UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Unites States of America
v. Criminal No. 17-cr-009-LM Opinion No. 2018 DNH 199 Steven Tucker
O R D E R
On September 28, 2017, defendant Steven Tucker pleaded
guilty pursuant to Federal Rule of Criminal Procedure
11(c)(1)(C) to one count of sex trafficking of a minor in
violation of 18 U.S.C. § 1591(a). Tucker moves to withdraw his
guilty plea (doc. no. 51). The government objects. The court
held a hearing on Tucker’s motion on July 2, 2018. For the
reasons that follow, the court denies Tucker’s motion.
BACKGROUND
On January 25, 2017, Tucker was indicted on three counts:
(1) Sex Trafficking of a Minor in violation of 18 U.S.C. § 1591
(Count I); (2) Use of Interstate Facility to Promote Unlawful
Activity in violation of 18 U.S.C. § 1952 (Count II); and (3)
Maintaining Drug-Involved Premises in violation of 21 U.S.C. §
856. The following day, Tucker, who at the time was represented
by Jonathan Saxe, a public defender, waived his right to a
detention hearing and stipulated to detention. On January 31, 2017, Attorney Saxe moved to withdraw from
the case, and the court granted the motion on the following day.
On February 3, 2017, the court appointed Attorney Justin
Shepherd to represent Tucker. On August 29, 2017, the court
appointed Attorney Paul Garrity as Tucker’s co-counsel.
After several continuances, trial was scheduled for October
10, 2017. On September 28, 2017, Tucker and his two attorneys
signed a plea agreement pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C). In exchange for Tucker’s agreement to
plead guilty to Count One of the Indictment, which charged
Tucker with sex trafficking of a minor, the government agreed to
dismiss Counts Two and Three and to a stipulated sentence of 120
months’ imprisonment.
That same day, the court held a change of plea hearing.
Tucker, represented by both Attorneys Shepherd and Garrity,
stated during the plea colloquy that he had met with his
attorneys several times to discuss the plea agreement, that he
was satisfied with his attorneys’ representation, that he
understood the consequences of his plea, and that he was
entering the plea because he was guilty of the charged offense.
The court accepted Tucker’s plea of guilty as to Count One and
scheduled sentencing for January 5, 2018.
2 On November 7, 2017, Tucker filed a pro se motion
requesting that both of his attorneys be relieved. See doc. no.
37. On November 14, 2017, the court held an ex parte hearing,
during which Tucker clarified that he was dissatisfied with the
representation of Attorney Shepherd only, not Attorney Garrity.
After the hearing, the court issued an order granting “Tucker’s
requests (a) to permit Attorney Shepherd to withdraw and (b) to
appoint Attorney Garrity as lead counsel.” November 14, 2017
endorsed order.
Attorney Garrity subsequently filed two assented-to motions
to continue Tucker’s sentencing hearing, both of which the court
granted. Sentencing was ultimately scheduled for March 16,
2018.
On March 14, 2018, Attorney Garrity filed another assented-
to motion to continue the sentencing hearing. See doc. no. 46.
In that motion, Attorney Garrity represented that Tucker
“informed the undersigned counsel on March 14, 2018 that he
wishes to pursue withdrawal of his guilty plea.” Id. at 1. The
court denied the motion in an endorsed order, stating that it
would consider the request at the March 16 hearing.
At that hearing, Tucker represented that he believed that
his former counsel, Attorney Shepherd, may not have provided him
with all the relevant discovery in the case prior to Tucker
pleading guilty. The court granted Tucker an extension of time
3 to investigate the issue and to decide whether he wished to move
to withdraw his guilty plea.
On June 4, 2018, Attorney Garrity filed the instant motion
on Tucker’s behalf to withdraw Tucker’s guilty plea. See doc.
no. 51. The government objects.
