The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING DEFENDANT'S MOTION TO WITHDRAW GUILTY PLEA AND FOR A NEW TRIAL
Before the Court is Defendant Francis Merle Baker, Jr.'s "Rule 33 Motion to Allow Withdrawal of Guilty Plea and for a New Trial" and a motion for an evidentiary hearing filed on May 13, 2011. See Docket Nos. 37 and 39. The Government filed a response in opposition to the motions on May 20, 2011. See Docket No. 40. For the reasons explained below, Baker's motions are denied.
On January 13, 2010, Francis Baker was indicted for aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 1153 and 2241(c). See Docket No. 1. The indictment alleges that Baker knowingly engaged in and attempted to engage in a sexual act, that is, contact between the penis and the vulva, the penis and the anus, and penetration of the genital opening by finger, with C.B., a child who had not attained the age of 12 years, with an intent to abuse, arouse, and gratify the sexual desire of any person.
Baker and the Government entered into a formal plea agreement on May 7, 2010. See Docket No. 25. Paragraph 6 of the plea agreement explains:
Defendant will plead guilty because defendant is in fact guilty of the charge. In pleading guilty the defendant acknowledges that:
From in or about September, 1995, to in or about August, 2002, in the District of North Dakota, in Indian country, the Defendant, an Indian, knowingly engaged in and attempted to engage in a sexual act, that is, contact between the penis and the vulva and penetration of the genital opening by finger, with C.B., a child who had not yet attained the age of 12 years; with an intent to abuse, arouse, and gratify the sexual desire of any person.
Baker pled guilty to the charge on May 18, 2010. See Docket No. 29. During the change of plea hearing, the Court engaged in the following dialogue with Baker:
Q. Okay. Then let's talk about paragraph six. Before any judge can accept a plea of guilty from you, I need to make sure that there [are] facts in this case that you agree to that would support finding you guilty if these facts were presented to a jury that would support them finding you guilty of this offense. Paragraph six is designed to outline what those facts are. When you sign the plea agreement, you are essentially telling me that you have reviewed paragraph six and you agree that the facts contained in that paragraph are accurate. Do you agree to that?
Q. And tell me where this took place and approximately when it took place.
A. I don't remember when it happened.
Q. Well, did it happen between September of '95 and August of 2002?
Q. And do you remember where this happened? Was it in Belcourt? Was it in New Town? Was it in Fort Yates?
Q. Okay. And tell me who "CB" is. A relative? A ...