USA v. BENSON, et al.

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
UNITED STATES OF AMERICA,
V .
RAHSHJEEM BENSON,
DEFENDANT
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CRIM . NO. 2:19- CR-122-DBH-01
DECISION AND ORDER ON DEFENDANT’S MOTION TO WITHDRAW PLEA
The defendant Rahshjeem Benson wants to withdraw his guilty plea. 	He
says that evidence came to light after his plea that casts doubt on a key
government witness’s character for truthfulness. 	He argues that this evidence
offers him a new defense and constitutes a “fair and just reason” for allowing
him to withdraw his plea pursuant to Federal Rule of Criminal Procedure
11(d)(2)(B). However, he has not retracted his admission at the plea hearing that
he is, in fact, guilty of the charged offenses. 	And even if the government had
possessed the new evidence before the plea hearing (it did not), the defendant
would not have been entitled to it at that time. For the reasons described below,
I D ENY the defendant’s motion to withdraw his plea. Since my decision would be
the same if all the facts were as the defendant claims them to be, I also DENY his
motion for an evidentiary hearing.
P ROCEDURAL HISTORY
Rahshjeem Benson and a co-defendant were indicted in June 2019 on
three counts related to a scheme to apply for bank loans using personally
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identifying information belonging to other people. Indictment at 1-2 (ECF No. 3).
The government filed a superseding indictment against Benson and his co-
defendant on October 24, 2019, adding two more charges. 	See Superseding
Indictment (ECF No. 64). A week later (and two weeks before trial was scheduled
to start), Benson pleaded guilty to four of the charges; the government agreed to
drop the remaining count. 	Minute entry for plea hearing (ECF No. 86); Plea
agreement (ECF No. 85).
Days before it filed the Superseding Indictment, the government provided
Benson with material that included a letter from a key government witness to
the witness’s attorney. Mot. to Withdraw Plea ¶¶ 10-12 (ECF No. 122). In it, the
witness alleged that while they were both on a jail transport van in September,
Benson threatened the witness with violence if the witness provided information
against him. 	Id. ¶ 12. 	Benson requested audio and video recordings from the
van, but they apparently had been destroyed. Id. ¶ 13. He says he pleaded guilty
to the Superseding Indictment “[b]ased in part on the potentially inflammatory
‘evidence’ from [the witness] and in part on the far more serious charges flowing
from the superseding indictment.” 	Id. ¶ 14. 	The Presentence Report applied a
two-level enhancement for obstruction of justice and omitted the three-point
reduction for acceptance of responsibility on account of the van incident. 	Rev.
PSR ¶¶ 12, 22, 25, 26. 	Benson denied making any threat, and his lawyer then
took steps to investigate further. 	At the presentence conference on February 5,
2020, I learned that interviews of the Sheriff’s deputies who were in the van with
Benson and the witness were scheduled for the next day.
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The prosecutor, defense attorney, and an investigator interviewed the two
deputies. Mot. ¶ 16. Neither deputy remembered hearing or seeing any threat—
although, given the barriers built into the van and the noise of the vehicle, it is
not clear whether they could have. 	Id. at 7-8 (quoting excerpts of interview
summaries). 	Benson has characterized the interviews as “plainly exculpatory”
concerning the alleged threat, id. at 7, and “totally contradict[ing]” the witness’s
letter to the witness’s attorney, Def.’s Sent. Mem. at 5 (ECF No. 111), whereas
the government says they were “inconclusive,” Gov’t’s Opp’n at 6 (ECF No. 125).
In any event, following the interviews, the government withdrew its support for
adding the obstruction enhancement and proposed restoring the acceptance
reduction. 	Gov’t’s Sent. Mem. at 2-3 (ECF No. 112).
Benson has not yet been sentenced.1 	On April 30, he filed this motion to
withdraw his guilty plea. 	He argues that the interviews with the Sheriff’s
deputies “could cast serious doubt on the credibility of the government’s main
witness,” and thereby offer him a defense he did not have at the time of his plea.
Mot. at 6; see also Reply at 2 (ECF No. 126) (“There is no way that Mr. Benson
would 	have 	pleaded 	guilty 	on 	October 	31, 	2019 	had 	he 	known—as 	the
government 	knew 	or 	should 	have 	known 	at 	this 	time—that 	[the 	witness]
fabricated information about him in September 2019.”). The government resists
the motion, arguing that newly available attacks on a witness’s credibility are
1 Sentencing was scheduled for May 27 (ECF No. 118), but the hearing was cancelled due to the
ongoing coronavirus emergency. 	Notice of cancelled hearing (ECF No. 123); see also D. Me.
