United States v. Upton

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United States of America v. Marvin L. Upton

No. 5:19-cr-53-BJB

United States District Court, W.D. Kentucky, Paducah Division

July 11, 2024

MEMORANDUM OPINION & ORDER GRANTING MOTION TO WITHDRAW GUILTY PLEA

Benjamin Beaton, District Judge

This is a strange and sad criminal prosecution that involves two enfeebled parishioners, a deceased co-defendant, hundreds of thousands of dollars in questionable church gifts and spending, allegations that date back to 2013, and a widowed defendant who's wavered in his willingness to admit guilt or go to trial. Marvin Upton (a boilermaker and lay pastor) and Cynthia Upton (his wife) were charged in 2019 with conspiracy to commit bank fraud, bank fraud, and filing a false tax return in a seven-count Information. DN 1. From 2013 to 2016 the Uptons allegedly stole (and failed to report as taxable income) hundreds of thousands of dollars from an elderly parishioner (the relative of another elderly parishioner they'd cared for) who descended into dementia. Id. The Uptons first met the elderly parishioner through Marvin Upton's work as the pastor of Crofton Pentecostal Church. Presentence Report (DN 95) ¶¶ 13-14. After agreeing to plead guilty to all counts on the eve of trial, Upton now seeks to withdraw his plea.

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The case experienced multiple delays-due to Covid, Cynthia's illness and death, lawyers' maternity leave and trial conflicts, and more. With the parties' agreement, the Court finally set this case for trial in July 2023. Two days before jury selection, defense counsel informed the Government and the Court that Upton wished to plead guilty. He did so a week later-but without a written plea agreement. DN 93.

That hearing suggested the parties might not see eye to eye on the scope and nature of the offenses. The factual basis for the plea, see FED. R. CRIM. P. 11(b)(3), contained a series of nonspecific excerpts from the charging document “from in or about April 2013 through March 2016 Marvin L. Upton conspired and herein did knowingly execute a material scheme or artifice to defraud ... federally insured financial institutions . to obtain money . by material false and fraudulent pretenses . with the intent to deceive and cheat [the parishioner] . [and] did willfully make and subscribe a joint U.S. Individual Tax Return . that . failed to disclose moneys received [from the parishioner]..” COP Transcript (DN 120) at 16:19-17:16 (quoting, in parts from the Information (DN 1) at 1-5). In some key respects, the agreed factual statement was less detailed than the Information, which had specified that Marvin conspired with Cynthia and that the defrauded parishioner suffered from dementia. Id. The lawyers didn't explain why their agreed statement omitted these important facts.

Even in response to this barebones statement at the hearing, Upton hesitated and hedged. Asked whether his guilty plea rested on this statement, he avoided a direct response: “There's a whole lot to this ... I wasn't aware of a lot of things that should have been done differently, but I understand where I'm at now.” Id. at 19:610. The Court, already harboring some concern regarding the clarity and concreteness of the plea, explained to Upton that the factual basis was “a statement of proof in a case . that would be necessary to support a finding . that [he] did, in fact, do these things that have led to these criminal charges and convictions.” Id. at 19:14-20. At this point, Upton ultimately agreed that he did the things the Government said and was guilty of all seven counts. Id. at 20:8-13.^[1]

The gap between the parties' respective views of the facts grew starker at Upton's sentencing, however. The defense and prosecution both filed numerous objections to the PSR. Upton didn't contest that he was responsible for some $500,000 in loss, but disputed that he stole an additional $200,000. First Sentencing Transcript at 28:24-25. According to him, these are funds the parishioner either withdrew as cash or donated to Crofton Pentecostal for church renovations. Id. at 26:20-24. They also disagreed about the timing and extent of the parishioner's mental decline, which, as defense counsel put it, would “have an effect on . the overall way that the fraud was perpetrated.” Id. at 23:2-4. Other disputes less relevant to the factual basis-such as the applicability of various sentencing enhancements-also abounded. See PSR Addendum (DN 95-1).

