Tag Archives: plea agreement

The Error Wasn’t Plain… But Your Lawyer Was Plainly in Error – Update for August 7, 2018

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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.

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GOVERNMENT PLEA BREACH NOT PLAIN ERROR, BUT DEFENSE COUNSEL WAS PROBABLY INEFFECTIVE
A defendant is supposed to get what he reasonably believed he negotiated in a plea deal
A defendant is supposed to get what he reasonably believed he negotiated in a plea deal

Marquette Murray had a couple of problems, a federal drug conspiracy indictment and a couple of misdemeanors in D.C. Superior Court. His lawyer negotiated a favorable plea deal in which the government agreed Marquette was looking at Criminal History I and a sentencing range of 24-30 months.

After the deal was made, however, Marquette got sentenced in D.C. Superior Court before his federal sentencing. The presentence report used the misdemeanor convictions and made Marquette a Crim History II. His sentencing range rose to 27-33 months, and the government recommended a 33-month sentence.

On appeal with a different lawyer, Marquette claimed the government had breached the plea agreement, because in D.C., the government runs prosecutions in federal court and superior court. Because the government had the power, Marquette said, it should have delayed Superior Court sentencing so Marquette would have remained a Crim History I for federal sentencing purposes. To add insult to injury, the government demandedMarquette get 33 months, and thus breached its promise to recommend a within-range guidelines sentence.

ausalies171207What did in the government was that it agreed in the plea agreement that based on the information it knew, Marquette had a criminal history of I and a sentencing range of 24-30 months. Last week, the Court of Appeals agreed with Marquette that the government had welshed on the deal, but it denied Marquette relief… even while dangling a post-conviction carrot in front of him.

Sure, the Court ruled, the government breached the plea agreement. But because Marquette’s trial attorney did not object, the appeals court could only grant relief for FRCrimP 52(b) plain error. “And to find plain error,” the Court said, “it is not enough to base our reading on the parties’ ‘reasonable understanding’ and on ‘construing any ambiguities’ against the government. Rather, we must find that the breach was clear or obvious.”

While reasonable defendants could have understood the agreement the way Marquette did, the agreement did not expressly address whether the not-yet-entered pleas would affect his final criminal history category and Guidelines range, and the agreement does not expressly address the expected timing of those pleas. “In sum, we conclude that the government breached its plea agreement with appellant [Marquette]. But [Marquette] did not object to the breaches in the district court, and we therefore cannot provide him with relief because the breaches were not plain. Although his interpretation of the agreement’s ambiguous language is the best one, we cannot say that the breaches should “have been obvious to the trial court.”

However, the Court said in an unmistakable hint to Marquette, it seemed pretty clear his trial counsel was ineffective in not seeking a continuance in Superior Court and in not objecting to the government asking for more than 30 months.

lawyerjoke180807And because “in most cases the Guidelines range will affect the sentence,” the prospect that effective performance would have put [Marquette’s] 33-month sentence above the Guidelines range is sufficient to establish a reasonable probability of prejudice.

The Court strongly implied that Marquette might get the deal he was entitled to on post-conviction review, and it hinted to Marquette that he should be sure to file a 2255 motion, which he will no doubt be doing soon.

United States v. Murray, Case No. 17-3006 (D.C. Cir., July 31, 2018)

– Thomas L. Root

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Reports Attack Plea Pressure, Inconsistent Drug Sentence Enhancements – Update for July 17, 2018

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NEW STUDIES SLAM GUILTY PLEA PRESSURE AND 851 ENHANCEMENTS

Two studies released last week documented affronts to justice from pressure to plead guilty, and “851 enhancements” that dramatically increase mandatory minimum sentences.

pleadeal180104A troubling study released last week by the National Association of Criminal Defense Lawyers found “ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This ‘trial penalty’ results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.

The NACDL study documents the corrosive effect of the trial penalty on the criminal justice system, resulting from uncontrolled prosecutorial charging discretion, mandatory minimum sentencing statutes, and the Guidelines. The government’s capacity to process large caseloads without hearings or trials has resulted in an exponential increase in incarceration.

