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United States v. Kenley

July 6, 2006


The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge


Before the court is Defendant's motion to withdraw his guilty plea (Doc. 25).*fn1 On May 15, 2006, the court held an initial hearing with respect to Defendant's motion, and on June 14, 2006, the court held a subsequent hearing. (See Doc. 27.) Following the June 14, 2006 hearing, the court provided Defendant an opportunity to submit a brief and the Government an opportunity to file a responsive brief for the limited purpose of addressing Defendant's statute of limitations argument. (See Doc. 45.) The parties have now fully addressed Defendant's motion, and the matter is ripe for disposition. For the reasons that follow, the court will deny Defendant's motion.

I. Background

A. Procedural History

On January 4, 2006, Defendant entered a guilty plea to a three-count indictment. Defendant was scheduled to be sentenced on May 15, 2006. On May 10, 2006, Defendant filed the instant motion to withdraw his guilty plea (Doc. 25).

Thereafter, the court held a hearing with respect to Defendant's motion on May 15, 2006. During the May 15, 2006 hearing, after Defendant called into question the conduct and advice of his attorney, Thomas Thornton,*fn2 as well as the content of the proffer sessions, it became apparent that it would be necessary and proper for the Government to call Mr. Thornton as a witness. The court scheduled a subsequent hearing, terminated Mr. Thornton as Defendant's counsel, and provided Defendant with new counsel. (Doc. 27.) The subsequent hearing was held on June 14, 2006.

B. Factual History

1. The March 8, 1992 Robbery and Murder at the Red Roof Inn and the Subsequent Investigation

On March 8, 1992, the Red Roof Inn on Eisenhower Boulevard, Swatara Township, Pennsylvania, was robbed and Red Roof Inn clerk Sue Behrens was murdered. (Doc. 18, Guilty Plea Hr'g Tr. 16, Jan. 4, 2006.)*fn3 An autopsy of Mrs. Behrens revealed that she died as a result of multiple cuts and stab wounds from a knife. (Id.)

Defendant quickly became a person of interest in the robbery and murder. (Id. at 17.) Defendant, who had been an employee of the Red Roof Inn, was observed with cuts on his hands following the March 8, 1992 incident. (Id.) When questioned by the police, Defendant denied involvement in the incident. (Id.) However, from time to time, over the course of the following decade, police received information that Defendant and another individual, Tyrone Poole,*fn4 had made admissions of their involvement in the events of March 8, 1992. (Id.)

2. The Grand Jury Investigation, Charges Brought Against Defendant in Dauphin County, and the Alleged Witness Tampering

In September 2001, a federal grand jury began investigating the matter and compelled the testimony of several witnesses who confirmed Defendant's involvement in the March 8, 1992 incident. (Id.) As part of the federal grand jury investigation, Defendant's former wife, Alisha Kenley, was subpoenaed to appear before the grand jury on April 7, 2004. (Id.) Alisha Kenley had previously told investigators that she knew nothing about Defendant's involvement in the March 8, 1992 events. (Id.) However, on April 7, 2004, while meeting with investigators prior to going into the grand jury, she admitted that she had such knowledge. (Id.) Specifically, Alisha Kenley told investigators that Defendant came to the house where they lived in Oberlin, Pennsylvania in the early morning hours of March 9, 1992 and knocked on the bedroom window to be let in. (Id. at 18.) Alisha Kenley said that Defendant had blood on his hands and clothing. (Id.) She also said that he showered once inside the house and burned the clothing and a bloody towel in the fireplace in the basement area of their home and that the towel had contained a knife, which she described as being a kitchen-type knife that was also bloody. (Id.) Alisha Kenley admitted to putting the knife in the trunk of a vehicle, and within a few days, of disposing that weapon in a dumpster outside of a restaurant in Highspire, Pennsylvania. (Id.)

Based upon the information provided at the grand jury hearings, it was determined that there was enough evidence to arrest Defendant for his involvement in the March 8, 1992 incident. (Id.) The charges were brought in Dauphin County. Sometime thereafter, the Dauphin County District Attorney indicated that Dauphin County intended to seek the death penalty or in the alternative a felony murder charge carrying a life sentence.

