Recently in the Plea Bargaining category:
“Queen for a day” (proffer) agreements – bare your soul to prosecutors in exchange for some limited protections – usually benefit the government more than the defendant. For one thing, in these agreements, the defendant gives up any additional protections he may be entitled to under Fed.R.Evid. 410, which precludes admission at trial of ”statements made in the course of plea discussions with a [prosecutor].”
Not that defendants get much choice about whether to sign the agreement. Most prosecutors will not agree to listen to a proffer without one. But what if a proffer does in fact proceed without any proffer agreement: does the defendant automatically get the benefit of Rule 410? Or should the defense lawyer do something more to invoke the rule’s protections? That is the interesting question presented but not answered in United States v. Galestro, 06-CR-285 (ARR), 2008 WL 2783360 (E.D.N.Y. July 15, 2008), where the defendant, in his lawyer’s presence, spoke without a proffer agreement to prosecutors several days prior to the unveiling of an indictment charging him with death-eligible murder.
The Scope of Fed.R.Evid 410
The Second Circuit has held that statements made by a defendant to prosecutors are not “plea discussions” under Rule 410, unless the defendant, “in some way, express[es] the hope that a concession to reduce the punishment will come to pass.” United States v. Levy, 578 F.2d 896, 901 (2d Cir.1978). The Levy Court expressly left open the question of whether statements made in a less formal “de facto process of plea bargaining” can be “plea discussions” for purposes of Rule 410 protections.
In Galestro, the defense proposed that Levy’s void be filled with a two-tier analysis that focuses on whether at the time of the discussion, the defendant showed a subjective expectation to negotiate a plea, and whether that expectation was reasonable under the circumstances. The government, argued alternatively, that there are no “plea discussions” if the meeting was at the defendant’s behest, he “sought to avoid indictment altogether rather than to plead,” and no plea deal was offered or ever made.
Invoking Rule 410 Protection
In the end, the Galestro court did not have to decide the issue, because here, it was undisputed that Galestro’s attorney announced at the beginning of the proffer meeting that he considered it to be “in furtherance of settlement negotiations, pursuant to Fed.R.Evid. 410 and Fed.R.Crim.P. 11,” and the prosecutors present said nothing in response. As the court concluded: “permitting the government to frustrate a defendant’s reasonable, explicit understanding of the nature of a discussion by simply remaining silent would not only be inconsistent with the rationale in Levy, but would undermine the very rationale of Rule 410 – to ‘promote plea negotiations by permitting defendants to talk with prosecutors without sacrificing their ability to defend themselves if no disposition agreement is reached’” (citation omitted).
Comment
Here, Galestro's lawyer's prescient statement at the beginning of the proffer meeting saved the day. Without it, the government might have prevailed on the argument that this wasn’t a plea negotiation at all - it was a (misleading) innocence proffer, in which the defendant wasn't seeking to reduce his punishment, he was seeking to eliminate it. Which begs another interesting question: whether innocence proffers are exempt from Rule 410 protection, since their goal is not a plea bargain but a dismissal.
Innocence proffers, however, as the Second Circuit has pointed out elsewhere, are often preludes to plea negotiations. In other words, they are part of the de facto process of plea bargaining, which runs the gamut of mindsets from denial to acceptance. It makes no sense, and surely undermines the rationale of Rule 410, to carve out of the plea bargaining process (also known as the coming-to-terms process) any discussions where the defendant professes innocence. Moreover, the government, with its oft-described “awesome advantages in bargaining power,” knows full well how to obtain a waiver of Rule 410 protections prior to an innocence proffer, and it should not be rewarded for its failure to do so.
Adding to a spate of recent decisions yielding divergent views of the propriety of the government’s conduct in plea bargaining and sentencing (see here, here and here), United States v. Wyatt, 06-cr-782 (DLI), 2008 WL 2433613 9E.D.N.Y. June 12, 2008), should serve as a warning to prosecutors, and a reminder to the Second Circuit that the government’s good faith in the plea bargaining process and at sentencing is not a given.
