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The Fine Print Counts In A Deal With the Devil – Update for February 20, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘SHUT UP AND SIGN’ LEADS TO A LOT OF BUYER REMORSE

About 95% of all federal indictments end with a plea agreement where the defendant agrees to take a guilty plea in exchange for government promises that often seem evanescent if not illusory. If I had a dime for every prisoner who has told me that he or she only signed because defense counsel said to, I would be writing this on the beach of my private Caribbean island instead of at a desk looking out at February snow in Ohio.

plea161116Two cases decided last week remind all prisoners – including those who have already signed their plea agreements – that in a plea agreement, every promise counts. A defense attorney’s disservice to the client is never greater than when he or she rushes them into signing a “good deal” without first painstakingly walking the defendant through every provision and explaining it in detail.

Eric Rudolph (remember him?) decided to express his political views by blowing up Olympic venues and abortion clinics. The innocents he slaughtered in the process were just icing on his demented cake. After five years on the lam, Eric was caught dining out of a dumpster in Murphy, North Carolina, and was later convicted of one 18 USC § 844(i) arson offense and five companion 18 USC § 924(c) counts for using a firearm (bombs studded with nails qualify under the statute as “firearms”) in the commission of the arson.

Eric’s approach to the plea agreement was unrepentant. He said he had “deprived the government of its goal of sentencing me to death,” and that “the fact that I have entered an agreement with the government is purely a tactical choice on my part and in no way legitimates the moral authority of the government to judge this matter or impute my guilt.”

Uh-huh. Eric’s statement brings to mind old Gus McRae (Lonesome Dove) addressing outlaw Dan Suggs, who was about to be executed with his brother but expressed only hatred and contempt:

Gus McCrae: I’ll say this, Suggs; you’re the kind of man it’s a pleasure to hang. If all you can talk is guff, you can talk it to the Devil.

supermaxcell240220I’m no fan of mandatory life sentences and even less of the death penalty, but it’s amazing how malleable our principles can be when we’re punched in the face with pure-D evil. Eric undeservedly got a life sentence, which he’s spending in the mountains of Colorado (although he never gets to see them from his concrete cell at ADX Florence).

As part of the plea deal he was proud of for depriving the Feds of the death penalty, Eric waived the right to collaterally attack his sentence in any post-conviction proceeding, including under 28 USC § 2255. But because of what the Court disapprovingly calls “the evergreen litigation opportunities introduced by the categorical approach” to § 924(c) litigation,” Eric – who has apparently decided that freedom some day isn’t such a bad goal – has filed two § 2255s so far. Last week, the 11th Circuit turned down his second one as barred by the plea agreement and, in so many words, told Eric to enjoy his place in the mountains for the rest of his life.

In the last few years, courts have applied the Supreme Court’s “categorical” approach to determining whether an offense is a “crime of violence” within the meaning of 18 USC § 924(c)(3)(A), that is, “an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” Even Eric’s district court agreed that after the Supreme Court’s decision in United States v. Davis, his arson offenses were no longer crimes of violence under the federal statute (because one can be convicted of arson for burning down his or her own property). But that didn’t matter, the district court said, because Eric had given away his right to bring a § 2255 motion to correct the error.

Last week, the 11th Circuit agreed. It held that “a plea agreement is, in essence, a contract between the Government and a criminal defendant. And because it functions as a contract, a plea agreement should be interpreted in accord with what the parties intended. In discerning that intent, the court should avoid construing a plea agreement in a way that would deprive the government of the benefit that it has bargained for and obtained in the plea agreement.”

Eric’s plea deal, the 11th said, contained the common waiver of the right to bring a collateral attack on his sentence. But Eric argued that the plea deal only prohibited collateral attacks on the sentence, while his collateral attack was on the § 924(c) convictions.

dumpsterfire249220Eric’s argument was a dumpster fire, the Circuit said. “The text of 28 USC § 2255, the history of that same statute, and the habeas corpus right that it codified, all point in the same direction: 2255 is a vehicle for attacking sentences, not convictions.” Starting with the origins of English habeas corpus through the codification of 2255 up to last summer’s Supreme Court Jones v. Hendrix decision (where SCOTUS said “Congress created 2255 as a separate remedial vehicle specifically designed for federal prisoners’ collateral attacks on their sentences”), the 11th concluded that the history, the plain text of the statute “shows the same, as does Rudolph’s requested relief… [His] motions are collateral attacks on his sentences, so his plea agreements do not allow them.”

