UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Unites States of America

v. Criminal No. 17-cr-009-LM Opinion No.

Steven Tucker

O R D E R

On September 28, 2017, defendant Steven Tucker pleaded

guilty pursuant to Federal Rule of Criminal Procedure

11(c)(1)(C) to one count of sex trafficking of a minor in

violation of

(a). Tucker moves to withdraw his

guilty plea (doc. no. 51). The government objects. The court

held a hearing on Tucker’s motion on July 2, 2018. For the

reasons that follow, the court denies Tucker’s motion.

BACKGROUND

On January 25, 2017, Tucker was indicted on three counts:

(1) Sex Trafficking of a Minor in violation of

(Count I); (2) Use of Interstate Facility to Promote Unlawful

Activity in violation of

(Count II); and (3)

Maintaining Drug-Involved Premises in violation of

. The following day, Tucker, who at the time was represented

by Jonathan Saxe, a public defender, waived his right to a

detention hearing and stipulated to detention. On January 31, 2017, Attorney Saxe moved to withdraw from

the case, and the court granted the motion on the following day.

On February 3, 2017, the court appointed Attorney Justin

Shepherd to represent Tucker. On August 29, 2017, the court

appointed Attorney Paul Garrity as Tucker’s co-counsel.

After several continuances, trial was scheduled for October

10, 2017. On September 28, 2017, Tucker and his two attorneys

signed a plea agreement pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C). In exchange for Tucker’s agreement to

plead guilty to Count One of the Indictment, which charged

Tucker with sex trafficking of a minor, the government agreed to

dismiss Counts Two and Three and to a stipulated sentence of 120

months’ imprisonment.

That same day, the court held a change of plea hearing.

Tucker, represented by both Attorneys Shepherd and Garrity,

stated during the plea colloquy that he had met with his

attorneys several times to discuss the plea agreement, that he

was satisfied with his attorneys’ representation, that he

understood the consequences of his plea, and that he was

entering the plea because he was guilty of the charged offense.

The court accepted Tucker’s plea of guilty as to Count One and

scheduled sentencing for January 5, 2018.

2 On November 7, 2017, Tucker filed a pro se motion

requesting that both of his attorneys be relieved. See doc. no.

37. On November 14, 2017, the court held an ex parte hearing,

during which Tucker clarified that he was dissatisfied with the

representation of Attorney Shepherd only, not Attorney Garrity.

After the hearing, the court issued an order granting “Tucker’s

requests (a) to permit Attorney Shepherd to withdraw and (b) to

appoint Attorney Garrity as lead counsel.” November 14, 2017

endorsed order.

Attorney Garrity subsequently filed two assented-to motions

to continue Tucker’s sentencing hearing, both of which the court

granted. Sentencing was ultimately scheduled for March 16,

2018.

On March 14, 2018, Attorney Garrity filed another assented-

to motion to continue the sentencing hearing. See doc. no. 46.

In that motion, Attorney Garrity represented that Tucker

“informed the undersigned counsel on March 14, 2018 that he

wishes to pursue withdrawal of his guilty plea.” Id. at 1. The

court denied the motion in an endorsed order, stating that it

would consider the request at the March 16 hearing.

At that hearing, Tucker represented that he believed that

his former counsel, Attorney Shepherd, may not have provided him

with all the relevant discovery in the case prior to Tucker

pleading guilty. The court granted Tucker an extension of time

3 to investigate the issue and to decide whether he wished to move

to withdraw his guilty plea.

On June 4, 2018, Attorney Garrity filed the instant motion

on Tucker’s behalf to withdraw Tucker’s guilty plea. See doc.

no. 51. The government objects.

DISCUSSION

A defendant may withdraw a guilty plea before the court

imposes a sentence if he shows “a fair and just reason for

requesting the withdrawal.” United States v. Sousa,

(1st Cir. 2006); see Fed. R. Crim. P. 11(d)(2)(B). In

determining whether the defendant has shown a sufficient reason

for requesting a withdrawal of his plea, the court considers

“whether the plea was voluntary, intelligent, knowing and in

compliance with Rule 11; the strength of the reasons offered in

support of the motion; whether there is a serious claim of

actual innocence; the timing of the motion; and any prejudice to

the government if the withdrawal is allowed.” United States v.

Isom,

(1st Cir. 2009) (citing United States v.

