USA v. Serna Sanchez

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
UNITED STATES,
Petitioner,
-against-
JOSE WILLIAM SERNA SANCHEZ,
Defendant.
19-CR-528 (ARR)
OPINION & ORDER
ROSS, United States District Judge:
Defendant Jose William Serna Sanchez moves to withdraw his guilty plea pursuant to
Federal Rule of Criminal Procedure 11. Mr. Serna Sanchez argues that his guilty plea is invalid
because he received ineffective assistance of counsel from his previous attorney and was coerced
into pleading guilty.
For the reasons below, Mr. Serna Sanchez’s motion to withdraw his guilty plea is denied.
BACKGROUND
On November 13, 2019, a grand jury returned an indictment charging Mr. Serna Sanchez,
a citizen of Colombia, with one count of International Cocaine Distribution Conspiracy in violation
of 21 USC §§ 963, 959, 960(b)(1)(B)(ii). See ECF No. 1. Mr. Serna Sanchez was arrested in
Ecuador on December 16, 2022, and was extradited from Ecuador to the United States to face this
conspiracy charge on March 16, 2023. See ECF Nos. 4–8.
On March 17, 2023, Mr. Serna Sanchez was appointed an attorney from the Federal
Defenders of New York, Samuel Jacobson, who conducted his initial appearance and arraignment.
See ECF No. 12. That same day, the government, in a letter addressed to Attorney Jacobson,
provided its initial discovery production under Rule 16 of the Federal Rules of Criminal Procedure,
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including Mr. Serna Sanchez’s statements to law enforcement, Bates-numbered SERNA 000001-
000020, and his criminal history in Colombia. See ECF No. 10. The letter specified that the
government was “not aware of any exculpatory material regarding the defendant” but would
“comply with its continuing obligations to produce exculpatory material as defined by Brady v.
Maryland, 373 U.S. 83 (1963), and its progeny.” Id. Magistrate Judge Vera Scanlon also issued an
order confirming the government’s disclosure obligations under Brady. See ECF No. 11.
On April 4, 2023, the government produced its second discovery production which
consisted of “documents related to the defendant’s extradition,” Bates-numbered SERNA 000021-
000061. See ECF No. 16. Following the second production, parties entered in a stipulation for a
protective order (the “Protection Order”) regarding sensitive materials and information disclosed
by the government. See ECF Nos. 19, 20. The Protection Order was granted by the Court on May
8, 2023, and stated that discovery materials may be used by defendant and defense counsel “only
for the purposes of defending against the charges in the above captioned case, including but not
limited to preparation for trial and any sentencing, appeal, or collateral attack.” Id. Materials
produced were not to be “disseminated or discussed . . . with, any individuals, organizations, or
other entities.” Id. The Protective Order also provides that no discovery materials should be
transferred to substitute counsel “unless and until counsel becomes counsel of record, has been
provided a copy of this Protective Order . . . and provides a signed copy . . . to the government.”
Id. Finally, the Protective Order stated that Mr. Serna Sanchez “may review Discovery Materials
specifically identified by the government as sensitive discovery material . . . only in the presence
of Defense Counsel or Defense Staff” and prohibited Mr. Serna Sanchez “from having possession,
custody, or control of the Sensitive Discovery Material” and information and materials derived
from such material. Id.
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On May 8, 2023, the government provided Attorney Jacobson with another discovery
production “consist[ing] of audio recordings, and draft transcripts, summaries and translations of
audio recordings,” with Bates numbers SENSITIVE SERNA000062-000180. See ECF No. 21. On
June 8, 2023, the government provided its final Rule 16 production consisting of “draft transcripts,
summaries and translations of previously-produced audio recordings,” Bates-numbered
SENSITIVE SERNA000181-000351. See ECF No. 22.
Guilty Plea
On November 29, 2023, the Court received a pro se letter from Mr. Serna Sanchez
describing his personal circumstances, expressing remorse for his actions, and requesting leniency.
See ECF No. 32. In a letter dated December 24, 2023, Mr. Serna Sanchez requested that Attorney
Jacobson be removed as his attorney, and that new defense counsel be appointed. See ECF No. 35.
The Court granted Mr. Serna Sanchez’s motion, and appointed attorney John Anthony Diaz on
January 10, 2024 pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A. See ECF No. 37. Mr.
Serna Sanchez appeared with Attorney Diaz at a status conference held on January 19, 2024. See
ECF No. 38. In a pro se letter dated April 19, 2024, Mr. Serna Sanchez wrote to Attorney Diaz
“request[ing] to be furnished with the discovery associated with the aforementioned matter.” See
ECF No. 46. At a status conference held on April 23, 2024, a trial date was set for July 1, 2024.
See ECF No. 42.
On May 2, 2024, the Court granted Attorney Diaz’s ex parte motion to appoint associate
counsel. See ECF No. 45. The motion to appoint associate counsel explained that the appointment
of Sarah Speis would facilitate Mr. Serna Sanchez’s review of discovery material because the
Protective Order did not permit him to have direct access to sensitive discovery material without
counsel present. Id. The motion specified that Ms. Speis had previously met with Attorney Diaz
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and Mr. Serna Sanchez in the Metropolitan Detention Center. Id. Attorney Speis entered in an
appearance on May 7, 2024. See ECF No. 47. In a pro se letter dated June 8, 2024, Mr. Serna
Sanchez expressed concerns regarding conditions at Metropolitan Detention Center. See ECF No.
49.
