The opinion of the court was delivered by: United States District Judge William Q. Hayes
The matter before the Court is the motion to withdraw his guilty plea filed by the Defendant Carlos Cosme. (ECF No. 1906)*fn1
On July 22, 2010, Defendant Carlos Cosme was arrested pursuant to a Complaint filed in this case.
On July 23, 2010, Defendant appeared before a Magistrate Judge and Donald Levine was appointed to represent the Defendant.
On July 29, 2010, the federal grand jury returned a one-count indictment charging Defendant Cosme and forty-two other defendants with conspiring to conduct enterprise affairs through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d). The indictment alleged that the defendants and "others known and unknown to the grand jury, were members and associates of an organization known as the 'Fernando Sanchez Organization' ('FSO'), whose members engaged in, among other things, murder, conspiracy to commit murder, attempted murder, kidnaping, conspiracy to kidnap, attempted kidnaping, robbery, conspiracy to commit robbery, attempted robbery, importation of controlled substances into the United States from Mexico, conspiracy to import controlled substances into the United States from Mexico, distribution of controlled substances, conspiracy to distribute controlled substances, money laundering and conspiracy to launder money." (ECF No. 82 at 3-4).
On September 30, 2010, the Court granted the Defendant Cosme's motion to declare the case complex finding that:
The investigation which led to the RICO conspiracy charge in this case involved law enforcement officers from several jurisdictions and the court-authorized interception of over forty-five telephone facilities over a five month period, which resulted in the interception of over 20,000 conversations. To date, the Government has produced in discovery approximately 103,000 pages of documentary material (both written and images) and over two hundred compact disks. The compact disks contain video footage of various events alleged in the indictment and over 30,000 intercepted telephone calls, most of which are in the Spanish language. (ECF No. 315 at 3).
On February 4, 2011, the Court set a schedule for wiretap motion, substantive motions and a trial date for all defendants of February 7, 2012.
On April 28, 2011, the grand jury returned a two-count superseding indictment. The superseding indictment charged the forty-three defendants, including Defendant Cosme, in Count 1 with conspiring to conduct enterprise affairs through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d) as charged in the original indictment. The superseding indictment charged defendants, including Defendant Cosme, in Count 2 with conspiring to distribute cocaine, marijuana and methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(vii), 841(b)(1)(A)(viii) and 846.
On May 31, 2011, Defendant Cosme and other defendants filed motions to suppress wiretap evidence.
On August 24, 2011, the Court issued an order denying the motions to suppress wiretap evidence.
On August 29, 2011, Defendant Cosme and other defendants filed substantive motions.
On November 2, 2011, the Court issued an order ruling on the substantive motions.
On December 22, 2011, the grand jury issued a two-count second superseding indictment. The second superseding indictment charged the Defendant Cosme and others defendants in Count 1 with conspiring to conduct enterprise affairs through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d) as charged in the original indictment. The second superseding indictment charged the Defendant Cosme and other defendants in Count 2 with conspiring to distribute cocaine, marijuana and methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), 841(b)(1)(A)(vii), 841(b)(1)(A)(viii) and 846.
On January 5, 2012, Defendant Cosme filed a motion to continue the trial date set for February 7, 2012. The Court denied the motion to continue the trial date.
On February 1, 2012, the Court granted a renewed motion to continue the trial date filed by Defendant Cosme. The Court reset the trial at the request of Defendant Cosme for June 5, 2012.
On May 21, 2012, Defendant Cosme signed a Plea Agreement. In the Plea Agreement, Defendant agreed to plead guilty to Counts 1 and 2 of the Second Superseding Indictment and the parties agreed to jointly recommend that the Court impose a sentence of 235 months. Defendant initialed each page of the Plea Agreement and signed the Plea Agreement on the last page along with his counsel and counsel for the Government. Directly above the Defendant's signature, the Plea Agreement stated: "IN ADDITION TO THE FOREGOING PROVISIONS TO WHICH I AGREE, I SWEAR UNDER PENALTY OF PERJURY THAT THE FACTS IN THE 'FACTUAL BASIS' SECTION ARE TRUE." (ECF No. 1703 at 20).
In the plea agreement, Defendant stated that he understood the elements of the offense and the penalties of the crime to which he was pleading guilty. (ECF No. 1703 at 4). The FACTUAL BASIS of the Plea Agreement stated:
Defendant has fully discussed the facts of this case with defense counsel. Defendant has committed each of the elements of the crime, and admits that there is a factual basis for this guilty plea. Defendant stipulates and agrees that the facts set forth in the numbered paragraphs below occurred. Defendant also stipulates and agrees that if this case were to proceed to trial, the Government could prove the following facts beyond a reasonable doubt by competent and admissible evidence:
1. Between the time period of November 2008 and July 22, 2010, defendant Carlos Cosme entered into an agreement with other individuals named in the above-noted charge to participate in the affairs of the Fernando Sanchez Organization (the "FSO"), an "association-in-fact" enterprise as defined in Title 18, United States Code, Section 1961(4). Defendant Carlos Cosme agreed that a member of the FSO would commit at least two racketeering acts.
2. During the time period noted above, members of the FSO engaged in a pattern of racketeering activity, to include the commission of the following crimes: murder; conspiracy to commit murder; attempted murder; kidnaping; conspiracy to kidnap; attempted kidnaping; robbery; conspiracy to commit robbery; attempted robbery; importation of controlled substances into the United States from Mexico; conspiracy to import controlled substances into the United States from Mexico; distribution of controlled substances; conspiracy to distribute controlled substances; money laundering; and conspiracy to launder money. The FSO's pattern of racketeering activity affected interstate and foreign commerce. During the time period relevant to this guilty plea, the FSO operated in the Southern District of California and elsewhere.
