UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) UNITED STATES OF AMERICA ) ) v. ) ) Crim. No. 10-mj-215 (DAR) SCOTT J. BLOCH, ) ) Defendant/Appellant. ) ____________________________________)

MEMORANDUM OPINION & ORDER

Before the Court is defendant Scott Bloch’s appeal [70] of the Magistrate Judge’s denial

[47] of his unopposed motion to withdraw his guilty plea [37], or alternatively, of the Magistrate

Judge’s denial [54] of his motion to reconsider [50]. The government does not oppose [72]

defendant’s appeal of the denial of his unopposed motion to withdraw his guilty plea. In light of

the government’s lack of opposition, and upon consideration of the appeal, the response thereto,

the entire record herein, and the applicable law, the Court REVERSES the Magistrate Judge’s

denial [47] of defendant’s unopposed motion to withdraw his guilty plea.

I. FACTUAL AND PROCEDURAL BACKGROUND

On April 22, 2010, the government charged defendant by Information with one count of

misdemeanor Contempt of Congress in violation of

. On April 27, 2010, the

government and defendant reached a plea agreement in which defendant agreed to plead guilty to

misdemeanor Contempt of Congress in violation of

, in exchange for the

government’s promise “not to oppose a sentence at the low end of the applicable Guidelines

range,” which the agreement calculated as “0 to 6 months.” Plea Agreement 3–4 [3]. The

agreement indicated that “the charge carries a maximum sentence of not more than twelve

1 months’ imprisonment, a maximum fine of $100,000, and a $25 special assessment,” but did not

otherwise inform defendant of any mandatory minimum sentence.

.

On April 27, 2010, Magistrate Judge Deborah Robinson conducted defendant’s plea

hearing. At no time during the Rule 11 plea colloquy did the Magistrate Judge inform defendant

that he faced a one-month mandatory minimum period of incarceration for pleading guilty to

. See Tr. of Apr. 27, 2010 Plea Hr’g. And as both defendant and the government

argue, the Magistrate Judge’s reference to imprisonment during the plea colloquy suggested that

a period of incarceration was optional rather than mandatory. See

(“Do you understand . .

. that if you are sentenced to a period of incarceration, you will not be released early on parole?”)

(emphasis added). Indeed, the Magistrate Judge herself acknowledges that she failed to inform

defendant that he was subject to a mandatory minimum sentence as part of his plea. See Mem.

Op. and Order 9 [47] (“While the court neglected during the 45-minute Rule 11 colloquy to

inform Defendant of the mandatory minimum penalty provision for the offense to which he

wished to plead guilty . . .”). After conducting the colloquy, verifying that defendant had not

been coerced into signing the plea agreement, and hearing the factual proffer, the Magistrate

Judge accepted defendant’s plea.

Prior to defendant’s scheduled sentencing date, the U.S. Probation Office prepared a draft

presentence investigation (PSI) report indicating that

carried a “minimum term of

imprisonment [of] one month.” Draft Presentence Investigation Report 19 [7]. After reviewing

the draft PSI, the government objected that “while

indicates a term of

imprisonment of 1 to [12] months, this statute does not make the 1 month of incarceration a

mandatory minimum period of incarceration.” Final Presentence Investigation Report 23 [8]. On

July 13, 2010, the Probation Office issued its final PSI, which—in response to the government’s

2 objection—reiterated that

required a “minimum sentence of imprisonment [of] 30

days in a common jail.”

The Magistrate Judge subsequently ordered the parties to brief the

issue of whether the statute permitted a sentence of probation. See Minute Order, July 23, 2010.

In response, the parties submitted a total of four sentencing memoranda [15, 16, 23, 24] in which

they argued that the statute constituted a probation-eligible offense and did not mandate

incarceration. On September 8, 2010, the Magistrate Judge held a hearing on the issue, during

which the government stated that the parties had entered into the plea relying on the joint

understanding that the statute was a probation-eligible offense and that, should the Magistrate

Judge find otherwise, fundamental fairness would permit defendant to withdraw his plea. Tr. of

Sept. 8, 2010 Hr’g 8–9, 19–20, 23 [67]. Several months later, on February 2, 2011, the

Magistrate Judge determined that

carried a mandatory minimum sentence of

thirty days. See Mem. Op. [32].

On February 17, 2011, defendant filed an unopposed motion to withdraw his April 27,

2010 guilty plea, arguing that the Magistrate Judge’s Rule 11 colloquy “did not advise him that

he was facing a charge that the Court subsequently ruled mandates a minimum sentence.”

