Opinion
04 Cr. 363 (JGK).
June 23, 2008
MEMORANDUM OPINION AND ORDER
The defendant, Raulin Paredes-Acevedo, has moved to withdraw his plea of guilty. The defendant was charged in a superseding indictment (the "Indictment"). Count One of the Indictment charged the defendant with conspiring in violation of 21 U.S.C. § 963 to manufacture and distribute five kilograms and more of cocaine intending and knowing that it would be unlawfully imported into the United States and into waters within a distance of twelve miles of the coast of the United States in violation of 21 U.S.C. §§ 959, 960(a)(3), and 960(b)(1)(B). Count Two charged the defendant with conspiring in violation of 21 U.S.C. § 846 to distribute and possess with intent to distribute five kilograms and more of cocaine in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A).
Following the defendant's extradition from Curaçao, the defendant moved to dismiss the Indictment for lack of subject matter jurisdiction and improper venue. The Court denied the defendant's motion by Memorandum and Order dated May 5, 2007. United States v. Valencia Rugeles, No. 04 Cr. 363 (JGK), 2007 WL 1540981 (S.D.N.Y. May 24, 2007).
On July 2, 2007, the defendant pleaded guilty to Count Two of the Indictment pursuant to a plea agreement with the Government. During his plea, the Court extensively allocuted the defendant on his guilty plea and the plea agreement. The Court examined the defendant under oath to assure that he was competent, aware of his rights, understood the nature and consequences of entering a guilty plea and his plea agreement, was pleading guilty voluntarily and of his own free will, and that there was an independent basis in fact for his plea. (Tr. at 3-23.) The Court specifically allocuted the defendant with respect to his right to be prosecuted in a proper venue:
THE COURT: You have a right to be prosecuted on a charge in the district where the offense occurred. The government has indicated in the course of the case that it would prove that there was a least an overt act in furtherance of the conspiracy that occurred in Manhattan or the Bronx and the Southern District of New York. Are you prepared to admit for purposes of your guilty plea that the government could prove that there was an act in furtherance of the conspiracy that occurred here in the Southern District of New York?
THE DEFENDANT: Yes, sir.
THE COURT: Do you accept that prosecution can be brought here in the Southern District of New York and waive any objection you have with respect to having the charge brought against you here in the Southern District of New York?
THE DEFENDANT: Yes, sir.
(Tr. at 19.) During the plea allocution, the defendant's counsel asked for the Government to make an additional proffer with respect to jurisdiction, to which the Government responded that it would prove at trial that the "cocaine in this case was in fact distributed in the Southern District of New York by a member of the conspiracy. . . ." (Tr. at 21.) The Court also pursued the issue with the Government:
[THE COURT:] . . . And, Mr. Barofsky, the conspiracy was a conspiracy to distribute or possess with intent to distribute five kilograms or more of cocaine in violation of 21, U.S.C., Section 846. The intent was to have, if I understand it correctly, the drugs delivered in the United States, including Puerto Rico?
MR. BAROFSKY: Yes, your Honor, Puerto Rico, South Florida and the Southern District of New York in the Bronx.
(Tr. at 22.)
I.
Rule 11(d) provides that a "defendant may withdraw a plea of guilty or nolo contendre . . . after the court accepts the plea, but before it imposes sentence if . . . the defendant can show a fair and just reason for requesting the withdrawal." Fed.R. Cr. P. 11(d)(2)(B). The Court of Appeals for the Second Circuit has stated that in determining whether the defendant has shown a fair and just reason to justify withdrawal, a district court should consider, among other things:
(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 . . .; and (3) whether the government would be prejudiced by a withdrawal of the plea.United States v. Schmidt, 373 F.3d 100, 102-03 (2d Cir. 2004) (citing United States v. Cuoto, 311 F.3d 179, 185 (2d Cir. 2002)). "Courts may also look to whether the defendant `has raise[d] a significant question about the voluntariness of the original plea.'" Id. at 103 (quoting United States v. Torres, 129 F.3d 710, 715 (2d Cir. 1997)); see also United States v. Maher, 108 F.3d 1513, 1529 (2d Cir. 1997).
