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In United States v. Ernst (4th Cir. No. 12-4012 (7/16/12), here, an unpublished decision, the defendant pled guilty to violations of tax obstruction (§ 7212(a)) and failure to file (§ 7203).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Although Ernst is an unpublished opinion, it should remind practitioners of certain key points discussed in the opinion: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.

I think it useful now to discuss a significant recent development regarding appeals waivers.  In a much discussed recent opinion in a nontax case, Judge Kane of the District of Colorado refused a plea agreement because of concerns regarding the appeals waiver.  United States v. Vanderwerff, 2012 U.S. Dist. LEXIS 89812 (D CO 2012), here; see also Doug Berman's discussion of the opinion, Appeal waiver prompts federal judge to reject child porn plea deal (Sentencing Law and Policy Blog 7/9/12), here.  Bottom-line, Judge Kane questions the role of appeals waivers in a post-Booker sentencing world where pleas are ubiquitous.  Other courts, such as the Fourth Circuit in Ernst discussed above, routinely accept appeals waivers without much further thought.  

Judge Kane begins the opinion as follows:

The prosecution of Defendant Timothy John Vanderwerff has been characteristic of modern criminal justice. Shortly after the government filed a three-count indictment charging Mr. Vanderwerff with receiving and possessing child pornography shipped or transmitted in a means affecting interstate and foreign commerce, the parties reached a tentative disposition and requested a change of plea hearing. In anticipation of that hearing, they submitted a proposed plea agreement whereby Mr. Vanderwerff agreed to plead guilty to Count 2 of the indictment in exchange for the dismissal of Counts 1 and 3. The proposed plea agreement contained a waiver of Mr. Vanderwerff's statutory right to appeal any matter in connection with his prosecution.

In his discussion, Judge Kane repeats the points in the Supreme Court's recent decision in Lafler v. Cooper, ___ U.S. ___ 132 S. Ct. 1376, 1388 (2012) that the federal criminal system is a system of plea agreements and not trials.  And, within the pervasive subset of plea agreements is the ubiquitous -- not universal, but certain frequent -- waiver of appeals.  Judge Kane reasons:

The pervasive waiver of individual rights has fundamentally altered the function of the courts. The act of judging, once central to the determination of guilt or innocence, has been shunted to the margins. A defendant's "guilt" is, more often than not, preordained by the grand jury's indictment. To the extent judges actually participate in the criminal process, the push is to relegate us to approving or disapproving proposed plea bargains and, unless the plea contains a negotiated sentence, determining an appropriate sentence. As characterized by Justice Scalia, the modern plea bargaining regime reflects "the sporting-chance theory of criminal law, in which the State functions like a conscientious casino-operator, giving each player a fair chance to beat the house, that is, to serve less time than the law says he deserves." Lafler, 132 S. Ct. at 1398 (Scalia, J., dissenting). 

Prioritizing efficiency at the expense of the individual exercise of constitutional rights applies to the guilty and the innocent alike, and sacrificing constitutional rights on the altar of efficiency is of dubious legality. As noted by Justice Scalia, plea bargaining "presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense . . . ." Id. at 1397 (Scalia, J. dissenting). A rational defendant, even if innocent, may plead guilty to a lesser offense in order to minimize the risk of prosecution. Each plea bargain, therefore, and its concomitant prioritization of efficiency at the expense of the individual exercise of constitutional rights or the exercise of judicial responsibility, requires close scrutiny. 

Appellate Waivers 

In the wake of the Supreme Court's holding that the U.S. Sentencing Guidelines are merely advisory, not mandatory, see United States v. Booker, 543 U.S. 220, 247, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), no circuit court has revisited the enforceability of appellate waivers. Sentencing, post-Booker, requires a trial court to consider context and to apply criteria rather than perform a mechanical or clerical entry of a matrixed judgment. See United States v. Villaneuva-Calderon, 1:12-cr-235, Order Denying Unopposed Motion to Enter into Plea Agreement Containing an Appeal Waiver (doc. 14), 2012 U.S. Dist. LEXIS 89820 (D. Colo. June 28, 2012). Ethical and moral values inevitably infuse the decision-making process, but they must be justified by being drawn from governing texts in statutes and judicial opinions and established principles of fairness generally accepted by the community affected by the criminal conduct, i.e., the fundamental values widely accepted by society and identifiable as such. 

The responsibility of appellate review is to decide how well the sentencing judge has established the sentence within this described discipline. That is fundamentally dissimilar to the pre-Booker function of determining whether an arithmetic calculation has been executed correctly. Rather, reviewing sentences under an abuse of discretion standard is a complex inquiry meant to assure that the judicial administration of justice is relevant to the values and expectations of society. 

Indiscriminate acceptance of appellate waivers undermines the ability of appellate courts to ensure the constitutional validity of convictions and to maintain consistency and reasonableness in sentencing decisions. Indeed, appellate waivers would have insulated from review the underlying convictions in some of the most notable criminal decisions in the Supreme Court's recent history. See Nancy J. King and Michael E. O'Neill, Appeal Waivers and the Future of Sentencing Policy, 55 Duke L. J. 209, 249 (2005) (noting that waivers would have precluded appellate review in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004); and United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)). Thus, such waivers should only be included where they are justified by the facts and circumstances of a particular case.

Judge Kane offers a thoughtful consideration of the problem with appeals waivers.  He obviously is not resolving the problem, but is inviting discussion.

Update 8/23/12:Timothy Vanderwerff pled to a worse deal (in terms of years) but without the appeals waiver.  See Douglas Berman, New plea deal in place for child porn defendant after federal judge rejected prior deal with appeal waiver (Sentencing Law and Policy Blog 8/21/12), here.

See also, Lawrence S. Goldman, Government Takes Harsher Position After Judge Rejects Plea Bargain Because of Appellate Waiver (White Collar Crime Prof Blog 8/23/12), here, commenting:

One possible lesson from this case is that well-meaning judges, reacting to the government's increasing efforts to expand the terms of plea agreements to limit a defendant's ability to appeal and appellate courts' ability to review, might actually do harm to the individual defendant before them in rejecting a bargained-for agreement.  Another possible lesson is that the government does not take kindly to judges interfering with its de facto power to set plea bargaining parameters and may demonstrate its displeasure by treating even acquiescent defendants more harshly when the judge rejects a plea deal it has offered.