United States District Court, D. New Hampshire
MCCAFFERTY UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
Voluntary, Intelligent, and Knowing Plea
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.
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.
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.
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.
Tucker's Lack of Access to Discovery
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