Free Response to Motion - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona TIMOTHY T. DUAX KEITH E. VERCAUTEREN Assistant U.S. Attorneys Arizona State Bar No. 012694 & 013439 Two Renaissance Square 40 North Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 [email protected] [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America CR-03-1167-16-PHX-DGC Plaintiff, v. Robert McKay, Defendant. The United States of America, by and through its attorney undersigned, hereby responds UNITED STATES' RESPONSE TO MOTION TO SET ASIDE PLEA AGREEMENT AND NOTICE OF JOINDER

15 to defendant ROBERT McKAY's Motion to Set Aside Plea Agreement and Notice of Joinder. 16 Defendant McKAY has knowingly, voluntarily and intelligently entered into a plea with the 17 assistance of counsel and the plea should not be set aside by this Court. The United States 18 requests that the Motion to Set Aside Plea Agreement be denied, and it follows that the Notice 19 of Joinder is therefore moot. Pursuant to Rule 11(b) of the Federal Rules of Criminal Procedure, 20 this Court has properly accepted defendant McKAY's plea of guilty as set forth in the attached 21 Memorandum of Points and Authorities. 22 23 24 25 26 27 28 s/ Keith E. Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney Respectfully submitted this 16th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

Case 2:03-cr-01167-DGC

Document 1320

Filed 03/16/2006

Page 1 of 9

1 2 I. FACTS 3

MEMORANDUM OF POINTS AND AUTHORITIES

Defendant McKAY was charged in the Second Superseding Indictment with the

4 following charges: Count 6, Violent Crime in Aid of Racketeering, Count 8, Violent Crime in 5 Aid of Racketeering, and Count 9, Threatening a Federal Officer. 6 On June 21, 2000, ROBERT McKAY engaged in an assault upon William Potter as

7 outlined in Count 6 of the Second Superseding Indictment. This assault was done in order to 8 terminate Mr. Potter's relationship with the Hells Angels Motorcycle Club ("HAMC"). 9 Defendant McKAY used a flash light to beat Mr. Potter repeatedly, and Mr. Potter suffered 10 significant physical injuries. 11 On August 31, 2004, Defendant McKAY had contact with an agent working for the

12 Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") at a bar in Tucson, Arizona. 13 Defendant McKAY told the ATF agent that he knew who the ATF agent was and made various 14 threats of physical harm against the ATF agent. Defendant McKAY believed that this agent was 15 an undercover agent who worked on this investigation of the HAMC, and McKAY threatened 16 to assault the agent for his involvement in the investigation. On September 1, 2004, the 17 defendant was charged by complaint for threatening the ATF agent. (See Attachment A, 18 Affidavit for Complaint). 19 After being charged with this new crime, defendant McKAY received a hearing regarding

20 the issue of detention. In Judge Velasco's Order of Detention dated September 10, 2004, he 21 stated that there was probable cause to believe that the defendant has committed an offense, that 22 the defendant was a serious flight risk, and that the defendant was a serious risk to the safety of 23 another person or the community. Magistrate Judge Virginia Mathis then affirmed Magistrate 24 Judge Velasco's findings on October 6, 2004. 25 On January 12, 2005, defendant McKAY filed a motion to review the magistrate's

26 detention order, and on March 7, 2005, a hearing was held to resolve that motion. On March 22, 27 2005, this Court signed its Order denying the defendant's motion and affirming Magistrate Judge 28 2
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1 Velasco's Order of Detention. In its Order, this Court found that the defendant presented a 2 danger to the community that could not be resolved short of detention. 3 On February 16, 2006, defendant McKAY entered into a plea agreement with the United

4 States, in which he pled guilty to threatening a federal officer. McKAY was represented by 5 counsel at the time he entered into the plea. Before this Court accepted defendant McKAY's 6 plea agreement, this Court advised the defendant of numerous rights he was giving up by 7 pleading guilty. This Court fully advised the defendant of his rights and the defendant stated 8 under oath that he understood those rights and that he wished to give up those rights and plead 9 guilty. In response to the court's questioning, the defendant stated under oath that he was 10 satisfied with the services of his attorney; that he understood and wanted to waive the rights that 11 had been explained to him; that he understood the nature of the charges against him and the 12 maximum penalties; that he understood and agreed to be bound by the terms of the plea 13 agreement; and, that no one had forced, coerced, threatened or promised him anything to plead 14 guilty. This Court found that the defendant entered into the plea agreement voluntarily, 15 knowingly and intelligently. 16 This Court also questioned defendant McKAY extensively under oath about the crime

