The opinion of the court was delivered by: Honorable Edward J. Lodge U. S. District Judge
Before the Court in the above-entitled matter is the Defendant Daniel M. Davis' Motion to Withdraw Guilty Plea. The Ninth Circuit remanded the motion to this Court with direction that a record be made regarding Mr. Davis' allegations that his counsel's actions at the time of the plea hearing rendered his plea involuntary. (Dkt. No. 133.) Accordingly, the Court set a hearing date for September 2, 2010 and took testimony regarding the allegations.*fn1 Based on the testimony presented at the hearing and the entire record herein, the Court finds as follows.
Factual and Procedural Background*fn2
On August 16, 2007, the Government filed a criminal Complaint in this matter alleging Mr. Davis unlawfully and knowingly possessed sexually explicit images of minors engaging in sexually explicit conduct. (Dkt. No. 1.) At the initial appearance, the Court appointed the Federal Public Defender to represent Mr. Davis. (Dkt. No. 6.) The Government later filed an Indictment charging Mr. Davis with one count of Possession of Sexually Explicit Images of Minors and one count of Criminal Forfeiture. (Dkt. No. 14.) At the arraignment, Mr. Davis appeared with retained counsel John E. Sutton. (Dkt. No. 17.) On November 30, 2007, a Notice of Appearance was filed by Mr. Sutton and Charles C. Crafts as attorneys of record for Mr. Davis. (Dkt. No. 23.)The jury trial was initially set for December 4, 2007. (Dkt. No. 17.) The trial was later continued to February 26, 2008 and again to May 27, 2008 to allow time for Mr. Davis to undergo mental evaluations. (Dkt. Nos. 25, 30.) The Court granted another motion to continue moving the trial date to July 1, 2008. (Dkt. No. 35.)
Thereafter, Mr. Davis filed a Motion for Self Representation and Release on Recognizance to which the Government responded. (Dkt. Nos. 36, 37.) On June 18, 2008, the Court scheduled a hearing on Mr. Davis' Motion. At this hearing, the Court inquired of Mr. Davis regarding his request to proceed pro se and took argument on the Motion. At the request of the parties, the Court recessed the hearing until the following day to allow Mr. Davis time to confer privately with his counsel. (Dkt. No. 47.) The next day, the Court reconvened the hearing and was advised that Mr. Davis had decided to enter a guilty plea. The Court made the necessary Rule 11 inquiries of Mr. Davis and accepted his plea of guilty which was made pursuant to a written plea agreement. (Dkt. Nos. 48, 52, 56.)*fn3 The Motion for Self Representation was deemed moot. (Dkt. No. 52.)
The sentencing date was set for September 15, 2008. On August 28, 2008, Mr. Davis filed pro se Motions to Continue the sentencing arguing ineffective assistance of counsel and for Reconsideration of his request for self representation. (Dkt. Nos. 54, 55.) On September 3, 2008, Mr. Davis again filed a pro se Motion to Suppress and Motion for Injunction both of which sought to address his allegation that certain CD fragments were used to force him into pleading guilty. (Dkt. Nos. 57, 58.) On September 4, 2008, Mr. Davis' counsel, Mr. Crafts and Mr. Sutton, filed a Motion to Withdraw and Motion to Continue Sentencing. (Dkt. Nos. 59, 60.) The Court granted the Motion to Continue Sentencing and set a hearing on the remaining pending Motions. (Dkt. No. 61.) Prior to the hearing, Mr. Davis made further pro se filings of a Motion to Withdraw his Plea of Guilty and Motion to Dismiss Complaint. (Dkt. Nos. 62, 64.) As to his Motion to Withdraw his plea, Mr. Davis raised his allegations that his counsel at the time of his plea on June 18 and 19, 2008, Mr. Crafts, coerced him into entering his guilty plea with threats that the Government would bring obstruction of justice charges against his family if he refused. Mr. Davis asserts his attorney confronted him with the Government's evidence in the form of a recorded telephone conversation between he and his mother where they allegedly discussed destroying possible evidence. (Dkt. No. 64.)
