U.S. v. Mckreith

UNITED STATES OF AMERICA

v.MARTIN MCKREITH

No. 3:09cr117 (MRK)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Dated: April 21, 2011

RULING AND ORDER

On February 15, 2011, Defendant Martin McKreith filed a Motion to Withdraw [doc. # 1302] a plea of guilty that he entered before this Court on March 23, 2010. After considering the arguments Mr. McKreith raises in support of his motion, as well as the arguments in the Government's Memorandum in Opposition [doc. # 1327] filed on March 15, 2011, the Court DENIES Mr. McKreith's Motion to Withdraw his guilty plea. The Court also DENIES AS MOOT Mr. McKreith's Motion for Extension of Time [doc. # 1291] to file a motion to withdraw his guilty plea.

I.

Martin McKreith is one of thirty-three defendants in a multi-defendant federal narcotics case before this Court. On December 16, 2009, Mr. McKreith was charged in a Superseding Indictment [doc. # 586] with, among other offenses, one count of conspiracy to possess with the intent to distribute 500 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 846 (Count One) and one count of possession with intent to distribute 500 grams of more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) (Count Five).

On February 3, 2010, Mr. McKreith filed a Motion to Suppress [doc. # 702] two kilograms of cocaine that had been seized from a hidden compartment in an automobile driven by Mr. McKreith. Following an evidentiary hearing held over the course of three days, the Court denied the Motion to Suppress. See United States v. McKreith, 708 F. Supp. 2d 216 (D. Conn. 2010). Thereafter, Mr. McKreith decided to proceed to trial. The trial began on March 22, 2010. Mr. McKreith's co-Defendant Donald Parker, the only Defendant in this case to proceed to a jury verdict, was convicted on all of the counts against him.

On March 23, 2010, the second day of the trial, Mr. McKreith notified the Court that he wished to plead guilty to Count Five, the substantive cocaine possession count. On that day, the Court conducted a comprehensive Rule 11 hearing which lasted approximately thirty minutes. See Tr. of Proceedings of March 23, 2010 [doc. # 991]. The Court concluded that Mr. McKreith was competent to enter a guilty plea, that he understood the rights he would be giving up by pleading guilty, and that there was an adequate factual basis for his guilty plea. See id. at 25. The Court asked Mr. McKreith whether he had been satisfied with the legal representation he had received from his counsel, Attorney Audrey A. Felsen, and he responded that he was fully satisfied with her representation. See id. at 4.

The Court also asked Mr. McKreith to describe in his own words what he had done that made him guilty of Count Five. See id. at 21. Mr. McKreith responded under oath that he went to New York for the specific purpose of obtaining drugs for his co-Defendant Peter Maylor, and then drove an automobile from New York to Connecticut knowing that there were two kilograms of cocaine in a hidden compartment inside the automobile. See id. at 22. The full colloquy between the Court and Mr. McKreith follows:

The Court: Okay. I'll let you talk to Ms. Felsen if you would like, but at this point, I want you now to explain to me in your own words what you did that you think makes you guilty of this offense, okay, sir?

(Ms. Felsen conferring with the defendant)

The Court: Go ahead, sir.

Defendant: On April 8th, we went to New York to get some drugs and bring it back for Peter Maylor.

The Court: Okay. You knew that drugs were in the car when you drove it back?

Defendant: Yes, sir.

The Court: Okay. Did you know it was cocaine?

Defendant: Yes, sir.

The Court: And did you know that it was more than 500 grams?

Defendant: No, sir.

The Court: Pardon? No?

Defendant: No, sir. Said two keys. Two keys.

The Court: Two kilos.

Defendant: Yeah.

The Court: So that's more than 500 grams.

Id. at 21-22.

Thereafter, the Court asked the Assistant United States Attorney to summarize the evidence that the Government planned to put on against Mr. McKreith if he were to proceed to trial. See id. at 22. The Assistant United States Attorney repeated essentially the same facts-that Mr. McKreith and others drove a van that they knew contained two kilograms of cocaine from New York to Connecticut, and intended to turn the van and the cocaine over to Mr. Maylor for distribution. See id. at 23. The Assistant United States Attorney indicated that the Governmentwould put on evidence that the van had been stopped by police, that two kilograms of cocaine were seized from the car, and that Drug Enforcement Administration lab tests had verified that the substance seized was indeed cocaine. See id. The Court asked Mr. McKreith whether he heard what the Assistant United States Attorney said and whether he disagreed with anything the prosecutor said that Mr. McKreith did. See id. Mr. McKreith responded that he did not disagree with anything the prosecutor had said. See id.