17 he committed. Defendant McKAY admitted under oath to the following Factual Basis: 18 Defendant ROBERT S. McKAY is a member of the Tucson, Arizona chapter of the Hells

19 Angels Motorcycle Club (HAMC). Defendant McKAY knew on August 31, 2004, that Agent 20 Dobyns worked as an undercover law enforcement officer investigating the HAMC. On August 21 31, 2004, ROBERT S. McKAY told Agent Dobyns, "Big football star, huh?" Agent Dobyns 22 replied, "Oh, you've been checking on me." ROBERT S. McKAY asked Agent Dobyns, "What 23 names do you go by nowadays?" ROBERT S. McKAY then saw Agent Dobyns' hand shaking, 24 and stated, "You shouldn't smoke, it makes you look nervous." Agent Dobyns replied, "I wasn't 25 nervous when I was under on you guys, why should I be nervous now." ROBERT S. McKAY 26 replied, knowing Agent Dobyns was referring to the Hells Angels and with the intent to 27 intimidate Agent Dobyns, "That's just the way you are, a nervous little punk bitch." 28 3
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1

After the defendant admitted to the above crime, the Court accepted defendant McKAY's

2 guilty plea, and specifically found the existence of a factual basis for the plea and that the plea 3 was knowingly and voluntarily made with an understanding of the consequences. 1/ 4 II. LEGAL ANALYSIS 5 A defendant has no legal right to withdraw his guilty plea after it has been accepted by

6 the district court. United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995); United States v. 7 Meyers, 993 F.2d 713, 714 (9th Cir. 1993); see also United States v. Hodges, 259 F.2d 655, 661 8 (7th Cir. 2001)(Rule 11(d)(2) "is not a free-swinging backdoor"). After the district court has 9 accepted a defendant's guilty plea, but prior to sentencing, a defendant can withdraw his guilty 10 plea only by showing a fair and just reason for withdrawal. Fed.R.Crim.P. 11(d)(2)(B); United 11 States v. Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003); United States v. King, 257 F.3d 1013, 12 1022 (9th Cir. 2001). "Fair and just reasons for withdrawal include inadequate Rule 11 plea 13 colloquies, newly discovered evidence, intervening circumstance, or any other reason for 14 withdrawing the plea that did not exist when the defendant entered the plea." United States v. 15 Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004); United States v. Turner, 898 F.2d 705, 713 16 (9th Cir. 1990); United States v. Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987). 17 A defendant has no "right" to withdraw his plea and the defendant bears the burden of

18 showing a fair and just reason. Nostratis, 321 F.3d at 1208; Rios-Ortiz, 830 F.2d at 1069. The 19 decision whether to permit a defendant to withdraw his guilty plea is committed to the sound 20 discretion of the district court. United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir. 2001); Rios21 Ortiz, 830 F.2d at 1069. The district court's denial of a defendant's motion to withdraw a guilty 22 plea is reviewed for abuse of discretion. United States v. Nostratis, 321 F.2d at 1208. 23 Defendant has not met his burden of demonstrating a fair and just reason for withdrawal

24 of his guilty plea. As the Supreme Court succinctly pointed out, to permit withdrawal of a 25 guilty plea without any reason whatsoever "debases" the judicial proceedings at the change of 26 plea and subsequent acceptance of the defendant's guilty plea. United States v. Hyde, 520 U.S. 27 670, 676 (1997) (Hyde II). The United States Supreme Court in Hyde stated: 28
1/

This Court accepted defendant McKAY's guilty plea on February 16, 2006.

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Not only is the Court of Appeals holding contradicted by the very language of the Rules, it also debases the judicial proceeding at which a defendant pleads and the court accepts his plea. After the defendant has sworn in open court that he actually committed the crimes, after he has stated that he is pleading guilty because he is guilty, after the court has found a factual basis for the plea, and after the court has explicitly announced that it accepts the plea, the Court of Appeals would allow the defendant to withdraw his guilty plea simply on a lark. The Advisory Committee, in adding the "fair and just reason" standard to Rule 32(e) in 1983, explained why this cannot be so: "Given the great care with which pleas are taken under [the] revised Rule 11, there is no reason to view pleas so taken as merely `tentative' subject to withdrawal before sentence whenever the government cannot establish prejudice. `Were withdrawal automatic in every case where the defendant decided to alter tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but a "grave and solemn act' which is "accepted only with care and discernment." ` " Advisory Committee Notes on Fed. Rule Crim. Proc. 32, 18 U.S.C.App., p. 794 (quoting United States v. Barker, 514 F.2d 208, 221 (C.A.D.C. 1975) (quoting Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970)). We think the Court of Appeals holding would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess.

