Defendant's MOTION to Withdraw Plea of Guilty by Andre Lorquet — USA v. Lorquet (Dkt. 85)

Record facts

U.S. District Court for the Southern District of Florida · No. 1:22-cr-20326-KMM · Doc. 85 · 2023-09-18 · Docket on CourtListener

Summary

A motion to withdraw guilty plea filed by defendant Andre Lorquet on September 18, 2023 as Doc. 85 in United States v. Lorquet, No. 1:22-cr-20326-KMM, in the U.S. District Court for the Southern District of Florida. The motion's facts section states that Mr. Lorquet told his former lawyer he did not wish to plead guilty, particularly to count nine of the indictment, and avers that he was pressured to go through a change of plea hearing. Its memorandum of law cites Fed. R. Crim. P. 11(d)(2)(B) and argues that each factor considered by courts, including close assistance of counsel, voluntariness, judicial resources and prejudice to the government, favors withdrawal. The 6-page motion is signed by counsel Henry P. Bell and includes a certificate of service.

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Full text

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UNITED STATES DISTRICT COURT  
SOUTHERN DISTRICT OF FLORIDA  
 
CASE NO. 22-20326-CR-KMM 
 
UNITED STATES OF AMERICA,  
 
 
 
 
_____________________________/ 
 
MOTION TO WITHDRAW GUILTY PLEA 
 
Defendant, Andre Lorquet, moves to withdraw his guilty plea. 
FACTS 
 
On November 22, 2023, Mr. Lorquet was arrested and appeared before the 
duty Magistrate Judge. ECF 7 (minute order on Mr. Lorquet’s initial appearance).  
 
While the case was pending, Mr. Lorquet’s lawyer discussed with him that 
the government had conveyed a plea offer. Mr. Lorquet avers that he told her that 
he did not wish to plead guilty, especially if the plea offer or proposed plea agreement 
required him to plead guilty to count nine (9) of the indictment which charged him 
with aggravated identity theft in violation of 18 U.S.C. § 1023A. 
 
On or about January 11, 2023, Mr. Lorquet was arrested on a bond violation 
and appeared before a Magistrate Judge, who told him that the District Judge had 
ordered no bond and that any further proceedings relating to the alleged bond 
Case 1:22-cr-20326-KMM   Document 85   Entered on FLSD Docket 09/18/2023   Page 1 of 6

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violation would be held before the District Judge. ECF 40 (minute order in “initial 
appearance re bond revocation”).  
 
At some point shortly thereafter, Mr. Lorquet’s lawyer again met with Mr. 
Lorquet (this time at FDC) to again discuss a guilty plea.  Again, Mr. Lorquet told 
her that he would not accept the government’s plea offer, especially if it required 
him to plead guilty to the aggravated identity theft offense charged in count nine (9) 
of the indictment. 
 
On January 20, 2023, a change of plea hearing was scheduled for January 23, 
2023.  ECF 42 (paperless order setting change if plea). On January 24, 2023, the 
Marshals brought Mr. Lorquet to Magistrate Judge Louis’ courtroom for a change of 
plea.  Mr. Lorquet, however, was unaware that a plea hearing had been scheduled 
for that day and was under the impression that the hearing related to the bond 
revocation that he was told on January 11, 2023 would be heard by District Judge. 
His lawyer became upset when he stated that he did not wish to plead guilty, and 
he started talking to her about a bond related hearing. According to Mr. Lorquet, 
she insisted and pressured him to plead guilty. Mr. Lorquet felt corned and that he 
had no choice, especially when considering that he felt that his lawyer would not 
defend him at trial.  So, under pressure from his lawyer and believing that his lawyer 
would not defend him at trial Mr. Lorquet went through the plea hearing.  
MEMORANDUM OF LAW 
 
