Judgedenyritzwithdrawplea

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

UNITED STATES OF AMERICA,

3:16-cr-00051-BR-2

Plaintiff,

ORDER DENYING DEFENDANT JON RITZHEIMER'S MOTION TO WITHDRAW GUILTY PLEA

v.

JON RITZHEIMER, Defendant.

BROWN, Judge.

This matter comes before the Court on Defendant Jon Ritzheimer's Motion (#1644) to Withdraw Guilty Plea. government filed a Response January 16, 2017.

(#1724)

The

to Ritzheimer's Motion on

Ritzheimer filed a Reply (#1751) on

January 26, 2017.

Following a thorough review of the record on this Motion, the Court finds there are not any disputed issues of material fact and oral argument is not necessary to resolve this Motion because the legal arguments are sufficiently developed.

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For the reasons that follow,

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the Court DENIES Ritzheimer's

Motion (#1644) to Withdraw Guilty Plea.

BACKGROUND

On August 15, 2016, pursuant to a Plea Agreement (#1035) and Plea Petition (#1034), Defendant Jon Ritzheimer pled guilty to Count 1 of the Superseding Indictment (#282) in which he was charged

w~th

(Count 1) .

Conspiracy to Impede Officers of the United States At the time Ritzheimer was set to proceed to trial on

February 14, 2017, with several Co-Defendants.

In the Plea Agreement Ritzheimer agreed to plead guilty to Count 1 of the Superseding Indictment, and, in exchange, the government agreed to dismiss Count Two (in which he was charged with Possession of Firearms and Dangerous Weapons in Federal Facilities) and Count Five (in which he was charged with Theft of Government Property) against Ritzheimer, to recommend a sentence at the low end of U.S. Sentencing Guidelines Total Offense Level 19, and to consider any mitigation materials provided by Defendant.

On August 15, 2016, the Court conducted a change-of-plea hearing pursuant to Federal Rule of Criminal Procedure 11.

At

the conclusion of the hearing Ritzheimer pled guilty to Count One consistent with the terms of the Plea Agreement.

At the beginning of that hearing counsel for the government 2 -

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summarized some terms of the Plea Agreement as follows: [ASSISTANT UNITED STATES ATTORNEY CRAIG J. GABRIEL] Yes, the key terms of this agreement are that this agreement is between Mr. Ritzheimer and the U.S. Attorney's Office for the District of Oregon only.

There are no other parties to the agreement.

Mr. Ritzheimer is not charged in Nevada.

And, as far as the Government is aware, he has no criminal exposure in Nevada whatsoever.

He was not involved in the Bunkerville incident.

And as the Court is keenly aware, the Court is not a party to this agreement and is not bound by the sentencing recommendations under this agreement.

As I said, Mr. Ritzheimer agrees to plead guilty to Count 1, which charges conspiracy to impede officers of the United States in violation of Title 18 United States Code Section 372. That offense has a maximum penalty of six years imprisonment, a fine of up to $250,000, $100 fee assessment, and three years of supervised release.

As part of this agreement, your Honor, should Mr. Ritzheimer's guilty plea be accepted by the Court, the Government agrees to dismiss at sentencing all remaining counts against Mr. Ritzheimer, and that would include Count 2 of the -- the Superseding Indictment, which is carrying a firearm in a federal facility in the commission of a crime. And Count 5, which alleged theft of cameras belonging to the FBI. The THE COURT:

Theft of Government property?

MR. GABRIEL: Theft of Government property, yes, your Honor. And, specifically, they were cameras belonging to the FBI. But it was 18 USC 641, which is alleged in Count 5; that will be dismissed.

THE COURT:

Okay.

MR. GABRIEL: Your Honor, paragraph 6 of the plea agreement sets forth the conditions under which Mr. Ritzheimer will qualify for acceptance of 3 -

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responsibility and what he must do to qualify for the downward adjustment.

Paragraph 7 sets forth the advisory guideline calculation as anticipated by the parties.

So the parties anticipate that the defendant's total offense level will be 19, based on those bullet points in Paragraph 7.

THE COURT: So after acceptance and after a two-level variance for early disposition?

MR. GABRIEL: Correct, your Honor. And as the Court, again, is aware, we believe the two-level downward variance for early disposition is appropriate for Mr. Ritzheimer because his trial is not scheduled until February 2017.

