United States v. Hough

United States

v.Mark Gary Hough

Case No. 2:02-cr-00649-WJM-1

UNITED STATES DISTRICT COURT DISTRICT OF NEWJERSEY

Dated: December 17, 2010

WILLIAM J. MARTINI JUDGE

LETTER OPINION

Ms. Judith H. Germano Office of the US Attorney

Attorney for Plaintiff

Mr. Mark Gary Hough

Pro Se Defendant

Dear Litigants:

This matter comes before the Court on the motion to withdraw the plea of guilty of pro se Defendant Mark Gary Hough ("Hough" or "Defendant") pursuant to Fed. R. Crim. P. 11(d). For the reasons stated below, the motion is DENIED.

BACKGROUND

On or about May 11, 1998, Defendant Mark Gary Hough, who is not a United States citizen, was deported from the United States after having been convicted of a crime. Four years later, on or about July 23, 2002, Defendant illegally re-entered the United States in violation of Title 8, United States Code, Sections 1326(a) and (b)(2) to take his wife and two young children to Disneyland, California. He was charged by complaint nearly eight years ago, on August 23, 2002 (Docket No. 1), and then indicted on August 28, 2002 (Docket No. 7) for that illegal reentry. On or about October 18, 2002, Defendant moved to relieve his court-appointed counsel from the Federal Public Defender's Office; the court granted that motion and appointed new counsel for the Defendant. Trial was set to proceed before the Honorable Joseph A. Greenaway, Jr., on or about December 11, 2002.

Defendant maintains that he never entered into the United States in an unlawful manner or with an illegal intent. During plea negotiations, the charge of illegal re-entry was dropped and Defendant was instead charged with making false statements to the government. This charge arose from a false statement made on a Form I-94 from the Immigration and Naturalization Service ("INS"). On that form, Defendant initially confessed that he checked the box representing that he had never been excluded, deported, or previously removed from the United States, which is not a true statement. On November 26, 2002, the Defendant entered a guilty plea for making these material false statements to the government in violation of 18 U.S.C. §1001. During his plea allocution, Defendant admitted that he knowingly lied to INS authorities when he filled out INS Form I-94 in seeking to enter the United States. Defendant acknowledged that he knowingly, intentionally and falsely reported on that form that he had never been excused, deported or previously removed from the United States. (11/25/02 Plea Hearing Transcript). Judge Greenaway provided a fulsome plea allocution to ensure Defendant understood the charges to which he was pleading guilty and the rights he was foregoing regarding a trial, appeal and subsequent motions. (Id.). In that plea hearing, Judge Greenaway also took great care to ensure that the decision to plead guilty and his willingness to plead was of Defendant's own accord. (Id.). Defendant acknowledged his guilt and Judge Greenaway accepted Defendant's application to plead guilty. (Id.).

On February 5, 2003, Defendant was sentenced to time served and, among other things, was ordered to cooperate with INS. (Docket No. 25). Defendant was then deported. On July 24, 2004, Defendant filed a pro se letter that was treated as a motion to withdraw his guilty plea. (Docket No. 36). Hough's main argument in that letter was that he did not attempt to illegally re-enter the United States after having been removed in 1998. Judge Greenaway denied that motion on April 23, 2005 on the ground that Hough did not properly assert his innocence because the conviction and sentence from which he appeals was not for illegal re-entry, but for making a false statement to an INS official. (Document No. 39). Five years later, on May 18, 2010, Defendant filed yet another pro se motion, now pending before this Court, to withdraw his guilty plea. (Docket No. 40). This time, Hough asserts that he did not make false statements to an INS official and that he is innocent of the charge. It appears to this Court that the Third Circuit has already made a determination that Hough admitted that he had lied on his I-94 Form and that entered aguilty plea knowingly and voluntarily. As such, Hough is precluded from bringing this second motion to withdraw a plea of guilty. Alternatively, even if the issue is not precluded and the matter is not moot, Hough's motion to withdraw his plea of guilty would still be denied for the reasons set forth below.

ANALYSIS

The withdrawal of a guilty plea is "inherently in derogation of the public interest in finality and the orderly administration of justice." Brady v. United States, 397 U.S. 742, 748 (1970); see also Hill v. Lock hart, 474 U.S. 52, 58 (1985) (withdrawal of a guilty plea undermines confidence in the integrity of our procedures, and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice") (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979)).

