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United States v. Ketchen

United States District Court, D. Maine

July 6, 2016

UNITED STATES OF AMERICA
v.
ALAN KETCHEN

          ORDER ON MOTION TO WITHDRAW GUILTY PLEA

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Alan Ketchen asserts that under Federal Rule of Criminal Procedure 11(d)(2)(B), he has demonstrated a “fair and just reason for requesting the withdrawal” of his May 7, 2014 guilty plea to two counts of a five-count indictment because, pursuant to the recent United States Supreme Court ruling of McFadden v. United States, 135 S.Ct. 2298 (2015), he claims this Court failed to explain the mens rea requirements of the crimes charged against him at his Rule 11 proceeding, and the Government could not prove beyond a reasonable doubt that he knew he was possessing and distributing a controlled substance analogue. The Court denies Mr. Ketchen’s motion because he pleaded guilty to Controlled Substances Act crimes unaffected by McFadden and because the Court concludes that he knowingly and voluntarily pleaded guilty to the Analogue Act portion of the charges.

         I. PROCEDURAL BACKGROUND

         On July 17, 2013, a federal grand jury returned a five-count indictment against Mr. Ketchen and thirteen other conspiracy members for the distribution of a controlled substance and related firearm offenses. Indictment (ECF No. 1) (Indictment). Mr. Ketchen was charged in Counts One and Three. Id. at 2-5. Count One alleged that Mr. Ketchen knowingly and intentionally conspired to distribute and possess with intent to distribute 3, 4-Methylenedioxypyrovalerone (MDPV), classified as a controlled substance analogue prior to October 21, 2011, and classified as a schedule I controlled substance as of October 21, 2011, all in violation of 21 U.S.C. §§ 813, 841(a)(1). Id. at 2-3. Count Three alleged that Mr. Ketchen knowingly leased, rented, used and maintained, permanently or temporarily, a residence in Bangor, Maine for the purpose of unlawfully distributing and using MDPV, classified as a controlled substance analogue prior to October 21, 2011, and classified a schedule I controlled substance as of October 21, 2011. Id. at 4-5.

         On August 6, 2013, Mr. Ketchen was arrested, (ECF No. 75), and made his initial appearance, entering a plea of not guilty to the charges. (ECF No. 93). On May 7, 2014, Mr. Ketchen pleaded guilty to the indictment. Entry (ECF No. 374). After Mr. Ketchen and two of his co-defendants raised a question in their sentencing memoranda as to how MDPV should be treated for sentencing purposes, on June 11, 2015, the Court ruled against Mr. Ketchen and two of his co-defendants and concluded that MDPV should be considered a controlled substance analogue to methcathinone, a schedule I controlled substance. Order on Treatment of 3, 4 Methylenedioxypyrovalerone Under United States Sentencing Guidelines and Req. for Joint Presentence Conference (ECF No. 706).

         On June 30, 2015, Mr. Ketchen moved under Federal Rule of Criminal Procedure 11(d)(2)(B) to withdraw his guilty plea to Counts One and Three. Mot. to Withdraw Guilty Plea (ECF No. 708) (Def.’s Mot.). On August 31, 2015, Mr. Ketchen filed a memorandum in support of his motion to withdraw his guilty plea. Def. Alan Ketchen’s Mem. in Supp. of his Mot. to Withdraw Guilty Plea (ECF No. 722) (Def.’s Mem.). The Government objected to Mr. Ketchen’s motion on September 28, 2015. Gov’t’s Obj. to Def.’s Mot. to Withdraw Guilty Plea (ECF No. 725) (Gov’t’s Opp’n). Mr. Ketchen responded to the Government’s objection on October 13, 2015. Def.’s Resp. to Gov’t’s Obj. to Mot. to Withdraw a Guilty Plea (ECF No. 726) (Def.’s Reply).

