United States District Court, E.D. Michigan, Southern Division
Steven Whalen Mag. Judge.
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
WITHDRAW PLEA OF GUILTY 
E. LEVY United States District Judge.
William Frank Snody seeks to withdraw his guilty plea
pursuant to Fed. R. Crim. P. 11(d)(2)(B). Because he fails to
establish that it would be fair and just to do so, his motion
was charged in a two-count information, for receipt and for
possession of child pornography. (See Dkt. 14.) He
pleaded guilty on August 11, 2016, and tendered a Rule 11
plea agreement. (Dkt. 25.) On October 10, 2016, approximately
two months later, he filed a motion to suppress all evidence
obtained from the search of his computer, arguing that recent
cases have found the search warrant illegal, based on the
“Network Investigative Technique” used to
identify his computer. (Dkt. 27.)
government responded with a motion to strike the motion
suppress, arguing that the motion to suppress was moot given
defendant's Rule 11 plea agreement. (Dkt. 29.) Defendant
withdrew his motion to suppress (Dkt. 36), rendering moot the
government's motion to strike. On November 13, 2016,
defendant filed the motion to withdraw his guilty plea at
issue here. (Dkt. 37.)
argues that because recent cases have split regarding the
legality of the NIT warrant used to identify his computer and
whether evidence obtained pursuant to one should be
suppressed, he should be permitted to withdraw his plea to
allow him to file a motion to suppress. (Id. at 3.)
The government responds that defendant's motion should be
denied, because he “cannot show, nor does he even
attempt to, that ‘there [was] a real confusion or
misunderstanding' about the terms of the plea
agreement.” (Dkt. 39 at 1 (quoting United States v.
Ellis, 470 F.3d 275, 280-81 (6th Cir. 2006).) Rather,
according to the government, defendant merely “learned
that others are litigating an issue that he chose not to
withdraw a guilty plea before a sentence is imposed, a
defendant must show “a fair and just reason for
requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). Whether to grant such a motion is within the
district court's discretion. See United States v.
Mader, 251 F.3d 1099, 1105 (6th Cir. 2001). The Sixth
Circuit directs the district court to consider the following
general, non-exclusive “multi-factor balancing
test” to decide whether to grant a motion to withdraw a
(1) the amount of time that elapsed between the plea and the
motion to withdraw it; (2) the presence (or absence) of a
valid reason for the failure to move for withdrawal earlier
in the proceedings; (3) whether the defendant has asserted or
maintained his innocence; (4) the circumstances underlying
the entry of the guilty plea; (5) the defendant's nature
and background; (6) the degree to which the defendant has had
prior experience with the criminal justice system; and (7)
potential prejudice to the government if the motion to
withdraw is granted.
United States v. Haygood, 549 F.3d 1049, 1052 (6th
Cir. 2008) (quotation omitted).
filed his motion to withdraw over two months after entering
his plea of guilty. Thus, the first factor weighs against
granting the motion. United States v. Jannuzzi, No.
07-4521, 2009 U.S. App. LEXIS 4830, at *9 (6th Cir. Mar. 6,
2009) (a thirty-day delay “is at the boundary line
between what is acceptable and what is not”); see
United States v. Dixon, 479 F.3d 431, 436 (6th Cir.
2007) (collecting cases).
the second factor, defendant argues that “he was
unaware, as was his counsel, of the full brea[d]th of case
law and the additional case that supported [his] argument and
that such an argument now appears far more viable under
current law.” (Dkt. 37 at 10.) The government responds
that this reason is invalid, because defendant “had
access to the purported basis for the suppression issue . . .
more than six months prior to his plea.” (Dkt. 39.)
relies on cases in which courts granted motions to withdraw a
guilty plea based on law that developed after the
guilty plea was entered. See, e.g., United
States v. Ortega-Ascanio, 376 F.3d 879, 887 (9th Cir.
2004) (“[Defendant] demonstrated a fair and just reason
for withdrawing his plea, namely, an intervening Supreme
Court decision that overruled Circuit precedent and gave him
a plausible ground for dismissal of his indictment.”).
But some of the cases defendant intends to rely on in his
motion to suppress were decided several months
before he entered his guilty plea. (Dkt. 27 at 4.)
For example, defendant cites two cases for the proposition
that other courts have found that the NIT warrant “was
unlawfully issued and suppressed all fruits of it.”
(Id. (citing United States v. Levin, No.
15-10271, 2016 U.S. Dist. LEXIS 52907 (D. Mass. May 5, 2016);
United States v. Arterbury, No. 15-cr-182, 2016 U.S.
Dist. LEXIS 67091 (N.D. Okla. Apr. 25, 2016).) But those
cases were decided in May and April, several months before
defendant's August 11 plea agreement. And those cases are
persuasive authority at best. Cf. Ortega-Ascanio,
376 F.3d at 887 (9th Cir. 2004) (intervening Supreme Court
case fair and just reason to grant withdrawal).
cites another case that was decided shortly after the plea
(id. (citing United States v. Croghan, No.
1:15-cr-48, 2016 U.S. Dist. LEXIS 127479 (S.D. Iowa Sep. 19,
2016)), but that case is not substantially different from the
others to have addressed the issue. Moreover, the arguments
that were made in those cases to suppress the NIT warrant
were always available to defendant. Defendant may not have
been aware that such arguments had been successful elsewhere,
but the arguments were available nonetheless.
other courts have found, the fact that “[d]efendant was
not made aware that individuals have challenged the legality
of NIT warrants until after his guilty plea was
entered” is an insufficient “basis for the
withdrawal of his plea.” (Dkt. 40 (United States v.
Barker, No. 15-cr-20518) (Parker, J.)); see United
States v. Hughes, 2016 U.S. Dist. LEXIS 116673, at *9-10
(S.D. Tex. Aug 30, 2016) (denying defendant's request to
withdraw his plea, noting that defendant had access to the
NIT warrants and could have filed a motion to suppress prior
to his plea).) Because the relevant case law developed before
the plea was entered-which would only be persuasive authority
anyway-and the underlying arguments were always available to
support a ...