On June 12, 2024, Mr. Serna Sanchez pled guilty to one count of International Cocaine
Distribution Conspiracy. During the plea allocution, he stated that he had sufficient time to discuss
his case with Attorney Diaz and was satisfied with his representation in this proceeding. See ECF
No. 64 (“Plea Tr.”). Mr. Serna Sanchez also stated on the record that he understood that pleading
guilty meant that there would be no further trial of any kind and no right to appeal from a judgment
of guilty. Plea Tr. at 9–10. He further stated that he had not been induced to plead guilty as a result
of any fear, pressure, threat or force of any kind. Id. at 14–15. Mr. Serna Sanchez also provided a
description of the conduct underlying his offense, stating that he “agreed with others to distribute
and import [more than five kilograms of] cocaine into the United States.” Id. at 15. Based on these
answers that Mr. Serna Sanchez provided during his plea allocution, I concluded that the plea was
knowing, voluntary, and factually supported. Id. at 15–16.
Motion to Withdraw
Following his guilty plea, Mr. Serna Sanchez filed a pro se letter to the Court dated July
13, 2024 requesting that Attorney Diaz be removed as his defense attorney. See ECF Nos. 50, 51.
At a status conference held on August 7, 2024, Mr. Serna Sanchez stated that his family was
gathering resources to hire a different attorney. See ECF No. 52.
On August 26, 2024, Mr. Serna Sanchez’s current counsel, Jeffrey Cohn, entered in an
appearance. See ECF No. 53. Nearly a year later, at a status conference held on August 20, 2025,
Attorney Cohn informed the Court that he was missing certain discovery materials, including
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several recorded conversations between Mr. Serna Sanchez and a government cooperator, that the
government previously produced to Mr. Serna Sanchez’s prior counsel. See ECF No. 65. At the
conference, Attorney Cohn stated that Mr. Serna Sanchez had previously explained to him that the
recordings would support his defense. Id. Furthermore, Attorney Cohn also stated that Mr. Serna
Sanchez was contemplating a motion to withdraw his guilty plea, and a briefing schedule was set.
Id. On August 20, 2025, Attorney Cohn signed the Protective Order. See ECF No. 66 (“Protective
Order”).
On August 27, 2025, Mr. Serna Sanchez filed a motion to continue and compel the
production of the previously produced discovery materials, arguing that they were “critical” to his
“putative motion to withdraw” because they might reveal a “viable defense to the indictment.”1
See ECF No. 67 (“Compel Mot.”). The government filed its response in opposition to the motion
to compel on August 29, 2025. See ECF No. 68 (“Compel Opp’n”). On September 2, 2025, Mr.
Serna Sanchez filed a motion to withdraw his guilty plea pursuant to Federal Rule of Criminal
Procedure 11(d)(2)(B), notwithstanding the fact that he was still missing the discovery materials
he requested from the government.2 See ECF No. 69-1 (“Withdraw Mot.”) at 3. In that motion,
Mr. Serna Sanchez specifically stated that he had never been permitted to listen to the missing
recordings with his prior counsel. Id. The government responded on September 8, 2025, arguing
in sum that Mr. Serna Sanchez had not met his burden to show a “fair and just reason,” for
permitting the withdrawal. See ECF No. 73 (“Withdraw Opp’n.”) at 3 (quoting Fed. R. Crim. P.
1 As Mr. Serna Sanchez filed a motion to compel following the schedule set at the August 20,
2025 status conference, the pending motion to continue is moot.
2 A portion Mr. Serna Sanchez’s motion also invokes Federal Rule of Criminal Procedure
11(d)(1), which governs a withdrawal “before the court accepts the plea[.]” Fed. R. Crim. P.
11(d)(1). See Withdraw Mot. at 1. Because the plea agreement was previously accepted, the
motion is properly reviewed under Fed. R. Crim. P. 11(d)(2)(B).
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11(d)(2)(B)). On September 15, 2025, I ordered Mr. Serna Sanchez to request the missing
recordings from defendant’s previous counsel at the Federal Defenders of New York. See
Electronic Order, dated September 15, 2025. On September 19, 2025, counsel for Mr. Serna
Sanchez informed me that he received the recordings from the Federal Defenders. See ECF No.
70.
On October 3, 2025, with the missing discovery in hand, Mr. Serna Sanchez supplemented
his pending motion to withdraw, arguing that those materials revealed a viable defense to his
charge and that his prior counsel’s assent to the plea constituted ineffective assistance. See ECF
No. 72 (“Withdraw Suppl.”) at 3. The government moved for an extension of time to reply and
requested an order that Mr. Serna Sanchez’s previous counsel submit affidavits addressing these
insinuations of ineffective assistance of counsel. On October 7, 2025, I ordered Mr. Serna
Sanchez’s prior counsel, Samuel Jacobson and John Anthony Diaz, to submit affidavits responding
to Mr. Serna Sanchez’s claims. See Electronic Order, dated October 7, 2025.3 Attorney Diaz
submitted a declaration on October 17, 2025 (“Diaz Decl.”). See ECF No. 77. The government
submitted a supplemental response in opposition to the Motion to Withdraw on October 23, 2025.
See ECF No. 78 (“Suppl. Opp’n”). Counsel for Mr. Serna Sanchez submitted his reply on October
31, 2025. ECF No. 81 (“Suppl. Reply”).
3 Following a submission from the Federal Defenders of New York on October 10, 2025 (ECF
No. 75), I vacated my order as to Attorney Jacobson. See Electronic Order, dated October 16,
2025. On October 16, 2025, the Government submitted a letter stating that it may seek leave to
renew its request for an affidavit from the Federal Defenders of New York depending on
Attorney Diaz’s submission. The Government requested that I renew my order as to the Federal
Defenders on November 2, 2025. (ECF No. 82). I have determined that an affidavit from the
Federal Defenders is not necessary to address the defendant’s invocation of ineffective assistance
of counsel, and therefore deny the Government’s request.