Winning his § 2255 would have been a huge deal for Eric. The 18 USC § 844(i) conviction carries a maximum 10-year sentence. Each of the § 924(c) convictions carries a maximum of life. Had Eric been allowed to bring the § 2255, he would have gone from his concrete cell straight to walking the streets (something most of his victims would never enjoy again).

*     *     *

Meanwhile, over in Louisiana, Keesha Dinkins – a front-office worker at Positive Change healthcare clinic – was swept up in a Medicaid billing fraud. She didn’t make a dime from the fraud beyond her normal salary, but her lawyer had her sign a plea agreement for 24 months and restitution of $3.5 million.

positivechange240220Despite the deal she made, she argued that she should not be on the hook to share the restitution equally with Positive Change’s owner (who got a lot more time than she did). Last week, the 5th Circuit told her that it was Positive that it would not Change her restitution:

The criminal justice system in this country relies on plea agreements to provide efficient resolutions to criminal cases. Indeed, over 95 percent of federal criminal cases are resolved without trial. It would undermine the principle that plea bargains are contracts to hold that a party can agree to a specific amount of restitution, supported by record evidence, and then in the next breath, challenge an order imposing that exact amount of restitution.

The 5th observed that her plea agreement provided that “Dinkins — not Positive Change — was responsible for the $3.5 million loss.” That is how the judgment will remain.

Rudolph v. United States, Case No 21-12828, 2024 U.S. App.  LEXIS 3278 (11th Cir., February 12, 2024)

United States v. Johnson, Case No 22-30242, 2024 U.S. App. LEXIS 3487 (5th Cir., February 14, 2024)

– Thomas L. Root

How Many Angels with Guns Can Fit on the Head of a Pin? – Update for August 4, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘WAIVING’ DAVIS RETROACTIVE RELIEF GOODBYE

Robber160229Deandre King was convicted of conspiracy to rob a bank and using or carrying a gun while doing so (an 18 USC § 924(c) violation). He signed a plea deal that, among other things, included a waiver giving up “the right to appeal his conviction and sentence and the right to collaterally attack his conviction and sentence in any post-conviction proceeding unless the sentence exceeded the statutory maximum.”  The waiver language included waiving post-conviction motions filed pursuant to 28 USC § 2255.

As you may recall the § 924(c) count is the darling of the prosecution set. A § 924(c) count (for using, carrying or possessing a gun during and in relation to a drug offense or a crime of violence) carries a mandatory sentence of at least five years. Plus, the law requires the mandatory sentence be imposed consecutively to any other sentence imposed. So while the conspiracy to rob might carry an 51-month sentence (as Deandre’s did), piling a § 924 count on top ensured another 84 months (the mandatory minimum where the gun is “brandished”), for  a 135-month stay.

deal160516Deandre’s plea deal probably didn’t seem too bad to him, because the government dropped some other counts, including another § 924(c) count that would have added another five years. Besides, the law was clear: bank robbery was a crime of violence, and all the Circuits had long since agreed that a conspiracy to commit a crime of violence was itself a violant crime.

However, four years after Deandre’s conviction, the Supreme Court held that all the Circuits were wrong. In United States v. Davis, the Supreme Court held that conspiracy to commit a violent offense could not be used as an underlying crime of violence supporting a § 924(c) conviction.

The Davis holding has since been held to be retroactive, so Deandre jumped on it, filing a § 2255 asking his district court to throw out the § 924(c) conviction.

His district court refused, however, holding that Deandre’s plea agreement waiver prevented such a filing. Last week, the 11th Circuit agreed, holding that the mere fact that no one foresaw a change in the law that would nullify a conviction did not invalidate a waiver.

angels170726Deandre argued that the Davis change was the equivalent to his being sentenced in excess of his stastutoery maximum. The argument has some appeal. After all, if he was not guilty of the § 924 count, then the statutory maximum sentence would be zero, and any § 924(c) sentence in excess of zero would exceed the statutory maximum (at least in some metaphysical way).

