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United States v. Christy

United States District Court, D. New Mexico

January 19, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD CHRISTY, Defendant.

          James S. Tierney Acting United States Attorney Holland S. Kastrin Assistant United States Attorney United States Attorney's Office Albuquerque, New Mexico Attorneys for the Plaintiff.

          Todd A. Coberly Coberly & Martinez, LLLP Santa Fe, New Mexico Attorneys for the Defendant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on the Defendant's Motion to Clarify Order Allowing Mr. Christy to Withdraw his Plea to Child Pornography Charge, filed June 15, 2017 (Doc. 308)(“Motion to Clarify”). The Court held a hearing on August 31, 2017. The primary issues are: (i) whether Defendant Edward Christy's Motion to Clarify is ripe; and (ii) whether, if Christy withdraws his guilty plea for a child pornography charge, the Plea Agreement's waiver of Christy's rights under rule 410 of the Federal Rules of Evidence (“rule 410 waiver”) binds Christy. The Court grants the Motion to Clarify and concludes that: (i) Christy's Motion to Clarify is ripe, because whether the rule 410 waiver is enforceable if Christy withdraws his guilty plea is important information that Christy needs to make a meaningful decision; and (ii) the rule 410 waiver will bind Christy if he withdraws his guilty plea and the United States prosecutes the Plea Agreement's lone child pornography charge.

         PROCEDURAL BACKGROUND

         In May 2010, a federal grand jury returned an Indictment, see Indictment, filed May 26, 2010 (Doc. 2), charging Christy with one count of transportation with intent to engage in criminal sexual activity, under 18 U.S.C. § 2423(a), and three counts of possession of matter containing visual depictions of minors engaged in sexually explicit conduct, under 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256. See Indictment at 1-3. These charges related to Christy's actions with a sixteen-year-old girl, which the Honorable Lourdes A. Martinez, United States Magistrate Judge describes in the Proposed Findings and Recommended Disposition, filed May 5, 2016 (Doc. 265)(“PFRD”). On September 30, 2011, Plaintiff United States of America filed an Information charging Christy with one count of Coercion and Enticement, under 18 U.S.C. § 2422(a), and one count of Child Pornography, under 18 U.S.C. §§ 2252(a)(4)(B), 2252(b)(2), and 2256. See Information at 1, filed September 30, 2011 (Doc. 193).

         Christy entered into a plea agreement with the United States as to both of the charges in the Information. See Plea Agreement at 2, filed September 30, 2011 (Doc. 195). In the Plea Agreement, Christy asserts:

I . . . knowingly possessed a matter containing any visual depiction that had been shipped and transported in interstate and foreign commerce and which was produced using materials which had been so shipped and transported, by any means, including by computer, the production of which involved the use of a minor engaging in sexually explicit conduct and is of such conduct. I possessed depictions of minors engaged in sexually explicit conduct on my Hewlett Packard HDX 16 16 Laptop, Serial Number CNF9241L65, with an internal Toshiba Hard Drive MK3255GSX, Serial Number 6981F9ZNS. I knew it was illegal for me to possess such images.

Plea Agreement ¶ 12, at 10. In the Plea Agreement, the United States and Christy stipulated to a sentence of 108 months imprisonment, see Plea Agreement ¶ 9(a), at 5, and Christy waived his right to appeal or collaterally attack his conviction or sentence for any reason other than ineffective assistance of counsel in negotiating or entering the plea agreement or its waiver provision, but he retained his right to appeal the Court's denial of his motion to suppress, see Plea Agreement ¶ 22, at 14-15. Christy also agreed:

Except under circumstances where the Court, acting on its own, fails to accept this plea agreement, the Defendant agrees that, upon the Defendant's signing of this plea agreement, the facts that the Defendant has admitted under this plea agreement as set forth above . . . shall be admissible against the Defendant under Federal Rule of Evidence 801(d)(2)(A) in any subsequent proceeding, including a criminal trial, and the Defendant expressly waives the Defendant's rights under the Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 with regard to the facts the Defendant admits in conjunction with this plea agreement.

Plea Agreement ¶ 12(b), at 11 (emphasis added)(“410 waiver”). On May 23, 2012, the Court accepted the parties' proposed stipulated sentence, imposed two concurrent prison terms of 108 months each, and imposed concurrent lifetime supervised release terms for each count. See Judgment at 2, filed August 17, 2012 (Doc. 226). At the sentencing hearing, and pursuant to the Plea Agreement, the United States requested and obtained an order of dismissal of the Indictment against Christy. See Order of Dismissal at 1, filed May 23, 2012 (Doc. 214).

