Free Order on Motion for Miscellaneous Relief - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8

WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA United States of America, ) ) ) ) ) ) ) ) ) ) No. CR 03-1167-16-PHX-DGC ORDER

9 Plaintiff, 10 vs. 11 Robert S. McKay, 12 Defendant. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant Robert McKay has filed a motion to withdraw from his guilty plea. Doc. #1291. The Government has responded (Doc. #1320) and Defendant has filed a reply (Doc. #1333). On February 16, 2006, Defendant Robert McKay pled guilty during a colloquy that complied with Rule 11 of the Federal Rules of Criminal Procedure. Doc. #1275. The Court accepted his plea. Defendant McKay has not been sentenced. A defendant may withdraw from a guilty plea after acceptance of the plea and before sentencing if "the defendant can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. Pro. 11(d)(2)(B). The burden is on the defendant to establish a fair and just reason. See United States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005). Defendant McKay asserts two reasons. First, he argues that the Government has acted in bad faith. He claims that the Government had no intention of proceeding to trial and that he was incarcerated unnecessarily before trial. Defendant suggests that it was bad faith for the Government to
Document 1342 Filed 03/28/2006 Page 1 of 3

Case 2:03-cr-01167-DGC

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

negotiate his misdemeanor plea agreement when it had no intention of proceeding with this case. The Court has concluded on several occasions that the Government has not acted in bad faith. The Court has reached this conclusion with respect to the Government's discovery practices (Doc. ##1132, 813) and with respect to its recent decision to dismiss charges against some defendants (Doc. #1308). Defendant McKay provides no additional evidence of bad faith. The Court accordingly concludes that Defendant McKay has not satisfied his burden of establishing bad faith as a reason for withdrawing from his guilty plea. Second, Defendant McKay argues that the Government would have dismissed the charges against him if he had refused to plead guilty, a fact not disclosed to him at the time of his plea negotiations. Had this fact been disclosed, Defendant McKay asserts, he never would have accepted the plea agreement. Defendant McKay appears to rest his argument on the fact that the Government dismissed charges against three other Defendants who did not enter plea agreements. The Court notes, however, that the Government declined to drop charges against Defendant Jaime, even following dismissal of the other defendants, leading to Defendant Jaime entering a guilty plea. The Court also notes that Defendant Ward initially sought to withdraw from his guilty plea but subsequently withdrew his motion. The Government asserts that Defendant McKay is mistaken in believing that charges against him would have been dropped. Doc. #1320 at 5. Other than the dismissal of charges against three of the sixteen defendants in this case, Defendant McKay provides no evidence that the Government would have dismissed the charges against him. Defendant McKay has provided no authority for the proposition that a criminal defendant may withdraw from his guilty plea if he could have obtained a more favorable deal by refusing to plead. Even assuming such circumstances would provide a just and fair reason for withdrawal, the Court finds that Defendant McKay has not carried his burden proving that such circumstances exist in his case.

-2Case 2:03-cr-01167-DGC Document 1342 Filed 03/28/2006 Page 2 of 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant McKay does not claim to be innocent of the charge to which he pled guilty, does not deny the factual basis of his plea, confirmed under oath on February 16, 2006, and does not allege that his attorney has been ineffective, that he did not understand the plea colloquy, or that he misunderstood the rights he was waiving by entering the plea agreement. Rather, it appears that Defendant McKay is dissatisfied with his plea agreement in light of the subsequent dismissal of charges against other defendants. The Court does not find that such post-plea dissatisfaction constitutes a fair and just reason for permitting Defendant McKay to withdraw from his valid guilty plea. Defendant McKay asks the Court to accelerate his sentencing. The Court will direct its staff to contact counsel for the Government and counsel for Defendant McKay to see if an accelerated sentencing hearing can be scheduled. IT IS ORDERED that Defendant's motion to set aside his plea agreement (Doc. #1291) is denied. DATED this 27th day of March, 2006.

-3Case 2:03-cr-01167-DGC Document 1342 Filed 03/28/2006 Page 3 of 3