Unopp. Mot. to Withdraw Guilty Plea 1 [37]. The government filed a response confirming that it

did not oppose defendant’s motion. Gov’ts Resp. to Unopp. Mot. to Withdraw Guilty Plea [39].

On March 9, 2011, the Magistrate Judge denied defendant’s unopposed motion. Mem. Op. and

Order [47]. In so doing, she found that her failure to inform defendant of the mandatory

minimum penalty provision in

was harmless because he was “cognizant of the

full extent of the provisions of the statute.”

. She focused on the fact that defendant is a

lawyer himself and was represented by counsel,

; that the mandatory minimum provision

“is plainly included in the statute [and defendant] does not claim that he was unaware of the

3 provision,” but only that he believed that probation was possible,

; and that defendant

was advised that he could receive up to one year in prison.

at 5–6, 9, 12–14, 20. Defendant

subsequently filed a motion for reconsideration [49], which the government supported [52]. On

March 29, 2011, the Magistrate Judge denied defendant’s unopposed motion for reconsideration.

Mem. Op. and Order [54].

One day later, the Magistrate Judge held a sentencing hearing during which the parties—

arguing that the court had erred in refusing to grant defendant’s motion to withdraw—asked that

the court sentence defendant to probation. Tr. of Mar. 30, 2011 Sent. Hr’g 14–24 [68]. The

Magistrate Judge nevertheless sentenced defendant to a mandatory term of thirty days’

incarceration, see Minute Order, Mar. 30, 2011, and entered a stay of sentence pending appeal.

See Order, Apr. 6, 2011 [62]. Defendant timely filed a notice of appeal in this Court under

Federal Rule of Criminal Procedure 58(g)(2). See Notice of Appeal, Apr. 7, 2011 [63].

II. STANDARD OF REVIEW

In reviewing the Magistrate Judge’s rulings, this Court applies the same standard that a

federal appellate court applies when reviewing a district court case. Fed. R. Crim. P. 58(g)(2)(D).

Thus, the Court reviews the Magistrate Judge’s denial of defendant’s motion to withdraw his

guilty plea for abuse of discretion. See United States v. Berkeley,

(D.C. Cir.

2009) (“We review a district court’s refusal to permit withdrawal [of a guilty plea] only for abuse

of discretion.”). The Court reviews the Magistrate Judge’s findings of fact—such as her finding

that defendant understood that he faced one month of mandatory incarceration—for clear error.

See, e.g., United States v. Rivera-Gonzalez,

(1st Cir. 2010) (“The trial court’s

subsidiary findings of fact in connection with the plea-withdrawal motion are reviewed only for

clear error.”) (internal citations and quotation marks omitted).

4 III. DISCUSSION

Defendant argues that the Magistrate Judge abused her discretion in denying his

withdrawal motion and motion for reconsideration despite her acknowledged violation of Rule

11. He asserts that the record indisputably shows a Rule 11 error in that the Magistrate Judge

failed to advise him of the mandatory minimum sentence he later received at sentencing. He

further asserts that this error was not harmless, as he “had no knowledge of the mandatory

minimum sentence, and if he had, he would not have pleaded guilty.” Br. of Def.-Appellant 12–

13 [70]. Defendant points to his unrebutted sworn affidavit and to the circumstances surrounding

the plea hearing to demonstrate that he was not aware that

carried a mandatory

minimum sentence. He contends that the Magistrate Judge’s omission “not only rendered his

plea legally involuntary, it also defeated the purpose of [his] plea agreement, because both

parties agreed that probation was possible and that the Government would recommend a

sentence on the low end of the ‘0 to 6’ month range.”

.

The government does not oppose defendant’s appeal of the denial of his withdrawal

motion. The government agrees—as it has at every stage of the proceedings since defendant’s

plea colloquy—that the Magistrate Judge’s failure to inform defendant that he faced a mandatory

minimum sentence constituted a Rule 11 error. The government further argues that the

Magistrate Judge’s assertion that her error was harmless because defendant must have known

that he faced a mandatory minimum sentence “is belied by the record in this case.” Gov’ts Resp.

to Def.’s Appeal 3 [72]. First, the government states that the record demonstrates that defendant

believed he could receive a sentence of probation when he pled guilty on April 27, 2010. The

government notes that it “shared this same belief,” in part because the U.S. Probation Office had

concluded one year earlier that

allowed for a sentence of probation in United

5 States v. Miguel Tejada, 09-mj-077.

. In short, the government argues, “it was not

unreasonable” for defendant to have believed that he could receive a sentence of probation when

he pled guilty.