The system’s pressures on defendants to plead guilty causes innocent people to plead guilty. Of 354 defendants exonerated by DNA analysis in the last six years, 11% had pled guilty to the crime they did not commit.

The Report recommends wholesale changes in the Guidelines to exclude relevant conduct, to permit the court to award a third acceptance-of-responsibility point even without government motion, and to prevent application of an obstruction-of-justice enhancement simply because the defendant testifies. It also called for substantial revision of mandatory minimums for sentences.

pleadealb161116Ironically, the 9th Circuit reversed a sentence last week where it said the judge seemed to penalize the defendant for his decision to assert “protected Sixth Amendment right” to go to trial. The district court had emphasized the defendant’s “decision to go to trial” five separate times during the sentencing hearing, and just before imposing the sentence, declared to the defendant: “You decided to roll the dice, and it came up snake eyes. You didn’t think she’d testify, and she did. You went – you wanted to go to trial, so you went to trial. And Probation rightly recommends 327 months for that.”

The 9th Circuit held that “the district court’s statements run headlong into our precedent that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment…” The Circuit complained the record did not specify which if any 18 USC 3553 sentencing factors the judge considered, “or whether it considered any facts at all beyond Hernandez’s decision to exercise his constitutional rights.” On this record, the Circuit said, “it is impossible to avoid the centrality of the comments about Hernandez’s decision to go to trial.”

mandatory170612Meanwhile, the Sentencing Commission issued a surprising report on government use of so-called 851 enhancements to drug trafficking sentences. Under 21 USC 841(b), mandatory minimum sentences are dramatically increased if the defendant has prior serious drug cases. The government triggers the higher mandatory minimum by filing a notice of enhanced penalty under 21 USC 851, which then requires the court to apply the higher mandatory minimum.

The report found that the government filed 851 enhancements in only 12.3% of eligible cases in 2016. The enhancement seems to be used mostly as leverage to force cooperation. After accounting for cases in which the notice was withdrawn, only 39% of eligible defendants ultimately got the enhanced sentence.

The rate at which 851 enhancements are filed or withdrawn varies widely among districts. In most districts in fiscal year 2016, at least 25% of all drug trafficking defendants were eligible for an 851 enhancement. In five districts, 851 enhancements were filed against more than 50% of eligible drug trafficking offenders; in 19 districts, no 851 enhancements were filed at all.

Defendants against whom an 851 information was filed received an average sentence that was 61 months longer than eligible defendants against whom the information was not filed. Black offenders constituted 51.2% of offenders against whom the government filed an information seeking an 851 enhancement, followed by white offenders (24.3%) and Hispanic offenders (22.5%).

NACDL, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (July 9, 2018)

U.S. Sentencing Commission, Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders (July 11, 2018)

United States v. Hernandez, Case No. 13-10428 (9th Cir. July 10, 2018)

– Thomas L. Root

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Well, Then, Would You Believe…? – Update for July 3, 2018

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IF AT FIRST YOU DON’T SUCCEED…

At their first sentencing, the Vera brothers watched as the Government established the drug amounts implicated in their case for sentencing purposes through an FBI agent who “interpreted” the contents of wiretapped phone conversations to conjure up a drug weight. Drug weight, of course, drives the base offense levels of the Sentencing Guidelines – a kilo of meth will buy you a much higher sentencing range that a blunt of Mary Jane in your back pocket.

code180703The district court accepted the agent’s white-bread explanations of the purported code being used in the phone conversations, and hammered Armando with 360 months and his brother with 262.

After the 9th Circuit threw that out, the brothers were resentenced. This time, the Government – fearful of the FBI “translator” gambit – relied instead on the contents of co-conspirators’ plea agreements to establish drug quantities attributable to the Vera brothers.

