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United States v. Tucker

United States District Court, D. New Hampshire

October 4, 2018

Unites States of America
Steven Tucker



         On September 28, 2017, defendant Steven Tucker pleaded guilty pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) to one count of sex trafficking of a minor in violation of 18 U.S.C. § 1591(a). Tucker moves to withdraw his guilty plea (doc. no. 51). The government objects. The court held a hearing on Tucker's motion on July 2, 2018. For the reasons that follow, the court denies Tucker's motion.


         On January 25, 2017, Tucker was indicted on three counts: (1) Sex Trafficking of a Minor in violation of 18 U.S.C. § 1591 (Count I); (2) Use of Interstate Facility to Promote Unlawful Activity in violation of 18 U.S.C. § 1952 (Count II); and (3) Maintaining Drug-Involved Premises in violation of 21 U.S.C. § 856. The following day, Tucker, who at the time was represented by Jonathan Saxe, a public defender, waived his right to a detention hearing and stipulated to detention.

         On January 31, 2017, Attorney Saxe moved to withdraw from the case, and the court granted the motion on the following day. On February 3, 2017, the court appointed Attorney Justin Shepherd to represent Tucker. On August 29, 2017, the court appointed Attorney Paul Garrity as Tucker's co-counsel.

         After several continuances, trial was scheduled for October 10, 2017. On September 28, 2017, Tucker and his two attorneys signed a plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). In exchange for Tucker's agreement to plead guilty to Count One of the Indictment, which charged Tucker with sex trafficking of a minor, the government agreed to dismiss Counts Two and Three and to a stipulated sentence of 120 months' imprisonment.

         That same day, the court held a change of plea hearing. Tucker, represented by both Attorneys Shepherd and Garrity, stated during the plea colloquy that he had met with his attorneys several times to discuss the plea agreement, that he was satisfied with his attorneys' representation, that he understood the consequences of his plea, and that he was entering the plea because he was guilty of the charged offense. The court accepted Tucker's plea of guilty as to Count One and scheduled sentencing for January 5, 2018.

         On November 7, 2017, Tucker filed a pro se motion requesting that both of his attorneys be relieved. See doc. no. 37. On November 14, 2017, the court held an ex parte hearing, during which Tucker clarified that he was dissatisfied with the representation of Attorney Shepherd only, not Attorney Garrity. After the hearing, the court issued an order granting “Tucker's requests (a) to permit Attorney Shepherd to withdraw and (b) to appoint Attorney Garrity as lead counsel.” November 14, 2017 endorsed order.

         Attorney Garrity subsequently filed two assented-to motions to continue Tucker's sentencing hearing, both of which the court granted. Sentencing was ultimately scheduled for March 16, 2018.

         On March 14, 2018, Attorney Garrity filed another assented-to motion to continue the sentencing hearing. See doc. no. 46. In that motion, Attorney Garrity represented that Tucker “informed the undersigned counsel on March 14, 2018 that he wishes to pursue withdrawal of his guilty plea.” Id. at 1. The court denied the motion in an endorsed order, stating that it would consider the request at the March 16 hearing.

         At that hearing, Tucker represented that he believed that his former counsel, Attorney Shepherd, may not have provided him with all the relevant discovery in the case prior to Tucker pleading guilty. The court granted Tucker an extension of time to investigate the issue and to decide whether he wished to move to withdraw his guilty plea.

         On June 4, 2018, Attorney Garrity filed the instant motion on Tucker's behalf to withdraw Tucker's guilty plea. See doc. no. 51. The government objects.


