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United States v. Goguen

United States District Court, D. Maine

September 6, 2019

UNITED STATES OF AMERICA
v.
ROBERT GOGUEN

          ORDER ON DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         A defendant who pleaded guilty to one charge of possession of child pornography moves to withdraw his guilty plea, arguing primarily that his guilty plea was not made knowingly, intelligently, and voluntarily and that he received ineffective assistance of counsel. Given the record and the defendant's own representations to the Court, the Court concludes the defendant failed to meet his burden to demonstrate a fair and just reason to withdraw his guilty plea.

         I. BACKGROUND

         A. United States v. Goguen - 1:11-cr-00003-JAW

         On January 12, 2011, a federal grand jury indicted Robert Frederick Goguen for failure to register as a sex offender. Indictment (ECF No. 1). On July 14, 2011, Mr. Goguen pleaded guilty to the charge in the indictment, Min. Entry (ECF No. 43), and on September 14, 2012, the Court sentenced Mr. Goguen to sixteen months of incarceration, three years of supervised release, a $100 special assessment, and no fine. J. (ECF No. 80). On January 31, 2013, the Court entered an amended judgment adding twenty-one months to Mr. Goguen's period of incarceration, for a total of thirty-seven months. Am. J. (ECF No. 90). Mr. Goguen did not file a direct appeal of his conviction or sentence to the Court of Appeals for the First Circuit.[1]

         Mr. Goguen was released from incarceration and placed on supervised release on May 11, 2013. Request for Modifying the Conditions or Term of Supervision (ECF 93). The United States (Government) alleged that he violated his supervised release on August 5, 2013, by viewing pornographic videos at the Penobscot County Judicial Center's law library. Pet. for Warrant or Summons for Offender Under Supervision (ECF No. 96). On September 23, 2013, he admitted to the violation, Min. Entry (ECF No. 112), and the Court revoked supervised release, sentencing Mr. Goguen to imprisonment for five months and supervised release for thirty-one months. Revocation J. (ECF No. 113).

         After the revocation hearing and sentencing, on October 1, 2013, Mr. Goguen filed a notice of appeal for the revocation judgment, Notice of Appeal (ECF No. 116), and a motion for the Court to appoint new counsel. Pro Se Mot. to Appoint New Counsel (ECF No. 117). He claimed that his waiver of rights at the revocation hearing was not knowing and voluntary and that the Court erred in imposing a sex offender treatment condition as one of the conditions of his supervised release. J. of Ct. of Appeals for the First Circuit (ECF No. 142). Then, on October 28, 2013, Mr. Goguen filed a motion for reconsideration. Mot. for Recons. (ECF No. 125). On January 10, 2014, Mr. Goguen filed a self-styled motion for notice of appeal consideration and possible appointment of counsel. Mot. for Notice of Appeal Consideration and Possible Appointment of Counsel (ECF No. 133). While the appeal was pending before the First Circuit, the Court dismissed without prejudice Mr. Goguen's motion for reconsideration, motion for notice of appeal consideration, and motion to appoint counsel. Order on Mot. for Recons., Mot. for Possible Appointment of Counsel, and Mot. for Release of Seized Property (ECF No. 140). On October 9, 2014, the First Circuit affirmed the Court's revocation judgment. J. of Court of Appeals for the First Circuit (ECF No. 142).

         Mr. Goguen's second supervised release began on January 15, 2014. Pet. for Warrant or Summons for Offender Under Supervision (ECF No. 144). The Magistrate Judge issued an arrest warrant for Mr. Goguen on November 13, 2015, due to an alleged violation of supervised release. Arrest Warrant (ECF No. 146). On September 15, 2017, Mr. Goguen admitted to violating the conditions of his supervised release in a partial final revocation hearing. Min. Entry (ECF No. 193). A final revocation hearing for the imposition of a sentence on the supervised release violation was scheduled for February 13, 2019, but it was cancelled on February 7, 2019. Notice of Hr'g on Mot. (ECF No. 276); Notice of Cancelled Hr'g (ECF No. 279). There has been no final revocation hearing on this matter.