         II. THE PARTIES’ POSITIONS

         A. Mr. Ketchen’s Motion to Withdraw Guilty Plea

         On June 18, 2015, the United States Supreme Court decided McFadden v. United States, 135 S.Ct. 2298 (2015), holding that section 841(a)(1) of the Controlled Substances Act (CSA), 21 U.S.C. §§ 801-971, “requires the Government to establish that the defendant knew he was dealing with ‘a controlled substance, ’” and specifically that:

[w]hen the substance is an analogue, that knowledge requirement is met if the defendant knew that the substance was controlled under the CSA or the [Controlled Substance Analogue Enforcement Act of 1986 (the Analogue Act)], even if he did not know its identity. The knowledge requirement is also met if the defendant knew the specific features of the substance that make it a ‘controlled substance analogue.’

Id. at 2302 (citing 21 U.S.C. § 802(32)(A)). Mr. Ketchen asserts, pursuant to McFadden, that he should be permitted to withdraw his guilty plea, as: (1) “the scienter requirement was not explained to [Mr. Ketchen] in the [Rule 11 proceeding]”; (2) “the scienter requirement was not part of the government’s version of the offense”; (3) “that a defense exists regarding an element of the offense which was not anticipated, nor explained in his plea”; and (4) that McFadden “highlights facts, laws and circumstances not known to the defendant nor explained to the defendant regarding his [Rule 11 proceeding].” Id. at 3. Mr. Ketchen concludes that because of McFadden there is “a basis for a ‘fair and reasonable reason to request withdrawal of his guilty plea, ’” and specifically that the Government failed to provide evidence in the indictment “that the defendant knew MDPV was [an] ‘analogue’ drug prior to October 21, 2011 and that the defendant knew MDPV was a controlled substance after October 21, 2011.” Id. at 3-4 (citing F. R. Crim. P. 11(d)(2)(B)).

         B. Mr. Ketchen’s Memorandum in Support of his Motion to Withdraw Guilty Plea

         Mr. Ketchen acknowledges that the burden of persuasion rests upon the defendant for a withdrawal of guilty plea, and lists the relevant factors to consider in whether to grant a withdrawal of guilty plea as including “whether the plea was voluntary, intelligent and knowing and complied with Rule 11; the force of the reasons offered by the defendant; whether there is a serious claim of actual innocence; the timing of the motion; and any countervailing prejudice to the government if the defendant is allowed to withdraw his plea.” Def.’s Mem. at 2 (citing United States v. Castro-Gomez, 233 F.3d 684, 687 (1st Cir. 2000)).

         Mr. Ketchen says that knowledge that a substance is controlled under “the Analogue Act is a necessary element of Count 1 and Count 3 of the indictment, ” and that the indictment “did not indicate that [he] knew that the substance was a controlled substance analogue prior to October 21, 2011.” Id. at 3-4. Moreover, he argues that the mere knowledge of the “identity of the substance” is not sufficient to satisfy the requisite mens rea and that in addition he needed to know the substance was controlled. Id. at 5. Mr. Ketchen asserts that the record from his Rule 11 proceeding illustrates that his plea was not “voluntary, intelligent or knowing, ” as the Government “failed to distinguish the two sets of applicable laws and the ‘knowingly’ requirement of possession and distribution under the Analogue Act” and “[did] not indicate that the [he] knew that MDPV was a controlled substance analogue during acts of possession and distribution prior to October 21, 2011.” Id. at 6 (emphasis in original).

         Regarding the other factors to be weighed when considering a withdrawal of a guilty plea, Mr. Ketchen says that the amount of time between a guilty plea and the request to withdraw the plea is a “relevant temporal gap” measured from the date of “discovery of new information occurs” to the withdrawal of guilty plea. Id. at 7 (quoting United States v. Gonzalez, 202 F.3d 20, 24 (1st Cir. 2000)). Mr. Ketchen notes that he filed his motion only days after the issuance of McFadden. Id. He also asserts that there is evidence of his innocence “regarding this very narrow issue, ” noting that in his statement of acceptance of responsibility he maintained that he “was told that they were synthetic research chemicals that were legal . . . that you could get it at the head shop and at truck stops. That you could get it off the internet.” Id. Finally, Mr. Ketchen says that he “does not believe that there is any substantial prejudice to the government in this case.” Id. at 8.

