United States v. Norman

          MEMORANDUM OPINION AND ORDER ON REMAND FROM THE ELEVENTH CIRCUIT

          W. Keith Watkins UNITED STATES DISTRICT JUDGE

         On 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testified, among other things, that his plea was not entered knowingly and voluntarily, and therefore that it may be withdrawn.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.

         I. FACTUAL BACKGROUND

         The relevant factual background-supplemented by the evidentiary hearing held on July 23, 2019-is as follows.

         On 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.)

         But as 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.)

         According 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.

         Twenty-five 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 timely appealed.

         Emphasizing 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.”).

         On 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.

         The 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 15:6.)

         But 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.^[1] 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 hearing?

A (Fowler): Yes. Because if he got found guilty, that's a realistic option.

(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.)

         Beyond 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 128:5-16.)

         In light of the facts described briefly above, and after a lengthy process, Mr. Norman persists in his request to withdraw his plea.

         II. LEGAL STANDARD

         Federal 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 ...