         B. United States v. Goguen - 1:16-cr-00167-JAW

         On December 14, 2016, a federal grand jury indicted Mr. Goguen for possession of child pornography depicting prepubescent minors or minors under twelve years old, an alleged violation of 18 U.S.C. §§ 2252A(a)(5)(B), 2252A(b)(2), and 2256(8)(A). Indictment (ECF No. 1). On September 15, 2017, after a motion to suppress evidence and a motion in limine were resolved, Mr. Goguen pleaded guilty to this charge. Min. Entry (ECF No. 64). Attorney Tzovarras, Mr. Goguen's former counsel, repeatedly moved to extend the time for filing objections to the presentence report and to continue the sentencing hearing. Def.'s Mot. for Enlargement of Time for Initial Disclosure of Pre-Sentence Report (ECF No. 68); Def.'s Mot. for Extension of Time to File Objs. to PSR Before Initial Disclosure to Ct. (ECF No. 70); Def.'s Mot. to Continue Sentencing (ECF No. 77); Def.'s Mot. for Enlargement of Time to File Sentencing Mem. (ECF No. 79); Def.'s Mot. to Enlarge Time to File Sentencing Mem. (ECF No. 84); Def.'s Mot. for Enlargement of Time to Reply to Gov't's Resp. on Appl. of Mandatory Minimum (ECF No. 88); Def.'s Mot. to Continue Conference of Counsel (ECF No. 94); Def.'s Mot. for Enlargement of Time to File Sentencing Mem. (ECF No. 101); Def.'s Mot. to Enlarge Time and Accept Filing of Sentencing Mem. as Timely (ECF No. 103); Def.'s Mot. to Continue Sentencing Hr'g (ECF No. 106). Finally, on January 30, 2019, the Court scheduled Mr. Goguen's sentencing hearing for February 13, 2019, Notice of Sentencing Hr'g (ECF No. 108), but on February 5, 2019, Mr. Goguen's defense counsel moved for leave to withdraw as his attorney. Def.'s Ex Parte Mot. for Leave to Withdraw as Counsel (ECF No. 109).

         Mr. Goguen's sentencing hearing was also substantially delayed while the Court considered whether his prior Connecticut conviction in 1996 for sexual assault in the second degree triggered § 2252A(b)(2)'s mandatory minimum. On November 16, 2018, the Court concluded that Mr. Goguen's prior Connecticut conviction of sexual assault in the second degree constitutes a qualifying prior offense that triggers the mandatory ten-year imprisonment penalty under § 2252A(b)(2). Order on Def.'s Mem. in Opp'n to Appl. of the Mandatory Minimum Under 18 U.S.C. § 2252A(b)(2) (ECF No. 92).

         On April 22, 2019, Mr. Goguen filed a motion to withdraw his guilty plea. Mot. to Withdraw Guilty Plea (ECF No. 113) (Def.'s Mot.).[2] On May 13, 2019, the Government filed its opposition to Mr. Goguen's motion. Gov't's Resp. to Def.'s Mot. to Withdraw Plea (ECF No. 114) (Gov't's Opp'n). On May 28, 2019, Mr. Goguen filed his reply along with a motion for oral argument or hearing. Def.'s Reply to Gov't's Resp. to Mot. to Withdraw Guilty Plea (ECF No. 115) (Def.'s Reply); Mot. for Oral Arg./Hr'g (ECF No. 116).

         II. THE PARTIES' POSITIONS

         A. Mr. Goguen's Motion

         Mr. Goguen claims his guilty plea entered on September 15, 2017, was not knowing and voluntary and that he was not sufficiently aware of the relevant circumstances and probable consequences for various reasons. Def.'s Mot. at 2. Mr. Goguen asserts that during his plea hearing:

[T]he Court misstated the potential maximum and minimum penalties as a result of apparent confusion as to whether the images depicting “a prepubescent minor who had not attained twelve years of age” was a sentencing factor or an element of the offense. The court initially indicated that the Defendant could be subject to a range of 0-10, 0-20 or 10-20 years of incarceration based upon the application of the prepubescent minor language and the potential application of a prior qualifying conviction. When asked if he understood that those were the potential ranges of imprisonment he could face the Defendant indicated that he did understand. These ranges were not correct. This situation led to confusion on the part of the Defendant as to whether prepubescent images w[]ere an element of the crime or part of the criteria for sentencing. The plea was not a knowing plea pursuant to Rule 11.