DISCUSSION
A defendant may withdraw a guilty plea before the court
imposes a sentence if he shows “a fair and just reason for
requesting the withdrawal.” United States v. Sousa, 468 F.3d
42, 46 (1st Cir. 2006); see Fed. R. Crim. P. 11(d)(2)(B). In
determining whether the defendant has shown a sufficient reason
for requesting a withdrawal of his plea, the court considers
“whether the plea was voluntary, intelligent, knowing and in
compliance with Rule 11; the strength of the reasons offered in
support of the motion; whether there is a serious claim of
actual innocence; the timing of the motion; and any prejudice to
the government if the withdrawal is allowed.” United States v.
Isom, 580 F.3d 43, 52 (1st Cir. 2009) (citing United States v.
Padilla-Galarza, 351 F.3d 594, 597 (1st Cir. 2003)). The
“defendant bears the burden of demonstrating a ‘fair and just
reason’ for seeking to withdraw his plea.” United States v.
Moore, 362 F.3d 129, 134 (1st Cir. 2004). The court will
address each of the five Rule 11 factors in turn.
4 I. Voluntary, Intelligent, and Knowing Plea
The first factor—whether a plea is voluntary, intelligent,
and knowing—is the most significant factor to consider in a Rule
11(d) analysis. Isom, 580 F.3d at 52; United States v. Negrom-
Narvaez, 403 F.3d 33, 36 (1st Cir. 2005). For a plea to be
voluntary, intelligent, and knowing, the plea colloquy must
comply with Rule 11(b)(1) and the defendant must be competent to
enter the plea. United States v. Santiago Miranda, 654 F.3d
130, 132–34 (1st Cir. 2011); United States v. Ramos, 810 F.2d
308, 312 (1st Cir. 1987). The court must also “assess whether
the defendant’s plea was ‘free from coercion, . . . and whether
he understood the charges, and . . . consequences of the guilty
plea.’” United States v. McMullin, 568 F.3d 1, 9 (1st Cir.
2009) (quoting United States v. Pagan-Ortega, 372 F.3d 22, 28
(1st Cir. 2004) (alterations omitted)). Further, a defendant
may show that his guilty plea was not voluntary, intelligent,
and knowing by demonstrating that it was the product of his
attorney’s ineffective assistance. See United States v.
Fernandez-Santos, 856 F.3d 10, 17 (1st Cir. 2017); United States
v. Dunfee, 821 F.3d 120, 128 (1st Cir. 2016).
A defendant’s ineffective assistance claim in the context
of a motion to withdraw a guilty plea is analyzed under the
familiar standard articulated in Strickland v. Washington, 466
U.S. 668 (1984). See, e.g., United States v. Pellerito, 878
5 F.2d 1535, 1537 (1st Cir. 1989). The court must determine (1)
whether counsel’s performance fell below the standard of
performance of reasonably proficient counsel and (2) whether, by
such inadequate performance, the defendant was induced to enter
a guilty plea which he otherwise would not have entered. United
States v. Austin, 948 F.2d 783, 786 (1st Cir. 1991).
Tucker does not take issue with the Rule 11 colloquy at the
September 28, 2017 change of plea hearing. As Tucker and
Attorney Garrity agreed at the hearing on the instant motion,
the Rule 11 colloquy established that: Tucker was entering the
plea voluntarily; he understood the charges and factual
allegations against him; he was guilty of sex trafficking of a
minor; and he understood the consequences of pleading guilty.
Attorney Garrity also confirmed that he met with Tucker at least
six times at the prison prior to Tucker entering the plea, and
that he had a lengthy meeting with Tucker in the hours before
the change of plea hearing.
Instead, Tucker claims that his plea was not voluntary,
intelligent, and knowing because it was the product of Attorney
Shepherd’s ineffective assistance. Specifically, he argues that
Attorney Shepherd was ineffective for 1) failing to obtain
and/or provide him with all of the discovery to which he was
entitled, and 2) failing to determine that the government was
6 precluded from bringing federal charges against him in light of
his guilty plea to other charges in New Hampshire state court.
