JM Plea

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA, )
)
Plaintiff, ) 8:06CR122
)
vs. )
) Omaha, Nebraska
JOHN F. McCAUL, JR., ) November 13, 2006
)
Defendant. )
TRANSCRIPT OF CHANGE OF PLEA PROCEEDINGS
BEFORE THE HONORABLE LAURIE SMITH CAMP
UNITED STATES DISTRICT JUDGE
A-P-P-E-A-R-A-N-C-E-S
FOR THE PLAINTIFF: Mr. Christian A. Martinez
Asst. United States Attorney
1620 Dodge Street
Suite 1400
Omaha, NE 68102-1506
FOR THE DEFENDANT: Mr. D. C. Bradford, III
Attorney at Law
1620 Dodge Street
Suite 1800
Omaha, NE 68102
COURT REPORTER: Ms. Brenda L. Fauber, RDR, CRR
111 South 18th Plaza
Suite 3129
Omaha, NE 68102
(402) 661-7322
Proceedings recorded by mechanical stenography,
transcript produced with computer.
8:06-cr-00122-LSC-TDT Doc # 60 Filed: 02/26/07 Page 1 of 18 - Page ID # 117
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(At 9:39 a.m. on November 13, 2006, with counsel for the
parties and the defendant present, the following proceedings
were had:)
THE COURT: We are here in the matter of the United
States versus John F. McCaul, Case Number 8:06CR122.
Will counsel please enter their appearances?
MR. MARTINEZ: Good morning, your Honor; Christian A.
Martinez for the United States. I'm here on behalf of Fred
Franklin.
THE COURT: Very good. Good morning.
MR. BRADFORD: May it please the Court, your Honor,
Woody Bradford for the defendant who is present.
THE COURT: Very good. Good morning to both of you.
The matter before the Court at this time is the
defendant's petition requesting that he withdraw his plea of
not guilty to the charges in the indictment and enter a plea
of guilty.
Mr. Champion, would you please administer the oath?
(Defendant sworn.)
THE COURT: Please be seated.
Mr. McCaul, I'm going to be asking you some questions
about your proposed change of plea. You've just taken an oath
to tell the truth. Do you understand that you're now under an
oath in this hearing?
THE DEFENDANT: Yes, I do.
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THE COURT: Do you understand that your answers could
be used against you if you were later charged with perjury or
making a false statement?
THE DEFENDANT: Yes.
THE COURT: If there's anything about the hearing
that you don't understand, such as any words that I use or
questions I ask, please stop me and ask me for an explanation
or feel free to consult with Mr. Bradford.
What is your name?
THE DEFENDANT: John Edward McCaul, Jr.
THE COURT: Are you the defendant named in the
indictment in this case?
THE DEFENDANT: Yes, I am.
THE COURT: You might want to pull that microphone a
little closer to you.
THE COURT: There you go. How old are you?
THE DEFENDANT: Thirty-five.
THE COURT: How far did you go in school?
THE DEFENDANT: Completed about five or six years of
college.
THE COURT: Have you ever been in a hospital or under
a doctor's care for any mental illness?
THE DEFENDANT: When I was real young, family
problems, like 13, but that's...
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THE COURT: Was that basically counseling --
THE DEFENDANT: Yeah.
THE COURT: -- or did you receive any medication?
THE DEFENDANT: I don't remember. I was pretty
young. It was basically just family issues and counseling.
THE COURT: All right. Have you ever been treated
for chemical dependency or abuse such as addiction to alcohol
or any drugs?
THE DEFENDANT: No inpatient.
THE COURT: All right. During the last three days
have you had any alcohol or controlled substances?
THE DEFENDANT: No.
THE COURT: Are you now taking any medications,
prescription or nonprescription?
THE DEFENDANT: No.
THE COURT: Are there any medications that you're
supposed to be taking that you're not taking?
THE DEFENDANT: No.
THE COURT: I've observed the demeanor and conduct of
Mr. McCaul, and I find that he is competent to proceed with
the hearing.
Mr. McCaul, did you receive a copy of the indictment in
this case?
THE DEFENDANT: Yes, I have.
THE COURT: You have a right to have that indictment
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read out loud today here in court or you can waive the reading
of the indictment. Which do you prefer?
THE DEFENDANT: I waive the reading, please.
THE COURT: Have you discussed with Mr. Bradford the
nature of the crimes charged against you in the indictment?
THE COURT: If you went to trial, the government
would have to prove certain things or elements by evidence
beyond a reasonable doubt in order to convict you of the
charge to which you want to plead guilty.