Id. Mr. Goguen avers that the colloquy among the Court and counsel at the Rule 11 hearing did not clarify this confusion and that the parties expressed conflicting viewpoints about certain language contained in 18 U.S.C. 2252A(a)(5)(B). Id. Mr. Goguen claims this confusion amounted to structural error:

The Court then asked Mr. Goguen to admit that he possessed an image depicting a prepubescent child and if the Defendant understood that the potential range of his sentence was 10-20 years. The Defendant stated that he did. The fact that the Defendant indicated that he understood that he could be subject to a range of 0-10, 0-20 or 10-20 years and later that he could be subject to 10-20 years demonstrates confusion and indicates lack of a knowing and intelligent plea.

Id. at 2-3.

         Mr. Goguen claims he told his prior defense counsel that he intended to withdraw his guilty plea immediately. Id. at 3. Mr. Goguen says he “was not aware and was not informed that he would be unable to make further suppression arguments.” Id. Mr. Goguen contends he was not advised by his prior counsel or by the Court at the time of his guilty plea that he could have entered a conditional guilty plea, which would have allowed him to challenge the ruling on his motion to suppress while still pleading guilty. Id. Mr. Goguen states shortly after his guilty plea, he “contacted his prior counsel in writing to request that he file a motion to rescind his guilty plea. The attorney did not file a motion to withdraw the Defendant's plea despite multiple requests by [him] that he do so.” Id. Mr. Goguen also claims he was not fully informed of all his potential defenses before he entered his guilty plea. Id.

         Mr. Goguen “wishes to withdraw his plea so he may fully challenge the legality of the search that gave rise to both of the cases . . . . Specifically, [he] wishes to challenge the legality of the conditions that improperly ‘authorized' the search and seizure of his laptop . . . . [and] appeal the [denial of his suppression motion].” Id. at 4.

         B. The Government's Opposition

         The Government contends that all factors outlined in United States v. Gates, 709 F.3d 58, 68 (1st Cir. 2013), weigh against Mr. Goguen's motion. Gov't's Opp'n at 6. Citing the plea hearing transcript, the Government says, “there is no doubt that the defendant's plea was voluntary, intelligent, and informed.” Id. The Government argues that Mr. Goguen's argument that he was confused over the penalties he faced is contradicted by the record. Id. at 7. The Government asserts the fact that Mr. Goguen is not a “novice to the criminal justice system or to federal court[]” is relevant. Id. (citing United States v. Padilla-Galarza, 351 F.3d 594, 598 (1st Cir. 2003)). The Government states that the Court observed Mr. Goguen at the plea hearing and listened to his answers to the questions posed. Id. The Government says not being able to “rely on what a defendant says at the Rule 11 hearing about his understanding, [would make] a huge number of guilty pleas . . . vulnerable.” Id. (citation omitted).

         The Government contends that Mr. Goguen's reasons for wishing to withdraw his guilty plea are inadequate:

The defendant has failed to cite any authority to support an argument that these are “fair and just” reasons for the withdrawal of a guilty plea. This Court sets deadlines for the filing of pretrial motions so that the parties and the court can address those motions in a timely manner and the case can move forward. The defendant did file a motion to suppress in this case and the court issued an order that resolved that motion. At the Rule 11 colloquy, this Court told the defendant explicitly that a guilty plea would waive his right to challenge that order. This Court also told the defendant he was giving up his right to a trial and the rights associated with a trial.

Id. at 8 (citations omitted). The Government says Mr. Goguen's “concern in the face of a lengthy sentence is understandable but it is not a fair and just reason to negate his guilty plea.” Id. at 9. The Government believes that the timing of Mr. Goguen's motion weighs against him, considering that he pleaded guilty in September 2017 and filed the present motion in April 2019. Id. Lastly, the Government notes that Mr. Goguen is not claiming he is innocent and “has not contradicted his admissions at the Rule 11 hearing regarding the charged crime and does not dispute . . . his representation at that hearing that he was pleading guilty because he was actually guilty.” Id. at 10.

