United States v. Sears

          ORDER DENYING MOTION TO RECONSIDER

          William J. Martinez United States District Judge

         Defendant 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 Case 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, 2019, which has since been continued to October 31, 2019.

         On May 4, 2019, Sears filed a Motion to Withdraw Plea of Guilty. (ECF No. 139.) The Court denied that motion on May 22, 2019. (ECF No. 150.) On August 1, 2019, Sears filed a Motion for Reconsideration (ECF No. 173), which is currently before the Court. The Court’s analysis below presumes familiarity with its May 22, 2019 order.

         In a criminal case,

[a] motion to reconsider may be granted when the court has misapprehended the facts, a party’s position, or the law. Specific grounds include: (1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice. A motion to reconsider should not be used to revisit issues already addressed or advance arguments that could have been raised earlier.

United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014) (internal quotation marks and citations omitted).

         Sears first argues that the Court has misapprehended the law, “imposing a burden on [him] to not just raise arguments in favor of innocence, but to convince the Court of his innocence.” (ECF No. 173 ¶ 5.) The Court imposed no such burden. Sears’s motion seemed to presume that he could simply claim innocence and that would be enough. The Court thus found that Sears had not justified his motion because, among other reasons, he had offered only “bare assertions of innocence with no support, and no explanation of why [he had] gone back on [his] sworn testimony [at the change-of-plea hearing].” (ECF No. 150 at 8.)

         Sears next attacks the Court’s reliance on his change-of-plea testimony:

Of the multi-pages of alleged activities recited in the plea agreement, the only one that Mr. Sears acknowledged, in the colloquy, was his involvement in the creation of a convertible promissory note that was backdated.

. . . Sears never agreed he was guilty of the entire crime as presented by the government in the plea agreement.

[B]ackdating of the convertible notes was not an illegal act The colloquy with Mr. Sears during the change of plea hearing reveals that he admitted only to a very narrow slice of the facts the government alleged against him.

(ECF No. 173 ¶¶ 7, 9, 11–12.) To the contrary, Sears acknowledged that he had read all of the facts alleged in the plea agreement and that there was no inaccuracy. (See ECF No. 150 at 3–4.) In addition, there is no requirement that the Court obtain the defendant’s verbal description of his or her incriminating actions, and therefore no requirement that the Court’s colloquy or the defendant’s resulting narrative embrace every criminal act alleged by the Government.^[1]

         Sears’s third argument for reconsideration is that the Court misapprehended his assertion of innocence:

[H]e is arguing that he did not have the mens rea to agree to violate the law and to engage in an overt act furthering the objective of the conspiracy. This is because he has claimed throughout, as noted by the footnotes in the plea agreement, that he was acting with advice of counsel and because ...