Anyone who has been in a federal courthouse for any purpose other than to use the restrooms knows that the government dictates the contents of a plea agreement, and as long as the language in implicating someone else, a defendant will happily sign on. Paragraph 5 says a co-defendant kidnapped the Lindbergh baby? Why not? Despite the fact that using a plea agreement with Defendant A as sentencing evidence for Defendant B is like the government quoting itself, the district court found the approach “more credible” than the PSR and Armando’s sentencing memorandum, because it was the “least dependent on interpretation of the recordings” as well as the government’s “single most significant data source.”

lindbergh180703Last week, the 9th Circuit reversed the Vera brothers’ second sentencing, too. The panel held that the district court relied too heavily upon co-conspirator plea agreements to determine drug quantities, mistaking holding that the plea agreement statements were reliable statements against interest under F.R.Ev. 804(b)(3). The panel said “a defendant signing a plea agreement may adopt facts that the government wants to hear in exchange for some benefit, usually a lesser sentence. In pointing their fingers at the Vera brothers, the co-conspirators were acknowledging neither their own guilt nor conduct that would necessarily enhance their own sentences. Rather, these statements merely helped the government’s prosecution of the Veras.” Due to a co-defendant’s strong motivation to implicate the defendant and to exonerate himself, any statements “about what the defendant said or did are less credible than ordinary hearsay evidence.”

Hearsay is admissible at sentencing, so long as it is accompanied by “some minimal indicia of reliability.” But here, the district court’s primary rationale for relying upon the plea agreements was Evidence Rule 804(b)(3). The Circuit ruled that a district court may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability.

United States v. Vera, Case No. 16-50634 (9th Cir. June 25, 2018)

– Thomas L. Root

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Saying It Doesn’t Make It So – Update for March 8, 2018

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I DIDN’T MEAN IT LIKE THAT

fineprint180308Anyone who every entered a guilty plea (like 97% of federal prisoners) knows that at the change-of-plea hearing and in the plea agreement, the defendant signs off on a lot of fine print. Most of it goes by in a blur, and means little until much later, when the court and government beat the inmate over the head with “admissions” he made in writing and on the record.

Last week, the 7th Circuit suggested there were limits to holding a defendant to everything he or she said at the change-of-plea. Vance White pled guilty to a white-collar conspiracy. His plea agreement said, “beginning no later than in or around the fall of 2009 and continuing until at least in or around the summer of 2013…” Vance and his buddies had run a scheme to rip off merchants with bad checks. The only problem was that Vance had been locked up for most of the period, being actually free for only about a year of the 4-year conspiracy.

The mistake made a big difference in his Guidelines sentencing range, but the government was unapologetic. The AUSA argued that the truth didn’t matter, because Vance had admitted to all of the conspiracy involvement in his plea agreement. One presumes that if Vance had admitted to having assassinated President Kennedy, kidnapping the Lindbergh baby and masterminding 9/11, the government would have said that must be so, too.

lindbergh180308Last week, the 7th Circuit decided that common sense should prevail. “As a general rule,” the Circuit said, “the government must show an aggravating offense characteristic under the Guidelines by a preponderance of the evidence, and this rule applies to the loss amount in a fraud offense… White’s guilty plea and his admission in the plea agreement are insufficient because they are too ambiguous on the key point. A plea agreement and admissions in a guilty plea hearing may of course establish a factual foundation for sentencing. The question here is just what White admitted. Our broad holdings about the evidentiary force of admissions in a plea agreement do not hold that a general admission in a plea agreement to a conspiracy or scheme spanning a certain time conclusively establishes individual participation during that entire time… White’s admission… is no better than a plea to an indictment — which admits only the essential elements of the offense. The beginning and end dates of a scheme are not essential elements.”