         C. Mr. Goguen's Reply

         Mr. Goguen disagrees with the Government's contention that the record does not demonstrate he was confused about the potential penalties he faced:

[T]he fact is that the Defendant initially indicated that he understood that he could be subject to a range of 0-10, 0-20 or 10-20 years and later after additional discussion stated that he understood that he could be subject to 10-20 years. Additionally, the Government described the . . . “prepubescent minor” language as a “sentencing factor” while defense counsel viewed it as an element.

Def.'s Reply at 1-2. Mr. Goguen contends that his confusion was not properly clarified. Id. at 2. As evidence of his confusion, he says “[h]is claim that he understood one sentencing range to be correct and only a few minutes later that he understood a different range to be correct is an obvious sign that he was ill informed by his counsel and confused as to what he was agreeing to at the proceedings.” Id. Mr. Goguen argues that the Government failed to address his ineffective assistance of counsel claim and that such a claim may constitute a “fair and just reason” to withdraw a guilty plea. Id. (citations omitted). He says his prior defense counsel did not adequately inform him of his sentencing range nor that it was possible to enter a conditional guilty plea. Id.

         Mr. Goguen reiterates that he was not aware he could enter a conditional plea and that if he were, “it is unlikely he would have entered the plea or at the least would have opted to enter a conditional plea instead. Having further examined the suppression issue [he] now wishes to pursue additional suppression issues which could fundamentally alter the posture of this case.” Id. at 3. Mr. Goguen asserts he was not informed about all the possible defenses he could present. Id. Mr. Goguen claims he “did not know he could preserve appeal rights and was not informed of defenses in this case [and] [u]nder the circumstances the only fair and just reaction is to allow [him] to withdraw his plea.” Id.

         In regard to the timing of his motion, Mr. Goguen states he has told his current counsel that “the reason he attempted to file his own . . . motion was because he had discovered new information that related to the defenses and suppression arguments that his [prior] attorney . . . had failed to inform him of or further in the court.” Id. at 4. Under First Circuit precedent, Mr. Goguen claims “the relevant temporal gap is the time between the defendant's discovery of new information and the filing of his motion, not the time between the Rule 11 and the motion to withdraw.” Id. (internal quotation marks and citations omitted). Mr. Goguen says, “[t]he delay in time should not be held against [him] as the issue was outside of his control and because his plea was not knowing and intelligent the motion to withdraw his guilty plea should be granted.” Id. at 4-5.

         III. LEGAL STANDARD

         A defendant may withdraw a guilty plea before he is sentenced if he “can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Under this standard, courts consider: “[1] whether the plea was voluntary, intelligent, knowing and in compliance with Rule 11; [2] the strength of the reasons offered in support of the motion [to withdraw]; [3] whether there is a serious claim of actual innocence; [4] the timing of the motion; and [5] any prejudice to the government if the withdrawal is allowed.” United States v. Dunfee, 821 F.3d 120, 127 (1st Cir. 2016) (quoting United States v. Isom, 580 F.3d 43, 52 (1st Cir. 2009) (some alternations in original)).[3] The “core concerns of Rule 11-whether the plea was voluntary, intelligent, and knowing-are the most important factors to consider.” Isom, 580 F.3d at 52 (citations and internal quotation marks omitted). “A defendant does not have an unfettered right to retract a guilty plea and he bears the burden to establish a fair and just reason for withdrawal.” Dunfee, 821 F.3d at 127 (internal quotation marks and citation omitted).