The elements are as follows: One, that you had been
convicted of a crime punishable by imprisonment for a term
exceeding one year; two, that thereafter, on or about February
28, 2006, you knowingly possessed a firearm; and three, that
the firearm or ammunition was transported across a state line
at some time during or before the time you possessed it.
Do you have any questions about the nature of the charge
filed against you or what the government would need to prove
to convict you of that charge?
THE DEFENDANT: No, I don't.
THE COURT: Are you fully satisfied with the advice
given to you in this case by Mr. Bradford?
THE COURT: The law under which you're charged
provides certain penalties that can be imposed. These
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penalties are as follows: Imprisonment of 15 years to life, a
fine of up to $250,000, both imprisonment and a fine are
authorized, supervised release of up to five years, and a
special assessment of $100.
Do you have any questions about the statutory penalties
that you're facing?
THE DEFENDANT: No, I don't.
THE COURT: Have you and Mr. Bradford talked
generally about how the sentencing guidelines may apply in
your case?
THE DEFENDANT: Yes.
THE COURT: Do you understand that I won't know how
those guidelines apply until a presentence investigation has
been completed and a report has been prepared and you and your
lawyer and the government's lawyer have all had an opportunity
to read that report and to challenge the facts stated in that
report?
THE DEFENDANT: Yes.
THE COURT: Do you understand that the sentence
imposed could be different from the sentence that you and your
lawyer believe will be imposed?
THE COURT: Do you understand that after it's been
determined how the guidelines apply in your case, I do have
the authority in some circumstances to depart from the
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guidelines and impose a sentence that is either more severe or
less severe than called for in the guidelines?
THE COURT: Do you understand that both you and the
government have the right to appeal from any sentence that I
impose?
THE DEFENDANT: Yes.
THE COURT: Do you understand that parole has been
abolished in the federal system and you will not be released
on parole?
THE COURT: Do you understand if you're convicted as
a result of your guilty plea, you're also required to pay a
special assessment in the amount of $100?
THE DEFENDANT: Yes.
THE COURT: Do you understand if you're convicted as
a result of the guilty plea, I may, as previously mentioned,
impose on you a fine in an amount up to $250,000?
THE DEFENDANT: Yes.
THE COURT: If you're convicted as a result of a plea
of guilty, then in addition to any sentence of imprisonment,
I'm required to include a term of supervised release that must
be completed after you serve any sentence of imprisonment. Do
you understand generally what is meant by supervised release?
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THE COURT: If you violate a condition of your
supervised release, your supervised release could be revoked
and you could be returned to prison and required to serve in
prison all or part of the term of supervised release without
credit for the time that you've been on supervised release,
subject to a limit depending on the seriousness of the crime
to which you're pleading guilty.
I'll give an example. If your sentence includes a term
of five years of supervised release and you violate the
conditions of your supervised release after you've been on
supervision for four years and eleven months, you could be
required to serve up to five years in prison because of the
violation. Do you understand that?
THE COURT: Do you understand that if the sentence
imposed happens to be more severe than you expect, you're
still bound by your plea of guilty and you don't have a right
to withdraw the guilty plea?
THE COURT: Do you understand that if I do not accept
a sentencing recommendation by the government, such as the
recommendation that you receive credit for acceptance of
responsibility, you're still bound by your plea and you don't
have a right to withdraw the guilty plea?
THE DEFENDANT: Yes.
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THE COURT: If I accept your plea of guilty, you'll
be found guilty of a felony. This could work to your
disadvantage later. For example, if you're later convicted of
another crime, your sentence for that crime could be increased
because of your conviction in this case. Do you understand
that?
THE DEFENDANT: Yes.
THE COURT: Regarding your petition to enter a plea
of guilty, do you read and write in English?
THE COURT: Did you read through that petition and
voluntarily sign the petition?
THE DEFENDANT: Yes, I did.
THE COURT: Did you voluntarily answer each question
in the petition?
THE COURT: Are the answers in the petition in your
handwriting or are they in someone else's handwriting such as
your lawyer's?
THE DEFENDANT: In mine.
THE COURT: Did anyone force you to plead guilty in
this case?
THE DEFENDANT: No.
THE COURT: Under penalty of perjury, do you swear
that each of your answers in the petition is a truthful
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answer?
THE DEFENDANT: Yes.
THE COURT: Did you make your decision to plead
guilty before you signed the petition?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions about anything
in the petition?
