UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.
No. l()-mj-00739 (AK)

FILED

FEB 2 1 28?2

(5) MIRIAM BEN-sHALoM &
(12)1AN F]NKENBINDER,

Defendants.

Clerk, U.S. District & Bankruptcy
Courts for the District m columbia

MEMORANDUM OPINION
Defendants Miriam Ben-Shalom and lan Findenbinder (collectively, "Defendants")
brought a Motion for Leave to Withdraw their Guilty Pleas [66]. The undersigned held a hearing

on the Motion on February 2, 2012 and the l\/Iotion will be denied for the following reasons.

I. FACTUAL BACKGROUND
On Novernber 15, 201 0, Defendants, along with ll others, participated in a protest of the

federal government’s "Don’t Ask, Don’t Tell" policy, handcuffing themselves to the White
House fence. (Defs.’ Mot. to Withdraw Plea of Guilty [66] ("Defs.’ Mot. to Withdraw") at l.)
The United States Park Police ordered Defendants to disperse, and Defendants refused. (Id.)
They were arrested along with the other protesters and charged with failure to obey a lawful order
under 36 C.F.R. § 2.32(a)(2). (Gov’t’s Mot. to Dismiss Defs.’ Mot. to Withdraw Plea of Guilty

[102] ("Gov’t’s Mot. to Dismiss") at l.)

Defendants were offered a deferred-sentencing agreement ("DSA"), which they accepted,
along with lO of the ll other protesters. (See Plea Agreement [44] at 6-7.) Under the DSA, in
return for pleading guilty, Defendants’ sentencing was deferred for four months, until September
lO, 201 l. (Id. at 3.) The Govemment agreed that if Defendants did not get arrested and
otherwise complied with the conditions of the agreement during that four month period, the
Govemment would file a motion for dismissal of the charges. (Id.) Dan Choi (“Choi") was the
only protester to decline the DSA. (Defs.’ Mot. to Withdraw at 2.) Choi went to trial before
Magistrate Judge John Faccio1a and was acquitted in a case currently on appeal with the United
States Court of Appeals for the District of Columbia. (Defs.’ Mot. to Withdraw at 2; Notice of
Appeal [93].)

During the plea proceedings, the undersigned asked questions of Defendants, including:
(l) whether they understood the charges brought against them; (2) whether they recalled signing
the plea agreement; (3) whether they were pleading guilty because they were indeed guilty; and
(4) whether they had been coerced into signing the plea agreement. (See Gov’t’s Mot. to Dismiss
at 3.) Each of the Defendants answered in the affirmative to the first three questions and
negative to the last question. (Id. at 4-5.) When asked how they pleaded, Finkenbinder answered
“guilty" and Ben-Shalom answered "guilty but I’m not a criminal." (Gov’t’s Mot. to Dismiss at
7.)

Ben-Shalom also gave an individual statement in which she said: "[t]odayl stand here
before this Court being required to make a plea concerning criminal conduct misdemeanor of
appropriately protesting a bad law." (Id.) The Govemment asked that she clarify her statement

that she was "required to plead guilty." The undersigned inquired of Ben-Shalom further as to

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whether she felt as though she was forced into pleading guilty and reminded her of her right to go
to trial. (Id. at 7-8.) Ben-Shalom responded: "yeah, I didn’t obey the order, okay? I’m guilty."
(Id. at 8.)

On Monday, September 12, 201 l, the Govemment filed a Motion to Dismiss regarding
the 12 protesters who participated in the DSA, including Defendants. (Ia’. at 9.) Pre-Tria1
Services Agency submitted a status report stating that Defendants had complied with the
conditions of the DSA. (Id. at 9-10.) On the afternoon of September 12, 2011, the undersigned
signed an order granting the Motion to Dismiss, and the order was entered on September 13,

201 l. (Order Granting Motion by USA to Dismiss Case, [65].)

