Must a Defendant Prove Innocence of Uncharged Crime to Reverse Wrongful Conviction? (7/26/13)

In United States v. Caso, ___ F.3d ___, 2013 U.S. App. LEXIS 14624 (D.C. Cir. 2013), here, the Court dramatically opens its opinion as follows:

Russell James Caso, Jr. is innocent of the crime for which he was charged and convicted. The government does not dispute the point. Nonetheless, Caso was denied an opportunity to collaterally attack his conviction and sentence because he could not demonstrate that he is also innocent of a separate and uncharged offense that has a lower sentencing range under the United States Sentencing Guidelines. Because Caso was not required to make such a showing, we reverse the order denying his motion to vacate his conviction and sentence.

Now, that got my attention and perhaps yours as well.  What is the concept that a defendant wrongfully convicted of one crime must prove -- "demonstrate" -- that he is innocent of another uncharged crime in order to secure reversal of the conviction of the crime for which he is innocent?

The defendant previously served on a Congressman's staff.  He was compromised by a nonprofit consulting firm's engagement of his wife to perform editing services.  She appeared to do de minimis work and was paid $19,000 which did not appear commensurate with the work performed.  The defendant did not include the payment on the disclosure form he was required to file as a congressional staff person.  The defendant was charged with "conspiracy to commit honest-services wire fraud, in violation of 18 U.S.C. §§ 371, 1343, and 1346."  The defendant pled to that charge.  The defendant was sentenced to three years probation and 170 days home confinement.  The defendant apparently did not appeal, perhaps because his plea agreement waived appeal.

Shortly after Caso was sentenced, the Supreme Court handed down Skilling v. United States, 130 S. Ct. 2896 (2010), a decision that substantially limited the permissible reach of 18 U.S.C. § 1346, the honest-services fraud statute. Prior to Skilling, the government had used that statute to prosecute public officials who failed to disclose conflicts of interest, on the theory that such nondisclosure constituted a "scheme or artifice to deprive another of the intangible right of honest services," 18 U.S.C. § 1346. See Skilling, 130 S. Ct. at 2932-33. In Skilling, however, the Court interpreted § 1346 more narrowly. In an effort to avoid a "vagueness shoal," id. at 2907, the Court held that § 1346 "proscribe[s] bribes and kickbacks -- and nothing more." Id. at 2932.

The Skilling opinion is here.

In response to the Skilling holding, the defendant brought a 28 USC 2255 proceeding "to vacate and set aside his conviction and sentence on the ground that 'the conduct to which he admitted in the statement of the offense -- which did not stipulate [his] receipt of a bribe or a kickback -- does not constitute an offense under § 1346 following Skilling.'"  The district court denied the defendant relief.  The district court held that, since the grounds for relief had not been raised in the first proceeding, the defendant "had presumptively defaulted his claim for collateral relief."  That presumption is not conclusive, so the district court looked to Bousley v. United States, 523 U.S. 614 (1998) for the conditions in which the presumption could be overcome.  The district court concluded that Bousley required "the defendant [to] first demonstrate" one of two conditions: (i) 'cause' for the default and 'actual prejudice' resulting therefrom, or (ii) that the defendant is 'actually innocent.'"  The defendant relied only on the second condition -- that he is actually innocent.  So, what does actually innocent mean?  The district court said this required two showings:  (i) it is more likely than not that, in light of all the evidence, no reasonable juror would have convicted him; and (ii) "In cases where the Government has forgone more serious charges in the course of plea bargaining, petitioner's showing of actual innocence must also extend to those charges."   Skilling established that the defendant met the first condition.  As to the second condition, the district court found that, in the plea agreement, the Government had forgone an 18 USC 1001 (false statements) charge; that that false statement charge was equally serious charge to the count of conviction, and that the admissions in defendant's plea agreement established that he could not show his innocence of that charge.

On appeal, defendant raised three arguments.  The Court of Appeals discusses the three arguments, but finally decides only one because that was sufficient to give the defendant the relief he sought.  All of the arguments are interesting, so I summarize the Court's discussion of all of them.

First, the defendant argued that the other more serious charge to under Bousley must be a charged offense that is formally dropped after plea.  The Court ultimately found that the relevant language of Bousley was ambiguous on that subject, so it  did not decide the issue.  But, in its discussion, the Court noted that "There is nothing strained about concluding that a prosecutor can forgo 'charges' either by dropping them after an indictment or by never bringing them at all. Notably, Bousley referenced charges forgone by the prosecution 'in the course of plea bargaining,' id., a process that may either follow or precede the issuance of an indictment (or information)."  This suggests that the Court, on a clean slate, might have rejected this argument.

Second, the defendant argued that the uncharged offense, false statements, is not more serious than the honest services charge of conviction.  The issue is how you measure seriousness and whether, when the Supreme Court said "more serious" it really meant "equally or more serious."  In Caso, both charges were 5-year charges.  If the maximum incarceration is the measure of "more serious," then the uncharged false statement crime is not more serious; it is at best equally serious.  Bousley's language requires more serious.  Despite Bousley's language, the Court of Appeals decided Bousley generated ambiguity on this issue.  A close reading of Bousley's application of the rule suggested that perhaps equally serious might suffice.  Nevertheless the Court of Appeals decided to forgo resolving this issue, because it ruled for the defendant on the third issue.

