Opinion
CR. 20-00068 LEK
12-09-2022
UNITED STATES OF AMERICA, Plaintiff, v. NICKIE MALI LUM DAVIS, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA AND MEMORANDUM OF PLEA AGREEMENT, [FILED 10/21/22 (DKT. NO. 117)]
Leslie E. Kobayashi United States District Judge
On October 21, 2022, Defendant Nickie Mali Lum Davis (“Defendant”) filed her motion seeking to withdraw her plea of guilty. See Defendant's Motion to Withdraw Guilty Plea and Memorandum of Plea Agreement, filed 10/21/22 (dkt. no. 117) (“Motion”). Plaintiff United States of America (“the Government”) filed its opposition memorandum on November 7, 2022. See Government's Response in Opposition to Motion to Withdraw Guilty Plea, filed 11/7/22 (dkt. no. 124) (“Opp. Mem.”). Defendant filed her reply in support of the Motion on November 15, 2022. [Dkt. no. 127.]
After careful consideration of the Motion, the memoranda filed by the parties, and the relevant legal authority, the Motion is HEREBY DENIED for the reasons set forth below.
INTRODUCTION
In the Motion, Defendant states that, “if she had known about an unavoidable conflict of interest that was not disclosed to her by former counsel, Abbe D. Lowell,[Esq. (‘Attorney Lowell')] and was accompanied by [Attorney] Lowell's inadequate and erroneous legal advice, she would not have entered into the plea.” [Motion at 1.] She contends that she has fair and just reasons for this Court to permit withdrawal of her guilty plea and recission of her memorandum of plea agreement with the Government. Specifically, that Attorney Lowell had a conflict of interest at the time that he represented Defendant because he “was being investigated for two separate criminal matters[,]” which were similar to the offenses to which she pleaded guilty and involved the same prosecuting attorneys. [Mem. in Supp. of Motion at 9.] Defendant submits that Attorney Lowell never disclosed that he had a conflict of personal interest, and that Elliott Broidy, the person about whom she agreed to cooperate with the government and testify against, was involved as a possible adverse witness or coconspirator vis-a-vis Attorney Lowell. [Id. at 10.] She also states that Attorney Lowell “never once advised [Defendant} of the viability of submitting an appeal to the Office of the Deputy Attorney General (‘ODAG') . . . as to why criminal charges should not be filed against [her].” [Id. at 12.] If so advised, she contends that her “outcome could have been significantly different.” [Id. at 13.] Finally, she contends that Attorney Lowell informed her that her cooperation with the Government and pleading guilty would result in the Government agreeing not to recommend anything more than probation for her sentence, which was an important factor to Defendant as she does not want to be separated from her daughter. [Id. at 14.] The Government's counsel informed Defendant and her legal team “in February 2021, that a recommendation for significant jail time was still on the table for [Defendant]....[and that the Public Integrity Section's] policy would never allow them to agree to [recommend probation].” [Id.] Therefore, Defendant submits that she has been misled by her prior attorney and thus has a fair and just reason to withdraw her plea and from her obligations under the memorandum of plea agreement.
The Government opposes the Motion on the singular ground that, in direct contrast to Defendant's rendition of events, Attorney Lowell was not “under criminal investigation when he negotiated her plea agreement.” [Opp. Mem. at 1.] Rather, in July 2020, during plea negotiations in Defendant's case, potential evidence involving Attorney Lowell and others was discovered by a government filter team but not shared with the prosecution team in Defendant's case nor with Attorney Lowell. [Id. at 3.] The filter team then “filed a crime-fraud motion seeking authorization to provide the communications to the prosecution team so that it could address any potential conflicts with [Attorney] Lowell.” [Id.] Attorney Lowell was advised by the filter team of the crime-fraud motion and “his potential criminal exposure” on August 26, 2020 and he, in turn, disclosed this information to his co-counsel, William C. McCorriston, Esq. and David J. Minkin, Esq., and they advised Defendant “of the potential conflict of interest.” [Id. at 4.] “To memorialize the potential conflict and waiver, the parties drafted and signed a sealed conflict waiver as an addendum to the plea agreement.” [Id. at 4 & n.3 (citing Addendum to Plea Agreement, filed 8/31/20, ECF No. 16).]