Padilla-Galarza,

(1st Cir. 2003)). The

“defendant bears the burden of demonstrating a ‘fair and just

reason’ for seeking to withdraw his plea.” United States v.

Moore,

(1st Cir. 2004). The court will

address each of the five Rule 11 factors in turn.

4 I. Voluntary, Intelligent, and Knowing Plea

The first factor—whether a plea is voluntary, intelligent,

and knowing—is the most significant factor to consider in a Rule

11(d) analysis. Isom,

; United States v. Negrom-

Narvaez,

(1st Cir. 2005). For a plea to be

voluntary, intelligent, and knowing, the plea colloquy must

comply with Rule 11(b)(1) and the defendant must be competent to

enter the plea. United States v. Santiago Miranda,

, 132–34 (1st Cir. 2011); United States v. Ramos,

(1st Cir. 1987). The court must also “assess whether

the defendant’s plea was ‘free from coercion, . . . and whether

he understood the charges, and . . . consequences of the guilty

plea.’” United States v. McMullin,

(1st Cir.

2009) (quoting United States v. Pagan-Ortega,

(1st Cir. 2004) (alterations omitted)). Further, a defendant

may show that his guilty plea was not voluntary, intelligent,

and knowing by demonstrating that it was the product of his

attorney’s ineffective assistance. See United States v.

Fernandez-Santos,

(1st Cir. 2017); United States

v. Dunfee,

(1st Cir. 2016).

A defendant’s ineffective assistance claim in the context

of a motion to withdraw a guilty plea is analyzed under the

familiar standard articulated in Strickland v. Washington,

(1984). See, e.g., United States v. Pellerito, 878

, 1537 (1st Cir. 1989). The court must determine (1)

whether counsel’s performance fell below the standard of

performance of reasonably proficient counsel and (2) whether, by

such inadequate performance, the defendant was induced to enter

a guilty plea which he otherwise would not have entered. United

States v. Austin,

(1st Cir. 1991).

Tucker does not take issue with the Rule 11 colloquy at the

September 28, 2017 change of plea hearing. As Tucker and

Attorney Garrity agreed at the hearing on the instant motion,

the Rule 11 colloquy established that: Tucker was entering the

plea voluntarily; he understood the charges and factual

allegations against him; he was guilty of sex trafficking of a

minor; and he understood the consequences of pleading guilty.

Attorney Garrity also confirmed that he met with Tucker at least

six times at the prison prior to Tucker entering the plea, and

that he had a lengthy meeting with Tucker in the hours before

the change of plea hearing.

Instead, Tucker claims that his plea was not voluntary,

intelligent, and knowing because it was the product of Attorney

Shepherd’s ineffective assistance. Specifically, he argues that

Attorney Shepherd was ineffective for 1) failing to obtain

and/or provide him with all of the discovery to which he was

entitled, and 2) failing to determine that the government was

6 precluded from bringing federal charges against him in light of

his guilty plea to other charges in New Hampshire state court.

A. Tucker’s Lack of Access to Discovery

Viewed generously to Tucker, his motion raises two claims

of ineffective assistance of counsel with regard to discovery.

The first is that Attorney Shepherd provided ineffective

assistance in failing to obtain all discoverable material from

the government prior to Tucker entering his guilty plea. The

second is that Attorney Shepherd failed to provide Tucker with

all the discovery in Attorney Shepherd’s possession. The court

examines each claim in turn.

1. Government’s production of discovery

In its objection to Tucker’s motion, the government

provides a lengthy discussion of the history of its discovery

production in this case. Attorney Garrity does not dispute the

government’s representations, which the court summarizes below.

The government made several document productions to Tucker

and his various attorneys. Specifically, the government

produced discovery material to Attorney Saxe on January 30,

2017; to Attorney Shepherd on March 30, June 26, and September

25, 2017; and to Attorney Garrity on September 12 and September

25, 2017. Included in these productions were approximately

7 2,000 pages of documents and 21 discs containing recordings of

jail calls.

On May 11, 2018, in response to Tucker’s motion to withdraw

his guilty plea and his concerns about the discovery, the

government reproduced to Attorney Garrity all of the material it

had previously produced in the case. In addition, the May 11

production contained 100 additional pages of documents generated

or gathered during trial preparation, 30 of which were letters

that Tucker himself had written. Of the 70 pages Tucker and

Attorney Garrity had not yet seen, most of it was Jencks Act1

material that was favorable to the government’s case, or

material that was not discoverable under Federal Rule of

Criminal Procedure 16 and which was not helpful to Tucker’s

case, but which the government produced out of an abundance of

caution.