         A defendant may withdraw a guilty plea before the court imposes a sentence if he shows “a fair and just reason for requesting the withdrawal.” United States v. Sousa, 468 F.3d 42, 46 (1st Cir. 2006); see Fed. R. Crim. P. 11(d)(2)(B). In determining whether the defendant has shown a sufficient reason for requesting a withdrawal of his plea, the court considers “whether the plea was voluntary, intelligent, knowing and in compliance with Rule 11; the strength of the reasons offered in support of the motion; whether there is a serious claim of actual innocence; the timing of the motion; and any prejudice to the government if the withdrawal is allowed.” United States v. Isom, 580 F.3d 43, 52 (1st Cir. 2009) (citing United States v. Padilla-Galarza, 351 F.3d 594, 597 (1st Cir. 2003)). The “defendant bears the burden of demonstrating a ‘fair and just reason' for seeking to withdraw his plea.” United States v. Moore, 362 F.3d 129, 134 (1st Cir. 2004). The court will address each of the five Rule 11 factors in turn.

         I. Voluntary, Intelligent, and Knowing Plea

         The first factor-whether a plea is voluntary, intelligent, and knowing-is the most significant factor to consider in a Rule 11(d) analysis. Isom, 580 F.3d at 52; United States v. Negrom-Narvaez, 403 F.3d 33, 36 (1st Cir. 2005). For a plea to be voluntary, intelligent, and knowing, the plea colloquy must comply with Rule 11(b)(1) and the defendant must be competent to enter the plea. United States v. Santiago Miranda, 654 F.3d 130, 132-34 (1st Cir. 2011); United States v. Ramos, 810 F.2d 308, 312 (1st Cir. 1987). The court must also “assess whether the defendant's plea was ‘free from coercion, . . . and whether he understood the charges, and . . . consequences of the guilty plea.'” United States v. McMullin, 568 F.3d 1, 9 (1st Cir. 2009) (quoting United States v. Pagan-Ortega, 372 F.3d 22, 28 (1st Cir. 2004) (alterations omitted)). Further, a defendant may show that his guilty plea was not voluntary, intelligent, and knowing by demonstrating that it was the product of his attorney's ineffective assistance. See United States v. Fernandez-Santos, 856 F.3d 10, 17 (1st Cir. 2017); United States v. Dunfee, 821 F.3d 120, 128 (1st Cir. 2016).

         A defendant's ineffective assistance claim in the context of a motion to withdraw a guilty plea is analyzed under the familiar standard articulated in Strickland v. Washington, 466 U.S. 668 (1984). See, e.g., United States v. Pellerito, 878 F.2d 1535, 1537 (1st Cir. 1989). The court must determine (1) whether counsel's performance fell below the standard of performance of reasonably proficient counsel and (2) whether, by such inadequate performance, the defendant was induced to enter a guilty plea which he otherwise would not have entered. United States v. Austin, 948 F.2d 783, 786 (1st Cir. 1991).

         Tucker does not take issue with the Rule 11 colloquy at the September 28, 2017 change of plea hearing. As Tucker and Attorney Garrity agreed at the hearing on the instant motion, the Rule 11 colloquy established that: Tucker was entering the plea voluntarily; he understood the charges and factual allegations against him; he was guilty of sex trafficking of a minor; and he understood the consequences of pleading guilty. Attorney Garrity also confirmed that he met with Tucker at least six times at the prison prior to Tucker entering the plea, and that he had a lengthy meeting with Tucker in the hours before the change of plea hearing.

         Instead, Tucker claims that his plea was not voluntary, intelligent, and knowing because it was the product of Attorney Shepherd's ineffective assistance. Specifically, he argues that Attorney Shepherd was ineffective for 1) failing to obtain and/or provide him with all of the discovery to which he was entitled, and 2) failing to determine that the government was precluded from bringing federal charges against him in light of his guilty plea to other charges in New Hampshire state court.

         A. Tucker's Lack of Access to Discovery

         Viewed generously to Tucker, his motion raises two claims of ineffective assistance of counsel with regard to discovery. The first is that Attorney Shepherd provided ineffective assistance in failing to obtain all discoverable material from the government prior to Tucker entering his guilty plea. The second is that Attorney Shepherd failed to provide Tucker ...

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