On September 15, 2008, the hearing on all pending Motions was held where upon the Court engaged Mr. Davis at length regarding his conflict with current counsel, his desire to proceed pro se or have new counsel appointed, and the nature of the other pending Motions. (Dkt. No. 66.) The Court ordered appointment of new counsel whereupon Philip H. Gordon was ultimately appointed to represent Mr. Davis. (Dkt. No. 72.)
The Court granted Mr. Gordon additional time to review the record in this case and obtain copies of the transcripts in order to properly advise Mr. Davis regarding his Motions and how best to proceed in this matter. (Dkt. Nos. 73, 75, 76, 77.) On November 7, 2008, Mr. Davis filed a Motion to Dismiss Mr. Gordon as his counsel in this matter. (Dkt. No. 78.) In this Motion, Mr. Davis alleged that Mr. Gordon "will not listen to me," was talking to and friendly with prior counsel which was a "conflict of interest in representing my best interests," was and "resistant to investigating any other defense strategy." (Dkt. No. 78.) The Court set yet another hearing on the newest Motion to Withdraw for November 19, 2008. (Dkt. No. 81.)
At that hearing, the Court again probed Mr. Davis as to the basis for his Motions. The Court also reviewed the record which revealed a clear pattern of Mr. Davis' filing of pro se motions shortly before hearings in an effort to delay these proceedings. As such, the Court gave Mr. Davis the options of either proceeding with his current counsel, retaining new counsel, or proceeding pro se with Mr. Gordon serving as standby counsel. (Dkt. Nos. 83, 93.) A recess was taken to again allow Mr. Davis time to consider how to proceed and confer with counsel. Upon resuming the hearing, the Court again inquired of Mr. Davis as to how he wished to proceed. Mr. Davis refused to answer or respond. The Court then denied the Motion to Withdraw Plea of Guilty and requested that Mr. Gordon continue to assist Mr. Davis in his sentencing in this matter that was set for December 19, 2008. (Dkt. No. 83.)
Again, December 3, 2008, Mr. Davis filed a pro se Motion to Reconsider the Court's denial of his Motion to Withdraw Guilty Plea and a pro se Motion to Withdraw Counsel Phillip Gordon. (Dkt. Nos. 85, 86.) In the Motion to Reconsider Withdraw of Guilty Plea, Mr. Davis asserted the Court erred in not granting his prior Motion to Withdraw because his intent was to always proceed to trial and that his June 19, 2008 plea was coerced and the product of improper influence and ineffectiveness of his counsel. (Dkt. No. 86.) As to the Motion to Withdraw Counsel, Mr. Davis requested appointment of new counsel or that he be allowed to proceed pro se. (Dkt. No. 85.) The Government and Mr. Gordon both filed materials in response to the Motions. On December 9, 2008, the Court entered an Order granting Mr. Davis' request to proceed pro se and reappointed Mr. Gordon to appear as standby counsel for Mr. Davis at sentencing and denying his Motion to Withdraw Plea. (Dkt. No. 93.) The sentencing remained set for December 19, 2008.
Consistent with his pattern of filing pro se motions shortly before hearings, Mr. Davis, on December 17, 2008, filed a pro se Motion to Continue Sentencing. (Dkt. No. 94.) The Court initially denied the Motion and held the sentencing hearing as scheduled on December 19, 2008. (Dkt. No. 95.)*fn4 At the hearing, Mr. Davis again request that the sentencing be continued so that he could properly prepare for the sentencing hearing and, in particular, coordinate calling a witness, Dr. Dave Stanford, Ph.D, who was unavailable. (Dkt. No. 96.) The Court considered Mr. Davis' request and granted that same, continuing the sentencing hearing to February 9, 2009. (Dkt. No. 96.) The Court also granted Mr. Davis' Motion for authorization of payment of expert services for Dr. Stanford to appear as an expert witness at the sentencing hearing in this matter. (Dkt. No. 103.)*fn5 Ultimately, on February 9, 2009, Mr. Davis was sentenced to a 168 month term of imprisonment on Count One of the Indictment. (Dkt. Nos. 109, 110.)*fn6 The ensuing appeal followed resulting in the April 13, 2010 Remand for this Court to reconsideration of Mr. Davis' request to withdraw his guilty plea. (Dkt. No. 133.) The Court has now done so and finds as follows.
