Fifth Circuit Rejects Attempt on Direct Appeal to Withdraw Guilty Plea in False Claims Conspiracy Case (1/24/15)

In United States v. Harrison, ___ F.3d ___, 2015 U.S. App. LEXIS 966 (5th Cir. 2015), here, the court provided the following introduction which sets up what I want to discuss in this blog (footnotes omitted):

A grand jury charged Harrison in a multi-count, multi-defendantn1 indictment with conspiracy to defraud the Internal Revenue Service ("IRS") by filing false claims and with two counts of filing a false claim. Three days before his trial was set to begin, Harrison signed a plea agreement in which he agreed to plead guilty to the conspiracy charge. In exchange, the government agreed to dismiss the remaining charges. Pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), the parties agreed to a sentence of eighty-four months, which was twenty-four months below the statutory minimum as calculated based on Harrison's offense level and criminal history category. Harrison also agreed to waive his right to appeal his conviction and sentence, but he expressly reserved the right to challenge the voluntariness of his guilty plea or waiver of appeal and the right to bring a claim of ineffective assistance of counsel.

The conspiracy count was under 18 USC 286, here, which provides a 10 year maximum sentence; as stated, the sentence shall be "not more than ten years.".  By contrast, the general conspiracy charge under 18 USC 371, here, employed in many tax cases has a 5 year maximum  sentence.  The defendant pled to the conspiracy count, with the Government dismissing the remaining courts.  The court states that the agreed upon sentence was "below the statutory minimum."  There is no statutory minimum.  The court apparently refers to the lower end of the Guidelines range calculated for the defendant.  The purpose of the FRCrP 11(c)(1)(C), here, was to lock in that lower than Guidelines sentence.

As usual with such guilty pleas, the defendant agreed to the key facts, including his participation in a conspiracy to file false claims.  After a proper colloquy and presentation of agreed facts supporting the plea, the Court accepted the plea and sentenced Harrison to the agreed eighty-four months.  After the plea, but before the PSR was prepared, Harrison moved to withdraw his plea, claiming that it was not voluntary.  Harrison's attorneys moved to withdraw based on irreconcilable differences.

The district court denied the motion to withdraw the plea.  Harrison moved to reconsider.  The district court denied that motion.  At sentencing, Harrison again asked to withdraw the plea. He requested an evidentiary hearing (footnotes omitted):

so that he could present evidence supporting his actual innocence, "to include but not limited to codefendant statements affirming that [he] did not conspire nor participate in the [scheme]." He claimed that he pled guilty under duress and coercion because the prosecutor would agree to favorable eighty-four-month sentences for each defendant only if "all siblings [pled] guilty," and he felt pressured to accept the plea because his brothers otherwise faced up to forty years of imprisonment. Finally, he argued that he received ineffective assistance of counsel when counsel advised him to enter the plea agreement despite his assertion of innocence because counsel erroneously suggested that he would be prejudiced by a prior sexual assault conviction and because counsel did not investigate or discover exonerating evidence, "for example, the true identi[ty] of Chris Smith ."

The district court again denied the request to withdraw and denied the request for a hearing.  The district court was obviously peeved that Harrison would admit guilt in the plea colloquy and the agreed facts supporting the plea and now reverse, in effect saying that he lied in making the original guilty plea. (That is a phenomenon present in all guilty pleas with a proper colloquy.)  As to the argument of ineffective assistance of counsel, the Court declined to address the issue (it is normally handled in a post-sentencing 28 USC 2255, here, proceeding), but did give the following signal:

 . . [Y]ou will be entitled to raise an ineffective assistance of counsel claim. I do not know what happened here. I know [your attorney]. He comes into this court regularly. He is one of the best lawyers in town, and you just have to understand and face that.

The Fifth Circuit first addressed the issue of whether the appeal waiver in the plea precluded consideration of Harrison's appeal of the denial of his right to withdraw the guilty plea and hold an evidentiary hearing.  Applying contract principles, the Court said that the appeal waiver permitted the appeal.

