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United States v. Velazquez

United States District Court, M.D. Pennsylvania

June 13, 2017

UNITED STATES OF AMERICA
v.
JOSE VELAZQUEZ, Defendant

          MEMORANDUM

          MALACHY E. MANNION United States District Judge

         Pending before the court are the March 10, 2017 motion of defendant Jose Velazquez, a/k/a “Sev”, to withdraw his guilty plea and the motion of William J. Watt, Esquire to withdraw as Velazquez's defense counsel and for appointment of substitute counsel. (Doc. 321, Doc. 322). On April 24, 2017, Watt filed the briefs in support of the stated motions on behalf of the defendant and himself. (Doc. 329, Doc. 330). The government took no position with respect to Watt's motion to withdraw as defense counsel. After being granted an extension of time, the government filed its brief in opposition to defendant's motion to withdraw his guilty plea on May 10, 2017. (Doc. 355). Defendant did not file a reply brief and the time to do so has expired. The court has considered the arguments raised in both motions and in the briefs filed by the parties, as well as the transcript from defendant's guilty plea hearing, (Doc. 351), and, it will DENY the motion to withdraw the guilty plea and GRANT the motion of counsel to withdraw.

         I. BACKGROUND

         On October 18, 2016, a Superseding Indictment was filed charging defendant and his co-defendants with several counts of offenses involving drugs and sex trafficking. Among the charges filed against defendant were conspiracy to distribute and possess with the intent to distribute in excess of 100 grams of heroin, cocaine base (“crack”) and Percocet, in violation of 18 U.S.C. §841(a)(1) and §841(b)(1)(B), (Count 1), and sex trafficking by force and coercion, in violation of 18 U.S.C. §1591(a) and (b)(1) and 2, (Count 7). (Doc. 214). On November 8, 2016, defendant and Watt signed a Statement of Defendant that acknowledged defendant's trial rights, which he was waiving by his guilty plea, the nature of the charges to which he was pleading guilty, and the possible maximum sentences that could be imposed for the charges. (Doc. 253.) The Statement of Defendant also stated that no promises, threats or inducements had been made to defendant regarding his guilty plea, that defendant was entering his plea voluntarily, that defendant was admitting the conduct alleged in Counts 1 and 7 of the superseding indictment was true, and that he committed these offenses. Further, defendant signed a motion to withdraw his prior plea of not guilty and to enter his plea of guilty to Counts 1 and 7 of the Superseding Indictment. (Doc. 256).

         On November 9, 2016, defendant, who was represented by Watt, pled guilty to Counts 1 and 7 of the Superseding Indictment, pursuant to a written plea agreement, after a hearing was held. (Doc. 260, Doc. 351). At the hearing, defendant indicated that he discussed his plea agreement with Watt and that he was satisfied with Watt's representation.

         On January 24, 2017, a draft Presentence Investigation Report (“PSR”) was prepared by the probation office. (Doc. 281).

         On April 10, 2017, defendant filed his motion to withdraw his guilty plea pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B), and Watt filed his motion to withdraw as Velazquez's defense counsel. (Doc. 321, Doc. 322). To date, no sentencing date has been set by the court due to the pending motions.

         This court has jurisdiction under 18 U.S.C. §3231 and defendant's motion to withdraw his guilty plea is within this court's discretion.

         II. DISCUSSION

         “Once a court accepts a defendant's guilty plea, the defendant is not entitled to withdraw that plea simply at his whim.” United States v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). “Federal Rule of Criminal Procedure 11 provides that a defendant may withdraw a plea of guilty “after the court accepts the plea, but before it imposes sentence if ... the defendant can show a fair and just reason for requesting the withdrawal.” U.S. v. Johnson, 491 Fed.Appx. 326, 329 (3d Cir. 2012) (citing Fed.R.Crim.P. 11(d)(2)(B)). “The burden of demonstrating a ‘fair and just' reason falls on the defendant, and that burden is substantial.” Jones, 336 F.3d at 252. “In determining whether a defendant has satisfied his burden, a district court must consider three factors: ‘(1) whether the defendant asserts his innocence; (2) the strength of the defendant's reasons for withdrawing the plea; and (3) whether the government would be prejudiced by the withdrawal.'” Johnson, 491 Fed.Appx. at 329 (citing Jones, 336 F.3d at 252). “A shift in defense tactics, a change of mind, or the fear of punishment are not adequate reasons to impose on the government the expense, difficulty, and risk of trying a defendant who has already acknowledged his guilt by pleading guilty.” Johnson, 491 Fed.Appx. at 329 (quoting United States v. Brown, 250 F.3d 811, 815 (3d Cir. 2001)). If a defendant fails to meet his burden regarding the first two factors, the government does not need to show prejudice. U.S. v. Shumaker, 475 Fed.Appx. 817, 821 (3d Cir. 2012) (citing United States v. Martinez, 785 F.2d 111, 116 (3d Cir. 1986)).

         The court now must consider each of the above factors.

         The first factor is defendant's assertion of his innocence. In his motion, defendant seeks to withdraw his guilty plea to the charges in both Counts 1 and 7. He asserts that he is innocent of the charges to which he pled guilty. However, in his brief, defendant only explains how he is allegedly innocent of the charge in Count 7, sex trafficking by force and coercion, and he states, without elaboration, that at a hearing on his motion he will produce evidence to show his innocence, seemingly as to both charges, as well as unspecified “evidence/testimony establishing his lack of knowledge.” (Doc. 329, pp. 3-4). Defendant does not address in his brief how he is innocent of the drug charge in Count 1. Nor does he specify what evidence he has to show his innocence regarding Count 7. As the government states, “[defendant] relies on a claim of innocence that is inconsistent with his knowing representations to the contrary on the record.” (Doc. 355, p. 8). The Third Circuit has repeatedly held that “[b]ald assertions of innocence are insufficient to permit a defendant to withdraw his guilty plea.” Johnson, 491 Fed.Appx. at 329 (quoting Jones, 336 F.3d at 252). “Rather, ‘[a]ssertions of innocence must be buttressed by facts in the record that support a claimed defense.'” Johnson, 491 Fed.Appx. at 329-30 (quoting Brown, 250 F.3d at 818).

         With respect to the charge in Count 7, defendant points out it alleges that he forced and coerced the victim, M.F., to engage in commercial sex acts from “in or about 2011 to in or about June 2014.” (Doc. 214, p. 15). However, defendant asserts that “he was incarcerated on unrelated offenses from March 25, 2011 through June 25, 2011, October 4, 2011 through March 25, 2012, October 29, 2012 through November 27, 2012 and October 29, 2013 through February 17, 2015.” Thus, defendant maintains that “during a substantial portion of the time of the alleged criminal conduct [in Count 7], [he] was incapable of committing criminal conduct.” Moreover, defendant admits that while “he was present at the time when prostitution related activities were occurring”, he claims that “he never forced or coerced an individual to commit a sex act.” (Doc. 329, pp. 3-4).

         According to defendant's own representation in his brief, he was not incarcerated during the following relevant times: January 1, 2011 through March 24, 2011; June 26, 2011 through October 3, 2011; March 26, 2012 through October 28, 2012; and November 28, 2012 through October 28, 2013 (i.e., 11 months just for the last period of time). Clearly, defendant was out of prison more than enough time during the relevant ...


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