Burns Chronicles No 53 – Plea Withdrawal – A Privilege or a Right?

Burns Chronicles No 53
Plea Withdrawal – A Privilege or a Right?

Gary Hunt
Outpost of Freedom
January 2, 2017

On October 12, 2016, Ryan Payne submitted to the Court a Motion to Withdraw his Plea Agreement.  This was filed over two weeks before the Jury verdict (October 27, 2016), finding the defendants “Not Guilty” of the charges that included Payne in the original Indictment.

Payne pled guilty, in a Plea Agreement, on July 19, 2016.  In the hearing on the Plea Agreement, when asked how he pled, he stated, “In pursuing that effort [the occupation of the Malheur National Wildlife Refuge], I understand I — I have come to understand that folks who were — who work for the Government, that that Constitution ordained, perceived my actions as threatening or intimidating.  And, thereby, I – I understand myself to have been guilty of the charge that I’m charged with.

Clearly, he did not say that he was guilty.  He said that he understood himself “to have been guilty of the charges“.  So, we have to wonder why the equivocation that was apparent in his statement to the Court.  And, we will get to that.  However, let’s continue from where we are.

The Court (Queen Judge Anna Brown) gave her Order Denying Defendant Ryan Payne’s Motion to Withdraw Guilty Plea.  From that document, we can get some dates with regard to the timing of Payne’s plea agreement and other contributing factors.


Judge Brown sets out the “Standard” upon which the Court is to determine if a plea should be withdrawn.  The citations she uses are all from the 9th Circuit, as they should be.

“Federal Rule of Criminal Procedure 11(d)(2)(B) provides that a defendant may withdraw a plea of guilty prior to sentencing if he “‘can show a fair and just reason for requesting the withdrawal.’” United States v. Mayweather, 634 F.3d 498, 504 (9th Cir. 2010). “The defendant has the burden of demonstrating a fair and just reason for withdrawal of a plea.” United States v. Davis, 428 F.3d 802, 805 (9th Cir. 2005). “‘Fair and just reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.’” Mayweather, 634 F.3d at 504 (quoting United States v. Ortega–Ascanio, 376 F.3d 879, 883 (9th Cir. 2004)). “‘While the defendant is not permitted to withdraw his plea ‘simply on a lark,’ the ‘fair and just standard’ is generous and must be applied liberally.’” Mayweather, 634 F.3d at 504 (quoting United States v. McTiernan, 546 F.3d 1160, 1167 (9th Cir. 2008)).

You will note that the standard is based upon “fair and just”, and that the burden is on the defendant.  However, the last citation makes clear that the “‘fair and just standard’ is generous and must be liberally applied.”

As she continues, she draws from other 9th Circuit decisions:

A defendant “does not have to prove that his plea is invalid in order to establish a fair and just reason for withdrawal before sentencing.” United States v. Davis, 428 F.3d 802, 806 (9th Cir. 2005). See also Mayweather, 634 F.3d at 504. When a defendant’s reason for seeking to withdraw a guilty plea is newly-discovered evidence, “the generous ‘fair and just reason’ standard does not require that the defendant show that the new evidence exonerates him or that there is a reasonable probability he would not have been convicted had the case gone to trial.” United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005). Even if newly-discovered evidence provides the basis for the withdrawal of a guilty plea, however, the defendant must still demonstrate the “evidence was relevant evidence in [the defendant’s] favor that could have at least plausibly motivated a reasonable person in [the defendant’s] position not to have pled guilty had he known about the evidence prior to pleading.”

So, the Defendant “does not have to prove that his plea is invalid in order to establish a fair and just reason for withdrawal before sentencing“, and it “does not require that the defendant show that the new evidence exonerates him or that there is a reasonable probability he would not have been convicted had the case gone to trial.”

Therefore, the Defendant does not have to prove that his plea was invalid, nor that any new evidence would exonerate him.  It doesn’t even have to suggest that the new evidence would prove his innocence.  It is based solely on the fact that evidence, whether physical or testimonial, was not available at the time that the plea was entered.

So, we must look at what the circumstances are so that we can use reason, instead of what appears to be a firm prejudice on the part of Judge Brown.

Judge Brown then goes on to identify five areas that warrant discussion, to determine if the “fair and just” standard applies.

  1. Intervening Circumstances in the District of Nevada 15

Payne pled Guilty on July 19, 2016.  He had been set to go to trial on September 7, 2016, along with the Group 1 defendants that were found Not Guilty at the conclusion of that trial.  During the hearing, the Prosecution stated that it “anticipated [Payne] would plead guilty in Nevada.”  Surely, if both the Prosecution and the Defendant anticipated it, it should also be anticipated by Judge Brown.  Is it not then an intervening circumstance?  After all, the anticipation was as much a part of the hearing as Payne’s guilty plea.

