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United States v. Galliher

United States District Court, D. Montana, Helena Division

November 18, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ADAM GALLIHER, JR., Defendant.

          ORDER

          CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE

         Defendant 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.

         BACKGROUND

         On May 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.

         On June 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 moot.

         Mr. 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.

         The 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.

         After 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).

         Mr. 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.

         On June 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.

         The 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 argument.

         In 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.

         LEGAL STANDARD

         The 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 ...


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