Order Denying W-D of Plea

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
UNITED STATES OF AMERICA,
Plaintiff,
v.
DORIS E. NELSON,
Defendant.

NO. CR-11-159-RHW

ORDER DENYING
DEFENDANTS MOTION TO
WITHDRAW PLEA
Before the Court is Defendants Motion to Withdraw Guilty Plea, ECF No.
224. A hearing on the motion was held on J uly 11, 2014. Defendant was present
and was represented by J effry Finer and Elizabeth Kelley. The Government was
represented by J ill Bolton and Catitlin Baunsgard.
The Court has reviewed the briefing and Declarations submitted by
Defendant. No additional testimony was heard at the hearing.
ANALYSIS
The Court is mindful that it is required to liberally construe Fed. R. Cr. P.
11(d), which states:
A defendant may withdraw a plea of guilty or nolo contendere:
(1) before the court accepts the plea, for any reason or no
reason; or
(2) after the court accepts the plea, but before it imposes
sentence if:
(A) the court rejects a plea agreement under Rule
11(c)(5); or
(B) the defendant can show a fair and just reason for
requesting the withdrawal.
ORDER DENYING DEFENDANTS MOTION TO WITHDRAW PLEA ~ 1

Case 2:11-cr-00159-RHW Document 229 Filed 07/14/14

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Even so, as set forth in Rule 11, there is a standard; and this standard
requires the defendant to show a fair and just reason for requesting the withdrawal.
Without such a standard, pleas would be merely possible resolutions that would
permit a change of heart, depending on how things were playing out as the case
moved to the sentencing phase. See United States v. Rios-Ortiz, 830 F.2d 1067,
1070 (9th Cir. 1987) (Directing the district court to permit appellant to withdraw
his guilty plea merely because he changed his mind would undermine Rule 11s
purpose and reduce plea proceedings to a time-consuming formality with no
lasting effect.).
Ninth Circuit precedent has explained that fair and just reasons that meet
the Rule 11 standard include: inadequate Rule 11 plea colloquies; newly
discovered evidence; intervening circumstances; erroneous legal advice, or any
other fair and just reason for withdrawing the plea that did not exist when the
defendant entered her plea. United States v. McTiernan, 546 F.3d 1160, 1167 (9th
Cir. 2008).
Defendants brief lists three things learned after the entry of the plea that are
alleged to provide a plausible basis to believe that the plea would not have been
entered if these things had been known. These newly learned things are her ability
to retain counsel, assistance from Attorney Conrad Lysiak, and access to a hard
drive. Defendant also challenges the plea colloquy. See ECF No. 224 at 9-10.
(1) Plea Colloquy
As case law establishes, an inadequate plea colloquy can justify the
withdrawal of a plea. McTiernan, 546 F.3d at 1167. Defendants Motion, however,
says that: There is little doubt that the plea colloquy and plea procedures are valid
on their face. ECF No. 224 at 9. At oral argument, Counsel made similar
statements. The Courts review of the plea transcript bears out this statement.
Later in the briefing, Defendant suggests the plea colloquy was deficient,
asserting that her plea colloquy contains a less-than-clear acknowledgment as to


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the guilt on each count. Again, a review of the transcript reveals that the
Defendant stated under oath that she understood the specific events and the
various emails, phone calls, and other communications that were involved in the
particular counts. See ECF No. 203 at 10. The Court summarized the factual basis
for each type of count, i.e. wire fraud, mail fraud, and international money
laundering. She then pled guilty to each count. Both Defendant and Counsel stated
there was a factual basis for the pleas. After carefully reviewing the transcript, the
Court is confident the plea colloquy meets the requirements of Fed. R. Cr. P. 11
and is not a basis for Defendant to withdraw the plea.
(2) Newly Discovered Evidence or Intervening Circumstances
As set forth above, the Court must consider whether Defendant has shown
the existence of newly discovered evidence or intervening circumstances that
render plausible her claim that she would not have pled guilty if these things had
been known at the time. And that determination turns on Defendants credibility.
Defendant proffered in her Motion the following circumstances that were not
known to her until after she entered her guilty plea: (1) the ability to retain new
counsel; (2) the assistance of Attorney Conrad Lysiak; and (3) access to a hard
drive. See ECF No. 224.
a. Ability to Retain Counsel
Defendant states in her Declaration that she only learned after the plea that
she would be allowed to retain new counsel if her family could pay. ECF No. 224-
1 at 27 (I learned in mid-May I was allowed to change to paid lawyers if my
family was willing to help.). As a result, she hired current counsel who are
representing her on this Motion.
The Court finds this statement to be disingenuous for a number of
reasons. First, Defendant was arraigned in 2011 on the original Indictment and on
the Superseding Indictment in J anuary, 2014. At those proceedings, she
acknowledged she was advised of her right to retain her own counsel. See ECF