General Order 2020-5. A new hearing date has not yet been set.
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not sufficient grounds for withdrawing a guilty plea and that Benson has not
claimed that his plea was involuntary or that he is innocent. 	Opp’n at 9-12.
A NALYSIS
Benson brings his motion under Federal Rule of Criminal Procedure
11(d)(2)(B). 	The rule permits a defendant to withdraw a guilty plea “after the
court accepts the plea, but before it imposes sentence if . . . the defendant can
show a fair and just reason for requesting the withdrawal.” 	Fed. R. Crim. P.
11(d)(2)(B).
The First Circuit explains that “[a] defendant has no absolute right to take
back his guilty plea before sentencing. Instead, he must persuade the trial court
that there’s a ‘fair and just reason.’” 	United States v. Gonzalez-Arias, 946 F.3d
17, 28 (1st Cir. 2019). 	I must consider several factors. 	“Most critical[ ]” is
whether the plea was “voluntary, knowing, and intelligent.” 	Id. 	“The other
factors are the defendant’s reasons for withdrawal; the timing of the request;
whether he credibly claims innocence; and whether unwinding the plea would
be unfair to the government.” 	Id.; see also United States v. Flete-Garcia, 925
F.3d 17, 24 (1st Cir. 2019) (“A court’s scrutiny of a plea-withdrawal motion must
take into account the totality of the relevant circumstances. 	This canvass
includes 	consideration 	of 	whether 	the 	plea 	was 	voluntary, 	intelligent, 	and
knowing when tendered; the strength of the reason(s) proffered in support of the
motion to withdraw; the timing of the request; and the force of any claim of actual
innocence.”). 	Analyzing those factors demonstrates that Benson has not shown
a “fair and just reason” for withdrawing his plea.
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Voluntary, Knowing, and Intelligent
The 	First 	Circuit 	has 	said 	the 	“voluntary, 	knowing, 	and 	intelligent”
requirements constitute the “core concerns” of Rule 11 and “are ‘the most
important factors to consider’ on a motion for plea withdrawal.” Gonzalez-Arias,
946 F.3d at 28 (quoting United States v. Isom, 580 F.3d 43, 52 (1st Cir. 2009)).
The 	record 	shows 	that 	Benson’s 	plea 	here 	was 	“voluntary, 	knowing, 	and
intelligent.”
At the plea hearing, I adhered to the requirements of Rule 11(b), including
ensuring that Benson understood the charges against him and their potential
penalties, Hr’g Tr. at 4:24-8:9 (ECF No. 124), that he was aware of his trial rights
and knew he would give up those rights by pleading guilty, id. at 10:7-12:1, and
that there was a factual basis for his guilty plea, id. at 13:10-20. 	“Strict
compliance with Rule 11 is quite often dispositive in determining whether a
defendant has knowingly and voluntarily entered a guilty plea.” 	United States
v. Austin, 948 F.2d 783, 787 (1st Cir. 1991). 	Benson does not argue that he
misunderstood or mistakenly entered his plea, and he admits “[t]here is no
question” that he “was not pressured into pleading guilty.” 	Reply at 1.
In short, Benson’s guilty plea was voluntary, knowing, and intelligent.
Reasons for Withdrawal
The central claim of Benson’s motion—the new evidence concerning the
government witness’s character for truthfulness—fits under the next factor, the
“defendant’s reasons for withdrawal.” 	Benson argues that because he now has
impeachment material calling the witness’s truthfulness into question, evidence
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he did not have when he pleaded guilty, he should essentially get a do-over and
be permitted to go to trial.
Benson points to no evidence that, at the time he pleaded guilty, the
government possessed any information undermining the witness’s credibility
that it did not turn over to Benson. 	Benson argues that the government, before
his guilty plea, should have “confirm[ed] the veracity of [the witness]’s allegations
with the [Sheriff’s] deputies rather than simply taking [the witness] (a convicted
felon) at [the witness’s] word.” 	Mot. at 6-7; see also Reply at 2 (claiming the
government 	“should 	have 	known” 	before 	his 	guilty 	plea 	that 	the 	witness
“fabricated 	information”). 	He 	advances 	no 	authority 	for 	that 	proposition.
