BILLY J. WILLIAMS, OSB #901366 

United States Attorney 

District of Oregon 

ETHAN D. KNIGHT, OSB #992984 

GEOFFREY A. BARROW 

CRAIG J. GABRIEL, OSB #012571 

Assistant United States Attorneys 

ethan.knight@usdoj.gov

geoffrey.barrow@usdoj.gov 

craig.gabriel@usdoj.gov

1000 SW Third Ave., Suite 600 

Portland, OR 97204-2902 

Telephone: (503) 727-1000 

Attorneys for United States of America 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

UNITED STATES OF AMERICA 

 v. 

RYAN PAYNE, 

 Defendant.

3:16-CR-00051-BR-4 

GOVERNMENT’S RESPONSE TO 

DEFENDANT’S MOTION TO 

WITHDRAW GUILTY PLEA AND 

PROCEED TO TRIAL BY JURY (#1421) 

 The United States of America, by Billy J. Williams, United States Attorney for the 

District of Oregon, and through Ethan D. Knight, Geoffrey A. Barrow, and Craig J. Gabriel, 

Assistant United States Attorneys, hereby responds to defendant Ryan Payne’s Motion to 

Withdraw Guilty Plea and Proceed to Trial by Jury (ECF No. 1421). 

Defendant’s Motion to Withdraw his plea should be denied because he has failed to 

identify a fair and just reason that should prompt this Court to exercise its discretion to undo his 

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Government’s Response to Defendant’s Motion to Withdraw Guilty Plea and 

Proceed to Trial by Jury (#1421) 

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plea deal. Permitting withdrawal at this point would prejudice the government and the Court 

because it would require that he be tried apart from his co-defendants at some point after his 

currently set trial in Nevada. 

Rule 11 provides that a defendant may only withdraw his guilty plea before sentencing 

if he can show a fair and just reason for requesting the withdrawal. See Fed. R. Crim. P. 

11(d)(2)(B). Defendant bears the burden of making this showing. United States v. Davis, 428 

F.3d 802, 805 (9th Cir. 2005). 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. (quoting 

United States v. Ortega-Ascanio, 376 F.3d 879, 883 (9th Cir. 2004)) (emphasis deleted). The 

thoroughness of the Rule 11 colloquy is another factor to consider. United States v. Nostratis, 

321 F.3d 1206, 1209 (9th Cir. 2003). The decision to permit a defendant to withdraw his plea is 

committed to this Court’s sound discretion. United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 

1995). 

While the “fair and just” standard is “generous and must be applied liberally,” United 

States v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009), a defendant cannot withdraw his plea 

“simply on a lark,” id. (citations and quotations omitted), or because of “a change of heart.” 

United States v. Graibe, 946 F.2d 1428, 1431 (9th Cir. 1991). The act of pleading guilty is a 

“grave and solemn act” that should not be easily undone. Ensminger, 567 F.3d. at 593. A 

defendant’s solemn declaration in open court at a plea colloquy carries a strong presumption of 

veracity. United States v. Rubalcaba, 811 F.2d 491, 494 (9th Cir. 1987) (citations omitted). 

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Government’s Response to Defendant’s Motion to Withdraw Guilty Plea and 

Proceed to Trial by Jury (#1421) 

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Overall there is a very strong preference to preserve the entry of a guilty plea. United States v. 

Hyde, 520 U.S. 670, 676 (1997). “Once the plea is accepted, permitting withdrawal is, as it 

ought to be, the exception, not an automatic right.” Ensminger, 567 F.3d at 593. 

Payne does not claim, nor does the record support that his Rule 11 colloquy was deficient 

in any way. This Court emphasized throughout the change of plea hearing that defendant’s 

entry of a guilty plea—if accepted—would be a “permanent and valid decision.” (Plea Hr’g 

Tr. 9, July 19, 2016, ECF No. 965). See also (Plea Hr’g Tr. 27) (“Today’s decision is 

permanent. It carries the same weight as if a jury found you guilty. You can’t, tomorrow or 

the next day, or whatever, just say, Well, I want out. Because it’s – it’s not allowed.”); and Id. 

(“THE COURT: I just need you to understand this is a permanent time, one way or the other, 

under the plea. THE DEFENDANT: I understand.”). 

Defendant points to evidence he inaccurately claims was produced following his guilty 

plea. In fact, the video recording and Confidential Human Source information cited in 

defendant’s Motion were produced to defense counsel prior to his guilty plea. See Attachments 

A and B. Further, defendant cannot claim that the video evidence is “new” since it is a 

recording of his own statements—something he was well aware of at the time, given the charged 

conspiracy’s active promotion of its various messages. See United States v. Showalter, 569 

F.3d 1150, 1155 (9th Cir. 2009) (affirming trial court’s denial of a motion to withdraw because 

newly “available” evidence was not newly “discovered” evidence). Moreover, any suggestion 

that Payne perceived the government’s case as weaker than he anticipated based on this video 

simply is not an intervening circumstance that would justify withdrawal from his plea deal with 

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Government’s Response to Defendant’s Motion to Withdraw Guilty Plea and 

Proceed to Trial by Jury (#1421) 

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the government. See Id. (rejecting a defense argument that his appraisal of the strength of the 

government’s case constituted a fair and just reason to withdraw his plea). 

