitted). The Navajo Tribal Police Department learned that Yazzie was allegedly abusing Jane Doe 1, who was thirteen years old at the time, and Jane Doe 2, who was then ten years old, on May 3, 2010. Response at 1. On May 10, 2010, the Navajo Police interviewed Yazzie regarding the allegations. See Response at 4. Before the interview, Yazzie gave an oral and written waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).¹See Response at 4. Yazzie admitted that he had an intimate relationship with Jane Doe 1, which involved him kissing Jane Doe 1, holding hands with her, putting his penis on her cheek and telling her to suck it, which she would not, and touching her vagina, both over her clothes and under clothes, including penetration with his finger. See Response at 4. Yazzie denies ever having intercourse with Jane Doe 1. See Response at 1–2. Yazzie admitted that he touched Jane Doe 2's vagina one night, but contends that he thought it was his wife's, and not Jane Doe 2's, which he was touching. See Response at 5. He denies having intercourse with Jane Doe 2. See Response at 5.

PROCEDURAL BACKGROUND

In the Criminal Complaint, filed May 12, 2010 (Doc. 1), Plaintiff United States of America charged Yazzie with committing “multiple acts of aggravated sexual abuse to two minor children under the ages of twelve and sixteen years in violation of” 18 U.S.C. §§ 2241(c) and 2246(2)(C), (D). Criminal Complaint at 1. A person convicted under 18 U.S.C. § 2241(c) “shall be fined under this title and imprisoned for not less than 30 years or for life.” 18 U.S.C. § 2241(c). A Grand Jury indicted Yazzie on two counts of aggravated sexual abuse: as to Jane Doe 1, the Grand Jury indicted Yazzie for violating 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(C), and as to Jane Doe 2, the Grand Jury indicted him for violating 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(D). See Indictment at 1–2, filed June 10, 2010 (Doc. 12). Yazzie pled not guilty to the two counts in the Indictment. See Clerk's Minutes of Arraignment at 1, filed June 16, 201 (Doc. 14).

1. The Plea Agreement and Plea Hearing.

As part of a Plea Agreement, filed February 9, 2011 (Doc. 38), the United States charged Yazzie with Aggravated Sexual Abuse, in violation of 18 U.S.C. §§ 1153, 2241(a), and 2246(2)(C). See Information at 1, filed February 9, 2011 (Doc. 35). A person convicted under 18 U.S.C. § 2241(a) “shall be fined under this title, imprisoned for any term of years or life, or both.” 18 U.S.C. § 2241(a). That same day, Yazzie agreed to plead guilty to the Information, charging a violation of 18 U.S.C. § 2241(a), that being Aggravated Sexual Abuse of Jane Doe 1. See Plea Agreement ¶ 3, at 2, filed February 9, 2011 (Doc. 38). The United States and Yazzie made an agreement to a specific sentence “between 15 years (180 months) and 19 years (228 months) imprisonment,” pursuant to rule 11(c)(1)(c) of the Federal Rules of Criminal Procedure. Plea Agreement ¶ 10(a), at 4. In the Plea Agreement, in the section titled “Defendant's Admission of Facts,” the statement from Yazzie reads, in part:

Moreover, in pleading guilty, I acknowledge that if I chose to go to trial instead of entering this plea, the United States could prove facts sufficient to establish my guilt of the offense to which I am pleading guilty beyond a reasonable doubt. I specifically admit the following facts related to the charges against me, and declare under penalty of perjury that all of these facts are true and correct:

....

During March of 2010, I, Willis Yazzie, inserted my finger into the vaginal opening of my stepdaughter, A.N., a/k/a Jane Doe. A.N. was 13 years old at the time. In doing so, I used force against A.N.

