United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, Chief Judge.
Defendant Scott Thompson filed a motion in limine relating to a "withdrawn guilty plea, including the Plea Agreement, Factual Basis Statement, plea colloquy, statements made [by Mr. Thompson] in the course of the preparation of the Presentence Report and any other evidence referencing the guilty plea." (Docket 126). The government does not oppose defendant's motion, unless Mr. Thompson testifies at trial inconsistent with the statements made during the plea hearing. (Docket 130). In that event, the government will seek to impeach Mr. Thompson's trial testimony. Id. at p. 1. For the reasons stated below, the defendant's motion in limine is granted.
On February 24, 2012, Mr. Thompson entered into a plea agreement with the government to plead guilty to count II of the indictment. (Docket 42 at p. 2 ¶ C). Count II of the indictment charged:
On or about June 23, 2009, at Rapid City, in the District of South Dakota, the defendant, Scott Thompson, made and presented a claim, in a matter within the jurisdiction of a department or agency of the United States, namely, upon the National Science Foundation, that is that after the grant was approved, in the initial request for funding from the National Science Foundation through the Small Business Innovative Research and Small Business Technology Transfer Programs, Scott Thompson claimed Jing Li was employed as the Principal Investigator, that Jing Li's primary employment was with Isosceles LLC and he would continue to conduct the research proposed in the Initial Proposal to the National Science Foundation and that he was available at that time to perform the proposed work, knowing those claims were false in that Jing Li was not an employee of Isosceles LLC, could not continue working on the research and was not available to perform the proposed work, all in violation of 18 U.S.C. § 287.
(Docket 1 at p. 2.).
On March 1, 2012, the court conducted a change of plea hearing. (Docket 45). At the hearing, the court accepted Mr. Thompson's guilty plea to count II of the indictment. (Docket 107 at pp. 30:22-31:7). On June 15, 2012, Mr. Thompson filed a motion to withdraw his guilty plea. (Docket 50). "[Mr. Thompson] wishes to withdraw his plea to knowingly making a false statement in the June 23, 2009[, ] Request since on that date, he believed Li would be so employed in the immediate future by the Award date, and that the statement in the Request was therefore true." Id. at p. 3 ¶ 4. On June 15, 2012, the court held a hearing on Mr. Thompson's motion to withdraw the guilty plea. The court orally granted defendant's motion to withdraw his guilty plea. (Docket 106 at p. 18:14-15). A written order granting the motion to withdraw guilty plea was filed that same day. (Docket 56).
Mr. Thompson argues his guilty plea was an "unknowing" plea and any testimony regarding his plea of guilty to count II must be excluded at trial. (Docket 127 at pp. 3-17). At the time Mr. Thompson withdrew his guilty plea, the court did not expressly make a finding Mr. Thompson's guilty plea was an "unknowing" plea. That is the focus of defendant's motion in limine .
"To be valid, a guilty plea must represent a voluntary and intelligent choice among the alternative courses of action open to the defendant, ' and the defendant must possess an understanding of the law in relation to the facts.' " Wilkins v. Bowersox , 145 F.3d 1006, 1015 (8th Cir. 1998) (quoting North Carolina v. Alford , 400 U.S. 25, 31 (1970) and McCarthy v. United States , 394 U.S. 459, 466 (1969)). "A defendant must enter into a plea agreement and waiver knowingly and voluntarily for these agreements to be valid." United States v. Andis , 333 F.3d 886, 890 (8th Cir. 2003). "There are many ways in which a... [plea] agreement, or aspects of an agreement, could be entered into without the requisite knowledge or voluntariness." Id.
The Federal Rules of Criminal Procedure permit a defendant to 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). Evidence of a guilty plea which is subsequently withdrawn and any statement made in the course of any plea proceedings are not generally admissible against the defendant who made the plea. See Fed.R.Evid. 410(a)(1). One exception to this general rule permits a defendant's statement to be admissible "in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present." Rule 410(b)(2). "Under Rule 410, statements made in the course of plea negotiations are inadmissible against the defendant. This right of the defendant, however, is waivable by agreement, unless there is some affirmative indication that the agreement was entered into unknowingly or involuntarily.' " United States v. Quiroga , 554 F.3d 1150, 1154 (8th Cir. 2009) (citing United States v. Young , 223 F.3d 905, 909-10 (8th Cir. 2000) (quoting United States v. Mezzanatto , 513 U.S. 196, 210 (1995)).
At the change of plea hearing, Mr. Thompson and his attorney engaged in the following colloquy with the court about the factual basis statement supporting count II.
THE COURT: There's no doubt you made a false claim? [Mr. Thompson]: It was not intentional, but I made one.
THE COURT: Is the claim you made to the National Science Foundation material to their decision as to whether or ...