Opinion
5:02-CR-0227 (FJS)
August 13, 2003
BRENDA K. SANNES, AUSA, Syracuse, New York, for the United States
FRANK POLICELLI, ESQ., Utica, New York, for Defendant
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On August 21, 2002, Defendant, John J. Schmidt, Jr., entered a plea of guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252 A(a)(5)(B). Presently before the Court is Defendant's motion to withdraw his guilty plea pursuant to Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure.
In his moving papers, Defendant asserts that he seeks to withdraw his guilty plea pursuant to Rule 32(e) of the Federal Rules of Criminal Procedure. However, pursuant to recent amendments to the Rules, withdrawal of pleas is now addressed in Rule 11. In any event, Defendant properly states the legal standard applicable to withdrawal of a guilty plea before sentencing.
II. BACKGROUND
Defendant was a member of the "Candyman" e-group, a now-defunct internet service designed, inter alia, to allow members to upload, download, and transmit via e-mail images of child pornography.
In 2001, the Federal Bureau of Investigation initiated an investigation of the Candyman e-group and its members. FBI Special Agent Geoff Binney, of the FBI's Houston Division, investigated some aspects of the Candyman e-group in early 2001, including the procedures by which individuals could become members of the e-group and the array of services to which members had access. Based on his investigation, SA Binney swore out an affidavit to accompany numerous search warrant applications seeking authorization to search the residences and computers of members of the Candyman e-group. In his affidavit, SA Binney asserted, among other things, that members of the Candyman e-group automatically received images of child pornography via e-mail. It later came to light, however, that members of the Candyman e-group were presented with an option to subscribe to the e-mail service upon registering for the e-group and that not all members chose to do so.
In the instant case, SA Binneys affidavit accompanied the search warrant application for Defendant's residence and computer. On November 20, 2001, law enforcement officers executed the search warrant at Defendant's residence and discovered ten computer diskettes containing hundreds of images of child pornography.
On July 9, 2002, approximately one month before Defendant pled guilty, the Government notified defense counsel of the inaccuracy in SA Binney's affidavit. Specifically, the Government stated that, contrary to SA Binney's affidavit, Candyman e-group members could opt to receive "all individual e-mails, a daily digest of e-mails [or] no e-mail receipt at all." See Dkt. No. 32, Exhibit "E" (emphasis added).
In a series of correspondence between December 2002 and March 2003, the Government additionally notified defense counsel of mounting evidence that SA Binney had actual notice of the various e-mail delivery options available to members of the Candyman e-group. Defendant thereafter filed the instant motion on March 28, 2003.
If SA Binney was, in fact, aware of the different e-mail delivery options, his sworn statement to the effect that all members of the Candyman e-group automatically received images of child pornography via e-mail could be construed to evince either a reckless disregard for the truth or a knowing misrepresentation. See generally United States v. Perez, 247 F. Supp.2d 459 (S.D.N.Y. 2003).
III. DISCUSSION
As stated, Defendant pled guilty to one count of possession of child pornography on August 21, 2002. Defendant now wishes to withdraw his guilty plea on the ground that the evidence against him is the fruit of an unlawful search. The question before the Court is thus whether a defendant's belated desire to move to suppress evidence seized from his residence constitutes a "fair and just reason" to withdraw his guilty plea.
Prior to sentencing, a defendant may withdraw a plea of guilty for any "fair and just reason" shown. See Fed.R.Crim.P. 11(d)(2)(B). However, "it is basic that `[a] defendant has no absolute right to withdraw his guilty plea.'" United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997) (quoting United States v. Williams, 23 F.3d 629, 634 (2d Cir. 1994)). Rather, "[t]he defendant bears the burden of demonstrating valid grounds for relief." Id. (citing United States v. Maker, 108 F.3d 1513, 1529 (2d Cir. 1997)).
It is well-settled that "[t]he fact that a defendant has a change of heart prompted by his reevaluation of either the Government's case against him or the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea." United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (citations omitted); see United States v. Fantauzzi, No. CR-02-322, 2003 WL 21037182, *4 (E.D.N.Y. May 8, 2003) (citation omitted). Rather, "[t]o get permission to withdraw a guilty plea, a defendant must raise a significant question about the voluntariness of the original plea." Torres, 129 F.3d at 715 (citation omitted).