A. Tucker’s Lack of Access to Discovery
Viewed generously to Tucker, his motion raises two claims
of ineffective assistance of counsel with regard to discovery.
The first is that Attorney Shepherd provided ineffective
assistance in failing to obtain all discoverable material from
the government prior to Tucker entering his guilty plea. The
second is that Attorney Shepherd failed to provide Tucker with
all the discovery in Attorney Shepherd’s possession. The court
examines each claim in turn.
1. Government’s production of discovery
In its objection to Tucker’s motion, the government
provides a lengthy discussion of the history of its discovery
production in this case. Attorney Garrity does not dispute the
government’s representations, which the court summarizes below.
The government made several document productions to Tucker
and his various attorneys. Specifically, the government
produced discovery material to Attorney Saxe on January 30,
2017; to Attorney Shepherd on March 30, June 26, and September
25, 2017; and to Attorney Garrity on September 12 and September
25, 2017. Included in these productions were approximately
7 2,000 pages of documents and 21 discs containing recordings of
jail calls.
On May 11, 2018, in response to Tucker’s motion to withdraw
his guilty plea and his concerns about the discovery, the
government reproduced to Attorney Garrity all of the material it
had previously produced in the case. In addition, the May 11
production contained 100 additional pages of documents generated
or gathered during trial preparation, 30 of which were letters
that Tucker himself had written. Of the 70 pages Tucker and
Attorney Garrity had not yet seen, most of it was Jencks Act1
material that was favorable to the government’s case, or
material that was not discoverable under Federal Rule of
Criminal Procedure 16 and which was not helpful to Tucker’s
case, but which the government produced out of an abundance of
caution.
On May 23, 2018, Tucker and Attorney Garrity reviewed the
May 11 production in a secure private room in the United States
Attorney’s Office in the District of New Hampshire. The
government provided Attorney Garrity and Tucker with a master
index, which listed every document in the production, gave them
unlimited time to review all discovery, and made Assistant U.S.
1 18 U.S.C. § 3500.
8 Attorney Huftalen and Attorney Rao, the government’s attorneys,
available to answer any questions.
During the meeting, Tucker and Attorney Garrity raised two
issues with respect to the discovery. The first involved what
looked to be a partially-redacted police report, which contained
only the first five pages of what appeared to be a nine-page
report. The government subsequently concluded, and Tucker and
Attorney Garrity agreed, that a complete copy of the police
report was included in the May 11, 2018 production. The
government had previously produced the report to Attorney
Shepherd on May 30, 2017, and to Attorney Garrity on September
12, 2017.
The second issue involved an interview with a confidential
source, referred to as “CS9.” Tucker asserted that he believed
there was a video recording of the interview which the
government had not produced in discovery. The government
informed Attorney Garrity that it did possess a video-recorded
interview of CS9, which had not been produced because it did not
constitute Brady material.2 The government represented that the
video constituted Jencks Act material, but that it had not been
produced, in part because Tucker had agreed to plead guilty and
the government was therefore not required to produce it at that
2 Brady v. Maryland, 373 U.S. 83 (1963).
9 time. In addition, the government stated that it did not
produce the video recording because it identified, by name and
face, the witness interviewed and other victims and witnesses
whose identities the government had not yet made known to
Tucker. Although the government had not produced the video
recording itself, it had produced a report—each time it produced
discovery—that accurately summarized the full video interview.
Nevertheless, to alleviate Tucker’s apparent concerns that the
government was withholding certain information, the government
arranged for Attorney Garrity to view the full video-recorded
interview, which Attorney Garrity did. At the hearing, Attorney
Garrity represented that the video did not contain information
helpful to the defense.
In light of the foregoing, Tucker has failed to show that
Attorney Shepherd provided ineffective assistance in connection
with obtaining the relevant discovery. It is plainly apparent,
and Tucker and Attorney Garrity do not meaningfully dispute,
that the government complied with its discovery obligations in
this case prior to Tucker entering into the plea agreement.
