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August 21, 2008

"The government’s argument that it honored its promises reeks of the lamp."

The title of this post is a sentence from an interesting Tenth Circuit opinion issued yesterday in US v. Villa-Vazquez, No. 07-3160 (10th Cir. Aug. 20, 2008) (available here).  The Tenth Circuit in this case finds that federal prosecutors "blatantly violated its promises" under a plea agreement with the defendant.  And, in addition to using this old-world phrase to describe the government's efforts to defend its behavior, the panel decision has these harsh words in the course of explaining its decision to remand for resentencing before a new judge:

Second, we recognize that resentencing before a new judge cannot truly make Mr. Villa-Vazquez whole. The new judge cannot be entirely insulated from the government’s misconduct. This reality makes that misconduct all the more reprehensible.

Yowsa, this is some pretty strong language to rebuke the actions of federal prosecutors in a criminal case.  After reading the opinion, of course, readers can reach their own views about what adjectives were justified in this case.

August 21, 2008 at 01:16 PM | Permalink

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I think the 10th Circuit was ticked b/c they see this kind of thing from this particular U.S. Attorney's office a lot. I've heard a 10th Cir. judge (a conservative one) ask a Kansas AUSA in oral argument something to the effect of: "Are the lawyers in your office trained to act dishonorably?"

Posted by: 10th Cir. appellate atty | Aug 21, 2008 2:16:52 PM

I didn't find the adjectives irrationally out of line, though I doubt that I would have used them myself. I was more puzzled by the disconnect between the court's opinion and it's ultimate resolution. If the court truly believes that the government's behavior was reprehensible, how is merely sending the case back for sentencing before another judge penalizing the government in any way? Penalizing the government for misconduct is in the public interest. I would have very much liked to seen a more through discussion of the "public interest" that prevented them from remanding for a sentence at the lower end of the guideline range. Not only would such a sentence have gone a long way towards making the dependent whole, it would have penalized the government in some way for it's misconduct.

The judges write that accepting the government's position would amount to allowing the government to change it's mind while the defendant takes his lumps. But this is what their final remand does anyway, at least for this defendant. There is a lot of huffing and puffing in this opinion, but it the end the defendant is stuck right back where he was before and the governement is no worse off. I find that unjustified.

Posted by: Daniel | Aug 21, 2008 2:23:03 PM

10th Cir. Atty.

Well, that makes some sense but then enough with the jawboning! Slap 'em around with a few criminals getting off and that will get their attention. The public does not like criminals going free because of government misconduct.

Posted by: Daniel | Aug 21, 2008 2:28:16 PM

Daniel: I agree; courts should more often walk the walk and not just talk the talk. And now that I've read the whole opinion (and to respond to Prof. Berman's question), yes, the 10th Circuit was 100% justified in using the harsh language it did (separate and apart from its previous observations of dishonorable conduct on the part of this U.S. Attorney's office).

Posted by: 10th Cir. app. atty | Aug 21, 2008 2:55:41 PM

Daniel: I agree; courts should more often walk the walk and not just talk the talk. And now that I've read the whole opinion (and to respond to Prof. Berman's question), yes, the 10th Circuit was 100% justified in using the harsh language it did (separate and apart from its previous observations of dishonorable conduct on the part of this U.S. Attorney's office).

Posted by: 10th Cir. app. atty | Aug 21, 2008 2:58:06 PM

The panel's language is absolutely justified, and it should have remanded for resentencing at the bottom of the applicable GL range. As such, I agree with Daniel that the opinion is lacking due to its lack of explanation on why "the public interest and the ends of justice" do not require the new judge to impose a bottom of GL sentence. This is the only way the defendant is made whole.

Posted by: DEJ | Aug 21, 2008 3:32:19 PM

Interesting note: In a case filed the same day and by the same appellate judge, the 10th Cir. held that the AUSA did not breach its plea agreement when it advocated for relevant conduct enhancements, even though the government agreed to dismiss the Count that involved the conduct. http://www.ck10.uscourts.gov/opinions/07/07-2233.pdf

Posted by: DEJ | Aug 21, 2008 3:43:04 PM

What the 10th Circuit failed to do, IMHO, was to call out the AUSA by name in the opinion as responsible for the reprehensible conduct of the government, perhaps with a forward of the opinion to the appropriate ethical body. This, in practice, can be quite a meaningful punishment to an AUSA, without granting any undeserved remedy to the defendant.

The only legitimate reason for refraining from doing so, and maybe it was present here, was a belief that the AUSA was facing improper influence from the U.S. Attorney for Kanasas (a belief possibly justified by the vaccilation in the government's position in this case).

Posted by: ohwilleke | Aug 22, 2008 5:54:16 PM

The reference, by the way, appears to be to Eramus, De conscribendis epistolis (1522 C.E.), and appears at page 19-20 in the "Collected Works of Erasmus," 25-26, Toronto 1985. The treatise on letter writing argued against excessive formalism, in favor of logic.

http://64.233.167.104/search?q=cache:CESVvkJ3i2gJ:www.georgehinge.com/erasm.html+%22reeks+of+the+lamp%22&hl=en&ct=clnk&cd=8&gl=us

Posted by: ohwilleke | Aug 22, 2008 6:15:47 PM

Found a more recent (than Erasmus, at least) "lamp" reference: "The arguments that compulsory production involves and implicit testimonial disclosure...reeks of the oil lamp." - Henry J. Friendly, "Is Innocence Irrelevant? Collateral Attack on Criminal Judgments," 38 U of Chicago L Rev no 1 (autumn 1970), quoted in Alan Dershowitz, "Is There A Right to Remain Silent"? at 142 (Oxford 2008).

Posted by: cold lampin | Aug 31, 2008 2:24:57 AM

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