Memorandum Opinion and Order - Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

UNITED STATES OF AMERICA, §

§

Plaintiff, §

§

v. § Criminal No. 3:04-CR-0036-L

§

EMMANUEL UKO AKPAN, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the court is Defendant Emmanuel Uko Akpan’s Motion to Withdraw Guilty Plea,

filed October 18, 2004. After consideration of the motion, Defendant’s brief, response, testimony

and exhibits introduced at the hearing on February 7-8, 2005, record, and applicable authority, the

court denies Defendant Emmanuel Uko Akpan’s Motion to Withdraw Guilty Plea.

I. Factual Background

On February 3, 2004, the grand jury indicted Defendant Emmanuel Uko Akpan (“Defendant”

or “Akpan”) on a health care fraud offense, a violation of 18 U.S.C. §§ 1347, 24(b), and 2, and on

four counts of engaging in monetary transactions in property derived from specified unlawful

activity, violations of 18 U.S.C. § 1957(a). On April 16, 2004, Akpan signed a plea agreement in

which he admitted that his “plea of guilty is freely and voluntarily made and is not the result of force

or threats, or of promises apart from those set forth in this plea agreement.” Plea Agreement ¶ 10.

Akpan also signed a factual resume on April 16, 2004, in which he admitted that he committed the

essential elements for Count 1 of the Indictment, namely, aiding and abetting in a scheme and

artifice to commit health care fraud, in violation of 18 U.S.C. §§ 1347, 24(b), and 2. He also
1

The essential elements are those factual matters which the government must prove by competent evidence

beyond a reasonable doubt to obtain a conviction.

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admitted that he committed the essential elements of Count 4 of the Indictment, namely, engaging

in a monetary transaction in property derived from specified unlawful activity, in violation of 18

U.S.C. § 1957(a).1 On May 17, 2004, Akpan pleaded guilty to Counts 1 and 4, and admitted in open

court that he committed the essential elements of the offenses set forth in Counts 1 and 4 of the

Indictment. At the conclusion of the rearraignment hearing on May 17, 2004, the court found Akpan

guilty of the offenses charged in Counts 1 and 4 of the Indictment.

Akpan seeks to withdraw his plea of guilty, as he contends that he was coerced into signing

the factual resume and plea agreement by his then-attorney Mr. Sam Ogan (“Ogan”). He also

contends that he requested Ogan to file a motion to withdraw his plea of guilty but Ogan refused.

II. Standard for Withdrawal of Guilty Plea

Prior to sentencing, the court may use its discretion to grant a motion to withdraw a guilty

plea if the defendant presents a “fair and just reason for requesting the withdrawal.” Fed. R. Crim.

P. 11(d)(2)(B); United States v. Lampazianie, 251 F.3d 519, 524 (5th Cir. 2001). There is no

absolute right to withdraw a guilty plea, and the defendant bears the burden of establishing a fair and

just reason for withdrawal. United States v. Brewster, 137 F.3d 853, 857-58 (5th Cir. 1998). When

ruling on the motion, the court should consider whether: (1) the defendant asserted his innocence;

(2) withdrawal would prejudice the government; (3) the defendant delayed in filing the withdrawal

motion; (4) withdrawal would inconvenience the court; (5) adequate assistance of counsel was

available; (6) the plea was knowing and voluntary; and (7) withdrawal would waste judicial
2

This court refers to the matters that it must consider in determining whether to allow the withdrawal of a guilty

plea as the Carr factors.

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resources. United States v. Mendoza-Mata, 322 F.3d 829, 834 (5th Cir. 2003) (citing United States

v. Carr, 740 F.2d 339, 343-44 (5th Cir. 1984)).2

 

The court need not make a finding as to each Carr factor, as it makes its determination based

on the totality of the circumstances. United States v. Powell, 354 F.3d 362, 370-71 (5th Cir. 2003);

Brewster, 137 F.3d at 858. Moreover, a defendant’s assertion of conclusory allegations does not

warrant withdrawal of a plea of guilty, at least where such allegations are clearly refuted by the

record. United States v. Bounds, 943 F.2d 541, 543 (5th Cir. 1991). 

III. Analysis

The court has considered each Carr factor and, although not required, made individualized

findings as to each factor. Based upon a totality of the circumstances, the court finds that Akpan

fails to establish a fair and just reason why his guilty plea should be withdrawn. Accordingly, the

court, for the reasons herein stated, will deny Akpan’s motion to withdraw guilty plea.

