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Government Letter on Guilty Plea Validity — United States v. David Epstein
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A letter from the U.S. Attorney's Office for the District of Maryland to United States District Judge Richard D. Bennett in United States v. David Epstein, No. 1:23-cr-00210-RDB, filed May 1, 2025 as Document 43 ahead of the continued sentencing set for May 7, 2025. The letter states that the court accepted the defendant's guilty plea to wire fraud under 18 U.S.C. § 1343 on October 8, 2024 and postponed sentencing on March 26, 2025 after the defense sought to explain facts in the plea agreement. It argues the plea was knowing and voluntary under a full Rule 11 colloquy, that the defendant has not moved to withdraw it, and that an adequate factual basis exists. The letter cites cases including United States v. Taylor, 984 F.2d 618 (4th Cir. 1993), and asks the court to proceed to sentencing and impose a guideline term of imprisonment.
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No. 1:23-cr-00210-RDB · Doc. 43 · Docket on CourtListener
Full text
Case 1:23-cr-00210-RDB Document 43 Filed 05/01/25 Page 1 of 4
U.S. Department of Justice
United States Attorney
District of Maryland
Paul Riley Suite 400 DIRECT: 410-209-4959
Assistant United States Attorney 36 S. Charles Street MAIN: 410-209-4800
Paul.Riley@usdoj.gov Baltimore, MD 21201-3119 FAX: 410-962-3091
VIA ECF May 1, 2025
The Honorable Richard D. Bennett
United States District Judge
United States District Court
for the District of Maryland
101 West Lombard Street
Baltimore, MD 21201
Re: United States of America v. David Epstein, Crim. No. RDB-23-0210
Dear Judge Bennett:
The Government writes this letter in advance of the continued sentencing of Defendant
David Epstein, currently set for May 7, 2025 at 11:30 a.m. On October 8, 2024, the Court accepted
Defendant’s guilty plea to Count One of the Indictment, charging him with Wire Fraud, in violation
of 18 U.S.C. § 1343. Defendant pleaded guilty pursuant to a plea agreement. ECF No. 23 (Plea
Agreement). On March 26, 2025, the original date of Defendant’s sentencing, the Court postponed
imposition of a sentence on Defendant after Defendant and his counsel sought to explain certain
of the facts in the parties’ plea agreement. See generally Mar. 26, 2025 Hearing Transcript (“Mar.
26 Tr.”).
For the reasons that follow, the Government respectfully requests that the Court proceed
with sentencing on May 7, 2025 and impose a guideline term of imprisonment.
A. The Court Properly Accepted Defendant’s Knowing and Voluntary Guilty Plea.
As an initial matter, the Court on October 8, 2024 conducted a full colloquy in accordance
with Fed. R. Crim. P. 11 and properly accepted Defendant’s plea to Count Three of the Indictment.
After being placed under oath, Defendant entered a plea of guilty to Count Three and
pursuant to the parties’ plea agreement. The Court then conducted a thorough and extensive
colloquy under Rule 11 of the Federal Rules of Criminal Procedure to ensure that Defendant’s plea
was knowing and voluntary and that there was a factual basis for the plea.
At the outset, the Court confirmed that Defendant was not having any difficulty
understanding the proceedings and that he could read and write the English language. October 8,
2025 Hearing Tr. (“Oct. 8 Tr.”) at 7. The Court went on to confirm that Defendant did not have
any problems or concerns with Mr. Bardos’s legal representation of Defendant. Id. at 9-10.
After confirming that Defendant was satisfied with Mr. Bardos, the Court discussed the
specific terms of the plea agreement with him. The Court began by confirming that Defendant had
reviewed the plea agreement with counsel and understood it; Defendant confirmed that he did. Id.
at 11. The Court confirmed that Defendant understood that the Court was not a party to the
agreement, id. at 12, and that Defendant was pleading guilty freely and voluntarily. Id. at 13.
Case 1:23-cr-00210-RDB Document 43 Filed 05/01/25 Page 2 of 4
The Court then reviewed, among other things: (i) the various collateral consequences as a result of
the conviction, id. at 13-18; (ii) the possibility of forfeiture, id. at 15-16; (iii) the maximum
penalties associated with the charge of conviction, including supervised release, id. at 16-17; (iv)
the role of the sentencing guidelines at sentencing, id. at 18-19; (v) the parties’ stipulation as to
the sentencing guidelines calculation (including an open enhancement), id. at 20-23; (vi) the fact
that there is no parole in the federal system, id. at 25; (vii) that Defendant waived his rights to
appeal his sentence, id. at 26; (viii) all of the rights—including trial rights—that Defendant was
giving up by pleading guilty, id. at 27-31; and (ix) the essential elements of the count of conviction,
id. at 32-33.
The Court then asked Government counsel to read or summarize the factual stipulation
associated with the plea, and counsel did so. Id. at 33-38. Defendant’s counsel clarified that the
facts in the parties’ plea agreement are facts that the Government would have shown at trial. Id.
at 39. And Defendant and the Court then had the following exchange:
Id. at 40-41. Thereafter, the Court found that “the defendant is fully competent and capable of
entering an informed plea and that the defendant is aware of the nature of the charges and the
relevant consequences of his plea of guilty; and the Court further finds that his plea of guilty on
advice of competent counsel with whose services he is satisfied is a knowing and voluntary plea
supported by independent basis in fact sustaining each of the essential elements of the offense
charged.” Id. at 41-42. The Court then accepted Defendant’s guilty plea and adjudged Defendant
guilty of Count Three. Id. at 43.