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Nos. 35, 154. Second, the record demonstrates that Defendant retained Carl
Oreskovich as her attorney in the criminal case until she was indicted. See ECF
No. 183 at 2. Further, she states in her Declaration at paragraph 11, I hired
Attorney Conrad Lysiak to represent me in this matter, referring to her
Washington SEC investigation, and also states in paragraph 21 that he was
available to her until November, 2013, ECF No. 224-1 at 23, 24. The record
demonstrates that Defendant had a good understanding that she had the ability to
retain counsel, if she could pay, prior to mid-May and prior to her entering her
guilty plea. The claim that she learned this fact only after her plea is not credible.
b. Assistance of Attorney Conrad Lysiak
Next, Plaintiff contends that Attorney Conrad Lysiak became available to
assist her after her plea. Implicit in this argument is that he was unavailable before
the plea. The record establishes, however, that he was available before the plea.
According to Defendants Declaration, Mr. Lysiak had been hired before the
indictment and was available to her until November, 2013. For over two years
after the Indictment, she had access to Mr. Lysiaks expertise. In his Declaration,
Lysiak states the reason that he was not available after November 2013 was
because he was not being paid. ECF No. 224-1 at 16. He does not mention a
lawsuit as the reason that he would not talk to Defendant. Id. Regardless of the
reasons for his unavailability after November 2013, his availability now results
from Defendants apparent current ability to pay fees. It is significant that Mr.
Lysiak has not appeared as counsel for Defendant although available.
Additionally, in her March 18, 2014 letter to the Court requesting new
counsel, ECF No. 183, Defendant did not ask the Court to appoint Mr. Lysiak as
her attorney. Instead, Defendant asked the Court to appoint Carl Oreskovich.
Notably, there is nothing in the letter about her needing access to Mr. Lysiak.
Also, Defendants argument rests on the theory that if she had access to Mr.
Lysiak at the time of her plea, she would not have pled guilty. Nothing in the


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record supports such a claim. Mr. Lysiak makes no statement about the wisdom of
the plea in his Declaration or that he would have advised against it. He is neither a
criminal lawyer nor a member of the CJ A panel. To make this argument the
Defendant would have to show that her lawyers were incompetent to defend this
case and therefore, needed a securities expert to give them guidance. However, in
her motion, Defendant does not question the competence or advice of appointed
counsel. Notably, her former counsel never asked the Court to appoint a securities
lawyer to assist them.
Finally, to the extent that she claims that she needed a securities lawyer,
Defendant does not have a right to have any particular lawyer. As she
acknowledged on two occasions when arraigned and from her own experience
hiring Mr. Oreskovich and Mr. Lysiak, she could hire a securities attorney if she
wanted one. The Court finds that this alleged change in circumstances did not
come into being after she plead guilty and that the availability of Mr. Lysiak after
November 2013 would not have changed the Defendants decision to plead guilty.
c. Access to a hard drive.
Defendant asserts that her access to a hard drive after the plea justifies
withdrawal of the plea. Her Declaration, at paragraphs 25 to 28, discusses the
significance to her of the access of the hard drive to her request to withdraw her
plea. ECF No. 224-1 at 25. The Court does not find credible Defendants
statements as to the significance of having access to the hard drive after the plea.
The inference is that Defendant learned of unspecified things when she looked at
the hard drive after the plea that she did not know before. The Court does not
believe this testimony. Current counsel acknowledges and former appointed
counsel stated that she had access to the hard drive before the plea was taken. She
also had access to the two Government expert reports and the A & M Report
before the plea, which she contends she compared to the documents on the hard