A. Knowing and Voluntary Plea of Guilty

Akpan contends that the guilty plea he entered at his rearraignment was not knowing and

voluntary because of his prior “[c]ounsel’s errors and deficiencies with regard to the factual issues

presented in this case.” For a plea to be knowing and voluntary, a “defendant must be advised of

and understand the consequences of the [guilty] plea.” United States v. Gaitan, 954 F.2d 1005, 1011

(5th Cir. 1992) (citing United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990)). The

consequences of a guilty plea, with respect to sentencing, “mean only that the defendant must know

the maximum prison term and fine for the offense charged.” United States v. Rivera, 898 F.2d 442,

447 (5th Cir. 1990) (citations and quotations omitted). This court specifically informed Akpan, as
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the record establishes, of the maximum statutory sentence (ten years) and fine ($250,000, or twice

the monetary gain to Defendant Akpan or loss to the victim, whichever is greater) that he could

receive for the offenses to which he pleaded guilty. The court also inquired whether Akpan and his

then-counsel had discussed the Sentencing Guidelines’ range of punishment, and he answered that

they had discussed the possible guideline range, that is, the sentence he could receive under the

Sentencing Guidelines. Moreover, the court informed Akpan of certain rights that he would lose

(right to vote, right to serve on a jury, right to hold public office, and right to possess a firearm) if

the court accepted his plea and adjudged him guilty of the felonies to which he intended to plead

guilty. Akpan stated he understood that he would lose these rights. 

Further evidence in the record establishes that Akpan was aware of the consequences of his

plea. The plea agreement he voluntarily signed correctly states the maximum statutory term of

imprisonment and fine. See Plea Agreement 1-2. Prior to accepting his plea, the court informed

Akpan about these statutory maximums. Thereafter, Akpan acknowledged that he realized what the

possible punishment entailed if he entered a plea of guilty. He also stated that he understood the

essential elements of a violation of 18 U.S.C. §§ 1347, 24(b), and 2, and a violation of 18 U.S.C. §

1957(a) and then admitted to committing each. In addition, he testified unequivocally that the facts

set forth in the factual resume were true and correct. Finally, Akpan confirmed his understanding

that, by pleading guilty, he would be adjudged guilty of the offenses charged in the Counts 1 and

4 of the Indictment and waive his right to appeal or otherwise challenge his sentence, except in the

limited circumstances set forth in the plea agreement. Akpan made these acknowledgments under

oath in open court, and each carries a strong presumption of verity. See Blackledge v. Allison, 431

U.S. 63, 74 (1977); Lampazianie, 251 F.3d at 524. 
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Finally, the court asked whether the plea of guilty was voluntary and of Akpan’s own free

will, and whether Akpan was pleading guilty because he was in fact guilty. Akpan answered these

questions “yes” under oath. The court also inquired of Akpan whether anyone had threatened him

or attempted to force him to plead guilty, and he answered “no.” With respect to the involuntariness

of his plea, nothing comes even marginally close to establishing that Akpan’s plea was “the product

of . . . misunderstanding, duress, or misrepresentation by others as to make the guilty plea a

constitutionally inadequate basis for imprisonment.” Blackledge, 431 U.S. at 75. 

 Further, the court listened carefully to the testimony of Akpan and Ogan. After careful

observation of the demeanor of each, their candor, and what is at stake for each, the court determines

that Ogan was the more credible witness. Moreover, from the record, the court is convinced that

Akpan’s true protests of innocence came some time after the presentence report was issued in early

July 2004. The record supports that Akpan wanted a guarantee or assurance from Ogan about the

sentence he would receive – an assurance that Ogan could not give him. The record also reflects

that Akpan wanted some assurance or guarantee of the result if the case proceeded to trial. Again,

neither Ogan nor any other attorney can guarantee or promise a client that a specific result will

occur.

The court is aware that plea negotiations and the overall process can be quite intense, and

this is not at all unusual. The record reveals that there was considerable “to and fro” between Ogan

and Akpan; however, taking into account the entire record and the testimony at the hearing, the court

is convinced that the ultimate decision by Akpan to plead guilty was knowing and voluntary. Mr.

