United States District Court, S.D. New York
November 14, 2014
UNITED STATES OF AMERICA
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.
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). 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;  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 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) (per curiam) (internal alteration and citations omitted).
In addition, the Federal Rules provide that, before entering judgment on a guilty plea, the Court must " determine that there is a factual basis for the plea." Fed. R. Crim. P. 11(b)(3). This " is designed to 'protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge.'" McCarthy v. United States, 394 U.S. 459, 467, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) (quoting Fed. Rule Crim. Proc. 11 advisory committee's notes). The factual basis for the plea must therefore be drawn from the record as it existed at the time of the plea, see Irizarry v. United States, 508 F.2d 960, 967 (2d Cir. 1974), and when that record is lacking, " fair and just" reasons for requesting to withdraw a plea exist. See, e.g., Adams 448 F.3d at 499; United States v. Heid, 651 F.3d 850, 856 (8th Cir. 2011) (" [T]here is no factual basis for [defendant's] plea to the charge of conspiracy to launder money. Accordingly, we hold that [defendant] has shown a 'fair and just reason' for withdrawing her plea."); cf. McCarthy, 394 U.S. at 471-72 (" Rule[ 11]'s procedural safeguards . . . are designed to facilitate a more accurate determination of the voluntariness of [the defendant's] plea.").
Before turning to the merits of the Government's motion, the Court notes the high burden that the Government bears. The standard for granting a motion for reconsideration is " strict." See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). To prevail, " a party must demonstrate an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Pretter v. Metro N. Commuter R. Co., No. 00 Civ. 4366, 2002 WL 31163876, at *1 (S.D.N.Y. Sept. 30, 2002) (internal quotation marks omitted). Here, because the Government does not offer any new evidence or point to a change in law, it must establish that the Court's exercise of discretion to allow Encarnacion to withdraw his plea constituted " clear error" or set into motion " manifest injustice."
With this context in mind, the Court now addresses the Government's motion with respect to each of the five counts. For Counts Two and Six, the Court adheres to its initial decision because a factual basis for the plea is lacking. For Counts Three, Four, and Five, which are addressed together, the Court acknowledges that a factual basis for Encarnacion's plea may exist, but nevertheless finds that the totality of the circumstances demonstrates that Encarnacion had fair and just grounds for requesting withdrawal of his plea.
With respect to Counts Two and Six in general, it would be " error for the court to find that a factual basis exists when the defendant actively contests a fact constituting an element of the offense in the absence of circumstances warranting the conclusion that the defendant's protestations are 'unworthy of belief.'" United States v. Culbertson, 670 F.3d 183, 190 (2d Cir. 2012) (quoting Godwin v. United States, 687 F.2d 585, 590 (2d Cir. 1982)). With respect to Count Two -- the alleged conspiracy to distribute cocaine -- Encarnacion repeatedly protested his innocence. See, e.g., Plea Tr. at 8:15 (" I had no involvement with drugs."); id. at 16:18-19 (" No, I don't want to plead guilty to that. I never deal[t] with drugs before in my life. Never."); id. at 17:3 (" I have no involvement with drugs."). Nevertheless, he asked to plead guilty to avoid the consequences of going to trial. Id. at 23:8-11 (" I heard about the consequences of going to trial . . . that's why I decided to plead guilty to these charges, no drugs, because I don't really want to go to trial. I'd rather . . . just get this over with."). Assuming, arguendo, that this would have been permissible under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the Government in this District does not accept " Alford" pleas.
Furthermore, even an " Alford" plea will not lie absent independent evidence of guilt. The Government previously relied on Encarnacion's post-arrest admissions -- which he was clearly retracting -- and Goris's future testimony. But the Government acknowledged that Goris " didn't open up the package" that he would be asked to testify contained cocaine. Id. at 45:8-11. The Government's statements thus fail to render Encarnacion's assertions " unworthy of belief" and, as a result, fail to establish a factual basis for the plea to Count Two. In hindsight, the Court should probably not have accepted the plea at the time, and has no hesitancy in reaffirming its subsequent decision to let Encarnacion withdraw his plea to Count Two.
The Court reaches the same conclusion with respect to Encarnacion's plea to Count Six, conspiracy to commit witness tampering. The substantive crime, witness tampering, requires the specific intent to interfere with criminal proceedings,  see United States v. Vitagliano, 86 F.App'x 470, 472 (2d Cir. 2004), and the conspiracy charge requires that Encarnacion agreed with at least one other person to execute the substantive crime, see United States v. Ceballos, 340 F.3d 115, 123-24 (2d Cir. 2003). The Government's contends that proof of this charge is found both in Encarnacion's delivery of a letter to Goris's mother and in a Facebook message he sent to Goris's family. See Plea Tr. at 47:7-15. While this may prove true at trial, the record of these communications developed during the plea hearing was inadequate to sustain Encarnacion's plea.
The portion of the record concerning the letter provides no factual basis for the intent element. Unless Encarnacion knew or reasonably should have foreseen before he delivered the letter (which he denied writing, see id. at 41:2-3) that it instructed the Goris family to avoid speaking with law enforcement officers, nothing establishes that he had the requisite intent to engage in witness tampering. This is especially true since Encarnacion had allegedly harassed Goris's family on prior occasions solely for the purpose of attempting to recover the stolen money. When initially asked about the letter, however, Encarnacion stated that he " never managed to read" it. Id. at 41:2-3. At a later point in the hearing, when the Court inquired whether " you [Encarnacion] said don't tell the police, or something like that, " Encarnacion, even after conferring with counsel, responded only, " The note, I believe, it said that." Id. at 43:23-44:2. Encarnacion eventually admitted that he learned of the contents of the letter, but only after the fact. See Government's Mot., Ex. E, April 28, 2014 Transcript, at 7:6-8. Because the " factual basis must be sufficiently established by the record, rather than by assumptions of fact made by the trial judge which may be open to dispute, " Seiller v. United States, 544 F.2d 554, 564 (2d Cir. 1975), the Court will not interpret this vague testimony regarding Encarnacion's knowledge to constitute a factual basis for his intent.
