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United States v. Philpot

United States District Court, N.D. Georgia, Atlanta Division

April 18, 2018

UNITED STATES OF AMERICA,
v.
JASON PHILPOT, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Jason Philpot's (“Philpot”) Motion to Withdraw Guilty Plea [247]; Pro Se Motion for Leave to File Pro Se Supplemental Brief in Support of Motion to Withdraw Guilty Plea [251]; Pro Se Motion to Produce Trial Transcript [252]; Motion for New Trial and Supplemental Brief in Support of Motion to Withdraw Plea [253]; and Pro Se Motion to File Supplemental Briefs in Support of Counsel's Motion [262].

         I. BACKGROUND

         On January 27, 2015, a grand jury in the Northern District of Georgia returned a five-count indictment [1] charging Philpot and co-defendant Patrick Bernard Reese (“Reese”) with committing a Hobbs Act robbery, including as an aider and abettor, in violation of 18 U.S.C. §§ 1951 and 2 (Count One); using, carrying and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts Two and Three); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts Four and Five). The indictment alleged that on September 30, 2014, Philpot and Reese robbed a Waffle House restaurant in Tucker, Georgia.

         On July 31, 2017, Philpot pled guilty to Count One. ([209]). At his change of plea hearing, Philpot was advised of, and waived, his right to trial, his right against self-incrimination, and other rights of which he was advised during the hearing. He acknowledged the elements of the offense, the Government's burden to prove them by the admission of evidence, and his right to a unanimous verdict. He agreed to the maximum punishment that could be imposed and admitted to facts that support the Hobbs Act robbery charge to which he was pleading guilty, specifically his role as the driver of the vehicle involved in the robbery of the Waffle House. Philpot ultimately stated he believed it was in his best interest to plead guilty to Count One. The Court accepted his plea and found Philpot had voluntarily and knowingly entered his plea of guilty.[1]

         The case proceeded to trial against Reese on Counts One, Three, and Five, and against Philpot on Counts Two and Four. On August 4, 2017, the jury found Philpot guilty on both counts. ([217]). The jury acquitted Reese on the counts alleged against him.

         Victoria Calvert of the Federal Defender Program represented Philpot at his change of plea hearing and at trial. On August 21, 2017, Philpot, while represented by Ms. Calvert, filed, pro se, post-trial motions [228], [229] (collectively, “First Post-Trial Motions”) seeking relief from his conviction on Count One, to which he had pled, and Counts Two and Four on which he was found guilty at trial.

         On August 23, 2017, the Court denied [230] Philpot's First Post-Trial Motions because Philpot was represented by counsel when the motions were filed pro se. Our Local Rule 57.1(D)(3) prohibits the filing of pro se motions by a defendant who is represented.

         On September 12, 2017, Philpot filed further pro se motions including a Motion to Produce Trial Transcripts [235], Motion to Withdraw Guilty Plea [236], and Motion for Judgment of Acquittal [237] (collectively, “Second Post-Trial Motions”).

         On September 19, 2017, the Court denied the Second Post-Trial Motions also because Philpot was represented by Ms. Calvert when the motions were filed. ([238]).

         On August 31, 2017, Philpot requested to be appointed new counsel, and on September 20, 2017, Magistrate Judge Linda T. Walker appointed Jay L. Strongwater as Philpot's new lawyer. ([232]; [240]). Philpot was granted an extension of time in which to re-file his post-trial motions. ([244]).

         On November 6, 2017, Philpot filed his Motion to Withdraw Guilty Plea [247]. Philpot argues that he should be allowed to withdraw his plea to Count One because his plea was not made knowingly. Philpot argues that he entered his plea believing he would be convicted of the Hobbs Act robbery as an aider and abettor, and would still have a defense to the “carrying or use” of a firearm during the commission of a felony. He argues that his plea, as an aider and abettor, “was in effect an admission of guilty [sic] as to the two firearms counts [Two and Four] at trial.” ([247] at 5). He argues that the Government's emphasis at trial on his conviction for Count One showed that when Philpot admitted to the factual predicate to substantiate his guilty plea to aiding and abetting the robbery he was effectively admitting to the firearms violations. Because the plea to Count One had no “strategic purpose” at the trial on the remaining counts, Philpot argues his plea was not made knowingly and that he should be permitted to withdraw it.

         On November 17, 2017, the Court, at the request of Mr. Strongwater, granted Philpot a second extension of time to file post-trial motions. ([250]).

         On December 15, 2017, Philpot filed his Pro Se Motion for Leave to File Pro Se Supplemental Brief in Support of Motion to Withdraw Guilty Plea [251]. Philpot argues that Mr. Strongwater is not familiar with the issues of his case and that the motion to withdraw his guilty plea omits certain material arguments.[2]

         On December 18, 2017, Philpot filed his Motion for New Trial and Supplemental Brief in Support of Motion to Withdraw Plea [253]. In it, Philpot claims his guilty plea to Count One was entered on “the mistaken belief” that his plea to the Hobbes Act conspiracy as an aider and abettor “would negate culpability as to the two firearms counts.” ([253] at 2). Philpot also argues that his plea should be withdrawn because Count One of the indictment charges only that Philpot and Reese committed the robbery “aided and abetted by each other, ” and does not allege that any other individuals were involved. The indictment does not charge that “others known or unknown to the grand jury” participated. This distinction is significant because Philpot pled guilty on the basis that he aided and abetted two persons, other than Reese, who Philpot claims entered the restaurant and robbed it. He claims he was only the “getaway driver” for the two unnamed individuals who actually robbed the restaurant. Because Philpot “did not participate in the offense charged . . . [t]his discrepancy undermines the integrity of the plea” and Philpot argues he should be allowed to withdraw it.