Standard for Withdrawing a Guilty Plea
"Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a defendant may withdraw a plea of guilty prior to the imposition of sentence if he 'can show a fair and just reason for requesting the withdrawal.'" United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008); Fed.R.Crim.P. 11(d)(2)(B). "The decision to allow withdrawal of a plea is solely within the discretion of the district court." United States v. Showalter, 569 F.3d 1150, 1156-57 (9th Cir. 2009) (quoting United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004) (quoting United States v. Nostratis, 321 F.3d 1206, 1208 (9th Cir. 2003)).
"While the defendant is not permitted to withdraw his guilty plea 'simply on a lark,' the 'fair and just' standard is generous and must be applied liberally." McTiernan, 546 F.3d at 1167. The "proper inquiry is whether the defendant has shown a fair and just reason for withdrawing his plea even if the plea is otherwise valid." Id. The defendant bears the burden of establishing that withdrawal is warranted. Id.; see also Fed. R. Crim. P. 11(d)(2)(B). "[E]ach case must be reviewed in the context in which the motion arose to determine whether, ultimately, a "fair and just" reason exists." Id. To help make this determination, the Advisory Committee on Criminal Rules has adopted the following guidelines:
Although the terms "fair and just" lack any pretense of scientific exactness, guidelines have emerged in the appellate cases for applying this standard. Whether the movant has asserted his legal innocence is an important factor to be weighed, as is the reason why the defenses were not put forward at the time of original pleading. The amount of time which has passed between the plea and the motion must also be taken into account.
Fed. R. Crim. P. 32 advisory committee's note (1983) (citations and internal quotation marks omitted). "Fair and just" reasons for withdrawal in the Ninth Circuit have included: "inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea." McTiernan, 546 F.3d at 1167 (citing Davis, 428 F.3d at 805 (internal quotation marks omitted); see also Showalter, 569 F.3d at 1156-57 and United States v. Briggs, Nos. 09-30108, 09-30111, 09-30115, 09-30116, 2010 WL 3733558 at *2 (9th Cir. 2010) (citing United States v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009)). "Erroneous or inadequate legal advice may also constitute a fair and just reason for plea withdrawal, even without a showing of prejudice, when the motion to withdraw is made presentence." Id. (quoting Davis, 428 F.3d at 806-808 ("his counsel's gross mischaracterization [of a possible sentence] plausibly could have motivated his decision to plead guilty[,] [n]othing in Rule 11(d)(2)(B) requires a defendant to show more in order to satisfy the 'fair and just reason' standard.").
I. Allegations of Threats and Coercion by Counsel
The crux of Mr. Davis' Motion to Withdraw Guilty Plea is whether or not his plea was voluntary or was instead the product of his counsel's coercion and threats that if he failed to plead guilty, the Government would investigate and arrest his mother and brother for obstruction of justice. At the September 2, 2010 hearing, Mr. Davis took the stand and testified that he was threatened and coerced multiple times by his attorney, Mr. Crafts, on June 18 and 19, 2008 into pleading guilty. (Transcript, Davis Direct.)*fn7 Mr. Crafts testified at the hearing and denied ever having threatened or coerced Mr. Davis into pleading guilty. Likewise, Mr. Sutton*fn8 testified that he never saw Mr. Crafts threaten or coerce Mr. Davis into entering his guilty plea. (Transcript, Sutton Direct.)*fn9
The first instance of coercion alleged by Mr. Davis occurred at the motions hearing on June 18, 2008 where Mr. Davis alleges Mr. Crafts confronted him with the Government's evidence of recorded telephone calls between he and his mother where they allegedly discussed destroying certain CD's which were potential evidence in this case. Mr. Davis testified this was when Mr. Crafts first told him the Government would investigate his family for possible obstruction of justice charges if he did not take the plea. The Court then granted the defense's request for a recess until the following day in order to allow time to review the evidence and determine how to proceed.
