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Media Alerts - United States v. Newman -- Fourth Circuit
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December 10, 2015
  United States v. Newman -- Fourth Circuit
K-Kutta Must Hit Pause on Rick Ross Label Deal While Serving Ten-Year Prison Term After Fourth Circuit Finds No Reversible Error

Areas of Law: Criminal Procedure

Issues Presented: Whether the district court erred in denying Kenneth Dewitt Newman's motion to withdraw an initial plea. Whether the judgment contained a clerical error. Whether incorrect grand jury testimony prejudiced Newman.

Brief Summary: Kenneth Dewitt Newman, also known as K-Kutta, appealed his convictions and sentences pursuant to two guilty pleas. The Government set aside his first guilty plea because of Newman's failure to cooperate. No longer restrained by the first guilty plea, the Government acquired a second indictment against Newman. In order to persuade the Government to dismiss the charges in the second indictment, Newman pled guilty to another charge. On appeal, Newman alleged that (1) the district court erred in denying his motion to withdraw his first guilty plea, (2) following his second guilty plea, the court's judgment contained a clerical error, and (3) incorrect grand jury testimony prejudiced him.

Regarding Newman's assertion that he should have been permitted to withdraw his first guilty plea, the Fourth Circuit explained the need to follow Federal Rule of Criminal Procedure 11(d). Rule 11(d) states that after a district court accepts a guilty plea but before sentencing, a defendant may withdraw his guilty plea if he can show a fair and just reason for requesting withdrawal. Rule 11(d) places the burden on the defendant to demonstrate that withdrawal should be granted. The Fourth Circuit echoed United States v. Moore and enumerated a non-exhaustive list of factors which provide guidance in determining whether a defendant has met his burden: "(1) whether the defendant has offered credible evidence that his plea was not knowing or not voluntary, (2) whether the defendant has credibly asserted his legal innocence, (3) whether there has been a delay between the entering of the plea and the filing of the motion, (4) whether the defendant has had close assistance of competent counsel, (5) whether withdrawal will cause prejudice to the government, and (6) whether withdrawal will inconvenience the court and waste judicial resources." 931 F.2d 245, 248 (4th Cir. 1991).

In this instance, the Fourth Circuit determined that Newman failed to establish his plea was unknowing and involuntary under Moore's first factor; he did not pursue a claim that he was innocent under Moore's second factor; and he did not pursue a claim that counsel was ineffective under Moore's fourth factor. Instead, Newman made bare assertions of fair and just reasons to withdraw his plea but failed to provide any evidence to support his assertions. For example, Newman asserted that he did not understand his obligations under the plea agreement required him to provide information about people other than himself who might be involved in criminal activity. He also maintained that he was unaware he could not dispute the drug weight allegations after the lab reported new evidence. Nevertheless, the Government asserted it set aside the first plea agreement based on Newman's refusal to provide any further cooperation. The Fourth Circuit found the district court did not abuse its discretion in granting the Government's motion to set aside the agreement and denying Newman's motion to withdraw his plea because Newman did not dispute the lack of cooperation claim.

Regarding the clerical error, a discrepancy existed between the judgment, which indicated distribution of drugs, and the indictment, which charged possession with intent to distribute the same drugs. Newman and the Government agreed that Newman possessed all the drugs and had intent to distribute only cocaine, but the Government claimed Newman failed to establish any prejudice because of this discrepancy. The Fourth Circuit ruled that judicial economy weighed in favor of remand for correction of judgment to conform to Newman's plea.

Regarding prejudiced grand jury testimony, the Fourth Circuit emphasized that after a defendant admits guilt of the offense in open court, he cannot then raise independent claims relating to the deprivation of constitutional rights that happened prior to the guilty plea entry. In this instance, the alleged error took place prior to both of Newman's pleas and the error concerned a dismissed count. Therefore, the Fourth Circuit affirmed the district court's decision.

To read the full text of this opinion, please click here.

Panel: Judges Duncan, Diaz, and Floyd

Argument Date: 09/29/2015

Date of Issued Opinion: 10/28/2015

Docket Number: No. 15-4100

Affirmed and remanded by unpublished Opinion.

Case Alert Author: Chaitra Gowda, Univ. of Maryland Carey School of Law

Counsel: John R. McGhee, Jr., KAY CASTO & CHANEY, PLLC, Charleston, West Virginia, for Appellant. R. Booth Goodwin, II, United States Attorney, R. Gregory McVey, Assistant United States Attorney, Huntington, West Virginia, for Appellee.

Author of Opinion: Per Curiam

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 12/10/2015 01:31 PM     4th Circuit  

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