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U.S. v. LAANO

July 24, 2001

UNITED STATES OF AMERICA, PLAINTIFF,
V.
ARCHIE LAANO, M.D. DEFENDANT.



The opinion of the court was delivered by: Wexler, District Judge.

MEMORANDUM AND ORDER

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.

BACKGROUND

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 Guilty Plea

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 guidelines.

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.

III. The Present Motion

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 ...


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