Facts
In Wyatt, the defendant pled guilty to being a felon in possession of a weapon, with a standard EDNY plea agreement, that estimated his guideline level at 31 to 41 months, and promised that “based on the information known to [it],” the government will not argue for a specific sentence, whether within or above the guideline range determined by the court. In the presentence report, the defendant’s guideline range was calculated at 63-78 months, enhanced by virtue of a youthful offender conviction, unknown to the government and defense counsel at the time of the plea.
In response to the defendant’s mitigation claim that he had been victimized, the government filed a sentencing memorandum highlighting Wyatt's criminal history, and also gratuitously advising the court that in a racketeering trial of the notoriously violent “Folk Nation” street gang, a cooperating witness testified that the defendant had supplied the weapon to commit a murder. The government even helpfully appended a copy of the relevant transcript. There was no dispute that this information was in the government's possession at the time of the plea. Probation promptly revised its report, cross-referencing with the murder guidelines, and calculated the defendant’s guideline at 120 months, which but for the statutory cap on the offense of conviction, would have been 360 months to life.
At a sentencing conference, when the court queried why the government had provided the Folk Nation information, the prosecutor cited his “obligation to bring to the court all of the information that was known to it about this defendant” and so that the court could consider it under 18 U.S.C. §3553(a) and “for whatever other purpose or effect it might have.” The prosecutor emphasized that he was not advocating for anything above the 78-month high-end of the applicable guideline range.
Holding
The court first held that she would not consider the Folk Nation information because it was unreliable. The transcript provided by the government did not clearly identify the Wyatt as the source of the murder weapon, much less, that he provided it with knowledge that it would be used in a murder. Since the government refused to provide additional corroborative evidence, the court disregarded it, citing the defendant’s “due process right to receive a sentence based on accurate and reliable information.”
Next, she addressed the “potentially prejudicial conduct by the government” in disclosing the unsolicited Folk Nation information. Noting that the government may breach a plea agreement by simply making comments that amount to an argument for an upward departure, she concluded that the disclosure here “altered the parties’ original understanding of their plea agreement.” She explains: “The government knew or should have known that disclosing this information at sentencing could raise the defendant’s sentence.” Moreover, this conduct “is not fully shielded by [the government’s] obligation to inform the court of information relevant to sentencing” because, here, the government “crossed the line from informing the court to improper advocacy” when it advocated the use of the Folk Nation information as part of the court’s §3553(a) consideration, or for any particular sentence within the applicable guideline range, in particular, a sentence at the high end of 78 months.
However, in light of the fact that the defendant did not seek to withdraw his plea, and since the court had disregarded the objectionable information as unreliable, the breach did not require any remedy. The court would adopt the guideline range of 63-78 months, but advised the parties that she might still impose a sentence above that range based on factors other than the Folk Nation information.
Comment
To her credit, Judge Irizarry recognized that the Folk Nation information was both unreliable and provided in breach of the plea agreement, and has therefore resolved not to consider it in imposing sentence. The problem is that the genie is now out of the bottle. It may implicitly inform the sentence ultimately imposed, and even if it doesn’t, it may be perceived to have influenced that decision. In fact, were this before the Circuit, the case would be reassigned to a new sentencing judge (which is what it does in every case where it finds that the government breached the plea agreement).
The case is a stark reminder to defense lawyers that negotiating a favorable plea agreement is only one aspect of the plea-bargaining process. Defense counsel would be well advised to try to obtain advance assurances about the scope of the information the government will provide to the sentencing court regarding the defendant’s conduct, whether directly or by using the Probation Department as a surrogate. In particular, in some cases it may be appropriate to preview one’s sentencing arguments with the prosecutor, and determine in advance which arguments will trigger the revelation of additional damaging information to the court.
The scenario presented in United States v. Brumer, 07-0715-cr (2d Cir. June 10, 2008) is like a question on the bar exam: Two fraudsters enter into plea agreement with government, drafted by government, which estimates loss amount of crime at between $10 and $20 million. All parties agree not to challenge estimate, or seek any other adjustments “not set forth herein.” Turns out loss figure has been grossly overestimated. Government offers to amend loss estimate to range of $5 million to $10 million. Defendants say no dice. Court holds hearing, and determines “a significantly lower loss amount” and therefore significantly lower sentencing ranges. Government claims breach, and argues for upward adjustments. Defendants then claim breach and demand guilty pleas be withdrawn. Court ignores them all, and imposes sentences within lower sentencing range. Who, if anyone, has breached? What is the appropriate remedy?