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DISCUSSION
I. Standard of Review
Under Federal Rule of Criminal Procedure 11, a defendant may withdraw guilty plea “after
the court accepts the plea, but before it imposes sentence if . . . the defendant can show a fair and
just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). “The defendant bears the
burden of showing valid grounds for withdrawal.” United States v. Albarran, 943 F.3d 106, 118
(2d Cir. 2019) (quoting United States v. Rivernider, 828 F.3d 91, 104 (2d Cir. 2016)). In ruling on
a motion to withdraw pursuant to Rule 11(d)(2)(B), courts consider a number of factors including:
(1) [W]hether the defendant has asserted his legal innocence in the motion to
withdraw; (2) the amount of time that has elapsed between the guilty plea and the
motion (the longer the elapsed time, the less likely withdrawal would be fair and
just); (3) whether the government would be prejudiced by a withdrawal of the plea.
. . . [and (4)] whether the defendant has raised a significant question about the
voluntariness of the original plea.
United States v. Schmidt, 373 F.3d 100, 102–103 (2d Cir. 2004) (internal quotations and citation
omitted). Moreover, “[a] defendant is not entitled to an evidentiary hearing on the matter of
withdrawal unless he presents some significant questions concerning the voluntariness or general
validity of the plea.” United States v. (Jose) Gonzalez, 970 F.2d 1095, 1100 (2d Cir. 1992)
(quotation marks omitted). Indeed, “no hearing need be granted when the allegations on a motion
to withdraw a guilty plea before sentencing merely contradict the record, are inherently incredible,
or are simply conclusory.” Id.
The Second Circuit has explained that “[t]he standard for withdrawing a guilty plea is
stringent because society has a strong interest in the finality of guilty pleas, and allowing
withdrawal of pleas not only undermines confidence in the integrity of our judicial procedures, but
also increases the volume of judicial work, and delays and impairs the orderly administration of
justice.” United States v. Rose, 891 F.3d 82, 85 (2d Cir. 2018). Indeed, “[t]he fact that a defendant
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has a change of heart prompted by his reevaluation of either the government’s case against him or
the penalty that might be imposed is not a sufficient reason to permit withdrawal of a plea.” United
States v. Schmidt, 373 F.3d at 102 (quotation marks omitted); United States v. Albarran, 943 F.3d
at 118 (same).
II. Application
1. Legal Innocence
“The purpose of considering legal innocence is to ensure that the defendant’s reason for
withdrawing his plea is ‘just’ and not simply a recalculation of his chances of defeating the
indictment.” United States v. Farooq, No. 19-CR-100, 2020 WL 1083624, at *3 (E.D.N.Y. Mar.
6, 2020), aff’d, 58 F.4th 687 (2d Cir. 2023) (quotation marks omitted and alterations adopted).
“The self-inculpatory statements [a defendant] made under oath at his plea allocution ‘carry a
strong presumption of verity,’ and the court, in reviewing the belated claims of innocence, must
draw all permissible inferences in favor of the government and against the defendant.” United
States v. Maher, 108 F.3d 1513, 1530 (2d Cir. 1997) (quoting Blackledge v. Allison, 431 U.S. 63,
74 (1977)); see also United States v. Wilson, 828 F. Supp. 2d 679, 686 (S.D.N.Y. 2011) (holding
that defendant’s argument of legal innocence “founder[ed] because she admitted her culpability
when she pled guilty” and nowhere contended that she made false statements during her plea
allocution), aff’d, 523 F. App’x 30 (2d Cir. 2013) (summary order).
While Mr. Serna Sanchez does not expressly assert that he is “legally innocent,” he
repeatedly states that he has a “viable defense” to the charged crime of International Cocaine
Distribution Conspiracy, 21 USC §§ 963, 959, 960(b)(1)(B)(ii). See Withdraw Mot. at 1. His
anticipated defense concerns previously-produced recordings of conversations he had with a
government cooperator that were recently provided to defense counsel by predecessor counsel.
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First, he argues that a jury would not find the testimony of a government cooperator
credible. See Withdraw Mot. at 1 (“Mr. Serna Sanchez has a viable defense on account of the
revulsion and disbelief a jury will feel at the critical testimony of [the government cooperator] . . .
whose cooperation has produced several absurd results of relative punishment[.]”). This argument
is purely speculative. Mr. Serna Sanchez’s prediction about how a jury will react to a hypothetical
witness does not support his legal innocence.
Second, Mr. Serna Sanchez argues that the taped conversations between himself and the
government cooperator reveal that no agreement was formed to carry out a conspiracy, and that
the conspiracy was an invention of the cooperator. See Withdraw Suppl. at 3 (“These recordings
. . . do in fact provide a defense: no agreement was ever reached to form the conspiracy[.]”). He
argues that the recordings of conversations between him and the alleged government cooperator
would support his defense if presented at trial. Id.
“A conspiracy is an ‘agreement among the conspirators.’” United States v. Rosenblatt, 554
F.2d 36, 38 (2d Cir. 1977) (quoting United States v. Falcone, 311 U.S. 205, 210 (1940)). “The
crux of a conspiracy is an agreement between two or more persons to join together to accomplish
something illegal.” United States v. Lyle, 919 F.3d 716, 737 (2d Cir. 2019). “Because federal
conspiracy liability requires a meeting of the minds, . . . two people have to engage in the act of
agreeing in order for this requirement to be met.” United States v. Bout, 144 F. Supp. 3d 477, 485
(S.D.N.Y. 2015), aff’d, 666 F. App’x 34 (2d Cir. 2016) (quotation marks omitted and alterations
adopted). “[A] person who enters into such an agreement while acting as an agent of the
government, either directly or as a confidential informant, lacks the criminal intent necessary to
render him a bona fide co-conspirator.” Id. While conspirators do not need to have agreed on the
details of their criminal enterprise, it must be shown that they agreed on the “essential nature of
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the plan,” as to the kind of criminal conduct contemplated. Rosenblatt, 554 F.2d at 38–39. For
example to successfully prosecute a defendant who rented out a machine gun for bank robbery
conspiracy, it must be shown that the defendant knew that a bank was to be robbed. Id. Such an
agreement “may be tacit rather than explicit.” United States v. Zhou, 428 F.3d 361, 370 (2d Cir.