Therefore, to the extent Tucker bases his ineffective assistance
claim on Attorney Shepherd’s alleged failure to obtain relevant
discovery from the government, that argument is not persuasive.
10 2. Tucker’s access to discovery
Tucker claims that Attorney Shepherd provided ineffective
assistance because he did not give Tucker access to all the
discovery the government produced. At the hearing on the
instant motion, Tucker stated that because the discovery in this
case is subject to a protective order, see doc. no. 15, he was
unable to retain any material in prison. Rather, he was limited
to viewing discovery during brief visits with his attorneys.
Tucker asserts that Attorney Shepherd visited him only a handful
of times, each lasting approximately 20 minutes, and that Tucker
was therefore unable to review much of the discovery the
government produced.
Tucker has not met the standard for ineffective assistance
of counsel with respect to his claim concerning his access to
discovery. Even assuming Attorney Shepherd’s actions in
allegedly not allowing Tucker to view all of the material
produced by the government fell below the standard of
performance of reasonably proficient counsel, Tucker has not
shown that Attorney Shepherd’s conduct induced Tucker to enter a
guilty plea which he otherwise would not have entered.
Prior to entering his guilty plea, Tucker raised the issue
that he had not seen firsthand all of the discovery produced by
the government. According to Attorney Garrity, he met with
Tucker for an hour before the change of plea hearing and asked
11 him whether he wanted to continue the hearing to have an
opportunity to review all the discovery. Tucker responded that
he did not. Therefore, Tucker was aware of the issue prior to
the change of plea hearing, and voluntarily decided to plead
guilty despite believing that he did not review all of the
discovery. Cf. Isom, 580 F.3d at 46 (holding that defendant was
not entitled to withdraw guilty plea despite his concerns about
insufficient time to review discovery materials prior to
entering his plea).
In addition, Tucker fails to identify any piece of
discovery he had not previously seen that would have affected
his decision to enter into his guilty plea. At the hearing on
the instant motion, Tucker appeared to suggest that certain
additional discovery he has seen since entering his guilty plea
would have allowed him to attack the credibility of some of the
confidential informants. He was unable, however, to identify
any piece of information or specific discovery of which he was
previously unaware that would bolster his defense. See id. at
53 (holding that defendant’s claims concerning his lack of
access to discovery did not entitle him to withdraw his guilty
plea when “the newly discovered evidence was not exculpatory”).
In addition, Attorney Garrity represented at the hearing
that prior to Tucker entering his guilty plea, Attorney Garrity
explained to Tucker that there were areas to attack some of the
12 witnesses’ credibility. Ultimately, however, Attorney Garrity
recommended that in light of the evidence against Tucker and the
terms offered by the government, Tucker should accept the guilty
plea. At the hearing on the instant motion, Attorney Garrity
represented that having re-reviewed every piece of discovery
provided by the government, his recommendation to Tucker to
enter into the plea agreement would have remained the same.
In the end, as Tucker stated at the hearing, his claim is
essentially that he came to realize after entering his plea that
he had a better shot at obtaining a not guilty verdict after a
trial than he believed when he entered the guilty plea. That is
insufficient to warrant withdrawal of a guilty plea. See United
States v. Muriel, 111 F.3d 975, 981 (1st Cir. 1997) (noting that
the First Circuit “has not allowed defendants, absent coercion
or mistake, to renege on plea agreements on the basis that they
have miscalculated their risks and benefits or have belatedly
discovered a new defense”); United States v. Leland, 370 F.
Supp. 2d 337, 342 (D. Me. 2005) (holding that a defendant’s
motion to withdraw a guilty plea “must ‘rest on more than the
defendant’s second thoughts about some fact or point of law, or
about the wisdom of his earlier decision.’” (quoting United
States v. Parrilla–Tirado, 22 F.3d 368, 371 (1st Cir. 1994)),
aff’d, 196 F. App’x 9 (1st Cir. 2006). That is particularly the
case in light of Attorney Garrity’s representation that, having
13 again reviewed all of the discovery provided by the government,
his recommendation to Tucker to enter into his guilty plea would
not have changed.