The government further states that it “has no reason to doubt the veracity” of

defendant’s statement that he would not have pled guilty had he understood that he faced one

month of mandatory incarceration.

. Thus, the government asserts, the Magistrate Judge’s

“Rule 11 error was not harmless and the defendant should therefore have been allowed to

withdraw his plea.”

Federal Rule of Criminal Procedure 11(b)(1) provides, in relevant part, “Before the court

accepts a plea of guilty . . . the court must address the defendant personally in open court. During

this address, the court must inform the defendant of, and determine that the defendant

understands . . . any mandatory minimum penalty.” Fed. R. Crim. P. 11(b)(1)(I) (emphasis

added). Rule 11 further permits a defendant to withdraw a guilty plea after the court accepts the

plea if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R.

Crim. P. 11(d)(2)(B). Here, there is no dispute that the Magistrate Judge failed to inform

defendant during his Rule 11 colloquy that he was subject to a mandatory minimum period of

incarceration. See Mem. Op. and Order 9 [47] (“While the court neglected during the 45-minute

Rule 11 colloquy to inform Defendant of the mandatory minimum penalty provision for the

offense to which he wished to plead guilty . . .”). The question for this Court, then, is whether

defendant has shown, based on the Magistrate Judge’s omission, a “fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).

The D.C. Circuit has stated that—although it reviews a district court’s denial of a

withdrawal motion only for abuse of discretion—“[w]ithdrawal of a guilty plea prior to

sentencing is to be liberally granted, and permitted for ‘any fair and just reason.’” United States

6 v. Taylor,

, 929 (D.C. Cir. 1998). In reviewing a district court’s denial of a

withdrawal motion, the D.C. Circuit has focused on three factors: “(1) whether the defendant has

asserted a viable claim of innocence; (2) whether the delay between the guilty plea and the

motion to withdraw has substantially prejudiced the government's ability to prosecute the case;

and (3) whether the guilty plea was somehow tainted.” Id. Here, defendant does not assert a

claim of innocence, and the government does not argue that it will be prejudiced if defendant is

permitted to withdraw his guilty plea. Thus, the Court will focus on the third factor—which the

D.C. Circuit considers the “most important” factor in its analysis. United States v. Ford,

(D.C. Cir. 1993).

As to the third factor, the D.C. Circuit has explained that the standard for withdrawal of a

plea is “very lenient when the plea was entered . . . contrary to Rule 11 procedures. Such pleas

should almost always be permitted to by withdrawn . . . regardless of whether the movant has

asserted his legal innocence.” United States v. Barker,

(D.C. Cir. 1975).

“Thus, when the defendant can show that the initial plea colloquy was not conducted in

‘substantial compliance’ with [Rule 11], the defendant should ‘almost always’ be permitted to

withdraw his plea.” Ford,

(quoting United States v. Abreu,

(D.C.

Cir. 1992) (per curiam)); see also United States v. Cray,

(D.C. Cir. 1995)

(“The key to this inquiry is whether the plea was entered in accordance with Rule 11. If the plea

is defective under Rule 11, then withdrawal should almost always be permitted.”) (internal

citations and quotation marks omitted).

Not every Rule 11 error justifies withdrawal of a guilty plea. Rather, Rule 11 provides

that “[a] variance from the requirements of this rule is harmless error if it does not affect

substantial rights.” Fed. R. Crim. P. 11(h). To determine whether a Rule 11 error has affected a

7 defendant’s “substantial rights,” a reviewing court should determine whether the error would

have affected the defendant’s decision to plead guilty. United States v. Robinson,

(D.C. Cir. 2009) (“In order to establish that the court’s error affected [a defendant’s]

substantial rights, [] he ‘must show a reasonable probability that, but for the error, he would not

have entered the plea.’”) (quoting United States v. Dominguez Benitez,

(2004));

see also United States v. Herndon,

(5th Cir. 1993) (“Whether the mandatory

minimum had an effect on the sentence is not the question[]. The question is whether awareness

of a mandatory minimum would have affected the defendant’s decision to plead guilty.”)

(emphasis added).

On the basis of the record, the Court finds that defendant—as both he and the government

consistently have argued—believed that he could receive a sentence of probation when he pled

guilty. First, the plea agreement itself demonstrates that the parties believed that defendant could

receive probation. There, the parties stipulated to a sentencing guidelines range of “0 to 6

months” and agreed that a sentence within this range “would constitute a reasonable sentence.”