2005) (internal quotation marks omitted).
The applicable conspiracy statute for Mr. Serna Sanchez’s charge states that “[a]ny person
who attempts or conspires to commit any offense defined in this subchapter shall be subject to the
same penalties as those prescribed for the offense, the commission of which was the object of the
attempt or conspiracy.” 21 U.S.C. § 963. “To prove intent . . . the government must show
knowledge, for knowledge is the foundation of intent.” United States v. Torres, 604 F.3d 58, 66
(2d Cir. 2010) (quotation marks omitted). “To establish a conspiracy-to-import offense, the
government is required to prove, inter alia, that the defendant knew or believed that the conspiracy
involved narcotics bound for the United States.” United States v. Flores, 945 F.3d 687, 712 (2d
Cir. 2019). “[B]elief is tantamount to knowledge in the context of a sting operation . . . because
punishing the target of a sting assumes the veracity of a defendant’s beliefs insofar as it embraces
the legal fiction that the defendant has engaged in a ‘criminal’ enterprise.” United States v.
Nektalov, 461 F.3d 309, 316 (2d Cir. 2006). “Thus, a defendant who ‘believes’ the representations
made by informants in a sting can be said to ‘know’ of the underlying criminal enterprise even
though the enterprise does not, in reality, exist.” Id.
As a threshold matter, I note that the procedural context in which Mr. Serna Sanchez’s
motion was filed strongly undercuts his claim that the recordings support legal innocence.
Previously in briefing, he insisted that the recordings themselves—rather than transcripts of the
recordings—were “critical” to framing his defense. Withdraw Mot. at 2. Now with the recordings
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in hand, he offers no further explanation to support that claim. Indeed, the characterization of the
recordings in Mr. Serna Sanchez’s briefing predating and postdating his reacquisition of this
evidence does not change.
I find Mr. Serna Sanchez’s current characterization of the recordings’ evidentiary value to
be wholly misguided. The recordings—and the inferences they support—are incriminating and not
exonerating. For example, while denying the establishment of conspiracy’s agreement element,
Mr. Serna Sanchez admits in briefing that “there are hours of discussions [in the recordings] of
how to form such a conspiracy,” Withdraw Suppl. at 3 (emphasis in original). Conversations about
how to transport drugs into the United States, while not necessarily overt acts, form the basis of an
agreement to form a conspiracy by suggesting unity of purpose and understanding among
conspirators to accomplish specific objectives. See United States v. Asch, 775 F. App’x 15, 19 (2d
Cir. 2019) (summary order) (“[Defendant] did not need to be present to further the conspiracy
because ‘[a] conspiracy may exist even if a conspirator does not agree to commit or facilitate each
and every part of the substantive offense.’ . . . It was sufficient that [defendant] used his law
enforcement background to advise [conspirator] on how to commit the kidnapping[.]”) (quoting
Salinas v. United States, 522 U.S. 52, 63 (1997)).
Similarly, Mr. Serna Sanchez’s arguments referencing a third-party submersible owner
further supports, rather than undermines, his involvement in a criminal conspiracy. In briefing, the
defendant argues that the “central premise of the defense” concerns a third party, “a man who
owed Mr. Serna Sanchez a debt unrelated to the instant charge [who] also owned a narcotics
trafficking submarine.” Withdraw Suppl. at 3. Defendant suggests that his role was limited to
obtaining the submarine from an individual who owed him money, and the submarine would then
facilitate drug trafficking into the United States. Id. This argument essentially admits that Mr.
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Serna Sanchez was additionally motivated to enter into a conspiracy to import drugs because he
needed its profits to repay a debt he was owed. Defendant’s briefing cites no legal authority
suggesting that an individual facilitating another person’s involvement in a conspiracy (in this case
the owner of the submersible) is not themselves implicated in the conspiracy.
Finally, Mr. Serna Sanchez’s argument that he was “persuaded . . . to enter into a
conspiracy of [cooperator’s] invention” also fails to demonstrate legal innocence. Withdraw Mot.
at 2. As the Second Circuit observed, a defendant in a sting operation can violate a conspiracy-to-
import offense even when such an enterprise does not exist. See United States v. Nektalov, 461
F.3d at 316. That defendant’s criminal arrest and prosecution was due to a government cooperator
does not exonerate Mr. Serna Sanchez’s agreement to participate in a scheme to import narcotics.
See United States v. Cohen, 427 F.3d 164, 166–67 (2d Cir. 2005) (upholding conspiracy conviction
where “one-time ecstasy dealer turned government cooperator” contacted defendant’s
coconspirator). While Mr. Serna Sanchez implies that he will “tailor his trial strategy to accept[ing]
responsibility for seeking [the government cooperator’s] help to collect a debt for a transaction
unrelated to the indictment,” and to “avoid assassination,” Withdraw Mot at 1–2, this argument
indicates that Mr. Serna Sanchez joined the conspiracy because he wanted help with other matters.
That Mr. Serna Sanchez agreed to “accomplish something illegal” only because he wanted help
with something else does not invalidate that such an agreement to accomplish something illegal
was formed. See United States v. Lyle, 919 F.3d at 737; see also Cohen, 427 F.3d at 168 (affirming
conspiracy conviction where the Drug Enforcement Agency recorded a conversation between a
government cooperator and conspirator in which conspirator described forming an agreement to
smuggle drugs with defendant).
