Opinion
02 Cr. 853 (JFK)
September 18, 2003
Alexander H. Southwell, JAMES B. COMEY, United States Attorney for the Southern District of New York, New York, New York, for the United States of America
MICHAEL S. WASHOR, Esq., New York, New York, for the Defendant
MEMORANDUM OPINION and ORDER
Preliminary Statement
On December 3, 2002, defendant John Hudak ("Hudak" or the "defendant") was convicted by a guilty plea of possessing computer files containing images of child pornography in violation of 18 U.S.C. § 2252A(a)(5) (B). Presently before the Court is a motion by Hudak for leave pursuant to Rule 11(d)(b)(2) of the Federal Rules of Criminal Procedure to withdraw his guilty plea. For the reasons set forth herein, Hudak's motion is denied.
Hudak entered his plea before the Honorable Alan G. Schwartz, U.S.D.J. The case was reassigned to this Court following Judge Schwartz's death.
Facts
I. Operation Candyman
Operation Candyman was an undercover Federal Bureau of Investigation ("FBI") operation designed to target individuals interested in child pornography. Operation Candyman began in January 2001 when Special Agent Geoffrey Binney ("SA Binney") of the Houston FBI office joined the Candyman E-group in an undercover law enforcement capacity. SA Binney had been led to the Candyman E-group by its mention in the on-line newsletter LolitaNews.com. Upon entering the Candyman E-group, SA Binney was greeted by a welcome page stating:
E-groups are internet forums, similar to web sites, which generally require users to subscribe. Once a user subscribes, the user can post messages, chat electronically, post and transfer files and share information.
This group is for People who love kids. You can post any type of messages you like too and any type of pics and vids you like too. P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET.
Across the top of the welcome page appeared a number of hyperlinks. The links were entitled: "Subscribe," "Messages," "Post," "Files," "Polls," "Links," and "Chat." The "Files" link led to a storage area for images and video clips to be accessed by Candyman E-group members. SA Binney found some of the images and videos to be "egregious, hard core child pornography." The "Messages" section contained an archive of e-mail messages posted to the E-group. Like the "Files" section, the section linked to by "Messages" contained some images of child pornography. The "Links" option led members to other web sites where images could be found.
After joining the Candyman E-group, SA Binney automatically began receiving all of the e-mails posted to the E-group. From the time SA Binney joined the E-group on January 2, 2001 to the day on which the E-group's web site was shut down by Yahoo! Inc. ("Yahoo"), February 6, 2001, SA Binney received approximately 498 e-mail messages. Of the 498, just over 100 of them had files attached. Of those, slightly less than half were of child pornography. The remainder were classified as containing "child erotica"—images of nude children that do not rise to the level of pornography.
The Candyman E-group was originally the property of eGroups, Inc. In August of 2000 eGroups, Inc. was acquired by Yahoo. The changeover to the Yahoo system did not begin to occur until the end of January 2001, however.
On January 19, 2001, a federal grand jury subpoenaed Yahoo for information including, among other things, a list of members of the Candyman E-group. In early February 2001, Yahoo responded to the subpoena and provided a list of nearly 3,400 persons who were Candyman E-mail members during the period of time that SA Binney was a member.
II. Indictment of Hudak
In February 2002, Special Agent Austin Berglas ("SA Berglas") who is assigned to a squad within the New York Division of the FBI that investigates crimes against children, further investigated leads he had received from the Houston FBI in order to determine the residential addresses of members of the Candyman E-group. On March 6, 2002, pursuant to one of several search warrants issued as part of Operation Candyman, FBI agents and New York City Police officers conducted a search of 545 East 14th Street, Apartment 2A, the residence of Hudak and Danielle Catanzano. The search warrant sought evidence of child pornography. Pursuant to the warrant, a shredder, a bag containing shredded documents, another bag containing floppy discs, CDs and miscellaneous papers, a scanner and a personal computer were collected during the search. No pornography was found during the search, and no arrests were made at the time of the search.
A few weeks after the search, agents in the FBI laboratory were able to retrieve 34 images of pornography from the computer seized from the residence. Of the 34 pornographic images, 20 involved child pornography. On or about July 2, 2002, Hudak was charged in Indictment 02 Cr. 853 (ACS) (the "Indictment") with possessing computer files containing images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Shortly thereafter, Hudak was arrested; and on July 9, 2002 he was arraigned on the Indictment. Hudak initially entered a plea of not guilty.