3. Investigator’s reports
At the hearing, Tucker raised an additional issue with
regard to Attorney Shepherd’s alleged failure to provide him
with material that would have helped him make an informed
decision on whether to plead guilty. At Tucker’s request,
Attorney Shepherd hired a private investigator to interview
several witnesses who Tucker believed could be helpful to his
case. According to Tucker, the private investigator interviewed
only three or four of these individuals. Although Tucker’s
argument was somewhat unclear at the hearing, he appears to
contend that although Attorney Shepherd told Tucker that the
private investigator had uncovered no helpful information, he
failed to inform Tucker that the private investigator had been
unable to interview many of the witnesses.
Attorney Garrity explained at the hearing that according to
the private investigator’s reports, the investigator had
traveled to North Carolina and South Carolina in an effort to
interview the witnesses Tucker requested but was unsuccessful in
locating several of them. According to Attorney Garrity, the
interviews the private investigator conducted, which Attorney
14 Garrity read after Tucker entered into his guilty plea, were not
helpful to Tucker’s case.
Tucker’s argument as to the private investigator is
unclear. Attorney Shepherd hired a private investigator at
Tucker’s request and the investigator conducted interviews with
certain witnesses who Tucker believed had information helpful to
the defense. The investigator interviewed three or four of the
witnesses, none of whom had information helpful to Tucker, and
was unable to locate and interview any other witnesses. Tucker
has not shown how Attorney Shepherd’s apparent failure to inform
him that the private investigator could not locate certain
witnesses, as opposed to informing him that the investigator had
uncovered no helpful information, amounts to ineffective
assistance of counsel. Nor does Tucker represent that had he
been aware of that fact, he would not have pleaded guilty.
For these reasons, Tucker has not shown that Attorney
Shepherd’s discovery-related conduct rises to the level of
ineffective assistance of counsel.
B. Government’s Agreement not to Pursue Charges
Tucker also argues that Attorney Shepherd was ineffective
for failing to preclude the government from bringing federal
charges against him in light of his guilty plea to related
charges in state court. Specifically, Tucker asserts that the
15 U.S. Attorney’s Office had agreed not to bring sex trafficking
charges against him in exchange for him agreeing to plead guilty
to prostitution charges in New Hampshire Superior Court.
Shortly before the hearing on Tucker’s motion to withdraw
his guilty plea, the government filed an affidavit from former
Assistant United States Attorney Nick Abramson. See doc. no.
58. In his affidavit, Attorney Abramson states that he was
involved in the investigation into Tucker on federal sex
trafficking charges in 2015. He further states:
On or about April 27, 2016, Assistant County Attorney Michael Zaino informed me of a potential state plea agreement in which the defendant would plead guilty to one count of misdemeanor prostitution, with CS1 as the victim, and two felony heroin possession charges on a separate state drug case that arose from the same transaction as the federal drug investigation. The proposed sentences totaled 24 months minus approximately 259 days of credit, as well as a suspended sentence of 7.5 to 10 years to run consecutively.
I informed ACA Zaino of my opinion that, based on my understanding of the evidence in the state’s case, the plea offer seemed reasonable. I further informed ACA Zaino that the USAONH would not continue to investigate Mr. Tucker for violations of federal drug trafficking laws if Mr. Tucker pleaded guilty to state drug charges, because the two investigations involved the same transactions and because I felt that the federal interest had been vindicated by the successful state prosecution.
Id. at ¶¶ 10-11.
Although Attorney Abramson asserts that he informed
Attorney Zaino that the U.S. Attorney’s Office would not
16 continue to investigate Tucker for drug charges related to his
state court plea, he states that he did not make any such
representation as to federal sex trafficking violations. In
addition, Attorney Abramson states that he submitted a formal
declination authorization memorandum on April 29, 2016 to
recommend closing the investigation of Tucker for federal drug
charges, but he specifically recommended proceeding with the
federal sex trafficking charges.