Plea Agreement 3 [3]. As the government argued to the Magistrate Judge, the possibility of “0”

months implied that the parties understood that “probation was a reasonable sentence in this

case.” Tr. of Mar. 30, 2011 Sent. Hr’g 17–20 [68]. Defendant confirmed this belief in his sworn

affidavit to the Magistrate Judge, stating: “At the time I negotiated my guilty plea to one count of

contempt of congress pursuant to

, I believed that such an offense was probation-

eligible, and I believed that it was possible that I could be sentenced to probation.” Def.’s Reply

in Supp. of Unopp. Mot. to Withdraw Guilty Plea Ex. A [42-1].

Importantly, the government agrees with defendant that he “had no understanding that he

faced one month of mandatory incarceration by pleading guilty.” Gov’ts Resp. to Def.’s Mot. to

8 Withdraw 2 [39]. Indeed, the government has argued repeatedly that “both parties entered into

the April 27, 2010 plea with the good-faith belief that

was a probation-eligible

offense.”

. The parties “shared this same belief” due to precedent on the issue of whether

is a probation-eligible offense. See Gov’ts Resp. to Def.’s Appeal 4 [72]; see also

Gov’ts Mem. in Aid of Sent. 6 n.2 [10] (“The government does not see anything in the

Guidelines or the U.S. Code requiring jail time of at least one month, or precluding a sentence of

probation for violations of

. To this end, the last two criminal prosecutions of

in this jurisdiction . . . resulted in [a] sentence of probation.”) (emphasis added).

As the government explained to the Magistrate Judge, the defendant in United States v. Miguel

Tejada, 09-mj-077, received a sentence of one year of probation after pleading guilty to

Contempt of Congress in violation of 2 U.S.C. § 192—notably, only one year before defendant

in this case pled guilty to the very same charge. Gov’ts Supp. Mem. in Aid of Sent. 2 [15].

Similarly, the defendant in United States v. Abrams, 91-cr-575, received a sentence of two years

of probation after pleading guilty to two counts of Contempt of Congress in violation of

.

at 3–4. In light of the parties’ shared belief that probation was possible, the

government has maintained that fairness requires that defendant be permitted to withdraw his

plea, “because otherwise the plea agreement would not accurately reflect what the parties

negotiated and agreed to in good-faith.” Gov’ts Resp. to Def.’s Mot. to Withdraw 3 [39].

It is worth noting, moreover, that the Magistrate Judge requested that both parties brief

the issue of whether

requires the imposition of a minimum period of

incarceration. See Minute Order, July 23, 2010. Several months after this request—after the

parties had submitted several responsive memoranda, and after the court had held a hearing on

the issue—the Magistrate Judge determined that

carried a mandatory minimum

9 sentence of thirty days. See Mem. Op., Feb. 2, 2011 [32]. The fact that the court and the parties

spent several months discussing the issue demonstrates how unique and contested that issue truly

was. And given such confusion, it is reasonable that defendant believed that he could receive a

sentence of probation when he pled guilty.

In light of the facts discussed above, the Court finds that the Magistrate Judge clearly

erred when she concluded that defendant “was cognizant of the full extent of the provisions of

the statute.” Mem. Op. and Order 11 [47]. Indeed, the Magistrate Judge’s conclusion that

defendant’s “awareness of the [mandatory minimum] provision cannot be credibly challenged,”

, is inapposite. The question here is not whether defendant was aware of the statute’s

provisions, but whether he understood that he faced one month of mandatory incarceration by

pleading guilty. And as the record demonstrates, both defendant and the government believed

that defendant could receive probation. 1

The Court pauses here to note that

plainly states that misdemeanor

Contempt of Congress is “punishable by a fine of not more than $1,000 nor less than $100 and

imprisonment in a common jail for not less than one month nor more than twelve months.”

. And as the record confirms, there is no dispute that defendant read the statute

under which he was charged in this case. See Br. of Def.-Appellant 8 [70]. The Court recognizes

that Tejada and Abrams informed the parties’ belief that the statute does not require a mandatory

minimum sentence—and not unreasonably so. That said, the Court finds it surprising that none

1 The Magistrate Judge, in denying defendant’s withdrawal motion, emphasized that defendant was “well aware that he could have been sentenced to a period of incarceration of up to one year.” Mem. Op. and Order 9 [47]; see also

at 5–6, 12–14, 20. But defendant’s understanding as to the statute’s maximum sentence says nothing about whether he believed that probation was available. Nor does the fact that the Magistrate Judge advised defendant as to the statute’s maximum sentence cure her failure to inform him of the minimum mandatory sentence.

