James P. O'Hara U.S. Magistrate Judge
Carlos Gilchrist was arrested and charged with drug-related crimes. On the day his trial was to begin, he decided to enter a plea of guilty, which was accepted by the undersigned U.S. Magistrate Judge, James P. O'Hara (ECF doc. 929). Mr. Gilchrist has now filed a motion to withdraw his guilty plea pursuant to Fed. R. Crim. P. 11(d)(2), claiming the government committed a Brady violation by failing to disclose information prior to a suppression hearing and, ultimately, the entry of his plea (ECF doc. 1166). He has also filed a motion to disqualify Assistant U.S. Attorney Terra Morehead from any proceedings concerning his motion to withdraw his plea, stating that he would like to subpoena Ms. Morehead to testify at any hearing held on the motion to withdraw (ECF doc. 1250). Finally, Mr. Gilchrist has moved to continue a hearing that was previously scheduled for January 29, 2014, to address any questions the court had regarding his motion to withdraw his plea (ECF doc. 1249).
The court has reviewed the briefs and determines that a hearing on this matter is not necessary. As is explained below, the resolution of the motion to withdraw the entry of the guilty plea turns on legal, rather than factual, issues. Thus, Mr. Gilchrist’s motions to continue the hearing and to disqualify Ms. Morehead are denied as moot. Ultimately, the court also denies the motion to withdraw the entry of the plea because Mr. Gilchrist has not demonstrated a fair and just reason for the withdrawal.
In a second superseding indictment issued on October 3, 2012, a grand jury charged Mr. Gilchrist and some fifty other defendants with conspiracy to manufacture, to possess with intent to distribute, and to distribute 280 grams or more of cocaine base ("crack cocaine"), and to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(ii) & (iii), and 21 U.S.C. § 846. It further charged Mr. Gilchrist with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C), and 18 U.S.C. § 2, based on Mr. Gilchrist's actions on August 24, 2011. The court designated the case as "complex" under 18 U.S.C. § 3161(h)(7),  and discovery proceeded pursuant to a general order of discovery.
On June 10, 2013, Mr. Gilchrist filed a motion to suppress evidence seized from his person and residence, as well as all statements he made to law enforcement, following his detention and ultimate arrest on August 24, 2011. Mr. Gilchrist argued his detention was illegal because it was not based on reasonable suspicion, and the subsequent pat down of his person was illegal because he presented no articulable risk of harm to law enforcement or others. At a suppression hearing held before the presiding U.S. District Judge, Kathryn H. Vratil, the government only presented one witness, Special Agent Nick Wills, who led the investigation into the alleged conspiracy. Agent Wills testified that he was present when Special Agent Tim McCue detained and frisked Mr. Gilchrist, and described what he allegedly observed. Mr. Gilchrist testified on his own behalf and disputed Agent Wills's account of the detention and pat down by Agent McCue. On August 1, 2013, Judge Vratil denied Mr. Gilchrist's motion to suppress evidence.
The trial of Mr. Gilchrist and eight of his co-defendants was scheduled to begin on August 5, 2013. Before the trial began that day, however, Mr. Gilchrist notified the court of his desire to plead guilty. Mr. Gilchrist and the government entered into a written plea agreement, whereby Mr. Gilchrist agreed to plead guilty to the conspiracy charge and the government agreed to dismiss the drug possession charge stemming from Mr. Gilchrist's alleged actions on August 24, 2011. The undersigned accepted Mr. Gilchrist's guilty plea that afternoon during a hearing that included a detailed Fed. R. Crim. P. 11 colloquy.
On December 16, 2013, Mr. Gilchrist filed the present motion to withdraw his plea of guilty. He asserts that at some unstated time "[a]fter the plea hearing, Mr. Gilchrist's counsel learned from a fellow defense attorney that there was evidence of misconduct by Agents Jones and McCue that should have been turned over to the defense by the government under Giglio and the General Discovery Order." Based on the government's alleged Giglio/Brady violation, Mr. Gilchrist would like the opportunity to renew his motion to suppress. If the renewed motion to suppress is denied and the case proceeds to trial, Mr. Gilchrist would like the opportunity to call Agent McCue as a witness to evaluate his written report about statements Mr. Gilchrist allegedly made after his arrest.
II. Legal Standards
A defendant may withdraw a plea of guilty before sentencing if he shows "a fair and just reason for requesting the withdrawal." The Tenth Circuit has set out seven factors for courts to consider in evaluating whether a defendant has met his burden of showing a fair and just reason for withdrawal:
(1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether the defendant delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources.
The court should "view a motion to withdraw with favor, granting the defendant 'a great deal of latitude.'" Ultimately, however, it is within the sound discretion of the trial court to determine what circumstances justify granting such a motion.
Mr. Gilchrist relies primarily on the sixth factor in seeking to set aside his guilty plea, arguing it was not knowing and voluntary because the government failed to disclose possibly impeaching or exculpatory evidence in violation of Brady and Giglio. The court will therefore address ...