         In October, 2015, Christy made the Motion Under 18 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, filed October 1, 2015 (Doc. 250)(“2255 Motion”). In his 2255 Motion, Christy raised the following arguments: (i) he is actually innocent of violating 18 U.S.C. § 2242(a); (ii) his convictions must be vacated because of violations of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174; (iii) prosecutorial misconduct infects his conviction; (iv) he was denied his right to reasonable bail under the Eighth Amendment of the Constitution of the United States of America; (v) his guilty plea was not knowing and voluntary; (vi) his guilty plea is void ab initio; (vii) his equal protection rights were violated; and (viii) the state and federal statutes under which he was prosecuted are void for vagueness. See First Motion at 2-3. In considering the Coercion and Enticement charge, Magistrate Judge Martinez noted that § 2422(a) requires the United States to prove two elements: (i) that Christy knowingly persuaded, induced, or enticed a Minor to travel in interstate commerce; (ii) to engage in any sexual activity for which any person can be charged with a criminal offense. See PFRD at 7. Magistrate Judge Martinez noted that the facts which establish the first element, enticing interstate travel, are uncontested, and that, as support for the second element, criminal sexual activity, the United States alleged that Christy could be charged with Criminal Sexual Penetration in the Second Degree (“CSP II”) pursuant to N.M. Stat. Ann. § 30-9-11(E)(5) (2009). PFRD at 7. That charge required proof that Christy engaged in “criminal sexual penetration perpetrated . . . in the commission of any other felony, ” and the “other felon[ies]” charged by the United States were Contributing to the Delinquency of a Minor, under N.M. Stat. Ann. § 30-6-3, and Unlawful Custodial Interference, under N.M. Stat. Ann. § 30-4-4(C). See PFRD at 7.

         The United States explains that, at the time Christy and the United States were negotiating and executing the plea agreement, “under the [United States'] theory of prosecution, the fact that [the minor] legally and factually consented to have sex with the Defendant did not matter because the sex was perpetrated in the commission of other felony offenses, thereby establishing that [Christy] could have been charged with CSP II.” United States' Response to Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 at 7, filed December 5, 2015 (Doc. 9)(“Response”). In April, 2014, however, the Supreme Court of New Mexico issued State v. Stevens, 2014-NMSC-011, 323 P.3d 901, and disapproved of earlier state cases that had supported this interpretation of the CSP II statute and “clarif[ied] that simply causing another person to engage in otherwise lawful sexual intercourse at the time a felony is being committed does not constitute the crime of criminal sexual penetration during the commission for a felony.” State v. Stevens, 2014-NMSC-011, ¶ 2, 323 P.3d at 904.

         In the PFRD, Magistrate Judge Martinez explained that, while at the time of Christy's underlying criminal case, “a fair interpretation of New Mexico's CSP II statute . . . was that engaging in consensual sex with a sixteen-year-old could be the basis for a CSP II charge in New Mexico, ” PFRD at 10, after the State v. Stevens decision, it became clear that Christy “could not have committed ‘criminal sexual penetration,' which is an element of CSP II, because the facts underlying the charge against him were that he engaged in consensual sex with someone who could legally consent when the sexual activity occurred, ” PFRD at 11. Magistrate Judge Martinez noted that the United States concedes that the holding in State v. Stevens likely applies retroactively to Christy's plea and conviction, and that, pursuant to State v. Stevens, the factual basis for Christy's guilty plea to Coercion and Enticement no longer establishes that he could have been charged with CSP II. See PFRD at 11-12. Magistrate Judge Martinez, therefore, recommended that the Court grant Christy's § 2255 Motion as to his conviction for Coercion and Enticement, and that the Court vacate his conviction and sentence for this charge. See PFRD at 12, 25. As for Christy's claims regarding his Child Pornography conviction, Magistrate Judge Martinez concluded that the waiver to collateral attack in the plea agreement is enforceable, and therefore recommended that the Court reject Christy's arguments challenging his conviction for Child Pornography.[1] See PFRD at 15.

         Having recommended that the Court vacate Christy's Coercion and Enticement conviction, Magistrate Judge Martinez next considered what impact vacating this conviction would have on Christy's conviction for Child Pornography. See PFRD at 16. Magistrate Judge Martinez concluded that this case's facts do not squarely fit with other cases' holdings, which require that the Court vacate the entire plea agreement, and that the Court return the parties to their statuses before entering into the pleas. See PFRD at 16. Magistrate Judge Martinez concluded that, here, however, Christy's sentences are not consecutive, and the charges of Coercion and Enticement and Child Pornography are not interdependent. See PFRD at 21. Magistrate Judge Martinez therefore concluded that the Plea Agreement has not been rendered invalid based on vacatur of the Coercion and Enticement charge. See PFRD at 21.