United States v. White, Case No. 17-1131 (7th Cir. Mar. 2, 2018)

– Thomas L. Root

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Supremes Say Guilty Plea Does Not Rule Out Constitutional Challenge – Update for February 21, 2018

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LISAStatHeader2smallSUPREME COURT HAS CLASS, BUT NO DIMAYA

The Supreme Court handed down four opinions this morning, but the long-awaited Sessions v. Dimaya decision, which will address the broader application of the 2015 Johnson vagueness holding on “crime of violence” was not among them.

class180221Today, SCOTUS held in Class v. United States that pleading guilty to a federal crime does not prevent a defendant from challenging the constitutionality of the statute on appeal. A federal grand jury indicted petitioner, Rodney Class, for possessing guns in his locked jeep on the grounds of the United States Capitol, a violation of 40 USC 5104(e)(1). He signed a plea agreement that set forth several categories of rights that he agreed to waive, but said nothing about his right to challenge the constitutionality of the statute on direct appeal. The D.C. Circuit Court of Appeals held Class could not appeal the statute’s constitutionality under the 2nd Amendment, because by pleading guilty, he had waived all constitutional claims.

The Supreme Court reversed, holding in a 6-3 opinion that a guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal. The Court said that “where the claim implicates ‘the very power of the State’ to prosecute the defendant, a guilty plea cannot by itself bar it.” Here, Class neither expressly nor implicitly waived his constitutional claims by pleading guilty. A guilty plea, the Court said, does not bar a direct appeal in these circumstances.

So when will we see Sessions v. Dimaya? No one outside of the Justices themselves know the answer. If the Court has any opinions to issue next week, those will happen on Tuesday or Wednesday.

Class v. United States, Case No. 16-424 (Supreme Court, Feb. 21, 2018)

– Thomas L. Root

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Just Sign Right Below the Illusory Promise – Update for January 4, 2018

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PLEA AGREEMENT OFFERS NOTHING, STILL OK

Jose Rivera-Cruz agreed to plead guilty to being a felon in possession of a gun. He signed a plea agreement in which the government (1) did not agree to reduce or dismiss any of charges, (2) reserved the right to argue for a statutory-maximum sentence, and (3) did not stipulate to a criminal history category of offense level. The plea agreement did permit Jose to argue for a 96-month sentence (a right he had with or without a plea agreement), and let the government argue for a statutory-maximum 120-month sentence (the most sentence Jose could get by law). However, the government did agree to recommend that Jose receive a 3-level acceptance of responsibility.

pleadeal180104After getting hammered with the full 120 months by the district judge, Jose argued on appeal that he should be allowed to get out of the plea agreement due to lack of consideration. Under basic contract law, both parties must give and receive consideration. If there is no consideration, the contract is not enforceable. Jose argued that just as Oz never did give nothing to the Tin Man that he didn’t already have, Jose got absolutely nothing under the plea agreement that he could not have gotten by pleading to the indictment without a plea agreement.

considerationLast week, the 1st Circuit disagreed. The appellate court held the plea agreement provided Jose with “at least three separate benefits, each of which independently constituted sufficient consideration.” First, the government agreed to move for the third acceptance-of-responsibility point under USSG 3E1.1(a), something it did not have to do because Jose refused to plead guilty until the eve of trial. The Circuit said the fact the 3-level reduction did not help him at sentencing made no difference: “the government’s voluntary agreement to submit the same three-point reduction, rather than a two-point reduction, certainly gave Rivera-Cruz a better ‘chance at less’ in front of the district court.”

tinman180104Second, the government agreed not to seek a 4-point obliterated-serial-number enhancement under USSC 2K2.1(b)(4)(B). The Presentence Report included the enhancement anyway, and Jose complained the government did not fight it, but the Court said the AUSA had no “affirmative obligation… to object to the enhancement at sentencing. In any case, the government’s voluntary agreement not to include the… enhancement in the plea agreement improved Rivera-Cruz’s chances of obtaining a more lenient sentence, and accordingly constituted sufficient consideration for his plea.”

Finally, the government agreed not to seek a 15-year mandatory minimum Armed Career Criminal Act sentence. Jose argued on appeal that the promise was meaningless, because he never would have qualified for an ACCA sentence. The 1st Circuit said that did not matter: “the government was under no obligation to drop its pursuit of an ACCA sentence. Its decision to do so in the plea agreement… provided Rivera-Cruz with a ‘chance at less’ during sentencing,” whether that chance was meaningful or not.