         Philpot also moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure on the grounds that (1) “the withdrawal of his guilty plea[, ] [if permitted, ] leaves open for jury determination essential elements of the [remaining] offenses, ” and (2) the stipulation regarding his prior conviction for being a felon in possession of a firearm was “defective.” ([253] ¶ 7).

         On January 22, 2018, Philpot also filed his Pro Se Motion to File Supplemental Briefs in Support of Counsel's Motion [262]. Philpot again argues that the post-trial appointment of new counsel requires the Court to grant leave for him to file supplemental briefs in support of the motions filed by Mr. Strongwater.

         II. DISCUSSION

         A. The Pro Se Motions

         Philpot has filed a number of pro se motions while he was represented by Ms. Calvert and Mr. Strongwater. Local Criminal Rule 57.1(D)(3) provides limited circumstances in which a represented party may file pro se motions in a criminal case:

Pro Se Appearance Limitations. Whenever a party has appeared by attorney, the party may not thereafter appear or act in the party's own behalf in the action or proceeding or take any step therein unless the party has first given notice of the party's intention to the attorney of record and to the opposing party and has obtained an order of substitution from the court. Notwithstanding this rule, the court may in its discretion hear a party in open court even though the party has previously appeared or is represented by [an] attorney.

LCrR 57.1(D)(3), NDGa.

         Mr. Strongwater is now fully engaged in his representation of Philpot and has moved (i) to withdraw Philpot's plea and (ii) for a new trial. These motions include, in a more focused way, the grounds for post-trial relief including the bases asserted in Philpot's pro se filings. The Court concludes that Philpot's legal position is adequately presented in the submissions filed by Mr. Strongwater and that Philpot's pro se motions were not allowed under our Local Criminal Rule 57.1(D)(3). Philpot's pro se motions are denied. See United States v. Daniels, 572 F.2d 535, 540 (5th Cir. 1978)[3] (“It is settled law that a defendant has the right to represent himself in a criminal trial and that he has the right to the assistance of counsel. The criminal defendant does not have the right, however, to a ‘hybrid representation, ' partly by counsel and partly by himself.”) (internal citations omitted); see also United States v. Dupree, No. 1:10-cr-94, 2012 WL 12965627, at *1 n.1 (N.D.Ga. Apr. 5, 2012) (denying a criminal defendant's pro se motions for failure to comply with Local Criminal Rule 57.1(D)(3)). The Eleventh Circuit has held that “the right to counsel and the right to proceed pro se exist in the alternative.” United States v. Dale, 618 Fed.Appx. 494, 497 (11th Cir. 2015) (citing United States v. LaChance, 817 F.2d 1491, 1498 (11th Cir. 1987)). “The district court may allow a defendant to proceed with ‘hybrid representation'; however, this decision ‘rests in the sound discretion of the trial court.'” Id. The Court specifically finds, in light of Mr. Strongwater's representation of Philpot, there is no prejudice to Philpot in declining to consider his pro se motions.

         B. Motion to Withdraw Guilty Plea

         Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure provides that a defendant may withdraw a plea of guilty after the court accepts the plea but before sentencing if “the defendant can show a fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). A pre-sentence motion to withdraw “is to be liberally construed, ” but “there is no absolute right to withdraw a guilty plea.” United States v. Buckles, 843 F.2d 469, 471 (11th Cir. 1998). It is a defendant's burden to establish a fair and just reason for withdrawal. See United States v. Cesal, 391 F.3d 1172, 1179 (11th Cir. 2004); vacated on other grounds at 345 U.S. 1101 (2005), reinstated at 2005 WL 1635303 (11th Cir. July 13, 2005).

         “In determining whether the defendant has met this burden, the district court may consider the totality of the circumstances, ” including “(1) whether close assistance of counsel was available; (2) whether the plea was knowing and voluntary; (3) whether judicial resources would be conserved; and (4) whether the government would be prejudiced if the defendant were allowed to withdraw his plea.” Buckles, 843 F.2d at 471-72 (internal citations omitted). The district court also can consider the defendant's admission of factual guilt at the Rule 11 hearing and the timing of the motion to withdraw. United States v. Rogers, 848 F.2d 166, 168 (11th Cir. 1988). Whether to allow a defendant to withdraw a guilty plea is left to the sound discretion of the trial judge. Cesal, 391 F.3d at 1179.

         Philpot does not dispute that he was advised of, understood, and waived the rights explained to him at the hearing, that he understood and agreed on the elements of Count One that were required to be proven at trial, that he understood the maximum punishment that could be imposed on him, that he was satisfied with Ms. Calvert's representation of him, or that there was a factual basis for his plea. He argues now that he should be allowed to withdraw his plea because he admitted only to aiding and abetting two individuals not named in the indictment. The indictment states only that Philpot and Reese committed the robbery of the Waffle House, “aided and abetted by each other, ” and does not allege that any other individuals participated in the robbery.

         At the plea hearing, the Government laid out the facts it was prepared to prove at trial, including that Philpot and Reese entered the Waffle House, brandished firearms at employees, took personal property from employees and the restaurant, fled the scene in a vehicle, and upon crashing the vehicle, fired weapons at police officers. (July 31, 2017, Plea Hearing [209] (“Tr.”) at 29:7-30:25). When asked by the Court whether Philpot admitted to the conduct described, he objected, stating that he was the getaway driver for the robbery and remained in the car with Reese while two individuals-other than Reese-robbed the restaurant:

COURT: So are you saying you don't admit you were in the Waffle House?
PHILPOT: No, sir.
COURT: And where were you?
PHILPOT: I was inside of the car driving.
COURT: Did you know that the crime was going to be -- that the Waffle House was going to ...

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