In short, there is no basis to believe that Defendant did not knowingly or willingly plead
guilty to Count Three of the Indictment. Defendant thus waived all nonjurisdictional defects,
including “the right to contest the factual merits of the charges.” United States v. Willis, 992 F.2d
489, 490 (4th Cir. 1993). Indeed, even if Defendant had “cold feet” about pleading guilty—and
he does not—that still would not provide a basis for the Court to vacate the plea, given that the
Rule 11 colloquy was properly conducted. Cf. United States v. Wilson, 81 F.3d 1300, 1309 (4th
2
Case 1:23-cr-00210-RDB Document 43 Filed 05/01/25 Page 3 of 4
Cir. 1996) (defendant’s “cold feet” after pleading guilty is not a sufficient basis to withdraw his
plea); United States v. Bowman, 348 F.3d 408, 416 (4th Cir. 2003) (rejecting effort by defendant
“to second guess his guilty plea”).
B. Defendant Has Not Sought To Withdraw His Plea, And His Plea Has An Adequate
Factual Basis.
It is true that Defendant took issue with (or sought to provide an “explanation” of) a number
of the facts he admitted under oath at the Rule 11 hearing, Mar. 26 Tr. at 81-91,1 but that alone
does not provide a basis for the Court to strike the guilty plea. Indeed, United States v. Taylor, the
Fourth Circuit held that where a Defendant “equivocates about his guilty plea,” that “a second
Rule 11 colloquy is not required[.]” 984 F.2d 618, 619 (4th Cir. 1993). As the Circuit put it, “the
Rule 11 colloquy has a burden-shifting effect regardless of when the district court formally accepts
the plea. Prior to sentencing, the defendant may withdraw his guilty plea only if he demonstrates
a “fair and just reason” for doing so. Id. at 621.
Here, there has been no motion by Defendant to withdraw his guilty plea and thus no need
for the Court to look to Fed. R. Crim. P. 11(d)(2)(B)2 or the factors set out in United States v.
Moore, 931 F.2d 245, 248 (4th Cir. 1991).3 Instead, Defendant, like the Government, wishes to
proceed to sentencing.
And “[n]othing in Rule 11 authorizes a district court to withdraw a defendant’s guilty plea
for him.” United States v. Adame-Hernandez, 763 F.3d 818, 825–26 (7th Cir. 2014) (“The
acceptance of [the defendant’s]'s guilty plea was a judicial act distinct from the acceptance of the
plea agreement itself. Once the district court accepts a guilty plea, the conditions under which the
plea may be withdrawn are governed exclusively by Rule 11 of the Federal Rules of Criminal
Procedure.”) (cleaned up).
Further, there is no question that there is an ample factual basis to support Defendant’s
earlier plea of guilty—as the Court already found. Defendant does not argue to the contrary.
Simply put, the Court “may conclude that a factual basis exists from anything that appears on the
record.” United States v. Stitz, 877 F.3d 533, 536 (4th Cir. 2017); see also United States v. Davila,
No. 20-4338, 2023 WL 3597567, at *4 (4th Cir. May 23, 2023) (court “could satisfy itself of the
sufficiency of the factual basis through the facts that were proffered by the Government during the
Rule 11 hearing and included in the PSR, neither of which Davila objected to”).
1
Defendant did affirm in response to the Court’s concerns that he “did that” – referring to the scheme
charged in Count Three. Id. at 91. And he further affirmed that “I committed fraud by changing the bank account,”
id. at 92, referencing use his of fraudulent bank statement in connection with the scheme to obtain the PPP loan.
Plea Agreement at 11.
2
A defendant may withdraw a guilty plea if “the defendant can show a fair and just reason for requesting
the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B).
3
In United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991), the Fourth Circuit set forth the following six
factors for a district court to consider in determining whether a defendant has met his burden:
(1) whether the defendant has offered credible evidence that his plea was not knowing or otherwise
involuntary;
(2) whether the defendant has credibly asserted his legal innocence;
(3) whether the defendant has had close assistance of counsel;
(4) whether there has been a delay between entry of the plea and filing of the motion;
(5) whether withdrawal will cause prejudice to the government; and
(6) whether withdrawal will inconvenience the court and waste judicial resources.
3
Case 1:23-cr-00210-RDB Document 43 Filed 05/01/25 Page 4 of 4
Here, an adequate factual basis exists based on the parties’ plea agreement, the facts
proffered by the Government during the Rule 11 hearing that Defendant admitted the Government
could prove at trial, the contents of the PSR—not objected to by Defendant—and the
Government’s sentencing submissions. This is so notwithstanding the recent gloss Defendant has
tried to put on his earlier admissions under oath during the Rule 11 hearing, which reflect—in the
Government’s view—a lack of acceptance of responsibility. Simply put, the Court can and should
reject Defendant’s recent spin on the facts he admitted under oath during the Rule 11 proceeding
and proceed to sentencing.
For all of these reasons, the Government respectfully requests that the Court proceed to
sentencing and sentence Defendant to a guideline term of imprisonment.
Kelly O. Hayes
United States Attorney
/s/
By: Paul A. Riley
Assistant United States Attorney
cc: Rich Bardos, Esq. (by ECF)
Nicole Wonneman, U.S. Probation Officer (by electronic mail)
4
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