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A Weekly Summary of Snippets of Justice From the Federal Courts

Vol. 8, No. 18              Covering Cases Published in the Advance Sheets through April 30, 2001

Highlights of this Issue:

Standard Provision of Government's Proffer Agreement Held Unenforceable:

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

Apprendi Watch:

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 contains summaries of more than 200 Apprendi decisions, links to numerous Apprendi articles and more than 100 Apprendi briefs and motions, and a listing of the 48 cases that the Supreme Court has vacated to date based on Apprendi.

United States v. Duffy, 133 F.Supp.2d 213 (E.D.N.Y. 2000) (Judge Gershon)

This is an important decision in which Judge Gershon held that a common provision of the Governments "standard" proffer agreement that is used in the Eastern District of New York was so one-sided and unfair as to render it constitutionally defective and unenforceable - among other reasons because it violated the defendants right to make "any sort of a meaningful defense."

The defendant in this case, Brian Duffy, was charged with participating in a securities fraud conspiracy. Accompanied by his then lawyer, he went to the U.S. Attorneys Office in the hopes of negotiating a cooperation agreement. As Judge Gershon explained: "Ordinarily, the government will not agree to enter into a cooperation agreement until a defendant makes a factual proffer and describes the type of assistance he might be able to provide. Before beginning a proffer session, the government required Duffy and his lawyer to execute what is referred to by the government as its standard proffer agreement. The government acknowledges that it uses this standard proffer agreement during every proffer session with all defendants, and that it is not negotiable." (Id., at 214)

Paragraph 1 of that agreement provides that, except in a prosecution for false statements, obstruction of justice, or perjury with respect to acts committed or statements made at or after the proffer meeting, the Government will not offer into evidence any statements made by the defendant at the meeting either in the Governments case-in-chief or at sentencing.

Paragraph 2 contains several exceptions to the Governments promises to refrain from using the defendants statements. In particular, Paragraph 2 states: "Notwithstanding paragraph (1) above, the Office may use any statements made by [the defendant]: (A) to obtain leads to other evidence, which evidence may be used by the Office in any stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing), (B) as substantive evidence to cross-examine [the defendant], should [the defendant] testify, and (C) as substantive evidence to rebut any evidence offered or elicited, or factual assertions made, by or on behalf of [the defendant] at any stage of a criminal prosecution (including but not limited to detention hearing, trial or sentencing)."

To cover all bases, Paragraph 3 includes a mandatory waiver of the provisions of Fed.R.Crim.P. 11(e)(6) and Fed.R.Evid. 410. Those Rules generally provide that statements made by a defendant "in the course of plea negotiations" with the Government "which do not result in a plea of guilty" are generally not admissible in any civil or criminal proceedings - but if a defendant in the Eastern District of New York just wants to discuss a possible cooperation agreement he must waive the exclusionary provision of those Rules.

After signing the agreement, Duffy proceeded to give the Government a detailed proffer statement. In essence, he "admitted the existence of the securities fraud conspiracy that is charged in the instant indictment; he explained how the scheme was carried out, and he described how he joined the conspiracy and the part that he played. Based on the information volunteered, Duffy's counsel asked the government to enter into a cooperation agreement with his client and to permit Duffy to plead guilty to a misdemeanor." (Id., at 215). The government would not agree to those terms, so Duffy proceeded to trial.

Prior to trial, Duffy moved to strike Paragraph 2(C) of the Proffer Agreement on the grounds that it was ambiguous or, in the alternative, unconscionable. The thrust of his argument was that Paragraph 2(C) operates effectively as a waiver of trial, and that he did not knowingly and intelligently waive his right to make a defense at trial. In response, the Government argued that Paragraph 2(C) was a valid waiver, knowingly entered into, and that it did not prevent Duffy from putting on a defense; although it did concede that Duffy was "left with few options lest he open the door to his proffer statements being used against him." (Id.)