         IV. DISCUSSION

         A. Voluntary, Intelligent, and Knowing

         1. Sentencing Ranges

         Mr. Goguen asserts his plea on September 15, 2017, “was not knowing and voluntary and was made without with sufficient awareness of the relevant circumstances and likely consequences for several reasons.” Def.'s Mot. at 2. Mr. Goguen says his plea was not knowing because the Court initially indicated the wrong imprisonment ranges, which led to him being confused “as to whether prepubescent images w[]ere an element of the crime or part of the criteria for sentencing[, ]” and that this confusion was not clarified through additional discussion and amounts to a “structural error”. Id. at 2-3. The Court disagrees.

         a. Robert Goguen's Competency

         At the outset of the hearing, the Court asked Mr. Goguen a preliminary set of questions to determine whether he was competent. Tr. of Proceedings at 3:3-4:6, United States v. Goguen, 1:16-cr-00167-JAW (ECF No. 112) (Plea Tr.). Mr. Goguen informed the Court that he was forty-three-years-old, that he had gone through two years of college, that he was not prescribed any medicine and had not failed to take any medicine a doctor had told him he should take, and that he had not used any drugs or alcohol in the last twenty-four hours. Id. The Court confirmed with Attorney Tzovarras that he had met with Mr. Goguen that morning and had no concerns about Mr. Goguen's competency. Id. The Court found him competent. Id. Mr. Goguen has not challenged this finding in his pending motions.

         b. Actual Guilt

          The Court informed Mr. Goguen:

THE COURT: You understand that in deciding to plead guilty to the new criminal charge and admitting the probation or supervised release violation, you have a right to receive Mr. Tzovarras's advice; however the decision as to whether to plead guilty or admit the violation is not Mr. Tzovarras's, it is yours, you understand that?
DEFENDANT: I do.

Id. at 5:5-11. The Court asked Mr. Goguen whether he was pleading guilty to Count 1 contained in the indictment in United States v. Goguen, 1:16-cv-00167-JAW, because was actually guilty of the crime:

THE COURT: Now, Mr. Goguen, I have a very important question for you and obviously in this courtroom I require an honest and truthful answer. Have you pleaded guilty to the charge contained in Count 1 of this indictment because you are actually guilty of that crime and for no other reason?
DEFENDANT: I have.
THE COURT: And have you consented to the forfeiture because you used the forfeited equipment in part to commit this crime?
DEFENDANT: Yes, Your Honor.

Id. at 6:14-23.

         c. Robert Goguen's Knowledge of the Charge

         The Court read Count 1 of the indictment and asked Mr. Goguen if he understood the charge set forth in Count 1:

THE COURT: Now, Mr. Goguen, you are charged in a one-count indictment, that indictment alleges that you committed a crime, namely the possession of material containing child pornography. It alleges that on about November 10, 2015, in the District of Maine, which means the state of Maine, you knowingly possessed material that contained an image of child pornography that had been shipped and transported using any means or facility of interstate and foreign commerce and in affecting interstate and foreign commerce by any means including by computer and that was produced using materials that had been shipped or transported in and affecting interstate or foreign commerce by any means.
The indictment further alleges that one or more images of the child pornography possessed by you involved a prepubescent minor or a minor who had not attained 12 years of age. It alleges that you violated federal criminal law by possession of material containing child pornography. Do you understand the charge set forth in Count 1 of the indictment?
DEFENDANT: I do, Your Honor.

Id. at 7:22-8:15.

         d. The Crime of Possession of Child Pornography: An Overview

         In 16-cr-00167-JAW, a federal grand jury indicted Mr. Goguen with a violation of 18 U.S.C. § 2252A(a)(5)(B), possession of child pornography. Indictment (ECF No. 1) (“Possession of Material Containing Child Pornography”). The elements of the crime of possession of child pornography are “[1] that [defendant] knowingly possessed [a computer]; [2] that the [computer] contained at least one image of child pornography; [3] that [defendant] knew that [the computer] contained an image of child pornography; and [4] that the image of child pornography had [been mailed; moved in interstate or foreign commerce].” Judge Nancy Torresen, Pattern Criminal Jury Instructions for the District Cts. of the First Circuit, § 4.18.2252 [updated: 7/15/15] (Pattern Criminal Jury Instructions).