Finally, before finding Mr. McKreith guilty, the Court asked Mr. McKreith whether he was pleading guilty because he was in fact guilty and whether he was pleading guilty freely and voluntarily. See id. at 24. Mr. McKreith responded: "Yes, sir." Id.

II.

The Court has set forth the standard for withdrawing a guilty plea in detail on several previous occasions. See United States v. Minter, No. 3:09cr117 (MRK), slip op. at 4-5 (Apr. 18, 2011); United States v. Danzi, No. 3:07cr305 (MRK), 2010 WL 3463272, at *1 (D. Conn. Aug. 2, 2010); United States v. Piris, 599 F. Supp. 2d 205, 210 (D. Conn. 2009). Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure permits a defendant to withdraw his plea anytime before sentencing if he "can show a fair and just reason for requesting the withdrawal." Id. The Second Circuit has explained that while "this standard implies that motions to withdraw prior to sentence should be liberally granted, a defendant who seeks to withdraw his plea bears the burden of satisfying the trial judge that there are valid grounds for withdrawal." United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) (citation and quotation marks omitted); see United States v. Doe, 537 F.3d 204, 210 (2d Cir. 2008). A defendant is not automatically entitled to withdraw his plea of guilty "because society has a strong interest in the finality of guilty pleas, and allowing withdrawal of pleas not only undermines confidence in the integrity of our judicialprocedures, but also increases the volume of judicial work, and delays and impairs the orderly administration of justice." Doe, 537 F.3d at 211 (quotation marks omitted); see United States v. Maher, 108 F.3d 1513, 1529 (2d Cir. 1997).

In considering whether a particular defendant has shown a "fair and just reason" for withdrawing his guilty plea, this Court must consider, among other factors: "(1) the amount of time that has elapsed between the plea and the motion; (2) whether the defendant has asserted a claim of legal innocence; and (3) whether the government would be prejudiced by a withdrawal of the plea." Doe, 537 F.3d at 210; see United States v. Couto, 311 F.3d 179, 185 (2d Cir. 2002).

Where a defendant asserts involuntariness as a basis for withdrawing his or her guilty plea, the "defendant must raise a significant question about the voluntariness of the original plea." United States v. Torres, 129 F.3d 710, 715 (2d Cir.1997). "A defendant's bald statements that simply contradict what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea." Id.; see Doe, 537 F.3d at 211. "To evaluate a claim that a guilty plea was involuntary or unknowing due to ineffective assistance of counsel, [this Court must] use the familiar framework established in Strickland v. Washington, 466 U.S. 668 (1984)." United States v. Hernandez, 242 F.3d 110, 112 (2d Cir. 2001); see United States v. Gunn, No. 10-1170-cr, 2011 WL 1448138, at *3 (2d Cir. Apr. 15, 2011) (summary order). Under Strickland, "[a] defendant must first establish that counsel's representation fell below an objective standard of reasonableness. Second, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. (citations and quotation marks omitted); see Doe, 537 F.3d at 213-14; United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005).

III.

Mr. McKreith argues that the Court should permit him to withdraw his plea because his plea was involuntary and unknowing as a result of the ineffective assistance he received from his counsel, Attorney Felsen. Mr. McKreith also claims that he is legally innocent of the offense to which he pleaded guilty. Despite those two arguments, the Court concludes that Mr. McKreith has not demonstrated any fair and just reason that would permit him to withdraw his guilty plea. The Court's conclusion is based on several factors.

First, while Mr. McKreith claims that his plea was involuntary due to ineffective assistance of counsel, his ineffective assistance of counsel claim fails both prongs of the Strickland test.

With regard to the first prong of the Strickland test, Mr. McKreith has not identified any actions that Attorney Felsen took while defending him that fell below an objective standard of reasonableness. Mr. McKreith asserts that Ms. Felsen "failed to inform him of his right to testify at all stages of his proceedings." Mot. to Withdraw [doc. # 1302] at 5. But Mr. McKreith does not claim that he asked Ms. Felsen whether he could testify at the suppression hearing or the trial, nor that Ms. Felsen told him he could not testify at the suppression hearing or the trail. Tellingly, Mr. McKreith does not cite a single case standing for the proposition that it is objectively unreasonable for an attorney not to expressly inform her client of his right to testify at all stages of the proceedings against him. The Court knows of no such...