  1. Newly-Discovered Evidence 18

Payne conceded that on July 1, 2016 he had received the redacted CHS (informants) reports (1023 CHS Reporting Document).  However, Payne did not know who each of the informants was.  It was not until the trial that Mark McConnell was put out by the government, though not called to testify.  It was a voluntary action on the part of Terri Linnell that provided some exculpatory (supportive of innocence), when she testified.  And, it was diligence on the part of some of the defendants and defense attorneys that brought Fabio Minoggio (aka John Killman) to the stand that shed a completely new light to some of the events that the prosecution relied upon for their case that shifted those events to the responsibility of the government, not of the occupiers.  If the other informants had been identified, is it possible that Payne, having access to those other informants, might not have pled guilty?  It is probably just and fair that there is that likelihood.

Judge Brown “concludes [that] Payne’s personal involvement in all of the main events preceding and during the occupation of the MNWR consistently put him in a significantly superior position to the government in assessing what evidence existed to support the government’s charge and its theory of the conspiracy case against Payne.”

Now, consider this.  Judge Brown has determined that Payne is guilty, and he should have known that he was guilty.  However, let us look at what both the government had and what the occupiers had.

The initial FBI investigation began back in October 2015.  Since that time, they began collecting information, recordings, interviews, secured informants to infiltrate (spy on) the occupiers, and begin putting together the elements for a criminal complaint that was finally officially produced after the murder of LaVoy Finicum.  They had well over three months of clandestine activity, continuously compiled, as if pursuing a foreign enemy on American soil — perhaps even more so than they would that foreign enemy.  The occupiers did not keep records, make notes, refuse entry to the Refuge, with the exception of those who were clearly troublemakers, nor begin preparing for their defense, as they, and the jury, felt that the had broken no laws.

Now, Brown dwelt upon the CHS reports.  However, she did not mention the multitude of other “evidence”.  Not counting numerous audio and video recordings, there are 48,000 pages in Discovery.  Including audio and video, there are seven terabytes (A terabyte is 1,000 gigabytes) of data.  I don’t doubt that there are many hundreds of hours of audio and video evidence.  However, we will put aside all but the paperwork.

As a test, I read a number of the pages in the Discovery.  Now, I am not a slow reader, nor am I a speed-reader.  I am probably pretty much an average reader.  However, in reading the documents to determine how long it took an average reader to read them, I simply read them.  I did not stop to contemplate the content, which is often necessary to fully understand something, especially when much of it is legalese or government double-speak.  It took between 1 and 1 1/2 minutes to read a full page.  So, to err on the side of the government, we will use an estimated 1 minute to read a page of the Discovery.

If we were to read, uninterrupted, for an 8-hour day, we would be able to read an average of 480 pages per day.  To read all 48,000 pages would take 100 days, or nearly four months..  And, with any spare time, one might be able to get in a few videos or audios.

Just for the heck of it, let’s compound the problem.  Most of the Group 1 defendants were arrested on January 26, 2016.  During that time, they were kept as isolated as possible.  Those who were released from custody were admonished not to communicate with the militia, others, and co-defendants.  It wasn’t until October 5, 2016, just over one month before trial, that the Court issued an Order Allowing Contact, removing the communication restrictions that had been imposed on them from the time of their arrest.  Finally, they were able to “conspire” to prepare their common defense.

The government, on the other hand, was free to communicate with witnesses, FBI and US Attorneys, and anybody else they chose to communicate with.  The investigation, as far as informants, begins in October 2015 and continued into February 2016.  The Superseding Indictment was filed on March 8, 2016.  That gave those hundreds of federal employees nearly four months to conspire, to review, to share, etc., to come up with the final charges against all of the defendants.

So, we must ask ourselves just what is “fair and just”, regardless of the bias of Judge Anna Brown, since ultimately, this country does belong to We, the People.

  1. Adequacy of the Plea Colloquy 20

When the charges were read, the Court asked Payne if the statements that had been read were true.  The following colloquy transpired:

THE DEFENDANT: I would only bring up one contention, which I overlooked previously, and that would be the — the notion that all three — force, intimidation, and threats – were committed, given the — the word “and” there. And would say –

THE COURT: Would you be satisfied if “and” was replaced by “or”?


THE COURT: And does that cause any concern to the Government?

GABRIEL: No objection, your Honor.

THE COURT: Counsel, may I change “and” to “or,” as your client indicates?

[DEFENSE COUNSEL] MR. FEDERICO: Yes, your Honor, please do so.

Though this might be passed over as simply semantics, it gets to the heart of one of the elements that led Payne to plea as he did.  If “and” is used, it is inclusive of all three elements, “force”, “intimidation”, and, “threats”.  So, as was stated above, Payne “understood” that he was guilty, though this concern of the specific wording, when connect by “or” rather than “and”, means it could be only one element.  Now, if that sole element is “intimidation”, and if there was no effort to force, threat, or intimidate, by Payne’s actions, the only element that could exist, absent the intent, would be intimidation.