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In addition to questioning Mr. Serna Sanchez’s characterization of the recordings as
exculpatory, the government points to his “inculpatory pro se letters to the Court admitting his
mistakes and seeking leniency.” Withdraw Opp’n at 6.4 Indeed, Mr. Serna Sanchez has repeatedly
made pro se submissions at various stages of his criminal proceeding while he has been represented
by counsel. While the Sixth Amendment gives criminal defendants the right to counseled or pro
se representation, Faretta v. California, 422 U.S. 806, 834–35 (1975), a “defendant has . . . no
right to ‘hybrid’ representation in which he is represented by counsel but supplements his lawyer’s
work with selected pro se submissions.” United States v. Hage, 74 F.4th 90, 93–94 (2d Cir. 2023)
(quoting United States v. Rivernider, 828 F.3d 91, 108 (2d. Cir. 2016)). While a court has
discretion to allow pro se appearances from a counseled defendant, it is not permissible to switch
between pro se and counseled modes at will as this would undermine the relevant rules of
procedural and substantive law. Id. Therefore, I will not consider Mr. Serna Sanchez’s November
29, 2023 letter to the Court, ECF No. 32, in my assessment of his legal innocence.
Finally, Mr. Serna Sanchez’s allocution alone weighs heavily against a finding that his plea
was not entered knowingly. See Johnson v. United States, No. 06-CR-10, 2018 WL 8335489, at
*4 (E.D.N.Y. May 9, 2018) (listing several factors indicating that defendant’s guilty plea was
knowingly and voluntarily made). At his change-of-plea hearing, Mr. Serna Sanchez admitted
under oath that he “agreed with others to distribute and import [more than five kilograms of]
cocaine into the United States.” Plea Tr. at 15:1–15:21. As the Second Circuit has explained, Rule
4 While admitting that I may infer his “moral but not legal guilt” from these submissions, Suppl.
Reply at 5, Mr. Serna Sanchez also points to “[c]onversations which were not recorded,” Withdraw
Suppl. at 4, as his saving grace. Without any indication of what these conversations consisted of
or what they imply, I find that Mr. Serna Sanchez identifies no evidence in the record that suggests
his legal innocence.
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11’s requirement that the court assess the factual basis for a plea does not require that “the court
be satisfied that a jury would return a verdict of guilty” or that the court “weigh evidence to assess
whether it is even more likely than not that the defendant is guilty.” United States v. Maher, 108
F.3d 1513, 1524 (2d Cir. 1997). Instead, Rule 11 “requires the court to assure itself simply that the
conduct to which the defendant admits is in fact an offense under the statutory provision under
which he is pleading guilty.” Id. Here, were a jury to accept as fact the statements described by the
government and admitted by Mr. Serna Sanchez at his plea colloquy, “a guilty verdict would
follow.” United States v. Juncal, 245 F.3d 166, 171 (2d Cir. 2001). Rule 11’s requirement that the
court assess the factual basis for a plea “requires no more.” Id. Defendant’s minimization of his
actions is contradicted by all of his statements during the plea proceeding and, in particular, by his
allocution to the elements of the conspiracy crime to which he pled guilty. During the plea
proceeding, I confirmed that defendant understood “the nature of [the] charge to which the
defendant [was] pleading,” as required by Fed. R. Crim. P. 11(b)(1)(G). See Plea Tr. at 7:5–8:8.
Defendant then allocuted to the elements of the conspiracy offense charged in the Indictment under
oath. Id. at 15:1–16:14. At the conclusion of the plea proceeding, I found that Mr. Serna Sanchez’s
allocution provided factual support for the essential elements of the offense to which he pled guilty
and accepted his plea. Id. at 15:25–16:1.
The government’s proffered evidence, coupled with Mr. Serna Sanchez’s admission in his
motion that he was “persuaded . . . to enter into a conspiracy,” Withdraw Mot. at 2, provides a
sufficient factual basis for his guilty plea to one count of International Cocaine Distribution
Conspiracy. I find that Mr. Serna Sanchez has raised no effective argument that he is legally
innocent. Therefore, this factor weighs against him.
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2. Voluntariness
Mr. Serna Sanchez also argues that his guilty plea was not voluntary because his previous
counsel Attorney Diaz provided ineffective assistance of counsel. See Withdraw Mot. at 2–3 (“He
was consistently pressured, both by his own counsel and incredibly the prosecutor herself as he
stood behind bars . . . to plead guilty that day or go to trial.”). “Ineffective assistance of counsel
during plea negotiations can invalidate a guilty plea and make granting withdrawal appropriate, to
the extent that the counsel’s deficient performance undermines the voluntary and intelligent nature
of defendant’s decision to plead guilty.” United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005).
In theory, this could be a basis for a finding that the guilty plea was involuntary. See
Machibroda v. United States, 368 U.S. 487, 493 (1962) (“A guilty plea, if induced by promises or
threats which deprive it of the character of a voluntary act, is void.”). “It does not follow, however,
that all inducements for a defendant to plead guilty render either a plea or the consequent waiver
of the right to trial by jury involuntary.” McMahon v. Hodges, 382 F.3d 284, 290 (2d Cir. 2004).
“‘Voluntary’ for purposes of entering a lawful plea to a criminal charge has never meant the
absence of benefits influencing the defendant to plead.” United States v. Marquez, 909 F.2d 738,
742 (2d Cir. 1990). Indeed, the Supreme Court has instructed that, with regard to voluntariness, a
guilty plea “must stand unless induced by threats (or promises to discontinue improper
harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by
promises that are by their nature improper as having no proper relationship to the prosecutor’s
business (e.g. bribes).” Brady v. United States, 397 U.S. 742, 755 (1970) (internal quotation marks
omitted).
Defendant’s briefing alleges ineffective assistance of counsel in two forms. First, Mr. Serna
Sanchez alleges that his prior counsel Attorney Diaz never permitted him to review any discovery,
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including the recordings discussed above. See Withdraw Suppl. at 1 (“Mr. Serna Sanchez
requested the Court replace Mr. Diaz as his lawyer because . . . Mr. Diaz did not review the
discovery with him[.]”); Suppl. Reply at 5 (“Jose has provided substantial evidence that his
decision was involuntary and influenced by . . . a failure by counsel to review the evidence against
him”). Second, the defendant alleges that Attorney Diaz and the government improperly
orchestrated an effort to pressure him into pleading guilty. In response to these claims, the
government requested that I order an affidavit from Mr. Serna Sanchez’s prior counsel, citing
Sparman v. Edwards, 154 F.3d 51, 52 (2d Cir. 1998) (observing that a court should “offer the
assertedly ineffective attorney an opportunity to be heard and to present evidence, in the form of
live testimony, affidavits, or briefs” when a claim of ineffective assistance is made).
