United States District Court, D. Montana, Helena Division
CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE
Adam Galliher, Jr. moves to withdraw his guilty plea so that
he can litigate the motion to suppress which was denied as
moot after he moved to change his plea. The United States
opposes the motion and has notified the Court that
Defendant's former counsel will not provide information
regarding his advice to Defendant without a court order.
4, 2018, the United States filed a two-count indictment
charging Mr. Galliher with possession with intent to
distribute methamphetamine in violation of 21 U.S.C. §
841(a)(1) and being a felon in possession of a firearm and
ammunition in violation of 18 U.S.C. § 922(g)(1). Mr.
Galliher was serving time on a related charge filed by the
State of Montana and was writted out of state custody to
appear before Magistrate Judge Johnston on June 7, 2018. He
was represented at the hearing by Hank Branom of the Great
Falls Office of the Federal Defenders of Montana. Deputy
Federal Defender Michael Donahoe (Mr. Donahoe) was appointed
to represent Mr. Galliher in future proceedings.
22, 2018, Mr. Donahoe filed a motion to dismiss Count I of
the indictment on double jeopardy grounds and a motion to
suppress certain evidence. On July 6, 2018, the United States
filed its response to Defendant's pending motions and
Defendant filed a motion to change his plea from guilty to
not guilty. The Court referred Defendant's motion to
change plea to Magistrate Judge Johnston and denied
Defendant's pending motions to dismiss and suppress as
Galliher appeared before Magistrate Judge Johnston in Great
Falls for a change of plea hearing on July 31, 2018. Mr.
Donahoe traveled to Great Falls and represented his client
during that hearing. Magistrate Judge Johnston found that
Defendant's guilty plea was knowing and voluntary and
recommended that the undersigned accept the guilty plea,
which I did, on August 15, 2018.
Court initially set sentencing for October 18, 2018, but
granted Defendant's three unopposed motions to continue,
resulting in sentencing being continued until September 17,
2019. The first request for continuance was prompted by the
submission of the final pre-sentence report, on October 5,
2018. Mr. Donahoe requested a continuance of at least 60 days
so that he could gather additional documents to support his
client's request for a downward departure or variance
from the advisory guideline range. Shortly after granting the
first continuance and moving the sentencing date to April 25,
the Court also extended the deadline for filing sentencing
memoranda until April 18, 2019.
the first continuance was granted, Mr. Donahoe underwent
heart surgery and was unable to work for a number of weeks.
The second motion to continue was submitted on April 3, 2019,
by Assistant Federal Defender Joslyn Hunt, who was covering
Mr. Donahoe's case load, and asked for additional time so
that Mr. Donahoe could complete his recovery. According to
that motion, Mr. Galliher had expressed a preference for
waiting until Mr. Donahoe could represent him because of
their positive working relationship. (Doc. 49 at 2).
Donahoe was able to return to work in time to file a
sentencing memorandum and two sentencing letters on behalf of
his client on April 18, 2019. On May 24, Mr. Donahoe filed an
exparte motion for issuance of subpoenas, which the
Court denied. Mr. Donahoe filed an additional sentencing
letter on May 29, 2019. Mr. Donahoe also filed a notice of
his intent to call witnesses at the sentencing hearing then
set for June 7, 2019.
7, 2019, the date set for Mr. Gallilher's sentencing, Mr.
Donahoe filed a "Motion for Clarification of Plea
Agreement and Alternative Motion to Continue Sentencing
Hearing." Mr. Donahoe noted in his motion that the
Supreme Court would be issuing a decision in Gamble v.
United States which could support Defendant's double
jeopardy claim. Mr. Donahoe had believed that claim was
preserved, even though Defendant had waived his right to
appeal his plea agreement, but had re-read another recent
Supreme Court opinion, Class v. United States, 138
U.S. 798 (2018) the night before, in preparation for
sentencing, and had decided that he should preserve his right
to withdraw the guilty plea, in case the Supreme Court
decided Gamble in a way that favored his client.
Court conferred with Mr. Donahoe and counsel for the
government in chambers and then issued an order continuing
the sentencing until September 17, 2019. The Supreme Court
issued its decision in Gamble on June 17, 2019, and
it did not support Mr. Galliher's double jeopardy
August of this year, Defendant submitted a number of
hand-written documents expressing his dissatisfaction with
Mr. Donahoe. These documents were filed under seal and
electronically served on counsel for the United States and
Mr. Donahoe, but were not designated as motions. On August
29, 2019, the Court held an exparte hearing on the
issue of whether substitute counsel should be appointed. The
Court determined that there had been a breakdown in
communication between Mr. Galliher and Mr. Donahoe and
appointed Palmer Hoovestal, a long-time member of the Helena
CJA panel, to represent Mr. Galliher. Mr. Hoovestal filed a
motion to withdraw guilty plea on behalf of his client on
October 22, 2019.
United States Supreme Court has ruled that a defendant may
only withdraw a guilty plea after its acceptance and prior to
sentencing if he demonstrates a "fair and just
reason." United States v. Hyde,520 U.S. 670,
671 (1997). The Ninth Circuit applies the fair and just
reason standard liberally. United States v.
Ortega-Ascanio, 316 F.3d 879, 883 (9th Cir.
2004). "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." Id. "Erroneous or
inadequate legal advice may also constitute a fair and just
reason for plea ...