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United States v. Ieremia

United States District Court, D. Hawaii

July 27, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JEREMIAH IEREMIA, Defendant.

          ORDER DENYING DEFENDANT JEREMIAH IEREMIA'S MOTION TO WITHDRAW HIS GUILTY PLEA

          Derrick K. Watson, United States District Judge.

         INTRODUCTION

         On May 5, 2017, Jeremiah Ieremia entered a guilty plea to Counts 2, 4 and 7 of the Indictment on drug distribution charges, pursuant to a Plea Agreement. He now seeks, prior to sentencing, to withdraw his plea, claiming that: (1) his plea was not valid because former counsel failed to properly advise him of his rights; and (2) former counsel “grossly mischaracterized” the term of his likely sentence. On July 9 and 19, 2018, the Court received testimony from Ieremia; his former counsel, John Schum, Esq.; and Kristin Germosen, the Supervisor of Education at the Federal Detention Center (“FDC”) Honolulu. Upon consideration of the live testimony, the supporting and opposing memoranda, the arguments of counsel, the record, and the relevant legal authorities, the Court DENIES Ieremia's Motion to Withdraw his Guilty Plea.

         BACKGROUND

         Ieremia was charged with drug trafficking offenses in a November 30, 2016 Indictment, Dkt. No. 1, and was arrested in the Northern District of California on December 8, 2016, Dkt. No. 47. Count 1 charges him with conspiracy to distribute and to possess with the intent to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; Counts 2 and 4 charge him with distributing and possessing with the intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of Sections 841(a)(1) and 841(b)(1)(B); and Count 7 charges him with distribution and possession with the intent to distribute 50 grams or more of methamphetamine in violation of Sections 841(a)(1) and 841(b)(1)(A).

         Ieremia was one of eleven defendants charged in the Indictment, and this matter is one of six related cases in which a total of 37 defendants were charged with narcotics trafficking and related crimes. The case was declared complex on December 19, 2016, Dkt. No. 86, and the court appointed a coordinating discovery attorney on December 22, 2016, Dkt. No. 93.

         I. Ieremia's Guilty Plea

         Schum was appointed as counsel for Ieremia shortly before his arraignment and initial appearance in the District of Hawaii on January 12, 2017. CJA Appointment, Dkt. No. 120 (Nunc Pro Tunc 1/9/17); Decl. of John Schum ¶ 1, Dkt. No. 111. Schum continued to represent Ieremia during plea negotiations, at his May 5, 2017 change of plea hearing, during Ieremia's presentence interview and following receipt of the draft Presentence Investigation Report (“PSR”), up until December 7, 2017, when the court granted Schum's motion to withdraw as counsel.[1]See Dkt. No. 292 (12/7/17 Court Minutes); Schum Decl. ¶ 2.

         In the pleadings and in their testimony, Ieremia and Schum dispute the course of proceedings, including the discovery that was made available to Ieremia, the trial strategy employed, the plea agreement negotiations, and Ieremia's prospective sentence. For instance, Ieremia initially claimed that no discovery was made available to him before entering his guilty plea. See Ieremia Decl. ¶ 4, Dkt. No. 408-4. During the evidentiary hearing, however, he testified that Schum sent him discovery from the United States Attorney's Office's initial production, including lab reports and an audio file of Ieremia's interview with agents in San Francisco following his arrest in 2016. He also testified that Schum explained to him the voluminous nature of the discovery during their first meeting, including FDC Honolulu's policy that would not permit Schum to provide him with more than 30, 000 pages of discovery. Ieremia explained that although Schum did send eight CDs of discovery to FDC Honolulu for Ieremia's review, he was told by FDC Honolulu staff that none had been received. Ieremia admitted that he never advised Schum of his difficulties locating the CDs, nor did he follow up with FDC Honolulu staff for assistance. Ieremia further admitted that he later found the eight CDs originally provided by Schum under another set of discovery CDs provided by his new counsel.