THE COURT: Before you continue, speak to me, please, about what's known of any criminal history.

MR. GABRIEL: Mr. Ritzheimer has no criminal history whatsoever, so he is in Criminal History Category I. THE COURT: Okay.

30 to 37 months?

So at 19, Category I, the range is

MR. GABRIEL: Correct, your Honor. And the defense may recommend any sentence he deems appropriate, including time served. There was a period of time initially in this case when Mr. Ritzheimer was in custody.

And the Government agrees, at this time, to recommend the low end of Offense Level 19, which would be 30 months.

But, your Honor, I think it's important to note a sentence in Paragraph 8, which states the Government further agrees to consider mitigation materials to be provided by the defense before making its ultimate sentencing recommendation. And then it says, See, for example, Guideline Section 5Hl.ll, which refers to military service.

So at this time the Government's committing to rec.ommending no more than the low end of Offense Level 19, but we will reevaluate that recommendation before sentencing.

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As part of this agreement under paragraph 9, Mr. Ritzheimer agrees to abandon all right, title, and interest to any property, firearms, or ammunition that was seized by law enforcement in this investigation.

And there is in particular one shotgun that Mr. Ritzheimer purchased that was seized by the Government, and he's forfeiting his right to that.

Paragraph 10 states that Mr. Ritzheimer agrees to pay restitution in this case. And as with all the defendants who have pleaded guilty, he is reserving his right to object to whether restitution applies and, if so, the amount of that restitution.

Paragraph 11 sets forth Mr. Ritzheimer's waiver of appeal. And as the Court will review with Mr. Ritzheimer, he's essentially waiving his right to appeal in all but one instance, and that's if the Court were to vary upward or depart upward from the correctly calculated advisory guideline range.

As. I stated earlier, your Honor, this agreement is pursuant to Rule 11 (c) (1) (B), which means that the Court is not bound by the parties' sentencing recommendation.

But if the Court were to sentence Mr. Ritzheimer to a term of imprisonment or any sentence higher than he anticipated, he could not withdraw his guilty plea.

If Mr. Ritzheimer were to breach the terms of this plea agreement, he again may not withdraw his guilty plea but the Government would be relieved from its obligations under the agreement.

And finally, your Honor, with one exception, this is the entire agreement between the parties.

And that exception, your Honor, is that at the concfusion of this plea hearing the parties will ask for a sentencing date in the late spring of 2017 to allow Ms. Wood and Mr. Ritzheimer to work together on a mitigation package for sentencing.

THE COURT: So the Government's agreeing to that deferred sentencing as part of the plea agreement? that your point?

MR. GABRIEL: 5 -

Is

Yes, your Honor.

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THE COURT:

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Okay.

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All right.

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Thank you, Mr. Gabriel.

Tr. of Proceedings (#1586) at 3-7.

The Court then engaged in an extensive colloquy with Ritzheimer.

The Court had the following exchange with Ritzheimer

about his ability to consider his decision to plead guilty and whether he obtained satisfactory advice of counsel: THE COURT: I can see Ms. Wood is your lawyer. The paper says you and she have discussed your case fully.

I need to be sure, from your perspective, you've had enough time with Ms. Wood from the beginning to now to consider a number of options, including your absolute right to have a jury trial on the charges.

Have you had, from your perspective, enough time with counsel?

THE DEFENDANT:

Yes, your Honor.

THE COURT: Have you reviewed with her the legal issues raised in the case?

THE DEFENDANT:

Yes, your Honor.

THE COURT: And the factual arguments that might be made on behalf of you or any of the other defendants?

THE DEFENDANT:

Yes.

THE COURT: Have you reviewed with her the discovery the Government has provided in the case?

THE DEFENDANT:

Yes.

THE COURT: And have you weighed and evaluated with her the risks and benefits? The risks of going forward to trial, for example, and being found guilty of all of the charges without any favorable representation from the Government, against the benefit of reducing that exposure in the terms the Government has agreed to?

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THE DEFENDANT:

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Yes.

THE COURT: Have you asked her all of the questions you wanted to ask her?

THE DEFENDANT: THE COURT:

Yes, I have.