Defendant makes no such claim here.
In support of his motion, Defendant cites two recent district court decisions suppressing evidence seized pursuant to search warrants that were based, in part, on SA Binney's affidavit. See Perez, 247 F. Supp.2d at 478-79; United States v. Strauser, 247 F. Supp.2d 1135, 1142 (E.D. Mo. 2003). Defendant contends, based on Perez and Strauser, that Government agents lacked probable cause to search his residence and that the evidence seized was thus the fruit of an unlawful search. Absent the evidence seized from his residence, Defendant asserts that the Government has no evidence probative of the crimes with which he was charged. Defendant argues that this amounts to a "fair and just reason" to allow him to withdraw his guilty plea, especially in light of SA Binney's alleged misconduct.
The Court expresses no opinion as to the merits of Defendant's analysis of the legal consequences of the alleged misrepresentations in S A Binney's affidavit.
It is clear that Defendant wishes to withdraw his guilty plea because he now believes that he may be able to suppress the evidence seized from his residence. However, Defendant's belated desire to move to suppress the evidence seized from his residence evinces nothing more than a reevaluation of the Government's case against him. See Fantauzzi, 2003 WL 21037182 at *4 ("The main reason that defendant now moves to withdraw his guilty plea is his `change of heart' based on a reevaluation of the government's case. He now believes that he can successfully move to suppress the evidence recovered from his home. . . ."). The Court therefore finds that Defendant has not sustained his burden of establishing a valid ground to withdraw his guilty plea.
Even if Defendant had sustained his burden of establishing a valid ground to withdraw his guilty plea, the Court must also consider "(1) the time lapse between the plea and the motion; and (2) whether the government would be prejudiced by a withdrawal of the plea." Torres, 129 F.3d at 715 (citation omitted). "However, the government need not demonstrate prejudice where the defendant fails to show sufficient grounds to justify withdrawal of the plea." Id. (citing Maher, 108 F.3d at 1529).
In the instant case, Defendant pled guilty on August 21, 2002, but did not move to withdraw his plea until March 28, 2003, some seven months later. Cf. United States v. Grimes, 225 F.3d 254, 259 (2d Cir. 2000) (affirming denial of motion to withdraw guilty plea brought five months after entry of guilty plea); Fantauzzi, 2003 WL 21037182 at *3 (four-month delay in bringing motion to withdraw guilty plea weighed against granting motion). Defendant argues that he was not aware of facts suggesting that SA Binney knowingly included false information in his affidavit until March 2003 and that he filed the instant motion promptly thereafter. However, Defendant conceded at oral argument that he was aware of the inaccuracies in SA Binney's affidavit as early as July 2002. Defendant offers no compelling explanation why he chose not to investigate the circumstances of the inaccuracies in SA Binney's affidavit when he first learned of them. Accordingly, the Court finds that the lengthy delay in bringing the instant motion weighs against Defendant.
Indeed, it is unclear why Defendant did not move to suppress the fruits of the search prior to his guilty plea or seek a conditional plea reserving his right to do so. Cf. United States v. Arango, 966 F.2d 64, 67 (2d Cir. 1992) (noting that the defendant "should have known that if he failed to move to suppress [prior to his guilty plea], he would not later be able to challenge the legality" of the allegedly unlawful search); Strauser, 247 F. Supp.2d at 1136 (allowing withdrawal of guilty plea circumstances similar to the instant case where "[the defendant] entered a conditional plea of guilty, reserving his right to appeal the suppression issues").
In sum, the Court finds that Defendant has failed to come forward with a valid reason to withdraw his guilty plea. Specifically, Defendant's belated desire to move to suppress evidence seized from his residence evinces nothing more than a reevaluation of the Government's case against him. Moreover, the lengthy delay in bringing the instant motion, absent a compelling excuse, weighs decidedly against Defendant. For the foregoing reasons, the Court denies Defendant's motion to withdraw his guilty plea.
IV. CONCLUSION
After carefully considering the file in this matter, the parties' submissions and oral arguments, and the applicable law, and for the reasons stated herein, the Court herebyORDERS that Defendant's motion to withdraw his guilty plea is DENIED.
IT IS SO ORDERED.