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United States v. Koch

United States District Court, M.D. Pennsylvania

April 24, 2018

UNITED STATES OF AMERICA,
v.
MICHAEL KOCH, Defendant.

          MEMORANDUM OPINION

          Matthew W. Brann United States District Judge

         I. BACKGROUND

         Defendant Michael Koch (hereinafter “Koch”) was indicted on October 27, 2016 on two counts of mailing threatening communications and three counts of threatening a federal official. An assistant federal public defender was appointed to represent Koch; after Koch moved for replacement counsel, Kyle W. Rude, Esquire was substituted. Thereafter, on September 11, 2017, Koch presented in person to change his not guilty plea to an open plea of guilty, without the benefit of a plea agreement, to all counts charged.

         More than four months later, on January 31, 2018, Koch, through counsel, filed a Motion to Withdraw the Guilty Plea, [1] together with an attendant supporting brief.[2] A hearing was held to consider the merits of this motion on April 20, 2018.

         During the hearing, Mr. Rude was present and prepared to represent Koch. However, Koch asserted he desired to proceed pro se. I attempted to persuade Koch to continue with the benefit of Mr. Rude's representation. But because Koch insisted that he proceed without the assistance of Mr. Rude, I engaged in a colloquy with Koch in accordance with United States v. Peppers, 302 F.3d 120 (3d Cir. 2002). Following this colloquy, I permitted him to proceed pro se, but asked Mr. Rude to remain as standby counsel.

         II. DISCUSSION

         Federal Rule of Criminal Procedure 11 governs pleas. Subsection (d) of Rule 11 states:

(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason; or
(2) after the court accepts the plea, but before it imposes sentence if:
(A) the court rejects a plea agreement under Rule 11(c)(5); or
(B) the defendant can show a fair and just reason for requesting the withdrawal.[3]

         In his motion, Koch argues he should be able to withdraw his guilty plea for these reasons:

a) Defendant wishes to reinstate his right to testify at trial; b) the reinstatement would not be unduly prejudicial to the government; c) Defendant maintains that he did not commit second and third threats, but instead only responded to questions concerning the single threat, and used this one threat as an attachment to his Affidavit, all of which was addressed during the September 11, 2017 hearing; d) the government did not object to the averments made by Defendant during the September 11, 2017 hearing stated above in paragraph ‘c;' e) Defendant was not motivated by DM's status as a former federal official, and Defendant was not notified of this necessary element of the offense; f) Defendant's motive is, and has been, to seek a psychiatric evaluation, which requests for same have been denied; g) Defendant's additional motive is to seek and interpretation of the plea agreement; h) the government is seeking to enhance sentencing based upon facts not established by the record and disputed as stated above.[4]

         In his counseled brief, Koch argues “Defendant believes that a necessary element of the offense for 18 USC §115(a)(2) was the Defendant had to be motivated by the victims official status. Defendant submits that since no facts were stated regarding this motive such a requirement renders Defendant's plea of guilty to Counts Three, Four, and Five involuntary and unintelligent.”[5] Additionally, Koch asserts that “at the September 11, 2017 hearing, Defendant, through counsel, clearly stated that Defendant was not admitting to multiple threats but rather a single threat that was repeated as a basis for a second or third threat charge.”[6]

         Moreover, “at the September 11, 2017 hearing, Defendant, through counsel, clearly stated that Count Five 18 U.S.C. § 115(a)(2) was not an additional threat, but a direct response to a question asked during the June 29, 2016 DHO hearing, by federal officials concerning the June 1, 2016 affidavit attached as an exhibit to a motion for the court to take judicial notice.”[7] “Defendant submits that Federal Criminal Rule 11 was violated with regard to the three counts of violating 18 USC§115(a)(2).”[8] “Defendant's guilty plea to Counts Three, Four, and Five should be rendered involuntary and unintelligent, Defendant moves to withdraw the plea of guilty to Counts Three, Four, and Five.”[9]

         Koch subsequently sent a pro se letter[10] to the Court which stated he was only moving to partially withdraw his plea. The letter is reproduced in its entirety herein:

         (Image Omitted)

         Koch argued at the April 20, 2018 hearing that he wished to withdraw his plea because he did not admit all the facts alleged by the Government during Koch's guilty plea hearing. He further argued that the statement he made during his prison disciplinary hearing should have been suppressed. He also stated that he did not receive a copy of the transcript of the September 11, 2017 change of plea hearing. The relevant portions of that hearing have been cited herein at length.

