The opinion of the court was delivered by: Chief Judge Kane
Pending before the Court is Defendant Tana Adkins's motion to withdraw her guilty plea, which she entered on May 3, 2006, pursuant to a plea agreement with the United States. In accordance with the plea agreement, Defendant pleaded guilty to Counts I and III of a superseding indictment. Count I charged Defendant with conspiring to engage in interstate prostitution, in violation of 18 U.S.C. § 371. Count III charged Defendant with conspiracy to engage in money laundering, in violation of 18 U.S.C. § 1956(h).*fn1 Upon entry of Defendant's guilty plea, the Court ordered preparation and disclosure of a presentence report and scheduled sentencing for August 14, 2006. According to Defendant, the presentence report calculated Defendant's guideline range at 168 to 210 months. The report recommended that the Court increase the base offense level for the conspiracy count contained in Count III on the basis of U.S.S.G. § 2G1.3 to account for two victims who were less than 16 years old.*fn2 Defendant filed objections to the report on August 29, 2006. On October 4, 2006, Defendant moved to withdraw her guilty plea, principally due to the sentencing recommendation set forth in the presentence report. Defendant alleges that the recommended guideline range of 168-210 months is well in excess of a range of 36 to 42 months that Defendant and the Government discussed as a possible range pursuant to a guilty plea. The Government agrees that this initial range was discussed without the parties contemplating that an applicable cross-reference for involvement of juveniles would be triggered as Defendant had no personal involvement with the juveniles.
Defendant has advanced three arguments in support of her motion to withdraw her guilty plea. First, she contends that she was not personally involved in prostituting juveniles. Second, Adkins asserts that she was using psychotropic drugs at the time of her guilty plea, which caused her to be "confused and mentally distraught" at the time she entered her plea. Finally, Adkins asserts that she pleaded guilty based upon her understanding that she would receive a sentence of between 36 and 42 months imprisonment.
Federal Rule of Criminal Procedure 32(e) provides, in relevant part, that "the Court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Fed. R. Crim. P. 32(e). A criminal defendant "has no absolute right to withdraw a guilty plea" under this Rule. United States v. Martinez, 785 F.2d 111, 113 (3d Cir. 1986). A motion to withdraw a guilty plea is entrusted to the discretion of the district court, and the district court's refusal to allow a defendant to withdraw a guilty plea will be overturned on appeal only if the district court has abused this discretion. United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001). In general, courts typically consider three primary factors in reviewing a motion to withdraw a guilty plea: "(1) whether the defendant asserts her innocence; (2) whether the government will be prejudiced by withdrawal; and (3) the strength of the defendant's reasons for moving to withdraw." Martinez, 785 F.2d at 114 (quoting United States v. Trott, 779 F.2d 912, 915 (3d Cir. 1985)); see also Brown, 250 F.3d at 815; United States v. Jones, 979 F.2d 317, 319 (3d Cir. 1992); United States v. Huff, 873 F.2d 709, 712 (3d Cir. 1989). Additionally, "[a] simple shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons to force the government to incur the expense, difficulty and risks of trying a defendant, who has already acknowledged his guilt before the court." Jones, 979 F.2d at 318. Upon consideration of the foregoing guidelines and factors, and following careful consideration of Defendant's offered reasons for moving to withdraw her plea, the Court will deny Defendant's motion.
First, to the extent Defendant is arguing that she should not be held accountable for the illegal acts of other members of the conspiracy to which she has pleaded guilty because she herself was not personally involved in such acts, Defendant's argument fails as a matter of law.
It is well-settled that an individual who voluntarily joins a criminal conspiracy may be charged with the conduct of other co-conspirators so long as such acts were reasonably foreseeable and in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 647-48 (1946) (a co-conspirator is criminally liable for the acts of other members of the conspiracy that were taken in furtherance of the conspiracy and reasonably foreseeable as a necessary and natural consequence of the conspiracy); United States v. Pojilenko, 416 F.3d 243, 248 & n.5 (3d Cir. 2005). The United States has represented that the evidence at trial would show that Adkins's pimp, Defendant Kenneth Britton, was involved in the prostitution of juveniles. (Doc. No. 514, at 4-5.) Furthermore, the United States represented that the evidence would establish both that Adkins regularly prostituted herself for Britton and wired him proceeds and funds derived from this unlawful conduct, and that pimps within the broader conspiracy were regularly involved in the prostitution of juveniles during the course of the conspiracy. (Id. at 5.) In open Court, Defendant waived her Fifth Amendment right against self-incrimination and pleaded guilty to being a participant in this conspiracy. Based upon Defendant's admission and plea, and upon consideration of the well-settled rule announced in Pinkerton regarding the liability of co-conspirators, the Court concludes that the fact that Defendant was allegedly not personally involved in the prostitution of juveniles does not support her request to withdraw her plea to being a participant in the charged conspiracies.*fn3 If the Government is able to demonstrate at sentencing that a preponderance of the evidence supports the guideline enhancement in question, and assuming that the Court finds for the Government on this point, there is no legal support for Defendant's argument that she cannot be held accountable for her co-conspirators' conduct.
The Court is even less persuaded by Defendant's assertion that her use of psychotropic medication during the plea colloquy before the Court should invalidate the guilty plea. Defendant's brief in support of her motion to withdraw her plea states as follows:
Defendant has stated in her Motion that, at the time of the Plea Hearing, she was under the influence of three mood altering drugs, Lithium, Celexa and Remeron. Further, she has stated that she was emotionally distraught at the time of the hearing because she had been deprived of direct contact with her two minor children for six months due to incarceration. Because of these factors, she has averred that she was confused during her Plea Hearing and did not understand the consequences of her Plea. (Doc. No. 494, at 2.)
A review of the Court's explicit colloquy with Defendant regarding her use of medication during her guilty plea hearing is appropriate:
Q: Are you now under the care of a psychiatrist or a psychologist right now?
Mr. Foster: Could I speak to my client for a minute?
(Mr. Foster and the defendant confer.)
Q: You are seeking medical attention or ...