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.

There is a curious irony to Judge Weinstein's decision in United States v. Polizzi, 06 CR 22 (JBW), 2008 WL 1886006 (E.D.N.Y. April 1, 2008).  Although for many it is a quintessential example of liberal judicial activism, the decision is rooted squarely in conservatives' favorite theory, originalism, i.e. interpreting the constitution minus over two hundred years of history.  And, incidentally, it is hardly a philosophy that Judge Weinstein has been known to embrace.

Of course, the bigger irony in the decision is that we must reach back in history to more barbaric times to find compassionate practices that mitigate the barbarism of today's mandatory minimum sentences.  Holding, contrary to decades of precedent, that he had erred in failing to advise a jury of certain mandatory minimum sentences applicable in a child pornography possession case, Judge Weinstein points out that a jury in 1791 would most certainly have known the consequences of their decision (such jury, it should be noted, made up of white, male property owners), and would thus have been empowered to show mercy by manipulating its verdict.  Polizzi puts pay to the idea that any judicial philosophy is less malleable than another or more likely to restrain judicial law-making. 

Facts
 
At the heart of this decision is the tragic story of Peter Polizzi, an Italian immigrant who on the surface had achieved the American dream – successful businessman, father of five, self-taught guitarist.  Psychologically scarred, however, by childhood sexual abuse, he secretly repaired to a double-locked room above his garage over a five-year period, where he viewed and downloaded images of child pornography.   There was no evidence that he had ever forwarded the images to another, or engaged in any improper conduct with a child. 

A subscriber to a website targeted in an FBI investigation, Polizzi was arrested and prosecuted for possession and receipt of child pornography.  At trial, jury rejected his insanity defense and found him guilty on all counts.  He faced a mandatory minimum prison sentence of five years on the receiving counts. 

When informed after their verdict of the mandatory minimum sentence, three jurors indicated that they would have voted not guilty by reason of insanity had they known of the applicable mandatory minimum, and two other jurors indicated that they believed Polizzi should be treated not incarcerated. 

Failure to Advise Jury of Mandatory Minimums

Building on these jurors’ amended thoughts, Judge Weinstein crafts a compelling opinion that the defendant had a right to have his jury informed in advance of the mandatory sentence riding on their decision.  Reviewing legal and historical scholarship regarding criminal practices in the Thirteen Colonies, the court concludes that trial juries during that period would not only have known of the harsh sentences to be imposed on a finding of guilt, but also "would have been expected to deliver a verdict of not guilty or of guilty of a lesser crime had it believed the punishment excessive for the crime actually charged and proved."

Why should such practices apply today?  “With the advent of mandatory minimum sentences . . . federal juries today again face-albeit often unknowingly –‘either-or’ choices similar to those facing the British and colonial juries of 1791 [i.e. death/transportation/whipping or conviction of a lesser crime]. To fully exercise their historical function, juries today must understand the two eithers; they cannot rely on the court to mitigate because it is bound by the statutory minimum term of imprisonment.”  If juries are not just fact-finders, if they are truly the bulwark that curbs judicial, executive and legislative power - "the conscience of the community and guardian against government oppression ... [and] a 'safety valve' for exceptional cases" - then, Judge Weinstein reasons, juries must be entrusted with complete information regarding the consequences of their actions, including information about their power to dispense mercy through nullification.

Putting aside concerns that hearkening back to the days of the Eighteenth Century would not always be a giant step forward, or that knowledge of mandatory minimums may harden rather than melt jurors' hearts, the Polizzi holding is a persuasive and creative approach to mitigating the severity of mandatory minimum sentences. 

Few expect this decision to survive Second Circuit scrutiny. But Judge Weinstein has his eye on higher courts - the court of public opinion for one, and, of course, the Supreme Court, which given its current ideological make-up, may be more than a little receptive to his call for a return to 1791 and a limited reintroduction of the jury’s power to nullify.   The Supremes may also revisit the issue addressed at the beginning of the Polizzi decision: that the statute at issue is void for vagueness and overbreadth, because it has the potential to criminalize innocent behavior. 

Lack of Scienter

In a nutshell, the Polizzi court finds the statute problematic because it penalizes “knowing” possession and receipt of child pornography, but does not require on its face that the individual "intend" to possess such material. While equating knowledge with criminal intent may work with traditional crimes like possession of stolen goods or drugs, the court points out, this construct fails to account for the myriad ways in which one can inadvertently receive and possess materials via the Internet - "where email may be automatically received, files can instantaneously download themselves, web pages shown for only a fraction of a second are automatically stored, and knowledge can first be acquired after the fact of receipt.”  As one FBI agent put it, the court quotes, "[o]ne click, you're guilty."  In fact, the court claims (perhaps a bit hysterically), that one of its interns refused to conduct certain Internet research on the case for fear of committing a crime. 

