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United States v. Encarnacion

United States District Court, S.D. New York

November 14, 2014

UNITED STATES OF AMERICA
v.
EDGAR ENCARNACION, Defendant

For Edgar Encarnacion-Lafontaine, also known as Tapon, Defendant (1:10-cr-00905): James Cohen, Fordham Law Clinic, New York, NY.

For Bank of America, National Association, also known as Party Bank of America, National Association, The Bank of New York Mellon, as Trustee for the Certificate Holders of CWABS Inc., CHL Mortagage Passthrough Trust 2007-HYB2, Mortagage Passthrough Certificates, Series 2007-HYB2, formerly known as The Bank of New York, HSBC Bank USA, National Association, as Trustee, in trust for the registered holders of ACE Securities Corp., Home Equity Loan Trust, Series 2005-HE4, Asset Backed Pass-Through Certificates, Interested Parties (1:10-cr-00905): Adam Michael Swanson, Blank Rome LLP, New York, NY.

For BMW Bank of North America NA, Interested Party (1:10-cr-00905): Michael Alan Rosenberg, Michael A. Rosenberg, Esq., New York, NY.

For USA, Plaintiff (1:10-cr-00905): Jason Andrew Masimore, LEAD ATTORNEY, Amie Nicole Ely, Daniel Park Chung, Sarah Eddy McCallum, U.S. Attorney's Office, S.D.N.Y. (St Andw's), New York, NY; Andrew Caldwell Adams, Emil Joseph Bove, III, Eun Young Choi, Michael Dennis Lockard, Sarah Elizabeth Paul, United States Attorney Office, SDNY, New York, NY.

For Edgar Encarnacion-Lafontaine, also known as Sealed Defendant 1, Defendant (1:13-cr-00030): Paula Jaclyn Notari, LEAD ATTORNEY, Paula J. Notari, Law Office, New York, NY; James Cohen, Fordham Law Clinic, New York, NY.

For USA, Plaintiff (1:13-cr-00030): Amie Nicole Ely, U.S. Attorney's Office, S.D.N.Y. (St Andw's), New York, NY; Emil Joseph Bove, III, U.S. Attorneys Office, SDNY, New York, NY.

MEMORANDUM

JED S. RAKOFF, United States District Judge.

On July 9, 2014, defendant Edgar Encarnacion appeared before this Court for sentencing after having pleaded guilty, pursuant to a plea agreement, to Counts Two, Three, Four, Five, and Six of the second superseding indictment in this case. Mindful that, notwithstanding his plea, Encarnacion had maintained his innocence during the January 21, 2014 plea hearing and in the months since, the Court afforded him a final opportunity to withdraw his plea. Encarnacion took it, and the Court instructed the parties to prepare for trial. Following the July 9 hearing, the Government moved the Court to reconsider its order permitting Encarnacion to withdraw his plea. On September 16, 2014, at a pre-trial conference, the Court denied the Government's motion. This Memorandum states the reasons for the Court's ruling.

The five counts to which Encarnacion pleaded guilty all relate to his alleged involvement in a cocaine distribution conspiracy and his attempts to recover the stolen proceeds of that conspiracy. In brief, the Government asserts that Encarnacion transported cocaine across the country in the tractor-trailer that he drove for a living. Government's Motion for Reconsideration of the Court's Order Granting Edgar Encarnacion's Request to Withdraw His Guilty Plea [" Government's Mot." ], Ex. B, January 21, 2014 Transcript [" Plea Tr." ], at 44:23-45:3. Encarnacion's co-driver, Rafael Goris, disrupted the scheme in December 2010 by informing their employer of Encarnacion's side venture, though not before taking, without permission, $30, 000 that Encarnacion had transported in connection with the drug distribution conspiracy. United States v. Encarnacion-Lafontaine, 10-CR-905, 2014 WL 3500557, at *3 (S.D.N.Y. July 9, 2014).[1] On December 21, 2010, Encarnacion was arrested; he pleaded not guilty and was released on bail.

In addition, both before and after his arrest, Encarnacion allegedly attempted, through the use of threats, to regain the money taken by Goris. According to the Government, this included making numerous threatening phone calls; showing up with co-conspirators at Goris's mother's door to demand she get her son to return the money; and communicating through fake Facebook accounts to make additional threats. Encarnacion-Lafontaine, 2014 WL 3500557, at *3-4; Plea Tr. at 45:17-22. Finally, the Government contends that two of Encarnacion's communications -- a letter delivered to Goris's mother and a Facebook message -- instructed the Goris family not to cooperate with the police. Plea Tr. at 47:7-15.

On the basis of this additional activity, Encarnacion was arrested again in November 2012, an indictment was filed, and, as noted above, Encarnacion pleaded guilty to Counts 2-6 on January 21, 2014. Count Two charged Encarnacion with conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § § 812, 841(b)(1)(A), 846; [2] Count Three charged conspiracy to commit extortion and to use interstate facilities to promote unlawful activity in violation of 18 U.S.C. § § 371, 875(b), 1952(a)(3); Count Four charged extortion in violation of 18 U.S.C. § § 2, 875(b); Count Five charged use of interstate facilities to promote unlawful activity in violation of 18 U.S.C. § § 2, 1952(a)(3); and Count Six charged conspiracy to commit witness tampering in violation of 18 U.S.C. § 1512(k). Throughout the plea allocution, Encarnacion, though he eventually pleaded guilty, equivocated, proclaimed his innocence, and was generally reluctant to admit wrongdoing.

The Federal Rules of Criminal Procedure govern when a defendant can withdraw a guilty plea. If a court has already accepted a plea, but not yet imposed a sentence, a " defendant may withdraw a plea of guilty . . . if . . . the defendant can show a fair and just reason for requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). The decision to permit a defendant to withdraw a plea is committed to the Court's discretion. United States v. Adams, 448 F.3d 492, 498 (2d Cir. 2006). To assess whether a defendant has satisfied Rule 11's standard, courts consider, among other 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 ...

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