14 Hyde, 117 S.Ct. at 1634. 15 Such is the chess game being played here. Defendant McKAY plead guilty under oath.

16 He swore that he understood the penalties, that he understood the plea agreement, that he went 17 through the entire plea agreement with the help of his attorney. This Court evaluated his 18 demeanor, his answers to the questions, his competency to plead guilty, and concluded that 19 defendant was competent to plead guilty, understood his rights and understood the penalties. 20 This Court then accepted defendant McKAY's guilty plea. Defendant now no longer wishes to 21 be sentenced according to the plea agreement that he entered into, and asks this Court to simply 22 let him out of it. 23 Defendant McKAY mistakenly believes that had he not pled guilty, his case would have

24 been dismissed. A defendant's belief that he was less culpable than the other defendants and 25 should receive a more lenient sentence is not a "fair and just" reason to withdraw his guilty plea. 26 See United States v. Turner, 898 F.2d 705, 713 (9th Cir. 1990)(holding defendant's claim that 27 "I feel that I am being blamed for a lot of stuff I didn't do" was not a "fair and just" reason to 28 withdraw a guilty plea). A defendant's change of heart, even in good faith, and unsupported 5
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1 protestations of innocence, have been consistently rejected as fair and just reasons for 2 withdrawal. Turner, 898 F.2d at 713; Rios-Ortiz, 830 F.2d at 1069. 3 Defendant McKAY "points to no evidence in the record that [his] plea was involuntary

4 at the time [he] entered it." See United States v. Lopez-Armenta, 400 F.3d. 1173, 1176 (9th Cir. 5 2005). To the contrary, at the Rule 11 colloquy, this Court carefully advised the defendant of 6 his constitutional rights and his right to persist in a not guilty plea. The Court told the defendant 7 that if he pled guilty, there would be no trial. The defendant specifically agreed to waive that 8 right. The defendant said that he had read the plea agreement and discussed it with his lawyer. 9 Based on the defendant's sworn testimony at the change of plea hearing, this Court should have 10 no doubt that he understood the nature of the charges and the consequences of the plea, that the 11 plea was freely and voluntarily made. This Court is entitled to credit defendant's testimony at 12 the change of plea hearing over his subsequent declarations in support of his motion to withdraw 13 his guilty plea. See United States v. Moore, 599 F.2d 310, 314 (9th Cir. 1979) and United States 14 v. Rubalcaba, 811 F.2d 491, 494 (9th Cir. 1987) ("Solemn declarations in open court carry a 15 strong presumption of verity."); Nostratis, 321 F.3d at 1209-12 (district court may choose to 16 credit defendant's earlier declarations over subsequent statements made weeks later); United 17 States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984) (in rejecting defendant's request to 18 withdraw guilty plea, "[t]he court was entitled to credit [defendant's] testimony at the Rule 11 19 hearing over her subsequent affidavit"). 20 This is a case in which the defendant elected to enter a guilty plea in a valid court

21 proceeding, and this Court did everything in its power to find a knowing, intelligent and 22 voluntary plea. As a result, the Federal Rules of Criminal Procedure and United States Supreme 23 Court precedent prevent the defendant from withdrawing from that plea unless he provides a fair 24 and just reason for doing so. Defendant McKAY has not provided a fair and just reason for 25 being allowed to set his guilty plea aside. 26 The United States also requests the Court to consider two cases where a defendant

27 requested to set aside a plea agreement after sentencing by claiming some error by the 28 government. A guilty plea cannot be withdrawn after sentencing unless a "manifest injustice" 6
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1 would result. United States v. Baker, 790 F.2d 1437, 1438 (9th Cir. 1986). In Baker, the 2 defendant pleaded guilty to tax evasion and distribution of narcotics. He argued that he was 3 induced to plead guilty by a recklessly erroneous or willfully false statement by the prosecutor 4 as to what witnesses would testify as to Baker's drug activities. Id. The Court found that no 5 manifest injustice would occur if the plea were not set aside, because there existed no 6 "fundamental defect which inherently results in a complete miscarriage of justice" or "an 7 omission inconsistent with the rudimentary demands of fair procedure." Id., citing Hill v. United 8 States, 368 U.S. 424, 428 (1962). 9 The second case where the defendant requested to set aside his plea after sentencing dealt