On December 3, 2002, Hudak pled guilty to the sole charge in the Indictment. Hudak did not enter into a plea agreement with the government prior to entering his guilty plea. Hudak has not yet been sentenced.
III. Disclosure of Inaccuracies in the Search Warrant Affidavit
The search warrant that authorized the search of Hudak's residence was obtained by SA Berglas on March 1, 2002. The warrant was signed by Magistrate Judge James C. Francis IV. In the affidavit in support of the search warrant, SA Berglas included information he personally knew to be true and information he received from other agents in the New York and Houston FBI offices. In particular, a statement in the search warrant affidavit that every e-mail posted to the Candyman E- group was automatically sent to all Candyman members was provided to SA Berglas by the Houston FBI office.
Throughout 2001 and 2002 SA Berglas and other FBI agents assigned to Operation Candyman continued to investigate the nature of the E-group. In particular, the FBI engaged in a protracted effort to elicit as much information as possible about the features of the E-group and its membership from Yahoo. In late June 2002, the government learned that contrary to what it had believed there was a possibility that not every Candyman E-group member received every e-mail. After further investigation of this possibility, the government informed Michael S. Washor, Esq. ("Washor"), counsel for Hudak in a letter dated August 12, 2002 that there might be an inaccuracy in the search warrant affidavit. The letter explained that although the affidavit stated that all subscribers to the Candyman E-group automatically received e-mails, in fact, three e-mail delivery options were available to members. Members could elect to receive e-mails, to receive daily digests of messages or to receive no e-mail. In addition to revealing the factual inaccuracy, the government's letter attempted to "set forth . . . background facts which put the inaccuracy in its proper context." Finally, the letter expressed the government's belief that the inaccuracy did not invalidate the search warrant. The letter was sent to the defendant nearly four months before he entered his guilty plea.
This quote is taken from the government's August 12, 2002 letter.
In December 2002, after Hudak had already pled guilty, the government learned of another apparent inaccuracy in the search warrant affidavit. Although the affidavit claimed that SA Binney had joined the Candyman E-group by e-mail, Yahoo logs and two reports by the FBI's Special Technologies and Applications Section, Cyber Operational Deployment Unit seemed to indicate that SA Binney had actually joined via the E-group's web site. Despite the fact that SA Binney had testified three separate times that he believed he joined by e-mail and still clung to that belief, the government felt compelled to share with Hudak that it had uncovered the possible inaccuracy. The government communicated this fact — again, along with its belief that the inaccuracy did not invalidate the search warrant — in a letter to Washor on January 2, 2002.
Discussion
On June 13, 2003, Hudak filed the instant motion to withdraw his plea on the basis that the government withheld certain Brady Giglio material. The government opposes the motion claiming defendant has simply had a "change of heart," and denying that it failed to disclose any Brady or Giglio material.
I. Legal Standard for Withdrawal of a Guilty Plea
Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure provides that if a defendant moves to withdraw his guilty plea before sentence is imposed, the court may permit the plea to be withdrawn if the defendant can demonstrate a "fair and just reason." A defendant does not, however, have an absolute right to withdraw a guilty plea prior to sentencing. See United States v. Karro, 257 F.3d 112, 117 (2d Cir. 2001); United States v. Maher, 108 F.3d 1513, 1529 (2d Cir. 1997); United States v. Williams, 23 F.3d 629, 634 (2d Cir. 1994). In fact, because society has a strong interest in the finality of guilty pleas, United States v. Sweeney, 878 F.2d 68, 70 (2d Cir. 1989), a defendant bears the significant burden of persuading the court that valid grounds exist for the withdrawal of the plea. United States v. Marguez, 909 F.2d 738, 740 (2d Cir. 1990); United States v. Ouinones, 906 F.2d 924, 928 (2d Cir. 1990).
Formerly Fed.R. Grim. P. 32(e)
In determining whether a "fair and just reason" exists for the withdrawal of the guilty plea, courts are instructed to consider: (1) whether the defendant asserts legal innocence; (2) the time lapse between the plea and the motion; (3) whether withdrawal of the plea will prejudice the government; (4) whether the plea was coerced; and (5) whether the motion to withdraw simply represents a "change of heart." United States v. Fernandez, 734 F. Supp. 599, 602 (S.D.N.Y. 1990); United States v. Tavarez, 2000 WL 1010303, at *3 (S.D.N.Y. July 20, 2000). In reaching a decision as to whether the defendant should be allowed to withdraw the plea, a court should balance each of the elements to reach the most equitable decision. Fernandez, 734 F. Supp. at 602. Nonetheless, the defendant "must raise a significant question about the voluntariness of the original plea." United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997).
