United States District Court, D. Kansas
MEMORANDUM AND ORDER
JULIE A. ROBINSON, District Judge.
Defendant Virok Webb filed a Motion to Withdraw Plea of Guilty (Doc. 684), after he entered a plea of guilty, but before sentencing. For the reasons set forth in detail below, the Court denies the motion.
Webb was charged in a First Superseding Indictment, with conspiracy to distribute crack cocaine (Count 1), conspiracy to distribute powder cocaine (Count 2), and committing or aiding and abetting the commission of the murder of Crystal Fisher to prevent her from communicating to a law enforcement officer of the United States about the commission of those drug crimes (Count 3). Webb entered into a binding plea agreement with the government, pursuant to Fed. R. Crim. P. 11(c)(1)(C), on March 7, 2014, pleading guilty to Count 1, the crack cocaine conspiracy. This Court accepted the plea agreement and thus agreed to be bound by its terms. Sentencing was continued because on April 11, 2014, the Court granted Webb's motion to withdraw his counsel, Jacquelyn Rokusek, and on April 21, 2014, appointed new counsel, Lance Sandage. On February 23, 2015, Webb filed the instant motion to withdraw his guilty plea, claiming that in late 2014, his defense counsel learned from defense counsel for codefendant Marcus Roberson, that the government had failed to disclose exculpatory evidence. Though Webb's plea agreement included waivers of his right to withdraw the plea, and waivers of most of his appellate rights, Webb maintains that he may properly withdraw his plea under the circumstances he alleges, the government's failure to disclose exculpatory evidence before he entered his plea of guilty.
Rule 11(d)(2)(B) allows a defendant to 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." Motions to withdraw guilty pleas before sentencing are to be freely allowed, viewed with favor, treated with liberality, and given a great deal of latitude. But the burden is on the defendant to show a fair and just reason for withdrawal. Webb offers this reason-that the government failed to disclose exculpatory evidence, in violation of Brady v. Maryland,  and Giglio v. United States,  and that he would not have pled guilty had they disclosed this evidence to him.
A. No Brady/Giglio violation and thus no fair and just reason for withdrawal of guilty plea
The Court begins with the question of whether the government committed a Brady/Giglio violation. Webb offers that through codefendant Roberson's counsel, he discovered evidence that government witness Antonio Cooper was involved in a homicide investigation in Manhattan, Kansas in 2001. Highly summarized, Anthony Mitchell and Jeremy Ware traveled to Manhattan to conduct a drug deal with Wesley Alexander, which soon went awry. An altercation ensued with Alexander's friends, and after someone struck Mitchell in the back with a board, Mitchell began firing a gun indiscriminately. In this manner, Mitchell shot and killed Shaun Leach, an unfortunate passenger in a nearby vehicle whose occupants were involved in the altercation. During the homicide investigation, police interviewed Antonio Cooper, who admittedly was present and an eyewitness to the shooting. Several other witnesses told police that Cooper supplied the gun to Mitchell during the altercation. But Mitchell identified Jeremy Ware as the person who supplied him with the gun, during the altercation. Mitchell was prosecuted by the State of Kansas, and pled no contest to second degree murder.
Jeremy Ware and the victim, Shaun Leach, were both servicemen stationed at Fort Riley, Kansas. Ware was court martialed for his part in Leach's homicide. The court's findings in the Ware court-martial proceeding are not materially inconsistent with Mitchell's statement that Ware had supplied him with the gun. The courts martial judge found that
During the early morning hours of 21 January 2001, in the parking lot of a bar in Manhattan, Kansas, appellant witnessed an altercation between a civilian, Anthony Mitchell, and a soldier, Private (PVT) Craig Newsome, and a group of PVT Newsome's friends. An acquaintance of appellant's, Antonio Cooper, was also in the parking lot observing the fight. Appellant looked on as PVT Newsome and his group of friends became aggressive and hostile and formed a "U-shape" around Mr. Mitchell. The tension of the situation increased when PVT Newsome hit Mr. Mitchell in the back with a board. Angered by the attack on Mr. Mitchell, appellant went to the trunk of his car and retrieved a loaded handgun. He tucked the gun inside his pants, pulled his shirt over it, and "walked over to where Antonio Cooper was standing." At this point, the fight started to break up and PVT Newsome's group had left the scene and were walking to their vehicles. But appellant was still angry so he removed his gun and handed it to Mr. Cooper "intending that [Cooper], himself, would resolve the situation by retaliating against the group because of their actions, " or that Mr. Cooper would pass the weapon to Mr. Mitchell who could get even with PVT Newsome. When Mr. Cooper received the gun, he handed it to Mr. Mitchell who went after PVT Newsome's group as they tried to drive out of the parking lot. Mr. Mitchell then
"fired off shots in retaliation for them attacking him." Ware was charged and pled guilty under the military code of justice, to attempted unpremeditated murder, violation of a lawful general regulation carrying a concealed weapon and wrongful acquisition of a firearm. Police did not file charges against Antonio Cooper.
Nonetheless, Webb argues that this information about Cooper was exculpatory, or impeachment evidence that the government should have disclosed, so the Webb could have investigated further. Webb also states, inexplicably, that had he known this information about Cooper, he would not have entered into the plea agreement and pled guilty to Count 1 of the First Superseding Indictment.
Brady and its progeny require the government to disclose both exculpatory evidence and evidence that possibly could be used to impeach a government witness, whether or not requested by the defendant. In order to establish a Brady violation, the defendant must demonstrate: (1) the prosecution suppressed evidence; (2) the evidence was favorable to the defendant; and (3) the evidence was material.
As a threshold matter, Webb must demonstrate that the prosecution was actually in possession of the favorable evidence, or that one of the prosecution's agents was in possession of it. To be sure, Riley County law enforcement officials, who prosecuted Mitchell, and U.S. Army law enforcement officials, who prosecuted Ware, possessed information about these cases. But neither Riley County nor the U.S. Army were involved in the investigation and prosecution of this case; the investigating agencies were the Junction City Police Department and the DEA, and the prosecuting office was the United States Attorney's Office. And as the Tenth Circuit held in United States v. Beers,  there is no Brady violation when the federal prosecution was unaware of impeachment evidence held by local and state police, because there was no evidence of federal participation in ...