On May 23, 2018, Tucker and Attorney Garrity reviewed the

May 11 production in a secure private room in the United States

Attorney’s Office in the District of New Hampshire. The

government provided Attorney Garrity and Tucker with a master

index, which listed every document in the production, gave them

unlimited time to review all discovery, and made Assistant U.S.

1

.

8 Attorney Huftalen and Attorney Rao, the government’s attorneys,

available to answer any questions.

During the meeting, Tucker and Attorney Garrity raised two

issues with respect to the discovery. The first involved what

looked to be a partially-redacted police report, which contained

only the first five pages of what appeared to be a nine-page

report. The government subsequently concluded, and Tucker and

Attorney Garrity agreed, that a complete copy of the police

report was included in the May 11, 2018 production. The

government had previously produced the report to Attorney

Shepherd on May 30, 2017, and to Attorney Garrity on September

12, 2017.

The second issue involved an interview with a confidential

source, referred to as “CS9.” Tucker asserted that he believed

there was a video recording of the interview which the

government had not produced in discovery. The government

informed Attorney Garrity that it did possess a video-recorded

interview of CS9, which had not been produced because it did not

constitute Brady material.2 The government represented that the

video constituted Jencks Act material, but that it had not been

produced, in part because Tucker had agreed to plead guilty and

the government was therefore not required to produce it at that

2 Brady v. Maryland,

(1963).

9 time. In addition, the government stated that it did not

produce the video recording because it identified, by name and

face, the witness interviewed and other victims and witnesses

whose identities the government had not yet made known to

Tucker. Although the government had not produced the video

recording itself, it had produced a report—each time it produced

discovery—that accurately summarized the full video interview.

Nevertheless, to alleviate Tucker’s apparent concerns that the

government was withholding certain information, the government

arranged for Attorney Garrity to view the full video-recorded

interview, which Attorney Garrity did. At the hearing, Attorney

Garrity represented that the video did not contain information

helpful to the defense.

In light of the foregoing, Tucker has failed to show that

Attorney Shepherd provided ineffective assistance in connection

with obtaining the relevant discovery. It is plainly apparent,

and Tucker and Attorney Garrity do not meaningfully dispute,

that the government complied with its discovery obligations in

this case prior to Tucker entering into the plea agreement.

Therefore, to the extent Tucker bases his ineffective assistance

claim on Attorney Shepherd’s alleged failure to obtain relevant

discovery from the government, that argument is not persuasive.

10 2. Tucker’s access to discovery

Tucker claims that Attorney Shepherd provided ineffective

assistance because he did not give Tucker access to all the

discovery the government produced. At the hearing on the

instant motion, Tucker stated that because the discovery in this

case is subject to a protective order, see doc. no. 15, he was

unable to retain any material in prison. Rather, he was limited

to viewing discovery during brief visits with his attorneys.

Tucker asserts that Attorney Shepherd visited him only a handful

of times, each lasting approximately 20 minutes, and that Tucker

was therefore unable to review much of the discovery the

government produced.

Tucker has not met the standard for ineffective assistance

of counsel with respect to his claim concerning his access to

discovery. Even assuming Attorney Shepherd’s actions in

allegedly not allowing Tucker to view all of the material

produced by the government fell below the standard of

performance of reasonably proficient counsel, Tucker has not

shown that Attorney Shepherd’s conduct induced Tucker to enter a

guilty plea which he otherwise would not have entered.

Prior to entering his guilty plea, Tucker raised the issue

that he had not seen firsthand all of the discovery produced by

the government. According to Attorney Garrity, he met with

Tucker for an hour before the change of plea hearing and asked

11 him whether he wanted to continue the hearing to have an

opportunity to review all the discovery. Tucker responded that

he did not. Therefore, Tucker was aware of the issue prior to

the change of plea hearing, and voluntarily decided to plead

guilty despite believing that he did not review all of the

discovery. Cf. Isom,

(holding that defendant was

not entitled to withdraw guilty plea despite his concerns about

insufficient time to review discovery materials prior to

entering his plea).