After hearing arguments on the issue, Judge Gershon granted the defendants motion striking Paragraph 2(C); and this opinion sets forth her reasons for so doing. Essentially she concluded that "[w]hile paragraph 2(C) does not require Duffy's attorney to sit silently at trial, it does prevent him from making any sort of meaningful defense. Practically speaking, all that Duffy's counsel can do is to argue reasonable doubt. He can assert that the government's witnesses did not see Duffy doing anything illegal or that those witnesses simply should not be believed. However, any affirmative theory of factual innocence, including, for example, any argument that there was no conspiracy or that Duffy had no part in it, would permit the government to offer Duffy's proffer." (Id., at 216)

Citing U.S. v. Ready, 82 F.3d 551 (2nd Cir. 1996), Judge Gershon emphasized that the Second Circuit "scrutinizes waivers closely and construes them narrowly, especially when they implicate essential rights." (Id., at 217). She also noted that the Ready court held that plea agreements should be construed strictly against the Government particularly because the Government has "certain awesome advantages in the bargaining power." Here, because Paragraph 2(C) "exploits this power imbalance," "general fairness principles" could be used to invalidate particular terms.

Applying those principles, Judge Gershon concluded that "[a]lthough Duffy could have waived his right to trial by entering a plea, the government's standard proffer agreement effectively accomplished the same end without affording Duffy the benefit of a plea agreement and the protections of a Rule 11 allocution. . . . In sum, after considering the realistic consequences of paragraph 2(C), I find that the waiver in this case implicates exactly the kind of fundamental interests referred to in Ready. Paragraph 2(C), in effect, constitutes a waiver of Duffy's rights to make a defense and to the effective assistance of counsel. To permit the government to extract a waiver of such important rights as a precondition to engaging in cooperation negotiations would have an overriding impact on public interests in the fairness of both the plea bargaining process and federal criminal trials generally." (Id., at 217-18).

On a final note, Judge Gershon rejected the Governments reliance on decisions from the Seventh and D.C. Circuits which expressed the view that waivers which permit a defendants proffer statements to be used for more than impeachment purposes are enforceable. (See, U.S. v. Krilich, 159 F.3d 1020, 1024-26 (7th Cir. 1998) and U.S. v. Burch, 156 F.3d 1315, 1320-22 (D.C.Cir. 1998)). She disagreed with the holdings in both those cases and suggested that neither the Supreme Court nor the Second Circuit would reach the same result.

In Re Sealed Case, 244 F.3d 961 (D.C. Cir. 2001) (Judge Edwards)
United States v. Duncan, 242 F.3d 940 (10th Cir. 2001) (Judge Brorby)
United States v. Johnson, 241 F.3d 1049 (8th Cir. 2001) (Judge Beam)

These three cases present an excellent overview of the current status of the law on the permissible scope of judicial review of the power of the prosecutors to make or withhold motions for downward departures, pursuant to U.S.S.G. 5K1.1, based on a defendants substantial assistance to the Government. These cases also show that the courts continue to express hollow concerns about the potentials for abuse from that awesome prosecutorial power; and yet those concerns always seem to produce the same cavalier attitude from the prosecutors: "We hear you, but stay out of our business." (For more on the "helpless piety" of such "ritualistic verbal spankings," see the Quote of the Week below.)

A major concern of the courts is that "a prosecutor may induce cooperation plus a guilty plea by promising a 5K1.1 motion and then pull the rug out from under a defendant." United States v. Smith, 953 F.2d 1060, 1066 (7th Cir. 1992). Despite those concerns, the law is quite clear. The prosecutors dont have to listen to what the courts say on this topic because their power to grant or withhold departures for substantial assistance is virtually unreviewable. As Circuit Judge Selya has explained: "The simple, unvarnished fact remains that, without a government motion, a sentencing court cannot [reduce a sentence] under U.S.S.G. 5K1.1, despite meanspiritedness, or even arbitrariness, on the government's part." United States v. Romolo, 937 F.2d 20, 24 (1st Cir. 1991).

Essentially, the ability of the prosecutors to dangle their sugar-coated promises before defendants and then pull the rug out from under them stems principally from two separate events that occurred early in the life of 5K1.1. In 1989, the Sentencing Commission adopted Amendment No. 290 to the Guidelines, which became effective on November 1, 1989. Up to that date, U.S.S.G. 5K1 provided for a possible sentence reduction whenever the defendant made a "good faith effort" to provide substantial assistance to the Government on his own or on other cases. However, at the insistence of the Department of Justice, that provision was amended by deleting any "good faith" element from 5K1.1 - thus effectively removing the possibility of any judicial review of the prosecutors motives.

