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Anthony Clark Schwartz Email: tonyschwartz.law@gmail.com The Schwartz Law Firm 520 SW 6th Avenue, Suite 600 Portland, OR 97204 Tel: (503) 505 4674 Attorney for Defendant
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION
UNITED STATES OF AMERICA,
No. 3:16-cr-00051-BR-03
Plaintiff, DEFENDANT’S MOTION WITHDRAW GUILTY PLEA
v.
TO
JOSEPH O’SHAUGHNESSY, (Hearing and Oral Argument requested) Defendant.
Defendant Joseph O’Shaughnessy, through counsel Tony Schwartz, moves the Court pursuant to Federal Rule of Criminal Procedure 11(d)(2)(B) to withdraw his plea of guilty and proceed to trial by jury.
With this motion, Mr. O’Shaughnessy tenders fair and just reasons for
the Court to exercise discretion to allow the withdrawal of plea.
Specifically, Mr.
O’Shaughnessy submits that intervening circumstances and newly discovered evidence justify granting this motion. Certificate of Conferral:
Undersigned counsel has not yet conferred with opposing
counsel, but has a request to confer via a December 11, 2016 e-mail (to all AUSAs).
It is
expected that the government will oppose this motion given its position on Ryan Payne’s Motion Page 1 DEFENDANT’S MOTION TO WITHDRAW GUILTY PLEA
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to Withdraw Guilty Plea.
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Mr. O’Shaughnessy requested that this Motion be filed before
December 12, 2016. Upon receipt of the government’s position, a short certificate will be filed immediately. 1. Procedural Posture The procedure posture of this case is long, complex, and well-known by this Court.
As
relevant to this Motion, on January 26, 2016, Mr. O’Shaughnessy was charged by complaint with a single count of Conspiring to Impede Federal Officials in this District of Oregon case. (Complaint, CR-14.) He was released from custody to the supervision of United States Pretrial Services on February 2, 2016. (CR-55).
He was subsequently indicted for the same charge.
(Indictment, CR-58.) While on supervised release in the District of Oregon, Mr. O’Shaughnessy was charged with multiple counts in the District of Nevada relating to the so-called “Bunkerville” incident in 2014. District of Nevada case no. 2:16-cr-00046-GMN-PAL (Complaint, CR-14; Indictment, CR-5).
Mr. O’Shaughnessy was on release on the Oregon case at the time of the issuance of the
Nevada charge and his arrest on those charges.
He made his initial appearance in Nevada and
was detained. With the Court’s assistance, the U.S. Marshals transported Mr. O’Shaughnessy back to the District of Oregon to allow for further proceedings in the Oregon case. On August 1, 2016, Mr. O’Shaughnessy pled guilty to Count 1 – the only count with which he was charged – in the Oregon case. (CR-962). plea are set forth in more detail below.
The record relating to the change of
Soon after his Oregon change of plea, Mr.
O’Shaughnessy was transported back to Nevada for an expected change of plea in the Nevada case. Sentencing in this case is scheduled for April 27, 2017.
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(CR-1466).
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2. Relevant Law Under Federal Rule of Criminal Procedure 11(d)(2)(B), a defendant may withdraw a plea of guilty prior to sentencing if he “can show a fair and just reason for requesting the withdrawal.” The case law provides that while defendants cannot move to withdraw “simply on a lark,” the “‘fair and just’ standard is generous and must be applied liberally.”
United States v.
McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008). The timing of the motion to withdraw a guilty plea is important where before sentencing, as here, a defendant “need not prove that his plea is invalid” to meet the applicable standard. United States v. Ortega-Ascanio, 376 F.3d 879, 884 (9th Cir. 2004). Rather, a court may allow withdrawal of a plea on grounds including “newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.” McTiernan at 1167.
If a defendant demonstrates one of these grounds,
withdrawal of the plea should be “freely allowed.” United States v. Showalter, 569 F.3d 1150, 1154 (9th Cir. 2009). 3. The Court should allow withdrawal of guilty plea based on the following fair and just reasons In this case, Mr. O’Shaughnessy now moves to withdraw his guilty plea several months before sentencing (set for late April 2017). While a jury rendered a verdict on the first trial group, there are no guarantees of a similar outcome in a trial with different defendants and a different presentation of evidence. Mr. O’Shaughnessy knows that the government may file different charges and may change its litigation strategy, but moves forward with this Motion anyway.
He knows that if this Motion is granted he will litigate this case without the protection
of a settlement agreement.