United States v. Rivera-Cruz, Case No. 16-2398 (1st Cir., Dec. 22, 2017)

– Thomas L. Root

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You Can Love Your Lawyer Too Much – Update for August 9, 2017

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CLUCKING DEFIANCE

defiance170811There’s an old legal joke about the difference between an attorney and a rooster. The punch line goes something like “A rooster clucks defiance.”

Putting some meat on those bones is New York attorney Harvey Slovis. Harv represented Oksana Romalis, a school teacher caught up in a multi-defendant scam to rip off the Conference on Jewish Material Claims Against Germany. The Conference is a not-for-profit organization that supervises and administers several funds that make reparation payments to victims of Nazi Germany, distributing hundreds of millions of dollars annually in direct payments to tens of thousands of victims in 80 countries and territories. The government alleged that Oksana and others recruited people who lived at about the right time to be victims, and engineered phony applications for compensation. The head of one of the Conference funds would then approve the bogus claims in exchange for a cut of the payment. The decade-long fraud stung the Conference for over $57 million.

Only three of the 31 defendants went to trial. Oksana was one of them. In a post-conviction petition she filed under 28 USC 2255, Oksana claimed that her lawyer was ineffective for not telling her that she could get the 46-month sentence she ended up with, which was her reason for rejecting a government offer of a 21-27 month sentencing range.

Last week, the district court rejected Oksana’s ineffective assistance claim, holding that a lawyer’s failure to accurately predict that her sentencing range might start 10 months above the sentencing range offered by the government was not a big enough difference to show that she was prejudiced by counsel’s overly-rosy predictions that she could win at trial.

lovelawyerB170811But the more interesting allegation Oksana made, rejected by the court, was that she and “and Slovis were involved in a relationship, ‘frequently went on dates together, and became intimate’.” The court noted that “in text messages between the two, Slovis and Romalis expressed affection for each other and often used terms of endearment. Romalis says that her decision to reject the Government’s plea offer was based on her intimate relationship with Slovis. Romalis also speculates that “Slovis was motivated by romance and money,” and “was stringing her along in order to prolong their relationship.”

The district court was unimpressed. To be sure, a defendant’s 6th Amendment right to effective assistance of counsel includes the right to representation by conflict-free counsel. But conflict-free counsel does not necessarily mean that the 6th Amendment enforces the canons of legal ethics. The court said, “the existence of an intimate relationship between a defendant and counsel may not always amount to a conflict of interest, even if it violates the code of professional ethics.”

lawyerlove170811Here, Oksana was obligated to prove that her affair with Harvey either adversely affected his performance or otherwise prejudiced her interests. Oksana speculates that Harvey improperly advised her in conjunction with the plea offers because he wanted to continue their relationship as long as possible. However, the district court held, Oksana had to “provide more than that to demonstrate that Slovis’s performance was adversely affected by his relationship with her.” At sentencing, Oksana tried to convince the court she had only gone to trial instead of pleading guilty because she knew that if she was convicted, she would lose her teaching license. That assertion came back to bite her. The court didn’t buy her 2255 claims that Harv had advised her wrong on plea offers because she was his “squeeze.” Instead, the court held Oksana to her prior claim she had rejected the offers because she hoped to win at trial and keep her teaching certificate.

Sec. 2255 directs a district court judge to consider a defendant’s claims in light of the entire record of the trial and post-conviction proceeding. That’s what the judge did here, much to Oksana’s chagrin.

Harv is probably not out of the woods. Most jurisdictions have rules of professional conduct that prohibit a lawyer sleeping with a client, which is enshrined in American Bar Association Model Rule of Professional Conduct 1.8(j). We at least hope that Harvey didn’t bill Oksana for the time they spent horizontally. It’s happened before.