         It stands to reason that “a guilty plea frequently involves the making of difficult judgments.”[11] “Once accepted, a guilty plea may not automatically be withdrawn at the defendant's whim.”[12] “A defendant seeking to withdraw a guilty plea bears a substantial burden of showing a ‘fair and just reason' for the withdrawal of his plea.”[13] “Although the burden which a defendant must meet to show there are grounds for withdrawal of a guilty plea before sentence is imposed is not as heavy as it would be in a post-sentence motion, nonetheless it is defendant's burden to establish that there are in fact grounds for withdrawal.”[14]

In this circuit, “we look to three factors to evaluate a motion to withdraw: (1) whether the defendant asserts his innocence; (2) whether the government would be prejudiced by the withdrawal; and (3) the strength of the defendant's reason to withdraw the plea.”[15] “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.”[16] I address each of the three factors in turn.

         A. Koch does not assert his innocence.

         “In assessing a defendant's claim of ‘legal innocence' for purposes of withdrawal of a guilty plea, we must first examine whether the defendant has asserted his or her factual innocence.”[17] “Assertions of innocence must be buttressed by facts in the record that support a claimed defense.”[18] “Further, a defendant must also give sufficient reasons to explain why contradictory positions were taken before the district court.”[19] “It follows that a court, in addressing a withdrawal motion, must consider not only whether the defendant has asserted his innocence, but also the reason why the defenses now presented were not put forward at the time of original pleading.”[20] “Were mere assertion of legal innocence always a sufficient condition for withdrawal, withdrawal would effectively be an automatic right.”[21]

         Koch argues that he is innocent because needed to be ‘motivated' by the victim's status as a federal official. While motive may at times be an element of a crime, more often motive is a not an element of a crime. As described in detail in the next section of this Memorandum Opinion, and here, ‘motive' is not an element of any of the offenses with which Koch is charged. Therefore, the Court finds that this factor does not weigh in favor of granting the motion to withdraw.

         B. Koch's arguments in support of withdrawing his plea are weak.

         When a plea is “properly entered” in accordance with Rule 11 procedures, to subsequently move to withdraw a guilty plea “substantial reasons…must be asserted” by the Defendant.[22] Koch's reasons are inadequate.

         The September 11, 2017 change of plea hearing was conducted in open court with Koch appearing in person in accordance with Federal Rule of Criminal Procedure 11(b)(1).[23] During the guilty plea hearing, I progressed sequentially through Rule 11, commencing by asking the Defendant whether he had received a copy of the indictment[24]-Koch responded that he had;[25] whether he had discussed the charges with Mr. Rude and whether he was satisfied with the representation received from Mr. Rude[26]-he responded in the affirmative to both questions;[27] his competency to change his plea[28]-to which Koch responded that he was currently taking Motrin and Nortriptyline to treat his migraine headaches which improved his thinking and judgment.[29] He also stated that he has depression and anxiety but was taking no medications for those disorders and understood why he was appearing in federal court and was able to concentrate thon the proceedings.[30] I also asked the Defendant if he understood the Government's right to use his statements made under oath against him in a prosecution for perjury or false statement[31]-to which he responded that he understood;[32] I asked if he understood that he had the right to persist in his plea of not guilty[33]-to which he responded affirmatively;[34] I explained that he had a right to a 12-juror, unanimous verdict jury trial in which the Government has the burden of proof beyond a reasonable doubt and Koch has the right at trial to counsel, to cross-examine witnesses against him, present evidence, and choose not to testify[35]-Koch replied that he understood that he was giving up this right by pleading guilty.[36]

         I further explained the nature of each of the five counts charged in the indictment to Koch along with the statutory maximum sentences for each count, and delineated the aggregated statutory maximum term of imprisonment of forty-five (45) years for all five offenses combined.[37] Koch agreed that he understood the statutory maximums.[38] I then colloquied Koch to ensure he understood that I have the authority to order restitution and that I must impose a special assessment;[39] again, he responded affirmatively.[40]

