Court Rejects Attempt to Attack Guilty Plea Over Claim that Prosecutor Threatened to Prosecute Wife (9/13/16)

It is not uncommon in situations where two related parties are implicated in a common potential crime for the federal prosecutor to offer and accept a plea by one of the parties with the inducement that indictment or prosecution of another will not occur or will be more lenient.  This sometimes happens in the context of husband and wife who filed a joint return and are both potentially culpable for some crime with respect to the return, such as tax evasion or tax perjury.  If the husband is more culpable, the prosecutor may offer to accept a plea from the husband and not charge or drop the charges for the wife.

Obviously, the power to indict and prosecute both spouses creates powerful incentives/coercion on the spouse or related party being offered the guilty plea.  Is that coercion fair?  Would it allow a defendant accepting the plea to avoid the plea agreement, perhaps at a time when the Government will be unable to prosecute the other spouse?

In Peters v. United States, 2016 U.S. Dist. LEXIS 106962 (ED TX 2016), here, adopted by the district court, 2016 U.S. Dist. LEXIS 106654 (ED TX 2016), the husband defendant accepted a plea to one count of tax evasion and one count of bankruptcy fraud.  After the district court accepted the plea and sentenced the defendant, he was incarcerated.  He then brought a federal habeas corpus petition under 18 USC § 2255, here.  The petitioner made several claims for habeas relief, but the only one I address here is that he was subject to under coercion because of the prosecutor's threat to indict his wife.  I quote from the magistrate's opinion which was affirmed by the district court on the grounds stated in the magistrate's opinion:

b. Peters' claim that the plea was coerced by the threat of prosecution of his wife lacks merit 

The Fifth Circuit has explained: 

[G]uilty pleas made in consideration of lenient treatment as against third parties pose a greater danger of coercion than purely bilateral plea bargaining." United States v. Nuckols, 569 (5th Cir.1979). Even so, there is no "intrinsic constitutional infirmity" in promising leniency to a third party in exchange for a guilty plea. Id. A prosecutor has discretion to "inform an accused that an implicated third person will be brought to book if he does not plead guilty." Id. The prosecutor has a duty of good faith in making such a representation, which duty is satisfied where he has probable cause to believe the third person has committed a crime. Id.; United States v. Diaz, 733 F.2d 371, 375 (5th Cir. 1984). 

McElhaney, 469 F.3d at 385 [McElhaney v. United States, 469 F.3d 382 (5th Cir. 2006)]. Thus, so long as the Government has probable cause to bring charges against a defendant's relative, the "defendant's plea 'would not be involuntary by reason of a desire to extricate his relatives from such a possible good faith prosecution.'" Id. (quoting Diaz, 733 F.2d at 375). 

Peters does not allege that the Government lacked probable cause to bring charges against his wife in the underlying criminal case or otherwise acted in bad faith during the plea bargaining process. Rather, he asserts that defense counsel threatened that his wife would be subject to indictment should Peters proceed to trial. See Brief in Support of Motion, Exhibit B. However, it is evident from the record that defense counsel reasonably concluded the Government had probable cause to bring an indictment against Peters' wife, since she was a signatory on the tax and bankruptcy filings at issue in the case. See Arrambide Affidavit at 1-6. Under the circumstances, the Court cannot find fault with counsel's advice regarding the potential exposure of his clients' spouse. Moreover, Peters' decision to enter a guilty plea in order to prevent such a good faith prosecution cannot be deemed involuntary.

This is a pretty fair statement of the law.  The issue of undue coercion is whether the prosecutor made an unreasonable threat to prosecute the third party to induce the plea.  Reasonableness is determined by whether the prosecutor had probable cause to assert the potential prosecution of the third party.  If so, then most courts would not entertain the attack on the plea.

In United States v. Marquez, 909 F.2d 738 (2d Cir. 1990), although an older case, the Second Circuit provides a good discussion of the then state of the law, which appears to be also the current state of the law.  In Marquez, the defendant sought to withdraw his guilty plea.  He claimed that the prosecutor had improperly threatened less leniency against his wife if he did not accept the offered plea.  (Or, I could have said that the prosecutor offered more leniency to the wife if he accepted the offered plea.)  He accepted the plea and sought to withdraw the plea.  The district court denied the request.  The defendant appealed on several grounds.  The Court of Appeals affirmed, reasoning