Discovery
An attorney is obligated to review discovery with his client. See Model Rules of
Professional Conduct 1.4 (“(a) a lawyer shall: (4) promptly comply with reasonable requests for
information”). I find that the record clearly demonstrates that Attorney Diaz met his discovery
obligations. As discussed in my analysis of the legal innocence factor, Mr. Serna Sanchez has not
presented a plausible argument that the recordings would establish a defense. Therefore, even a
hypothetical failure to play the recordings would not have been prejudicial.5 Furthermore, the
record demonstrates that Attorney Diaz did meet with Mr. Serna Sanchez and review discovery
with him.
5 Attorney Cohn’s statements at the August 20, 2025 status conference suggest that Mr. Serna
Sanchez had reviewed the recordings with prior counsel. Specifically, Attorney Cohn stated that
his client had explained to him that the recordings would support a defense, and cited this as a
basis for a motion to withdraw. See ECF No. 65. As Attorney Cohn stated that he did not possess
the recordings, Mr. Serna Sanchez must have provided his counsel with that characterization.
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The Protective Order governed highly sensitive documents in this case. It stated that “[t]he
Defendant may review . . . sensitive discovery material . . . only in the presence of Defense
Counsel or Defense Staff” and that Mr. Serna Sanchez “is prohibited from having possession,
custody, or control of the Sensitive Discovery Material, and any and all copies, notes, transcripts,
documents and other information and materials derived or prepared from the Sensitive Discovery
Material.” Protective Order at 3. Furthermore, the Protective Order appears to provide discretion
over whether such Sensitive Discovery Material is even shared in the first place: “If Defense
Counsel chooses to share the Sensitive Discovery Material with the Defendant . . . that Sensitive
Discovery Material must be shared in the presence of Defense Counsel or Defense Staff.” Id. at 3
(emphasis added).
According to Attorney Diaz, he met with Mr. Serna Sanchez on March 1, 2024, and
reviewed discovery with him, including the disputed recordings. Diaz Decl. ¶¶ 6-7. Attorney Diaz
states that he also met with Mr. Serna Sanchez on April 12, 2024 and April 17, 2024, and they
discussed discovery productions at this meeting. Id. ¶ 8. Attorney Diaz states that he and associate
counsel Sarah Speis again met with Mr. Serna Sanchez at Metropolitan Detention Center (“MDC”)
on May 7, 2024 and May 14, 2024. ¶¶ 13–14. On May 30, 2024, Attorney Diaz and Ms. Speis
allegedly met with Mr. Serna Sanchez “for over 5 hours” in the Special Housing Unit at the MDC,
and counsel were prepared “with all the discovery for [Mr. Serna Sanchez’s] review and in
preparation for trial.” Id. ¶ 17.
Mr. Serna Sanchez largely disputes Attorney Diaz’s declaration. According to Mr. Serna
Sanchez, Attorney Diaz did not review discovery with him during the March 1, 2024 meeting.
Suppl. Reply at 1. To support this assertion defendant points to an email he sent to Attorney Diaz
on March 18, 2024 with the text “solicito el discovery ????” Id. Mr. Serna Sanchez argues that this
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email was sent to ask Attorney Diaz if he had requested discovery in the case, which would be
illogical if they had already reviewed discovery together during the March 1, 2024 meeting.
Furthermore, Mr. Serna Sanchez argues that the April 12, 2024, April 17, 2024, and May 14, 2024
meetings “never happened.” Id. at 2–3. He points to a letter dated April 19, 2024 that he sent to
Attorney Diaz complaining, “As of the date of this letter it has been 399 days and yet no discovery
has been furnished . . . Although you are my defense attorney, I am the defendant and I am entitled
to review all materials in conjunction with your professional assessment.” Id. at 2–3. Mr. Serna
Sanchez argues that these emails “show that [he] was complaining about not reviewing the
discovery with no documented, contemporaneous push back from Diaz.” Id. at 5. Finally, Mr.
Serna Sanchez argues that the “over 5 hour” meeting with Attorney Diaz on May 30, 2024 in fact
“last[ed] less than one hour.” Id. at 3.
My review of the record leads me to conclude that Mr. Serna Sanchez had the opportunity
to review discovery in this case. First, it is undisputed that Attorney Diaz had access to discovery
materials. See Withdraw Mot. Decl. ¶ 4 (“Almost immediately after the August 20 appearance, I
contacted predecessor counsel and requested his complete file. He provided it on Wednesday,
August 27 and I immediately noticed neither the recordings nor extradition papers in it.”). This
production from Attorney Diaz was missing recordings and some extradition documents,
apparently misplaced, which Attorney Cohn then secured from the Federal Defenders of New
York. See ECF No. 70. Defendant does not dispute that the May 7, 2024 meeting with Attorney
Diaz and associate counsel Speis occurred, which suggests that some discovery was reviewed with
defendant. Furthermore, even if the May 30, 2024 meeting was “less than one hour,” Mr. Serna
Sanchez appears to have had the opportunity to review discovery at that meeting. Indeed, Attorney
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Diaz affirms that Mr. Serna Sanchez had already reviewed discovery by the time of that meeting.
Diaz Decl. ¶ 17.
