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United States v. Pea

United States District Court, E.D. Louisiana

June 12, 2019

UNITED STATES OF AMERICA
v.
JERRY PEA

         SECTION I

          ORDER & REASONS

          LANCE M. AFRICK UNITED STATES DISTRICT JUDGE

         Before the Court is defendant Jerry Pea's (“Pea”) third motion to withdraw his guilty plea as to counts one and seven of the eight-count indictment.[1] On June 10, 2019, the Court conducted an evidentiary hearing with respect to such motion.[2] For the following reasons, the motion is denied.

         I.

         On May 15, 2018, the government filed a criminal complaint against Pea and his co-defendant James Jackson (“Jackson”).[3] On July 12, 2018, Pea and Jackson were charged in an eight-count indictment.[4] Pea was charged-in seven of the eight counts-with conspiracy to distribute and possess with the intent to distribute cocaine base and heroin in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(C), and 846;[5] distribution of cocaine base and/or heroin in violation of Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C) and Title 18, United States Code, Section 2;[6] and possession of a firearm in furtherance of a drug trafficking crime in violation of Title 18, United States Code, Sections 924(c)(1)(A) and 2.[7]

         On November 14, 2018, the Court set a date for Pea and Jackson's rearraignment: December 5, 2018.[8] Due to a conflict, however, the Court reset the rearraignment for December 6, 2018, [9] and U.S. District Judge Jane Triche Milazzo presided over the proceeding.[10]

         The morning of the rearraignment, Assistant United States Attorney Jeffrey Sandman (“Sandman”) informed the Court that Pea and his attorney, Letita Parker-Davis (“Parker-Davis”), had a breakdown in communication and that Pea would no longer plead guilty.[11] That same day, prior to the rearraignment, Parker-Davis filed a motion to withdraw as counsel for Pea, explaining that they could no longer communicate or work together.[12]

         Nevertheless, Pea was brought to court, along with Jackson, for the rearraignment proceeding.[13] Pea sat in the courtroom with Jackson while waiting for Parker-Davis to arrive, and once she arrived, Pea informed her that he changed his mind and that he would in fact plead guilty.[14]

         When the proceeding began, Judge Milazzo first addressed Pea and Parker-Davis with respect to the motion to withdraw:

THE COURT: Before we proceed, Ms. Parker-Davis, you had previously filed a motion to withdraw as counsel of record for Mr. Pea, and that is currently pending before the Court. And so I'm asking you now, do you intend to proceed with the rearraignment and the motion to withdraw? I think . . . we need to address that issue first.
PARKER-DAVIS: Your Honor, I'm going to file a motion to strike the motion to withdraw as counsel. I've spoken to Mr. Pea since I filed that motion, and he has indicated to me that he would like to go ahead with the rearraignment this afternoon and that he's satisfied with my services. He's reconsidered his position and he'd like to move forward today.
THE COURT: Okay. Is that correct, Mr. Pea?
PEA: Yes, ma'am.
THE COURT: So you are satisfied with your counsel's services and you no longer wish for her to withdraw?
PEA: Yes, ma'am.
THE COURT: Thank you.[15]Thereafter, Judge Milazzo conducted the full rearraignment proceeding, accepted Pea's guilty plea as to counts one and seven, and set a date for sentencing.[16] On December 11, 2018, the Court dismissed Parker-Davis's motion to withdraw as Pea's counsel.[17]

         On December 20, 2018, Pea filed, pro se, his first motion to withdraw his guilty plea asserting that he was threatened and forced by Sandman, federal agents, and Parker-Davis to plead guilty.[18] Pea also moved the Court for the appointment of new counsel.[19] The Court set a hearing on the motion and ordered Parker-Davis to attend.[20] At the hearing, on January 10, 2019, Pea explained to the Court his reasons for filing the motions, stating that he did not have sufficient time to review the factual basis or plea agreement with Parker-Davis before pleading guilty and that he was surprised that he had been brought to court that day.[21] The Court, albeit skeptical of Pea's reasoning, [22] granted Pea's motion for appointment of new counsel, allowed Parker-Davis to withdraw as counsel for Pea, and ordered that the Federal Public Defender appoint Pea new counsel.[23] The Court also dismissed Pea's motion to withdraw his guilty plea, reserving the right to refile the motion after he conferred with his newly appointed counsel.[24]

         On January 31, 2019, Cynthia Cimino (“Cimino”) was appointed to represent Pea.[25] On April 23, 2019, Cimino, on behalf of Pea, filed a second motion to withdraw his guilty plea.[26] The Court set the motion for hearing on May 22, 2019.[27] The government filed a response to Pea's second motion to withdraw his guilty plea.[28]

         On May 15, 2019, exactly one week before the scheduled hearing on the second motion to withdraw Pea's guilty plea, Pea filed a motion to substitute counsel; Pea moved the Court to enroll retained counsel, Jonathan D. Goins (“Goins”), and to allow Cimino to withdraw as counsel of record.[29] Pea also filed a motion to continue the hearing on his motion to withdraw his guilty plea.[30] After holding a telephone conference with Goins, Cimino, and Sandman, the Court granted the motion to substitute counsel, allowed Goins to file a third motion to withdraw Pea's guilty plea, and continued the hearing on the motion to June 10, 2019.[31] Pea filed his third motion to withdraw his guilty plea on May 30, 2019, [32] and the government filed a supplemental response on June 3, 2019.[33]

         II.

