United States District Court, D. Nevada
M. Navarro, United States District Court Chief Judge
before the Court is the Motion to Withdraw Guilty Plea (ECF
No. 1298) filed by Defendant Gerald Delemus
(“Defendant”). The Government filed a Response.
(ECF No. 1769). Defendant did not file a reply, and the time
to do so has passed.
March 2, 2016, a federal grand jury sitting in the District
of Nevada returned a Superseding Indictment charging
Defendant and eighteen other co-defendants with numerous
counts related to a confrontation on April 12, 2014, with
Bureau of Land Management (“BLM”) Officers in
Bunkerville, Nevada. (See Superseding Indictment,
ECF No. 27).
August 25, 2016, Defendant had a change of plea hearing and
pled guilty with a Plea Agreement to Counts One and Sixteen
of the Superseding Indictment. (ECF No. 646). Then, on
November 1, 2016, Defendant's attorney Brian Smith
(“Smith”) moved to withdraw as counsel of record,
indicating that Defendant wished to withdraw his guilty plea.
(Smith Mot. Withdraw as Counsel 2:13-14, ECF No. 919). Smith
explained: “The reasons that [Defendant] will cite to
as a basis for the withdrawal would almost certainly place
his counsel in the position of being a witness at a hearing
on the matter . . . [which would] be a clear conflict of
interest that would shatter the attorney-client
privilege.” (Id. 2:14-17). On November 16,
2016, after holding a hearing, Magistrate Judge Peggy A. Leen
granted the motion, and current defense counsel was appointed
the same day. (See ECF No. 979, 988).
January 13, 2017, Defendant filed the instant Motion to
Withdraw Plea. (ECF No. 1298). Defendant's sentencing
hearing is currently set for May 12, 2017. (See ECF
criminal defendant has no right to withdraw a guilty plea.
United States v. Rubalcaba, 811 F.2d 491, 493 (9th
Cir. 1987). However, a district court may permit withdrawal
of a guilty plea prior to sentencing upon a showing by the
defendant of any “fair and just reason, ” a
standard that is liberally applied. Fed. R. Crim. Proc.
11(d)(2); United States v. Ortega-Asciano, 376 F.3d
879, 883 (9th Cir. 2004); United States v. Nagra,
147 F.3d 875, 880 (9th Cir. 1998). “Fair and just
reasons for withdrawal include inadequate Rule 11 plea
colloquies, newly discovered evidence, intervening
circumstances, or any other reason for withdrawing the plea
that did not exist when the defendant entered his
plea.” Ortega-Asciano, 376 F.3d at 883. The
district court must vacate a guilty plea that was
“unfairly obtained or given through ignorance, fear or
inadvertence.” Rubalcaba, 811 F.2d at 493
(quoting Kercheval v. United States, 274 U.S. 220,
224 (1927)). The defendant has the burden of establishing a
fair and just reason for withdrawal. See Fed. R.
Crim. Proc. 11(d)(2)(B).
the record reflects that the defendant's plea was knowing
and voluntary, and made with full understanding that the
court was not bound by any sentencing agreement, the district
court does not abuse its discretion in refusing to allow
withdrawal of the plea. United States v. Garcia, 909
F.2d 1346, 1349 (9th Cir. 1990). “Statements made by a
defendant during a guilty plea hearing carry a strong
presumption of veracity in subsequent proceedings attacking
the plea.” United States v. Ross, 511 F.3d
1233, 1236 (9th Cir. 2008). Thus, the Court need not grant
any request to withdraw when the reasons given contradict
statements made during the plea colloquy. United States
v. Castello, 724 F.2d 814, 815 (9th Cir. 1984). This
allows the court to deny a request to withdraw when the
defendant has simply changed his mind. Garcia, 909
F.2d at 1348.
Defendant's instant Motion to Withdraw Plea, he asserts
that “he was advised during discussions with Mr. Smith
if he did not accept the offered plea, the Government would
assert additional 924(c) counts against him before
trial.” (Mot. Withdraw Plea 7:9-13, 11:15-25, ECF No.