But the 11th Circuit was uninterested in counting the angels on the head of the pin:

Forcing constitutional claims into the statutory-maximum exception would render the promise of waiver virtually meaningless, robbing defendants of a powerful bargaining tool,” the Circuit held. “Defendants who agree to waive their appeals receive the immediate benefit of reduced penalties in return—as King’s case shows. But if that waiver becomes contingent, whether the defendant wishes it to be or not, a bargain will be much harder to strike… We are not the only circuit court to recognize the value of enforcing appeal waivers against claims based on new constitutional rules… Two of our sister circuits have recently held that such waivers prohibit § 2255 motions based on Davis. The 7th Circuit explained that a Davis challenge did not “satisfy any of its recognized bases for avoiding a valid collateral-attack waiver…” and the 6th Circuit interpreted an explicit carve-out in an appeal waiver for sentences exceeding “the statutory maximum” to refer to “the maximum sentence at the time of sentencing, not to maximum sentences throughout a defendant’s prison term based on future changes to the law.

What this means is that while Deandre is not guilty of the § 924(c) conviction, he’ll do the time for it.

King v. United States, Case No 20-14100, 2022 US App LEXIS 20910 (11th Cir Jul 28, 2022)

– Thomas L. Root

6th Mandamuses District Court Plea Agreement Limits – Update for May 3, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

6TH CIRCUIT SHUTS DOWN DISTRICT JUDGE WHO DOESN’T LIKE PLEA WAIVERS

Just about any defendant who has ever made a plea deal (about 94% of federal prisoners) has faced a provision in the agreement known as an “appeal waiver”, where the defendant agrees not to appeal or file a 28 U.S.C. § 2255 post-conviction motion except in the most extreme cases. The waivers are often overlooked or underappreciated by the defendant, and rarely explained adequately by defense counsel or the court.

Waivers160215Still, they’re a boon to the government. A waiver ensures that the defendant will never be back to complain on appeal or habeas corpus about infirmities in the sentencing, whether caused by court error or defense attorney misfeasance. Some creative U.S. Attorneys were even bulletproofing their convictions against future changes in the law or Guidelines that might otherwise entitle the defendant to a lesser sentence. A few go so far as to prohibit the defendant from filing a Freedom of Information Act (5 U.S.C. § 552) request to law enforcement agencies. Ohio State University law professor Doug Berman calls an appeal waiver nothing more than a “(government labor-saving) device” that should be “void as against public policy.”In fact, the Dept. of Justice only two months ago had to stamp out the nascent practice by some U.S. Attorneys requiring a defendant to waive any right to petition for a compassionate release sometime under 18 U.S.C. § 3582(c)(1)(A)(i) in the future. Such motions are based on extraordinary changed circumstances that make a modificationof the sentence an act of compassion.

sorry220503‘What, you’re dying of cancer, Mr. Tax Fraud convict, and you would like to spend your final months dying at home instead in a federal prison? Sorry, Charlie, you waived the right to ask the judge for that in your plea deal six years ago…’

A few judges find appeal waivers so odious that they will not accept a plea deal containing one. One such federal judge is David Lawson, who sits on the U.S. District Court in the Eastern District of Michigan. He got slapped down last week by the 6th Circuit, which granted a writ of mandamus against him for rejecting a plea deal based on his “longstanding practice” of rejecting agreements containing appeal waivers.

During a pretrial hearing in a federal drug prosecution for Ashley Townsend, Judge Lawson told the parties that his “practice over the years has [been to] not… to accept plea agreements that have waivers of rights to collateral review or the right to appeal a sentence determination or sentencing issue that is disputed.” Perhaps because U.S. Attorney Dawn Ison doesn’t give as fig what a federal judge wants, or perhaps because she thought she finally had the perfect test case, Dawn’s office and Ashley signed a plea agreement with appeal waivers anyway.

Judge Lawson was as good as his work. He rejected the proposed deal.

The government filed a petition for writ of mandamus with the 6th Circuit, asking for an order telling Judge Lawson that his practice violated F.R.Crim.P. 11, and that he could not impose such a blanket policy. A writ of mandamus is known as an “extraordinary writ.” It is sort of the obverse of the injunction coin. An injunction is a court order prohibiting someone from committing an act. Mandamus is an order to a lower court or government official directing that something be done.

mandamus210218In keeping with its ‘extraordinary’ nature, a writ of mandamus is tough to get. A party seeking a writ of mandamus must show that (1) it has no other adequate means of obtaining relief, (2) its right to mandamus is “clear and indisputable;” and (3) the issuance of the writ was “appropriate under the circumstances.”