3. Pursuant to his agreement to participate in the affairs of the FSO, defendant Carlos Cosme was aware that the FSO's racketeering activities included the commission of the crimes specified above in the preceding paragraph, including the crimes of: (a) conspiracy to import and distribute over 50 grams (pure) of methamphetamine; and (b) conspiracy to commit murder.
4. The FSO constitutes an ongoing organization whose members function as a continuing unit for the common purpose of achieving the objectives of the FSO, which include: (a) enriching the members of the FSO through, among other things, the importation and distribution of illegal narcotics in the United States, committing robberies, the kidnaping of individuals in the United States and Mexico, and "taxing" individuals involved in criminal activities within the geographical areas controlled by the Enterprise, to include Tijuana, Mexico, and areas of San Diego, California;
(b) keeping rival traffickers, potential informants, witnesses against the FSO, law enforcement, the media, and the public-at-large in fear of the FSO, and in fear of its members and associates through threats of violence and violence; (c) preserving, protecting and expanding the power of the FSO through the use of intimidation, violence, threats of violence, assaults and murders; (d) preserving the continuity of membership in the FSO by threatening members, associates and individuals with knowledge of the FSO's illegal activities wishing to leave the FSO with violence, assault and murder; and (e) preserving the ongoing viability of the FSO by assaulting law enforcement officers attempting to arrest FSO members, bribing public officials to secure the release of arrested FSO members and making payments to public officials in order to gain access to confidential law enforcement information adverse to the interests of the FSO.
5. In furtherance of his agreement to participate in the affairs of the FSO, defendant Carlos Cosme committed numerous racketeering offenses, including: (a) conspiracy to import and distribute more than 50 grams (actual) of methamphetamine and (b) conspiracy to commit murder.
6. Given his personal participation in the affairs of the FSO, defendant Carlos Cosme knew that members of the FSO would, during the time frame of the above-noted conspiracy, import and distribute more than 50 grams of actual methamphetamine. Further, defendant Carlos Cosme personally performed numerous overt acts in furtherance of a conspiracy to commit murder, including the recruitment of co-defendant Jose Ortega Nuno to run a "hit squad" on behalf of defendant Cosme.
7. In furtherance of his agreement to participate in the affairs of the FSO, during February 2010, defendant Cosme arranged to sell a confidential informant ("CI") 2 pounds of methamphetamine in Tijuana, Mexico. Defendant Cosme knew that the methamphetamine would thereafter be imported into the United States from Mexico. Once 1 3/4 pounds (1/4 pound was seized at the border by U.S. law enforcement officials) of methamphetamine (758 grams of actual methamphetamine) had been successfully imported into the United States, the CI paid defendant Cosme for the methamphetamine. (ECF No. 1703 at 5-8). These factual admissions are contained on Pages 5, 6, 7 and 8 of the Plea Agreement. Defendant's initials appear at the bottom right of each page as follows: ("Def. Initials CC )".
On May 25, 2012, Defendant appeared before this district court judge for a change of plea to the second superseding indictment pursuant to a Plea Agreement. At the Rule 11 colloquy, Defendant, represented by counsel, acknowledged that he had been sworn under penalty of perjury and that he could be prosecuted for perjury if he failed to provide truthful answers in this proceedings. The Court stated:
THE COURT: A plea agreement has been provided to me which appears to have your initials in the lower right-hand corner of the agreement, and it appears to be signed by you. Did you, in fact, initial each page of the agreement and sign your name on the last page of the agreement or print your name?
DEFENDANT: Yes, Your Honor.
THE COURT: The agreement also includes a forfeiture addendum. Did you, in fact, review each page of that agreement with your counsel, and did you print your name on the last page of that agreement as well, sir?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you had an opportunity to review the agreement, both the agreements, the plea agreement -- when I refer to the "plea agreement," I am referring to both, the agreement that discusses the criminal conduct as well as the forfeiture agreement. Do you understand?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Have you had an opportunity to review those agreements paragraph by paragraph and line by line with your counsel?
THE DEFENDANT: Yes, Your Honor.
THE COURT: At the time you reviewed the agreements were they translated to you in the Spanish language?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Do you have any questions about any of the terms of the agreement? THE DEFENDANT: No, Your Honor.
THE COURT: Have you had sufficient time to discuss your case and to discuss the agreement with your counsel?
THE DEFENDANT: Yes, I have had enough time. Yes, Your Honor.
THE COURT: Are you satisfied with the services of your counsel?
THE DEFENDANT: Yes, Your Honor. (ECF No. 1913-1 at 25-27).
The Court advised the Defendant of his right to a speedy and public trial by a jury, appointment of counsel at all stages of the proceedings, his privileges against self-incrimination, and his right to remain silent. Defendant acknowledged his rights and privileges and stated that he wished to waive his rights for the purpose of pleading guilty to the charges set forth in the second superseding indictment. The Court reviewed the elements of the charge in Count One and the elements of the charge in Count Two. Defendant stated that he understood that by admitting -- or pleading guilty to these offenses he will be admitting to each element of the offenses. The Court then reviewed each of the seven paragraphs of the factual basis for the plea contained in the Plea Agreement starting on page 5 of the plea agreement and continuing through page 8 of the plea agreement. The plea colloquy provided as follows:
THE COURT: Do you also -- you agree, sir, that between the time period of November 2008 and July 22nd, 2010, that you entered into an agreement with other individuals named in the charge to participate in the affairs of the Fernando Sanchez Organization in association, in fact, ...