In addition, Tucker fails to identify any piece of

discovery he had not previously seen that would have affected

his decision to enter into his guilty plea. At the hearing on

the instant motion, Tucker appeared to suggest that certain

additional discovery he has seen since entering his guilty plea

would have allowed him to attack the credibility of some of the

confidential informants. He was unable, however, to identify

any piece of information or specific discovery of which he was

previously unaware that would bolster his defense. See

(holding that defendant’s claims concerning his lack of

access to discovery did not entitle him to withdraw his guilty

plea when “the newly discovered evidence was not exculpatory”).

In addition, Attorney Garrity represented at the hearing

that prior to Tucker entering his guilty plea, Attorney Garrity

explained to Tucker that there were areas to attack some of the

12 witnesses’ credibility. Ultimately, however, Attorney Garrity

recommended that in light of the evidence against Tucker and the

terms offered by the government, Tucker should accept the guilty

plea. At the hearing on the instant motion, Attorney Garrity

represented that having re-reviewed every piece of discovery

provided by the government, his recommendation to Tucker to

enter into the plea agreement would have remained the same.

In the end, as Tucker stated at the hearing, his claim is

essentially that he came to realize after entering his plea that

he had a better shot at obtaining a not guilty verdict after a

trial than he believed when he entered the guilty plea. That is

insufficient to warrant withdrawal of a guilty plea. See United

States v. Muriel,

(1st Cir. 1997) (noting that

the First Circuit “has not allowed defendants, absent coercion

or mistake, to renege on plea agreements on the basis that they

have miscalculated their risks and benefits or have belatedly

discovered a new defense”); United States v. Leland,

(D. Me. 2005) (holding that a defendant’s

motion to withdraw a guilty plea “must ‘rest on more than the

defendant’s second thoughts about some fact or point of law, or

about the wisdom of his earlier decision.’” (quoting United

States v. Parrilla–Tirado,

(1st Cir. 1994)),

aff’d,

(1st Cir. 2006). That is particularly the

case in light of Attorney Garrity’s representation that, having

13 again reviewed all of the discovery provided by the government,

his recommendation to Tucker to enter into his guilty plea would

not have changed.

3. Investigator’s reports

At the hearing, Tucker raised an additional issue with

regard to Attorney Shepherd’s alleged failure to provide him

with material that would have helped him make an informed

decision on whether to plead guilty. At Tucker’s request,

Attorney Shepherd hired a private investigator to interview

several witnesses who Tucker believed could be helpful to his

case. According to Tucker, the private investigator interviewed

only three or four of these individuals. Although Tucker’s

argument was somewhat unclear at the hearing, he appears to

contend that although Attorney Shepherd told Tucker that the

private investigator had uncovered no helpful information, he

failed to inform Tucker that the private investigator had been

unable to interview many of the witnesses.

Attorney Garrity explained at the hearing that according to

the private investigator’s reports, the investigator had

traveled to North Carolina and South Carolina in an effort to

interview the witnesses Tucker requested but was unsuccessful in

locating several of them. According to Attorney Garrity, the

interviews the private investigator conducted, which Attorney

14 Garrity read after Tucker entered into his guilty plea, were not

helpful to Tucker’s case.

Tucker’s argument as to the private investigator is

unclear. Attorney Shepherd hired a private investigator at

Tucker’s request and the investigator conducted interviews with

certain witnesses who Tucker believed had information helpful to

the defense. The investigator interviewed three or four of the

witnesses, none of whom had information helpful to Tucker, and

was unable to locate and interview any other witnesses. Tucker

has not shown how Attorney Shepherd’s apparent failure to inform

him that the private investigator could not locate certain

witnesses, as opposed to informing him that the investigator had

uncovered no helpful information, amounts to ineffective

assistance of counsel. Nor does Tucker represent that had he

been aware of that fact, he would not have pleaded guilty.

For these reasons, Tucker has not shown that Attorney

Shepherd’s discovery-related conduct rises to the level of

ineffective assistance of counsel.

B. Government’s Agreement not to Pursue Charges

Tucker also argues that Attorney Shepherd was ineffective

for failing to preclude the government from bringing federal

charges against him in light of his guilty plea to related

charges in state court. Specifically, Tucker asserts that the

15 U.S. Attorney’s Office had agreed not to bring sex trafficking

charges against him in exchange for him agreeing to plead guilty

to prostitution charges in New Hampshire Superior Court.

