The opinion of the court was delivered by: Wexler, District Judge.
Defendant Archie Laano ("Defendant" or "Laano"), who entered a
plea of guilty in this matter on May 21, 2001, now moves for an
order pursuant to Rule 32(e) of the Criminal Rules of Civil
Procedure to withdraw his plea of guilty For the reasons set
forth below, the motion is denied.
I. Pre-Plea Proceedings and The Plea of Guilty
On March 1, 2000, Laano was arrested pursuant to an arrest
warrant. On May 7, 2001, after issuance of several orders of
excludable delay, a jury was selected. At the time of the
selection, a firm trial date of May 23, 2001 was set. On
Saturday, May 19, 2001, Laano's counsel contacted the government
and said his client was interested in a plea agreement offered
earlier in the week but wished to discuss the matter with his
family. That evening, Laano, through counsel, accepted the plea
agreement. On Sunday, May 20, 2001, the defendant executed and
faxed the plea agreement to the government. The next morning,
two days before the trial was scheduled to begin, Laano pled
guilty to count one of a two-count superseding indictment. That
count charged Laano with
health care fraud in violation of 18 U.S.C. § 1347.
II. The Plea Agreement and the Court's Acceptance of Laano's
The plea agreement between Laano and the government was a
level 15 offense. In the event the Laano had proceeded to trial,
Laano would not have had the possibility of the benefit of a
downward departure for acceptance of responsibility and could
have been sentenced to a higher level pursuant to the sentencing
When Laano entered his guilty plea he was questioned by the
court regarding his state of mind and his understanding of the
consequences of entry of the plea. Questioning in open court,
however, was not the first time that the court inquired as to
Laano's state of mind and his understanding of the consequences
of his plea.
It is the practice of this court to provide a written plea to
all defendants prior to pleading guilty before the court. That
written plea sets forth each and every question that the court
intends to pose to defendant at the time of the plea. It also
sets forth, in detail, the rights that the defendant is
surrendering by choosing to enter a plea of guilty. The written
plea is more than a statement; it is written in question and
answer format and seeks written responses from defendant and his
counsel prior to commencement of proceedings in court.
Importantly, the court allows the defendant to meet with defense
counsel, in private, prior to entry of the plea to allow counsel
to review the written plea and explain all aspects of the plea
procedure and its consequences prior to signing the document and
entering the plea on the record.
In the written plea, Laano stated that his mind was clear and
that he understood the proceedings. Laano's counsel indicated
that he had discussed the matter with his client, that his
client understood the nature of the proceedings and that there
was no doubt about Laano's competence to plead guilty.
Laano's written responses to the questions posed in the plea
document also indicated his knowledge that he had the right to
plead not guilty and to proceed to trial. He was informed of the
trial rights that he was waiving, including the right to a
speedy trial, the government's responsibility to prove guilt by
proof beyond a reasonable doubt and the right against
self-incrimination. Laano responded affirmatively to the
question in the written plea asking whether he was making his
guilty plea voluntarily and of his own free will. Further, he
replied "no" when asked whether anyone had threatened him or
forced him to plead guilty.
After Laano was given ample to time review the written plea,
proceedings were commenced in court. At those proceedings, the
court asked Laano the same questions posed in the written plea.
Upon Laano's recitation of the statements set forth in the plea,
this court accepted the plea of guilty.
In support of his motion to withdraw his plea, Laano argues
that he was not thinking clearly when he decided to plead
guilty. He states that he "felt compelled to accept the plea" to
avoid financial consequences of potential civil actions and that
in accepting the plea, he was trying to preserve assets for his
wife. Laano characterizes the present motion as "not a case of
changing my mind," but, instead, a case where ...