2. Marquez next contends that his plea was involuntary because of the pressure on him arising from the Government's insistence that a plea bargain would not be offered to his wife unless he pled guilty. In Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978), the Supreme Court noted but found no need to consider "the constitutional implications of a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused." This Circuit appears not to have ruled on the matter, though all of the other circuits that have considered the issue have concluded that a plea is not invalid if entered (a) under a plea agreement that includes leniency for a third party or (b) in response to a prosecutor's justifiable threat to prosecute a third party if the plea is not entered: First Circuit, Kent v. United States, 272 F.2d 795, 798 (1st Cir. 1959) (threat to prosecute defendant's fiance); Fourth Circuit, Harman v. Mohn, 683 F.2d 834, 836-38 (4th Cir. 1982) (dismissal of charges against defendant's wife); Fifth Circuit, United States v. Diaz, 733 F.2d 371, 375  [742]  (5th Cir. 1984) (threat to prosecute defendant's sister and brother-in-law); Sixth Circuit, United States v. Usher, 703 F.2d 956, 958 (6th Cir. 1983) (reduced sentence for defendant's wife); Seventh Circuit, Politte v. United States, 852 F.2d 924, 929-31 (7th Cir. 1988) (same); Ninth Circuit, Cortez v. United States, 337 F.2d 699 (9th Cir. 1964) (reduced charges against defendant's wife), cert. denied, 381 U.S. 953, 14 L. Ed. 2d 726, 85 S. Ct. 1811 (1965); Tenth Circuit, Mosier v. Murphy, 790 F.2d 62, 66 (10th Cir.) (charges dismissed against defendant's wife and mother-in-law), cert. denied, 479 U.S. 988, 93 L. Ed. 2d 584, 107 S. Ct. 582 (1986); Eleventh Circuit, Martin v. Kemp, 760 F.2d 1244, 1248 (11th Cir. 1985) (threat to prosecute defendant's wife); see also ALI Model Code of Pre-Arraignment Procedure § 350.3 commentary at 616-17 (1975) (noting unanimous rejection by ALI Council of recommendation to forbid plea bargains containing third-party benefits); cf. United States v. Castello, 724 F.2d 813 (9th Cir.) (prosecutor conditions plea agreement on guilty pleas from all defendants), cert. denied, 467 U.S. 1254, 82 L. Ed. 2d 844, 104 S. Ct. 3540 (1984). Where the plea is entered after the prosecutor threatens prosecution of a third party, courts have afforded the defendant an opportunity to show that probable cause for the prosecution was lacking when the threat was made. Martin v. Kemp, 760 F.2d at 1248; United States v. Nuckols, 606 F.2d 566, 569-70 (5th Cir. 1979). 

We agree with this unanimity of view. The question in every case resolved by a guilty plea is whether the plea is voluntary. "Voluntary" for purposes of entering a lawful plea to a criminal charge has never meant the absence of benefits influencing the defendant to plead. Since a defendant's plea is not rendered involuntary because he enters it to save himself many years in prison, it is difficult to see why the law should not permit the defendant to negotiate a plea that confers a similar benefit on others. Some courts have expressed the view that the prospect of a benefit to a third party poses a greater risk of undue pressure upon a defendant than the chance to secure a reduced sentence for himself, see United States v. Nuckols, 606 F.2d at 569; United States v. Tursi, 576 F.2d 396, 398 (1st Cir. 1978), though this view has been doubted, see Allyn v. Commissioner of Correctional Services, 708 F. Supp. 592, 594 n. 3 (S.D.N.Y. 1989). 

A plea negotiation that includes a benefit to a third person can place pressure on a defendant in two respects. The defendant feels the weight of his own concern to have the benefit conferred and also endures the entreaty of the third person who is anxious to receive the benefit. Such pressures can arise in at least three contexts: (a) the defendant can offer to plead if the benefit is conferred,  n2 (b) the prosecutor can inform the defendant that the benefit will be conferred if the defendant pleads, and (c) the prosecutor can inform the third party that the benefit will be conferred if the defendant pleads. The first context might seem least likely to create undue pressure for the defendant, since the third-party arrangement originates with him. The third context might seem likely to pose the greatest likelihood of pressure, since the third party's urging will weigh with the defendant in addition to the defendant's desire to help the third party. In most cases, however, the extent of the pressure arising from the prospect of conferring a benefit on a third party will probably be most significantly affected, not by the way the offer arose, but by the extent of the benefit to be conferred and the relationship of the defendant to the third party.
   n2 Of the reported federal appellate decisions concerning plea agreements benefitting third parties, the proposal for the benefit originated with the defendant only in United States v. Usher, 703 F.2d at 958.  

The inclusion of a third-party benefit in a plea bargain is simply one factor for a district court to weigh in making the overall determination whether the plea is voluntarily entered. See United States v. Daniels, 821 F.2d 76, 80 (1st Cir. 1987). In this case, Judge Goettel conducted a thorough Rule 11 allocution. Moreover, the facts concerning the involvement of defendant's wife in the criminal activity and the  extent of her benefit were fully aired before the District Court when she and her husband entered their pleas at the same hearing. Both were ably represented by separate counsel. The record supports the finding that Marquez's plea was voluntary, and there is no basis for disturbing the District Court's decision denying the motion to withdraw the plea.