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That said, several bases exist that support Mr. O’Shaughnessy’s request to withdraw his guilty plea. A. Mr. O’Shaughnessy’s Guilty Plea In Oregon Was A Requirement Of Negotiations In The Pending District Of Nevada Case; The Nevada Plea Negotiations Have Now Fallen Apart In July of this year, the District of Nevada made Mr. O’Shaughnessy a plea offer that required him to plead guilty to two counts in the District of Nevada case, with an agreement that the government would recommend a sentence of six years’ incarceration and the defense was permitted to seek imposition of a lesser sentence.
The Nevada plea offer required Mr.
O’Shaughnessy to plead guilty to the one count with which he was charged in the Oregon case. (Id. at page 7, paragraph D.) The requirement in the Nevada deal was discussed during the change of plea in the Oregon case on August 1: Defense Counsel: “… for clarification of the Nevada case, your Honor, while the Oregon plea agreement is just to resolve the Oregon case, Mr. O’Shaughnessy has entered into an agreement to resolve the Nevada case as well. And the Nevada case agreement requires him to plead guilty in this case.” Transcript of O’Shaughnessy change of plea, CR-1271 (hereafter Transcript), at 6.
The Court
also raised the dependency of the Oregon plea as part of the Nevada negotiation: The Court: “Now, this business in Nevada is relevant here….because part of the agreement you’ve made in Nevada, evidently, is that you plead guilty here.” Transcript at 23. After the change of plea in Oregon, Mr. O’Shaughnessy was transferred to the District of Nevada.
Ultimately, plea negotiations completely broke down.
His case is currently
scheduled to go to trial with the other defendants in February of 2017 (however, the Nevada court held a hearing on December 9, 2016 regarding, among topics, trial groupings and trial
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scheduling with an order expected shortly that will clarify the date for Mr. O’Shaughnessy’s trial). The fact that the Nevada plea agreement required Mr. O’Shaughnessy to plead guilty in Oregon and that the Nevada deal fell apart after Mr. O’Shaughnessy arrived in Nevada provides an intervening circumstance not present at the time of Mr. O’Shaughnessy’s change of plea in Oregon to justify this Court granting a Motion to Withdraw Guilty Plea. Moreover, while the Oregon plea was essentially considered ‘independent’ of the Nevada plea, the Nevada plea was ‘dependent’ on the Oregon plea.
As his former lawyer noted during
the plea hearing, for Mr. O’Shaughnessy to receive the benefit of the proposed bargain in Nevada he would have to plead guilty in Oregon, but the Oregon case required no plea in Nevada. Transcript at 6. The logic here is circular: the only plea available in Nevada required a plea in Oregon, so then any plea in Oregon was based on the requirement that he plead in Nevada, and while the Oregon plea was ‘independent’ of any other case, the Nevada resolution depended on a plea in Oregon, and on and on.
In other words, the plea in Oregon was never ‘independent’ as it
always required that Mr. O’Shaughnessy plead in Oregon to get his proposed settlement in Nevada. The Oregon plea was conditioned on the Nevada requirement. The Nevada resolution has broken apart.
Mr. O’Shaughnessy plans to proceed to trial.
The Oregon-Nevada “global resolution” is no longer a resolution and no longer global, this Court should allow Mr. O’Shaughnessy to withdraw his guilty plea based on an intervening circumstance. And, while obvious, a point bears discussion: the plaintiff in the Nevada matter and this matter is the same. The United States is seeking to benefit from a plea in Oregon that it Page 5 DEFENDANT’S MOTION TO WITHDRAW GUILTY PLEA
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obtained through a requirement that Mr. O’Shaughnessy plead guilty in Oregon in order to obtain a settlement agreement in Nevada.
Yet there is no settlement in Nevada, and now that
same plaintiff is moving forward on a trial against Mr. O’Shaughnessy, while at the same time moving forward with an expectation that Mr. O’Shaughnessy abide by his plea agreement in Oregon, which, as just noted, always was dependent on a plea in Nevada. As the idiom goes: what is good for the goose is good for the gander.
If the Nevada
prosecutors can press forward with trial, then Mr. O’Shaughnessy should be allowed to defend his Oregon case in trial. B. Newly Discovered Evidence disclosed (or later discovered by defense teams) after entry of guilty plea warrants withdrawal of guilty plea On May 18, 2016, the government reviewed the status of discovery in the case and certified in a Joint Status Report to the Court that discovery was substantially complete.