Furthermore, many of Mr. Serna Sanchez’s arguments regarding discovery are
unsupported by any evidence. As a preliminary matter, Attorney Diaz was in fact barred from
giving copies of discovery materials to Mr. Serna Sanchez, which appears to be what the defendant
argues in many of his contemporaneous communications. See Suppl. Reply at 2 (“As of the date
of this letter it has been 399 days and yet no discovery has been furnished.”) (emphasis added).
Further, while Mr. Serna Sanchez points out that “[t]ypically, when a lawyer visits the SHU, they
sign into a log with the date and times of their entry and departure,” he has provided no evidence
that the visitation logs contradict Attorney Diaz’s declaration. Suppl. Reply at 3. Finally, Mr. Serna
Sanchez submitted a pro se sentencing memorandum on May 28, 2025 that states that he personally
reviewed transcripts of his conversations with the government cooperator. See ECF No. 61 at 1
(“A comprehensive review of the evidence will demonstrate that a lower sentencing level is
warranted . . . Defendant expressly stated their lack of ability to engage in any such arrangement,
as documented in the trasncripts [sic].”).
Pre-Plea Pressure
Mr. Serna Sanchez’s allegations about Attorney Diaz’s conduct prior to the guilty plea do
not create a “substantial reason” to deviate from the norm of accepting the “presumption of
accuracy” attached to his statements at the plea hearing. United States v. Rivernider, 828 F.3d at
105. Beginning with the motion to compel through the filing of supplemental briefing in support
of his motion to withdraw, Mr. Serna Sanchez has levelled increasingly serious allegations against
Attorney Diaz and the government regarding Mr. Serna Sanchez’s decision to plead guilty. In an
affirmation accompanying the motion to withdraw, Mr. Serna Sanchez’s counsel provides the
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following description regarding a meeting between the government and Mr. Serna Sanchez before
his guilty plea hearing on June 12, 2024:
[The government attorney] emphasized that the meeting was entirely proper and
that there were witnesses to its propriety. She continued in an emotional and
somewhat bitter tone that she had participated in the meeting as a courtesy to Mr.
Serna Sanchez. I replied that I was not accusing her of any impropriety. She
responded that although that was accurate, “it sounded as though I was planning
(such an accusation).” Withdraw Mot. Decl. ¶ 3.
Attorney Cohn stated that he “unsure if [the government attorney’s] conduct was appropriate.” Id.
Rather, he speculated that it was “more likely that then-defense counsel was at fault, if any fault
can be assigned by permitting [the government attorney] to speak to Mr. Serna Sanchez under
circumstances which created a very high likelihood he would feel increased pressure to change his
plea that day.” Id. In his most recent reply brief, Mr. Serna Sanchez now argues that “the most
logical explanation [for the pre-plea meeting] . . . is that [the government attorney] and [Attorney
Diaz] engineered the surprise-to-Jose day-of-plea meeting at least in part to persuade Jose to plead
guilty.” Suppl. Reply at 5.
Mr. Serna Sanchez offers no argument as to why Attorney Diaz would join forces with the
prosecution against his client. Furthermore, counsel was under no obligation to inform the court
of last-minute negotiations at the plea hearing once Mr. Serna Sanchez made his mind up to plead
guilty. Throughout the pre-plea meeting, defendant was always accompanied by his then-counsel.
Withdraw Mot. Decl. ¶ 2. It is well established that pressure and a defense counsel’s advice to
plead guilty does not invalidate a guilty plea. See United States v. Boamah, No. 14-CR-0673, 2017
WL 2799164, at *8 (S.D.N.Y. June 26, 2017) (finding that defense counsel’s advice to plead guilty
based on his assessment of the strength of the government’s case against defendant was “not only
appropriate, but warranted”); United States v. Farooq, No. 19-CR-100, 2020 WL 1083624 at *5
(E.D.N.Y. Mar. 6, 2020), aff’d, 58 F.4th (2d Cir. 2023) (holding that “[d]efendant’s allegations of
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coercion by the prosecution and his attorney do not exceed what the Second Circuit has deemed
non-coercive” where defense counsel and prosecution stated that defendant was facing fourteen
years in prison if he went to trial). “Guilty pleas are generally the result of a weighing of highly
undesirable-coercive-alternatives rather than a soul-cleansing urge to confess.” United States v.
Juncal, 245 F.3d at 173.
Indeed, Mr. Serna Sanchez’s argument appears to confuse coercion “in a layman’s sense”
with coercion “in a legal sense.” Id. at 172 (describing legal coercion as “physical force or threat
of physical force . . . the improper use of economic power to compel another to submit to the
wishes of one who wields it” and “mental coercion, such as being gripped by fear of the death
penalty or hope of leniency” (citing Black’s Law Dictionary 252 (7th ed. 1999) (defining
“coercion”); Brady v. United States, 397 U.S. at 750)). As for Mr. Serna Sanchez’s declaration
that he was “afraid” during the plea hearing and did not understand the proceedings, “virtually
every criminal defendant encounters additional sources of stress that flow from a criminal
prosecution and its attendant consequences.” United States v. Morton, No. 16-CR-371-5, 2020 WL
6151265, at *14 (S.D.N.Y. Oct. 20, 2020). This is particularly true when a defendant is faced with
“two unpalatable options”: pleading guilty or proceeding to trial. United States v. Doe, 537 F.3d
204, 212 (2d Cir. 2008). Therefore, it is “commonplace” for defendants in this position to “feel
‘coerced’ in the lay sense of the word,” but that does not make their guilty pleas involuntary.
United States v. Juncal, 245 F.3d at 174. “When a guilty plea is challenged as being the product
of coercion, our concern is not solely with the subjective state of mind of the defendant, but also
with the constitutional acceptability of the external forces inducing the guilty plea.” United States
v. Davis, 48 F. App’x 809, 812 (2d Cir. 2002) (summary order) (quoting Iaea v. Sunn, 800 F.2d
861, 866 (9th Cir. 1986)).