Has she answered them?

THE DEFENDANT:

Yes, she has.

THE COURT: Have you met with her more than once about whether to plead guilty?

THE DEFENDANT: THE COURT:

Yes.

Are you satisfied with her advice and

services?

THE DEFENDANT:

Yes, I am.

Id. at 9-10.

The Court then confirmed Ritzheimer was thinking clearly and reviewed with Ritzheimer the consequences of pleading guilty and having a felony conviction on his record.

Id. at 11-13.

The

Court also reviewed the rights that Ritzheimer was giving up by pleading guilty as follows: THE COURT: Let's talk about the other rights because you are giving them up if you do plead guilty.

When the Government took on this case, it took on the burden to prove you are guilty beyond any reasonable doubt. And once you were formally presented with the charges, you became protected with the constitutional presumption of innocence.

That presumption carries the force of law.

It is still in full force and effect.

And, really, there are only two ways to lose that protection.

That is, you are innocent unless and until the Government proves you are guilty beyond a 7 -

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reasonable doubt or unless you give up that protection in a process like the one you are following today.

So if we do proceed through and conclude this process, you will be giving up that protection of the presumption of innocence, I will find you guilty, there won't be any jury trial. And you'll have given up any chance, however slight or great the chance might ¡be, that a jury would find you not guilty of one or more of the charges.

Do you understand?

THE DEFENDANT:

Yes, your Honor.

THE COURT: So you have the right to that public trial by jury, at which the Government has the opportunity to seek to prove you guilty by presenting evidence here in an open and public court, subject to your right of confrontation and subject to the jurors' power to determine what the facts are and who and what to believe.

So in such a trial, then, the Government would bring witnesses and evidence and things here into open court.

You would know ahead of time who those witnesses would be, what the physical exhibits would be the Government would seek to offer. And you would have the right to challenge that; quite literally to confront your accusers in the course of the trial.

Normally, with counsel, that's done with counsel cross-examining Government's witnesses and their pointing out to a jury why a witness's testimony should be credited or why a witness might not be remembering accurately.

Why the gist of what the witness is saying should not be entitled to any weight or as much weight as the Government might assert.

So you have a right to that trial, where the evidence is aired here in an open court; evidence the Court determines is relevant but subject to challenge and for the jury's consideration.

Do you understand?

THE DEFENDANT: 8 -

Yes, your Honor.

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THE COURT: At that right, you would -- at that trial, I mean, you would be presumed innocent and the jury would know that, which means the jury would be told, in every way I know how, to ensure that the Government was held to the burden of proof and you did not have to prove you were innocent.

That you would have the right to remain silent and not have to testify, not have to explain yourself to a jury.

But, on the other hand, you would have the mirror-image right to give up that protection, to take the witness stand in your own defense if you wanted to.

Do you understand?

THE COURT: That decision is, in the end, always left to the person accused after being fully informed of risks, strategic assessments, and the like, with counsel.

But it's your right.

It's the right of the accused, not the lawyer.

So if Ms. Wood happened to disagree with what you thought you wanted to do, in the end it would be your choice.

If you wanted to testify, you could. Subject, of course, to the prosecutor then cross-examining you in the presence of the jury.

Do you understand?

THE DEFENDANT:

Yes, your Honor.

THE COURT: And even though you don't have any burden to prove anything, being presumed innocent, you have the right as a defendant to bring forth witnesses and evidence of your own. And if the witnesses wouldn't come willingly, you would have access to the Court's subpoena power as a matter of right; to compel a witness to attend, even if they wouldn't come on their own.

Do you understand?

THE DEFENDANT:

Yes, your Honor.

THE COURT: So, as I say, if you plead guilty, you're giving up all of those rights.

I will find you guilty.

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There won't be any trial. And the only next step after today, then, will be a sentencing hearing at a time to be set in the future.

Do you understand?

THE DEFENDANT:

Id. at 14-17.

Yes, your Honor.

The Court then ensured Ritzheimer understood the

elements of the agreement, the consequences of breach, and the process that the parties would follow between plea and sentencing.

Finally, the Court emphasized the finality of the

agreement as follows: THE COURT: A person has to be found guilty of an offense before a judge engages in sentencing, and that's part of that rule that a judge can't negotiate.