(Joint
Status Report of May 18, 2016, CR-583 at 2 (“The government submits that it has now substantially complied with its discovery obligations”); Court Order recognizing government representation of completion, June 1, 2016, CR-627). After that date, on which the government had produced Volumes 1-35, the government continued to produce discovery. Specifically, the government produced fourteen additional volumes of discovery to former counsel for Mr. O’Shaughnessy – including approximately 24,070 pages in reference to the Oregon case and an additional two volumes of discovery in reference to the Nevada case.
While the government
had referred to some additional discovery “trickling in” after the substantially complete date, this quantity of new materials after the “substantially complete” date included vast amounts of data, reports, and other relevant information.
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More importantly, of these new materials produced after the substantially complete date, and after Mr. O’Shaughnessy’s change of plea on August 1, Volumes 44-49, consisting of 3,008 pages of discovery related to the Nevada case (Volume 44) and 512 pages of evidence related to the Oregon case (Volumes 45-49) were produced to the defense.
These volumes contain a
number of important documents. For example, Volume 45 included all proffer agreements and documents related to cooperating witnesses, many of whom provided specific information about Mr. O’Shaughnessy. Specific information about favorable treatment – whether in the form of plea consideration or financial incentives – constitutes exculpatory information that was not available at the time of Mr. O’Shaughnessy’s decision to enter a guilty plea. Even more troubling is the exculpatory information related to government informant “CHS-02”, also known as John Killman, also known as Fabio Minoggio.
This informant
provided two reports specifically discussing Mr. O’Shaughnessy, including a damaging claim that the medical tent set up at The Narrows RV Park by Mr. O’Shaughnessy was, in fact, a “surprise attack tent,” an allegation highly contested by the defense.
The government failed,
however, to disclose prior to trial that this informant was compensated for his assistance. Failure to disclose payment to an informant constitutes exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963).
It was only during the trial of the first group of defendants that
this informant disclosed that he was provided with “expenses” for his trip to Oregon and given a bullet proof vest by the federal government for his assistance.1 This is important evidence
1
In addition, during the Group One trial, evidence emerged that Mr. Minoggio – while acting as government informant “John Killman” – was the individual who set up and ran the so-called “shooting range” at the refuge dock. To omit this fact from pretrial disclosures, especially when the alleged co-conspirators shooting at the dock featured so heavily in the government’s case, is a Page 7 DEFENDANT’S MOTION TO WITHDRAW GUILTY PLEA
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disclosed after Mr. O’Shaughnessy entered his guilty plea and provides an independent basis for the Court to conclude withdrawal of plea is fair and just. Newly discovered information need not be exculpatory to support a motion to withdraw guilty plea.
United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005) (noting that a
defendant need not “show that the new evidence exonerates him or that there is a reasonable probability he would not have been convicted had the case gone to trial”).
Rather, the question
is whether the new evidence “could have at least plausibly motivated a reasonable person in [the defendant’s] position not to have pled guilty had he known about the evidence prior to pleading.” Id. at 1111-12.
Information about proffer agreements, cooperation agreements, and paid
government informants could have “at least plausibly” motivated Mr. O’Shaughnessy not to enter a guilty plea on August 1, 2016 had he been privy to such evidence beforehand. C.
Mr. O’Shaughnessy was defending two complex cases in two districts prosecuted by the same plaintiff but did not have the ability to fully review discovery in both cases before the plaintiff issued a firm deadline to accept or reject the Nevada plea
On January 27, 2016, Mr. O’Shaughnessy made a first appearance in this District on the sole count in his indictment.
On February 2, 2016, Judge Mossman ordered release.
Mr.
O’Shaughnessy thereafter traveled home to Arizona. On March 3, 2016, Mr. O’Shaughnessy was arrested while checking in with his pre-trial services officer in Arizona on new federal charges in Nevada.
On March 16, 2016, he made a
first appearance in the District of Nevada on that indictment.
tremendously troubling fact. This is especially true when the government represented via letter to former counsel on May 31, 2016, that “The government will produce information from confidential sources where the sources were percipient witnesses to criminal activity.” No doubt, Mr. Minnogio was a “percipient witness” to what the government believed was criminal activity, however, the government failed to disclose his involvement to the defense. Page 8 DEFENDANT’S MOTION TO WITHDRAW GUILTY PLEA
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On April 13, 2016, his former lawyer moved this Court for an order revoking release so he could be transported from the District of Nevada in order to begin trial preparations in Oregon.