The Circuit agreed the U.S. Attorney was entitled to its writ. The 6th pointed out the government has no right under the law to file an interlocutory appeal of Judge Lawson’s denial of a plea deal, and if Ashley would later plead guilty to the indictment, be convicted by a jury, or be acquitted after trial, the government had no right to a direct appeal in which the Judge’s practice could be questioned. “In this case,” the Circuit said, “mandamus is the only adequate means for the United States either to compel the district court to adhere to Rule 11.”

Second, the 6th ruled, “the district court’s violation of Fed.R.Crim.P. 11 was ‘clear and undisputable.’ Rule 11 prohibits the court from participating in plea discussions… When a district court expresses its preference for or against certain plea-bargaining terms in an unfinalized or hypothetical plea agreement, the Circuit rules, the court impermissibly participates in plea negotiations in violation of Rule 11.”

Here, the Circuit held that the district court abused its discretion by rejecting the parties’ plea agreement without a case-specific “sound reason.” In other words, if the court rejects Ashley’s plea deal because of the presence of the waiver. it needs a reason based on the particulars of Ashley’s situation.

Finally, the 6th said, mandamus is appropriate in this circumstance. The issue had never been decided before, it “involves important questions… which bear on the ‘efficient administration of justice,” and raises “questions that might evade review if not considered at this time.”

bonkers220503University of North Carolina criminal law prof Carissa Byrne Hessick called this decision “bonkers.” She said this “astonishing decision curtailing trial courts’ power to reject plea bargains… I hope the 6th Circuit decides to hear this case en banc and to reverse this terrible panel decision. Plea bargaining has warped the criminal justice system. And if other courts follow the Sixth Circuit, it will get even worse.”

Professor Berman said in his Sentencing Policy and Law blog that he “generally agree[s] with the District Court’s stated policy concerns with all appeal waivers: ‘The court explained its belief that appeal waivers “embargo” trial court mistakes, “insulate” the government’s conduct “from judicial oversight,” effectively “coerce” guilty pleas with offers “too good to refuse,” and “inhibit[] the development of the Sentencing Guidelines”‘.”

As usual, the Volokh Conspiracy is succinct about it:

During plea bargaining, prosecutors will often offer criminal defendants an escape from unconscionably long mandatory minimum sentences if they waive their right to appeal their conviction or challenge it on collateral review. It’s a system that’s ripe for abuse and coercion. But, per the Sixth Circuit, that’s no reason for a district judge to have a blanket rule against approving plea deals that contain these waivers. Mandamus-ed!

DOJ, Department Policy on Compassionate Release Waivers in Plea Agreements (March 11, 2022)

Sentencing Law and Policy,  Sixth Circuit panel grants mandamus because district judge rejected a plea deal with an appeal waiver the wrong way (April 28, 2022)

In re United States, Case No 21-1318 (6th Cir. April 26, 2022) 

Twitter, Carissa Byrne Hessick (April 26, 2022)

The Volokh Conspiracy, Short Circuit: A Roundup of Recent Federal Court Decisions (April 29, 2022)

– Thomas L. Root

Waive It ‘Goodbye’? – Update for November 5, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ONE AIN’T DONE

oneanddone200616A lot of possible objections or defenses can be waived if they aren’t raised at the right time. If a defendant doesn’t raise an objection to the indictment or venue or speedy trial before the jury is seated, the objections are lost. Rule 12 of the Federal Rules of Criminal Procedure lists a whole bevy of such issues.

Many other rights are often waived if the defendant enters into a plea agreement with the government. Such rights, which have to be specifically and expressly waived in the plea agreement, usually include the right to appeal, the right to file other types of post-conviction challenges, and even – often enough – the right to file requests for documents under the Freedom of Information Act.

A plea waiver is common and enforceable. But the government has to raise the defense of plea waiver in order to get any traction. Let’s say a defendant signs a plea deal with the government that includes a promise not to appeal or bring a collateral attack on a conviction or sentence. Later, she files a habeas corpus motion under 28 USC § 2255 claiming, for example, her lawyer screwed up at sentencing. If the government doesn’t raise the plea waiver as a defense at the time it files its objection to the § 2255 motion, it can’t come back later and assert the defense.