The Government and Attorney Lowell also dispute Defendant's assertions that she was unaware that she might face a term of imprisonment and that she was induced into pleading guilty because she believed that the Government would recommend a term of probation. The Government points to the terms of the plea agreement, which state that Defendant acknowledges that the penalties include a term of imprisonment as well as a term of supervised release, and that it is the Court who will decide what is an appropriate sentence to impose in her case. See Id. at 4-5 & nn.4-5 (citing Def. Memo of Plea Agreement, filed 8/31/20, ECF No. 15 ¶¶ 7.a, 11, 21-22). Additionally, the Government submits that Defendant confirmed this understanding at her plea hearing and that Court explained its authority to impose a sentence that might be different from what she expected or her attorneys may have advised. See id. at 5-6 & nn.7-9 (citing Trans. of Plea Hearing, filed 10/15/20, ECF No. 21 at 12-15, 17-18, 21).
BACKGROUND
This matter arises out of a criminal prosecution brought against Defendant by the filing of a felony information on August 17, 2020. See Information, filed 8/17/20 (dkt. no. 1). Defendant is alleged to have agreed with others “to act as agents of Foreign National A in exchange for millions of dollars in undisclosed wire transfers . . . ." [Id. at ¶ 2.] Defendant is alleged to have
specifically agreed to facilitate Person B's lobbying of the President of the United States (“the President”), his Administration, and the United States Department of Justice (“DOJ”) to drop the investigation of Foreign National A for his role in the embezzlement of billions of dollars from 1Malaysia Development Berhad (“IMDB”), a strategic investment and development company wholly owned by the Government of Malaysia.[Id.] The Government alleges that Defendant and others agreed to work together to lobby the United States:
On or about May 2, 2017, DAVIS, Person A, and Person B arrived in Bangkok. During the trip, DAVIS, Person A, and Person B met with Foreign National A in a hotel suite. Person B and Foreign National A spoke about the IMDB investigation and civil forfeiture actions.
Person B agreed to help Foreign National A attempt to resolve the matter. Foreign National A agreed to pay Person B an $8 million retainer and wanted Person B to contact the Attorney General of the United States to get DOJ to drop the IMDB matter. Person B agreed to lobby the Administration and DOJ for a favorable result for Foreign National A while concealing the fact that he was working on Foreign National A's behalf. With respect to payment, Person B stated that the money should not come directly from Foreign National A and should be “clean.” Foreign National A identified a friend who could pay Person B and others. Person B, Person A, and DAVIS agreed that the money would first be routed through Person A and then be paid to Person B through Law Firm A. Person B and DAVIS agreed that Person B would pay DAVIS thirty percent of what Person B received. Person A also agreed to pay DAVIS a percentage of the funds that Person A received. Person A told Person B and DAVIS that Person A's friend, Higginbotham, was verifying the legitimacy of the funds. Higginbotham did not actually perform any such review.[Id. at ¶ 33 (emphases in original).] The Government alleges that Defendant was paid various amounts for her services, including “[o]n or about May 18, 2017, Law Firm A transferred $500,000 to one of Person B's business accounts and $900,000 to a business account controlled by [Defendant]”; [id. at ¶39;] on or about May 26, 2017, “$600,000 was transferred from Law Firm A's account to a business account associated with [Defendant]”; [id. at ¶40;] “Person A also transferred $833,333 to a business account controlled by [Defendant]”; [id. at ¶ 69;] and “[o]n or about August 10, 2017, Law Firm A transferred $900,000 to a business account associated with [Defendant,]” [id.].
Defendant is charged with one count of aiding and abetting an unregistered agent of a foreign principal in violation of 18 U.S.C. § 2 and 22 U.S.C. §§ 612 and 618(a)(1) (“Count I”). [Id. at pg. 37.]
Defendant made her initial appearance in this matter on August 31, 2020. At that time, she waived her right to proceed by indictment and entered a plea of guilty to the felony information pursuant to her memorandum of plea agreement with the Government. See Minutes - EP: Initial appearance, Waiver of Indictment, Arraignment & Plea to Felony Information as to Defendant, Nickie Mali Lum Davis, filed 8/31/20 (dkt. no. 13). Her legal counsel at the time were Abbe David Lowell, Esq., admitted pro hac vice, and William C. McCorriston, Esq. and David J. Minkin, Esq. See Motion to Appear Pro Hac Vice, filed 8/25/20 (dkt. no. 6); Order Granting Motion to Appear Pro Hac Vice, filed 8/27/20 (dkt. no. 10).