So once you decide today to plead guilty, that's a permanent decision.

You're not free to take it back.

Do you understand?

THE DEFENDANT:

Id. at 22-23.

Yes, your Honor.

The Court completed its colloquy with Ritzheimer

by discussing with him specific portions of the Plea Agreement and Plea Petition regarding his admission of guilt: THE COURT: Okay. The agreement runs five pages.

At the very end, it says this: I hereby freely and voluntarily accept the terms and conditions of this plea of fer after first reviewing and discussing every part of it with my attorney.

I expressly waive my right to appeal as outlined in this agreement.

I am satisfied with the legal assistance provided to me by my attorney.

I wish to plead guilty because in fact I am guilty, and then it looks like you signed your name.

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Is that your signature?

THE DEFENDANT: THE COURT:

Yes, your Honor.

Is that a true statement?

THE DEFENDANT:

It is, your Honor.

THE COURT: Has anyone put any pressure on you to plead guilty when you don't want to?

THE DEFENDANT:

No, your Honor.

THE COURT: Has anyone promised you anything in exchange for your guilty plea that's not written down in these papers or mentioned here on the record today?

THE DEFENDANT:

No, your Honor.

THE COURT: So the decision, then, to plead guilty is your own personal and voluntary decision?

THE DEFENDANT:

Yes, your Honor.

* * * THE COURT: In paragraph 24 of your plea petition, it says this in part: I represent that I did the following acts and the following facts are true.

On or about late December 2015 and continuing through January 24, 2016, in the District of Oregon, I knowingly and willfully agreed with others to prevent by force, threats, or intimidation, officers and employees of the U.S. Department of the Interior from discharging the duties of their off ice at the Malheur National Wildlife Refuge and other locations in Harney County, Oregon.

Did I read that accurately?

THE DEFENDANT:

Yes, your Honor.

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THE COURT: Is that a true statement in its full breadth, all parts of it?

THE DEFENDANT: THE. COURT: signed it.

Yes,

And then at the end, it says, again, you The petition, that is, after reading it.

It's dated today.

THE DEFENDANT: THE COURT:

it is, your Honor.

Again, is that your signature, sir?

Yes, your Honor.

Is that a true statement?

THE DEFENDANT:

Yes, your Honor.

THE COURT: Did you understand everything in the petition before you signed it?

THE DEFENDANT:

Yes, your Honor.

THE COURT: Do you have any questions of me about the petition or the plea agreement?

THE DEFENDANT: Id.

I do not.

at 27-29.

Counsel for the government then summarized the elements of

the offense and the factual basis as follows: The elements of Count 1 are as follows: Two or more persons agreed to prevent another person from discharging any duties of the United States by force, intimidation, or threat.

The factual basis for the plea, and what the Government would prove at trial is as follows: In January 2016, Mr. Ritzheimer and others occupied the Malheur National Wildlife Refuge, which is here, in the District of Oregon.

Mr. Ritzheimer and his co-defendants agreed to occupy the Malheur National Wildlife Refuge and 12 - ORDER DENYING DEFENDANT JON RITZHEIMER'S MOTION TO WITHDRAW GUILTY PLEA

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impede federal employees from the Department of Interior from discharging the duties of their office.

Members of the conspiracy used force, threats, or intimidation to prevent U.S. Department of Interior employees from going to work and doing their jobs.

On Saturday, January 2nd, 2016, Mr. Ritzheimer was with the very first convoy of vehicles carrying individuals to forcibly take over the Malheur National Wildlife Refuge.

Mr. Ritzheimer and others were armed when they first entered the refuge. This initial group of occupiers cleared the buildings, blocked the front gate, and established armed guard duties.

It was a Saturday, so no federal employees were present on the refuge at the time of this initial takeover.

Later in the day, after Mr. Ritzheimer and others had secured the refuge, this advance party communicated with Ammon Bundy that they were in control of the refuge. At that point, Ammon Bundy and other occupiers left a protest in Burns to travel to the refuge, where -- in Mr. Bundy's words -- they would take a, quote, hard stand.

Videos and photographs show Mr. Ritzheimer performing armed guard duty at the entrances to the refuge. At times, Mr. Ritzheimer's personal truck was used to block the refuge's front gates.