II. Application of the Relevant Factors to the Relevant Facts
1. Legal Innocence
At his plea allocution, Hudak admitted that he had possessed child pornography obtained from a web site. See Plea Tr. 16. Hudak makes no attempt to claim his legal innocence. In fact, Hudak's counsel concedes this point in his August 5, 2003 letter to the Court. Washor wrote, "The underlying crime is possessory in nature. There is no issue related to innocence since the defendant has admitted to possession of the contraband."
Instead, Hudak's contention is that because the crime is possessory in nature and he seeks — should his plea be withdrawn — to attack the validity of the search warrant, the Court should not consider his legal innocence. Washor Aff. dated Aug. 5, 2003. The Court does not accept this argument. As the legal standard for withdrawal of a plea makes clear, legal innocence is a critical factor to be considered. Whether the search warrant was valid or not impacts the strength of Hudak's tactical defense, not whether he is legally innocent. The purpose of considering legal innocence is to insure that the defendant's reason for withdrawing his plea is "just" and not simply a recalculation of his chances of defeating the indictment. Thus, the Court will consider the fact that Hudak does not claim legal innocence in its evaluation of the merits of this motion.
2. Time Lapse
Hudak's motion was offered more than six months after he entered his guilty plea. Ordinarily such a long delay would not countenance in favor of granting the withdrawal motion. See, e .g.,United States v. Fantauzzi, 260 F. Supp.2d 561, 565 (E.D.N.Y. 2003) (finding four months to be a long delay in what was also an Operation Candyman prosecution); United States v. Nelson, 1999 WL 191552, at *1 (S.D.N.Y. Apr. 7, 1999) (four month delay). In this instance there are, however, mitigating circumstances that excuse some portion of the delay. In particular, the untimely and tragic passing of Judge Schwartz and subsequent reassignment of the case played a role in the delay.
The defendant also seeks to attribute some of delay to the fact that counsel only became aware of the inaccuracies and misstatements in the search warrant affidavit upon reading the decision in United States v. Perez, 247 F. Supp.2d 459 (S.D.N.Y. 2003). The Perez decision was rendered on March 5, 2003 and published shortly thereafter. This claim is rather dubious because, as is discussed at greater length infra, the government had informed Hudak of possible inaccuracies long before thePerez decision was issued. More likely, the impact of thePerez decision was to change defendant's mind regarding the possibility of suppressing certain evidence.
3. Prejudice to the Government
"[T]he government need not demonstrate prejudice where the defendant fails to show sufficient grounds to justify withdrawal of the plea."Torres, 129 F.3d at 715. Nonetheless, the government does not claim that it would be unduly prejudiced should the motion to withdraw the plea be granted. See Gov't Mem. in Opp., at 23.
4. Coercion
At the time of his plea allocution, Hudak stated that he had not been induced to plead guilty by reason of any promise or threat. See Plea Tr. 14. Hudak does not contest his statements made during his allocution. Nor does he now attempt to claim that he was "overtly coerced" to enter his guilty plea. Hudak does, however, claim that he was "impli[citly] coerced." It is Hudak's position that the government's failure to disclose vital Brady and Giglio material are tantamount to a form of coercion. See Washor Aff. dated Aug. 5, 2003. If in fact the government had withheld Brady or Giglio material, the Court would have been much more receptive to Hudak's argument. Because, as discussed infra, the Court does not believe the government withheld Brady or Giglio material, Hudak's argument that he was implicitly coerced must fail.
5. Change of Heart
Hudak contends that the reason he seeks to withdraw his plea is to allow him the opportunity to challenge the validity of the search warrant. Hudak goes so far as to state in his moving papers that he has no intention of ever going to trial. See Motion for Leave to Withdraw Guilty Plea ¶ 23. Rather, should the search warrant be deemed valid, Hudak asserts that he will again plead guilty to the one-count indictment.
In reality, Hudak has simply had a "change of heart" after having reevaluated the strength of the government's case against him. In particular, Hudak is buoyed by the Perez decision and now believes he can have the evidence against him suppressed. As Judge Spatt wrote in another case stemming from Operation Candyman, "[A] `change of heart' after reevaluating the government's case is an insufficient reason to withdraw a guilty plea." Fantauzzi, 260 F. Supp.2d at 566 (citing United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) ("The 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.")). As Judge Ross stated in yet another Operation Candyman case in which the defendant moved to have his plea withdrawn, "The only basis for defendant's motion is his belief that the court would suppress the evidence seized from his computer if he were offered a second chance to re-litigate the suppression motion. . . . This rationale for withdrawing his plea therefore amounts to a `change of heart' based on a reevaluation of the government's case." United States v. Coplan, 02 Cr. 319 (ARR) (slip op.) (E.D.N.Y. May 21, 2003).