Instead, defendant’s Motion hinges primarily on the fact that he was unable to secure a 

plea deal with federal prosecutors in Nevada.1

 The agreement with the U.S. Attorney’s Office 

in Oregon, was not, however, contingent on defendant securing a deal with Nevada. In fact, the 

plea agreement itself expressly stated that the Nevada USAO was not a party to the agreement: 

“The defendant expressly understands that the United States Attorney’s Office for the District of 

Nevada is not a party to this agreement.” (ECF No. 905, at 1). The plea agreement went 

further, explaining that the USAO for Nevada was “not entering into any agreement with 

defendant or making any promises to defendant” with respect to the charges pending in that 

district. Id.

Moreover, defendant demonstrated that he understood that his guilty plea in the Oregon 

case was made because he was actually guilty of the Oregon charges, and not because his plea 

was contingent upon a global resolution. (Plea Hr’g Tr. 38-39, 42-45). In fact, defense 

counsel confirmed at the time of Payne’s guilty plea that any agreement with the Nevada USAO 

was “only a contemplated agreement.” (Plea Hr’g Tr. 10, 12). The interrelation between the 

two districts was limited to the government’s promise that it would recommend that defendant 

serve any sentence in this case concurrent with any sentence that might be imposed in Nevada. 

Id. at 35. Whether defendant is sentenced on the Nevada charges as the result of a guilty 

 

1

 It should be noted that the government disputes defendant’s account of his Nevada plea 

negotiations. 

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Government’s Response to Defendant’s Motion to Withdraw Guilty Plea and 

Proceed to Trial by Jury (#1421) 

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verdict or a guilty plea, or whether he receives no sentence because of an acquittal, the terms of 

his Oregon plea agreement remain unchanged and unaffected by the events in Nevada. This 

was all made clear to him in the written plea agreement and during his change of plea hearing, 

and as a consequence, his failure to secure a plea deal with the Nevada USAO cannot satisfy the 

fair and just standard for withdrawal of his otherwise valid guilty plea in this case. 

Defendant further cites his alleged “equivocation” as a fair and just reason to withdraw 

his guilty plea. But he fails to cite any authority for this novel proposition. Even if this stated 

rationale were to fall within the generic “interests of justice” exception, it should be rejected in 

this case. Payne affirmatively told this Court that he understood the government’s evidence, 

that he understood that his actions were threatening and intimidating to federal officers, and that 

he was consequently guilty of the conspiracy charge. His statements satisfied this Court that he 

was truly guilty of the charge, and his attempt to divine some equivocation for purposes of his 

current Motion should be rejected. To hold otherwise could encourage defendant and others to 

similarly “equivocate” during Rule 11 hearings simply to create wiggle room for later 

withdrawal motions. 

Finally, when defendant entered his guilty plea he knew that his co-defendants were 

proceeding to trial. Publicly, his co-defendants made clear that they planned to mount a 

vigorous defense that would include a number of claimed constitutional bases for their charged 

actions. The fact that seven of his co-defendants were acquitted was a distinct possibility when 

Payne entered his guilty plea; the fact that it came to pass does nothing to undermine his own 

knowing and intelligent plea. Although this Court unquestionably has discretion to permit 

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Government’s Response to Defendant’s Motion to Withdraw Guilty Plea and 

Proceed to Trial by Jury (#1421) 

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Payne to withdraw his guilty plea when co-defendants are acquitted, see, e.g., United States v. 

Schwartz, 785 F.3d 673, 678 (9th Cir. 1986), nothing compels that result. In fact, because the 

government would be prejudiced because it would have to try Payne separately, several courts 

have affirmed trial courts that have denied motions to withdraw despite co-defendants’ 

acquittals. See, e.g., United States v. Giorgio, 802 F.3d 845, 849 (6th Cir. 2015) (finding 118- 

day delay “substantial” and affirming denial of a motion to withdraw despite co-defendants’ 

acquittals); United States v. O’Hara, 960 F.2d 11, 14-15 (2d Cir. 1992) (affirming trial court’s 

denial of a motion to withdraw following acquittal of co-defendants based in part on prejudice to 

government in having to try defendant separately); and United States v. Picone, 773 F.3d 224, 

226 (8th Cir. 1985) (affirming denial of motion to withdraw following co-defendants’ acquittals). 

To permit a withdrawal at this point would also prejudice the government and the 

administration of justice. Although the government is not required to show prejudice when a 

defendant fails to show a fair and just reason to withdraw, this Court may consider prejudice in 

exercising its discretion. United States v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985). Payne 

filed his Motion before the jury reached a verdict in his co-defendants’ trial, but well after that 

trial commenced. Another group is set for trial in this Court in February of 2017, but that date 

conflicts with Payne’s currently scheduled trial date in Nevada. As this Court is well aware, 

trial in this case has consumed tremendous time and resources. Had Payne maintained his not 

guilty plea, he would have been part of the group trial that took place over the past month. 

Permitting withdrawal at this late date will likely require that Payne be tried alone, sometime 

after his Nevada case, and without the efficiencies enjoyed through joinder with his coCase 3:16-cr-00051-BR Document 1544 Filed 11/07/16 Page 6 of 7
Government’s Response to Defendant’s Motion to Withdraw Guilty Plea and 

Proceed to Trial by Jury (#1421) 

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defendants. This is just one of many factors that serve as a sound basis to deny his Motion to 

Withdraw. 

 Dated this 7th day of November 2016. 

 Respectfully submitted, 

BILLY J. WILLIAMS 

 United States Attorney 

 s/ Craig J. Gabriel 

 ETHAN D. KNIGHT, OSB #992984 

 GEOFFREY A. BARROW 

 CRAIG J. GABRIEL, OSB #012571 

 Assistant United States Attorneys 

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