The opinion of the court was delivered by: Rosemary M. Collyer United States District Judge
On January 9, 2007, the Court began jury selection for a death penalty trial with four co-defendants: Kenneth Dodd, Tommie Dorsey, Jonte Robinson, and Larry Gooch, Jr. During the jury selection process, Messrs. Dodd, Dorsey, and Robinson entered into a "wired" plea agreement with the United States. Each of them pled guilty to narcotics conspiracy, RICO conspiracy, and various gun charges, and Messrs. Dorsey and Robinson pled guilty to two murders, in return for which the parties agreed to a sentence of 25 years for each Defendant. The plea agreement was presented to the Court on January 17, 2007, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). The Court went through separate colloquies with each Defendant pursuant to Federal Rule of Criminal Procedure 11, and Messrs. Dodd, Dorsey, and Robinson pled guilty after satisfying the Court that each plea was knowing and voluntary. Mr. Gooch proceeded to trial.
Thereafter, Messrs. Dodd, Dorsey, and Robinson filed separate notices to the Court, each stating that he wanted to withdraw his plea. See Robinson's May 3, 2007 Notice [Dkt. # 789] & May 21, 2007 Notice [Dkt. # 807]; Dodd's May 7, 2007 Notice [Dkt. # 790]; Dorsey's June 13, 2007 Notice [Dkt. # 822]. The United States filed oppositions. See Response to Dodd & Robinson's motions dated June 13, 2007 [Dkt. # 819] & Response to Dorsey's motion dated June 15, 2007 [Dkt. # 826]. Because these motions were bare-bones notices that did not contain any analysis, the Court set a briefing schedule, and the Defendants filed supplemental submissions in support of their motions. See Robinson's July 12, 2007 Supp. Submission [Dkt. # 834]; Dodd's July 18, 2007 Supp. Submission [Dkt. # 836]; Dorsey's July 18, 2007 Mot. to Adopt Robinson's Mot. [Dkt. # 835]; Dorsey's July 19, 2007 Mot. to Adopt Dodd's Mot. [Dkt. # 837].*fn1 The United States filed a supplemental opposition. See Response filed July 30, 2007 [Dkt. # 838]. Mr. Dodd alone filed a reply. See Dodd's Reply [Dkt. # 839]. Accordingly, the matter is fully briefed and ready for decision.
Before a court actually accepts a guilty plea, a defendant may withdraw it for any reason. Fed. R. Crim. P. 11(d)(1) ("A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no reason."). After a plea is accepted but before a sentence is imposed, a court may permit a defendant to withdraw his guilty plea upon a showing of a "fair and just reason" for requesting the withdrawal. Fed. R. Crim. P. 11(d)(2)(B) ("A defendant may withdraw a plea of guilty . . . (2) after the court accepts the plea but before it imposes sentence if: . . . (B) the defendant can show a fair and just reason for requesting the withdrawal"). When seeking to withdraw a plea after the court has accepted it, a defendant has the burden to prove valid grounds. Id.; United States v. Rogers, 387 F.3d 925, 932 (7th Cir. 2004).
In order to determine whether a defendant has shown a fair and just reason for withdrawal, a matter within the district court's discretion, United States v. Jones, 472 F.3d 905, 908 (D.C. Cir. 2007); United States v. West, 392 F.3d 450, 455 (D.C. Cir. 2004), a court must consider three factors: "(1) whether the defendant has asserted a viable claim of innocence; (2) whether the delay between the guilty plea and the motion to withdraw has substantially prejudiced the government's ability to prosecute the case; and (3) whether the guilty plea was somehow tainted."*fn2 West, 392 F.3d at 455 (quoting United States v. Hanson, 339 F.3d 983, 988 (D.C. Cir. 2003)); accord United States v. McCoy, 215 F.3d 102, 106 (D.C. Cir. 2000). "The last of these is the most important." West, 392 F.3d at 455.*fn3
A defendant seeking to withdraw a guilty plea before sentencing "must affirmatively advance an objectively reasonable argument that he is innocent, for he has waived his right simply to try his luck before a jury." United States v. Cray, 47 F.3d 1203, 1209 (D.C. Cir. 1995) (citation omitted). Where the motion asserts legal innocence and the plea was not properly entered or is otherwise constitutionally infirm, presentence withdrawal should be "rather freely allowed." United States v. Barker, 514 F.2d 208, 220 (D.C. Cir. 1975). Where the plea was properly entered and its constitutionality is not an issue, more substantial reasons must be provided for why the claim of innocence was not asserted earlier.