So, did Payne intend to “intimidate”?  Or, was the “intimidation” the subjective perception by any one of the employees, either real or contrived, that he failed to go to work because he was “intimidated” by the actions of the occupier?

To do so, let us revisit what we know of what the determination of the jury was when the delivered their verdict.  All we have to determine this was provided by Juror #4 (See Burns Chronicles No 37 – Intent v. Effect).  He said that the jury had found that though there was that “effect”, the found that there was no “intent”.  Hence, the Not Guilty verdict.  Hence, also, the reason that Payne wanted the distinction between “and” and “or” included during the hearing — which was agreed to by the Court and the Prosecution.

Once again, just what is “fair and just”?

  1. Subsequent Not-Guilty Verdicts for Co-Defendants 23

This element is simply thrown in as a handle to rationalize Judge Brown’s effort to divert from the real purpose (obfuscation) of the denial of Payne’s Plea Withdrawal.  How could this even be a consideration when Payne Moved to Withdraw His Plea fully two weeks before the matter was handed over to the Jury for their deliberations?

Now, it is quite possible that the strength (or, should I saw weakness?) of the government’s case had begun to be exposed.  However, very much of the Discovery that had been provided was not sufficient for the government to bring forth much of the “damning” evidence that was found in the first batches of Discovery.

So, what does Judge Brown have to say with regard to the verdict that is even on point to the subject at hand?  Is it “fair and just” to rely on something that could have absolutely no effect on Payne’s decision?

  1. Prejudice to the Government 27

My first thought on this subject, “Who cares that the government is subject to prejudice?”  As discussed in “Words from the Poor Losers“, the government seems to have a personal stake in the outcome of this trial.  When the verdict was given, they were “disappointed”.  Why the heck should the members of the Department of Justice be “disappointed” over a verdict?  It would seem that their pursuit, in any case, would be the goal of justice.  Our system says that the jury decides what is just (Except in Judge Anna Brown’s courtroom).  Why is the government “disappointed” in justice NOT being denied?

Now, that is slightly off point, but it still sticks in my craw to think that a personal vendetta can be waged by the government, against peaceful protestors.

However, we must also look at what sticks in Judge Brown’s craw.  She brings us some citations from other cases.

The Court notes the Ninth Circuit has held the acquittal of co-defendants of the same conspiracy charge is a reason that a district court may consider in determining whether to permit a defendant to withdraw a guilty plea to that charge. (United States v. Schwartz, 785 F.2d 673, 678 (9th Cir. 1986)).

Well, that makes it pretty clear — that the acquittal of the co-defendants is a reason to be considered “in determining whether to permit a defendant to withdraw a guilty plea.”  But, heck, that’s not good enough for Anna Brown.  Instead of sticking with the precedence of the Ninth Circuit, she desperately clings to a means of dismissing the Ninth Circuit precedence, in favor of the 2nd and 6th Circuits.

The Second Circuit concluded that requiring a court to permit a defendant to withdraw his guilty plea in such circumstances “would allow defendants such as O’Hara to have it both ways” (United States v. O’Hara, 960 F.2d 11, 14-15 (2d Cir. 1992)).

But, wait, Payne moved to withdraw his plea during the trial.  By so doing, if his motion had been granted, he would have to stand trial with Group 2.  He would have no choice, and, as we have seen, the government has, in their desperation to circumvent justice, added some misdemeanor charges, in the hope of being able to get a conviction of some of the defendants in Group 2.  Not quite “both ways”, after all, is it?  This would create no prejudice on the government.  Surely, after over a year, they have their cases against Payne all worked up.  They just take what they can from the Group 1 trial, add some tidbits that are specific to Payne, and proceed.

So, what could be the cause for denial?  Could it be that the scorecard looks really bad for this very expensive “pursuit of justice” and they want to keep as many “guilty pleas” as possible on the scorecard?  So, it begins to look like the “fair and just” aspect is in favor of the prosecution, where it is intended to apply to the defendant.

Then, she briefly refers to United States v. Giorgio, 802 F.3d 845, 848-50 (6th Cir. 2015), stating only that in that case, “denial of motion to withdraw guilty plea despite acquittal of co-conspirators.”  She doesn’t even provide any insight as to why it was denied.  We have no idea if there was an equivocation on the part of that defendant, nor do we have any idea of any of the circumstances that led the 6th Circuit to rule as they did.

I believe that we can all look at what has happened over the past year, both in the courtroom and out, and see that the “fair and just” concept is absent any real merit, unless it is applied to the fairness and justness of the edict from the bench.  And, we know that it has not been applied as was honestly intended.

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