United States District Court, M.D. Pennsylvania
MALACHY E. MANNION United States District Judge
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.
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).
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
January 24, 2017, a draft Presentence Investigation Report
(“PSR”) was prepared by the probation office.
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.
court has jurisdiction under 18 U.S.C. §3231 and
defendant's motion to withdraw his guilty plea is within
this court's discretion.
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)).
court now must consider each of the above factors.
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).
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).
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 ...