Although Attorney Abramson’s sworn representations show
that the government had not agreed to forego bringing federal
sex trafficking charges against Tucker in exchange for his state
court plea, his affidavit raised an issue as to Count III, the
charge of Maintaining Drug-Involved Premises. Specifically,
Attorney Abramson’s affidavit was unclear as to whether the
government made a promise to forego bringing federal drug
charges against Tucker in light of his guilty plea to state drug
charges. On July 12, 2018, the court ordered the government to
“file a memorandum with any supporting documentation concerning:
a) whether it made a promise not to bring federal drug charges
against defendant and b) if it made a promise, how that promise
affects defendant’s motion to withdraw his guilty plea in this
case.” Doc. no. 59 at 1-2.
In response to the court’s order, the government filed a
memorandum (doc. no. 62), a supplemental affidavit of Attorney
17 Abramson (doc. no. 62-1), and an affidavit of Attorney Zaino
(doc. no. 62-2). In Attorney Abramson’s affidavit, he clarified
that he did not make, or authorize Attorney Zaino to make, any
promise or representation to Tucker or Tucker’s attorney that
the government would take or refrain from taking any action with
respect to federal drug charges in light of Tucker’s state court
plea. Rather, Attorney Abramson informed Attorney Zaino that in
light of Tucker’s prior guilty plea in state court to a drug
charge arising from a single drug transaction that occurred on
July 24, 2014, the U.S. Attorney’s Office would decline to bring
charges based on that transaction. Although Attorney Abramson
made that representation to Attorney Zaino and submitted the
declination authorization memorandum to that same effect, he did
not authorize Attorney Zaino, or anyone else, to make any
representation to Tucker.
In Attorney Zaino’s affidavit, he states that he “did not
make any representations or promises to Mr. Tucker or his
attorney regarding whether the [U.S. Attorney’s Office] would
take, or refrain from taking, any action with respect to any
federal drug charges.” Doc. no. 62-2 at ¶ 13. In addition, the
government provided an excerpt from Tucker’s June 14, 2016 plea
colloquy in state court, during which Tucker represented that no
one had made any promises to him in exchange for his plea. See
doc. no. 62 at 4.
18 In response to the government’s filing, Attorney Garrity
submitted a supplemental memorandum on Tucker’s behalf. See
doc. no. 64. In his memorandum, Attorney Garrity represented
that he had spoken to Tucker’s attorney in the state court
proceedings, Joseph Fricano, who confirmed that he and Attorney
Zaino had not discussed potential federal drug charges during
their plea negotiations. Attorney Garrity further represented
that the government gave him access to emails between Attorneys
Abramson and Zaino, and that the emails showed no
representations from Attorney Abramson that federal drug charges
would be dropped or not pursued as a condition of Tucker’s state
court plea agreement. Attorney Garrity added: “For the above
stated reasons and after conferring with the defendant on this
matter the defendant cannot represent to this Court that he pled
guilty in State Court as a result of a promise that he would not
be charged in Federal Court with federal drug charges.” Doc.
no. 64 at ¶ 3.
In light of the government’s and Attorney Garrity’s
supplemental filings, the court finds that Tucker has not made
out an ineffective assistance of counsel claim based on the
state court charges.
19 C. Summary
For these reasons, the record shows that Tucker’s plea was
knowing, voluntary, and intelligent. Therefore, the first Rule
11 factor weighs against granting Tucker’s motion to withdraw
his guilty plea.
II. Strength of Reasons/Serious Claim of Actual Innocence
The second Rule 11 factor is the strength of the
defendant’s reasons for seeking to withdraw his guilty plea, and
the third is whether the defendant asserts a serious claim of
actual innocence. Isom, 580 F.3d at 52. Because the court has
already considered and found unpersuasive two of Tucker’s three
reasons for seeking to withdraw his plea (i.e., issues related
to discovery and his claim that the government agreed not to
bring charges against him), the court need not further address
those two reasons. As the third reason for Tucker seeking to
withdraw his plea is a claim of actual innocence, the court
moves directly to an analysis of the third Rule 11 factor: the
seriousness of the defendant’s claim of actual innocence.
