United States District Court, D. New Mexico
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.
A. Coberly Coberly & Martinez, LLLP Santa Fe, New Mexico
Attorneys for the Defendant.
MEMORANDUM OPINION AND ORDER
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.
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).
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
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.
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
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. See PFRD at 15.
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.
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.
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
2255 MOO at 19-20.
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).
The Motion to Clarify.
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.”).
The Response to the Motion.
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.
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.
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.
The Reply to the United States'
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.
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).
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).
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
Reply at 6.
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.
Court held a hearing on the motion on August 31, 2017.
See Transcript of Hearing (taken August 31,
2017)(“Tr.”). 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 ...