Romalis v. United States, Case No. 1:11-cr-00120 (S.D.N.Y. Aug. 4, 2017)

– Thomas L. Root

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Some Short Notes from D.C. – Update for August 7, 2017

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TWO INTERESTING D.C. CIRCUIT RULINGS END LAST WEEK

The D.C. Circuit handed down a pair of rulings last Friday. One, the reversal of sentences (and in one case, a conviction) for four Blackwater contractors over a 2007 Baghdad massacre, was widely reported. The other, a case about prisoners’ waivers of FOIA rights, flew under the radar. Both are of significance to federal inmates.

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D.C. CIRCUIT SAYS 924(C) SENTENCE IN BLACKWATER CASE VIOLATES 8TH AMENDMENT

carriefgun170807The big news from the D.C. Circuit last Friday was the reversal of sentences for four Blackwater private security contractors who massacred 14 civilians after they mistakenly thought they were under attack on a Baghdad street. Buried in that decision is a holding of interest to federal prisoners with 18 USC 924(c) convictions, especially where those counts are stacked to result in horrendous sentences.

The contractors were armed with government-issued M4 rifles, which of course can be set to fire fully automatically. Because of that, each of the defendants – found guilty of committing a crime of violence with a gun – got a mandatory sentence of 30 years because the weapon was a machine gun.

Apparently, hanging the 924(c) machinegun sentence on the defendants was contentious, even in the Justice Department. The D.C. Circuit agreed, ruling that applying the mandatory 30-year sentence to the contractors – based “solely on the type of weapons… used – violated the 8th Amendment’s prohibition against cruel and unusual punishment.

In its opinion, the Circuit tried mightily to limit the decision to the facts of the case: It notes the firearms were a type required by the government, the contractors all had prior unblemished military records and no other convictions, it was a war zone where snap judgment was the difference between life and death, the contractors did not choose to be on that street corner, but were ordered there by their commander, and they did not set out that day to blow away civilians. The Court also noted that when 924(c) was last amended, the concept of private contractors protecting U.S. diplomats was not envisioned.

overkill170807“Combining all of these considerations,” the appellate court said, “we conclude the mandatory 30-year sentences create the rare case that leads to an inference of gross disproportionality… None of the penological justifications our society relies upon when sentencing criminals — incapacitation, rehabilitation, retribution, or deterrence — are properly served here by a sentence whose length is determined solely based on the type of weapon used during the crime.”

The Blackwater case has a rare set of facts, and run-of-the-mill defendants – who, for example, use a submachine gun to rob a bank – are unlikely to get much love from the holding. However, now the 8th Amendment camel’s nose is inside the tent. It will be interesting to see whether 8th Amendment claims become a staple of 924(c) defense elsewhere in the country.

United States v. Slatten, Case No. 15-3078 (D.C.Cir., Aug. 4, 2017)

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D.C. CIRCUIT SAYS FOIA RIGHTS CANNOT BE WAIVED BY PLEA AGREEMENT

The government often demands, as a price for plea agreements, that defendants waive their right to pursue Freedom of Information Act requests.

Last Friday, the D.C. Circuit outlawed the practice, holding that the FOIA waiver is unconnected to any “legitimate criminal justice interest” and is void as a matter of public policy.

foia160930The Court said a “prosecutor is permitted to consider only legitimate criminal justice concerns in striking a plea bargain—concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation with the authorities… This set of legitimate interests places boundaries on the rights that can be bargained away in plea negotiations.”

While banning FOIA suits “may occasionally promote the government’s legitimate interest in finality,” the Circuit said, “they only do so by making it more difficult for criminal defendants to uncover exculpatory information or material showing that their counsel provided ineffective assistance. That argument takes the finality interest too far. After all, a defendant can never waive his right to bring a colorable claim of ineffective assistance of counsel, even though such claims undermine finality… FOIA plays a significant role in uncovering undisclosed Brady material and evidence of ineffective assistance of counsel, and in practice has led to uncovering records relevant to ineffective-assistance-of-counsel claims, such as plea offers not communicated by defense counsel to clients.”