         At the Rule 11 stage, the penalty provisions for a violation of § 2252A(a)(5)(B) are found in § 2252A(b)(2) and the penalty provisions have a certain irreducible complexity because they are tiered depending on the defendant's prior criminal record and the nature of his offense:

Whoever violates, or attempts or conspires to violate, subsection (a)(5) shall be fined under this title or imprisoned not more than 10 years, or both, but, if any image of child pornography involved in the offense involved a prepubescent minor or a minor who had not attained 12 years of age, such person shall be fined under this title and imprisoned for not more than 20 years, or if such person has a prior conviction under this chapter, chapter 71, chapter 109A, or chapter 117, or under section 920 of title 10 (article 120 of the Uniform Code of Military Justice), or under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, such person shall be fined under this title and imprisoned for not less than 10 years nor more than 20 years.

§ 2252A(b)(2). Accordingly, under § 2252A(b)(2), a defendant potentially faces three ranges of penalties: (1) a statutory maximum of ten years imprisonment and a fine if the offense did not involve an image of prepubescent minor or a minor who has not attained twelve years of age and the defendant does not have a qualifying prior conviction; (2) a statutory maximum of twenty years imprisonment and a fine if the offense involved an image of child pornography which contained a prepubescent minor or a minor who has not attained twelve years of age but the defendant does not have a qualifying prior conviction; and (3) a statutory minimum of ten years and a twenty-year maximum term of imprisonment if the defendant has a qualifying prior conviction. See United States v. Breton, 740 F.3d 1, 20 n.23 (1st Cir. 2014).

         At the outset of a Rule 11 hearing, a court usually does not know whether a defendant has a criminal history and, if so, whether his criminal history contains a qualifying prior conviction. Also, although a court may have viewed an exemplar of the child pornography that a defendant possessed to make certain that the image fits within the statutory definition of pornography, the judge does not know whether a defendant will admit all of the contents of a prosecution version, and in any event, the court typically informs a defendant of the sentencing implications of his admission of the contents of the prosecution version. Among other things, a recitation of the tiered statutory scheme assures that the defendant who admits that the material he possessed contained images of prepubescent children is aware that his admission has significant sentencing implications, increasing the maximum term of incarceration from ten to twenty years. It also prevents a defendant from later claiming that he did not know that his admission of possessing prepubescent/minor under the age of twelve images subjected him to a potentially longer sentence. The same holds true of the imposition of a mandatory minimum of ten years if the defendant has the possibility of a prior qualifying conviction.

         An added complication is the Apprendi, Alleyne, and Haymond line of caselaw, which can be summarized as establishing the right to jury trial for a fact that increases the statutory maximum or sets a statutory minimum for a crime. See generally United States v. Haymond, 588 U.S. ___, 139 S.Ct. 2369 (2019); Alleyne v. United States, 570 U.S. 99 (2013); Apprendi v. New Jersey, 530 U.S. 466 (2000). Thus, Mr. Goguen had a right to a jury trial on whether he possessed an image of child pornography that depicted a prepubescent minor or minor under the age of twelve. By contrast, there is an exception for prior convictions, since the defendant previously had the right to contest the conviction.

         The net effect of these developments in the law makes a description of the potential penalties for a defendant who is pleading guilty a rather complicated affair. By pleading guilty to the crime of possession of child pornography, a defendant faces a maximum of ten years imprisonment. If a child pornography image depicts a prepubescent minor or minor under the age of twelve, the statutory maximum increases to twenty years, and if the defendant contests this narrow fact, namely whether an image he possessed shows a prepubescent minor or a minor under the age of twelve, he has a right to a jury trial on this issue. If the defendant has a prior qualifying conviction, then he is subject to a statutory maximum of twenty years and a statutory minimum of ten years, but he is not entitled to a jury trial on whether his prior conviction is a qualifying conviction.

         e. The Court's Recitation of Potential Penalties

         With this background, the Court reviewed the potential penalties for the offense as required by Federal Rule of Criminal Procedure 11(b)(1)(H)-(K). The Court noted that the penalty provisions under § 2252A(b)(2) “are somewhat complicated, ” but the Court went on to say:

[B]ut as I recall, Mr. Goguen, you're an intelligent person, and I am sure you have reviewed this with your attorney. I am going to spend a little while and relate ...

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