         I asked both the Government and defense counsel if they had estimated the advisory guideline range, Mr. Rude replied that he had estimated twenty-four (24) to sixty (60) months;[41] counsel for the Government responded that he had estimated a range between thirty (30) to thirty-seven (37) months.[42] I addressed Koch directly stating “Mr. Koch, if I determine after reviewing the pre-sentence report that your guideline sentence is different from what has been estimated, you cannot withdraw your guilty plea, do you understand that sir?”[43] Koch replied, “Yes, Your Honor.”[44] I continued to address Koch directly, stating, “If you disagree with the report, this guilty plea is still binding on you, but you can contest the report with the officer and after that before me, if necessary…Do you understand that sir?”[45] Koch again replied, “Yes, Your Honor.”[46] I continued, “Mr. Koch, your plea of guilty will be binding on you whether or not I agree with their facts and recommendations at sentencing. Do you understand that sir?”[47] Once again, Koch replied, “Yes, Your Honor.”[48] I persisted with this line of questioning, asking Koch “Do you further understand that no one can guarantee you what sentence you will receive from me?”[49]

         Because there was no plea agreement, I undertook a Frye[50] and Lafler[51]colloquy with Koch, to which he confirmed that counsel communicated to him all plea offers made by the Government, whether written or unwritten, and that he had refused all offers.[52]

         Finally, I ensured that there was a factual basis underlying the plea. The Assistant United States Attorney recited the elements of the offenses, then followed with the facts underlying the offenses, stating:

In order to prove the defendant guilty of violating Section 876, the Government must establish the following three elements: First, that the defendant threatened to kidnap or injure D.M., as charged in the indictment; Second, that the defendant deposited or caused to be deposit in the mail for delivery by the United States Postal Service the communication containing that threat; And third, that the defendant mailed the threat knowingly.
And with respect to count two, that the threat was addressed to a government official engaged in the performance of their official duties. With respect to counts three through five, threatening a federal officer, the Government would have to show the following elements: First, that the defendant threatened to assault, kidnap or murder D.M., as charged in the indictment; Second, at the time of the alleged threat, D.M. was a former federal official; And third, that the defendant acted with the intent to impede, intimidate or interfere with that official or with the intent to retaliate against that official on the account of the performance of her official duties.
The Government would show this and show that the defendant was aware of the threatening nature of his communications through the following evidence that would be presented at trial.
On June 1st, 2016 or thereabouts, the defendant mailed a letter to the United States District Court in Scranton. I won't read the entire letter, but in pertinent part the letter contains the following language that I will read with the Court's permission verbatim from the letter that the defendant wrote. “Because the staff of BOP at issue here have clearly demonstrated a continuing and ongoing intent to deceive the Court by fraudulent means, the petitioner is prejudiced from being able to present contrary evidence.”
The letter goes on to say, “The petitioner freely admits to willfully transmitting in interstate commerce a threat to injure D.M.” -- Your Honor, he spells out the name in full in this letter -- “for her actions and that such a threat is directly related to the illegal activities of D.M., and the petitioner will present a mental health defense at trial and a jury will have to determine the finding of guilt.”
There is an affidavit in this letter that says, “I, Michael William Koch, do swear under penalty of perjury before all of the Deities of Heaven, Earth and Hell upon my eternal soul that this affidavit is true and correct. As soon as possible, I will kidnap D.M. from her home, car, place of employment, or wherever I find it most convenient, by force. I will use duct tape to bind her hands and feet and cover her mouth. I will put D.M. in a cardboard box and transport her to a location of my choice. There I will use many devices to torture D.M. and to maim her.
“I swear before all of the Deities of Heaven, Earth and Hell that I will not allow D.M. to die nor to violate her female parts. D.M. will be a full woman when I release her, by my oath. She will neither walk, talk, see, hear or be desired by anyone ever again.”
The letter goes on to acknowledge that it has been transmitted in interstate commerce via the U.S. Post Office to the both the U.S. District Court, located at Post Office Building at Washington and Linden Streets, Scranton, Pennsylvania, and the U.S. Attorney's Office located at 700 Stewart Street, Suite 5220, Seattle, Washington. It's dated June 1st, 2016 and signed by Michael William Koch with his register number and Lewisburg, Pennsylvania.
The letter to Scranton has an envelope which has the address of Scranton, Pennsylvania and the U.S. District Court.
Your Honor, a similar letter was sent to -- addressed to U.S. Attorney, 700 Stewart Street, Suite 5220, Seattle, Washington.
This letter -- and here I'm paraphrasing -- indicates the same type of threats against D.M. And it's also dated June 1st, 2016 and signed by Michael William Koch, Lewisburg, Pennsylvania with his register number.
There was a disciplinary hearing at the Lewisburg Penitentiary on June 29th, 2016. At that point Michael William Koch made an additional statement. I'm quoting verbatim from this statement now. “I make this statement to clarify the issue at hand; mainly, on June 1st, 2016, I mailed a letter in interstate commerce threatening to kidnap, torture ...

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