March 25, 2009
The importance of being earnest (and timely) when complaining of a breached plea
With apologies to Oscar Wilde, I cannot help but think of his classic play when reviewing the Supreme Court's work today in Puckett. The fact that Puckett's case even made it to the Supreme Court was itself a comedy of errors: a poorly-written plea agreement; misbehavior by a defendant while awaiting sentencing; a failure by defense counsel to object to a possibly breached plea; a willingness by the government to concede a plea breach that was iffy, at best. Add all this up, and one line from Justice Scalia's opinion for the Court captures why few should be surprised that Puckett did not prevail: "Given that [Puckett] obviously did not cease his life of crime, receipt of a sentencing reduction for acceptance of responsibility would have been so ludicrous as itself to compromise the public reputation of judicial proceedings."
Of course, Justices Souter and Stevens dissented and so obviously did not think it would be so ludicrous for the Court to take a different route in Puckett. But even the first line of Justice Souter's opinion suggests he had to hold his nose while seeking to do better by defendants: "Petitioner’s situation does not excite sympathy, but the Court’s holding will stand for a rule in circumstances less peculiar than those here."
Beyond serving as a lesson in how bad criminal defendants make for bad criminal defense law, the Puckett ruling also serves as an important reminder to all counsel to get objections raised and on the record or risk the challenges of plain-error review. And if Puckett has any long-term importance, it will probably be in terms of making plain-error standards even harder for defendants to satisfy.
March 25, 2009 at 06:39 PM | Permalink
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I'm wondering if this case may have some broader reach. Scalia specifically used the term "sandbag". Could the rationale of preventing sandbagging be applied to other areas? Now, we all know that the capital defense bar never does that, don't we . . . .
Posted by: federalist | Mar 25, 2009 6:56:28 PM
Go head-to-head with the court just before your client is sentenced... "just for the record" then we'll talk about 'sandbagging".
Posted by: g.lanker | Mar 25, 2009 7:19:34 PM
I don't think Scalia said that this was a case of a sandbag. My point, g.lanker, is that his use of the term may invite courts to take a look at other areas.
Posted by: federalist | Mar 25, 2009 7:28:01 PM
"...the Puckett ruling also serves as an important reminder to all counsel to get objections raised and on the record..."
It also serves as a reminder to write better plea agreements. The US Attorney should have a boilerplate provision that any agreement to recommend leniency is off if defendant commits further crimes.
Maybe these criminal trial lawyers need help from lawyers who write agreements for a living. What do you think, federalist? Can you help the AUSA write a plea agreement that runs 600 pages and has hundreds of "romanette" clauses?
. . .
Upon further reflection, that's not a good idea. Never mind. [Gilda Radner impression here.]
Posted by: Kent Scheidegger | Mar 26, 2009 10:56:31 AM
KS, I can't think of anything I'd less rather do. Dickering with a defense attorney over plea agreement drafting. Yuck.
Posted by: federalist | Mar 26, 2009 12:38:14 PM
"The US Attorney should have a boilerplate provision that any agreement to recommend leniency is off if defendant commits further crimes."
This advice is sound. However, in Puckett, the breach issue did not turn on the government's failure to RECOMMEND leniency. Instead, the government STIPULATED that the defendant had accepted responsibility and qualified for acceptance of responsibility.
Posted by: Hola | Mar 26, 2009 3:02:01 PM
From the opinion:
The District Judge turned to the prosecutor, who responded that the motion was filed “a long time ago,” App.79a, before Puckett had engaged in the additional criminal behavior. She made clear that the Government opposed any reduction in Puckett’s offense level for acceptance of responsibility.
* * *
Importantly, at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction.
* * *
On appeal to the United States Court of Appeals for the Fifth Circuit, Puckett did argue, inter alia, that the Government violated the plea agreement at sentencing.
Posted by: Kent Scheidegger | Mar 26, 2009 4:09:27 PM
Highlights from the opinion:
"8. The government agrees that Puckett has demonstrated acceptance of responsibility and thereby qualifies for a three-level reduction in his offense level."
To satisfy this obligation, "the Government filed a motion in the District Court pursuant to § 3E1.1 of the United States Sentencing Commission's Guidelines Manual."
"Puckett's counsel objected to the addendum, pointing out that the Government had filed a motion requesting that the full three-level reduction in offense level be granted."
The prosecutor responded "that the motion was filed 'a long time ago.'"
"She made clear that the Government opposed any reduction in Puckett's offense level for acceptance of responsibility."
Posted by: Hola | Mar 26, 2009 5:29:59 PM
Remember, though, Hola, that the Court itself thought that the Government's position at sentencing had the possibility of carrying the day, had it been pressed. See footnote 2 of the opinion.
Posted by: federalist | Mar 26, 2009 5:43:00 PM
I saw that footnote. First, it is arguably dicta. Second, FN 2 does not say there was no breach. Notice the language. The Court says that the government would be excused from its obligation, which would be a defense to a defendant's remedy for the breach.
While I am at it, I'd like to point out the language the Court used in KS's excerpt from the opinion. The Court states that the government was "backing away" from its request, not that it failed to make a certain sentencing recommendation.
Posted by: Hola | Mar 26, 2009 5:51:31 PM
It's not arguably dicta, it is dicta.
Posted by: federalist | Mar 26, 2009 6:03:47 PM
I think you are splitting hairs, Hola. The difference between not recommending something and recommending but then retracting the recommendation is not significant. The important point is that the defendant only bargained for a government recommendation, not that the judge would necessarily follow that recommendation. The lack of prejudice to the defendant stems from the fact that the judge would not have followed the recommendation, given the defendant's subsequent conduct, even if the government hadn't backed away from it.
Posted by: Kent Scheidegger | Mar 26, 2009 6:30:11 PM
One cannot ignore the differences or nuances of the actual terms of the agreement simply because the defendant behaved badly or the government goofed in drafting the terms. In the end, the issue of whether a breach occurred (by either party) is different than the matter of a remedy or prejudice to a party at the trial level or on direct (or even collateral) review.
Posted by: Hola | Mar 26, 2009 11:26:37 PM
"In the end, the issue of whether a breach occurred (by either party) is different than the matter of a remedy or prejudice to a party at the trial level or on direct (or even collateral) review."
Quite true, and the remedy issue was the one contested in the case. "The Government conceded that by objecting to the reduction for acceptance of responsibility, it had violated the obligation set forth in paragraph 8 of the agreement ..."
Posted by: Kent Scheidegger | Mar 27, 2009 10:52:48 AM
Clearly the question of whether a breach occurred was not at issue in Puckett, but my original point concerned the specific promises made in the Puckett agreement. As a general matter, I do not believe that adding "boilerplate" provisions to plea agreements will result in better written plea agreements. Puckett is a case in point because a boilerplate provision about conditional withdrawal of a sentencing recommendation would not necessarily address the stipulation---that is, a boilerplate, one-size-fits-all provision may not have made the agreement breach-proof. In Puckett, the government did more than offer a sentencing recommendation, which was my original point. However, I do agree that a well-written provision that stated the stipulations and recommendation would be off the table if the defendant commits further offenses would have been useful in Puckett.
Posted by: Hola | Mar 27, 2009 12:26:29 PM