Defendant had been scheduled for sentencing on October 27, 2022. See Minutes, filed 8/5/22 (dkt. no. 94), at PageID.1107. Defendant filed her sentencing statement, under seal, on August 22, 2022. See Defendant's Sentencing Statement, filed under seal 8/22/22 (dkt no. 97) (“Sentencing Statement”). However, she subsequently filed the instant Motion seeking to withdraw her guilty plea and from the obligations imposed by the Plea Agreement.
This Court vacated Defendant's sentencing hearing after the filing of the instant Motion. See Minute Order - EO: Court Order Vacating Sentencing Hearing and Setting a Briefing Schedule for Defendant's Motion to Withdraw Guilty Plea and Memorandum of Plea Agreement, filed 10/24/22 (dkt. no. 121).
STANDARDS
A defendant may withdraw a plea of guilty before sentencing if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Although the defendant has the burden of demonstrating a fair and just reason, United States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005), the “fair and just” standard is applied liberally. United States v. Bonilla, 637 F.3d 980, 983 (9th Cir. 2011). “Fair and just” reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea. [United States v.] McTiernan, 546 F.3d [1160,] 1167 [(9th Cir. 2008)] (citing Davis, 428 F.3d at 805). Erroneous or inadequate legal advice may also constitute a fair and just reason for withdrawal of a plea. Bonilla, 637 F.3d at 983 (citing McTiernan, 546 F.3d at 1167). A defendant who moves to withdraw a guilty plea “is not required to show that he would not have pled, but only that the proper legal advice of which he was deprived ‘could have at least plausibly motivated a reasonable person in [the defendant's] position not to have pled guilty.'” Bonilla, 637 F.3d at 983 (quoting United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir. 2005)).United States v. Yamashiro, 788 F.3d 1231, 1236-37 (9th Cir. 2015) (some alterations in Yamashiro).
A district court shall vacate the guilty plea when it is “‘shown to have been unfairly obtained or given through ignorance, fear or inadvertence.'” United States v. Rubalcaba, 811 F.2d 491, 493 (9th Cir. 1987) (quoting Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927)). However, “[t]he decision to allow a defendant to withdraw his plea . . . lies within the discretion of the district court.” United States v. Ruiz, 257 F.3d 1030, 1033 (9th Cir. 2001) (en banc) (citation omitted).
A defendant who moves to withdraw a guilty plea before a sentence is imposed is not required to show that he would not have pled, but only that the proper legal advice of which he was deprived “could have at least plausibly motivated a reasonable person in [the defendant's] position not to have pled guilty . . . .” United States v. Garcia, 401 F.3d 1008, 1011-12 (9th Cir. 2005). A pre-sentence motion to withdraw a plea should be freely allowed if a defendant can show a “fair and just reason” for requesting the withdrawal. See United States v. Davis, 428 F.3d 802, 808 (9th Cir. 2005). “Erroneous or inadequate legal advice may . . . constitute a fair and just reason for plea withdrawal.” McTiernan, 546 F.3d at 1167.Bonilla, 637 F.3d at 983 (alterations in Bonilla).
DISCUSSION
Defendant moves to withdraw her guilty plea prior to being sentenced and therefore must establish “a fair and just reason” for doing so. See Fed. R. Crim P. 11(d)(2)(B). She asserts that Attorney Lowell (her primary attorney at the time she entered her guilty plea) had an undisclosed conflict of interest and, as a result, she argues that she was denied effective assistance of counsel in violation of her Sixth Amendment right. See Mem. in Supp. of Motion at 6-10.
A challenge to a guilty plea based on a claim of ineffective assistance of counsel is analyzed using a two-part test: “a criminal defendant must show that his counsel's performance was deficient, and that this deficient performance prejudiced his defense.” [Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990).] Accord Johnson v. Baldwin, 114 F.3d 835, 837-38 (9th Cir. 1997) (“In order to prevail on his claim of ineffective assistance of counsel, Albert must show (1) that his counsel's performance, viewed objectively, was outside the wide range of professionally competent assistance, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”) (quotations omitted).