Also on the morning of September 12, 201l, Mark Goldstone ("Goldstone"), counsel for
Defendants, contacted Assistant United States Attorney Angela George ("George") to confirm
that the Govemment was going to dismiss the charges as provided in the DSA. (Defs.’ Mot. To
Withdraw at 3.) At the hearing before the undersigned on February 2, 2012, Goldstone clarified
the time line of relevant events. He stated that George continued via e-mail at 12: 14 pm on
September 12, 2011 that a Motion to Dismiss had been prepared and sent to the undersigned.
Around the same time, Goldstone was contacted by Choi, who detailed alleged issues with the
arrest and prosecution of all the protesters that were uncovered during Choi’s trial before
Magistrate Ju.dge Facciola.

On the afternoon of September 12, 2011, Goldstone convened a conference call with the
12 protesters who had pleaded guilty. (Id.) He outlined the information from Choi and asked if
any of the protesters wished to withdraw their guilty pleas. (Id.) Defendants requested that their

guilty pleas be withdrawn. (Id.) Goldstone stated at the hearing that on September 13, 2012, at

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2:02 pm, Goldstone e-mailed a group of people, including George, and Deborah Mulligan, law
clerk for the undersigned, notifying them that Defendants wished to withdraw their guilty pleas.
Goldstone noted that he left additional phone messages and sent additional emails to the

undersigned’s chambers that afternoon.

II. DISCUSSION

Federal courts are courts of limited jurisdiction, whose power only extends to deciding
actual "cases" or "controversies" between parties. U.S. CONST., art. llI, § 2, cl. l; U.S. Parole
Comm ’n v. Geraghly, 445 U.S. 388, 395-96, 100 S.Ct. 1208 (l980). The controversy "must be
extant at all stages of review." Alvarez v. Smith, __ U.S. _, 130 S. Ct. 576, 580 (2009). A
court’s power to issue relief is dependant upon the court’s jurisdiction over the controversy.
United States v. Denedo, 129 S. Ct. 2213, 2221 (2009).

The standard for whether a defendant may withdraw a guilty plea depends upon: (l)
whether the judge has accepted the guilty plea; and (2) whether the defendant has been
sentenced. Fed. R. Crim. P. ll(d). Generally, where the judge has accepted a guilty plea but the
defendant has not yet been sentenced, the defendant must show a "fair and just reason" for
requesting the withdrawal. Fed. R. Crim. P. ll(d)(2)(B). After the defendant has been
sentenced, the guilty plea may not be withdrawn. Fed. R. Crim. P. 11(e).

Rule ll is not applicable here because Ben-Shalom and Findenbinder were never
sentenced, rather, their case was dismissed prior to sentencing following their deferred
sentencing agreement. (Order granting Motion by USA to Dismiss Case.) The undersigned

signed the order granting the Government’s Motion to Dismiss on September 12, 2011. (Id.)

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Defendants contend in their Motion to Withdraw that through counsel, they "attempted to notify
the Magistrate Judge (and also notified AUSA George) to not sign the Dismissal Order because
they intended to withdraw their plea" and that "this notification took place before the Judge
signed the order which dismissed the cases." (Defs.’ Mot. to Withdraw at 6.) However, the time
line of events Defense Counsel offered during the hearing before the undersigned on February 2,
2012 belie that statement. To the contrary, Defense Counsel made clear that the attempt to notify
the undersigned occurred on the aftemoon of September 13, 2011, the day after the undersigned
signed the Motion to Dismiss.

Accordingly, no live controversy existed on the afternoon of September 13, 201 l, when
Defendants expressed their desire to withdraw their guilty pleas. Without a live controversy, this
Court lacks jurisdiction to grant any relief to Defendants, including the withdrawal of their guilty
pleas. See Denedo, 129 S. Ct. at 2221 .‘ In order for a case or controversy to be recreated, the
dismissal would need to be vacated, an issue that is not before the Court at this time.z Because

the dismissal remains valid, Defendants’ motion must be denied.

‘ The two defendants had four months to file a motion to withdraw their pleas of guilty
before the case was dismissed and failed to do so.

zDefendants have cited no federal statute or case law that authorizes a court to vacate a
dismissal by the prosecuting authority for the purpose of setting aside a voluntary plea of guilty.

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III. CONCLUSION
For the reasons set forth, Defendants’ Motion for Leave to Withdraw their Guilty Pleas

will be denied for lack of jurisdiction. A separate order will accompany this opinion.

/'
Da'[€j  j\etL_   

ALAN KAY
UNITED STATES AGISTRATE JUDGE