It’s “one and done.”But how long is “done?” Derrick Borden found that out last week. Despite having signed a plea waiver that prevented any post-conviction challenges to his conviction, Derrick filed motion to vacate his 18 U.S.C. § 924(c) conviction after the Supreme Court’s decision in United States v. Davis invalidated the basis for that count. The government, agreeing that the § 924(c) conviction should be vacated, did not raise the plea waiver as an objection.

After the § 924(c) was vacated, Derrick was resentenced. Not liking how that turned out, he appealed the new sentence as being too much. The government raised the plea waiver as a defense to the new § 2255, arguing Derrick had no right to appeal.

Derrick argued that the government – having waived its right to invoke the waiver against his first § 2255 motion – was not allowed to selectively enforce the plea deal, and that the letter it wrote the district court waiving the waiver the first time around should be read to have abandon its right to enforce the waiver for all time.

Waivers160215Last week, the 2nd Circuit turned him down, apparently a bit miffed that Derrick tried to sandbag the government for having done the right thing. “To start, the Circuit said, “consenting to permit Borden to move to vacate his § 924(c) conviction was in Borden’s interest, in the interest of judicial economy, and in the interests of justice… we see no reason to discourage the Government from consenting to the correction of a constitutional error by offering limited relief from an appeal waiver (or waiver of other post-conviction relief) that benefits the defendant.”

The 2nd said the government’s letter let Derrick “obtain precisely the relief he sought. And although courts construe plea agreements strictly against the government, that standard does not necessarily extend to a letter that is not a separate plea agreement upon which the defendant relied in waiving any rights.

United States v. Borden, Case No. 19-4316-cr, 2021 U.S. App. LEXIS 32030 (2d Cir., Oct. 26, 2021)

– Thomas L. Root

It’s Called ‘Marketing’ – Update for February 6, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

HAVE MERCY ON AN ORPHAN

Everyone has heard the one about the guy who killed his parents, and then asked the court for mercy because he was an orphan. That’s kind of what happened to Pasquale “Patsy” Rubbo.

bassomatic200206If you are of a certain age (that is, if you have  Medicare card), you recall Dan Akroyd’s Bassomatic. Substitute pot scrubbing for fish cleaning, and you’d havePatsy’s invention, the “Scrubbieglove.”

Patsy pled guilty to fleecing investors out of $6 million to market the Scrubbieglove, a cleaning sensation that did not do so well on the dishes, but cleaned out investors’ wallets slick as a whistle. The glove never made it to market, but the $6 million Patsy and his co-conspirators raised through fraud let them have one whale of a party for a few years.

Patsy signed a plea deal that contained a government promise to recommend a 20% reduction in his sentence in exchange for his cooperation. As well, Patsy promised not to appeal his sentence. But while he was released on bond prior to sentencing, he communicated with a known witness in the case, placing phone calls, exchanging email, and initiating wire transfers, all in an attempt to license the Scrubbieglove through the witness’s company.

promises 200206Patsy’s actions violated the conditions of his bond, which prohibited him from contacting victims or witnesses. Patsy told the government of neither the witness contacts nor his efforts to license the Scrubbieglove rights.

When the government found out, it only recommended a 15% downward departure in Patsy’s sentence instead of the 20% departure anticipated in the plea agreement.

In response to the government’s refusal, Patsy appealed. As for the plea agreement, he claimed the government breach of its 20% pledge relieved him of his appeal waiver.

Last week, the 10th Circuit pitched Patsy’s appeal. The Circuit said the agreement obligated Patsy to cooperate with the government on any matter under investigation. Because he tried to license the Scrubbieglove – “the product at the center of the government’s case” – and withheld the information from the government, Patsy had breached his promise.

toastknife200206The government agreed to move for a reduction as long as Patsy’s cooperation was full and truthful. The agreement stated the government expected to recommend a 20% departure “based on the facts known to the government as of the date of the Plea Agreement.” Thus, the 10th ruled, “the express language shows the government did not unequivocally promise to recommend a departure of a certain percentage… The government unsurprisingly determined that Defendant’s conduct warranted a reduced departure recommendation. Given that Defendant withheld information relating to the government’s investigation, it did not breach the Plea Agreement by recommending a 15% departure at sentencing.”

The government did not breach the agreement. Thus, Patsy was not relieved of the obligation not to appeal.

United States v. Rubbo, 2020 U.S. App. LEXIS 2503 (10th Cir Jan 27, 2020)

– Thomas L. Root