Third, in testing whether the foregone charge is equally or more serious, the Court rejected a simplistic application of the maximum sentence provided in the statute.  The dynamics of the plea bargaining process is not determinative of the equal or more serious issue.  Rather, it is the Sentencing Guidelines that would have applied that determines that issue.  Under the Guidelines, the defendant's sentencing range for the uncharged false statement offense would have been less than for the wrongfully convicted offense.  Here is the Court's reasoning (some footnotes omitted), which I think is helpful, particularly to students, for its discussion of the plea bargaining process and the Sentencing Guidelines:

Bousley did not tell us which measure of seriousness to employ in determining which offenses are "more serious." Nor did it explain the rationale for requiring habeas petitioners to demonstrate their innocence of "more serious" offenses. Although intuiting the Court's unexpressed rationale is a tricky business, we must attempt to do so because determining which measure of seriousness most closely satisfies that rationale is the best way to decide which measure to apply. 

1. The parties appear to believe that the rationale for the "more serious offense" requirement rests on the dynamics of plea bargaining -- i.e., that it represents an effort to recreate the bargaining outcome that the parties would have reached absent the invalid charge. It is not clear, however, how the "more serious" requirement meshes with those dynamics. The government suggests that, in a case in which it has forgone a more serious charge, a showing of innocence regarding that charge is required because it would have demanded a plea to the more serious charge had it known the charge of conviction was invalid. That may well be true. But surely the government would have made the same demand if the only other charge had been a less serious one, and yet the Bousley rule does not encompass such a charge. Moreover, even if the government had demanded a plea to the more serious charge, it is by no means clear that the defendant would have acceded to that demand. It is possible that he would have agreed to plead rather than go to trial, in the hope of receiving leniency from the court. But it is also possible that he would have chosen to take his chances at trial rather than plead to a more serious charge carrying the risk of a higher sentence. n4 In short, the dynamics of plea bargaining are complicated -- even more complicated if we factor in offenses of equal severity -- and it is not at all clear that the "more serious" rule goes very far toward recreating the bargaining outcome the parties would likely have reached had they known the charge of conviction would be invalidated. n5
   n4 There is similar uncertainty regarding the scenario in which the remaining charge carries a lower sentence. It is possible that a defendant who agreed to plead to a more serious charge would have pled to a less serious charge if he had known that the offense of conviction was invalid. But it is also possible that, with his exposure limited to a lower sentence, the defendant would have preferred to take his chances at trial.
   n5 See generally Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev. 2463, 2464-67 (2004) (noting that a host of structural distortions, including imperfect heuristics, psychological biases, lawyering problems, information deficits, and risk preferences all affect plea bargaining decisions). 

Another, possibly more plausible, rationale relates to the equities of plea bargaining rather than to its dynamics. The Court may have regarded it as fair that, if the uncharged offense is more serious than the offense of conviction, the lesser penalty for the latter should stand unless the defendant can show that he is innocent of both offenses. This ensures, the Seventh Circuit has said, that the defendant does not receive an unjustified "windfall." Lewis, 329 F.3d at 936.6 But if the only uncharged offense is less serious than the offense of conviction, it would plainly be unfair to force the defendant to suffer the greater penalty associated with a crime of which he can demonstrate his innocence. Whether or not the defendant is guilty of the less serious uncharged offense, there is no justification for making him bear a greater penalty for a crime that he did not commit. To put the point more sharply: we should not require a person to spend 30 years in prison on an erroneous murder conviction because he was guilty of an uncharged theft offense that would carry a sentence of one year. 

2. In the end, it does not matter whether the rationale for the Bousley rule is rooted in the dynamics of the plea bargaining process or in its equities (or in both). Either rationale leads to the conclusion that the appropriate measure of the seriousness of an offense must be derived from the Sentencing Guidelines rather than the statutory maximum penalty. 

There is no doubt that, in deciding whether to plead and what to plead to, defendants rely primarily on their expected Guidelines exposure rather than on the statutory maximum for the offense. See generally Peugh v. United States, 131 S. Ct. 2072, 2085 (2013) (plurality opinion) (explaining that a defendant who is contemplating a plea "will be aware that the [Guidelines] range is intended to, and usually does, exert controlling influence on the sentence that the court will impose."). n7 The United States Attorneys' Manual makes clear that the government makes the same calculation in deciding the charges upon which it will insist. See U.S. Attorneys' Manual § 9-27.300(A) (instructing United States Attorneys to charge "the most serious offense that is consistent with the nature of the defendant's conduct," and explaining that "[t]he 'most serious' offense is generally that which yields the highest range under the sentencing guidelines").
   n7 Indeed, our cases have made clear that a defense counsel's conduct may be constitutionally deficient if counsel fails to advise his client of the correct Guidelines range he would face upon taking a plea. See United States v. Hanson, 339 F.3d 983, 990 (D.C. Cir. 2003); United States v. Booze, 293 F.3d 516, 518 (D.C. Cir. 2002); United States v. McCoy, 215 F.3d 102, 108 (D.C. Cir. 2000); United States v. Gaviria, 116 F.3d 1498, 1512 (D.C. Cir. 1997); cf. U.S.S.G. § 6B1.2 cmt. ("The Commission encourages the prosecuting attorney prior to the entry of a plea of guilty . . . to disclose to the defendant the facts and circumstances . . . that are relevant to the application of the sentencing guidelines."). 

