United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER ON REMAND FROM THE
Keith Watkins UNITED STATES DISTRICT JUDGE
appeal, the Eleventh Circuit vacated the orders denying
Defendant Bobby Rydell Norman's motions to withdraw his
guilty plea and remanded this action for an evidentiary
hearing. (Doc. # 590.) At the hearing held before the
undersigned on July 23, 2019 (see Doc. # 622), Mr.
Norman testified, among other things, that his plea was not
entered knowingly and voluntarily, and therefore that it may
be withdrawn. For the reasons discussed below, Mr.
Norman's motions (Docs. # 311, 394) will be granted.
relevant factual background-supplemented by the evidentiary
hearing held on July 23, 2019-is as follows.
October 21, 2015, Mr. Norman filed a notice of his intent to
plead guilty to three counts of the indictment charging him
with conspiring to distribute controlled substances,
distributing controlled substances, and maintaining a drug-
related premises. (Docs. # 267, 272, 274.) At the resulting
change-of-plea hearing, which occurred on October 30, 2015,
the Magistrate Judge proceeded with a partial plea colloquy.
(Doc. # 320.) Mr. Norman acknowledged, among other things,
that he had read and discussed the plea agreement with his
attorney (id., at 5); that no threats or coercion
caused him to plead guilty (id., at 6); that he
pleaded guilty “of his own free will”
(id., at 9); and that he and his attorney had
discussed the case, his charges, his right to proceed to
trial, and the relevant Sentencing Guidelines (id.,
at 10-11). (Here, the Magistrate Judge's inquiries
closely track the requirements of Rule 11.)
the prosecutor began to read the factual basis for the guilty
plea, “a problem arose.” United States v.
Norman, 736 Fed.Appx. 223, 224 (11th Cir. 2018). Mr.
Norman's responses raised concerns about whether he
indeed understood the factual basis for his plea and the
specific charges against him. (Doc. # 320, at 13-15.) The
Magistrate Judge called for a pause in the proceedings.
(Id. at 15.)
to the hearing transcript, after this brief break, the
Magistrate Judge moved forward and accepted the factual basis
for Mr. Norman's plea. (See id., at 17
(“THE COURT: . . . You agree, sir, that that's what
happened? THE DEFENDANT: Yes, sir.”).) Mr. Norman's
reticence was gone. The plea was entered. And, likely because
he was unaware of the content of the conversation during the
break, “the magistrate judge did not make any
additional Rule 11 inquiries after the break.”
Norman, 736 Fed.Appx. at 225.
days later, Mr. Norman filed a pro se motion to
withdraw his guilty plea. (Doc. # 311.) He filed an
additional motion, reiterating his interest in withdrawing
his plea, in July 2016. (Doc. # 394.) In essence, Mr. Norman
argued that “he accepted the plea agreement under
duress imposed by his attorney, ” Norman, 736
Fed.Appx. at 225, and amid threats from the Assistant United
States Attorney (“AUSA”) during the
change-of-plea hearing. (See, e.g., Doc. # 415
(noting that he was “left to fend for myself against
[the] AUSA” during the break in the change-of-plea
hearing); Doc. # 311; see also Doc. # 394 (arguing
that, during the change-of-plea hearing, Mr. Norman was
“le[d] to believe that if I didn't [accept] the
plea offered I would receive a life sentence”).) The
Magistrate Judge denied both motions without a hearing.
(Docs. # 337, 406.) Mr. Norman asked for reconsideration
(Docs. # 415, 436), but that motion also was denied (Doc. #
438). Thereafter, on September 23, 2016, Mr. Norman was
sentenced to 151 months' imprisonment. (Doc. # 480.) He
the need for a more thorough factual record regarding the
break in the middle of Mr. Norman's change-of-plea
hearing, the Eleventh Circuit vacated the orders denying Mr.
Norman's motions to withdraw his guilty pleas and ordered
an evidentiary hearing to assess the voluntariness of his
plea. Norman, 736 Fed.Appx. at 228 n.6 (“We
are particularly concerned with what happened during the
break in the plea-change hearing, because it took place after
the Rule 11 inquiries. We therefore direct that the court
conducting the evidentiary hearing on remand develop a record
with respect to this break.”).
review, the unrecorded conversations during the pause-the
center of Mr. Norman's motions to withdraw and the cause
of his sudden turnaround-bothered the Eleventh Circuit. Its
opinion suggested that the discussion between Mr. Norman, Mr.
Fowler, and the AUSA may have rendered the plea involuntary
(and, thus, invalid). See Id. at 227. “[M]ost
importantly, Norman's allegations that his attorney
failed him during this break, after which no additional Rule
11 inquiries were made, potentially undermine the
voluntariness of the entire second half of the hearing. This
second half is when Norman acquiesced and entered his guilty
plea.” Id. It was thus one focus of the
subsequent evidentiary hearing before the undersigned.
pause in the proceedings was apparently motivated by Mr.
Norman's expressed uncertainty regarding the factual
underpinnings and elements of his plea. After numerous
answers evincing Mr. Norman's disagreement (“I
don't agree with that”; “I don't know who
they were distributing it to”), the Magistrate Judge
asked if Mr. Norman, the AUSA, and Mr. Fowler would
“like a few minutes to talk.” (Doc. # 320, at
according to testimony from Mr. Norman at the July 23, 2019
hearing, during the pause, the AUSA focused primarily on the
possible consequences of failing to plead
guilty. In particular, the AUSA directly
threatened a lengthy sentence and the forfeiture of Mr.
Norman's home: “Don't make me take your house
and give you a lot of time.” (Doc. # 622, at 60:20
(Fowler).) Her ultimatum was not lost on Mr. Norman.
(See, e.g., id., at 127:14-18 (Norman)
(“She just told me if I ain't plead guilty, she
wasn't playing with me. She was going to do everything in
her power to give me a life sentence.”); id.,
at 127:6-9 (Norman) (“She say she was going to take the
house.”).) Mr. Fowler later agreed that, as he
understood it, these fears motivated Mr. Norman's plea:
Q: And would you say that because of that fear [of losing his
home], that caused him to want to go forward with this
A (Fowler): Yes. Because if he got found guilty, that's a
(Id., at 64:9-12.) In subsequent testimony, Mr.
Norman himself confirmed that fears of punishment, including
a life sentence, motivated his decision to plead guilty.
(Id., at 130:17-21.)
the alleged threats, Mr. Norman has also expressed that, even
after the pause, his understanding of the elements of his
alleged crime remained murky. Despite repeated efforts from
his attorney, Mr. Norman continued to insist that he did not
understand the “conspiracy” theory underpinning
his plea. (See, e.g., id., at 116:11.) He
claimed to not “understand what was going on”
(id., at 116:6), including immediately following the
break in his change-of-plea hearing. (Id., at
light of the facts described briefly above, and after a
lengthy process, Mr. Norman persists in his request to
withdraw his plea.
Rule of Criminal Procedure 11(d) states, in relevant part,
that “[a] defendant may withdraw a plea of guilty . . .
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.” Here, the court
accepted the plea, but Mr. Norman argues that he had ...