Following his arrest, Defendant placed a call to Alisha Kenley from the Dauphin County Prison. (Id. at 19.) These calls were recorded. (Id.) During one conversation, Defendant told Alisha Kenley to tell investigators that she had made up her testimony before the grand jury. (Id.)*fn5

3. The Proffer Agreement and the Subsequent Proffer Sessions

On May 17, 2004, Defendant, along with Mr. Thornton, made a proffer to federal agents. (See Gov. Ex. 1.) The proffer agreement provided that no statements made by [Defendant] during the proffer/discussion will be used against him in the Government's case-in-chief should [Defendant] be indicted on charges related to the subject matter of the proffer/discussion. However, the Government may make derivative use of and may pursue any investigative leads suggested by any statements made by him. (Def. Ex. 2 at p. 1.) The proffer agreement also provided that "in the event that [Defendant] is a witness at any trial and offers testimony materially different from any statements made during the proffer/discussion, the attorney for the Government may cross-examine him and use said statements." (Id. at 2.)

During the May 17, 2004 proffer session, Defendant admitted his involvement in the planning and execution of the robbery; however, Defendant continued to assert his innocence with respect to the murder of Mrs. Behrens. (Gov't Ex. 1.) Defendant stated that Mr. Poole had committed the murder while Defendant was not in the room. (Id.) According to Defendant's proffer, when he entered the room where Mrs. Behrens and Mr. Poole were, Mr Poole was in the process of stabbing Mrs. Behrens. (Id. at 2.) Defendant asserted that he grabbed Mr. Poole and took the knife away from him. (Id.) Defendant asserted that he suffered cuts on his hands during the course of taking the knife from Mr. Poole. (Id.)

A second proffer session was held on May 27, 2004. (See Gov't Ex. 2.) During the May 27, 2004 proffer session, Defendant was questioned about some additional details related to the March 8, 1992 incident. (Id.) Additionally, Defendant was informed that he was going to be subjected to a polygraph test in the future with respect to his repeated assertions that he did not commit the murder.*fn6


4. Subsequent Federal Plea Negotiations

According to testimony provided at the May 15, 2006 and June 14, 2006 hearings by Mr. Thornton and Defendant's Dauphin County Public Defender, Paul Muller, during December 2005, there were conversations between United States Assistant Attorney William Behe, the Dauphin County District Attorney, Defendant, and his counsel, with respect to a federal plea agreement. According to Mr. Thornton and Mr. Muller, the Government initially offered Defendant a plea agreement that included a forty-year sentence recommendation and an agreement to nol-pros the pending charges in Dauphin County in return for Defendant's guilty plea to charges under 18 U.S.C. § 1951 (Hobbs Act robbery), 18 U.S.C. § 371 (criminal conspiracy), and 18 U.S.C. § 1512 (witness tampering). According to Mr. Muller, Defendant asked him to counter with a request for a twenty-year sentence recommendation. That request was denied. Following additional negotiations, the Government tentatively offered a plea agreement that provided Defendant with a thirty-year sentence recommendation. However, according to Mr. Muller, the Dauphin County District Attorney was unwilling to agree to a thirty-year recommendation.

On January 4, 2006, jury selection in Defendant's Dauphin County trial was slated to begin, although trial was not slated to begin until the following month. At that point, all of the jurors had returned questionnaires and defense counsel had had an opportunity to review the jury pool. According to testimony by Mr. Muller and Defendant, Mr. Muller informed Defendant that the jury pool did not appear to be favorable to Defendant.

At some point before the members of the jury pool were brought into the courtroom, the Government offered Defendant a plea agreement that retained all of the original provisions with the exception that it provided for a thirty-five-year sentence recommendation. According to Defendant's testimony, the plea agreement was conditioned as a final offer that he had to accept before the jury pool entered the courtroom or the plea agreement would be withdrawn. Defendant asserted that he had approximately two minutes to decide whether he wanted to accept the plea agreement.

Mr. Thornton's June 14, 2006 testimony indicates a significantly different time-line than Defendant's. According to Mr. Thornton, he was called on the morning of January 4, 2006, told that a subsequent plea agreement was being offered to Defendant, and asked to participate as Defendant's counsel. Mr. Thornton testified that he arrived at the courthouse approximately one hour later. Mr. Thornton stated that he went over the plea agreement with Defendant and Defendant's Dauphin County public defenders for approximately one and half hours. During that time, Mr. Thornton testified that he read over the entire plea agreement with Defendant and explained in detail the consequences of accepting the plea agreement.

Mr. Thornton testified that he strongly recommended Defendant accept the plea agreement because Defendant was facing capital murder charges in his Dauphin County case and because he had heard Defendant admit responsibility for the robbery, even though Defendant denied responsibility for the murder. Mr. Muller testified that he similarly encouraged Defendant to accept the plea agreement because under the ...

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