Vol. 8, No. 34
Covering Cases Published in the Advance Sheets through August 20, 2001

Highlights of this Issue:

Rule 11(c) and the Call of Informed and Intelligent Pleas:

U.S.S.G. Issues:

Perjury and the Defense of Recantation:

Apprendi Watch:

Prisoner Rights Issues:

We at Punch and Jurists send our deepest condolences and our prayers for peace and comfort to all those affected by the terrible occurrences in New York and Washington, D.C. on September 11, 2001. We also ask for special prayers for our judges and political leaders who will certainly come under great pressures to curtail our civil liberties as a result of those horrendous and barbaric events.

U.S. v. Barrios-Gutierrez, 255 F.3d 1024 (9th Cir. 2001) (En Banc) (Judge O'Scannlain)

When the Federal Sentencing Guidelines were enacted into law in 1987, the Sentencing Commission made a number of grandiose promises about how the Guidelines could be counted on to produce "honesty in sentencing" and to eliminate the "confusion and implicit deception that arose out of the pre-guidelines sentencing system." Federal Sentencing Guideline Manual ("Manual"), Ch. 1, Pt. A, 3. It promised, for example, that the Guidelines would create "a clear, definite expectation in respect to the sentence that a court will impose if a trial takes place" and that, if the prosecutor and defense counsel decided to explore the possibility of a negotiated plea, "they will no longer work in the dark." That "fact", it continued, "should help to reduce irrationality in respect to actual sentencing outcomes." Manual, Ch. 1, Pt. A., 4(c).

Many observers were unconvinced then - and they remain unconvinced today. And, in truth, the fact is that there is a great deal of uncertainty whenever a Federal criminal defendant pleads guilty. The majority of the judges in the instant en banc case acknowledged that fact by stating: "At every plea hearing, a great deal of uncertainty remains as to what the sentence will be: the applicability of sentence enhancements or downward adjustments; the contents and recommendations of the Presentence Investigation Report; either party's objections to the report; and the effect of the sentencing guidelines." (Id., at 1027).

Of course, the Guidelines are not the lone cause of the uncertainty that is often attendant to the Federal plea bargaining/sentencing process. Other factors and pressures can play significant roles; and a few of them are noted in the Quote of the Week below. One highly significant factor is the role of Rule 11(c) of the Fed.R.Crim.P. - and that Rule became the critical focus of attention in the instant case. Rule 11(c) requires the district court, before accepting a guilty plea from a defendant, to address the defendant in open court and "inform the defendant of, and determine that the defendant understands, . . . the maximum possible penalty provided by law . . . ." The purpose of the Rule is "to ensure that the defendant will be placed in a position where his plea will be intelligent and informed." (Id., at 1026).

The defendant in the instant case was indicted for illegal reentry into the United States after a previous deportation in violation of 8 U.S.C. § 1326(a). Just before his trial commenced, he decided to plead guilty to the charge; and the district court immediately proceeded with the Rule 11 colloquy. As explained by the Court: "The district court asked counsel for the government whether there was any dispute that the maximum sentence was two years. The Assistant U.S. Attorney responded, possibly the government will be filing an enhancement to the 1326(a). So as it stands now, it is a [sic] two years. But that's subject to us filing a notice for enhancement'." (Id., at 1025) (Emphasis added.)

The district court then gave the defendant some indication that, if the Government did seek an enhancement under 8 U.S.C. § 1326(b), he "may" or "may not" be subject to a sentence of up to 20 years. The defendant acknowledged that he understood that possibility, but his counsel persisted that it was his "position" that "once jeopardy attached, the government cannot change the indictment to increase the punishment alleged in the indictment, and in this case it's a two-year maximum." (Id., at 1030).

The district court then accepted the defendant's guilty plea - and, "immediately thereafter, the prosecution announced its intention to seek the [20 year] enhancement under § 1326(b)(2)." (Id., at 1026). Since the Government had previously announced, just moments before, that it might only "possibly" seek such an enhancement, we can only assume that it deliberately waited to announce its real intentions until after the district court had accepted the defendant's plea - just to make sure that he wouldn't back out from his plea and go to trial. (As noted in the Quote of the Week below, District Judge Greene has described such gamesmanship as "unseemly" at best - and possibly a violation of due process.)