Price v. Dept. of Justice Attorney Office, Case No. 15-5312 (D.C.Cir., Aug. 4, 2017)

– Thomas L. Root

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6th Circuit Cautious on Plea Agreement Waiver in Wake of Lee – Update for Tuesday, July 18, 2017

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SUCH A DEAL

pleadeal161116Plea agreements are a way of life in the federal criminal system. About 97.5% of federal criminal convictions are obtained through guilty pleas, and all but a handful of guilty pleas result from a written plea agreement between the government and defendant.

Surprisingly, there is little uniformity in plea agreements among the 94 federal judicial districts. The U.S. Attorney’s Manual provides some guidance to federal prosecutors, but the form of the agreements varies widely from district to district.

Generally, the Manual states, the government lawyers are permitted to ask defendants, as a condition of entering into a plea agreement, to waive “appeal and… post -conviction remedies to the full extent permitted by law as a component of plea discussions and agreements.”

remorse170718It’s safe to say that the overwhelming majority of federal criminal defendants will sign and later benefit from a written plea agreement (although in many cases, the benefits of the plea agreement can be illusory, which is a discussion for another day). It’s almost as safe to say that almost all of those defendants will experience buyer’s remorse at some point, usually after they hear the prison door slam shut behind them.

That happened to Hatem Ataya, a Michigan physician who pled guilty to a Medicare fraud scheme in 2015. His plea agreement included an appellate waiver, in which he gave up any right to appeal his conviction or sentence “on any grounds.” Doc Ataya appealed anyway, and the government moved to dismiss the appeal on the basis of the waiver.

waiver170718Defendants appeal against the waiver all the time, and the government’s normal response is to seek dismissal of the appeal on the basis of the waiver. In 2016, about 18% of all criminal appeals were bounced on procedural grounds, and most of those were because of valid appeal waivers. But it does not always work this way. In a notable 3rd Circuit outlier decision, the government won the right to resentence a defendant who filed an appeal despite his waiver, under the dubious theory that he had breached the plea agreement by appealing. Given the less-than-user-friendly Justice Department, under the leadership of Jefferson Beauregard Sessions III, watch for more of these vindictive resentencings.

Doc Ataya, however, might be lucky. He claimed that his appeal waiver was not valid, because the court did not inform him of some of the consequences of his plea, including deportation to a hotter, drier place. There’s a rule for a district court to follow when accepting plea deals – F.R.Crim.P. 11 – and in this case, Dr. Ataya argued, the district court missed an important step.

Earlier this week, the 6th Circuit agreed. Holding that it was “not convinced that Ataya entered into the plea agreement as a whole knowingly and voluntarily,” the Circuit referred the case for decision on the merits to “determine whether the plea agreement and the district court adequately informed Ataya of his plea’s consequences, in particular any possibility of denaturalization…”

The 5th Amendment requires that waivers of constitutional rights – such as the right to trial or appeal – must be given knowingly and voluntarily. There was no question Dr. Ataya knowingly waived his appellate rights. “But,” the appellate panel said, “appellate waivers are parts of larger contracts, and they must stand or fall with the agreements of which they are a part… A defendant decides to waive the right to challenge his conviction in light of his understanding of the conviction’s key consequences. If he misunderstands any of those consequences, that undermines the knowingness of the appellate waiver.”

During the hearing at which Dr. Ataya’s guilty plea was taken, the district court did not inform him that the plea agreement required him to pay restitution and a special assessment and to forfeit the fraud proceeds. Rule 11(b)(1)(J)–(L) requires that the defendant be told this. “Perhaps more troublingly,” the Circuit said, “neither the plea agreement nor the district court seems to have mentioned that Ataya, who became a naturalized citizen after the alleged frauds, might face denaturalization as a result of his conviction.”

idontknow170718One might wonder at this. The defendant held advanced degrees and was an M.D. Plus, he had no fewer than three privately-retained attorneys representing him at trial. It taxes credulity to believe that he walked into the plea agreement not understanding there might be a fine, would definitely be a special assessment ($200.00, about what he’d collect for two office visits from patients), and that he could be deported. But it doesn’t matter if the defendant is represented by David Bois and Neal Katyal. He has to hear it from the court. Because he did not, the Circuit allowed, “it is thus quite possible that Ataya did not grasp some of the consequences of his plea.”