Answer
On the bar exam, I would answer that there appeared to have been a mistake of fact – either a mutual one if the government’s overestimate of loss was a good faith mistake, or a unilateral one on the part of the defendants who had been misled by the government as to the true loss figure. In either case, the remedy should be total rescission of the contract, or reformation of the contract to reflect the parties’ true intent, which was surely to include an accurate estimate of loss. If reformation is elected, the contract otherwise remains intact, and the government is bound by its agreement not to seek any additional adjustments. By seeking those adjustments after the district court had reformed the contract, the government breached. Defendants should get their guilty pleas back.
Wrong!
In fact, in its opinion, the Court makes no mention of the mistake-of-fact doctrine. Meticulously applying several other principles of contract construction, the Court held that the defendants breached by rejecting the government’s “fair” offer to amend the loss estimate, and instead seeking a hearing to determine the correct loss figure. Having lost “the benefit of its bargain” by being forced to prove its loss figure, the government was “excused from its reciprocal obligations” and free to argue for enhancements. The defendants were not entitled to withdraw their guilty pleas.
Comment
This is a very odd decision. It appears (though the recitation of facts is not that helpful) the defendants were punished for demanding that they be sentenced on accurate information once the inaccuracy of the information underlying the plea agreement was exposed. A fundamental principle of contract law is an implied covenant of good faith and fair dealing. Given that the district court determined “a significantly lower loss amount” (the Court doesn’t explain how much lower) and ignored the government’s advocacy at sentencing, there are serious questions presented here as to whether the government complied with that covenant, either in making its original loss estimate, or in making its mid-stream counter-offer, or in seeking additional enhancements contrary to the plea agreement.
This is yet another decision from the Court in less than two weeks (the other is discussed here) in which the Court applies selective principles of contract construction to plea agreements, and fails to recognize several realities of the plea bargaining process – like the superior bargaining power of the government, the fact that the government frequently controls key information, and that accuracy and truth are often casualties as defendants try to avoid guideline enhancements that can yield significant prison sentences.
What a district court giveth in United States v. Allen, 2008 WL 1944549 (S.D.N.Y. April 30, 2008) discussed here, the Second Circuit taketh in United States v. Habbas, 05-6142-cr, 2008 WL 2220676 (2d Cir. May 30, 2008). In a decision underlining the need for defense attorneys to secure clarifying language, either orally or in writing, as to the binding nature of Guidelines estimates in plea agreements, the Court held in Habbas that the government did not breach a plea agreement by supporting a higher Guidelines level than it had estimated in a plea agreement, even though the facts justifying the increased level were known to the government at the time of the original estimate.
Facts
Habbas’ co-defendant had pled to obstruction of justice arising out of his involvement in an elaborate conspiracy to frame an individual for assault. The government estimated his Guidelines level in the plea agreement at 16, yielding a sentencing range of 27 to 33 months. The Probation Department, however, added a 4-level leadership role enhancement to this estimate, producing a Guidelines level of 20 and a sentencing range of 41 to 51 months (i.e. approximately 50% higher than the government’s estimated range). At sentencing, the government supported the 4-level increase, saying that its failure to include it in the plea agreement was a “mistake.” The court ignored both the government’s and Probation Department’s estimate, imposing a sentence of 96 months, in light of the cruelty and cynicism of the crime (the victim had spent 7 weeks in custody before the plot unraveled).
Holding
Rejecting the defendant’s argument that the government’s support of the higher Guidelines level was a breach of the plea agreement, the Court gave three reasons:
(a) No Binding Language in Plea Agreement
First, the Court held that the plea agreement at issue clearly put the defendant on notice that the estimate in the plea agreement was not binding, and the government was “likely to advocate for a higher sentence.” For example, the plea agreement stated that its “estimate . . . is not binding on the [United States Attorney’s] Office” and that “the government reserves the right to argue for a sentence beyond that called for by the Guidelines based on the factors set forth in 18 U.S.C. § 3553(a).”