And, at other times, a federal government truck was used.

Witnesses also report that Mr. Ritzheimer organized guard duty rotations while he was at the refuge.

Mr. Ritzheimer left the refuge on or about January 24th, and then he was arrested two days later, on January 26th, in Arizona.

Id. at 30-32.

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Ritzheimer: THE COURT:

Do you understand the charge in Count l?

THE DEFENDANT: THE COURT: guilty?

I do, your Honor.

How do you plead to it? Guilty or not

THE DEFENDANT:

Guilty, your Honor.

THE COURT: What did you do, Mr. Ritzheimer, that you think makes you guilty?

THE DEFENDANT: On January 2nd, I learned of a plan to take the protest to the next level, and I agreed to go to the Malheur National Wildlife Refuge with an advance party. And I went there and I forcibly occupied the refuge.

I did park my truck up at the top of the refuge, and I camped out there for a few days. And then -- before then going down and actually camping in the refuge.

And I -- I can see how my conduct and my actions there would be intimidating.

But I did forcibly go and occupy the refuge, and so I plead guilty to it.

THE COURT: So the charge you're admitting is a conspiracy charge and a conspiracy is a crime of agreement.

It doesn't actually require that the object -- the illegal object of the agreement actually happen.

It is enough if a person knowingly and willfully agrees with at least another person to -- to do something that is illegal. And, in this case, the something that is illegal is impeding federal officers or employees in the performance of their official duties by either, force, intimidation, or threat.

You said that you learned of a plan to take the protest to the next level.

By "protest," are you talking about the protest of the resentencing of Mr. Hammond, the father, and Mr. Hammond's son?

DEFENDANT RITZHEIMER: Yes, your Honor.

We were protesting, actually, two things.

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government overreach and the resentencing of the Hammonds.

So, yes,. your Honor.

THE COURT: All right. And when you say there was a plan to take it to the next level what -- what do you mean by that?

THE DEFENDANT: I believe going to the refuge and forcibly occupying the refuge was taking it -- taking the protest to the next level.

THE COURT: So when you went on that day, in January of 2016, that was because you had agreed to help occupy the refuge, then?

THE DEFENDANT:

Yes, your Honor.

THE COURT: And did you make that decision knowingly?

Did you know what you were doing?

THE DEFENDANT: THE COURT:

I did, your Honor.

Willfully?

THE DEFENDANT:

Yes, your Honor.

THE COURT: And did you know that an object of that agreement, then, was to prevent the federal employees who worked there from discharging their official duties?

THE DEFENDANT: THE. COURT:

By either, force, intimidation, or threat?

THE DEFENDANT: Id.

Yes, your Honor.

Yes, your Honor.

at 32-35.

The Court thereafter found Ritzheimer's guilty plea was

knowing, intelligent, and voluntary and found Ritzheimer guilty of Count 1 pursuant to his guilty plea.

Id.

at 35.

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STANDARD

Federal Rule of Criminal Procedure 11 (d) (2) (B) provides a defendant may withdraw a plea of guilty prior to sentencing if he "'can show a fair and just reason for requesting the withdrawal."'

United States v. Mayweather,

(9th Cir. 2010).

634 F.3d 498, 504

"The defendant has the burden of demonstrating

a fair and just reason for withdrawal of a plea." v. Davis, 428 F. 3d 802, 805 (9th Cir. 2005).

United States

"'Fair and just

reasons for withdrawal include inadequate Rule 11 plea colloquies, newly discovered evidence, intervening circumstances, or any other reason for withdrawing the plea that did not exist when the defendant entered his plea.'"

504

Mayweather,

(quoting United States v. Ortega-Ascanio,

(9th Cir. 2 0 0 4) ) .

634 F.3d at

376 F.3d 879, 883

"'While the defendant is not permitted to

withdraw his plea 'simply on a lark,' the 'fair and just standard' is generous and must be applied liberally.'"

Mayweather,

634 F.3d at 504

(quoting United States v. McTiernan,

546 F. 3d 1160, 1167 (9th Cir. 2008)).

A defendant "does not have to prove that his plea is invalid in order to establish a fair and just reason for withdrawal before sentencing."

(9th Cir. 2005).

