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United States v. Delemus

United States District Court, D. Nevada

May 9, 2017



          Gloria M. Navarro, United States District Court Chief Judge

         Pending 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.

         I. BACKGROUND

         On 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).

         On 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).

         On 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 No. 1454).


         A 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).

         When 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.


         In 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).

         The 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).

         A. Additional Counts

         First, 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).[1] 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.

         B. Sufficient Factual Basis

         Next, 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. 27:6-15).

         As to 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. ...

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