THE DEFENDANT: No, I do not.
THE COURT: There's also a plea agreement in this
case. Have you read the plea agreement and discussed that
with your lawyer?
THE COURT: I'm now going to ask the lawyer for the
government, Mr. Martinez, to summarize the plea agreement.
MR. MARTINEZ: Your Honor, the basic terms of the
plea agreement are that Mr. McCaul will enter a plea of guilty
to Count II of the indictment charging a violation of Title
18, United States Code, Section 922(g)(1) and 924(e)(1),
possession of a firearm by a felon.
He understands by entering his plea he's exposed to
imprisonment of not less than 15 years, a fine of up to
$250,000, or both imprisonment and a fine.
The United States is going to recommend that he receive
the full benefit of acceptance of responsibility.
Further the United States Attorney's office agrees to
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recommend to the Court that Mr. McCaul be sentenced at the low
end of the applicable federal sentencing guideline range, and
further agrees to dismiss Count I of the indictment at
sentencing.
Your Honor, this is a cooperation plea agreement. And
any cooperation that Mr. McCaul offers will be considered by
the government under Sentencing Guideline 5K1.1. And in its
sole discretion, if the United States Attorney's office
concludes that he has provided substantial assistance, the
United States Attorney's office shall file a motion with the
sentencing court requesting the Court to depart from the
sentencing guidelines.
And lastly, this agreement is limited to the United
States Attorney's office for the District of Nebraska.
THE COURT: Thank you, Mr. Martinez.
Mr. McCaul, are those the terms of your agreement with
the government as you understand it?
THE DEFENDANT: Yes, they are.
THE COURT: Mr. Bradford, are those the terms of the
plea agreement between the defendant and the government as you
understand the agreement?
MR. BRADFORD: Yes, your Honor.
THE COURT: Mr. McCaul, does your written plea
agreement contain all of the terms, conditions, and promises
in your agreement with the government in this case?
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THE DEFENDANT: Yes.
THE COURT: And Mr. Bradford, does the plea agreement
attached to Mr. McCaul's petition to enter a plea of guilty
contain all the terms of the entire agreement between
Mr. McCaul and the government?
MR. BRADFORD: Yes, your Honor.
THE COURT: Mr. McCaul, did you voluntarily sign the
written plea agreement with the government?
THE COURT: Did anyone make any other promises to you
or threaten you to get you to sign that agreement?
THE DEFENDANT: No, they did not.
THE COURT: Paragraph 4 of the plea agreement
indicates that you agree to cooperate with the government and
in exchange the government may move for a downward departure.
Do you understand that it's up to the government whether
or not it files any such motion?
THE DEFENDANT: Yes.
THE COURT: Do you have any questions about the plea
agreement?
THE DEFENDANT: No, I do not.
THE COURT: You have certain constitutional rights
that you give up when you enter a plea of guilty. I'd like
you to listen carefully to this list of rights because at the
end I'll ask you if you understand that you have these rights
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and I'll ask you if you're willing to give up these rights to
enter your plea of guilty here today.
You have the right to plead not guilty to any offense
charged against you and to go to trial on the charges filed
against you in this case.
You have the right to a speedy and public trial. You
have the right to be tried by a jury and to have the
assistance of a lawyer without cost to you at your trial if
you cannot afford a lawyer, and the right to have a jury
determine whether the government has proved beyond a
reasonable doubt each and every element of the charged
offense.
You have the right to see and hear all witnesses and to
cross-examine persons who are witnesses against you. You have
the right to decline to testify at your trial so you cannot be
compelled to incriminate yourself. You have the right to
testify in your own defense if you want to testify at your
trial, and you have the right to subpoena or present witnesses
or other evidence to assist you at your trial.
Concerning all of these rights, do you understand that
under the Constitution of the United States you have and can
use these rights?
THE COURT: Do you understand that if I accept your
plea of guilty, there will not be a trial on the charges filed
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against you because when you plead guilty, you waive or give
up your right to a trial?
THE DEFENDANT: Yes.
THE COURT: Do you also understand if your plea of
guilty is accepted, you waive or give up your right to
challenge the manner in which the government obtained its
evidence in this case against you, for example, the manner in
which the government searched for evidence or questioned you?
THE DEFENDANT: Yes.
THE COURT: To get you to give up these rights, has
anyone connected with law enforcement or anyone else
threatened you, directly or indirectly, used any force against
you, or promised you anything other than what is in your
written plea agreement?
THE DEFENDANT: No, they haven't.
