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United States of America v. Douglas John Fitzgerald

February 25, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
DOUGLAS JOHN FITZGERALD, DEFENDANT.



The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge

MEMORANDUM DECISION AND ORDER

INTRODUCTION

Pending before the Court is Defendant's Motion for Release on Bond Pending Appeal (Dkt. 109). In his Motion, he requests an order vacating the decision to deny him leave to withdraw his guilty plea and allowing him to be released on bond pending the outcome of his appeal. Having reviewed Defendant's supporting memorandum, the Government's Response (Dkt. 111), and Defendant's Reply (Dkt. 114), the Court enters the following Order denying the Motion.

BACKGROUND

A detailed recitation of the procedural history of this case is necessary to provide context for the Court's ruling on the pending Motion and the underlying Motion to Withdraw Guilty Plea.

On May 13, 2009, the Government filed an Indictment against Defendant charging one count of corrupt endeavor to obstruct and impede the due administration of the Internal Revenue laws in violation of 26 U.S.C. § 7212(a) and six counts of attempt to evade and defeat tax in violation of 26 U.S.C. § 7201. Indictment, Dkt. 1. On November 23, 2009, he was represented by Federal Defender Thomas Monaghan at his arraignment and detention hearing, and he was released pending trial with conditions. Minutes, Dkt. 7, 8; Order, Dkt. 9. On February 23, 2009, Federal Defender Teresa Hampton filed a Notice of Appearance and Association as Co-counsel (Dkt. 16).

On September 3, 2010, after two lengthy trial continuances granted at Defendant's request and the Government's filing of several motions in limine and notices of intent to produce evidence, the Government filed a Plea Agreement signed by Defendant under which he agreed to plead guilty to one count of attempt to evade income taxes. On September 14, 2010, the day set for the change of plea hearing, Teresa Hampton and Thomas Monaghan filed a Motion to Withdraw (Dkt. 41) and Terrance L. McCauley filed an Application for Admission Pro Hac Vice (Dkt. 42) with Robert Aldridge as local counsel.*fn1 Defendant advised at the hearing that he wanted to proceed to trial with his newly retained counsel. Trial was reset for September 27, 2010.

Mr. McCauley filed a motion to continue the trial at least 120 days to review the voluminous discovery produced by the Government. Motion to Continue, Dkt. 45.

Although suggesting that Defendant retained new counsel to delay trial and sentencing, the Government agreed to a continuance. Response, Dkt. 46. The Court thereafter reset the trial for February 22, 2011. Order, Dkt. 48.

In December of 2010 and January of 2011, the parties filed various motions in limine. Shortly before trial, Defendant filed a Motion to Dismiss (Dkt. 60) alleging violation of the Speedy Trial Act which the Court denied on February 1, 2011. Mem. Dec. and Order, Dkt. 62. On February 4, 2011, the Government filed a virtually identical Plea Agreement (Dkt. 63) signed by Defendant which, like the first Plea Agreement, provided for a plea to one count of attempt to evade income taxes. Defendant entered his plea before this Court on February 8, 2011, after a lengthy plea hearing. Minutes, Dkt. 67. Sentencing was set for May 5, 2011. Id.

On April 18, 2011, Defendant, through Mr. McCauley, requested a continuance of the sentencing to allow more time for acquiring documents from Defendant's banks in the Philippines to refute the Government's claims that he used for personal and private benefit money originally declared as being for religious or charitable purposes. Motion to Continue, Dkt. 69. The Court granted the motion and reset the sentencing for July 14, 2011. Order, Dkt. 70.

On July 1, 2011, Defendant filed a pro se "Notice of Termination for Lack of Effective Assistance of Counsel for Good Cause Shown" (Dkt. 73) in which he alleged the counsel had essentially "done nothing" for the $50,000 he paid him thereby effectively forcing him to enter the Plea Agreement.*fn2 He also filed a "Notice of Mistake, Notice of Withdrawal of Consent to Not Guilty Plea Agreement for Mistake for Good Cause, conditional Acceptance of Charges" (Dkt. 74) in which he claimed that the "mistaken and erroneous advice of counsel" induced him to enter the Plea Agreement. He also requested appointed counsel.

On July 5, 2011, Defendant filed another pro se "Notice of Termination for Lack of Effective Assistance of Counsel for Good Cause Shown" (Dkt. 75) in which he alleged that he had been forced to lie in the Plea Agreement, that counsel had never assisted him in a defense, that counsel failed to communicate with him, and that counsel failed to provide exculpatory evidence to rebut the Presentence Report or to file pleadings as requested.

On July 8, 2011, the Government filed its Response (Dkt. 76) urging the Court to deny Defendant's pro se motions arguing that the motions were further delay tactics and that Defendant was "playing games with the Court." Together with its Response, the Government filed its Notice of Sentencing Position (Dkt. 77) in which it advised the Court that it was changing its prior position on sentencing. The Government now argued that Defendant should not receive credit for acceptance of responsibility (based in part on Defendant's misleading his counsel and the Court that he had paid $308,912 in restitution when in fact he had submitted "bogus" "promissory notes") and that he should receive a two-level enhancement for obstruction of justice (for submitting worthless promissory notes and a false tax return for 2005 to the Probation Officer), thus effectively increasing Defendant's guideline range by five levels.

Also on July 8, 2011, Mr. McCauley filed a motion to allow him to withdraw on the grounds that Defendant had demanded several times that he cease representation and that communications between them had broken down completely. Motion to Withdraw, Dkt. 79.

On July 11, 2011, Defendant filed a pro se Motion to Withdraw Plea of Guilty (Dkt. 82) and pro se Motion to Cancel Sentencing (Dkt. 83). On July 12, 2011, Mr. McCauley filed a sentencing memorandum on Defendant's behalf. Sent. Mem., Dkt. 84.

On July 13, 2011, the Government filed a Notice of Exhibits together with the exhibits themselves to demonstrate that Defendant "understands the legal process and acts intentionally to delay it" and that "he refuses to recognize the jurisdiction of the Court, except in lawsuits that he files himself." Notice at 2, Dkt. 86.

On July 14, 2011, the Court granted defense counsel's Motion to Withdraw, declined to appoint counsel without a new financial affidavit given questions raised by Defendant's ability to retain counsel, conducted a Faretta hearing, concluded that Defendant could represent himself, deniedhis pro se motions, and proceeded to sentencing. Minutes, Dkt. 89.

At the sentencing portion of the hearing, the Court agreed with the Government that Defendant should not receive an adjustment for acceptance of responsibility and imposed a two-level enhancement for obstruction of justice. Id. The Court sentenced Defendant to the bottom of the resulting 51 to 60-month guideline range. The Court then ordered that Defendant be taken into custody immediately based on its concern that Defendant would not self-report. Id.

During his sentencing argument, Defendant submitted papers that were marked as Exhibit B. Dkt. 91. The documents were entitled, "Notice of Special Appearance Non Acceptance of Offer to Contracts Entitled Rule 11 Plea Agreement Indictment 071311-djf." Dkt. 91. Attached to that document was (1) a copy of the Plea Agreement and Indictment bearing the words, "I DO NOT ACCEPT THIS OFFER, I DO NOT CONSENT TO THESE PROCEEDINGS, AND I DO NOT CONSENT TO ACT AS SURETY," and (2) ADMINISTRATIVE NOTICE AND DEMAND FOR IDENTIFICATION AND CREDENTIALS QUO WARRANT for Elizabeth Smith and

B. Lynn Winmill." Dkt. 91-1 (all caps in original). The Court noted that they appeared to be similar to documents that the Court had received in other cases in which a ...


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