“The First Circuit has said that courts should look more
hospitably on a motion to withdraw a guilty plea when the motion
is coupled with an assertion of innocence.” United States v.
Ketchen, No. 1:13-CR-00133-JAW-02, 2016 WL 3676150, at *21 (D.
Me. July 6, 2016) (internal quotation marks and citations
20 omitted), aff’d, 877 F.3d 429 (1st Cir. 2017). “On the other
hand, if the defendant does not proclaim his actual innocence,
this factor cuts sharply against allowing appellant’s motion to
withdraw [his] guilty plea.” Id. (internal quotation marks and
citations omitted). Even where a defendant asserts actual
innocence, such an assertion must be “serious,” and provide a
“straightforward and plausible claim of actual innocence.”
Padilla-Galarza, 351 F.3d at 598. “A general denial of guilt is
not enough; the defendant ‘must affirmatively advance an
objectively reasonable argument that he is innocent.’” United
States v. Small, 626 F. Supp. 2d 130, 133 (D. Me. 2009) (quoting
United States v. Cray, 47 F.3d 1203, 1209 (D.C. Cir. 1995)),
aff’d, 640 F.3d 425 (1st Cir. 2011).
In a handwritten exhibit attached to his motion to withdraw
his guilty plea, Tucker stated: “I, Steven Tucker, having
reflected on the matter and after reviewing the discovery that
had been prevented [sic] to me as of this date assert that I am
innocent of the charge to which I previously plead [sic] in this
court.” Doc. no. 51-1. At the July 2 hearing on the instant
motion, the court sealed the courtroom and allowed Tucker on an
ex parte basis an opportunity to present his reasons for seeking
to withdraw his guilty plea. Tucker did not at that time
articulate a claim of actual innocence.
21 To the extent Tucker attempts to assert a claim of actual
innocence, his claim is not serious. The government detailed in
its objection the overwhelming evidence in its possession
against Tucker, including the statements of at least 10
witnesses. Tucker offered no plausible claim that he is
innocent of the charge to which he pleaded guilty. At most, he
offered protestations regarding the credibility of certain
witnesses. He made no argument that supported a finding—or even
a suggestion—that he was innocent of this charge. Without more,
Tucker’s claim of actual innocence is a bare claim, unsupported
by evidence or a theory of innocence. See Dunfee, 821 F.3d at
131 (noting that a court considering a motion to withdraw a
guilty plea need not credit a “claim of innocence . . . backed
only by conclusory allegations and wishful conjecture as to the
possible existence of exculpatory evidence”); United States v.
Sanchez–Barreto, 93 F.3d 17, 24 (1st Cir. 1996) (affirming
district court’s denial of motion to withdraw guilty plea,
noting that a “district court need not credit bare protestations
of legal innocence”); United States v. Isom, 85 F.3d 831, 839
(1st Cir. 1996) (“[I]f defendant’s factual contentions create no
legally cognizable defense to the charges, he has not
effectively denied his culpability, and the motion [to withdraw
a guilty plea] can be denied.” (internal quotation marks and
22 citations omitted)). Both the second and third Rule 11 factors
weigh against granting Tucker’s motion.
III. Timing of the Motion
The fourth Rule 11 factor is the timing of the motion.
“The timing of a motion to withdraw a guilty plea is important
. . . because it is ‘highly probative of motive.’” Fernandez-
Santos, 856 F.3d at 18 (quoting United States v. Doyle, 981 F.2d
591, 595 (1st Cir. 1992)). “‘While an immediate change of heart
may well lend considerable force to a plea withdrawal request, a
long interval between the plea and the request often weakens any
claim that the plea was entered in confusion or under false
pretenses.’” Id. (quoting Doyle, 981 F.2d at 595).