         According to Schum, he delivered a full set of all discovery he received on eight CDs to FDC Honolulu, accompanied by a Discovery Material Authorization Form, dated February 18, 2017. Schum Decl. ¶ 6; see also Decl. of Kristin Germosen, Ex. B, Dkt. No. 451-2.[2] Schum testified that Ieremia told him, in approximately March or April of 2017, that he had gone “a couple of times” to review his e-discovery at the FDC Honolulu law library, but because it was so laborious and time-consuming, Ieremia quit going out of frustration. Schum agreed that at no point did Ieremia inform him of any difficulties locating or accessing the discovery materials. Schum Decl. ¶ 7. In Schum's recounting of events, after personally reviewing the discovery related to Ieremia, id. at ¶ 5, he discussed what he considered to be the most important parts of that discovery with Ieremia himself before the change of plea. Id. at ¶ 8. That included Ieremia's rap sheet, arrest reports, a “video recording of his statement to law enforcement, ”[3] and more than 100 of the most significant intercepted telephone calls and text messages. Id. at ¶¶ 9-10.

         Beyond discovery, Ieremia and Schum also presented contradictory facts regarding the evaluation of the evidence and the applicable law. Ieremia initially declared that Schum “did not advise me of any of my defenses.” Ieremia Decl. ¶ 4. At the evidentiary hearing, however, Ieremia admitted that Schum advised him about the probable weakness of certain defenses, including relying on the reference to “shoes” as a proxy for drugs during the course of his wiretapped communications with his co-defendants.

         Schum emphasized that he reviewed potential defenses at length and in detail with Ieremia, and repeatedly informed him that he was willing to take the case to trial despite what Schum perceived as a weak defense. Schum Decl. ¶ 11-14. Schum agreed that he discussed the viability of Ieremia's “shoe” defense, and explained that a witness would likely be called to testify that “shoes” was used on the intercepted communications in place of “drugs” or “methamphetamine” to avoid detection. He also explained to Ieremia that the lack of an explicit agreement to sell drugs would not likely be a strong defense because an agreement could be inferred from conduct. Id. at ¶ 13. Schum also testified that he explained his view to Ieremia that it would be futile to attempt to exclude the numerous, incriminating wiretap communications based upon a claim of an improper warrant. Schum candidly conveyed his belief that Ieremia would likely be convicted at trial based on the strength of the evidence, and he advised Ieremia that pleading guilty was his best option. Id. at ¶ 15.

         Ieremia testified that during his third meeting with Schum at FDC Honolulu in early Spring 2017, he asked Schum if the Government was offering him a deal, and if so, how much time he was facing. Schum responded that he would talk to the Assistant United States Attorneys prosecuting the case. During their next meeting, Schum told Ieremia that the Government was offering him a deal to change his plea, and according to Ieremia, the Government was agreeing to a sentence of imprisonment of 11 to 12 years. Ieremia told Schum that he would agree to such a sentence, and Schum said he would bring Ieremia a plea agreement to review at a later meeting.

         Schum negotiated a Plea Agreement with the Government and brought it to FDC Honolulu to discuss its terms with his client. Ieremia testified that although Schum went over portions of the Plea Agreement with him during that meeting, they ran out of time to go over each page in detail, and Ieremia did not really understand its terms. Schum provided Ieremia a copy of the Plea Agreement for him to review on his own at FDC Honolulu. Ieremia further testified that Schum never explained to him any aspect of the sentencing guidelines, including the applicable guideline offense level, nor went over any guidelines charts or calculations during their meetings. He also claims that Schum never explained to him the Court's role in determining the applicable guideline range or that the Court would consider relevant conduct and his prior criminal history in making that determination. Ieremia Decl. ¶¶ 9-10.

         Schum contradicts most of these assertions. He claims that he advised Ieremia about the sentencing guidelines both before and after presenting him with the Plea Agreement. According to Schum, Ieremia initially refused to discuss the guidelines with him at all, but relented once he became amenable to plea negotiations with the Government. Schum Decl. ¶ 16. Prior to negotiations, Schum calculated the drug amounts, advised Ieremia about possible guidelines adjustments-including a possible role enhancement and reduction for pleading guilty-and informed him that the “best” sentence he could hope for was approximately 11.5 years. Id. Schum avers he also advised his client that the Court would consider relevant conduct and Ieremia's prior criminal history both in determining the applicable sentencing guidelines range and in imposing an ultimate sentence. Id. at ¶ 19. Schum claims he went over the criminal history contained in Ieremia's rap sheet and discussed how it might affect the sentencing guidelines calculation, id., and testified that he settled on criminal history category II or III as the likely outcome, using criminal history category II to reach his “best” case of 11 to 12 years. According to Schum, he told Ieremia that he should not accept the Plea Agreement if he did not agree with anything Schum had covered with him. Id. at ¶ 20.