Moreover, a defendant is not entitled to witness impeachment material at the
pleading stage. United States v. Ruiz, 536 U.S. 622, 629 (2002) (“We must decide
whether the Constitution requires . . . preguilty plea disclosure of impeachment
information. 	We conclude that it does not.”). 	A court may “accept a guilty plea,
with its accompanying waiver of various constitutional rights, despite various
forms of misapprehension under which a defendant might labor,” including
when the defendant “misapprehended the quality of the State’s case.” Id. at 630
(quoting Brady v. United States, 397 U.S. 742, 757 (1970)). 	The First Circuit
has explained that “the right memorialized in Brady [v. Maryland, 373 U.S. 83
(1963) 	concerning 	disclosure 	of 	information 	by 	the 	government] 	is 	a 	trial
right . . . . 	Ruiz 	teaches 	that 	Brady 	does 	not 	protect 	against 	the 	possible
prejudice that may ensue from the loss of an opportunity to plea-bargain with
complete knowledge of all relevant facts. 	This makes good sense: when a
defendant chooses to admit his guilt, Brady concerns subside.” United States v.
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Mathur, 624 F.3d 498, 507 (1st Cir. 2010). When Benson pleaded guilty, he was
foregoing his trial rights, including the right to see impeachment material. 	In
other words, he was giving up his chance to test the strength of the government’s
case. 	The fact that he later discovered information he might have used at trial2
does not constitute a good reason for withdrawing his guilty plea.
Timing
“The timing of a motion to withdraw a guilty plea is important . . . because
it is ‘highly probative of motive.’” 	United States v. Fernández-Santos, 856 F.3d
10, 18 (1st Cir. 2017) (quoting United States v. Doyle, 981 F.2d 591, 595 (1st
Cir. 1992)); see also id. (“While an immediate change of heart may well lend
considerable force to a plea withdrawal request, a long interval between the plea
and the request often weakens any claim that the plea was entered in confusion
or under false pretenses.”). 	The First Circuit has “previously found a delay of
only thirteen days weakened a defendant’s motion to withdraw a guilty plea.” Id.
“The rule of thumb is that the longer a defendant waits before moving to
withdraw his plea, the more potency his motion must have in order to gain
2 Benson argues “that a jury would consider such information proffered from two law
enforcement officers as compelling exculpatory evidence, i.e., fabricated information about a co-
defendant as [that person] met with the government as a cooperating witness.” 	Mot. at 9. 	I
doubt Benson could have introduced at trial the interviews with the deputies, as these appear to
constitute prohibited “extrinsic evidence” offered “to prove specific instances of a witness’s
conduct in order to attack . . . the witness’s character for truthfulness.” 	Fed. R. Evid. 608(b);
see also United States v. Tse, 375 F.3d 148, 166-67 (1st Cir. 2004) (affirming district court’s
decision to allow the defendant to question a prosecution witness about allegedly false
statements he made on an employment application—because those questions went to the
witness’s character for truthfulness—while refusing to allow the defendant to refresh the
witness’s memory with the application itself, which was extrinsic evidence prohibited by Rule
608(b)). Although Benson might have been able to cross-examine the witness over whether the
witness falsely accused him of a threat, that would have been a dubious strategy since the
witness would be free to reiterate that the threat occurred, and Benson would not be able to
introduce the Sheriff’s deputies’ interviews to contradict the testimony.
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favorable consideration.” United States v. Parrilla-Tirado, 22 F.3d 368, 373 (1st
Cir. 1994).
Here, 	Benson 	waited 	nearly 	three 	months 	after 	learning 	of 	the 	new
evidence and six months after pleading guilty before filing his motion to withdraw
his guilty plea. 	Instead of immediately filing this motion, his first effort was to
find a way to discredit the government witness so as to avoid the obstruction of
justice enhancement and the loss of acceptance of responsibility in the Guideline
calculations. 	On that effort, he was successful. 	Only after he saw the severity
of the government’s sentencing recommendation did he move to withdraw his
guilty plea. That delay (and sequence) would normally be long enough to weaken
his motion. 	But he explains that some of that delay was caused by “many
discussions” 	with 	the 	government 	about 	the 	consequences 	of 	the 	deputy
interviews. 	Reply at 3. 	And he cites the ongoing coronavirus emergency, which
began disrupting activities in mid-March. 	Although his explanations for the
timing are doubtful, the current pandemic has upended all calculations. Under
the circumstances, I choose not to make his delay a factor in my ruling.
Credible Claim of Innocence
“A defendant must put forward ‘factual contentions’ that create a ‘legally
cognizable defense to the charges, otherwise he has not effectively denied his
culpability,’ 	and 	the 	district 	court 	may 	deny 	the 	motion 	to 	withdraw.”
Fernández-Santos, 856 F.3d at 19 (quoting United States v. Ramos, 810 F.2d
308, 312 (1st Cir. 1987)). 	Here, Benson has not claimed that he is innocent.