         C. The Government’s Objection to Mr. Ketchen’s Motion

         Addressing the “voluntarily, knowingly, intelligently” analysis for a withdrawal of guilty plea, the Government asserts that Rule 11 “has a predominantly prophylactic purpose, ” and that the “main thrust of the rule is to ensure that a defendant who pleads guilty does so with full comprehension of the specific attributes of the charge and the possible consequences of the plea.” Gov’t’s Opp’n at 10 (citing United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997)). The Government argues that the transcript of Mr. Ketchen’s Rule 11 proceeding reflects that he was advised of “the charges, the penalties that could be imposed, and the rights he was giving up by pleading guilty, ” that Mr. Ketchen does not “seriously dispute this, ” and that he only makes “a nuanced argument concerning his understanding of the mens rea element of the offenses” and at no point argues that the plea was involuntary. Id. at 10 n.2.

         Next, the Government identifies two reasons put forth by Mr. Ketchen to withdraw his guilty plea: (1) that the Government “cannot prove beyond a reasonable doubt that prior to October 21, 2011 he knew he was possessing or distributing a substance regulated under the Analogue Act, ” and (2) that the Court “did not explain the mens rea element of the two offences, ” and particularly the “mens rea element in offenses involving controlled substance analogues like MDPV as recently explained in McFadden.” Id. at 10 (emphasis in original). The Government contends that the strength of the reasons offered for the withdrawal of guilty plea is “lacking.” Id.

         First, the Government argues that the Court adequately advised Mr. Ketchen of the mens rea element under Rule 11. Id. Citing United States v. Jones, 778 F.3d 375, 382 (1st Cir. 2015), the Government asserts that a guilty plea under Rule 11 does not require “a fixed catechism” or a set of “magic words, ” but only that a district court touch all of the “appropriate bases” and its colloquy be assessed “in light of ‘the attributes of the particular defendant, the nature of the specific offense, and the complexity of the attendant circumstances.’” Gov’t’s Opp’n at 10-11 (quoting Jones, 778 F.3d at 382). As such, the Government asserts that McFadden does not create a new mens rea requirement for controlled substance analogue offenses, but rather “confirmed pre-existing case law establishing a mens rea requirement in controlled substance offenses, confirmed that requirement must be met by the Government in cases involving substances that were controlled either by operation of the drug schedules or by operation of the Analogue Act, and explained how the Government could circumstantially prove the mens rea requirement in an analogue case.” Id. at 11. The Government submits that the Court’s summary of the charges were sufficient under this rubric, as the Court advised Mr. Ketchen that he was charged “with knowingly and intentionally conspiring to distribute a controlled substance, ” and the Court was not required to explain “the intricacies regarding how MDPV was controlled at different times.” Id. at 11-12 (emphasis in original).

         Second, the Government asserts that the law is clear that a crime may be charged in the conjunctive. Id. at 12-13 (citing United States v. Garcia-Torres, 341 F.3d 61, 66 (1st Cir. 2003)). The Government explains that the concept of “conjunctive” stands for “where an indictment charges in the conjunctive several means of violating a statute, a conviction may be obtained on proof of only one of the means.” Id. at 13 (quoting Garcia-Torres, 341 F.3d at 66-67)). Thus, the Government contends that because Count One charges Mr. Ketchen “with conspiring to distribute and possess with the intent to distribute the controlled (analogue) substance MDPV and the controlled (Schedule I) substance MDPV . . . Guilt of his commission of this offense - by plea or by trial - could be established by proving his knowing participation in the conspiracy involved one or the other.” Id. at 14 (citing Garcia-Torres, 341 F.3d at 66-67). Similarly, for Count Three, “[g]uilt of his commission of this offense (by plea or by trial) could be established by proof he knowingly leased, rented, used or maintained the residence for distributing or using the analogue controlled substance MDPV or the Schedule I controlled substance MDPV.” Id. The Government concludes that Mr. Ketchen’s guilty pleas are not affected by the McFadden decision, as:

[e]ven assuming arguendo that . . . the Government could not prove his guilt as to conduct that occurred prior to October 21, 2011, that would not earn him an acquittal at trial or warrant a withdrawal of his guilty plea. He does not contend that he misunderstood the mens rea element as it relates to offenses involving a Schedule I drug like MDPV.

