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September 4, 2009

Fascinating district court refusal to accept a (coercive?) plea deal

A helpful reader sent me copy of a fascinating five-page district court ruling from earlier this week in US v. Taliaferro, No. 08-cr-7-1-SM (D.N.H. Sept 1, 2009) (available for download below). The start and end of the order highlights why the full order is a must-read and why I look forward to hearing from commentors about the ruling:

In this case, the government has effectively removed the court from the sentencing process, and dictated the sentence to be imposed. Exercising its considerable charging discretion in the context of applicable statutory mandatory minimum sentences, the government extended an offer that the defendant could hardly refuse: be subjected to a mandatory minimum sentence of 20 years in prison, or accept a binding plea agreement providing for a sentence of 15 years (based upon a drug charge carrying a mandatory minimum of 10 years, with the government declining to file a notice of prior conviction under 21 U.S.C. § 851, which would trigger the mandatory sentence of at least 20 years)....

Based upon this record, ... the court would likely impose a sentence in the 8 to 10 year range, but for the applicable mandatory minimum, and certainly not more than 12 years. Therein lies the rub — if the court rejects the plea agreement without knowing whether the government will, in turn, withdraw from the plea agreement, imposition of a mandatory sentence even more severe than 15 years could result. That version of blind man’s bluff is inconsistent with fundamental notions of justice and fairness, and the court chooses not to play.

The Department of Justice is headed by a new Attorney General who, consistently with the position of the new Administration, has publicly declared a change in policy and approach both to the powder-crack cocaine disparity and mandatory minimum sentences....

This district also has a new United States Attorney. Given the publicly announced intent by the Department to take a new look at sentencing policy, particularly with respect to mandatory minimums and crack/powder disparities, and given the inflexible and seemingly out-of-step approach embodied in the plea agreement and underlying exercise of charging discretion in this case, I have directed that a copy of the sentencing hearing transcript be prepared and forwarded, along with this order, the presentence investigation report, and defendant’s sentencing memorandum, to the United States Attorney for his personal review and determination of the government’s intent to withdraw or not withdraw from the plea agreement should the court impose a sentence substantially below that called for in the agreement....

Sentencing in this case will be rescheduled after the United States Attorney has had an opportunity to review and consider the issue and advises the court whether the government intends to withdraw from the plea agreement should a sentence substantially below 15 years be imposed.

Download USDC order re overreaching ausa

September 4, 2009 at 11:29 AM | Permalink


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Holy crap.

Posted by: Michael Drake | Sep 4, 2009 4:04:06 PM

This is an interesting tug of war. Congress -- which is unmentioned in the court's order -- has established mandatory minimums, here, 20 years, but has given the executive branch the power to avoid that minimum by not charging the prior conviction. With the power granted by Congress in hand, the executive branch wants a sentence that's less than Congress' 20-year minimum within the executive branch's control, but not too far, so they want a binding plea agreement for 15 years. The court doesn't want 20 years (Congress' apparent "expected" sentence) or 15 years (the executive branch's preferred sentence) but 8 to 10 years.

So the court, knowing that the executive branch holds the cards in this case, tries to get the US Atty or the AG to let the court impose a sentence of 8 to 10 years.

The law regarding the respective powers of the co-equal branches of government is clear. But the judge does not like the power apportioned by our law to the three branches of government and wants to remain, to the greatest extent possible, in the driver's seat.

Aside from the question of what sentence will be imposed, what is the substance here regarding acceptance of the plea or not? What would the basis be for rejecting the plea agreement? Did she not do the crime or not? Is the sentence agreed upon by the parties unlawful? Is the judge's desire for unfettered sentencing power a basis for the judge to try to interfere with internal executive-branch decisionmaking?

In the end, the court had to admit that it would accept the plea and give the defendant 15 years if the executive branch sticks to its guns. The court could hold out the possibility of letting the defendant go entirely. So who's bluffing? And who's willing to call a bluff? The DoJ can force a 15 or 20 year sentence, or the judge can let the defendant free, but neither side can FORCE a resolution in the middle.

I can't wait to find out what the US Atty decides.

Posted by: Mark Pickrell | Sep 4, 2009 6:49:58 PM

Mark. I think the Judge feels that the AUSA is trying to force him to a particular sentence.

"Is the judge's desire for unfettered sentencing power a basis for the judge to try to interfere with internal executive-branch decisionmaking?"

That's an interesting way to frame the issue. I'm not so sure that the judge is seeking unfettered sentencing power so long so much as the judge is reminding the US Attorney that he has the ultimate sentencing power. Does ultimate imply unfettered. Not as I see it. The judge, IIRC, has a duty to impose a punishment no more than necessary. I agree that it's a game of blind man's bluff. I think you comment about letting him go free strikes at the heart of the problem. It's not supposed to be a zero sum game, so why is the US Attorney turning it into one. How is that ethical?

Posted by: Daniel | Sep 4, 2009 10:15:54 PM

I'm not sure what you mean by "ultimate sentencing power." The court's sentencing power is limited. Plus, the district court's power is not even "ultimate" -- the court of appeals or USSC has that honor. That's why this situation is really about a judge who's unhappy about the way that the law has limited the judiciary's sentencing power.

Also, "No more than necessary" doesn't apply when there's a statutory minimum. There's a third co-equal branch of government here: Congress. Because of statutory minimum sentences, the judge's power is limited. And this judge is not happy about that reality.

Because this is a sentencing blog, this is a good example in which procedural issues -- who has the power to do what and in what order -- are more important for sentencing than substantive issues. There's no objectively correct answer to the question "What's the appropriate sentence for this crime?" So we fight about procedural issues.

Posted by: Mark Pickrell | Sep 8, 2009 10:28:36 AM

The Court can refuse the binding plea. But the Court is correct that the D could go to trial and face the 20 year mandatory. Assume D pleas and the gov does not file an 851. Result: 10 year mandatory. The Court is going to be removed for the most part because of the mandatory mins. The issue is why is the USA not going with the 10 years mandatory min? Part of the problem is the totlay lack of advice to USAOs from DOJ based on its new crack/powder position. The only advice is continue to charge mandatory min amounts.

Posted by: lawdevil | Sep 8, 2009 11:28:04 AM

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