Instead, he argues that the new evidence about the government witness’s
“credibility 	unquestionably 	raises 	a 	‘legally 	cognizable 	defense’ 	and 	the
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government may not be able to meet its burden to prove beyond a reasonable
doubt that Mr. Benson is guilty of the charged crimes. 	This is tantamount to a
‘colorable assertion of legal innocence.’” 	Reply at 5. 	I disagree.
At the plea hearing, Benson pleaded guilty to four crimes and confirmed
that he “actually committed those crimes.” 	Hr’g Tr. at 9:22-24 (ECF No. 124);
see also id. at 13:10-15 (stating there was nothing in the Prosecution Version
(ECF No. 84) that he disagreed with and it was all true to his knowledge).
Benson’s motion does not refute his earlier admission that he is in fact guilty of
those crimes. 	In his interview with the Probation Officer, as he sought a three-
level reduction for acceptance of responsibility, he “re-affirmed the prosecution
version filed in this case and expressed remorse for his actions.” Rev. PSR ¶ 13.
Instead, Benson argues that the new information puts the key witness’s
credibility in doubt and that, if his plea is withdrawn, “credibility will be front
and center throughout the trial” because “the government’s case hinges on [the
witness]’s ability to link Benson and [his co-defendant] with the other evidence.”
Mot. at 5. 	This argument mirrors the claim in United States v. Merritt, where
the defendant said that new evidence of a key witness’s lack of credibility gave
him a defense that was not available at the time of his plea, so it should entitle
him to withdraw the plea. 	755 F.3d 6, 10-11 (1st Cir. 2014) (new evidence
showed that chemist who tested defendant’s purported drugs had committed a
pattern of fraud in other cases). 	The First Circuit dismissed this argument,
noting that the defendant did not point to any evidence that affirmatively
supported his new theory that the drugs he was charged with were counterfeit,
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and (most importantly) that the defendant “never retreated” from his admission
at the plea hearing that he was, in fact, guilty. Id. at 11. The same is true here.
Prejudice to the Government
The last factor comes into play only if “the defendant makes a prima facie
showing of an entitlement to relief.” 	United States v. Flete-Garcia, 925 F.3d 17,
24 (1st Cir. 2019); see also Merritt, 755 F.3d at 9 (“If the court concludes that
the balance of all the relevant factors tilts in favor of the defendant, then—and
only then—should the court proceed to factor in the prejudice (if any) that the
government would suffer were the court to allow the motion to withdraw.”). Since
Benson has not made a prima facie showing, I do not assess prejudice.
Evidentiary Hearing
Benson has requested an evidentiary hearing, but no hearing is necessary
in this case. “In connection with an attempted plea retraction, a district court is
required to grant a motion for an evidentiary hearing only if, at a bare minimum,
the defendant alleges facts which, if taken as true, would entitle him to relief.”
United States v. Chambers, 710 F.3d 23, 30 (1st Cir. 2013); see also United
States v. Pulido, 566 F.3d 52, 57 (1st Cir. 2009) (“[A]n evidentiary hearing on a
motion to withdraw a guilty plea is required when a defendant alleges facts
which, if taken as true, would entitle him to relief.”). 	Here, even if Benson’s
assertions are true—that the witness lied about Benson making a threat, casting
doubt on the witness’s credibility—that would not be enough to allow Benson to
withdraw his plea.
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CONCLUSION
I congratulate defense counsel on serving his client well by pursuing the
question 	of 	what 	happened 	in 	the 	prison 	van 	and 	thereby 	reducing 	the
government’s position on the defendant’s total offense level by five. 	That has a
major effect on the Sentencing Guideline range. 	I also understand that Benson
and 	his 	lawyer 	are 	surprised 	and 	disappointed 	by 	the 	severity 	of 	the
government’s requested sentence. 	I have not yet determined what the sentence
will be and will not do so until the sentencing hearing. 	But Benson’s original
guilty plea was “voluntary, knowing, and intelligent.” 	And Benson has not
retracted 	his 	admission 	that 	he 	is 	guilty 	of 	the 	charges. 	Under 	these
circumstances, the discovery of new impeachment material is not enough to
constitute a “fair and just reason” for withdrawing his guilty plea. 	For these
reasons, I DENY the defendant’s motion and DENY his request for an evidentiary
hearing.
SO ORDERED.
D ATED THIS 26 TH DAY OF MAY , 2020
/S/D. BROCK HORNBY
D. BROCK H ORNBY
UNITED STATES DISTRICT JUDGE
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