But one good technicality begets another. Sure, the district court failed to “comply with Rule 11(b)’s requirements to a T.” But Dr. Ataya’s lawyers never objected to the error. If they had, of course, the district court would have fixed the mistake right away, so maybe their reticence is understandable. But there’s a catch: without a contemporaneous objection, Dr. Ataya has to do more than show that the district court goofed. He has to show F.R.Crim.P. 52(b) “plain error” on appeal. That requires him to demonstrate “a reasonable probability that, but for the error, he would not have entered the plea.”

That should prove to be a pretty tall order, although he does have the Supreme Court’s recent decision in Lee v. United States to fall back on. Indeed, that may be the reason for the 6th Circuit’s caution (despite the fact the Ataya decision does not mention Lee).

Because that question had not been raised by either the Doc or the government, the 6th Circuit ordered the parties to brief the issue for argument before another panel of the court.

United States v. Ataya, Case No. 16-2611 (6th Circuit, July 17, 2017)

– Thomas L. Root

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Judge Has Enough of Expedient Pleas – Update for July 10, 2017

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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.

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DISTRICT JUDGE REJECTS PLEA DEAL, SAYS DEFENDANT SHOULD GO TO TRIAL

Charles Walker, a drug trafficking defendant, cut a plea deal to cop to a single count of distributing heroin, getting five other counts – including one for peddling fentanyl – dismissed.

But when the plea agreement was presented to U.S. District Judge Joseph Goodwin, he did something neither the prosecutor nor defense counsel planned on. He turned them down flat.

In a 28-page order, the judge said one of the chief reasons Chuck should face the “bright light of the jury trial” is because West Virginia is “ground zero” for the opioid epidemic that has been ravaging the nation. “A court should consider the cultural context surrounding the subject’s criminal conduct,” the Judge wrote. “Here, that cultural context is a rural state deeply wounded by and suffering from a plague of heroin and opioid addiction.”

The Judge said a jury trial “reveals the dark details of drug distribution, an abuse to the community, in a way that a plea-bargained guilty plea cannot. A jury trial tells a story… The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.” The decision found that the plea deal offered Walker has little to do with justice. “The principal motivation appears to be convenience.”

Chuck’s attorney told the Washington Post, “This is the first time anything like this has happened in 25 years of practicing law.”

AUSAnumber170710An interesting footnote to the decision is Judge Goodwin’s skewering of the tired rationale that plea bargains are necessary to relieve the overburdened court and prosecutorial systems, which would grind to a halt were it not for deals like the one the government sought to give Charles Walker:

For at least the past forty-six years, the primary justification for plea bargaining has been that the constitutional process of requiring trial by jury in every case overburdens the courts and overworks the prosecutors… The courts are no longer overburdened. Federal prosecutors are no longer overworked. To illustrate, despite the decline in criminal trials, the number of federal prosecutors has… increased more than sevenfold—from 809 in 1970 to 6,075 in 2010. In FY 2016, the number of federal prosecutors had grown to 6,293. 

Given the inverse relationship between trials and federal prosecutors, there has been a steady decrease in the average number of criminal trials handled per federal prosecutor. In FY 1973, each federal prosecutor handled over eight criminal trials on average. By FY 2016, the average number of criminal trials handled by each federal prosecutor plummeted to 0.29 trials.

Like federal prosecutors, the number of authorized Article III district court judgeships rose from 394 in 1970 to 663 in 2015.103 Accordingly, the number of criminal trials handled per district judgeship dropped from over twenty-one per year in 1973 to fewer than three per year in 2016. Thus, like federal prosecutors, district court judges are not overburdened by trials.

Because the most common justifications for plea bargaining no longer have any substantial heft, the counterweight of the people’s general interest in observing and participating in their government requires close consideration of a proffered plea bargain in every case.

United States v. Walker, Case No. 2:17-cr-0010 (S.D.W.Va., June 26, 2017)

– Thomas L. Root

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