United States v. Davis, 428 F.3d 802, 806

See also Mayweather,

634 F.3d at 504.

When a

defendant's reason for seeking to withdraw a guilty plea is

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newly-discovered evidence, "the generous 'fair and just reason' standard does not require that the defendant show that the new evidence exonerates him or that there is a reasonable probability he would not have been convicted had the case gone to trial."

United States v. Garcia, 401 F.3d 1008, 1011 (9th Cir. 2005).

Even if newly-discovered evidence provides the basis for the withdrawal of a guilty plea, however, the defendant must still demonstrate the "evidence was relevant evidence in [the defendant's] favor that could have at least plausibly motivated a reasonable person in [the defendant's] position not to have pled guilty had he known about the evidence prior to pleading."

Id.

at 1011-12.

The Supreme Court has cautioned that a "'guilty plea is no . trifle, but a grave and solemn act, which is accepted only with care and discernment'" and that permitting the withdrawal of a guilty plea "on a lark" would "degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess."

United States v. Hyde,

520 U.S.

670,

676-77

(1997) (quoting Fed. R. Crim. P. 32 advisory committee's note to 1983 Amendments).

See also United States v. Ensminger, 567 F.3d

587, 590 (9th Cir. 2009).

Moreover, "[p]rejudice to the

government is one factor to be considered by the district court in its evaluation of the merits of the defendant's motion to withdraw his plea."

United States v. Vasquez-Velasco,

4 71 F. 3d

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294, 294 676-77

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(9th Cir. 1973) (per curiam).

Page 18 of 23

See also Hyde,

(noting "'there is no reason to view pleas

520 U.S. at . as merely

'tentative' subject to withdrawal before sentence whenever the government cannot establish prejudice'n) (quoting Fed. R. Crim. P. 32 advisory committee's note to 1983 Amendments); Ensminger, 567 F.3d at 593 (referencing prejudice to the government as a relevant factor) .

DISCUSSION Ritzheimer asserts he has fair and just reasons for withdrawing his guilty plea because (1) he is actually innocent of the conspiracy charged in Count One based on the law of the case and Ritzheimer's plea colloquy;

(2) newly-discovered

evidence; and (3) the acquittal of Ritzheimer's Co-Defendants after the trial that began September 7, 2016.

I.

Actual Innocence Based on Law of the Case Ritzheimer contends he is actually innocent of the

conspiracy charged in Count One and that his innocence provides a fair and just reason to withdraw his plea of guilty.

In

particular, Ritzheimer asserts he: pled guilty to Count 1 of the Superseding Indictment based on the legal theory that he conspired to use force to take over the refuge - that is, force against property - rather than force, threats or intimidation against federal employees, which is the legal theory the Government pursued at trial. ¡

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Def.'s Mot.

Document 1926

(#1644) at 3.

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Moreover, Ritzheimer asserts his plea

colloquy focused on the "force" prong of 18 U.S.C. ยง 372, but at trial the government only relied on the "intimidation" and "threat" prongs.

Ritzheimer's arguments, however, cannot withstand even a cursory review of the record of the August 15, 2016, plea hearing.

As noted, Ritzheimer and the Court had the following

exchange during the plea hearing: THE COURT: All right.

And when you say there was a plan to take it to the next level what -- what do you mean by that?

THE DEFENDANT: I believe going to the refuge and forcibly occupying the refuge was taking it -- taking the protest to the next level.

THE COURT: So when you went on that day, in January of 2016, that was because you had agreed to help occupy the refuge 1 then?

THE DEFENDANT:

Yes 1 your Honor.

THE COURT: And did you make that decision knowingly?

Did you know what you were doing?

THE DEFENDANT: THE COURT:

I did, your Honor.

Willfully?

THE DEFENDANT:

Yes 1 your Honor.

THE COURT: And did you know that an object of that agreement, then, was to prevent the federal employees who worked there from discharging their official duties?

THE DEFENDANT:

Yes, your Honor.

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THE COURT:

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By either, force, intimidation, or threat?

THE DEFENDANT: Tr. of Proceedings

Document 1926

Yes, your Honor.

(#1586) at 33-35 (emphasis added).

Ritzheimer's plea colloquy, therefore, matches exactly the elements of the Count One conspiracy underยง 372.