Were mere assertion of legal innocence always a sufficient condition for withdrawal, withdrawal would effectively be an automatic right. There are few if any criminal cases where the defendant cannot devise some theory or story which, if believed by a jury, would result in his acquittal. . . . Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but "a grave and solemn act" which is "accepted only with care and discernment." 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 the original pleading. It should go without saying that the standard is very lenient when the plea was entered unconstitutionally or contrary to Rule 11 procedures. . . . By the same token, however, where the plea itself was properly entered withdrawal is not an automatic right and more substantial reasons for delay must generally be asserted.
Id. at 221 (citations omitted; emphasis added).
Thus, the D.C. Circuit is "extremely reluctant" to reverse a district court's denial of a motion to withdraw a plea where the defendant failed to show error under Rule 11, even if the defendant makes out a legally cognizable defense. Cray, 47 F.3d at 1208. "[A] defendant who fails to show some error under Rule 11 has to shoulder an extremely heavy burden if he is ultimately to prevail." Id. (emphasis added). "This is because our judicial system consecrates the guilty plea as a grave and solemn act, and regards the withdrawal of guilty pleas as inherently in derogation of the public interest in finality and the orderly administration of justice." United States v. Tolson, 372 F. Supp. 2d 1, 9-10 (D.D.C. 2005) (internal quotation marks and citations omitted).
A. The Guilty Pleas Were Accepted by the Court
Each Defendant argues that the Court never accepted their guilty pleas and so they should be permitted to withdraw the pleas for any reason without leave of court. This represents a misunderstanding of the plea colloquies: in each instance, the Court conditionally accepted the guilty pleas while awaiting the presentence report ("PSR"). This is explicitly permitted. United States v. Hyde, 520 U.S. 670, 677 (1997); Jones, 472 F.3d at 908; accord United States v. Holland, 117 F.3d 589, 593 (D.C. Cir. 1997) (permitting the court to accept a plea conditionally after the court accepts the factual basis for the plea, and rejecting the argument that the defendant can withdraw his plea "simply on a lark" after he has "sworn in open court that he actually committed the crimes, and after he has stated that he is pleading guilty because he is guilty").
[T]he Supreme Court in Hyde clarified that guilty pleas exist independently from plea agreements on which they rest, explaining that "the Rules nowhere state that the guilty plea and the plea agreement must be treated identically." As a result, the Court ruled, a district court may accept a guilty plea without simultaneously accepting the underlying plea agreement.
Jones, 472 F.3d at 908 (citing Hyde, 520 U.S. at 677).
Specifically, as to Mr. Dodd, after the Court accepted the factual proffer and Mr. Dodd entered his pleas, the Court said, "The Court will accept that guilty plea conditionally as an 11(c)(1)(c)." Tr. Plea Proceedings, January 17, 2007 ("Tr.") at 25.*fn4 As to Mr. Robinson, after he entered his pleas, the Court stated, "The Court accepts that plea conditionally pending the presentence report." Id. at 38. After Mr. Dorsey entered his pleas, assuring the Court that he entered them "[o]f my own free will," id. at 46, the Court stated, "All right, then[,] the Court accepts that plea conditionally pending on the presentence report." Id. This was the appropriate procedure because the Court may accept a plea without ...