554 F. App'x 586
9th Cir.2014Background
- James Johnson pleaded guilty under a plea agreement to tampering with a victim in violation of 18 U.S.C. § 1512(a)(2)(C). He later sought to withdraw the plea, claiming legal innocence and defects in the indictment and plea colloquy.
- Johnson challenged that the indictment and colloquy failed to allege or establish that the victim would likely have communicated with a federal (rather than state) law enforcement officer, an element implicated by Fowler.
- The plea agreement contained an appeal waiver; the Ninth Circuit retained jurisdiction to consider preserved challenges and reviewed untimely objections for plain error.
- The indictment cited the statutory provision, but did not expressly name that a federal officer likely would have been contacted; the court considered whether the statutory citation cured that omission.
- Johnson conceded at oral argument that the assault occurred on an Indian reservation context subject to exclusive federal jurisdiction under 18 U.S.C. § 1152, supporting a reasonable likelihood a federal referral would occur.
- The district court also rejected Johnson’s other claims (lack of understanding of sentencing exposure, being prevented from withdrawing plea, lack of counsel), and denied withdrawal of the plea; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indictment failed to allege that victim would likely contact federal (not state) officers | Johnson: indictment deficient for not expressly alleging likelihood of contact with federal officers | Govt: statutory citation in indictment referenced §1512, which contains the federal-officer element, curing defect | The citation cured any deficiency; no plain error reversal |
| Whether plea colloquy lacked sufficient factual basis for federal-communication element | Johnson: colloquy did not establish factual basis that victim would have contacted federal officers | Govt: factual record (including concession re: exclusive federal jurisdiction) supports reasonable likelihood of federal involvement | Even if colloquy defective, Johnson suffered no prejudice; element met via reservation jurisdiction facts |
| Whether Johnson was entitled to withdraw plea based on asserted innocence or misunderstanding of sentencing | Johnson: asserted unspecified evidence of innocence and that he did not understand sentencing range | Govt: plea agreement and plea transcript show understanding; no basis shown for withdrawal | District court properly denied motion to withdraw; Johnson’s claims contradicted by record |
| Whether magistrate prevented withdrawal and whether Johnson had counsel throughout | Johnson: asserted magistrate prevented plea withdrawal and lacked counsel | Govt: record shows magistrate did not prevent withdrawal and Johnson was represented | Court found record demonstrates Johnson was aware of and had counsel, and was not prevented from withdrawing plea |
Key Cases Cited
- United States v. Jacobo Castillo, 496 F.3d 947 (9th Cir. 2007) (retention of jurisdiction despite plea-waiver for preserved challenges)
- United States v. Pacheco-Navarette, 432 F.3d 967 (9th Cir. 2005) (standard of review for preserved challenges to plea colloquy)
- United States v. Leos-Maldonado, 302 F.3d 1061 (9th Cir. 2002) (applying plain error review to untimely objections)
- United States v. Cotton, 535 U.S. 625 (U.S. 2002) (indictment defects subject to plain-error review post-conviction)
- Fowler v. United States, 131 S. Ct. 2045 (U.S. 2011) (government must show reasonable likelihood a communication would be made to a federal officer)
- United States v. Villalobos, 333 F.3d 1070 (9th Cir. 2003) (requirement that plea colloquy establish sufficient factual basis)
- United States v. James, 980 F.2d 1314 (9th Cir. 1992) (statutory citation in indictment can cure omissions)
- United States v. Coleman, 656 F.2d 509 (9th Cir. 1981) (discussing when statute reference cures indictment deficiencies)