         Magistrate Judge Martinez recommended that, pursuant to United States v. Benard, 680 F.3d 1206 (10th Cir. 2012)(“Benard”)'s holding, the Court give Christy the option to withdraw his plea to the Child Pornography charge. See PFRD at 21. Magistrate Judge Martinez recommended that, if Christy elects to stand by the Plea Agreement, and to not withdraw his plea and conviction as to the Child Pornography charge, the Court give Christy the opportunity to ask the Court for a recalculation of his sentence with regard to that one charge. See PFRD at 22. Last, Magistrate Judge Martinez recommended that, if Christy elects to withdraw his plea to the Child Pornography charge, the Court should allow the United States to decide whether to pursue only the Child Pornography charge that was part of the plea agreement or to reinstate the Child Pornography charges in the Indictment under the frustration-of-purpose doctrine. See PFRD at 24.

         After a de novo review of Magistrate Judge Martinez' PFRD, the Court overruled Christy's Objections and adopted the PFRD. See Memorandum Opinion and Order Adopting Magistrate Judge's Proposed Findings and Recommended Disposition at 1-2, filed June 30, 2016 (Doc. 269)(“2255 MOO”). Pursuant to the Magistrate Judge's recommendation, the Court gave Christy a choice:

[T]he Petitioner/Defendant shall file in the underlying criminal case a notification stating only one of the following options: (a) “I hereby elect to stand by the Plea Agreement as to the plea and conviction for Child Pornography, with the understanding that I may ask the Court for a recalculation of my sentence with regard to that charge.”; or (b) “I hereby elect to withdraw my plea to the Child Pornography charge, with the understanding that by doing so, the Government may reinstate the charges in the Indictment regarding the Child Pornography charges.”

2255 MOO at 19-20.

         1. The Appeal.

         On the same day that the Court entered its 2255 MOO, it also entered a Final Judgment, filed June 30, 2016 (Doc. 270), and an Order Denying Certificate of Appealability, filed June 30, 2016 (Doc. 271)(concluding that Christy had “failed to make a substantial showing of a denial of constitutional rights”). Christy then requested that the Court reconsider its Certificate of Appealability denial, arguing that he was denied due process, “because he was misinformed by the Court as to the elements of . . . the predicate felony underlying his conviction, ” and, although the conviction was dismissed, “the entire plea agreement was tainted.” Motion to Reconsider Denial of Certificate of Appealability at 1, filed July 15, 2017 (Doc. 272). In response, the United States contended that Christy was attempting to raise the same arguments which he raised in his 2255 Motion, and that Christy had not met the legal standard for reconsideration. See United States' Response to Defendant's Motion to Reconsider Denial of Certificate of Appealability at 1-2, filed July 20, 2016 (Doc. 274). In reply, Christy contended that it was clear error for the Court to conclude that he had adequate notice of the charges to which he pled guilty, so his plea is constitutionally invalid. See Reply to United States' Response to Motion to Reconsider Denial of Certificate of Appealability at 1-2, filed August 8, 2016 (Doc. 285). The Court dismissed Christy's Motion to Reconsider Denial of Certificate of Appealability, concluding that Christy's arguments are “inextricably tied to the merits of the disposition of his prior habeas petition, and, therefore constitutes a second or successive petition.” Order Dismissing Motion to Reconsider Denial of Certificate of Appealability at 3, filed August 24, 2016 (Doc. 289). Consequently, the Court transferred Christy's request to the Tenth Circuit. See Order Dismissing Motion to Reconsider Denial of Certificate of Appealability at 3 (citing Spitznas v. Boone, 464 F.3d 1213, 1217 (10th Cir. 2006)(holding that, if “the district court concludes that the motion is actually a second or successive petition, it should refer the matter to [the Tenth Circuit] for authorization under § 2244(b)(3)”)). The Tenth Circuit denied Christy's request for a certificate of appealability, concluding, among other things, that: (i) because the Court gave Christy the option of withdrawing from the plea agreement, his argument that his plea was not knowing and voluntary is moot; and (ii) Christy “has provided no viable basis for relief [and] reasonable jurists would not find the district court's denial of his claims debatable or wrong.” Order Denying Certificate of Appealability at 4-5 (dated March 31, 2017), filed March 31, 2017 (Doc. 301-1).