THE COURT: Have you discussed your constitutional
rights with your lawyer?
THE DEFENDANT: Yes.
THE COURT: Do you freely and voluntarily waive or
give up these constitutional rights with respect to this
criminal proceeding?
THE COURT: After consideration of the responses of
the defendant to all questions asked so far, I find that
Mr. McCaul fully understands his constitutional rights, that
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he freely, voluntarily, knowingly and intelligently waives
those rights and that he fully understands the consequences of
waiving those rights.
I find that Mr. McCaul is competent to plead and he
understands the nature of the charges filed against him in
this case and further understands the possible penalties that
may be imposed.
I find that Mr. McCaul understands the fact that as a
consequence of a plea of guilty there will be no trial
concerning the charges and that by pleading guilty he waives
the right to a trial.
I also find that Mr. McCaul understands that the answers
to my questions may be used against him if there's later a
prosecution for perjury or any false statement related to the
criminal proceeding.
I accept the defendant's waiver of rights.
Mr. McCaul, knowing and understanding everything in your
petition to enter a plea of guilty, and knowing and
understanding everything in your written plea agreement with
the government, and understanding everything that we've
discussed during this hearing today, how do you now plead to
Count II of the indictment in this case?
THE DEFENDANT: I plead guilty.
THE COURT: To get you to plead guilty to that
charge, has anyone connected with law enforcement or anyone
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else threatened you, directly or indirectly, used any force
against you, or promised you anything outside your written
plea agreement with the government?
THE DEFENDANT: No, they have not.
THE COURT: Are you freely and voluntarily pleading
guilty to Count II of the indictment?
THE COURT: Now I'm going to ask the government's
lawyer, Mr. Martinez, to state the factual basis for your plea
of guilty. He's going to tell the Court what facts the
government would expect to prove by evidence beyond a
reasonable doubt at your trial in order to convict you of the
charge to which you're pleading guilty.
Mr. Martinez?
MR. MARTINEZ: Your Honor, if this case did proceed
to trial, the United States would anticipate proving the
following facts: On or about February 28, 2006, Nebraska
State Patrol stopped a vehicle that Mr. McCaul was operating
for speeding. The officer learned that Mr. McCaul had an
outstanding warrant for driving under suspension; and he was
still, in fact, on suspended status.
McCaul was asked to exit the vehicle; and while exiting,
the officer observed Mr. McCaul attempting to throw a small
glass pipe on the ground. McCaul was handcuffed by the
officer.
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Subsequent search around the immediate grounds around the
vehicle the officer did locate a small glass pipe that
appeared to have methamphetamine residue. A subsequent search
of the vehicle resulted in a .45 caliber handgun being found
in the front portion of the passenger seat. That firearm,
your Honor, was a Springfield Armory .45 caliber semiautomatic
pistol, model 1911-A1, the serial number NM164200.
And Mr. McCaul has previous felony convictions for
attempted burglary and three counts of robbery, all occurring
here in the district county -- excuse me, District Court of
Douglas County, Nebraska.
THE COURT: Thank you, Mr. Martinez.
Mr. McCaul, do you agree that what you just heard would
be the government's evidence against you if you were to go to
trial on the charge to which you're pleading guilty?
THE DEFENDANT: Yes.
THE COURT: I find in the case of the United States
versus John F. McCaul, Jr., defendant, Case Number 8:06CR122,
the defendant, John F. McCaul, Jr., is competent and capable
of entering an informed plea to Count II of the indictment,
and his plea of guilty is knowing and voluntary and supported
by a factual basis.
I accept the guilty plea. And I now adjudge Mr. McCaul
is guilty of Count II of the indictment in this case.
I defer any determination concerning the plea agreement,
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that is, whether to accept or reject the agreement, until I
have considered the presentence investigation report.
The defendant is referred to the probation office for a
presentence investigation.
You'll receive a copy of the Court's sentencing order
electronically. The sentencing hearing is set for January 31,
2007, at 8:30 a.m.
The defendant is remanded to the custody of the United
States Marshal pending the sentencing hearing.
Anything else from the government, Mr. Martinez?
MR. MARTINEZ: No, your Honor.
THE COURT: Anything further from the defendant,
Mr. Bradford?
MR. BRADFORD: No, your Honor.
THE COURT: All right. Thank you. We're adjourned.
(Adjourned at 9:59 a.m.)
I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.
/s Brenda L. Fauber 2-15-07
Brenda L. Fauber, RDR, CRR Date

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