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United States v. Fisher

United States District Court, D. Kansas

May 22, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ALFONZO J. FISHER, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         Defendant Alfonzo Fisher petitioned the Court for leave to enter a plea of nolo contendere.[1]The Government opposed Fisher's request, citing a longstanding Department of Justice policy against nolo pleas. The Court has broad discretion to accept or reject a nolo plea. Because the Court believes a nolo plea is not proper in this case, the Government's Motion to Oppose a “No Contest” Plea (Doc. 29) is hereby granted.

         I. Factual and Procedural Background

         According to the indictment, Fisher was in possession of a Smith & Wesson, M&P, .40 caliber semi-automatic handgun on October 5, 2015; he had previously been convicted of a felony. Both parties agree that Fisher picked up a gun in the parking lot of the Cessna Activities Center, finding it either inside a parked truck or in a planter near the truck. The purported owner of both the truck and the gun came outside and confronted Fisher. Fisher returned the gun to the other man and was later arrested.

         Fisher requested to plead nolo contendere. He does not deny the factual allegations and is not motivated by a desire to avoid subsequent civil liability. Rather, he wishes to plead nolo contendere instead of guilty because he allegedly suffers from a neurological disorder that affects his memory, and he would be unable to testify to the facts that would support a guilty plea without perjuring himself.

         II. Legal Standard

         In a criminal case, a defendant may plead nolo contendere “with the court's consent.”[2] The trial court “must consider the parties' views and the public interest in the effective administration of justice” when deciding whether to accept a nolo plea.[3] In practice, courts have broad discretion to accept or reject nolo pleas.[4] Some district judges have adopted general policies for or against them.[5]

         Nolo pleas are typically used by defendants in cases where they wish to avoid subsequent civil liability. A nolo plea disposes of the criminal matter like a guilty plea, with the court finding the defendant guilty, but a nolo plea cannot be used to prove the defendant's liability in a civil case, unlike a guilty plea. Most of the cases discussing nolo pleas involve corporate defendants, often charged with antitrust violations.

         There is no widely accepted formula for a court to follow when ruling on a nolo plea. However, two courts recently identified factors that the courts used to decide whether to permit nolo pleas.[6] The two lists have some overlap between them, and some of the factors are not applicable at all to this case. In exercising its broad discretion to accept or reject a nolo plea, the Court will consider the following factors:

1. the position of the Government;
2. the nature of the violations;
3. the duration of the violations;
4. prior violations by Fisher;
5. the impact of the conduct on the public;
6. the deterrent effect of the plea;
7. whether acceptance of the plea would be discriminatory or incongruous;
8. Fisher's unique circumstances;
9. whether Fisher has firsthand knowledge of facts that would be sufficient to constitute a factual basis ...

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