Shortly before the hearing on Tucker’s motion to withdraw

his guilty plea, the government filed an affidavit from former

Assistant United States Attorney Nick Abramson. See doc. no.

58. In his affidavit, Attorney Abramson states that he was

involved in the investigation into Tucker on federal sex

trafficking charges in 2015. He further states:

On or about April 27, 2016, Assistant County Attorney Michael Zaino informed me of a potential state plea agreement in which the defendant would plead guilty to one count of misdemeanor prostitution, with CS1 as the victim, and two felony heroin possession charges on a separate state drug case that arose from the same transaction as the federal drug investigation. The proposed sentences totaled 24 months minus approximately 259 days of credit, as well as a suspended sentence of 7.5 to 10 years to run consecutively.

I informed ACA Zaino of my opinion that, based on my understanding of the evidence in the state’s case, the plea offer seemed reasonable. I further informed ACA Zaino that the USAONH would not continue to investigate Mr. Tucker for violations of federal drug trafficking laws if Mr. Tucker pleaded guilty to state drug charges, because the two investigations involved the same transactions and because I felt that the federal interest had been vindicated by the successful state prosecution.

Id. at ¶¶ 10-11.

Although Attorney Abramson asserts that he informed

Attorney Zaino that the U.S. Attorney’s Office would not

16 continue to investigate Tucker for drug charges related to his

state court plea, he states that he did not make any such

representation as to federal sex trafficking violations. In

addition, Attorney Abramson states that he submitted a formal

declination authorization memorandum on April 29, 2016 to

recommend closing the investigation of Tucker for federal drug

charges, but he specifically recommended proceeding with the

federal sex trafficking charges.

Although Attorney Abramson’s sworn representations show

that the government had not agreed to forego bringing federal

sex trafficking charges against Tucker in exchange for his state

court plea, his affidavit raised an issue as to Count III, the

charge of Maintaining Drug-Involved Premises. Specifically,

Attorney Abramson’s affidavit was unclear as to whether the

government made a promise to forego bringing federal drug

charges against Tucker in light of his guilty plea to state drug

charges. On July 12, 2018, the court ordered the government to

“file a memorandum with any supporting documentation concerning:

a) whether it made a promise not to bring federal drug charges

against defendant and b) if it made a promise, how that promise

affects defendant’s motion to withdraw his guilty plea in this

case.” Doc. no. 59 at 1-2.

In response to the court’s order, the government filed a

memorandum (doc. no. 62), a supplemental affidavit of Attorney

17 Abramson (doc. no. 62-1), and an affidavit of Attorney Zaino

(doc. no. 62-2). In Attorney Abramson’s affidavit, he clarified

that he did not make, or authorize Attorney Zaino to make, any

promise or representation to Tucker or Tucker’s attorney that

the government would take or refrain from taking any action with

respect to federal drug charges in light of Tucker’s state court

plea. Rather, Attorney Abramson informed Attorney Zaino that in

light of Tucker’s prior guilty plea in state court to a drug

charge arising from a single drug transaction that occurred on

July 24, 2014, the U.S. Attorney’s Office would decline to bring

charges based on that transaction. Although Attorney Abramson

made that representation to Attorney Zaino and submitted the

declination authorization memorandum to that same effect, he did

not authorize Attorney Zaino, or anyone else, to make any

representation to Tucker.

In Attorney Zaino’s affidavit, he states that he “did not

make any representations or promises to Mr. Tucker or his

attorney regarding whether the [U.S. Attorney’s Office] would

take, or refrain from taking, any action with respect to any

federal drug charges.” Doc. no. 62-2 at ¶ 13. In addition, the

government provided an excerpt from Tucker’s June 14, 2016 plea

colloquy in state court, during which Tucker represented that no

one had made any promises to him in exchange for his plea. See

doc. no. 62 at 4.