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drive after the plea.
1
In her letter to the Court, she describes working closely with
Mr. Hall (one of the financial experts) for over a year gathering investor files,
ordering missing bank statements and checks, and assisting in making sure that he
had access to everything. ECF No. 183 at 12. Her testimony in Court and her
letter to the Court establish that she had access to the information on the hard
drive before the plea, had become familiar with the financial records in assisting
the bankruptcy expert, and was not informed of new information when she decided
to look at the hard drive after the plea.
While not alleged as a reason to change the plea, in her arguments,
Defendant suggests that she is innocent of some of the charges, which is in itself
an admission that she is guilty of others. Even so, Defendant has not directed the
Court to any specific count in which she erroneously entered a plea and is in fact
innocent. For instance, the Court can conceive of a situation where the defendant
would challenge the plea to a particular count on a legal or factual basis. The
defendant could legally challenge a particular count on the basis of the statute of
limitations or jurisdiction, and could factually challenge a particular count by
saying that no communication was sent, or the recipient did not exist, or some
other evidence that would demonstrate that there might not be a factual basis for
the plea. In such a case, the Court would be in a position to reconcile her
statements at the plea colloquy with the proffered evidence, and possibly permit
Defendant to withdraw her plea on that particular count, or if appropriate, permit
all of the pleas to be withdrawn.
1
Defendant also indicates that she disagrees with her attorneys conclusion that the
other forensic report from the bankruptcy expert is cumulative. ECF No. 224 at 25.
Defendant is not alleging that she received ineffective assistance of counsel.
Moreover, this assertion reflects a disagreement over trial strategy, and would not
be a basis for withdrawing her plea.


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Here, Defendant has not identified any particular count for which legally or
factually there is not a basis for the guilty plea. Instead, at the plea hearing, she
and Counsel agreed there was such a factual basis. Defendants arguments are
speculative, at best.
(3) Conclusion
The Court has considered the evidence and argument in support of
Defendants Motion to Withdraw Plea. While not determinative, the Court
perceives that the timing of her earlier motion to appoint new counsel in March,
2014, and the present eleventh-hour motion to withdraw her plea are motivated by
a desire to put off the inevitable resolution of this case.
2
The Court does not find
Defendant credible in the claims made to justify the withdrawal of the plea. As
such, Defendant has not met her burden of showing fair and just reason for
withdrawal of the plea.
2
Additionally, although not a listed factor under Ninth Circuit precedent, courts in
other Circuits consider additional factors when exercising their discretion to
determine whether to grant a motion to withdraw. These factors include whether
the government would suffer prejudice if the withdrawal motion were granted;
whether the withdrawal would substantially inconvenience the court; and whether
the withdrawal would waste judicial resources. See e.g. United States v. Urias-
Marrufo, 744 F.3d 361, 364 (5th Cir. 2014). This case was indicted in November,
2011. The Court granted Defendants motions to continue a number of times
twice moving the trial out nearly a year for each request. Current defense counsel
represents that preparation for a new trial would take six months to a year.
Defendant plead guilty on the eve of trial, and the Governments witness lists
showed that fifty-one witnesses would be testifying, many traveling from
Colorado, Georgia, New Hampshire, Florida, Michigan, California, Idaho, British
Columbia, and Manitoba. ECF No. 175. The record reflects that over $400,000
was spent from CJ A funds for appointed counsel, investigation and experts before
the motion to withdraw plea. See ECF No. 192. The Court had set aside three
weeks in its calendar for trial, in addition to the significant pretrial preparation.
Many of these efforts would be repeated if Defendant were permitted to withdraw
her plea. These factors weigh against granting the motion to withdraw.


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Accordingly, IT IS HEREBY ORDERED:
1. Defendants Motion to Withdraw Guilty Plea, ECF No. 224, is DENIED.
2. The sentencing hearing set for J uly 30, 2014, is stricken.
3. The sentencing hearing is set for November 3, 2014, in
Spokane, Washington, at 9:00 a.m. Defendant should be prepared to enter custody,
if imposed, at that time.
4. Defendant is directed to file her specific objections to the Governments
Preliminary Order of Forfeiture on or before July 16, 2014, as directed at the J uly
7, 2014 hearing.
5. The Government shall file its response to Defendants objections on or
before July 30, 2014.
6. Defendants Motion to Continue Sentencing and Extend Deadlines, ECF
No. 207, is GRANTED.
7. On or before October 3, 2014, the parties shall file their sentencing
papers.
8. Defendants Motion to Expedite, ECF No. 223, is GRANTED.
IT IS SO ORDERED. The District Court Executive is hereby directed to
file this Order and provide copies to counsel.
DATED this 14th day of J uly, 2014.

/s/ Robert H. Whaley
ROBERT H. WHALEY
United States District J udge

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