United States District Court, E.D. Tennessee, Knoxville
MEMORANDUM AND ORDER
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Defendant's Motion to
Withdraw Plea of Guilty [doc. 60]. The Court conducted a
hearing on this matter on July 1, 2019 [doc. 65]. For the
reasons stated herein, Defendant's motion [doc. 60] is
March 20, 2018, Defendant was indicted on two offenses [doc.
1]. Count One charged Defendant with threatening to assault
and murder a person assisting an officer or employee of the
U.S. Social Security Administration (“SSA”) with
intent to impede, intimidate, and interfere with the person
while engaged in and on account of the performance of his or
her official duties and with the intent to retaliate against
the person on account of the performance of the person's
official duties, in violation of 18 U.S.C. § 115. Count
Two charged Defendant with attempt to intimidate and impede
an officer, employee, and contractor of the SSA including any
state employee of a disability determination service acting
in an official capacity to carry out their duties, in
violation of 42 U.S.C. §1320(a)-8(b). On January 16,
2019, the Defendant pled guilty to Count Two, which is a
case stems from the denial of Defendant's application for
disability benefits. After a telephone
interview on February 28, 2018 with disability
compensation investigator Simchah Edwards, Defendant left a
series of threatening and harassing voice mail messages in
which he threatened to kill her and others. He also stated
that he understood why people would get a gun and
“shoot up a place” or “go postal.” He
admitted making these statements when he was interviewed by
law enforcement on March 8, 2018.
initially retained Robert Kurtz to represent him in this
matter. Mr. Kurtz filed a motion to dismiss Count 1 of the
indictment, which was the felony count, in June of 2018 [doc.
18]. Mr. Kurtz also filed a motion for a psychiatric
examination to determine Defendant's competency [doc.
20]. The Court granted the motion for a psychiatric
examination, and ordered Defendant to undergo a mental
examination [doc. 30]. In a psychiatric report after this
examination, Dr. Andrew Demick concluded that Defendant was
“very likely experiencing significant mental health
difficulties” but was nevertheless able to assist in
his defense and competent to stand trial [doc. 32]. The Court
found Defendant competent to proceed to trial [doc. 35].
the motion to dismiss Count 1 was pending, Defendant, on
December 28, 2018, entered into a written plea agreement with
the government [doc. 44]. In the agreement, Defendant agreed
to plead guilty to Count 2, the misdemeanor charge, and the
government agreed to move to dismiss Count 1, the felony
charge [id. at 1]. Within the plea agreement,
Defendant stipulated to a factual recitation of the events
supporting his plea [id. at 2-3]. The plea agreement
stated that Defendant was pleading guilty because he was in
fact guilty, and he understood that he was giving up several
rights, including the right to plead not guilty [id.
at 3-4]. Both Defendant and Mr. Kurtz signed the plea
agreement [id. at 8].
change of plea hearing, on January 16, 2019, Defendant was
placed under oath [doc. 62 at 3]. The Court then asked
Defendant several questions about his interactions with Mr.
Kurtz, and Defendant stated that he had been given sufficient
time to review the indictment with Mr. Kurtz, had told Mr.
Kurtz everything about his case, believed that Mr. Kurtz was
fully aware of all the facts on which the charge was based,
had been advised by Mr. Kurtz of the nature and meaning of
the charge and any words in the indictment that Defendant did
not understand, had been advised by Mr. Kurtz as to every
element of the charged offense and any available defense
[id. at 4-6]. The Court then asked Defendant if he
was “satisfied with Mr. Kurtz's advice and the
representation of you by Mr. Kurtz, ” and Defendant
responded “yes” [id. at 6].
confirmed that he understood that, by pleading guilty, he was
waiving his right to a trial of any kind, and the rights
associated with a trial [id. at 7]. The Court then
asked Defendant if “any person, including an officer or
agent of the government put any pressure on [him] mentally or
physically to force [him] to plead guilty, ” and
Defendant responded “no” [id. at 8]. The
government then read the factual basis contained in the plea
agreement in open court [id. at 10-14]. The
following exchange then occurred between the Court and the
Wolff, did you hear the Assistant United States Attorney as
she related what the government says that you did in your
A: Yes, I did.
Q: Do you agree that that's what you did?
A: There's some slight inaccuracies there, yes.
Q: Okay. But do you agree that basically, you have committed
the acts set forth by the government in its statement of ...