In any event, the defendant never sought to withdraw his plea; and he was ultimately sentenced to 57 months in prison. He then appealed, arguing that the district court had violated Rule 11 by failing adequately to inform him of the maximum sentence that he faced. The original panel, by a split vote, concluded that the district court had violated Rule 11(c) "by failing adequately to inform [the defendant] of the maximum sentence which he faced at the time of his plea." U.S. v. Barrios-Gutierrez, 218 F.3d 1118 (9th Cir. 2000) (P&J, 9/11/00).

The Ninth Circuit quickly voted to rehear the case en banc; and a divided court reversed the panel's decision and reinstated the 57 month sentence that the district court had imposed. Judge O'Scannlain (who dissented in the panel's earlier decision) wrote the majority opinion. He argued that "Rule 11 does not require that the district court announce authoritatively the actual maximum sentence at the plea-taking stage." (Id., at 1027-28). He was satisfied that the defendant had been adequately advised that he faced a possible sentence of 20 years and that the district court "did not mislead the defendant nor leave uncorrected any obvious confusion." (Id., at 1028).

Three judges dissented, in an opinion written by Judge Berzon. She wrote: "Rule 11 provides that, before accepting a guilty plea, the court must inform the defendant of . . . the maximum possible penalty provided by law.' Rule 11 does not provide that, before accepting a guilty plea, the court must inform the defendant of the possible maximum penalty, depending on how one interprets the law.' The two phrases are not equivalent, but the majority proceeds as if they were." (Id., at 1029).

After reviewing "a more complete version of the colloquy than the majority includes in its opinion," Judge Berzon stated that "one cannot escape the conclusion that the defendant was not informed by the court of the maximum possible sentence provided by law' for a violation of § 1326(a). He was only informed of the government's position on that question, and of the court's refusal to decide whether that position was correct. . . . Rule 11, however, intended to provide some guidance, albeit often minimal guidance, to defendants in assessing their course of action, by requiring the judge to provide one definitive piece of information: Under the statute of conviction, what is the maximum sentence to which any defendant -- not this defendant, in particular -- may legally be sentenced. That information was not provided to the defendant in this case." (Id., at 1030).

Although not addressed in this case, we think it is worthwhile to note an interesting aspect about Rule 11(c). That Rule was enacted in an era when the judges had full discretion to impose any sentence up to the statutory maximum that was deemed appropriate under the facts of each case. Under those circumstances, advising defendants of the "maximum possible sentence" may well have helped defendants make more "informed" and "intelligent" decisions about whether to plead guilty. However, once the Guidelines became law, Rule 11(c) (which remained unchanged) became somewhat irrelevant and illusory. The Guidelines require judges to impose sentences within relatively tight sentencing ranges that usually have little relationship to the prescribed statutory maximums that were fixed by Congress many years ago. If we really are looking for "honesty in sentencing," and if we really want to give defendants "a clear and definite expectation" of the sentence that will be imposed, perhaps the time has come to consider amending the "maximum possible penalty" provisions of Rule 11(c). After all, what is the real purpose of telling a defendant that he could receive a sentence of, say, 30 years, when in fact the maximum sentence permitted by the Guidelines may be only five years? Whatever the real purpose may be, it strikes us as a bit disingenuous to pretend that telling a defendant the maximum possible - but extremely unlikely - sentence will lead to more informed and intelligent plea decisions!

Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001) (Judge McKeown)

This is a rather extraordinary prison case which the Court said "exemplifies [the] antagonism toward prisoner litigation at the cost of constitutional rights and legal ethics." (Id., at 1122). The principal issue addressed by the Court was whether counsel for the State of Idaho, who was representing the Idaho Department of Corrections (IDC), should be sanctioned for receiving, reading, and using "bootlegged copies" of legal correspondence between inmates and their lawyer during the course of a lengthy prisoner lawsuit against the IDC.

The inmates had brought suit against the IDC, two of its penal institutions, and several officials, charging that the defendants had retaliated against them whenever they filed lawsuits or availed themselves of grievance procedures. Following a 19-day bench trial, the district court found that the defendants had, for more than a decade, retaliated against the inmates for exercising their right of access to the courts, and that the retaliation was pursuant to a custom or policy. The facts supporting that ruling were apparently so clear that the ruling itself wasn't even challenged on appeal.

What was challenged was the district court's supplemental award of sanctions ($3,500 in attorneys' fees and $1,000 in costs and expenses) assessed against IDC's counsel after the court found that such counsel had "implicitly authorized and encouraged prison employees to secretly search for, inspect, examine, read, copy and then deliver . . . confidential attorney-client correspondence or documents' over a nine month period." (Id., at 1125). The district court's findings and language were astonishingly blunt. It concluded that IDC's counsel had acted in bad faith and had obtained and used the information to gain a "tactical advantage" in the ongoing lawsuit. It found that such counsel had "completely disregarded the attorney-client privilege and ignored their individual ethical duty to submit the materials to the court" (id.) - and that such conduct had created unnecessary litigation.