1298). Defendant also disputes the sufficiency of his factual
admissions during the plea colloquy. (Id. 8:7-9:18).
Defendant further argues that he lacked knowledge of the
charges and his legal defenses because Smith failed to
discuss and advise him. (Id. 10:4-11:12). Defendant
therefore contends that his “guilty plea was not
entered knowingly and voluntarily.” (Id.
15:13- 14). Defendant further asserts that “he is
factually and legally innocent of the charges to which he has
plead” (id. 20:1-3), and he requests an
evidentiary hearing (id. 21:14-18).
Government responds: “The plea agreement shows that the
competent, English-speaking [Defendant] understood exactly
what he was doing and, moreover, did so voluntarily.”
(Gov't Resp. 8:11-14, ECF No. 1769). While the Government
admits that Defendant “occasionally tried to hedge
during his plea colloquy, ” it explains that
“once this Court pinned him down with appropriately
pointed questions-the game-playing ceased, [and] [Defendant]
admitted the relevant facts.” (Id. 8:14-18).
Further, the Government contends that during the plea
colloquy, Defendant “never stated (or even suggested):
‘I do not want to plead guilty because I am
innocent.'” (Id. 8:18-19).
as to Defendant's argument that he was threatened with
additional counts, his answers at the change of plea hearing
belie this assertion. The Court asked Defendant: “[H]as
anyone told you that if you do not plead guilty, new,
additional charges would be brought against you?”
(Change of Plea (“COP”) Tr. 26:17-19, ECF No.
942). Defendant answered, “No.” (Id.
26:20). Defendant was allowed as much time as
needed to confer with counsel, and he did in fact discuss the
issue with Smith off the record during the hearing.
(Id. 26:9-16). Defendant now asserts that Smith told
him “if he wanted to accept the plea than [sic] he had
to answer ‘No.'” (Mot. Withdraw Plea
7:17-18). Defendant has not provided any factual basis to
demonstrate any reasonable belief for these alleged threats.
As such, he has failed to overcome the strong presumption of
veracity regarding the statement he made to the contrary
during his change of plea hearing. See Ross, 511
F.3d at 1236-37.
Sufficient Factual Basis
as to the factual basis for Defendant's plea, the Court
finds that the facts as admitted in the plea colloquy are
sufficient to support a finding of guilt. Defendant pled
guilty to Count One of the Superseding Indictment, Conspiracy
to Commit an Offense Against the United States, in violation
of 18 U.S.C. § 371, and Count Sixteen of the Superseding
Indictment, Interstate Travel in Aid of Extortion, in
violation of 18 U.S.C. § 1952(a)(2). During the change
of plea hearing, the Court first explained these crimes to
Defendant, including an enumeration of the elements of each
offense. (COP Tr. 6:22-9:5). Defendant indicated his
understanding of both crimes during this exchange with the
Court. (Id. 7:18, 9:7). Then, the Court asked
Defendant questions to determine his competency and found him
competent to enter a plea in this matter. (Id.
9:8-10:23). The Court extensively questioned Defendant as to
his understanding of his rights, and Defendant expressly
stated his understanding. The Court asked Defendant if he had
“any lingering doubts or any questions, ” and he
answered that he did not. (Id. 25:8-12). The Court
then asked how Defendant wished to plead to each count, and
he stated unequivocally, “Guilty.” (Id.
25:13-20). Defendant further agreed that he was
“pleading guilty because, in truth and in fact, [he is]
guilty and for no other reason.” (Id.
25:22-25). Subsequently, Defendant waived his right not to
testify himself in order to answer the Court's questions
relating to the facts in the Plea Agreement. (Id.
the factual assertions, the following exchange took place
between the Court and Defendant:
THE COURT: So it says here [in the Plea Agreement] that you
learned of Mr. Cliven Bundy and you initiated a telephone
call to him from New Hampshire -- to him, and he was in
Nevada, and that phone call occurred on or about April 8th of
2014. Is that correct?
THE DEFENDANT: That is correct.
. . .
THE COURT: So, Mr. Delemus, you agreed to assist Mr. ...