         2. The Motion to Clarify.

         Christy submitted his Motion on June 15, 2017. See Motion at 7. Christy asks the Court to clarify its 2255 MOO, “so that he can make an informed decision” whether to withdraw his plea. Motion at 1. Christy begins by arguing that, according to Magistrate Judge Martinez' PFRD, the parties' mutual mistake on a charge's elements voids the entire plea agreement, including the rule 410 waiver. See Motion at 4 (citing PFRD at 21; United States v. Lewis, 138 F.3d 840 (10th Cir. 1998)). Under United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998) (“Bunner”), Christy asserts, when a defendant's prior conviction serves as the basis for a plea deal, and changes to the law later voids that conviction, the defendant has the option to not abide by the plea agreement's obligations; if the defendant takes that option, the prosecutors are released from their plea agreement's obligations. See Motion at 5 (citing Bunner 134 F.3d at 1005). Christy insists the same reasoning applies in this case. See Motion at 5. Here, according to Christy, the Supreme Court of New Mexico's clarification in State v. Stevens, 2014-NMSC-011, 323 P.3d 901, “rendered the government's performance of the plea agreement virtually worthless” to Christy, and, so, Christy argues, should he choose to withdraw his plea to the child pornography charge, the United States would also be relieved of its obligations under the plea agreement, “and the parties would be returned to the status quo ante.” Motion at 6. Christy recognizes that Bunner's facts are not identical to the facts here -- in Bunner, the defendant's “sole conviction” was deemed factually impossible, whereas here, “only one of Mr. Christy's two convictions was deemed factually impossible.” Motion at 6. Christy argues that the distinction is immaterial here, because in both cases, the defendant is faced with the choice to void his or her obligations under the plea agreement, which would, in turn, release the prosecutors from their obligations. See Motion at 6 (“[T]he Court . . . is simply allowing Mr. Christy to decide whether he truly wants that outcome” -- i.e., returning to the status quo ante -- “given that . . . the government will then have the right to reinstate the child pornography charges.”).

         3. The Response to the Motion.

         The United States opposes the Motion. See Response at 1. The United States first argues that the challenged 2255 Order is clear, and that, by “attempt[ing] to inject uncertainty” into the 2255 Order and the Magistrate Judge's PFRD, Christy is asking the Court “to issue a ruling that directly conflicts” with the 2255 Order. Response at 5. The United States argues that, because the PFRD enforced the plea agreement's collateral attack waiver, the rule 410 waiver must likewise be enforceable. See Response at 6. “Accordingly, it is the law of the case that Defendant's plea agreement is knowing and voluntary and remains valid, and that the waivers contained in it are enforceable.” Response at 6. According to the United States, in effect, Christy is trying to get another “bite at the apple by asking the Court, under the guise of . . . seeking clarification, to invalidate the plea agreement by law, rather than [by] Defendant's choice.” Response at 6. The United States also argues that the PFRD and the 2255 order implicitly and expressly distinguish this case from the Tenth Circuit cases that Christy references, noting, e.g., that the PFRD states that United States v. Lewis and other cases where the court vacated “entire plea agreements . . . and the parties returned to their statuses prior to entering into the pleas, do not squarely fit with the facts of this case.” Response at 6.

         Second, the United State argues that whether the 410 waiver is valid is not yet ripe for the Court's consideration, because Christy has yet to withdraw from the plea agreement. See Response at 7. Consequently, Christy “invites this Court to issue an advisory opinion.” Response at 7.

         Third, the United States asserts that, should the Court “choose to state a likely ruling on the enforceability of the rule 410 waiver to facilitate Defendant's decision, ” the Court should conclude that the waiver is enforceable, even if Christy withdraws from the plea agreement, because Christy entered the plea agreement knowingly and voluntarily. Response at 7. Not enforcing a plea agreement's rule 410 waiver after the defendant backs out of the plea agreement goes against the rule 410 waiver's entire purpose in the first place, the United States argues, because “the only time the United States would ever need to enforce a Rule 410 waiver is after a defendant has withdrawn from a plea agreement containing such a waiver.” Response at 9 (citing United States v. Jim, 786 F.3d 802, 802 (10th Cir. 2015)). The United States adds that the plea agreement's terms hold that the Court may not enforce a rule 410 waiver if the Court is the one invaliding the plea agreement, and not if the defendant withdraws. See Response at 9.