Akpan is a quite strong-willed individual and is not one who will let someone convince him to do
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anything he does not want to do. This aspect of Akpan’s personality was observed by the court on

several occasions during the hearing. 

At one point during the hearing, the court asked Akpan what threats were made by Ogan, and

he responded that Ogan told him that he was “going to end up like Mandela doing a lot of time in

prison.” Akpan believed that this statement was threatening because it meant that he would not see

his children “grow up” while he was serving a long prison term like Nelson Mandela. Akpan further

believed that the reference to Mandela, a civil rights activist in South Africa, was a threat because

Mandela was “locked up” for “many years because he stood up for what was right.”

Ogan explains that during a spirited discussion he told Akpan that he “could sit in jail like

Nelson Mandela did and serve his sentence.” This exchange took place when Ogan was explaining

to Akpan various courses of action he could take regarding matters relating to his guilty plea. The

reference to Nelson Mandela in light of his unjust imprisonment was not the best analogy to use and

is certainly no cause for approbation; however, the court does not believe that the statement

constitutes a threat or coercion on Ogan’s part. It was a frank statement that if Akpan chose not to

plead guilty and not to cooperate with the government, he ran the risk of staying in jail pending trial,

losing at trial, and ultimately serving a long prison sentence. The statements by counsel merely

reflected the reality of what could happen, depending on what course of action Akpan elected to

pursue. The reference to Mandela was unfortunate but not coercive or threatening.

For all these reasons, it is without cavil that Akpan voluntarily and knowingly pleaded guilty

and was fully aware of the consequences of his guilty plea. For this reason, the “knowing and

voluntary” factor strongly weighs against allowing Akpan to withdraw his plea of guilty. 
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B. Delay and Assertion of Innocence

The first time Akpan asserted his innocence to the court after his plea of guilty was on

October 18, 2004, which was five months after his plea of guilty on May 17, 2004. He wrote a letter

to Ogan on September 24, 2004, requesting Ogan to move to withdraw his guilty plea. Ogan

responded by letter, dated September 29, 2004, and stated that he would not file such a motion and

that Akpan could seek another attorney to represent him if he chose to do so. Sentencing in this case

was originally set for September 7, 2004, but was reset to October 18, 2004.

The “rationale for allowing a defendant to withdraw a guilty plea is to permit [him] to undo

a plea that was unknowingly made at the time it was entered.” Carr, 740 F.3d at 345 (citing Everett

v. United States, 336 F.2d 979, 984 (D.C. Cir. 1964)). The purpose is not to enable a defendant “to

make a tactical decision to enter a plea, wait several weeks, and then obtain a withdrawal if [he]

believes that [he] made a bad choice in pleading guilty.” Id. (emphasis added). The court in Carr

found a defendant’s motion to withdraw to be “not promptly filed” when the defendant filed a

motion 22 days after entering his guilty plea. See Carr, 740 F.2d at 345. Moreover, the court in

Brewster denied a defendant’s motion to withdraw his plea of guilty where the defendant sought to

withdraw three months after his plea. See Brewster, 137 F.3d at 858. As indicated before, the court

believes that Akpan’s desire to withdraw was prompted after he had seen the presentence report in

this case and when his lawyer could not assure him of the sentence he would receive. In this case,

Akpan waited five months (150 days) to withdraw his guilty plea. Based on the facts and applicable

law, these two factors weigh against allowing him to withdraw his guilty plea.
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C. Prejudice to the Government

Akpan asserts that no prejudice to the government would occur if the court were to allow him

to withdraw his guilty plea. The government presented argument that it would be prejudiced if he

is allowed to withdraw. The court disagrees. The government has not presented any evidence that

it would be legally prejudiced in prosecuting this case, that is, that witnesses have disappeared or

are no longer available, or that documentary evidence is no longer available. In other words, the

government could effectively prosecute this case and present it to a jury for determination.

Accordingly, this factor weighs in favor of allowing Akpan to withdraw his guilty plea.

