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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 8              Covering Cases Published in the Advance Sheets through Feb. 19, 2001

Highlights of this Issue:

Apprendi Watch:

Guilty Pleas and Rule 11 Violations:

Appeal Waivers of Brady Rights:

U.S.S.G. and Sentencing Issues:

Dont forget to visit the Apprendi  Watch section of our Web site each week - the most current and comprehensive site on the entire Internet for all the latest developments involving that watershed decision. That section now includes links to and summaries of more than 150 Apprendi decisions, links to more than 100 Apprendi briefs and motions, and a listing of the 46 cases that the Supreme Court has vacated to date based on Apprendi.

United States v. Ruiz, No. 00-50048 (9th Cir. 3/5/01) (Judge Boochever)

In this case of first impression, the Court addressed the validity of a provision in a plea agreement which required the defendant to waive her rights to see favorable evidence, under Brady v. Maryland, 373 U.S. 83 (1963), in order to obtain a downward departure of her sentence. A majority of the panel concluded that a defendants right to receive undisclosed Brady materials cannot be waived through a plea agreement; that any such waiver is invalid; and for those reasons it reversed and remanded the case.

The defendant, a Mexican citizen, was arrested at the border for attempting to import marijuana into the United States. The Government offered a plea bargain which, among other things, provided for a two-level downward departure from the otherwise applicable sentencing guideline range under the "fast track" program. The United States Attorney's Office for the Southern District of California has adopted the "fast track" program to minimize the expenditure of government resources and expedite the processing of more routine cases. Plea bargains offered under this program require defendants to plead guilty, as well as waive their rights to an indictment, to an appeal, and to present motions. Defendants must also waive their rights to receive certain information pursuant to Brady. In exchange, the Government promises to recommend a two-level downward departure to the sentencing judge.

The plea agreement that was offered contained, inter alia, the following provisions: "The Government represents that any information establishing the factual innocence of the defendant known to the undersigned prosecutor in this case has been turned over to the defendant. The Government understands it has continuing duty to provide such information establishing factual innocence of the defendant.

"The defendant understands that if this case proceeded to trial, the Government would be required to provide impeachment information relating to any informants or other witnesses. In addition, if the defendant raised an affirmative defense, the Government would be required to provide information in its possession that supports such a defense. In return for the Government's promises set forth in this agreement, the defendant waives the right to this information, and agrees not to attempt to withdraw the guilty plea or to file a collateral attack based on the existence of this information."

The defendant refused to accept that plea agreement on the grounds that "it contained an unconstitutional waiver of [her] Brady rights." She did, however, subsequently enter into an unconditional plea agreement; and, at her sentencing, she requested several downward departures, including the two-level "fast track" departure - which would have reduced her Guideline sentencing range from 18-24 months to 12-18 months. The Government opposed the request and the district court denied the downward departure because the Government provided no "fast track" recommendation and the plea agreement that was signed did not require the Government to do otherwise. Ruiz was then sentenced to 18 months in prison.

She appealed, arguing that defendants cannot "voluntarily and intelligently waive [their] constitutional right to receive undisclosed Brady evidence and, therefore, any such waiver is invalid."

In responding to that argument, the majority explained that some constitutional rights are "automatically waived" by entering into an unconditional plea agreement, and it cited such rights as the right to a jury trial, the right to confront ones accusers, the right to invoke the privilege against self-incrimination, and the right to challenge constitutional defects which occur before the entry of the plea.

Next, the Court noted that "[o]f the rights that survive entry of a guilty plea, some still may be expressly waived through plea agreements," such as the right to appeal a sentence and the right to file a civil suit under 42 U.S.C. 1983 seeking redress for Government violations of constitutional rights.

Finally, it noted that "[s]ome rights, however, can never be waived. For example, a plea agreement cannot bar defendants from asserting claims involving a breach of the plea agreement, racial disparity in sentencing among codefendants or an illegal sentence imposed in excess of a maximum statutory penalty . . . [n]or can defendants waive the right to a unanimous jury verdict . . . or a speedy trial."

It then concluded that although "no court has addressed whether Brady rights are waivable through plea agreements," the Ninth Circuit has held (in Sanchez v. U.S., 50 F.3d 1448 (1995)) that "guilty pleas cannot be deemed intelligent and voluntary if entered without knowledge of material information withheld by the Government. We reasoned that a defendant's decision whether or not to plead guilty is often heavily influenced by his appraisal of the prosecution's case. . . . . Also, we explained that if a defendant may not raise a Brady claim after a guilty plea, prosecutors may be tempted to deliberately withhold exculpatory information as part of an attempt to elicit guilty pleas."

It then continued that the rationale of Sanchez "applied with equal force to plea agreements" and it noted that a waiver "cannot bar claims that relate to the validity of the waiver itself." In making that ruling, the majority specifically rejected the Governments argument that "even if a waiver of all Brady rights is invalid, the plea agreement at issue here is still valid because it only waives some Brady rights. In particular, the plea agreements waiver only applies to impeachment evidence . . . [and] that impeachment evidence is only relevant if there is going to be a trial."

The majority rejected any such distinction between "impeachment" and "exculpatory" evidence - stating that the Supreme Court had "declined to recognize any meaningful difference between these two types of Brady materials," and that Ninth Circuit precedent was to the same effect.

Having concluded that the right to receive undisclosed Brady evidence is not subject to waiver through a plea agreement, the Court continued that the defendant would be entitled to relief only if she could also demonstrate that "as a legal matter, it is unconstitutional or arbitrary for prosecutors to oppose a downward departure based on a defendants refusal to waive Brady rights [and] that, as a factual matter, the Government opposed the downward departure for this reason."