Nor do the Government's statements made at the time of the plea regarding the Facebook message provide an independent factual basis for Encarnacion's plea to Count Six. In this instance, the Government failed to explain, on the record, with whom Encarnacion conspired or whether the Facebook message was part of the same conspiracy as the delivery of the letter, which Encarnacion admitted he delivered with the help of others. See Plea Tr. at 44:3-5. The record reveals only that Encarnacion began communicating through Facebook " in January 2012" and that the letter was delivered months later, on October 2, 2012. Id. at 27:15-23; 45:19-20. Put differently, that Encarnacion sent a Facebook message at some point in the same year that he agreed with others to participate in illegal activity does not provide a factual basis for the conclusion that the message was itself part of a conspiracy. Accordingly, the Court adheres to its decision to allow Encarnacion to withdraw his plea to Count Six.
Encarnacion's pleas to Counts Three, Four, and Five, which charge him with extortion, use of interstate facilities to promote unlawful activities, and conspiracy to commit both, stand on different footing. To be sure, Encarnacion initially denied the contents of these charges as well. For example, when the Court asked whether he reached an agreement " to try to extort money, " Encarnacion responded, " Not really extort money." Id. at 18:15-17; see also, e.g., id. at 20:20-21 (stating that he told Goris's mother to " please advise your son to return that money" but that " [s]he never felt threatened"); id. at 25:12-17 (" THE COURT: But what kind of pressure did [the alleged co-conspirators] think you could bring? . . . THE DEFENDANT: No, no. They, they didn't want to give pressure.").
However, after the Court allowed a recess for Encarnacion to confer with his attorney, Encarnacion explained, at length, his role in the extortion efforts and made multiple admissions establishing the elements of Counts Three, Four, and Five. See, e.g., id. at 28:4-9 (" Both Juan [an alleged co-conspirator] and I advised Rafael during this call that he had better give the money back. I understand that [Goris] and his family . . . felt threatened by these calls."); id. at 41:4-14 (stating that a co-conspirator placed a phone call from Pennsylvania at Encarnacion's request and " put pressure" on Goris). While these statements might provide a sufficient factual basis to uphold the plea, see Godwin, 687 F.2d at 590, the Court, on review, infers that Encarnacion likely succumbed to pressure to say what needed to be said to get the Court to accept the plea. At a minimum, the record overall is inconsistent and unclear. See United States v. James, 520 F.App'x 41, 44 (2d Cir. 2013) (upholding district court's rejection of plea for lack of a factual basis when defendant's allocution contained no denials of guilt, but was " inconsistent and unclear").
This combination of initial denials of guilt followed by admissions given only after the Court indicates it will not accept the plea otherwise provides a " fair and just reason for requesting" to rescind a plea. Fed. R. Crim. P. 11(d)(2)(B). Here, Encarnacion initially denied committing any offense at all, including those in Counts Three, Four, and Five; as discussed above, the record remains inadequate as to the other two charges to which he pleaded guilty; and Encarnacion has repeatedly asserted his innocence of the remaining charges, both during the plea hearing and in two letters to the Court in the months after. Taken together with the other circumstances described above, these facts provide a fair and just reason to request to withdraw a plea. Moreover, the Government's motion is one for reconsideration, and the Government has not met its burden of showing that the Court's earlier decision constituted " clear error" or that reversing it is necessary to " prevent manifest injustice." 
The Court finally considers whether, notwithstanding the foregoing, " the amount of time that has elapsed between the plea and the motion" and the prejudice the Government will suffer as a result of the withdrawal compel a different result. See Schmidt, 373 F.3d at 102-03. Courts that fault defendants for their delay tend to do so because the delay undercuts the defendant's arguments, see Marcelin v. Garvin, 97-cv-2996, 1999 WL 977221, at *7 (S.D.N.Y. Oct. 26, 1999) (collecting cases), but Encarnacion's delay, while far from ideal, casts no doubt on his claim, which rests, for the most part, on the record created during the plea hearing.
As to prejudice, it is minimal at best. That the Government will have to duplicate its trial preparation efforts and that witnesses will have to be brought in to testify for a second time (having already testified at a Fatico hearing) are inconveniences that do not remotely rise to the hardships that, in prior cases, still have been held not sufficiently prejudicial to warrant by themselves denial of a plea withdrawal. See, e.g., United States v. Nissim, 92-cr-425, 1994 WL 10624, at *2 (S.D.N.Y. Jan. 10, 1994) (expected difficulty of obtaining a witness's testimony is not sufficient prejudice).
The Second Circuit has " recognized the large discretion confided to district judges in passing on motions to withdraw pleas of guilty under Fed. R. Crim. P. (d), a discretion justified by the much better 'feel of the case' possessed by the judge who observed the defendant at the taking of the plea than can be imparted by any appellate transcript." United States v. Saft, 558 F.2d 1073, 1082 (2d Cir. 1977). Encarnacion has repeatedly maintained his innocence, and the Court accepted his guilty plea only after an extended colloquy and not without hesitation. When Encarnacion finally requested to withdraw his guilty plea, the Court's " feel of the case" informed its determination that he had fair and just reasons for doing so, and the Court remains of that view. The Court therefore reaffirms its decision denying the Government's motion.