To show deficient performance, the defendant must show that the counsel's representation fell below an objective standard of reasonableness. See United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir.), cert. denied, 484 U.S. 832, 108 S.Ct. 107, 98 L.Ed.2d 66 (1987). Ineffective assistance of counsel occurs when the behavior complained of falls below prevailing professional norms. United States v. McMullen, 98 F.3d 1155, 1158 (9th Cir. 1996), cert. denied, 520 U.S. 1269, 117 S.Ct. 2444, 138 L.Ed.2d 203 (1997). . . .United States v. Modafferi, 112 F.Supp.2d 1192, 1197-98 (D. Hawai'i 2000).
I. Reasonableness of Counsel's Challenged Conduct
The two-part test for a claim of ineffective assistance of counsel starts with Defendant's burden to show that Attorney Lowell's “representation fell below an objective standard of reasonableness.” See Strickland v. Washington, 466 U.S. 668, 688 (1984). This Court is instructed to “‘judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct,' [Strickland, 466 U.S.] at 690, and ‘[j]udicial scrutiny of counsel's performance must be highly deferential,' id., at 689.” See Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (some alterations in Roe). The Government soundly rejects Defendant's rendition of events, and submits Attorney Lowell's declaration in support of a finding that plea negotiations had been completed without any knowledge by him of the filter team and that there has not been any criminal investigation of him. See Opp. Mem., Second Declaration of Abbe D. Lowell, dated 10/24/22 (“Lowell Decl.”) at ¶¶ 10-11.
The Court elects not to engage in a fact-finding mission and conduct a “trial within a trial.” Rather, the Court proceeds to analyze the Motion with the presumption that Attorney Lowell's conduct fell below an objective standard of reasonableness. Specifically, it is assumed (for purposes of this Motion only) that, at the time that he was defending Defendant and engaging in plea negotiations on her behalf, Attorney Lowell was being investigated for alleged criminal conduct similar, if not identical, to the charges currently pending against Defendant, and by the same attorneys at the Department of Justice who are involved in prosecuting Defendant.
The Court is cognizant that Attorney Lowell has provided sworn testimony to the contrary and is explicitly not making any factual finding about Attorney Lowell's professional conduct as Defendant's attorney.
According to Defendant, Attorney Lowell never disclosed that he was being investigated for criminal or civil violations, nor that these investigations were being done by the same authorities who were involved in her prosecution. See Declaration of Nickie Mali Lum Davis, filed 10/21/22 (dkt. no. 118) (“Lum Davis Decl.”), at ¶¶ 20-22.
Attorney Lowell was admitted pro hac vice in the District of Hawai'i, and thus he was obligated to follow the Hawai'i Rules of Professional Conduct (“HRPC”). See Local Rule LR83.3. These rules prohibit the representation of a client where there is a concurrent conflict of interest. See generally HRPC Rule 1.7. This type of conflict exists where “there is a significant risk that the representation of [a client] will be materially limited . . . by a personal interest of the lawyer.” HRPC Rule 1.7(a)(2). Even assuming Attorney Lowell did not have a “direct adversity of interest,” a conflict of interest (under the facts assumed for purposes of this Motion only) existed because there was “a significant risk” that his “ability to . . . recommend, or carry out an appropriate course of action for the client [was] materially limited as a result of [his] other responsibilities or interests.” See HRPC Rule 1.7 cmt.8.
Notwithstanding the conflict of interest, Attorney Lowell could continue to represent Defendant if he disclosed the conflict and obtained her written consent after consultation. See HRPC Rule 1.7(b)(4). According to Defendant, Attorney Lowell did not do so. See Declaration of David J. Minkin, filed 10/21/22 (dkt. no. 119) (“Minkin Decl.”), at ¶¶ 1-3; Declaration of William C. McCorriston, filed 10/21/22 (dkt. no. 120) (“McCorriston Decl.”), at ¶¶ 5-12; 15-17. Attorney Lowell states that he disclosed his understanding of the filter team and what has been referred to as “the FARA letter” to Defendant and Mr. McCorriston. See Lowell Decl. at ¶ 19. As stated previously, the Court will not resolve any conflict in credibility but will assume, for purposes of this Motion only, that a complete disclosure was not given and written consent to continued representation was not obtained from Defendant. Thus, Defendant did not waive the assumed conflict of interest.