         4. The Reply to the United States' Response.

         Christy responded with his Reply to United States' Response in Opposition to Defendant's Motion to Clarify 2255 Order, filed July 11, 2017 (Doc. 310)(“Reply”). First, Christy asserts that the question whether the rule 410 waiver is enforceable is ripe, because “resolution of this issue impacts the choice Mr. Christy will make” on whether to withdraw from the plea agreement, and neither the PFRD nor the 2255 Order resolves the question. Reply at 1-2.

         Second, Christy denies he is trying to “get another bite at the proverbial apple.” Reply at 2. Rather, Christy asserts that he “is simply urging the Court to rule explicitly what it already has ruled implicitly, i.e., that the entire plea agreement will be voided under the frustration of purpose doctrine should Mr. Christy elect to withdraw his plea to the child pornography charge.” Reply at 2. Moreover, Christy argues that the United States “affirmatively argued in the § 2255 proceeding that the Court should vacate the entire plea agreement on grounds of ‘mutual mistake' and the ‘sentencing package' theory if it were inclined to do anything other than simply resentence Mr. Christy on the child pornography conviction.” (quoting United States' Response to Defendant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, filed December 5, 2015 (Doc. 256)). In other words, Christy asserts that the United States attempts to “have its cake and eat it too” by arguing, in the § 2255 proceeding, that if the Court allows Christy to withdraw his plea to the child pornography charge on grounds of mutual mistake, the Court should also allow the United States to revive the charge, and arguing now that, should Christy withdraw from the plea, the United States is relieved of all obligations under that agreement, but Christy remains bound by the rule 410 waiver. Reply at 3. Christy adds, in a footnote, that “[e]ven today, the government understands that the Magistrate Judge ‘recommended that Defendant be given the option to withdraw from his plea and the plea agreement with respect to his child pornography charge.'” Reply at 3 n.1 (emphasis added by Christy)(quoting Response at 4).

         Christy then argues that the Court, in its 2255 Order, “implicitly recognized” that “the only reason the government is allowed to reinstate the dismissed child pornography charges in this case is because, upon withdrawal of his plea, Mr. Christy will be ‘relieved of his obligations under the plea agreement, '” Reply at 4 (quoting 2255 Order at 16), and that, if the United States reinstates the charges, the parties will be returned to “the positions they occupied before the defendant entered his guilty plea, ” Reply at 4 (citing 2255 Order at 16). Christy also quotes the Court as stating, “[u]pon restoration of the status quo ante, the plea agreement no longer [binds] the parties.” Reply at 4 (quoting 2255 Order at 16)(emphasis and alterations added by Christy). Additionally, Christy notes, the Magistrate Judge wrote, in the PFRD, that Benard “‘appears most applicable to the facts of the case, '” and that its holding supports giving Christy the option to withdraw his plea. Reply at 4 n.2 (quoting PFRD at 21). Christy asserts that, in Benard, the Tenth Circuit held that, when a suppression motion affects one of two crimes to which a defendant pled guilty, the defendant should have the option to withdraw the plea, and “the parties will be restored to the status quo ante except as to the improperly admitted evidence.” Reply 4-5 n.5 (quoting Benard, 680 F.3d at 1215)(emphasis added by Christy).

         Next, Christy argues that United States v. Jim is inapposite. See Reply at 5. Christy writes:

Jim . . . does not stand for the overly-broad proposition that a Rule 410 waiver will be invalidated only when it is later determined that the defendant unknowingly and involuntarily entered into the agreement. Jim did not present the situation, like here, where the defendant entered into a plea agreement involving multiple counts only to find out later that one of the convictions was invalid as a matter of law. Jim did not present the situation, like here, where both parties were mutually mistaken when they entered into the agreement. And, Jim did not present the situation, like here, where the benefits both parties were to receive from the contract have been frustrated.

Reply at 6.

         Finally, Christy argues that the Court “never warned” him that the rule 410 waiver would be enforceable “even if it turned out that one of his convictions contemplated by the plea agreement was invalid, that the package deal he thought he was getting was illusory, and that the government would be entitled to reinstate the charges that it dismissed pursuant to the defective agreement.” Reply at 6.

         5. The Hearing.

         The Court held a hearing on the motion on August 31, 2017. See Transcript of Hearing (taken August 31, 2017)(“Tr.”).[2] The Court began by stating that it is “inclined to think that the Government's position is the correct one, that Mr. Christy is stuck with this waiver.” Tr. at 2:2-6 (Court). Regarding United States v. Jim, the Court acknowledged that are differences between that case and the one presently before it, but “I'm inclined to ...


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