18 In response to the government’s filing, Attorney Garrity

submitted a supplemental memorandum on Tucker’s behalf. See

doc. no. 64. In his memorandum, Attorney Garrity represented

that he had spoken to Tucker’s attorney in the state court

proceedings, Joseph Fricano, who confirmed that he and Attorney

Zaino had not discussed potential federal drug charges during

their plea negotiations. Attorney Garrity further represented

that the government gave him access to emails between Attorneys

Abramson and Zaino, and that the emails showed no

representations from Attorney Abramson that federal drug charges

would be dropped or not pursued as a condition of Tucker’s state

court plea agreement. Attorney Garrity added: “For the above

stated reasons and after conferring with the defendant on this

matter the defendant cannot represent to this Court that he pled

guilty in State Court as a result of a promise that he would not

be charged in Federal Court with federal drug charges.” Doc.

no. 64 at ¶ 3.

In light of the government’s and Attorney Garrity’s

supplemental filings, the court finds that Tucker has not made

out an ineffective assistance of counsel claim based on the

state court charges.

19 C. Summary

For these reasons, the record shows that Tucker’s plea was

knowing, voluntary, and intelligent. Therefore, the first Rule

11 factor weighs against granting Tucker’s motion to withdraw

his guilty plea.

II. Strength of Reasons/Serious Claim of Actual Innocence

The second Rule 11 factor is the strength of the

defendant’s reasons for seeking to withdraw his guilty plea, and

the third is whether the defendant asserts a serious claim of

actual innocence. Isom,

. Because the court has

already considered and found unpersuasive two of Tucker’s three

reasons for seeking to withdraw his plea (i.e., issues related

to discovery and his claim that the government agreed not to

bring charges against him), the court need not further address

those two reasons. As the third reason for Tucker seeking to

withdraw his plea is a claim of actual innocence, the court

moves directly to an analysis of the third Rule 11 factor: the

seriousness of the defendant’s claim of actual innocence.

“The First Circuit has said that courts should look more

hospitably on a motion to withdraw a guilty plea when the motion

is coupled with an assertion of innocence.” United States v.

Ketchen, No. 1:13-CR-00133-JAW-02,

, at *21 (D.

Me. July 6, 2016) (internal quotation marks and citations

20 omitted), aff’d,

(1st Cir. 2017). “On the other

hand, if the defendant does not proclaim his actual innocence,

this factor cuts sharply against allowing appellant’s motion to

withdraw [his] guilty plea.”

(internal quotation marks and

citations omitted). Even where a defendant asserts actual

innocence, such an assertion must be “serious,” and provide a

“straightforward and plausible claim of actual innocence.”

Padilla-Galarza,

. “A general denial of guilt is

not enough; the defendant ‘must affirmatively advance an

objectively reasonable argument that he is innocent.’” United

States v. Small,

(D. Me. 2009) (quoting

United States v. Cray,

(D.C. Cir. 1995)),

aff’d,

(1st Cir. 2011).

In a handwritten exhibit attached to his motion to withdraw

his guilty plea, Tucker stated: “I, Steven Tucker, having

reflected on the matter and after reviewing the discovery that

had been prevented [sic] to me as of this date assert that I am

innocent of the charge to which I previously plead [sic] in this

court.” Doc. no. 51-1. At the July 2 hearing on the instant

motion, the court sealed the courtroom and allowed Tucker on an

ex parte basis an opportunity to present his reasons for seeking

to withdraw his guilty plea. Tucker did not at that time

articulate a claim of actual innocence.

21 To the extent Tucker attempts to assert a claim of actual

innocence, his claim is not serious. The government detailed in

its objection the overwhelming evidence in its possession

against Tucker, including the statements of at least 10

witnesses. Tucker offered no plausible claim that he is

innocent of the charge to which he pleaded guilty. At most, he

offered protestations regarding the credibility of certain

witnesses. He made no argument that supported a finding—or even

a suggestion—that he was innocent of this charge. Without more,

Tucker’s claim of actual innocence is a bare claim, unsupported

by evidence or a theory of innocence. See Dunfee,

(noting that a court considering a motion to withdraw a

guilty plea need not credit a “claim of innocence . . . backed

only by conclusory allegations and wishful conjecture as to the

possible existence of exculpatory evidence”); United States v.

Sanchez–Barreto,

(1st Cir. 1996) (affirming

district court’s denial of motion to withdraw guilty plea,

noting that a “district court need not credit bare protestations

of legal innocence”); United States v. Isom,

(1st Cir. 1996) (“[I]f defendant’s factual contentions create no

legally cognizable defense to the charges, he has not

effectively denied his culpability, and the motion [to withdraw

a guilty plea] can be denied.” (internal quotation marks and

22 citations omitted)). Both the second and third Rule 11 factors

weigh against granting Tucker’s motion.