Once transported, Mr. O’Shaughnessy remained in Oregon while defending his case in
this District and in Nevada. On July 14, 2016, Mr. O’Shaughnessy’s former lawyer received a phone call from an Oregon AUSA who outlined a potential “global resolution” for both cases, but which incorporated a firm deadline of July 28, 2016.
Over the next two weeks, Mr. O’Shaughnessy
and his former lawyer in Oregon and his current lawyer in Nevada worked as quickly and thoroughly as they could in order to complete negotiations, fashion a specific “global resolution,” and advise their joint client.
At that time, Mr. O’Shaughnessy’s Nevada lawyer
had received maybe, at best, 40% of the discovery in Nevada, while Mr. O’Shaughnessy had actually reviewed a bare fraction of that amount.
He had spent 6 weeks in Nevada, after his
first appearance, before making his way back to Oregon.
Once back in Oregon, he had,
needless to say, limited contact with his Nevada lawyer, while he and his former lawyer here worked toward a September trial date in this District. As Ryan Payne noted in his Motion to Withdraw Guilty Plea, this Court previously acknowledged the “most unusual situation the defendants are facing” in their defense of a case in Oregon and a case in Nevada. Mr. O’Shaughnessy is unfortunately a legal casualty of that unusual situation since he was forced to plead in Oregon because of the Nevada requirement that he plead in Oregon, but did so without the benefit of first reviewing and analyzing his discovery in the Nevada matter. On August 11, 2016, Mr. O’Shaughnessy was transported back to Nevada. Since that time, he has had the opportunity review his discovery in detail. Page 9 DEFENDANT’S MOTION TO WITHDRAW GUILTY PLEA
This discovery review has
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enabled him to more thoroughly understand the government’s case and the potential evidence against him.
He asserts that the case in Nevada against him is weak, and had he known what he
knows now before entering a guilty plea in this case he would have rejected the proposed Nevada resolution that required an Oregon plea. That rejection would have allowed him to carry on to trial in September with his former lawyer in this District in this case. This failure of fundamental due process – the right of the criminal defendant to be able to review discovery before plea – compels withdrawal of Mr. O’Shaughnessy’s guilty plea.
At the
time he entered his plea in Oregon, on August 1, 2016, he had reviewed a minority fraction of the Nevada discovery; this is “reason” alone justifying withdrawal.
McTiernan at 1167.
Again, as noted above, the plaintiff in Nevada and Oregon is the same. The United States was driving the prosecutions in both jurisdictions. alone determined the timing of the indictments. negotiations.
It alone determined the charges.
It
It alone determined the scheduling of the plea
Had the plaintiff proceeded in a way that allowed Mr. O’Shaughnessey to review
each case completely and defend each case thoroughly without the stress and confusion of simultaneous prosecutions in different states, then we might not be here.
But we are.
It
therefore seems a bit disingenuous for the plaintiff to complain about this Motion to Withdraw Guilty Plea knowing that it caused the prosecutions to overlap, that it objected to Mr. O’Shaughnessy’s release in Nevada, and that it mandated a response to a “global resolution” on two felony charges in two Districts while knowing that Mr. O’Shaughnessy had precious little time in Nevada to work on his Nevada matter. D.
Mr. O’Shaughnessy asserts that he received ineffective of counsel
Mr. O’Shaughnessy states that he received ineffective counsel for certain reasons.
In
particular, he asserts that he received information related to the case and discovery from his Page 10 DEFENDANT’S MOTION TO WITHDRAW GUILTY PLEA
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lawyer before entry of plea that, he says, later turned out to be untrue.
He states that he
detrimentally relied on such information, and such reliance caused him to enter a guilty plea. He also asserts that he felt forced and coerced into entering a plea of guilty and that his lawyer contributed to the coercion. Because these allegations and others that Mr. O’Shaughnessy has or may have involve him and his former lawyer, and neither current counsel, nor the AUSAs, nor this Court can objectively address such allegations, counsel suggests that the parties and the Court take them up a date and time to be set for a hearing on this motion (assuming the Court sets a hearing). At that date and time, Mr. O’Shaughnessy is free to make his claims of ineffective assistance of counsel on the record, and the Court can thereafter develop the record, if required, through presentation of testimony and other evidence.
For the foregoing reasons, Mr. O’Shaughnessy moves this court to withdraw his guilty plea and allow him to proceed to trial by jury.
Mr. O’Shaughnessy does not request transport to any hearing on this motion, but would like to appear by video-conference, if possible.
DATED: this 11th day of December 2016. s/ Tony Schwartz Tony Schwartz
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