The second instance alleged by Mr. Davis occurred later that evening when Mr. Crafts met with him at the Jail to listen to the telephone call recordings. Mr. Davis testified that Mr. Crafts came to the jail twice on June 18, 2008. The first time he brought the wrong CD's and the second time the battery on his laptop died. Thus, Mr. Davis claims he never heard the telephone calls that evening.*fn10 Mr. Davis maintains any reference he made to his mother regarding throwing away CD's during the telephone calls had to do with books on CD that were worthless and he didn't need anymore; denying that he instructed her to destroy any possible evidence. Mr. Davis stated that during the evening visits to the jail Mr. Crafts "hinted again that the phone call was circumstantial evidence of them helping me to destroy evidence" and that "my family would be implicated if I didn't take the plea." (Transcript, Davis Direct.)
Mr. Crafts countered this allegation, testifying that on June 18, 2008 he played the tapes for Mr. Davis several times and discussed the contents of them with Mr. Davis.*fn11
Upon hearing the tapes, Mr. Crafts testified that Mr. Davis "panicked," "became nervous," and was worried about his family becoming the subject of criminal charges. (Transcript, Crafts Direct.) Mr. Crafts testified that Mr. Davis "demanded" that he negotiate a plea with the Government that it would not pursue charges against his family, which he then did.
The third occurrence came on June 19, 2008 while in the Marshal's holding area where Mr. Davis alleges Mr. Crafts showed him a baggie of CD fragments with his mother's name on it.*fn12 Mr. Davis claims Mr. Crafts told him the CD fragments were circumstantial evidence upon which the Government could investigate his mother for obstruction of justice and that he stated "this is enough to hang your family so you have no choice but to take the plea." (Transcript, Davis Direct.) Mr. Davis further stated that Mr. Crafts told him that his family would be incarcerated pending the investigation for obstruction of justice. Mr. Davis testified that his response to these comments was that he wanted to call his mother and tell her he was going to enter a guilty plea so that she would not be in jail and investigated. Mr. Crafts testified that he did not recall showing the baggie of CD fragments to Mr. Davis. Regarding the cell phone call from the Marshal's holding cell, Mr. Crafts testified that Mr. Davis had agreed to plead guilty but he wanted to talk to his mother and let her know what was going to happen. Mr. Crafts again denied that any threats were made at that time.
The final instance of coercion alleged by Mr. Davis occurred thereafter, on June 19, 2008, when Mr. Davis and his counsel were sitting in the courtroom awaiting the hearing. Mr. Davis claims Mr. Crafts pointed to the man sitting behind counsel for the Government and stated that if Mr. Davis did not sign the plea agreement that man would walk out and call the local sheriff's office and have his mother and brother taken into custody immediately. (Transcript, Davis Re-Direct.) Mr. Davis testified as a result he then signed the plea and did not say anything during the Rule 11 admonitions from the Court because he did not want his family put in jail or investigated. Mr. Crafts denied pointing to the investigator and threatening Mr. Davis on June 19, 2008 just prior to the plea hearing taking place. Mr. Crafts testified that instead on June 19, 2008 he and counsel for the Government discussed the interlineation made to the Plea Agreement to eliminate the stipulation regarding obstruction of justice.
Based on these events, Mr. Davis maintains his plea was coerced, involuntary, and he was forced to enter a guilty plea in order to spare his family from being arrested. Counsel denies the accusations made my Mr. Davis. Thus, the issues raised are whether any such threats were made and ...