III. Timing of the Motion

The fourth Rule 11 factor is the timing of the motion.

“The timing of a motion to withdraw a guilty plea is important

. . . because it is ‘highly probative of motive.’” Fernandez-

Santos,

(quoting United States v. Doyle,

(1st Cir. 1992)). “‘While an immediate change of heart

may well lend considerable force to a plea withdrawal request, a

long interval between the plea and the request often weakens any

claim that the plea was entered in confusion or under false

pretenses.’”

(quoting Doyle,

).

Tucker pleaded guilty on September 28, 2017. On March 14,

2018, Tucker moved to continue his sentencing, raising for the

first time with the court that he wished to pursue withdrawing

his guilty plea. Thus, there is a five-and-a-half-month gap

between Tucker’s plea and the first formal notice to the court

that he wanted to withdraw his plea. Such a lengthy delay

between a defendant’s plea and his motion to withdraw generally

weighs against granting the motion. See, e.g., Dunfee,

(holding that two-month delay between plea and motion to

withdraw was “extended” and “weighs against permitting

withdrawal”).

23 At the hearing, however, Tucker represented to the court

that he had raised his request to withdraw his guilty plea with

his attorneys at some point shortly after he entered into his

plea agreement, which was part of the reason for his filing his

motion for status of counsel on November 7, 2017. Attorney

Garrity did not dispute Tucker’s representation.

The court credits Tucker’s assertion at the hearing that he

attempted to notify the court that he intended to move to

withdraw his guilty plea on November 7, 2017. Thus, for

purposes of the fourth Rule 11 factor, the court will consider

the November 7, 2017 date, which is 40 days after Tucker entered

his guilty plea, as the operative date of Tucker’s motion to

withdraw.

Even with that favorable inference, however, the timing of

Tucker’s motion to withdraw his guilty plea does not weigh in

his favor. The First Circuit has held that delays of shorter

duration than presented here weighed against granting a

defendant’s motion to withdraw his guilty plea. See Ramos,

(thirteen-day delay); United States v. Keefe,

(1st Cir. 1980) (twenty-day delay). Thus, the court

considers the timing of Tucker’s motion a factor that weighs

against allowing Tucker to withdraw his guilty plea.

24 IV. Prejudice to the Government

The final Rule 11 factor asks whether there is any

potential prejudice to the government if the court permits the

defendant to withdraw his guilty plea. In short, significant

prejudice would result from a withdrawal of Tucker’s guilty

plea. Allowing Tucker to withdraw his plea would, according to

the government, force numerous government witnesses, many of

whom have been subjected to physical violence by Tucker and one

of whom is a minor, to “relive and recount a traumatic part of

their lives that they believed was far behind them.” Doc. no.

53 at 24. Many government witnesses have suffered from opioid

addiction and have attempted, sometimes more than once, to stay

clean. In addition, almost all witnesses and victims “have

expressed fear of the defendant, shame in discussing personal

details of a dark period in their lives, and immense relief that

the case, and this chapter of their lives, had finally come to a

close.”

In light of these circumstances, the court finds that the

final Rule 11 factor weighs heavily against allowing Tucker to

withdraw his guilty plea. See United States v. Santiago-Rivera,

(1st Cir. 2015) (“We also recognize the severe

prejudice that the government would face were Santiago–Rivera

permitted to withdraw his guilty plea, and the burden that his

victims would face were they forced to relive the trauma

25 inflicted upon them so long after they believed this case had

ended.”); see also Dunfee,

(“Finally, we find

that both the government and Dunfee’s victims would have been

prejudiced by a withdrawal of his plea, further tipping the

scales in favor of affirmance.”).

V. Summary

In sum, all five of the Rule 11 factors weigh against

allowing Tucker to withdraw his guilty plea. This court finds

the fifth factor—the prejudice to the government and its

witnesses—particularly weighty. The court therefore denies

Tucker’s request to withdraw his guilty plea.

CONCLUSION

For the foregoing reasons, the defendant’s motion to

withdraw his guilty plea (doc. no. 51) is denied.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

October 4, 2018

cc: Paul J. Garrity, Esq. Arnold H. Huftalen, Esq. Vasantha R. Rao, Esq. U.S. Probation U.S. Marshal

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