         Pea moves the Court to withdraw his guilty plea, alleging that he was forced and threatened to plead guilty and that he is innocent of the crime charged in count seven-possession of a firearm in furtherance of a drug trafficking crime.[34]

         Specifically, Pea asserts that on the morning of the rearraignment, “because of his reluctance to take a plea . . . he was taken into a room with [Sandman], federal agents, and his attorney and was threatened with more charges than in the original indictment and a harsher sentence if he did not take the plea.”[35] At the June 10, 2019 hearing on the motion, Pea added that Sandman and United States Drug Enforcement Administration (“DEA”) Special Agent William Johnson (“Johnson”) threatened him by advising him that if he proceeded to trial, Jackson would testify against him and that Sandman also threatened a fourteen-year sentence if he did not plead guilty.

         Pea also alleges that his plea was not intelligently entered because he was not able to view the government's video evidence related to count seven before he pled guilty.[36] Pea asserts that he was first shown the video by his second counsel of record (Cimino), and that the video “further cement[s] . . . that he [is] innocent of Count 7.”[37] After reviewing the motions, the briefs, the video evidence in question, and the testimony at the evidentiary hearing, the Court finds Pea's assertions to be false and not credible.[38]

         A.

         At the outset, the Court notes that Pea's allegations that he was forced and threatened to plead guilty on December 6, 2018 and that he is innocent of the offense charged in count seven are in stark contrast to the representations Pea made to the Court under oath. At the rearraignment proceeding, after Judge Milazzo ensured that he was competent to enter a plea, [39] Pea stated that he intended to plead guilty to counts one and seven in accordance with his plea agreement.[40] Judge Milazzo detailed each of the charges to which Pea was pleading guilty, and she explained the elements of those offenses.[41] Judge Milazzo asked Pea if he understood the charges against him, and he confirmed that he understood.[42] Judge Milazzo also informed Pea of the maximum possible sentences that could be imposed on him as to counts one and seven, including the mandatory minimum sentences as to each count, and that any sentence imposed as to count seven would run consecutively to a sentence imposed as to count one.[43] Pea indicated that he understood the maximum and minimum sentences that could be imposed on him.[44] Judge Milazzo also asked Pea if anyone had represented to him what sentence he might receive, other than the mandatory minimum sentence, if the Court accepted his guilty plea, and Pea stated that no one had done so.[45]

         Judge Milazzo explained to Pea all of the rights that he was waiving and giving up by pleading guilty: the right to remain silent, the right to a speedy and public trial by jury or judge whereby the government would have to prove his guilt beyond a reasonable doubt, the right to call witnesses, and the right to appeal any conviction or sentence.[46] Pea confirmed that he was willing to give up his right to trial, that he was pleading guilty because he was guilty of the crimes charged against him, and that he committed the acts charged in counts one and seven.[47]

         Pea specifically advised the Court that he was not pleading guilty due to any threats:

THE COURT: Have you been influenced, induced or persuaded in any manner to plead guilty because of promises of leniency or other things made by anyone?
PEA: No, ma'am.
. . .
THE COURT: Have you been influenced, induced or persuaded in any manner to plead guilty because of threats made by anyone?
PEA: No, ma'am.[48]
Pea also stated that he was satisfied with Parker-Davis's representation and that he understood the consequences of his plea:
THE COURT: Have you had sufficient time to discuss with your attorney the facts of your case and any possible defenses you might have?
DEFENDANT PEA: Yes, ma'am.
. . .
THE COURT: Are you satisfied with the advice and services of your attorney, Mr. Pea?
DEFENDANT PEA: Yes, ma'am.[49]
. . .
THE COURT: Okay. Mr. Pea, I'm going to ask you again, do you fully understand the charges against you?
DEFENDANT PEA: Yes, ma'am.
THE COURT: Do you fully understand the consequences of your guilty plea?
DEFENDANT PEA: Yes, ma'am.
THE COURT: Are you pleading guilty because you are in fact guilty?
DEFENDANT PEA: Yes, ma'am.
THE COURT: Are you pleading guilty voluntarily and of your own free will?
DEFENDANT PEA: Yes, ma'am.
THE COURT: Although you have indicated through the proceedings a desire to plead guilty, do you understand at this very moment that you still have the right to enter a not guilty plea?
DEFENDANT PEA: Yes, ma'am.
THE COURT: And so now I'm going to ask you again: How do you wish to plead as to Counts 1 and 7 of ...

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