EDNY Judge Irizarry Finds Government Breached Plea Agreement with Improper Advocacy at Sentencing
Where is the line between the government’s duty to inform the sentencing court of all of the defendant’s relevant conduct and the duty to stick to its side of the bargained-for plea agreement? When de facto, the government’s conduct and comments amount to an invitation to depart upwards, EDNY Judge Irizarry reiterates in a recent decision, holding that the government breached a plea agreement by disclosing highly inflammatory information about the defendant in its sentencing memorandum to the court.
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.
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.
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