It should be noted that plea agreements from the E.D.N.Y., where Habbas originated, routinely contain the phrase about the non-binding nature of the estimate, but this phrase is commonly understood as a reservation of the government’s right to argue a different estimate based on new facts, or some exotic guideline no-one had anticipated. It has never been viewed as carte blanche to permit routine adjustments on meat and potatoes issues like the defendant’s role in the offense. Moreover, reserving a right to argue for a higher sentence under § 3553(a) factors is not the same as reserving a right to alter the Guidelines calculation.
At least recognizing that their analysis of the plea agreement language here has wider implications, the Court notes that “in certain circumstances government deviation from its prior estimate could conceivably produce serious unfairness.” But surely a sentencing range that is 50% higher than originally estimated is serious unfairness? And what about the “serious unfairness” to the defendant who presumably pled guilty in reliance on the estimate in the plea agreement? There is no mention in the decision as to whether the defendant was offered the right to withdraw his guilty plea.
In response to that argument, the Court claims that this is not a case of the government “revers[ing] its position regarding the applicability or effect of a particular provision, upsetting a reasonable reliance by the defendant on the government’s stated position.” But surely back-tracking on the absence of a role adjustment is precisely a reversal of position. The Guidelines, as the Court notes in Habbas, may be “complex,” but role adjustments are Federal Sentencing 101.
(b) No Bad Faith
As a fallback position, the Court points out that there was no suggestion that the government had acted in bad faith. The government, under “the pressures to prepare a Pimentel estimate” to “accommodate” the defendant simply “failed to notice the possible applicability” of the aggravating role enhancement.
Putting aside the Court’s confusing reference to United States v. Pimentel, 932 F.2d 1029, 1034 (2d Cir. 1991) (which as the Second Circuit Blog notes in commenting on Habbas generally refers to a non-binding informational letter from the government containing a guidelines estimate that is not a plea agreement at all), the Court’s statements here fail to recognize many realities of plea bargaining. The estimates in plea agreements are not simply hastily included as “accommodations” to defendants. They are the meat of the plea agreement, often hammered out over days and weeks of negotiations with defense counsel. And they also go through at least one if not several layers of oversight at the U.S. Attorney’s office. Far from being hasty “favors” to the defendant, they are the negotiated basis of his/her decision to plead guilty under a plea agreement.
As the district court pointed out in Allen, where the government back-tracked from its Pimentel estimate, misleading a defendant of their potential liability under the Sentencing Guidelines, whether in bad faith or not, “damages the integrity of our justice system.” Unlike the non-binding Pimentel letter at issue in Allen, the plea agreement at issue in Habbas is a contract, to which one applies principles of contract construction. This is the first time I’ve heard of the theory that a contract may be repudiated by one party based on a unilateral, good faith “mistake,” that was not fraudulently induced by the other contracting party.
(c) No Harm to Defendant
Finally, the defendant was not harmed by the government’s changed position, because the district court essentially ignored the government’s and Probation Department’s calculation in imposing a sentence of eight years. In other words, the dispute over the plea agreement in this case was academic. So, why, oh why, did the Court need to weigh in with an unnecessary and confusing analysis of that issue?
Conclusion
The Court suggests in a footnote that in plea agreements going forward, the government reserve the right to change the Guidelines estimate with new facts and to make “good-faith changes” based on existing facts if “further study shows the applicability of guideline provisions not considered in making the estimate.” This suggestion risks making plea agreements next to worthless. What use is a today-only, cursory, hasty and completely reversible Guidelines estimate to a defendant making the profound decision to plead guilty and subject him/herself to a prison sentence?
A more productive approach might have been to permit changes to the estimate based on new facts or an unanticipated application of some arcane, little-used provision of the Guidelines that the parties had not addressed. In addition, should the estimate change on that basis, a defendant should be permitted to withdraw his/her plea.
At the very least, Habbas underlines the need for defense lawyers to document their negotiations on the actual plea estimate, and seek clarifying language - either written in the plea agreement or orally on the record at the guilty plea - that the government considers itself bound by the estimate – especially meat and potatoes issues like loss, weight, relevant conduct and role.
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