Ritzheimer's

plea colloquy did not rely on any "force-against-property" theory.

Instead Ritzheimer stated unequivocally under oath that

he joined the conspiracy knowing that an object of the agreement was to impede the federal employees from working at the Malheur National Wildlife Refuge by force,

intimidation, or threat. 1

Ritzheimer's claim of "actual innocence," therefore, is unsupported by the record and does not provide a fair and just reason to permit Ritzheimer to withdraw his guilty plea.

II.

Newly-Discovered Evidence

Ritzheimer next contends newly-discovered evidence provides a fair and just reason for the Court to permit him to withdraw his guilty plea.

In particular, Ritzheimer (like Ryan Payne and

Joseph O'Shaughnessy before him) contends subsequent revelations regarding the background and compensation of the government's

1

In his Reply (#1768) Ritzheimer appears to re-characterize this argument as a matter of ineffective assistance of counsel on the ground that counsel's advice concerning this "theory" of guilt was erroneous.

Ritzheimer's re-characterization of this argument in his Reply, however, does not fare any better than his original argument because the "theory" of guilt provided in the factual basis that supported his plea and that Ritzheimer admitted to under oath at the plea hearing was and remains sound. ,-,,_ -

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confidential human sources (CHSs) provide fair and just reasons for the Court to permit Ritzheimer to withdraw his guilty plea.

The Court's rationale rejecting the virtually identical arguments of Payne (see Order (#1642) Denying Defendant Ryan Payne's Motion to Withdraw Guilty Plea, issued December 28, 2016) and O'Shaughnessy (see Order (#1790)

Denying Defendant Joseph

O'Shaughnessy's Motion to Withdraw Guilty Plea, issued January 30, 2017), the Court rejects Ritzheimer's argument that allegedly newly-discovered information concerning the CHSs provides a fair and just reason to permit Ritzheimer to withdraw his guilty plea.

Accordingly, on this record the Court concludes Ritzheimer has not identified any newly-discovered evidence that would provide a fair and just reason for the Court to allow him to withdraw his guilty plea.

III. Subsequent Not-Guilty Verdicts for Co-Defendants

Finally, Ritzheimer contends the acquittal of the CoDefendants and the end of the trial that began September 7, 2016, provides a fair and just reason to permit Ritzheimer to withdraw his guilty plea.

Ritzheimer acknowledges the Court found the

subsequent acquittals of Ritzheimer's Co-Defendants is not a fair and just reason to permit Payne to withdraw his guilty plea. 2 Ritzheimer, nonetheless, attempts to distinguish his Motion from 2

Ritzheimer filed his Reply before the Court ruled on O'Shaughnessy's Motion.

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Payne's Motion on the basis that he, unlike Payne, was actually innocent of the Count One conspiracy.

As noted, however,

Ritzheimer's claim of actual innocence is meritless.

Accordingly, for the same reasons that the Court stated when it found the intervening Not Guilty Verdicts did not provide a fair and just reason to permit Defendants Payne or O'Shaughnessy to withdraw their guilty pleas, the Court also concludes the acquittal of seven Co-Defendants does not provide a fair and just reason to permit Ritzheimer to withdraw his plea of guilty.

This

is especially true in light of the fact that the Court specifically advised Ritzheimer that by pleading guilty he was giving up any chance that a jury may find him not guilty.

Proceedings

(#1586) at 14-15.

Tr. of

Ritzheimer responded he understood

he was giving up that chance, and, nonetheless, he elected to plead guilty.

In the end, as with Defendants Payne and O'Shaughnessy, the Court concludes Ritzheimer's desire to withdraw his guilty plea on this record is another classic example of "buyer's remorse."

As the Court noted during the plea hearing, Ritzheimer is "not free to take [his guilty plea] back" merely because he now regrets his decision.

See Tr. of Proceedings (#1586) at 22-23.

Because Ritzheimer has failed to provide a fair and just reason for the Court to permit him to withdraw his guilty plea, the Court denies Ritzheimer's Motion to Withdraw Guilty Plea.

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CONCLUSION

For these reasons, the Court DENIES Ritzheimer's Motion (#1644) to Withdraw Guilty Plea.

IT IS SO ORDERED. DATED this 22nd day of February, 2017.

United States District Judge

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