It is also worth noting that the Perez decision is inapplicable in the instant case. In Perez the defendant moved to suppress the evidence obtained during the execution of one of the Operation Candyman search warrants. Unlike this defendant, the defendant in Perez had not pled guilty prior to making his motion. For that reason the Perez decision does not deal with issues facing this Court, namely whether to allow a withdrawal of a guilty plea. By pleading guilty Hudak waived the right to challenge the constitutionality of the search of his home. See United States v. Arango, 966 F.2d 64, 66 (2d Cir. 1992) (holding that the defendant's guilty plea waived his right to raise a Fourth Amendment challenge to the search of his automobile). Thus, before the Court can consider a challenge to the validity of the warrant, Hudak must first meet his burden of proving to the Court that his plea should be withdrawn.
When considered together and weighed against one another, the five factors strongly militate against granting Hudak's motion for leave to withdraw his guilty plea. Even if the Court were to consider the time delay understandable and grant the defendant that a withdrawal would not unduly prejudice the government, Hudak's lack of legal innocence combined with the realities that he was not coerced to plead guilty and that this motion simply reflects a change of heart heavily tip the balance against granting the motion.
III. The Government Fulfilled its Disclosure Responsibilities
It is true, as Hudak suggests, that if the Court believed that the government had withheld either Brady or Giglio material, the Court would have no choice but to allow Hudak to withdraw his plea. This is true regardless of whether the five Rule 11(d)(2)(B) factors weigh against the defendant. See United States v. Avellino, 136 F.3d 249, 261-62 (2d Cir. 1998). As the Second Circuit stated, "[W]here a Brady violation is established . . . we are unaware of any authority for the proposition that the court has discretion to deny the motion [to withdraw the guilty plea]."Id.
There were, however, no Brady or Giglio violations during Hudak's prosecution. The information that Hudak claims was withheld from him was either disclosed to him in one of the two letters the government sent to his attorney or not known by the government at the time of his prosecution. The August 12, 2002 letter clearly and plainly set forth that the government was aware of the misstatement in the search warrant affidavit relating to the e-mail delivery options. This letter was dated nearly four months prior to Hudak entering his guilty plea. Similarly, the January 2, 2003 letter stated clearly, with supporting attachments, the government's belief that SA Binney had not joined the E-group in the manner indicated by the affidavit. Although this letter was sent after Hudak pled guilty, the evidence indicates that the letter was sent within a reasonable time after the government learned of the inaccuracy. Moreover, the evidence indicates that the government was unaware of the inaccuracy explained in its January 2, 2003 letter until after Hudak entered his plea.
Hudak's plea was entered on December 3, 2002. The dates on the technology reports attached to the government's January 2, 2003 letter indicate that they were not issued until December 12, 2002. See Gov't Mem. in Opp., Ex. A.
Hudak claims that the letters were misleading because the government expressed its belief that the errors they detailed did not invalidate the search warrant. Each of letters laid out the facts and factual context the government believed necessary to understand the inaccuracies and expressed the government's belief that the inaccuracies did not invalidated the warrant. Hudak did not have to accept the government's view. In fact, armed with the knowledge that there were inaccuracies and the factual context surrounding the inaccuracies, Hudak was free to make a Franks motion. Instead, Hudak chose to enter a plea of guilty. Now, because he believes he made a tactical error, Hudak seeks to reverse course and erase his past decisions. Dressing his desires in Brady clothes does not, however, Brady violations make them.
IV. Request for an Evidentiary Hearing
Hudak requests an evidentiary hearing regarding his motion to withdraw his plea of guilty. "[A] defendant who seeks to withdraw his plea of guilty is not entitled to an evidentiary hearing on the basis of assertions that are simply conclusory." Avellino, 136 F.3d at 260 (citing United States v. Gonzalez, 970 F.2d at 1100). Having deemed Hudak's assertions to be conclusory, the Court hereby denies the request for a hearing.
Conclusion
The defendant's request for leave to withdraw his guilty plea is denied, as is his request for an evidentiary hearing. Sentencing in this matter is scheduled for 9:30 a.m. on October 22, 2003.SO ORDERED.