II.
The defendant argues that he is innocent because the transactions in which he was involved occurred in Curaçao, and that the defendant did not understand or realize that the drugs he transported would eventually be sent to the United States. However, during his plea allocution, the defendant admitted that the Government could prove that an act in furtherance of the conspiracy occurred in the Southern District of New York. (Tr. at 19.) The defendant proceeded to accept that prosecution could be brought in the Southern District of New York and waived any objection that venue was not appropriate in this District. (Id.) The defendant's "statements . . . under oath at his plea allocution carry a `strong presumption of verity,'. . . ." Maher, 108 F.3d at 1530 (quoting Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). The defendant also did not dispute that the Government's evidence would show that the intent of the conspiracy was to have drugs delivered to the United States and that cocaine was in fact distributed in the Southern District of New York.
In any event, the defendant's argument that he is innocent because he did not know that the drugs he transported would eventually be sent to the United States is without merit. The defendant admitted at his plea allocution, and has not disputed in the instant motion, that an act in furtherance of the conspiracy occurred in this District. (Tr. at 19.) The Court of Appeals for the Second Circuit has expressly acknowledged that the statute under which the conspiracy charged in Count Two is alleged, 21 U.S.C. § 846, can be applied extraterritorially, and venue properly lies in any district in which an overt act in furtherance of the conspiracy was committed. See generally Valencia Rugeles, 2007 WL 1540981, at *1-*2 (S.D.N.Y. May 24, 2007); see also United States v. Cohen, 427 F.3d 164, 168-69 (2d Cir. 2005); United States v. Naranjo, 14 F.3d 145, 147 (2d Cir. 1994); United States v. Manuel, 371 F. Supp. 2d 404, 409-10 (S.D.N.Y. 2005). As Judge Lynch explained:
Where a crime is within the jurisdiction of the United States, it is not necessary that the offender be aware of the facts that establish jurisdiction. . . . If the defendant knowingly commits the acts that cause the harm that the legislature intended to prevent (here, the distribution of narcotics), and jurisdiction exists (because, objectively speaking, the crime satisfies the condition that creates jurisdiction), the statute has been violated.Manuel, 371 F. Supp. 2d at 409-10.
The other relevant factors also weigh against the defendant. The defendant waited more than nine months between entering his plea of guilty and filing the motion to withdraw the plea. See Torres, 129 F.3d at 716 (7-month period characterized as "extreme delay"). The Government argues it has been prejudiced by this delay, because there is some indication that certain witnesses could be unavailable to testify if the defendant were permitted to withdraw his guilty plea. The Government acquiesced in the sentencing of two cooperating witnesses, and the Government understands that one of those witnesses has been removed from the United States and the removal of the other witness is imminent. In any event, "the government need not demonstrate prejudice where the defendant fails to show sufficient grounds to justify withdrawal of the plea." Id. at 715 (citing Maher, 108 F.3d at 1529).
Furthermore, while the affirmation of defense counsel in support of the motion states that the defendant "has always felt uncomfortable" and "always had hesitations about entering a plea of guilty," the defendant has not made any specific allegations that the defendant did not in fact enter his guilty plea knowingly and voluntarily. (Marino Affirmation ¶ 5.) Any such statements plainly would contradict the defendant's sworn statements at his plea allocution that he was entering his guilty plea because he was in fact guilty, and was doing so voluntarily and of his own free will. (Tr. at 22.)
Because the defendant's allegations are conclusory, contradict the defendant's sworn statements at his plea allocution, and are without merit, the defendant's motion to withdraw his guilty plea is denied. See United States v. Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992) ("[T]he defendant must present some significant questions concerning the voluntariness or general validity of the plea to justify an evidentiary hearing. No hearing need be granted when the allegations on a motion to withdraw a guilty plea before sentencing merely contradict the record, are inherently incredible, or are simply conclusory.") (internal citation omitted).