D. Ineffective Assistance of Counsel

Many of the court’s findings and observations in section III(A) are equally applicable to this

factor. As the court previously observed, there is ample evidence in the record that Akpan wanted

Ogan to guarantee or promise a certain outcome if the case proceeded to trial and a specific sentence

if he pleaded guilty. Ogan was in no position to do this. At his rearraignment, the court specifically

informed Akpan that neither the court nor his attorney would be able to determine the sentence

yielded by the Sentencing Guidelines until the presentence report had been filed and the parties had

an opportunity to object to the facts reported by the probation office and the recommendation made

by the probation office regarding the application of the Sentencing Guidelines. Akpan testified that

he understood all of this, and understood that no one could predict in advance what his sentence

would be. Finally, the court inquired whether Akpan was “fully satisfied” with his attorney and the

advice and representation provided to him by his attorney, and he answered, “Yes, Your Honor.”
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The problem with Akpan’s argument regarding his prior counsel is that he totally overlooks

his repeated admissions regarding his conduct and the role he played in the commission of the

offenses to which he pleaded guilty. Akpan admitted his criminal conduct regarding the two

offenses to which he pleaded guilty in the plea agreement, in the factual resume, and in the plea

hearing held before the court on May 17, 2004. Further, Akpan signed the plea agreement and

factual resume. Although he had ample opportunity to inform the court that his plea was “forced”

and to express dissatisfaction with his counsel, he did not do so when the court took his plea.

The court observed Akpan for approximately thirty minutes at his rearraignment, and at no

time did he indicate or state that he was reluctant or uncomfortable about pleading guilty. He did

appear embarrassed and a bit nervous at the proceeding, but such is the case with the majority of

persons who enter a plea of guilty. His answers were direct and without hesitation. He fully

understood the questions asked and did not ask the court to explain any questions.

As previously stated, the court is convinced that Akpan’s plea was knowing and voluntary.

The court is further convinced that Akpan was dissatisfied with the sentence he might receive if the

court adopted the presentence report, and this is when he really began to become disenchanted with

Ogan. Ogan refused to provide guarantees as to the sentence he might receive, and his attorney

declined to file a motion for Akpan to withdraw his guilty plea. Moreover, Akpan was concerned

that the United States Attorney had not filed a motion on his behalf for substantial assistance

pursuant to section 5K1.1 of the United States Sentencing Guidelines.

In light of United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines are no

longer mandatory; they are advisory only. At sentencing, Akpan will have an opportunity to address

the Sentencing Guidelines and the sentencing factors set forth in 18 U.S.C. § 3553(a). A sentencing
3

The record fully documents the meetings and exchanges between Akpan and Ogan when they met, and the

court finds it unnecessary to repeat here what transpired.

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judge may not presume that a guidelines range is reasonable, Gall v. United States, 128 S.Ct. 586,

596-97 (2007), and must consider each of the sentencing factors set forth in 18 U.S.C. § 3553(a).

Id. at 597. Akpan will have an opportunity to present evidence of any mitigating factors and to

argue why the court should impose a sentence outside the applicable range called for under the

Sentencing Guidelines.

Finally, the court determines that Akpan has not shown that his prior “counsel’s

representation fell below an objective standard of reasonableness” and that “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 688 (1984). From the court’s perspective,

adequate assistance from counsel was available during the time that Akpan’s prior counsel

represented him, and Akpan received effective counsel from his prior attorney.3 For all reasons

stated herein, this factor weighs against allowing Akpan to withdraw his guilty plea. 

E. Substantial Inconvenience to the Court and Waste of Judicial Resources

With respect to whether the withdrawal of the guilty plea would substantially inconvenience

the court or would waste judicial resources, it is axiomatic that additional time would be expended

if the court were to allow Akpan to withdraw his guilty plea and allow the matter to proceed to trial;

however, these factors are of no moment in this case. The court does not base this or any of its

decisions on inconvenience or the amount of time it takes to decide constitutional issues and matters

that relate to one’s guilt or innocence, as it expends whatever time is necessary to reach a just result.

Put another way, these two factors do not negatively affect the court’s consideration of Defendant’s

motion. These factors are neutral and weigh in favor of neither the government nor Mr. Akpan. The
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court’s decision to deny Akpan’s motion is based on the overwhelming strength of the factors that

do not weigh in favor of withdrawal of the guilty plea.

IV. Conclusion

For the reasons stated herein, the court determines that the totality of circumstances does not

establish a fair and just reason for allowing Akpan to withdraw his guilty plea. Accordingly, the

court denies Defendant’s Motion to Withdraw Guilty Plea. The court will issue a new sentencing

schedule by separate order.

It is so ordered this 5th day of December, 2008.

_________________________________

Sam A. Lindsay

United States District Judge