The district court awarded the sanctions under its inherent power and the provisions of 28 U.S.C. § 1927. That statute provides that any attorney who "so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court ro satisfy personally the excess costs, expenses, and attorneys' fees reasonably incurred because of such conduct."

Defiantly, counsel challenged the authority of the district court to award such sanctions - either under its inherent power or under the provisions of § 1927. That show of chutzpah was a big mistake. While it did not join with the Federal Circuit in giving a "chutzpah award," see Dainippon Screen Manf. Co., Ltd. V. CFMT, Inc., 142 F.3d 1266, 1271 (Fed. Cir. 1998), the Ninth Circuit came close. It acknowledged that the district court had used "strong language," but it concluded that "the record amply supports the court's findings and conclusions that the documents were privileged, that counsel violated the privilege and their ethical duty, and that sanctions were justified." (Id., at 1131).

Delaney v. Detella, 256 F.3d 679 (7th Cir. 2001) (Judge Evans)

This is an interesting prison case in which the Seventh Circuit held that the total denial of exercise opportunities for a six-month period to a prisoner who was being held in the prison's segregation unit constituted an actionable violation of the prisoner's Eighth Amendment rights. The Court therefore affirmed the district court's refusal to grant a motion for summary judgment filed by prison officials based on a defense of qualified immunity.

In this case, prison officials at Stateville Correctional Center in Illinois instituted a "lockdown" in 1996 "for the purpose of reviewing security measures, conducting a shakedown' of inmates, and redesigning prisoner cells." (Id., at 681). The lockdown continued for more than six months, and during that time the petitioner was denied all out-of-cell exercise. Claiming he suffered a series of ailments as a result of the lack of exercise, he brought a civil rights suit for damages, under 42 U.S.C. § 1983, against the warden and various prison guards.

In agreeing that the denial of exercise constituted cruel and unusual punishment, the Court concluded that "the complete denial of reasonable exercise opportunities for 6 months" fell below the "evolving standards of decency that mark the progress of a maturing society." In that connection, the Court observed: "In recent years we have not only acknowledged that a lack of exercise can rise to a constitutional violation, . . . but have concluded that exercise is now regarded in many quarters as an indispensable component of preventive medicine'. Given current norms, exercise is no longer considered an optional form of recreation, but is instead a necessary requirement for physical and mental well-being." (Id., at 683) (Internal citations omitted).

The Court also concluded that, "both in duration and severity, the nature of Delaney's alleged deprivation was significant and serious, and apparently no alternatives were made to mitigate the effects of the deprivation." (Id., at 684).

The defendants also argued that the petitioner's claim should fail because he had failed to provide expert testimony showing that his physical health was threatened by the denial. In rejecting that argument, the Court stated that "while we have not waived the injury requirement for claims involving the denial of exercise, . . . we have acknowledged the strong likelihood of psychological injury when segregated prisoners are denied all access to exercise for more than 90 days." (Id., at 685).

QUOTE OF THE WEEK - Some thoughts on the high level of plea bargains in America.

"If all the defendants should combine to refuse to plead guilty, and should dare to hold out, they could break down the administration of criminal justice in any state in the Union. . . . The truth is, that a criminal court can operate only by inducing the great mass of actually guilty defendants to plead guilty, paying in leniency the price for the plea." (From "The Trial Judge," by Justice Lummus of the Supreme Judicial Court of Massachusetts, as quoted in United States v. Wiley, 184 F.Supp. 679 (N.D.Ill. 1960)).

"It is obvious . . . that . . . the defendant is in effect induced by the 'system', including the judge, the prosecutor, and the defense attorney, to plead to what he believes to be a lesser offense - lesser, that is, in its punitive consequences to him - when, in fact, because of the guidelines, the sentence will in all probability be identical to that which could and would have been imposed had he proceeded to trial on the more serious charge or charges. The benefit to the defendant from giving up his right to a trial, with the ever-present possibility of an acquittal, will thus be entirely illusory. It is unseemly, and it may be a violation of Rule 11, Fed.R.Crim.P., and possibly of due process, to mislead the defendant in so fundamental a respect in order to induce him to plead guilty." Judge Harold H. Greene, in U.S. v. Bethancurt, 692 F.Supp. 1427, 1431 (D.D.C.1988).

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