Based on the evidence before it, the Court held that "[b]ecause Brady waivers are themselves unconstitutional, we conclude it is unconstitutional for prosecutors to withhold a departure recommendation based on a defendants refusal to accept such a waiver." It also held that the defendant had made "a substantial threshold showing that the Government acted with an unconstitutional motive in refusing to recommend the "fast track" departure; and that, as a result, she was entitled to an evidentiary hearing on remand concerning her constitutional claim.

Judge Richard Tallman, a recent appointee to the Ninth Circuit and a former AUSA, was appalled at the majoritys decision, stating: "The majority, announcing today for the first time that the right to impeachment information is one of those rare constitutional rights that cannot be waived, has regrettably decided to give Ruiz another bite [at the sentencing apple]. I cannot join in this unprecedented decision."

United States v. Guzman, 236 F.3d 830 (7th Cir. 2001) (Judge Posner)

We note this case for its discussion of a relatively new argument that we have seen raised in a number of cases recently - namely that a persons "cultural heritage" is a factor that should be considered by the courts in criminal cases. For example, the March, 2001 issue of the Champion magazine (the publication of the NACDL), contains an article entitled "Cultural Factors in Motions to Suppress." There, attorneys James Connell of Virginia and Rene L. Valladares of Nevada make a strong case for recognition of cultural factors in at least some aspects of criminal law due to the increasingly diverse cultural makeup of American society.

In the instant case, the defendant was one of three people charged with participating in conspiracy to distribute methamphetamine. The defendant was a young, pregnant Mexican woman; and the other two were men, one of whom was the defendants Mexican boyfriend. At sentencing, the district court (Judge Joe Billy McDade) granted a massive 25-level downward departure, by virtue of which the defendant received a sentence of "time served" (three days in prison), plus six months of home detention. The Government appealed and the Seventh Circuit reversed and remanded for resentencing.

Judge McDade cited two reasons for the departure he granted: the defendants "cultural heritage," and the fact that her conviction of a serious drug offense made her deportable. (Id., at 831). The presentence report had recommended a departure (without recommending a specific number of offense levels to depart by) "because Mexican cultural norms dictated submissions to her boyfriends will. Moreover, she had taken up with him in defiance of her family's wishes and it would have been humiliating for her to break with him and return to her family - especially since she was pregnant with his child, yet they were not married." (Id., at 831-32).

Pointing to U.S.S.G. 5H1.10 (which provides that "race, sex, national origin, creed, religion, and socio-economic factors" are not relevant to the determination of a sentence), the Government argued that a defendants cultural heritage can never be a basis for a downward departure. The Court agreed that the departure in this case had to be reversed, but it declined to go as far as the Government wanted.

Writing for the majority, Judge Posner concluded that "[a]lthough . . . we lean to the view that section 5H1.10 of the guidelines does forbid consideration of ethnicity or cultural heritage in the sentencing decision, we need not so hold today and by doing so exclude all possibility of consideration of cultural factors in cases that we cannot yet foresee." (Id., at 833). The majoritys ambivalence was somewhat created by the Courts conclusion that "[t]here is no illuminating legislative history, and no case in this court on whether cultural heritage should be subsumed under any (perhaps a combination) of the factors expressly excluded by section 5H1.10 from the sentencing judge's consideration. Two circuits have held that it should be. United States v. Contreras, 180 F.3d 1204, 1212 n. 4 (10th Cir. 1999); United States v. Sprei, 145 F.3d 528, 536 (2d Cir. 1998). Several other circuits, while expressing queasiness at allowing sentencing judges to consider a characteristic that overlaps so closely with national origin, have left open the question whether it may ever be considered but have declined to hold that it may never be. USSG 5H1.10." (Id., at 832).

(In Sprei, the Second Circuit held that the District court erred when it based a downward departure in part on its determination that a long period of incarceration for a Orthodox Jewish defendant would unduly harm the marriage prospects of three of defendant's children; and in Contreras, a case that actually dealt with U.S.S.G. 5H2.12, "Coercion and Duress," the Tenth Circuit held that a childs financial dependence on her father was not a proper grounds for a departure.)

The majority also rejected the district courts partial justification for the departure based on its finding that the defendants drug offense made her deportable. It noted that while Judge McDade had not explained his reasoning, defense counsel had argued that deportation is a form of punishment and thus a given sentence imposes a greater punishment on a deportable alien than on a citizen.

"This is wrong. It implies that any alien who commits a crime should receive a shorter sentence than a citizen. Such a rule would invite aliens who did not want to live in the United States to come here to commit crimes. The double punishment argument has been rejected in the double-jeopardy setting, . . . , and we now join the courts that have held that it should equally be rejected in sentencing." However, the majority did recognize that the defendants status as a deportable alien can result in conditions harsher than might apply to citizens (such as ineligibility for halfway house and minimum security prisons). To ameliorate such factors, it noted that the district court "remains free" to consider such factors on remand - "though obviously it would not justify a downward departure of 25 levels." (Id., at 834).

Judge Ripple dissented on the "cultural heritage" aspect of the majoritys decision. He flatly stated that "I believe that cultural heritage has a meaning distinct from the forbidden factors set forth in 5H1.10, whether taken individually or in combination." (Id., at 835). What we found particularly significant about his dissent was his listing of numerous law review articles and other resources in support of his contention that a persons cultural heritage should be considered by the courts at sentencing. (See, e.g., Richard D. Alba, "Ethnic Identity: The Transformation of White America," (1990); and Rachel F. Morgan, "What if Latinos Really Mattered in the Public Policy Debate?", 85 Cal.L.Rev. 1315 (1997)). We also wonder what the Seventh Circuit would have done if Judge McDade had only granted a downward departure of say five levels?

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