United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendant Jason Philpot's
(“Philpot”) Motion to Withdraw Guilty Plea ;
Pro Se Motion for Leave to File Pro Se
Supplemental Brief in Support of Motion to Withdraw Guilty
Plea ; Pro Se Motion to Produce Trial
Transcript ; Motion for New Trial and Supplemental Brief
in Support of Motion to Withdraw Plea ; and Pro
Se Motion to File Supplemental Briefs in Support of
Counsel's Motion .
January 27, 2015, a grand jury in the Northern District of
Georgia returned a five-count indictment  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.
31, 2017, Philpot pled guilty to Count One. (). 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.
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.
(). The jury acquitted Reese on the counts alleged
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 , 
(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.
August 23, 2017, the Court denied  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.
September 12, 2017, Philpot filed further pro se
motions including a Motion to Produce Trial Transcripts
, Motion to Withdraw Guilty Plea , and Motion for
Judgment of Acquittal  (collectively, “Second
September 19, 2017, the Court denied the Second Post-Trial
Motions also because Philpot was represented by Ms. Calvert
when the motions were filed. ().
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. (; ). Philpot was granted an extension of
time in which to re-file his post-trial motions. ().
November 6, 2017, Philpot filed his Motion to Withdraw Guilty
Plea . 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.” ( 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.
November 17, 2017, the Court, at the request of Mr.
Strongwater, granted Philpot a second extension of time to
file post-trial motions. ().
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 . 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.
December 18, 2017, Philpot filed his Motion for New Trial and
Supplemental Brief in Support of Motion to Withdraw Plea
. 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.” ( 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.
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.” (
January 22, 2018, Philpot also filed his Pro Se
Motion to File Supplemental Briefs in Support of
Counsel's Motion . 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.
The Pro Se Motions
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.
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) (“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.
Motion to Withdraw Guilty Plea
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).
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.
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
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  (“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 ...