Then, in 1992, the Supreme Court issued its decision in Wade v. U.S., 504 U.S. 181, 185-86 (1992), which held that the district courts have the authority to review a prosecutors refusal to file a substantial-assistance motion only if they find that the refusal was (a) based on an unconstitutional motive, such as the defendants race or religion, or (b) "was not rationally related to any legitimate Government end."

Johnson: This case represents a rare exception to general rule that the courts have virtually no power to review the prosecutors refusals to file a 5K1.1 motion; and it also presents a vivid example of the type of arrogant insolence that prosecutors can exhibit when they want the courts to stop questioning their motives and decisions.

Here the defendant pled guilty to various drug and gun charges, and he signed a cooperation agreement which provided that if the U.S. Attorney concluded that he had provided substantial assistance, "the United States shall file a motion with the sentencing court" requesting a downward departure. (Emphasis added). At the sentencing hearing, the prosecutor refused a file a 5K1.1 motion for a downward departure, and he was sentenced to 324 months in prison.

However, at the close of the sentencing proceeding, the prosecutor asked leave to file a motion, pursuant to Fed.R.Crim.P. 35(b), seeking a reduction of the sentence that had just been imposed "due to Defendants substantial assistance to the government." Although the district court granted that request, nothing further happened on the Rule 35(b) motion, apparently because the Government was angered when the defendant appealed his sentence, arguing that the Government had breached its plea agreement with him.

The Government, of course, opposed the defendants appeal - on two grounds. First, it made the astonishing claim that it had not filed a 5K1.1 motion at sentencing because it had not known the extent of the defendants cooperation at the time of sentencing. Although the Courts response to that argument was buried in a footnote, its language was blunt: "The government challenges the boundaries of our imaginations when it asks us to accept the premise that it did not know the extent of Johnson's cooperation during sentencing but suddenly had an epiphany later that day - an epiphany that was apparently already emerging prior to sentencing." (Id., at 1053, n. 2).

Second, the Government argued that the Court had no jurisdiction to review its refusal to make a 5K1.1 motion unless the refusal "was irrational or based on an unconstitutional motive." (Id., at 1051). The Courts terse response was: "The argument is misplaced." The issue was not the Governments motives; rather it was "whether the government breached its plea agreement." (Id., at 1052).

The Court continued: "Although, typically, a trial court may not depart from the Sentencing Guidelines without a motion by the government, the defendant may nevertheless have a remedy for the government's refusal to file the motion if the plea agreement[] between the [defendant] and the government bound the government to file such a motion. . . . If the government fails to fulfill the terms of a plea agreement, the defendant may seek either specific performance of the agreement or withdrawal of his guilty plea. . . .

"In the present case, the language of the plea agreement is clear and the government's failure to file a departure motion prior to sentencing-when it had already determined that Johnson had provided substantial assistance-breached that agreement. . . . Because Johnson is entitled to specific performance of the plea agreement, upon remand, the government is to file a motion or motions in accordance with the plea agreement." (Id., at 1054-55).

The Court also warned the Government that Rule 35(b) (which permits the Government to move for sentence reductions in the year following a defendants sentencing based on both pre- and post-sentencing cooperation) "is not a mechanism to string a defendant along once the government has concluded he has already satisfied his obligation under a plea agreement-indefinitely holding a departure motion over his head like Damocles' sword." (Id., at 1054).

QUOTE OF THE WEEK - Shedding false tears over prosecutorial intransigence.

"This court has several times used vigorous language in denouncing government counsel for such conduct as that of the [prosecutor] here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we had declared in effect 'Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If the prosecutors win verdicts as a result of "disapproved" remarks, we will not deprive them of their victories; we will merely go through a form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court - recalling the bitter tear shed by the Walrus as he ate the oysters - breeds a deplorably cynical attitude towards the judiciary." Judge Jerome Frank, dissenting in U.S. v. Antonelli Fireworks Co., 55 F.2d 631, 661 (2nd Cir. 1946)

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