The opinion of the court was delivered by: Paul A. Crotty, United States District Judge
Four and one half months ago, on November 1, 2006, after a jury was impaneled on the day trial his trial was to begin, Defendant Michael C. Lewis ("Defendant" or "Lewis") entered a plea of guilty. Lewis now seeks to set aside that guilty plea, alleging that (1) plea was coerced, (2) the Court failed to advise that the plea was non-binding, (3) the Court improperly denied the plea of nolo contendere, and (4) "fair and just reasons" warrant the withdrawal of the guilty plea. This motion is another manifestation of the game-playing that has characterized Defendant's conduct since the beginning of this case. For the reasons discussed below, the motion is denied.
Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a defendant may withdraw his guilty before he is sentenced, if he shows "a fair and just reason for requesting the withdrawal." The defendant bears the burden of demonstrating valid grounds for relief. See United States v. Avellino, 139 F.3d 249, 261 (2d Cir. 1998). The decision of whether to allow the withdrawal is left to the discretion of the district judge. See United States v. Torres, 129 F.3d 170, 715 (2d Cir. 1997). The Court should consider the following factors:
(1) whether the defendant has asserted his or her legal innocence in the motion to withdraw the guilty plea; (2) the amount of time that has elapsed between the plea and the motion (the longer the elapsed time, the less likely withdrawal would be fair and just); and (3) whether the government would be prejudiced by a withdrawal of the plea..Courts may also look to whether the defendant has raised a significant question about the voluntariness of the original plea.
United States v. Schmidt, 373 F.3d 100, 102-03 (2d Cir. 2004) (internal citations and quotations omitted). Furthermore, "[t]he fact that a defendant has a change of heart prompted by his reevaluation of either the Government's case against him or the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea." United States v. Gonzales, 970 F.2d 1095, 1100 (2d Cir. 1992).
There are no "fair and just reasons" to support the withdrawal of Lewis' guilty plea. Significantly, Lewis does not assert his legal innocence. This is unsurprising in light of his detailed and thorough allocution on November 1, 2006 in which he admitted to possessing a firearm on February 19, 2006. (Tr. 35-37.)*fn1 It is apparent that he is trying to avoid the consequences of his plea. Had he truly felt his plea was coerced, he would have filed this motion sooner, rather than waiting until ten days before his scheduled sentencing. Rather than asserting his innocence, Lewis is trying to avoid the consequences of his plea.
As to the voluntariness of the plea, Defendant contends that his plea was coerced by the Court, but fails to provide any explanation as to how it was coerced. A review of the record reveals that this contention is simply wrong. On the day scheduled for trial, November 1, 2006, a large jury panel was assembled and kept waiting in the jury assembly room. The Court first dealt with preliminary matters such as Defendants refusal of the offer of civilian clothing; the Court advised him concerning his peremptory challenges; the parties discussed a possible stipulation to the Defendant's prior conviction, since Lewis was charged as a felon in possession of a weapon; and finally, the Court again discussed the Defendant's conduct since he was proceeding in a pro se capacity.*fn2 (Tr. 2-11.) In the middle of these discussions, Defendant advised the Court that he wished to enter a plea of nolo contendere. (Tr. 11.) At that point, the Court ordered a recess to allow the Government time to consider this plea pursuant to Federal Rule of Criminal Procedure 11(a)(2) and (3).
When proceedings resumed, the Government informed the Court that it objected to the nolo contendere plea because no extraordinary circumstances were present that would warrant such a plea. (Tr. 15.) After discussing the matter, the Court rejected the plea, as it would not be in the public interest in the effective administration of justice. (Tr. 16.) The Court then advised Defendant that he could either proceed with trial or plead guilty. (Tr. 17.) The Defendant responded that this was "coercion" and expressed his refusal to go forward with the trial. (Tr. 17-18.) He then "recanted" his not guilty plea and attempted to plead nolo contendere again. (Tr. 18.) At this point, the Court granted Defendant a brief recess to think about how he wished to proceed-to proceed with trial or plead guilty. (Tr. 19.)
After conferring with standby counsel, Defendant informed the Court that he wished to plead guilty. (Tr. 19.) Defendant then refused to be sworn in because of his faith as a Rastafarian. (20-23.) He agreed to affirm under the penalties of perjury. (Tr. 21.) The Court asked whether Defendant knew what he was doing, to which he answered: "I'm indecisive right now. I will plead guilty but can I -- I accept an adjournment?" (Tr. 22.) The Court responded that there would be no further adjournments: "You are going to plea today, and if we don't take your plea today, we're going to trial. I told you several weeks ago, November 1 was the day we're going to trial." (Tr. 22.)*fn3 Defendant then confirmed that he knew what he was doing in pleading guilty:
Court: Do you know what you're doing?
Lewis: Yes. I know what I'm doing.
Court: And you've had an opportunity to talk with several ...