   “A criminal defendant may withdraw a guilty plea after the Court accepts 
it but before it imposes a sentence if ‘the defendant can show a fair and just reason 
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for requesting the withdrawal.’” ECF 67 (Magistrate Judge Louis’ Report and 
Recommendation that Motion to Withdraw be Granted) (Quoting Fed. R. Crim. P. 
11(d)(2)(B)); see also id. (Citing United States v. Williams, 803 F. App’x 379, 380 
(11th Cir. 2020)). “’A pre-sentence motion to withdraw is to be liberally construed,’ 
although there is no absolute right to withdrawal.” Id. at 2 (Quoting United States v. 
Cesal, 391 F.3d 1172, 1179 (11th Cir. 2004), vacated on other grounds by Cesal v. 
United States, 545 U.S. 1101 (2005) (quoting United States v. Buckles, 843 F.2d 469, 
471 (11th Cir. 1988))). 
In deciding whether to grant a pre-sentence motion to withdraw a guilty plea, 
courts consider the ‘totality of the circumstances surrounding the plea,’ including 
(1) whether close assistance of counsel was available; (2) whether the plea was 
knowing and voluntary; (3) whether judicial resources would be conserved; and (4) 
whether the government would be prejudiced if the defendant were allowed to 
withdraw his plea.” Id. (Quoting United States v. Chicago, 711 F. App’x 512, 515 
(11th Cir. 2017)); see also id. (Citing Buckles, 843 F.2d at 471–72.). “The defendant 
carries the burden to show a fair and just reason for withdrawal of his plea.” I d.  
( Q u o t i n g  United States v. Midkiff, 806 F. App’x 678, 680 (11th Cir. 2020)).   
Here, the factors cited above weigh in favor of vacating Mr. Lorquet’s guilty 
plea. To start, it cannot be said in any meaningful sense that Mr. Lorquet had the 
close assistance of counsel.  While he was represented by counsel, the relationship 
between counsel and client was severed. According to Mr. Lorquet, despite having 
at least twice told his counsel that he did not wish to plead guilty, especially if it 
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meant that he would have to plead guilty to count (9) of the indictment, she 
nevertheless scheduled a change of plea hearing for July 24, 2023 without Mr. 
Lorquet knowing.  When he arrived in courtroom on July 24, 2023, he avers that his 
lawyer became upset when he stated that he did not wish to plead guilty and 
expressed that thought that he was in court for a hearing relating to his bond 
revocation.  And he avers that she pressured him to go through the guilty plea. Mr. 
Lorquet felt cornered and went forward with the plea hearing thinking that his 
lawyer would not defend him at trial and that he had no choice but to plead guilty. 
As such, not only was he without the close assistance of counsel, but he did not act 
voluntarily in pleading guilty.  
Indeed, in pressing him Mr. Lorquet to plead guilty even though Mr. Lorquet 
had expressed to her that he rejected the government’s plea offer and would rather 
try the case, his counsel was ineffective, rendering Mr. Lorquet’s guilty plea 
unknowing and involuntary. See McCoy v. v. Wainright, 804 F.2d 1196, 1198 (11th 
Cir. 1986) (Explaining that a guilty plea is not knowing and voluntary if the 
defendant did not receive “reasonably effective assistance of counsel in connection 
with [his] decision to plead guilty.”).  Pressuring a client to plead when the client 
has repeatedly communicated to counsel that he does not wish to plead guilty is not 
effective assistance of counsel. And the prejudice is obvious -   the defendant would 
not have pled guilty and proceeded to trial but for his lawyer’s infectiveness in 
refusing to defend him and cornering him into pleading guilty. In sum, there was no 
close representation of counsel and Mr. Lorquet’s guilty plea was not voluntary.    
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Whether judicial resources would be conserved is the next factor. When 
considered in the context of the many cases brought before the Court in comparison 
to the relative few that are tried, the additional judicial resources to be expended if 
the Court permits the withdrawal of Mr. Lorquet’s guilty plea would be measured 
and modest. Indeed, at one point when Mr. Lorquet mentioned his motion to 
withdraw his guilty plea (which he had withdrawn) during his sentencing hearing, 
the Court indicated that it could preside over a trial in Mr. Lorquet’s case. 
Finally, there is little or no prejudice against the government in granting 
withdrawal of Mr. Lorquet’s guilty plea. In its objection to the Report and 
Recommendation to Grant Mr. Lorquet’s earlier motion withdraw his guilty plea, 
the government’s argument that the accountant, who is the alleged identity theft 
victim, would rather forego restitution than “endure this case” shows prejudice to 
the government is meritless. The alleged use of the accountant’s identity did not 
involve a theft from her. While it may have inconvenienced her to address this 
matter with law enforcement, such inconvenience cannot serve as basis to find 
prejudice to the government in having to try a case. It would open the door to 
accepting the refusal to testify, or the preference of all sorts of alleged victims and 
witnesses to not testify, as basis for avoiding trial. Trials are inconvenient. But due 
process, the right to competent counsel, and the right to a trial, which are 
sacrosanct, are, by definition, inconvenient to law enforcement, prosecutors, and 
witnesses.   
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Further, any limited resources argument from the government would be 
weak. The government has vast resources which far exceed the defendant and his 
lawyer’s resources and, ostensibly, it marshalled the evidence it needed when it 
indicted Mr. Lorquet. 
CONCLUSION 
For the above stated reasons, Mr. Lorquet respectfully requests that the 
Court grant his motion to withdraw his guilty plea.  
 
 
 
 
CERTIFICATE OF SERVICE 
 
I HEREBY CERTIFY that, on September 18, 2023, a true and correct copy of 
the foregoing has been furnished electronically via CMCEF to all counsel of record. 
Respectfully submitted,  
 
BELL ROSQUETE REYES ESTEBAN, PLLC 
Henry P. Bell 
Fla. Bar No. 090689 
Email: 
hbell@bresq.com  
Counsel to Andre Lorquet 
 
By: ____s/Henry P. Bell_____ 
Henry P. Bel 
 
CC: Andre Lorquet – FDC Miami 
Case 1:22-cr-20326-KMM   Document 85   Entered on FLSD Docket 09/18/2023   Page 6 of 6

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