Id. at 14-15.

         Regarding the timing of the motion, the Government highlights that Mr. Ketchen was indicted on July 17, 2013, pleaded guilty to Counts One and Three on May 7, 2014, and on July 30, 2015 - fourteen months after he pleaded guilty - moved to withdraw his guilty plea. Id. at 15. Noting this lapse in time, the Government argues that the longer a request is delayed, the more potency the motion must have in order to gain favorable consideration and the more the Court should disfavor the motion. Id. at 15 (citing United States v. González-Vázquez, 34 F.3d 19, 23 (1st Cir.1994)). The Government argues that McFadden did not create a new element of an offense, and when considering the lack of force to Mr. Ketchen’s assertion of innocence, the fourteen-month delay in making his motion to withdraw guilty plea undermines his request. Id. at 16.

         The Government points out that Mr. Ketchen is only claiming his innocence of part of the crimes charged in Counts One and Three of the indictment, and that the totality of the circumstances demonstrate that there is little force to his assertion of innocence. Id. at 16. The Government notes that Mr. Ketchen admitted to the prosecution version of the offense at his Rule 11 proceeding, and thus agreed that he knowingly and intentionally participated in a conspiracy to distribute MDPV, satisfying the requirements of McFadden. Id. at 16-17. Additionally, the Government says that the PSR reveals “overwhelming” evidence of Mr. Ketchen’s participation in the drug conspiracy. Id. at 17-18. The Government provides other examples that the Court should consider when assessing Mr. Ketchen’s assertion of innocence, including: (1) “seventeen of [Mr. Ketchen’s] co-conspirators have admitted to conspiring with [Mr. Ketchen]” and none of them has “sought to withdraw or vacate their guilty pleas”; (2) “[n]umerous cooperating defendants and witnesses testified before the grand jury, thousands of pages of business records were collected, and law enforcement seized MDPV from [Mr. Ketchen] and his co-conspirators”; and (3) “[t]he Court listened to every co-conspirator’s allocution and read their statements accepting responsibility, ” giving the Court “special insight into this case” which it should draw on “when considering the force of [Mr. Ketchen’s] claim that he is innocent.” Id. at 18-19.

         Finally, the Government contends that Mr. Ketchen has failed to prove that the Government would suffer no prejudice if his motion to withdraw guilty plea was granted. Id. at 19. The Government highlights that the investigation into Mr. Ketchen’s conduct began over four years ago, he was indicted over two years ago, and that “[w]ith the passage of time memories fade and witnesses relocate” and “[p]roving a case beyond a reasonable doubt” after this lapse in time would be difficult. Id. Additionally, the Government also observes that since his guilty plea all of his co-conspirators have been sentenced and it may prove difficult to obtain their testimony. Id. at 19-20.

         D. Mr. Ketchen’s Response to the Government’s Objection

         Mr. Ketchen responds by arguing that “[n]either the indictment nor the Rule 11 Proceeding included the necessary scienter element of MDPV being a controlled substance analogue, ” and because of this his plea “could not have been made voluntarily, intelligently, or knowingly” and that he can show evidence of actual innocence under the Analogue Act.” Def.’s Reply at 2.

         Mr. Ketchen renews his argument that the “indictment left out the necessary mens rea element that he knew he was possessing and or distributing a substance in violation of the Analogue Act, ” and specifically that the “indictment never specified that [he] knew that the substance was a controlled substance analogue prior to October 21, 2011” and was thus insufficient under McFadden. Id. at 3 (emphasis in original). Regarding the Rule 11 proceeding, he argues that the Court “surely did not touch on all the ‘appropriate bases’ when it left out the scienter element of the offense, ” which is grounds for withdrawal of his plea of guilty, as “[d]ue process requires that a defendant be apprised of the nature of the charges, including the element of intent.” Id. at 5 (quoting United States v. Bigman, 906 F.2d 392, 394 (9th Cir. 1990)). Mr. Ketchen asserts that though “[t]he Court did advise [him] that he was charged with knowingly and intentionally conspiring with others and that he knowingly used a property to do this . . . the Court omitted if [he] knew that MDPV was a controlled substance analogue during the acts of possession and distribution prior to October 11, 2011.” Id. at 6 (emphasis in original).

