United States District Court, D. Colorado
ORDER DENYING MOTION TO WITHDRAW GUILTY PLEA
William J. Martinez, United States District Judge
William J. Sears (“Sears”) pleaded guilty in
November 2016 to one count of conspiracy to defraud the
United States (18 U.S.C. § 371) and one count of filing
a false income tax return (26 U.S.C. § 7206(1)). (ECF
Nos. 41, 48, 84.) His sentencing has been postponed pending
his opportunity to testify in the Government's case
against Guy Jean-Pierre, a co-conspirator who, for procedural
reasons not relevant here, was charged in a separate criminal
action. (See Criminal No. 17-cr-008-WJM.)
Jean-Pierre went to trial before the undersigned in January
2019, and Sears testified at the trial, as expected. The
Court then set Sears's sentencing hearing for July 11,
4, 2019, Sears filed a Motion to Withdraw Plea of Guilty (ECF
No. 139), which is currently before the Court. The Government
filed a response opposing the relief sought in the motion
(ECF No. 144) and Sears filed a reply (ECF No. 149). Having
reviewed these materials, and having reviewed the plea
agreement (ECF Nos. 41-42) and the transcript of the
change-of-plea hearing (ECF No. 84), the Court finds that
Sears has not met the standard for withdrawing a guilty plea.
His motion will be denied.
prosecution came to the Court essentially as a pre-arranged
plea deal. On September 15, 2016, Sears and his co-defendant
in this case (Scott Dittman) were both charged by information
with conspiracy to defraud the United States, and Sears alone
was charged with filing a false income tax return. (ECF No.
1.) That same day, both defendants waived the indictment (ECF
Nos. 16, 17) and then filed notices of disposition the
following day (ECF Nos. 3, 5).
essence of the Government's conspiracy charge was that
Sears and Dittman had worked together to build a business
called FusionPharm, but took numerous steps to, among other
things, conceal Sears's relationship to the company
(given Sears's prior conviction for federal securities
fraud), and create free-trading FusionPharm shares without
truthfully satisfying federal regulatory requirements for
such shares. This, the Government charged, was a willful
evasion of federal securities laws and therefore a conspiracy
to defraud the United States.
plea agreement details the conspiracy over the course of
approximately twenty-five pages. (ECF No. 41 at 12-25 &
ECF No. 42 at 1-12.) These facts were mostly stipulated. Some
were augmented by footnotes describing additional facts Sears
or Dittman, or both, would introduce (if there were a trial,
apparently), mostly regarding alleged advice of counsel.
(See, e.g., ECF No. 41 at 15 n.5, 17 n.8, 22 n.15,
24 n.18; ECF No. 42 at 6 n.25.) A few facts were disputed,
mostly in the sense that Sears or Dittman believed the
Government was stating its case too strongly, but none of
these facts was dispositive to the Government's case.
(See, e.g., ECF No. 41 at 20 n.13, 22 n.16; ECF No.
42 at 7 nn.26-27, 9 n.31.) As for the tax charge against
Sears, it is detailed in two pages of unequivocally
stipulated facts. (ECF No. 42 at 13-14.)
change-of-plea hearing took place on November 14, 2016. (ECF
No. 48.) Sears was placed under oath. (ECF No. 84 at 2-3.)
The Court then confirmed that Sears understood his oath and
that false answers could subject him to a perjury
prosecution. (Id. at 4.) After some inquiries of
counsel, the Court turned back to Sears and had the following
Q. . . . Have you read Court Exhibits 1 and 2?
A. Yes, I have, Your Honor.
Q. Have you read them carefully?
A. Yes, I have, Your Honor.
Q. Have you discussed these documents with your lawyer?
A. In detail, sir, yes.
Q. All right. Has your lawyer answered your questions
regarding Exhibits 1 and 2?
A. Yes, he has.
Q. When you signed Exhibits 1 and 2, did you do so
A. Yes, I did, sir.
(ECF No. 84 at 12-13.) The Court then explained that the
facts described in the plea agreement are the facts the
Government believes it could prove at trial, and continued
its exchange with Sears as follows:
Q. . . . So do you agree that the facts that you've
reviewed at pages 12 through 37 of the plea agreement are
A. Yes, I do, Your Honor.
Q. Is there any inaccuracy in those facts you'd like to
correct at this time?
A. No, Your Honor.
(Id. at 13-14.) The Court then asked Sears to
“summarize . . . what it is that you did with respect
to the counts you are pleading guilty to.”
(Id. at 14.) Sears responded by describing one of
the events that, according to the Government, amounted to an
evasion of federal securities laws:
Your Honor, I was involved in the creation of a convertible
promissory note that was backdated. In conjunction with that
convertible promissory note, I failed to properly disclose my
affiliation status which enabled me to have access to free
trading securities. I then liquidated those free trading
securities into the public markets for a profit and failed to
report that profit on my personal income tax, sir.
(Id.) The Court then turned to the elements of the
two crimes to which Sears would plead guilty:
Q. All right. And did you do so in conspiracy with at least
one other person to engage in those acts?
A. Indeed, sir.
Q. All right. And you knowingly and voluntarily participated
in that conspiracy?
A. Yes, sir.
Q. And you were aware of the objective of that ...