This reliance on the Guidelines is plainly logical. Although the government correctly notes that the Guidelines are no longer binding on district courts, see United States v. Booker, 543 U.S. 220 (2005), the Supreme Court reminded us just this Term that they nonetheless remain the "lodestone of sentencing." Peugh, 131 S. Ct. at 2084 (majority opinion). "Even after Booker . . ., district courts have in the vast majority of cases imposed either within-Guidelines sentences or sentences that depart downward from the Guidelines on the Government's motion. In less than one-fifth of cases since 2007 have district courts imposed above-or below-Guidelines sentences absent a Government motion." Id. Nor is this mere happenstance. Guidelines calculations are still "the starting point and the initial benchmark" for every sentencing decision, and "district courts must begin their analysis with the Guidelines and remain cognizant of them throughout the sentencing process." Id. at 2080, 2083 (quoting Gall v. United States, 552 U.S. 38, 49, 50 n.6); see United States v. Turner, 548 F.3d 1094, 1099-1100 (D.C. Cir. 2008).8 "These requirements mean that '[i]n the usual sentencing, . . . the judge will use the Guidelines range as the starting point in the analysis and impose a sentence within the range.'" Peugh, 131 S. Ct. at 2083 (quoting Freeman v. United States, 131 S. Ct. 2685, 2692 (2011)). Accordingly, in deciding what charge to demand or to accept, the parties must necessarily look to the Guidelines. 

Looking to the statutory maxima, by contrast, would provide the parties with little useful information. The statutory ranges are far broader than the Guidelines ranges. Compare 18 U.S.C. § 1001 (authorizing a sentence between 0 and 5 years absent special circumstances), with U.S.S.G. § 2B1.1 (generating Guidelines ranges as narrow as six months). And courts rarely sentence defendants to the statutory maxima. See U.S. Sentencing Comm'n, SPSS Datafile for Fiscal Year 2012, available at http://www.ussc.gov/Research_and_Statistics/Datafiles/index.cfm (data set indicating that approximately 1% of offenders sentenced in fiscal year 2012 received the applicable statutory maximum). 

As we discuss below, Caso's Sentencing Guidelines range for both the § 1001 and the § 371 offense are well below the statutory maximum for each offense. Hence, if the rationale of the Bousley rule is to recreate the bargaining outcome that the parties would likely have reached absent an invalid charge, we must appraise any forgone charges just as the parties would have -- by reference to the Guidelines. 

An equity rationale likewise requires resort to the Guidelines. On that rationale, a defendant should not be absolved of his conviction and sentence if he cannot show he is innocent of an uncharged crime that carries an even longer sentence. At the same time, a defendant should not be required to serve a longer sentence associated with a crime he did not commit, just because he cannot demonstrate his innocence of another crime that would have yielded a shorter sentence. Once again, knowing the statutory maxima is largely irrelevant to this analysis. The operative question is how severe a sentence the forgone charge would likely have yielded. Only the Guidelines can generate a reasonable answer to that question. 

The sole argument the government makes for using statutory maxima as the measure of seriousness for Bousley purposes is that the maxima reflect Congress' judgment regarding the relative seriousness of offenses. It is not even clear that this is correct as a matter of congressional understanding, as it was Congress that authorized the Sentencing Guidelines and mandated that district courts consider them in imposing sentences. See 28 U.S.C. § 994; 18 U.S.C. § 3553(a)(4). But even if the statutory maxima do suggest Congress' view of the relative seriousness of offenses, a focus on Congress' perception responds to neither of the possible rationales for the Bousley rule: it is irrelevant both to the dynamics of plea bargaining and to its equities. And the government proffers no reason why the Bousley Court would have wanted congressional perceptions to govern a defendant's right to have his habeas claim heard if he was convicted of a crime of which he is actually innocent. 

In sum, we conclude that the appropriate measure of the relative seriousness of offenses for purposes of the Bousley rule must be derived from the Sentencing Guidelines rather than the statutory maxima. Accord United States v. Halter, 217 F.3d 551, 553 (8th Cir. 2000); United States v. Lloyd, 188 F.3d 184, 189 n.13 (3d Cir. 1999).

After concluding the the Sentencing Guidelines were the appropriate metric, the Court of Appeals then did the Sentencing Guideline calculations and determined that the uncharged false statement crime was not the more serious crime.  Defendant wins!