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Mr. Serna Sanchez’s conclusory allegations that Attorney Diaz’s representation was
deficient also fail. See United States v. Moree, 220 F.3d 65, 71 (2d Cir. 2000) (noting that
“commonplace” allegations that a court-appointed attorney “is not paying sufficient attention to
his case, has not come to see him in prison, has not undertaken sufficient investigation, is not
making necessary motions, is not calling witnesses, or is trying to induce the defendant to plead
guilty” do not “ipso facto result[ ] in a conflict of interest”). Contrary to defendant’s argument that
the circumstances of his plea were “so unfair as to shock the conscience,” Withdraw Mot. at 2, a
review of the record surrounding Mr. Serna Sanchez’s decision to plead guilty does not indicate
any impropriety.
The Plea Allocution
Finally, the plea allocution weighs heavily against Mr. Serna Sanchez’s assertion that his
plea was involuntary. A defendant’s testimony during his plea “carries such a strong presumption
of accuracy that a district court does not, absent a substantial reason to find otherwise, abuse its
discretion in discrediting later self-serving and contradictory testimony as to whether a plea was
knowingly and intelligently made.” United States v. Juncal, 245 F.3d at 171; United States v.
Torres, 129 F.3d 710, 715 (2d Cir. 1997) (“A defendant’s bald statements that simply contradict
what he said at his plea allocution are not sufficient grounds to withdraw the guilty plea.”). Mr.
Serna Sanchez raises the fact that he read from “prepared” remarks at the plea allocution. Suppl.
Reply at 4. It was entirely appropriate for Attorney Diaz to have his client do so here. See, e.g.,
Fernandez v. United States, No. 12–CR–445, 2016 WL 4735370, at *4 n.2 (S.D.N.Y. Sept. 12,
2016) (noting that counsel often prepare written statements describing factual basis for guilty plea)
(collecting cases); Johson v. Smith, No. 08-CV-2979, 2014 WL 1514354, at *6 (E.D.N.Y. Apr. 16,
2014) (describing plea script as “ordinary action[] taken by defense lawyers”). I observed Mr.
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Serna Sanchez’s reliance on a prepared statement during his plea allocution, and he confirmed that
everything he read to me was true and something that he told Attorney Diaz. Plea Tr. at 16:7–
16:14.
Mr. Serna Sanchez argues that United States v. Johnson, 850 F.3d 515 (2d Cir. 2017)
supports the proposition that defendants can readily withdraw guilty pleas made without plea
agreements. Withdraw Mot. at 2. However, the Second Circuit’s decision Johnson did not turn
on the absence of a plea agreement. Instead, the defendant’s guilty plea was invalidated because
the district court judge repeatedly emphasized the court’s discretion over sentencing and post-
release conditions at the plea colloquy when the applicable statute in fact provided for a
mandatory sentence of life imprisonment. Id. at 519. The record indicated that defendant’s
counsel did not understand that his client’s decision to plead guilty would necessarily result in a
life sentence. Id. at 521. Under this set of facts, the only logical option for the defendant was to
contest his guilt at trial. In contrast to Johnson, I did not provide a contradictory assessment of
the consequences of pleading guilty at Mr. Serna Sanchez’s plea hearing. While defense counsel
repeatedly points to the absence of a plea agreement, pleading guilty without a plea agreement
does not constitute ineffective assistance of counsel. Because Mr. Serna Sanchez pled guilty
without a plea agreement, his Sentencing Guidelines calculation will be lower due to his
acceptance of responsibility, he maintains the ability to challenge the applicable Sentencing
Guidelines sections, and maintains the right to appeal his sentence. Notably, Mr. Serna Sanchez
could have faced a significant trial penalty should he have elected to go to trial.
I find that the submission from Attorney Diaz, taken together with the entire record,
supports a finding that Mr. Serna Sanchez voluntarily entered into the guilty plea and no
evidentiary hearing is required. See Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001) (finding
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that in-person hearing was not required after, at the district court’s request, the record was
supplemented by a detailed affidavit from trial counsel that contradicted petitioner’s version of the
events). Ultimately, I find that Mr. Serna Sanchez has not raised a significant question about the
voluntariness and validity of his original plea and this factor weighs against withdrawal.
3. Amount of Time Elapsed and Prejudice
I next consider the amount of time that has elapsed between Mr. Serna Sanchez’s guilty
plea and the motion to withdraw. More than a year has passed since he pled guilty on June 12,
2024. Courts in this circuit have found that significantly shorter delays weigh against granting a
defendant’s motion to withdraw. See United States v. Dean, 591 F. App’x 11, 14 (2d Cir. 2014)
(four-month delay weighed against motion); United States v. Thomas, 651 F. Supp. 3d 685, 693
(S.D.N.Y. 2023) (same); see also United States v. Kalichenko, No. 14-CR-95, 2019 WL 3287976,
at *4 (E.D.N.Y. July 22, 2019) (collecting cases). This factor weighs against defendant.
Finally, there is no burden on the government to show that it would be prejudiced by a
withdrawal where, as here, the defendant has not shown sufficient grounds to justify withdrawal.
See United States v. Gonzalez, 647 F.3d 41, 56 (2d Cir. 2011) (“There is no burden on the
government to show that it would be prejudiced by the withdrawal of the guilty plea unless the
defendant has shown sufficient grounds to justify withdrawal.”) (collecting cases).
As all factors weigh against withdrawal, Mr. Serna Sanchez’s motion is denied.
CONCLUSION
For the reasons set forth above, Mr. Serna Sanchez’s motion to withdraw his guilty plea
pursuant to Rule 11(d)(2)(B) is denied because he has not shown a fair and just reason for
withdrawal. Because defendant has failed to present any significant question concerning the
voluntariness or validity of the plea, no evidentiary hearing is warranted.
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SO ORDERED.
/s/
Allyne R. Ross
United States District Judge
Dated: December 6, 2025
Brooklyn, New York
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