It is this significant potential for the statute to penalize accidental and benign conduct that renders it void for vagueness and overbreadth - problems, the court concludes, that cannot be rescued by the stingy safe harbor provision in the statute, or suspect judicial efforts to imply an intent element.  Constrained by precedent to reject the challenge, Judge Weinstein clearly believes this is an area ripe for revisitation by the appellate courts.

Other Challenges

The Polizzi opinion also addresses a number of interesting challenges that, for one reason or another, were inappropriate in this particular case or are foreclosed by current precedent.  They may however prove more fruitful under a different set of facts or in the future as society's perception of these issues evolve:

• Eighth Amendment: Five years for "psychologically stunted man who . . . suffered vicious sexual abuse as a child" and who needs "treatment not a destructive long prison sentence," is undoubtedly cruel, the court concludes, but unfortunately, is not unusual, where "cruelty in punishment is adopted by Congress as policy."  Moreover, although some may find the punishment in Polizzi's case to be "shockingly disparate" - particularly in light of the passive nature of his crime, his psychological disabilities, his low risk of recidivism, and the public "scourging" or registration as a sex offender that awaits him after prison - it is not unconstitutionally "grossly disproportionate" to the crime committed under applicable case-law.  In this context, the court does an interesting analysis of the median sentences meted out by states for similar conduct (producing some very useful material for those seeking to challenge draconian sentencing guideline ranges in child pornography case), and also importantly queries the tendency to lump all sex offenders together when addressing their future dangerousness.  Such conclusions "fail to take into account differences between pederasts and voyeurs."

• Irrationality: Similarly, the five-year mandatory minimum for receipt of child pornography, while a severe penalty for Polizzi's crime, is not irrational, as that term is defined, despite the fact that the possession count does not carry any mandatory minimum.  Congress is not held to "a precise calculus of harm and risk."  Importantly, in this section, the court notes that the evidence regarding whether child pornography actually encourages viewers to commit physical sexual offenses (often presented as a given) is in fact inconclusive.

• Multiplicity:  Conflation of possession and receipt raises a problem of multiplicity (indictment improperly charges a single offense multiple times in separate counts, when only one crime has been committed).  The court did not need to address this issue since it was setting aside the verdict on the receiving counts. 

• Rule of Lenity: This doctrine of statutory construction requires a court to resolve any ambiguity in favor of a defendant.  Unfortunately, the mandatory minimum Polizzi was subject to is totally unambiguous, and does not (but surely should) "contain an implicit reasonableness limitation." 

• First Amendment: The court notes the tension created between First Amendment rights (such as the right to view adult pornography in privacy) and the expansive regulatory and enforcement efforts to curb exploitation of children, and cites several decisions that have struck down child pornography legislation as unconstitutionally overbroad.  One of these decisions, however, was recently overruled by the Supreme Court in United States v. Williams, 2008 WL 2078503 (May 19, 2008) ("pandering" provision of PROTECT Act neither overbroad nor vague).

• Fourth Amendment: The court highlights the tension between legal constructs of what is a "reasonable" expectation of privacy in the online context, and the actual expectations of online users.  In particular, he questions the validity of denying Fourth Amendment protections to non-substantive communications (such as email subject headings and Internet search queries) when the line between content and non-content may be impossible to draw, and thus lead to unduly invasive searches by law enforcement.

• Separation of Powers: The court notes the concern that statutory mandatory minimums have shifted too much power from the judiciary to the executive, but concludes that "on the basis of current precedent," applying the functional approach of analyzing statutes under the separation of powers doctrine, the mandatory minimum prescribed for receipt of child pornography passes muster.  The kicker here is "current precedent," which the court obviously believes needs revisiting. 

This huge decision (not just literally in length, but also in heart and compassion) is a must-read for anyone defending someone charged with possession of child pornography. 

It is not uncommon for a defendant in a white collar criminal case to be the subject of parallel civil government enforcement proceedings.  While the latter can yield useful discovery for the criminal case, that opportunity cuts both ways, as illustrated in United States v. Leonard, 02 cr 881 (LDW), 2008 WL 1943548 (E.D.N.Y. May 1, 2008). 

At Leonard's trial on securities fraud charges, the government introduced his deposition testimony, among other evidence, gleaned from a parallel SEC action.  Following his conviction, the court held a hearing on Leonard's motion to dismiss the indictment and/or suppress the SEC evidence on the grounds that the U.S. Attorney's office "improperly colluded with the SEC by manipulating the SEC civil investigation discovery procedures to obtain evidence against Leonard for use in the criminal proceedings without advising him that he was a target of the criminal investigation." 