“FARA” refers to the Foreign Agents Registration Act, 22 U.S.C. § 611, et seq.
The argument that Attorney Lowell's conduct fell below the standard of reasonableness because he failed to submit an internal appeal to the Office of the Deputy Attorney General (“ODAG”) on Defendant's behalf to avoid an indictment and guilty plea, see McCorriston Decl. at ¶¶ 18-20, does not hold water. Defendant argues that no one (other than herself and Elliot Broidy) had ever been prosecuted for representing a foreign nongovernment individual and failing to register under FARA while representing the interests of a foreign non-government individual. See id. at ¶ 19. Mr. McCorriston postulates that Attorney Lowell could have submitted an appeal to ODAG on Defendant's behalf because it “would have been a prudent action and a viable option for a possible resolution that could have avoided an indictment and guilty plea.” See id. at ¶ 20. Attorney Lowell's alleged failure to seek a novel and untested approach must be given healthy deference by this Court. Thus, Defendant cannot demonstrate that Attorney Lowell's neglect in failing to advise her about and failing to file an appeal to ODAG fell below the performance of reasonably effective assistance considering the circumstances. See Strickland v. Washington, 466 U.S. 668, 689 (1984) (“Even the best criminal defense attorneys would not defend a particular client in the same way.” (citation omitted)).
II. Whether Counsel's Conduct Prejudiced Defendant
The Court turns to the second step of the Strickland test: whether Defendant has shown “that counsel's deficient performance prejudiced the defendant[.]” Roe, 528 U.S. at 477 (citing Strickland, 466 U.S. at 694). Under the facts of this case, to show prejudice, Defendant must demonstrate that “there is a reasonable probability that, but for [Attorney Lowell's] deficient failure . . .,” she would not have entered a guilty plea. See id. at 484. “In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Strickland, 466 U.S. at 692. In cases where, as here, there is an actual conflict of interest, there is not a per se presumption of prejudice. “Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests' and that ‘an actual conflict of interest adversely affected his lawyer's performance.'” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 350, 348 (1980) (footnote omitted)).
Defendant argues that she would not have agreed to enter a guilty plea but for Attorney Lowell's representation that she would receive a sentence of probation and not be sentenced of imprisonment. [Mem. in Supp. of Motion at 14.] Attorney Lowell emphatically denies her assertion. See Lowell Decl. at ¶ 14. Nevertheless, even assuming, for purposes of this Motion only, that the alleged representation was made to Defendant, the Government thoroughly sets forth the fact that both the memorandum of plea agreement and the Court's colloquy with Defendant at the time that she entered her guilty plea clearly spelled out that she faced a possible sentence of incarceration of up to five years, and that Defendant confirmed her understanding that she could be sentenced to imprisonment by agreeing to the plea agreement and stating in the affirmative to questions by the Court. See Opp. Mem. at 4-6 & nn.4-9 (citing Def. Memo of Plea Agreement, filed 8/31/20, ECF No. 15 ¶¶ 7.a, 11, 21-22, 29; Trans. of Plea Hearing, filed 10/15/20, ECF No. 21 at 12-15, 17-18, 21). Defendant's reliance, if any, on a prediction that she would be given a sentence of probation flies in the face of the hard facts stated in the plea agreement and during the Court's colloquy with her: that her possible sentence included incarceration of up to five years; that the Court is not bound by the recommendations of the parties and decides her sentence; and that, even if she did not like the sentence that the Court imposed, she would not be able to take back her guilty plea.
Defendant thus fails to demonstrate a reasonable probability that, but for Attorney Lowell's alleged failure to warn her that she faces a sentence of imprisonment, she would not have entered a guilty plea.
CONCLUSION
For the foregoing reasons, Defendant's Motion to Withdraw Guilty Plea and Memorandum of Plea Agreement, [filed 10/21/22 (dkt. no. 117),] is DENIED. Defendant's sentencing hearing will proceed on January 18, 2023, at 1:30 p.m.
IT IS SO ORDERED.