10 of the attorneys in this case—neither those for the government, nor those for defendant—

questioned such precedent upon reading the statute. This is, at bottom, a situation in which

lawyering has fallen short. Again, however, the relevant question is what defendant believed

when he pled guilty, however inexplicable that belief.

Having found that defendant believed that he could receive probation when he pled

guilty, the Court must determine whether he has demonstrated that the Magistrate Judge’s Rule

11 error affected his “substantial rights” and thus was not “harmless error.” Fed. R. Crim. P.

11(h). That determination comes down to whether defendant has established that the Rule 11

error affected his decision to plead guilty—in other words, that he would not have pled guilty

had he understood that he faced a one-month mandatory minimum period of incarceration. See

Robinson,

. In his sworn affidavit, defendant states: “If I had been informed that

was not a probation-eligible offense, or that any sentence under

required a mandatory minimum term of incarceration, I would not have pleaded guilty.” Def.’s

Reply in Supp. of Unopp. Mot. to Withdraw Guilty Plea Ex. A [42-1]. Similarly, defendant’s

counsel, Ryan Sparacino, has stated in a sworn affidavit:

I am certain that Mr. Bloch would not have pleaded guilty to a misdemeanor Contempt of Congress offense under

if, prior to the plea hearing, Mr. Sullivan or I had informed him that it was our opinion that

was not probation-eligible, or if [the Magistrate Judge] had informed him during the Rule 11 colloquy that such offense was not probation eligible.

Mot. for Recons. Ex. A, at ¶ 5 [49-1]. The Magistrate Judge, in denying defendant’s withdrawal

motion, stated that his assertion that he would not have pled guilty is “not entitled to credence” in

light of its “contradiction” with his plea agreement and his representations during the Rule 11

colloquy. Mem. Op. and Order 11–14 [47]. Specifically, the court focused on defendant’s

acknowledgement that the court was not bound by the plea agreement’s stipulated sentencing

11 range of 0 to 6 months; that no one had promised him what sentence would actually be imposed;

and that he faced a maximum sentence of one year. See

But none of these representations—

and nothing else in the plea agreement or Rule 11 colloquy—demonstrates that defendant

understood that he faced a mandatory minimum sentence. And in the absence of such evidence in

the record, there is nothing to refute defendant’s assertion that he would not have pled guilty had

he been informed that he faced a mandatory minimum sentence.

For its part, the government—arguing that the Magistrate Judge’s error was not

harmless—states that it “has no reason to doubt the veracity of [defendant’s and counsel’s]

representations [and that] there is nothing in the current record to refute these assertions.” Gov’ts

Resp. to Def.’s Appeal 6 [72]. Indeed, the record shows that defendant promptly moved to

withdraw his guilty plea upon the Magistrate Judge’s determination that

carried a

mandatory minimum sentence. See Unopp. Mot. to Withdraw Guilty Plea [37]. Common sense

thus suggests that defendant would not have pled guilty had he understood that he faced a

mandatory minimum sentence. In sum, the totality of the circumstances—namely, the

representations of both parties and defendant’s prompt attempt to withdraw his plea—

demonstrates that the Magistrate Judge’s Rule 11 error affected defendant’s decision to plead

guilty. The Court thus finds that the Magistrate Judge clearly erred in finding that her error was

harmless. See Robinson,

(“In order to establish that the court's error affected [a

defendant’s] substantial rights, [] he ‘must show a reasonable probability that, but for the error,

he would not have entered the plea.’”) (quoting Dominguez Benitez,

).

In moving to withdraw his guilty plea, defendant demonstrated, on the basis of the

record, that the Magistrate Judge’s Rule 11 error was not harmless. The Magistrate Judge

therefore should have permitted him to withdraw his guilty plea. See Ford,

12 (“Thus, when the defendant can show that the initial plea colloquy was not conducted in

‘substantial compliance’ with [Rule 11], the defendant should ‘almost always’ be permitted to

withdraw his plea.”) (quoting Abreu,

). Accordingly, this Court finds that the

Magistrate Judge abused her discretion in denying defendant’s motion to withdraw his guilty

plea.

IV. CONCLUSION

For the reasons discussed above, it is hereby

ORDERED that the Magistrate Judge’s denial [47] of defendant’s unopposed motion to

withdraw his guilty plea is REVERSED; and it is furthermore

ORDERED that defendant’s appeal of the Magistrate Judge’s denial [54] of his motion to

reconsider is MOOT.

SO ORDERED.

Signed by Royce C. Lamberth, Chief Judge, on August 3, 2011.

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