         Mr. Ketchen concludes his reply brief by renewing his arguments regarding the timing of the motion, evidence of actual innocence, and prejudice to the Government. Id. at 7.

         III. FACTUAL, STATUTORY, AND CASELAW BACKGROUND

         A. The Indictment

         On July 17, 2013, the grand jury charged Mr. Ketchen with violating federal drug trafficking laws; Count One of the indictment reads:

Beginning on a date unknown, but no later than April 1, 2011 and continuing until a date unknown, but no earlier than December 31, 2011, in the District of Maine and elsewhere, defendants . . . knowingly and intentionally conspired with one another and with persons known and unknown to commit offenses against the United States, namely distribution and possession with intent to distribute: (1) prior to October 21, 2011, a mixture or substance containing a detectable amount of MDPV, a controlled substance analogue as defined in Title 21, United States Code, Section 802(32), with intent for human consumption as provided in Title 21, United States Code, Section 813; and (2) from October 21, 2011 until a date unknown, but no earlier than December 31, 2011, a mixture or substance containing a detectable amount of MDPV, a Schedule I controlled substance (by Final Order of DEA, 76 Fed. Reg. 65371), all in violation of Title 21, United States Code, Section 846, 841(a)(1), and 813.

Indictment at 3. Count Three states:

Beginning on a date unknown, but not later than April 1, 2011, and continuing until December 31, 2011, in the District of Maine, defendant[] . . . ALAN J. KETCHEN, a/k/a "AJ", "Hobbes" . . . knowingly leased, rented, used and maintained, permanently or temporarily, a residence located at 10 Blackstone Street in Bangor, Maine, for the purpose of unlawfully distributing and using (1) prior to October 21, 2011, a mixture or substance containing a detectable amount of MDPV, a controlled substance analogue as defined in Title 21, United States Code, Section 802(32), with intent for human consumption as provided in Title 21, United States Code, Section 813; and (2) from October 21, 2011 until a date unknown, but no earlier than December 31, 2011, a mixture or substance containing a detectable amount of MDPV, a Schedule I controlled substance (by Final Order of DEA, 76 Fed. Reg. 65371), and did aid and abet such conduct, in violation of Title 21, United States Code, Sections 856(a)(1) and 813 and Title 18, United States Code, Section 2.

Id. at 4-5 (bold in original).

         B. The Rule 11 Proceeding

         On May 7, 2014, Mr. Ketchen pleaded guilty to Counts One and Three of the Indictment. See Minute Entry (ECF No. 374); Transcript of Rule 11 Proceeding (ECF No. 710) (Tr.). During the proceeding the Court found Mr. Ketchen to be competent, Tr. 4:6-6:15, allowed him to tender a plea of guilty, id. 7:6-7:20, and confirmed that he was pleading guilty to the charges because he was “actually guilty of each of those crimes and for no other reason.” Id. 8:1-4. His counsel expressed satisfaction that Mr. Ketchen was pleading guilty because he was actually guilty. Id. 8:6-9. Additionally, Mr. Ketchen confirmed that he had received a copy of the indictment, that he had enough time to discuss the charges with his attorney, and that his attorney had explained the elements and the nature of the offenses charged, and the penalties that could be imposed. Id. 8:10-22. Mr. Ketchen’s counsel expressed that he was satisfied that the Defendant understood the charges and the penalties that could be imposed, id. 8:22-25, and the Court reviewed the charges and confirmed that the Mr. Ketchen understood them:

