Metropolitan News-Enterprise


Friday, June 15, 2018


Page 1


Ninth Circuit:

Change of Plea Justified Where Defendant Got New Information

Three-Judge Panel’s Majority Says Man Might Well Have Pled Not Guilty if He Had Known That It Was His Wife Who Had Tipped Off the FBI and Was Paid by It


By a MetNews Staff Writer


A panel of the Ninth U.S. Circuit Court of Appeals, in a 2-1 decision, yesterday vacated a judgment of conviction of a man for a passport obtained by false statements and aggravated identity theft, holding that a judge should have allowed him to change his plea to not guilty following a revelation that his wife had acted as a paid FBI informant against him.

Circuit Judges Kim Wardlaw and Jacqueline Hong-Ngoc Nguyen found that Judge Andrew Guilford of the Central District of California abused his discretion in denying the motion by Luiz Baptista to change his plea. Circuit Judge John Owens said he would not reach the merits because Baptista had waived his right to appeal as part of his plea bargain.

“When a defendant’s reason for withdrawing a guilty plea is new evidence,” the majority opinion sets forth, “the district court should consider whether the evidence is actually new….And in determining whether the new evidence provides a fair and just reason for withdrawal, the district court should ask whether the new evidence could have motivated a defendant not to plead guilty.”

Guilford failed to make a finding on this matter, the opinion says, noting that he merely commented that he wasn’t “persuaded by Baptista’s characterization of this purportedly ‘new’ evidence.”

The opinion observes that the government conceded that it did not inform Baptista prior to his pleading guilty that his wife had tipped off the FBI and received relocation assistance from the government.

“The district court therefore erred in doubting the newness of the evidence,” the majority found.

Government Agent

Guilford also faulted Baptista for not establishing that the wife acted as a government agent.

“But this goes to the merits of Baptista’s claims,” the opinion says. “The proper inquiry before the court was whether the new evidence could have motivated Baptista not to plead guilty, not whether he was likely to succeed on the merits of his new defenses.”

The district judge also concluded that if Baptista had known of his wife’s cooperation with the FBI, it would not have affected his decision to plead guilty because it had no bearing on guilt or innocence. The majority opinion declares:

“This conclusion was improper: evidence that provides a defendant with defenses that do not go to his guilt or innocence may nonetheless motivate a defendant not to plead guilty.”

Owens’s Dissent

In dissenting, Owens said that Guilford’s “statements during sentencing regarding the defendants right to appeal were akin to those in United States v. Arias-Espinosa.” In that 2012 Ninth Circuit case, it was held that the comment by the judge that the defendant “may have a right to appeal” was “equivocal or ambiguous, rather than being made unequivocally, clearly, and without qualification, and so does not vitiate his explicit waiver of the right to appeal in his written plea agreement.”

Owens said Baptista’s “appellate waiver remands valid,” adding:

“And with a valid appellate waiver, the defendant cannot challenge the district court’s denial of his motion to withdraw his plea.”

Waiver Found Invalid

As the majority saw it, Guilford’s advisement that “if you wish to appeal, you must do so within 14—within days” rendered the waiver unenforceable.

“This ‘unambiguous’ statement gave Baptista a ‘reasonable expectation’ of his right to appeal,” the opinion says, citing Arias-Espinosa.

The majority agreed with Guilford, however, in denying Baptista’s motion to present a “necessity” defense. The opinion says:

“Baptista argues that he could not have traveled with his Brazilian passport because doing so would have jeopardized his pending immigration application in the United States. This makes clear that Baptista did not want to use a legal alternative, not that one did not exist. Baptista also argues that he could not have traveled with his Brazilian passport because it had expired in May 2015, prior to the time he felt his children’s harm was imminent in August 2015. This argument is foreclosed by the fact that Baptista took steps to obtain a false passport in April 2015.”

At oral argument on May 17, Wardlaw asked Baptista’s lawyer, Timothy Scott, what options might have been pursued if the defendant had known of his wife’s activities.

“The option would have been pursuing an entrapment defense,” he responded, adding that it might also have been argued that there “outrageous government conduct.”

Scott added that the information might have formed the basis for challenging a search warrant, and that the applicability of marital privilege might have been considered.

Assistant United States Attorney Scott Tenley argued for affirmance.

The case is United States v. Baptista, 17-50176.


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