Tucker pleaded guilty on September 28, 2017. On March 14,
2018, Tucker moved to continue his sentencing, raising for the
first time with the court that he wished to pursue withdrawing
his guilty plea. Thus, there is a five-and-a-half-month gap
between Tucker’s plea and the first formal notice to the court
that he wanted to withdraw his plea. Such a lengthy delay
between a defendant’s plea and his motion to withdraw generally
weighs against granting the motion. See, e.g., Dunfee, 821 F.3d
at 131 (holding that two-month delay between plea and motion to
withdraw was “extended” and “weighs against permitting
withdrawal”).
23 At the hearing, however, Tucker represented to the court
that he had raised his request to withdraw his guilty plea with
his attorneys at some point shortly after he entered into his
plea agreement, which was part of the reason for his filing his
motion for status of counsel on November 7, 2017. Attorney
Garrity did not dispute Tucker’s representation.
The court credits Tucker’s assertion at the hearing that he
attempted to notify the court that he intended to move to
withdraw his guilty plea on November 7, 2017. Thus, for
purposes of the fourth Rule 11 factor, the court will consider
the November 7, 2017 date, which is 40 days after Tucker entered
his guilty plea, as the operative date of Tucker’s motion to
withdraw.
Even with that favorable inference, however, the timing of
Tucker’s motion to withdraw his guilty plea does not weigh in
his favor. The First Circuit has held that delays of shorter
duration than presented here weighed against granting a
defendant’s motion to withdraw his guilty plea. See Ramos, 810
F.2d at 313 (thirteen-day delay); United States v. Keefe, 621
F.2d 17, 20 (1st Cir. 1980) (twenty-day delay). Thus, the court
considers the timing of Tucker’s motion a factor that weighs
against allowing Tucker to withdraw his guilty plea.
24 IV. Prejudice to the Government
The final Rule 11 factor asks whether there is any
potential prejudice to the government if the court permits the
defendant to withdraw his guilty plea. In short, significant
prejudice would result from a withdrawal of Tucker’s guilty
plea. Allowing Tucker to withdraw his plea would, according to
the government, force numerous government witnesses, many of
whom have been subjected to physical violence by Tucker and one
of whom is a minor, to “relive and recount a traumatic part of
their lives that they believed was far behind them.” Doc. no.
53 at 24. Many government witnesses have suffered from opioid
addiction and have attempted, sometimes more than once, to stay
clean. In addition, almost all witnesses and victims “have
expressed fear of the defendant, shame in discussing personal
details of a dark period in their lives, and immense relief that
the case, and this chapter of their lives, had finally come to a
close.” Id.
In light of these circumstances, the court finds that the
final Rule 11 factor weighs heavily against allowing Tucker to
withdraw his guilty plea. See United States v. Santiago-Rivera,
805 F.3d 396, 398 (1st Cir. 2015) (“We also recognize the severe
prejudice that the government would face were Santiago–Rivera
permitted to withdraw his guilty plea, and the burden that his
victims would face were they forced to relive the trauma
25 inflicted upon them so long after they believed this case had
ended.”); see also Dunfee, 821 F.3d at 131 (“Finally, we find
that both the government and Dunfee’s victims would have been
prejudiced by a withdrawal of his plea, further tipping the
scales in favor of affirmance.”).
V. Summary
In sum, all five of the Rule 11 factors weigh against
allowing Tucker to withdraw his guilty plea. This court finds
the fifth factor—the prejudice to the government and its
witnesses—particularly weighty. The court therefore denies
Tucker’s request to withdraw his guilty plea.
CONCLUSION
For the foregoing reasons, the defendant’s motion to
withdraw his guilty plea (doc. no. 51) is denied.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
October 4, 2018
cc: Paul J. Garrity, Esq. Arnold H. Huftalen, Esq. Vasantha R. Rao, Esq. U.S. Probation U.S. Marshal