Denying the motion in a short decision, the court concluded that this was not "a single, unitary investigation," but in fact two investigations, proceeding in parallel.  "Although there may have been some coordination of efforts by the SEC and the Department of Justice to avoid duplication of efforts in pursuing the parallel investigations, the record does not reveal that the FBI or the USAO improperly or secretly manipulated or controlled the SEC's investigation, including Leonard's SEC deposition."  This was therefore not a case like United States v. Scrushy, 366 F.Supp.2d 1134 (N.D.Ala. 2005), the Leonard court concluded, where the court dismissed the indictment because the USAO used and directed the SEC investigation to gather evidence and manipulate venue, and engaged in deceit to conceal the involvement of federal prosecutors. 
 
It is unfortunate that there is such a paucity of facts presented in this important decision.  For example, the decision fails to explain the level of "coordination" between the two investigating bodies, and does not address whether there was any deception in either body's dealings with the defendant.  Coordination to avoid duplication sounds troublingly close to using one investigation to collect evidence for the other. 

But the case is a stark reminder that with any regulatory investigation, especially an SEC one, a criminal one may be around the corner, and defendants should consider acting accordingly.  Defensive measures include asserting the Fifth Amendment right against self incrimination, despite the adverse inference that may be drawn from that in a civil context, or seeking a protective order precluding the disclosure of civil discovery to criminal investigators and the grand jury.  See Minpeco S.A. v. Conticommodity Services, Inc., 832 F.2d 739 (2d Cir. 1987) (protective order appropriate unless government makes strong showing to the contrary).

Arrest records, like actual convictions, can be the gift that keeps on giving.  Citing reduced employment opportunities, the defendant in United States v. Grant, 94-cr-0018 (CPS), 2008 WL 2039309 (E.D.N.Y. May 9, 2008), sought an expungement of her arrest record, fourteen years after she had been acquitted of all charges at trial.  While sympathetic to her situation, the court pointed out that the Second Circuit (in United States v. Schnitzer, 567 F.2d 536 (2d Cir. 1997)) only permits expungement of arrest records in "extreme circumstances," such as harassment of civil rights workers, or mass arrests where determination of probable cause is impossible.  Unfortunately, "adverse employment decisions" do not come within that rubric. 

At least, in the course of pursuing this matter, Ms. Grant succeeded in getting her arrest record corrected to reflect the fact that the case was no longer pending, but had ended in a full acquittal.  There should, however, be a mechanism whereby individuals such as Ms. Grant (and Ms. Woods, as detailed in this post), who have maintained clean records and become contributing members of society, can wipe the slate clean.

Putting the lie to DOJ fear mongering that the crack retroactivity amendment will put thousands of violent criminals prematurely back on the streets, the judge in United States v. Wood, 88 CR 0723 (CPS), 2008 WL 399253 (E.D.N.Y. February 12, 2008), (a previous order of which is discussed here) issued a thoughtful decision ordering a deportable inmate's release on March 3, 2008, the effective date of the amendment.  Reducing Wood's base offense level by two points and applying the same downward departure of 9.6 percent imposed at the time of Wood's previous sentencing, the court found Wood eligible for release on March 3 (approximately three months earlier than Wood's original projected release date).  The court said the following about Wood's potential threat to the community: "Releasing Wood on March 3, 2008 does not pose a threat to the community. He will be immediately transferred to DHS custody and has previously consented to his removal from the country. Moreover, he has maintained good conduct and no disciplinary action has been taken against him during his entire period of incarceration [almost nineteen years]."

It has long been the practice in this circuit for a district court to consider all 18 U.S.C. § 3553 factors in deciding the extent of a 5K1.1 departure for a defendant's "substantial assistance" to the government.  Now, in United States v. Park, 05 CR 59 (DC) 2008 WL 355613 (S.D.N.Y. February 11, 2008), a judge has reached the very reasonable conclusion that a court may similarly consider all these factors in deciding the extent of a sentence reduction under Rule 35 (the rule governing post-sentence reductions for a defendant's cooperation efforts). 

The judge drew a distinction between granting the motion to reduce the sentence, and determining the extent of the reduction.  As to the first prong, the judge ruled that the court may only consider the defendant's efforts to provide assistance to the government.  As to the second prong, the judge held, however (and over the government's objection), that the full panoply of § 3553 factors come into play.  The judge reasoned that § 3553(a) is mandatory, without providing any exception for resentencings under Rule 35(b); the plain wording of Rule 35(b)(1) does not preclude considering other factors; the advisory committee notes to Rule 35(b)(1) support the conclusion; in applying Rule 35(b)(1), courts are to look for guidance to cases applying 5K1.1, which, as noted above, in this circuit apply all § 3553 factors; and caselaw outside the circuit supports the conclusion that all factors should be considered. 

This means, of course, that since the defendant is most likely incarcerated, the court may, on a Rule 35 motion, consider the defendant's experience in prison, including positive adjustment, rehabilitation or mistreatment, as well as changed personal or family circumstances.