         Schum explained to Ieremia that despite their review of the sentencing guidelines, the Court would conduct its own evaluation and was not bound by the guidelines-related stipulations in the Plea Agreement. Id. at ¶ 18. Schum also attests that he told Ieremia that a court probation officer would prepare a PSR containing its own guidelines calculations and recommending a specific sentence to the Court. Id. Schum informed Ieremia that the guidelines calculation in the PSR could be higher than the one in the Plea Agreement, and that the Court was not bound by the PSR's calculation either. Id. Ieremia denies that Schum advised him of any of this at any time.

         Prior to the May 5, 2017 plea hearing, the Government provided Schum with a revised Plea Agreement. The only substantive change from the Plea Agreement that Schum had previously reviewed with Ieremia was the addition of forfeiture provisions. Decl. of Marion Percell ¶ 3, Dkt. No. 424-2. Defendant Ieremia signed the Plea Agreement on May 5, 2017.[4] Schum Decl. ¶ 22. The Plea Agreement does not include an agreed-upon sentence, but does include several agreements relevant to sentencing, including a stipulated total offense level of 32.[5] Plea Agreement ¶ 10, Dkt. No. 188. The Plea Agreement also indicates that its provisions are not binding on the Court.[6]

         At the change of plea hearing on May 5, 2017, Ieremia was sworn to answer the Court's questions truthfully. When asked by the Court: “you have now taken an oath to answer the Court's questions this morning truthfully, and if you do anything other than that, you could be subjecting yourself to additional charges. Do you understand that, sir?” Ieremia responded, “Yes, Your Honor.” The Court then proceeded with its Rule 11 colloquy.[7] Ieremia indicated that no one had threatened, forced or coerced him into pleading guilty, nor had anyone threatened, forced or coerced anyone close to him for the same purpose. 5/5/17 Tr. at 5, Dkt. No. 382.

         With respect to the Plea Agreement, the Court questioned Ieremia and counsel as follows:

THE COURT: You've entered into a plea agreement with the United States; is that correct?
THE DEFENDANT: (Inaudible).
THE COURT: Have you read that agreement, plea agreement in full?
THE DEFENDANT: (Inaudible).
THE COURT: Confident that you understand each of the terms of your plea agreement with the United States?
THE DEFENDANT: (Inaudible).
THE COURT: Do you have any questions at all with respect to terms of that agreement?
THE DEFENDANT: (Inaudible).
THE COURT: And I suspect part of the reason you don't have any questions is because you discussed that agreement in full with counsel; is that true?
THE DEFENDANT: (Inaudible).
THE COURT: Mr. Schum, are you satisfied that Mr. Ieremia understands the terms of his plea agreement with the United States?
MR. SCHUM: I am, Your Honor.
****
THE COURT: Were there any promises made to you by the United States that are not reflected in the plea agreement?
THE DEFENDANT: No, Your Honor.
THE COURT: In other words, the plea agreement -- another way of saying the same thing, but the plea agreement reflects the entirety of your agreement with the United States; is that correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand, sir, that the Court is not required to accept your plea agreement and that I could reject it after considering a presentence investigation report that will be prepared after the conclusion of this morning's hearing?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You further understand that any stipulations in your plea agreement with the United States are between you and the United States and the Court is not bound by those stipulations?
THE DEFENDANT: Yes, Your Honor.

5/5/17 Tr. at 9-11. The Assistant United States Attorney then described the essential terms of the Plea Agreement, including the appellate waiver provisions and the following account of the stipulations between the parties:

In Paragraph 10 it sets forth certain stipulations to the applicable sentencing guidelines in this case as to the three counts to which he pleads guilty. The bottom line of which is that if he in fact accepts responsibility and receives the third point, which the government agrees that he's entitled to, if he meets the requirements with -- with the acceptance of responsibility, the bottom line is that the calculation, this is in Paragraph 10(g), the total offense level for the offense will be 32.
The plea agreement makes clear, as the Court has already stated, that the Court is not bound by those stipulations. So ...

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