After resolving many of these disputes, the Court adjourned the initial sentencing and set another hearing to allow each side more time to present witnesses and address the sentencing factors. See DN 103. That second hearing fell apart almost immediately. After listing the parties' numerous remaining disagreements, the Court voiced its concerns regarding “whether [their] factual disagreement is so great as to cause concerns about the factual basis for the guilty plea.” Second Sentencing Transcript (DN 107) at 7:12-16. Specifically, whether the parties shared the Court's “doubt about the conspiracy count, that the Uptons agreed to commit the bank fraud crime?” Id. Upton's counsel began to say that he was “accepting responsibility and [had] pled guilty.” Id. at 7:17-18. But Upton interrupted and disagreed: “We didn't conspire to anything” and the conspiracy was “not true.” Id. at 8:1-2. After a recess to allow Upton and his lawyer to confer, defense counsel told the Court that Upton would be filing a motion to withdraw his guilty plea. Id. at 9:34. She also expressed concern that she could ethically argue that he met the standard for withdrawal given her earlier statements in support of the plea. Id.; First Sentencing Transcript at 28:19-23; Redacted Motion to Withdraw (DN 114) at 4. The Court granted the motion to withdraw (DN 116) and appointed new counsel (DN 117). Upton's new lawyer filed a motion to withdraw the guilty plea in March 2024 (DN 123), and the Court held a hearing on that motion in May 2024 (DN 130).

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Based on several in-person interactions with Upton and counsel from both sides during numerous hearings, the Court exercises its discretion to grant Upton's request to withdraw his guilty plea. This is not a decision lightly taken, given its burden on the judiciary, witnesses, and prosecution-and the law's strong presumption that binding guilty pleas should not be unwrapped too easily. But this is the rare plea that was, on balance, “hastily entered ... with [an] unsure heart..” United States v. Alexander, 948 F.2d 1002, 1004 (6th Cir. 1991). At no point did the parties nail down what happened between Marvin, Cindy, and the parishioner-or why. Nor did Upton ever unequivocally admit the facts that support his guilt. See COP Transcript 19:2-20:13. Indeed, when pressed he resisted the Government's account of his actions. Viewed in light of other aspects of the case, Upton's thin colloquy and unwritten agreement support rather than undermine the Court's conclusion that this hasty plea may be withdrawn.

The Federal Rules treat withdrawal as permissible if, “after the court accepts the plea, but before it imposes a sentence,” the defendant “can show a fair and just reason for requesting the withdrawal.” FED. R. CRIM. P. 11(d)(2)(B). “[T]he aim of the rule is to allow a hastily entered plea made with unsure heart and confused mind to be undone, not to allow a defendant to make a tactical decision . if he believes that he made a bad choice in pleading guilty.” Alexander, 948 F.2d at 1004 (quotation marks omitted). “[D]istrict courts bear the primary responsibility to resolve whether a defendant has identified a fair and just reason to withdraw a plea,” with the courts of appeals reviewing only for abuse of discretion. United States v. Crowe, No. 226046, 2023 WL 4586154, at *4 (6th Cir. July 18, 2023).

The Sixth Circuit has identified seven “non-exclusive” factors district courts should consider when exercising their discretion in ruling on a motion to withdraw:

“(1) the amount of time that elapsed between the plea and the motion to withdraw it; (2) the presence (or absence) of a valid reason for the failure to move for withdrawal earlier in the proceedings; (3) whether the defendant has asserted or maintained his innocence; (4) the circumstances underlying the entry of the guilty plea; (5) the defendant's nature and background; (6) the degree to which the defendant has had prior experience with the criminal justice system; and (7) potential prejudice to the government if the motion to withdraw is granted.”

United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994); United States v. Bazzi, 94 F.3d 1025, 1027 (6th Cir. 1996). “No one factor controls” and “[t]he relevance of each factor will vary according to the circumstances surrounding the original entrance of the plea as well as the motion to withdraw.” United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008) (quotation marks omitted). Ultimately, “the factors exist to help courts distinguish withdrawal requests made for strategic reasons from those made for legitimate ones.” Crowe, 2023 WL 4586154, at *4.

Two “legitimate” reasons identified by the Court of Appeals predominate here. One is Upton's sincere desire to assert his innocence before a jury: “A defendant's vigorous and repeated protestations of innocence may support the decision to allow withdrawal of a guilty plea.” United States v. Carson, 32 F.4th 615, 624 (6th Cir. 2022) (quotation marks omitted). Another is a misunderstanding over the scope of the plea: “Withdrawal of a plea is appropriate where there is a real confusion or misunderstanding of the terms of the agreement.” United States v. Ellis, 470 F.3d 275, 281 (6th Cir. 2006). Upton has pointed to evidence of both.

First the Court believes that Upton “hastily entered” his plea...