"[A court] looks to three factors to evaluate a motion to withdraw: (1) whether the defendant asserts her innocence; (2) whether the government would be prejudiced by the withdrawal; and (3) the strength of the defendant's reason to withdraw the plea." United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001). A defendant may withdraw a plea of guilty after the court accepts the plea, but before it imposes a sentence, if the Defendant can show there is a "fair and just reason" for withdrawing a plea of guilty. Fed. R. Crim. P. 11(d)(2)(B). (Emphasis added.) "The burden of demonstrating a 'fair and just' reason falls on the defendant, and that burden is substantial." United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). A defendant's burden to show grounds for withdrawal in a post-sentence motion is heavier. United States v. Morris, 1999 U.S. Dist. LEXIS 13321, at *12 (E.D. Pa. August 31, 1999).

DISCUSSION

Defendant Hough submitted this motion several years after being sentenced. He pleaded guilty in 2002 (Docket No. 22) and was sentenced in 2003 (Docket No. 25). He submitted this motion to withdraw his plea of guilty on May 18, 2010. (Docket No. 40). Thus, since this is a post-sentence motion, the Defendant has a heavier burden to establish the three prongs the Court looks to in order to evaluate a motion to withdraw a plea of guilty. See Morris, at *12. The three factors are addressed in turn.

1. Defendant Hough Properly Asserts His Innocence

"[B]ald assertions of innocence are insufficient to permit a defendant to withdraw his guilty plea. Assertions of innocence must be buttressed by facts in the record that support a claimed defense. [And] [o]nce a defendant has pleaded guilty, he must then not only reassert innocence, but give sufficient reasons to explain why contradictory positions were taken before the district court and why permission should be given to withdraw theguilty plea and reclaim the right to trial." Jones, 336 F.3d at 254. Defendant has met this first factor. He has meaningfully asserted his innocence and explained why contradictory positions were taken. In particular, he asserts that the I-94 Form was actually filled out by his wife while he was taking care of his young children, not by Hough. (Document No. 36 at 2). He asserts that he did not read nor sign the form and it was his wife that handed the form to the INS. (Id.). Hough also states that he was truthful when he was questioned by the INS during secondary inspection. (Id.). He explains that at the time of the plea, he did not truly understand the nature of the charge, and further, that he needed to get back to the United Kingdom because his business was in trouble. (Document No. 40 at 29-30). He is the sole owner of T&H Exhibition Service, Ltd., which is located in the United Kingdom. (Id.). He further explained that he previously pleaded guilty to the charge of making false statements to the government because he believed pleading guilty was the quickest way to be released from the Passaic County Jail in order to return to the United Kingdom to save his business. (Id.). As such, Defendant Hough has satisfied this first prong.

2. The Government Would Be Prejudiced By Withdrawal of Defendant's Plea

The second factor the Court must consider when faced with such a motion is whether the Government would be prejudiced by the withdrawal of a plea. Brown, 250 F.3d at 815. Withdrawal of a plea "almost invariably prejudices the government to some extent and wastes judicial resources." United States v. Dyess, 293 F. Supp.2d 675, 689 (S.D. W.Va. 2003). Thus, the Defendant need not show that the effects are nonexistent. Id. Here, however, the prejudice would be extreme. See id., at 689-90 (concluding that the prejudice would be extreme since the Government would be required to mount a criminal trial five years after the indictment was handed down, with fading memories and loss of access to witnesses). Increased cost and inconvenience to the Government are grounds for finding prejudice from withdrawal of a guilty plea, as is the diminished memory of Government witnesses. United States v. Golden, 2001 U.S. Dist. LEXIS 15944, at *29 (E.D. Pa. July 31, 2001). Defendant contends that the Government would not be prejudiced given the fact the witness's for the Government are its own employees. (Docket No. 40 at 39(b)). However, the Government has sufficiently shown that it would be prejudiced by the withdrawal of the plea based on the fact that over eight years have passed since the date of the plea and since the time Defendant was sentenced and deported from the United States. (Document No. 41 at 3). Memories of what happened and what was said during plea negotiations have surely faded. Additionally, opening a case after eight years is certainly inconvenient and costly. Moreover, Defendant offers no other assurances to show that the Government would not be prejudiced. As such, the Defendant has not carried his burden to establish that the Government would be...