Do Prosecutors Have Too Much Power? (8/20/12)

The New York Times today has a Room for Debate feature where prominent scholers debate whether prosecutors have too much power.  Do Prosecutors Have Too Much Power? (NYT Room for Debate 8/19/12), here  The debate subject is introduced as follows:

A U.S. district judge in Denver recently rejected a plea bargain in a child pornography case because the defendant had agreed to waive his right to appeal. The judge said such a deal would undermine the purpose of appellate courts. (He later accepted a plea bargain without that stipulation.) 

Legal observers — including the editorial board of The New York Times — focused on the judge’s concern as a sign that plea bargains have gotten out of control and in the process given prosecutors too much power. When one party decides whether to bring charges, what charges to bring and whether to offer a plea bargain, is the justice system lacking checks and balances?

Here are blurbs for the "debaters" offerings:

Prosecutors’ Overreaching Goes Unchecked
ANGELA J. DAVIS, AUTHOR, "ARBITRARY JUSTICE"
Unchecked power in the hands of prosecutors is as much a threat to our democracy as it is with any other government official, if not more. 

Judgment Requires Power and Vice Versa
SAMUEL W. BUELL, FORMER FEDERAL PROSECUTOR
Proving sophisticated crimes requires far-reaching statutes and the leeway to use grand juries, charges and agreements for testimony. 

The Problem With Mandatory Minimums
RACHEL E. BARKOW, NEW YORK UNIVERSITY
Far from eliminating disparity by curbing judicial discretion, mandatory minimums simply shift power to prosecutors. 

The Right to Appeal Is an Issue of Fairness
NANCY GERTNER, FORMER JUDGE
You can’t bargain away your right to counsel; you shouldn’t be allowed to bargain away your right to appeal. 

Limit Control Over Charges and Sentencing
PAUL CASSELL, FORMER PROSECUTOR AND JUDGE
We can and should take modest steps to ensure that the power prosecutors exercise does not encroach on the functions of the other branches

The uses and abuses of the prosecutors' power -- often called prosecutors' discretion -- is a constant feature in federal practice generally and federal tax crimes / white collar  practice specifically.  Focusing on the tax crimes area, the various crimes that can be marshaled to support tax charges are many and overlapping, thus permitting great power / flexibility in charging decisions.  While, in  some respects, the Sentencing Guidelines and Booker discretion take away much of the potential for abuse from discretion as to charges, they do leave untouched broad areas of the prosecutors' discretion / powers that can be brought to bear.  The discussion among these debaters is highly recommended.

Appeals Waivers as Problems and Not (Always) Solutions (7/18/12; Updated 8/23/12)

In United States v. Ernst (4th Cir. No. 12-4012 (7/16/12), here, an unpublished decision, the defendant pled guilty to violations of tax obstruction (§ 7212(a)) and failure to file (§ 7203).  The plea agreement had a broadly worded appeals waiver.  On appeal, the Fourth Circuit affirmed an appeals waiver, but remanded for factual findings regarding the defendant's ability to pay the substantial restitution ($4,490,966.08) and fashioning an appropriate payment schedule.

Although Ernst is an unpublished opinion, it should remind practitioners of certain key points discussed in the opinion:

1.  Appeals waivers will be sustained.  While acknowledging that an appeals waiver will not be sustained if "if to do so would result in a miscarriage of justice," Ernst was not such a case.  This is what is generally a routine acceptance of an appeals waiver.  I provide further discussion of appeals waivers below.

2.  To the extent that defendant complains of ineffective assistance of counsel, these claims should be raised in a 28 USC § 2255 proceeding rather than on direct appeal.

3.  The defendant knowingly and intelligently entered the plea agreement including the appeals waiver despite his alleged mental condition.

4.  Restitution was properly ordered pursuant to the defendant's agreement in the plea agreement to pay restitution.  In this regard, readers will recall that, for Title 26 tax crimes, restitution is not permitted unless the defendant agrees to restitution.  See 18 USC §3663(a)(3) ("The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.").

5.  Remand is required to making the factual findings to support a payment schedule.