THE COURT: Count 1 alleges that beginning on a date unknown, but no later than April 1, 2011, and continuing until a date unknown, but no earlier than December 31, 2011, in the District of Maine, which means the state of Maine, you and a number of other individuals knowingly and intentionally conspired with one another to commit an offense against the United States, namely, the distribution of MDPV, a controlled substance. Do you understand the charge set forth in Count 1 of the indictment?
MR. KETCHEN: Yes.
THE COURT: Now, Count 3 of the indictment alleges that beginning on a date unknown, but no later than April 1, 2011, and continuing until December 31, 2011, in the District of Maine, which, again, means the state of Maine, you knowingly leased, rented, used, and maintained, permanently or temporarily, a residence located at 10 Blackstone Street, Bangor, Maine, for the purpose of unlawfully distributing and using the premises to distribute MDPV, again, a controlled substance, in violation of federal criminal law. Do you understand the charge set forth in Count 3 of the indictment?
MR. KETCHEN: Yes.

Id. 9:1-25. The Court reviewed the potential penalties for the offenses, id. 10:1-12:5, and the rights the Defendant was giving up. Id. 12:6-14:13.

         Next, the Court confirmed the accuracy of the prosecution version of the offenses and that there was a factual basis for Mr. Ketchen’s guilty plea. Id. 14:14-15:9. The prosecution version provided in part:

Between approximately April 1, 2011 and December 31, 2011, in Penobscot County, Maine and elsewhere, there existed a conspiracy to possess with intent to distribute and distribute (1) prior to October 21, 2011, a mixture or substance containing a detectable amount of MDPV, a controlled substance analogue as defined in Title 21, United States Code, Section 802 (32), with intent for human consumption as provided in Title 21, United States Code, Section 813; and (2) from October 21, 2011 until a date unknown, but no earlier than December 31, 2011, a mixture or substance containing a detectable amount of MDPV, a Schedule I controlled substance. During its existence, the defendant knowingly and intentionally joined and participated in the conspiracy.
During the same period of time, the defendant also knowingly leased, rented, used and maintained, permanently or temporarily, a residence located at XX Blackstone Street in Bangor, Maine (“the Blackstone Residence”), for the purpose of unlawfully distributing and using (1) prior to October 21, 2011, a mixture or substance containing a detectable amount of MDPV, a controlled substance analogue as defined in Title 21, United States Code, Section 802 (32), with intent for human consumption as provided in Title 21, United States Code, Section 813; and (2) from October 21, 2011 until a date unknown, but no earlier than December 31, 2011, a mixture or substance containing a detectable amount of MDPV, a Schedule I controlled substance (by Final Order of DEA, 76 Fed. Reg. 65371.
During his involvement in the conspiracy, the defendant regularly associated with other members of the conspiracy at the Blackstone Residence and elsewhere, including co-defendant Ryan Ellis, for the purpose of distributing and facilitating the distribution of MDPV and using the same. The defendant packaged MDPV at the Blackstone Residence and distributed it to other members of the conspiracy who were selling the drug. The defendant collected proceeds from the sale of the drug. The defendant also traded or otherwise distributed MDPV to other members of the conspiracy. The defendant communicated by cellular telephone and met directly with other members of the conspiracy to coordinate MDPV transactions. On November 10, 2011, law enforcement conducted a bail search at the Blackstone Residence and subsequently executed a search warrant at that location. As a result, law enforcement seized a large quantity of MDPV and other controlled substances, cash, drug records, and drug paraphernalia. The defendant was arrested following the search.

Gov’t’s Version of the Offense at 1-2 (ECF No. 371) (Prosecution Version). Mr. Ketchen’s counsel confirmed that he had reviewed the prosecution version, that he was convinced the Government’s version of the offense could be proved, and that a properly instructed jury could determine beyond a reasonable doubt that Mr. Ketchen was guilty of each of the crimes to which he pleaded guilty. Tr. 15:10-16-7. Mr. Ketchen confirmed that he had carefully reviewed the prosecution version, understood it, had no disagreements with it, and that it was true to his own personal knowledge. Id. 16:8-17:10. Upon final inquiry, the Court accepted Mr. Ketchen’s guilty plea under Federal Rule of Criminal Procedure 11. Id. 20:22-21:9.

         C. The ...


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