Plea Agreement ¶ 8, at 3 (emphasis in original). Yazzie also stipulated:

[T]he Defendant agrees that, upon the Defendant's signing of this plea agreement, the facts that the Defendant has admitted under this plea agreement as set forth above, as well as any facts to which the Defendant admits in open court at the Defendant's plea hearing, shall be admissible against the Defendant under Federal Rule of Evidence 801(d)(2)(A) in any subsequent proceeding, including a criminal trial, and the Defendant expressly waives the Defendant's rights under Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 with regard to the facts the Defendant admits in conjunction with this plea agreement.

Plea Agreement ¶ 10(c), at 5.

At the plea hearing, Yazzie swore that the testimony he gave was the “truth, the whole truth, and nothing but the truth.” For The Record at 12:05:45–05:58 (Sanchez, Yazzie)(“FTR”); Transcript of Plea Hearing at 2:13, taken February 9, 2011, filed January 17, 2012 (Doc. 63)(“Plea Tr.”)(stating that the Defendant was sworn). The Honorable Richard L. Puglisi, former Chief United States Magistrate Judge for the District of New Mexico,² asked Yazzie whether he had been recently treated for any mental illness or addiction to narcotic drugs, and whether Yazzie was under the influence of alcohol or drugs of any kind; Yazzie answered “no” to both questions. Plea Tr. at 2:24–3:7 (Judge Puglisi, Yazzie). Yazzie responded “yes” to Judge Puglisi's question whether Yazzie was satisfied “in all respects with his attorney Mr. Loonam.” Plea Tr. at 3:8–11 (Judge Puglisi, Yazzie). Yazzie affirmed that he had read the Consent to Proceed Before United States Magistrate Judge in a Felony Case, filed February 9, 2011 (Doc. 37), the Waiver of Indictment, filed February 9, 2011 (Doc. 36), and the Plea Agreement, and Yazzie stated that he had also reviewed the documents with his counsel. See Plea Tr. at 3:12–21 (Judge Puglisi, Yazzie). Yazzie stated that he did not have any questions about those documents. See Plea Tr. at 3:22–24 (Judge Puglisi, Yazzie). Yazzie stated that he understood the information in those documents. See Plea Tr. at 3:25–4:2 (Judge Puglisi, Yazzie). Yazzie affirmed that he had signed the documents. See Plea Tr. at 4:3–6 (Judge Puglisi, Yazzie). Yazzie affirmed that he understood that, by signing the Consent to Proceed Before United States Magistrate Judge in a Felony Case, he had given up right to have the District Judge receive his plea. See Plea Tr. at 4:7–10 (Judge Puglisi, Yazzie). Yazzie stated that he understood that, by signing the Waiver of Indictment, he had given up his right to have a grand jury indict him before he pled. See Plea Tr. at 4:11–16 (Judge Puglisi, Yazzie). On the basis of Yazzie's statements, Judge Puglisi approved the Consent to Proceed Before United States Magistrate Judge in a Felony Case and the Waiver of Indictment, finding that Yazzie had “full knowledge” of their meaning and effect. Plea Tr. at 4:17–19 (Judge Puglisi).

Assistant Federal Public Defender James C. Loonam, Yazzie's counsel at the time, stated that he was convinced that Yazzie understood the rights he gives up by pleading guilty and his likely sentence under rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. See Plea Tr. at 4:20–25 (Judge Puglisi, Loonam). When Judge Puglisi asked Yazzie whether the Plea Agreement is his only agreement with the United States, Yazzie stated that he wants “another agreement.” Plea Tr. at 5:2–5 (Judge Puglisi, Yazzie). Loonam informed Judge Puglisi that, while Yazzie was detained pretrial, his wife gave birth to Yazzie's child, and Yazzie wants an agreement that will allow him to see his baby in person, in the presence of United States Marshalls. See Plea Tr. at 5:7–19 (Loonam). Judge Puglisi asked Yazzie whether he understood that the only agreement that was binding at the time of the plea hearing was the Plea Agreement, and Yazzie responded: “Yes.” Plea Tr. at 5:21–25 (Judge Puglisi, Yazzie). Yazzie responded “no” to Judge Puglisi's question whether...