10 with a defendant who did not deny he was guilty (same as defendant McKAY). Having freely 11 entered into a guilty plea, the Court cannot find a manifest injustice exists when the defendant 12 does not deny his guilt of the charged offense. In the United States v. Nagra, the co-defendants 13 pleaded guilty to smuggling illegal aliens and defrauding the United States. United States v. 14 Nagra, 147 F.3d 875 (9th Cir. 1998). The defendants later moved to set aside the plea, stating 15 the United States had withheld information that may have undermined part of the government's 16 case, though they never claimed to have been innocent. "There can be no manifest injustice in 17 denying a defendant's request to withdraw from a guilty plea when there is no valid allegation 18 that the defendant is not guilty of the crime to which they have plead guilty." Id. at 880. 19 Defendant McKAY does not allege any defects or procedural irregularities in his plea

20 colloquy, only an ambiguous statement that he and his attorney were "duped." In support of this, 21 McKAY cites his pre-trial incarceration in which the Court denied a number of requests to be 22 released. However, McKAY was given adequate hearings on each of these requests, including 23 one in which the Court allowed his temporary release to visit his ailing mother out of state. 24 There is nothing to indicate that the defendant was ever given anything less than a fair hearing 25 and he was not subjected to any unfair procedures by the Government or this Court. Defendant 26 McKAY's own conduct and prior criminal conduct led the courts to find that there was probable 27 cause to believe that the defendant has committed an offense, that the defendant was a serious 28 flight risk, and that the defendant was a serious risk to the safety of another person or the 7
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1 community. All of the defendant's conduct falls squarely on his own shoulders and not based 2 on anything done by the government or the court system. 3 Defendant McKAY does not assert a claim of innocence. The defendant merely

4 complains that the district court should allow him to set aside his guilty plea because he 5 speculates that his case might have been dismissed. "Whether the movant has asserted his legal 6 innocence is an important factor to be weighed." Fed.R.Crim.P. 32 Advisory Committee Notes 7 (1983 Amendments). Defendant McKAY does not request to set aside his plea because he never 8 threatened Agent Dobyns. Instead, the defendant's claims amount to nothing more than 9 speculation, which cannot override the testimony he gave, under oath, at the change of plea to 10 the crime he admitted committing by threatening Agent Dobyns. 11 Defendant McKAY does not state or even imply that he is not guilty of having threatened

12 a federal officer, but merely chooses to try and mitigate the offense by stating that McKAY only 13 called Special Agent Dobyns a "punk bitch." This partial recitation of the encounter between 14 McKAY and Special Agent Dobyns is misleading by omission. To rebut the defendant's partial 15 recitation, a complete account of the incident is contained within the Affidavit in Attachment A. 16 Defendant McKAY continues to make excuses and minimize his conduct, but has not offered 17 or suggested that he is not guilty of the offense to which he pled guilty. 18 The Defendant has failed to meet his burden to show a fair and just reason to withdraw

19 his plea. Accordingly, this Court should deny defendant McKAY's request to withdraw from 20 the Plea Agreement. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 8
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1 III. CONCLUSION 2 Defendant McKAY knowingly, voluntarily and intelligently entered into a plea with the

3 United States under the advice of legal counsel. This Court, pursuant to the Federal Rules of 4 Criminal Procedure, Rule 11, properly accepted the plea. Defendant McKAY has failed to meet 5 his burden of showing a fair and just reason to set aside the plea agreement. Accordingly, the 6 United States requests this Court to deny defendant McKAY's Motion to Set Aside Plea 7 Agreement. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 I hereby certify that on March 16, 2006, I electronically transmitted the attached 23 document to the Clerk's Office using the CM/ECF system for filing and 24 transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: 25 Barbara Lynn Hull, [email protected] 26 27 s/ Keith Vercauteren 28 KEITH E. VERCAUTEREN 9
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Respectfully submitted this 16th day of March, 2006. PAUL K. CHARLTON United States Attorney District of Arizona

s/ Keith Vercauteren KEITH E. VERCAUTEREN Assistant United States Attorney