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August 21, 2012

New plea deal in place for child porn defendant after federal judge rejected prior deal with appeal waiver

This Denver Post article, headlined "Colorado child porn suspect pleads guilty on second try," provides an interesting follow-up to a federal sentencing story about plea deals and appeal waivers.  Here are the new details:

A child pornography suspect who reached a plea deal with federal prosecutors only to see that agreement rejected by the judge has finally pleaded guilty after striking a new deal.

Earlier this month, Timothy Vanderwerff pleaded guilty to one count of receipt of child pornography.  As part of the deal, prosecutors agreed not to seek more than 12 years in prison for Vanderwerff, though he could receive as much as 20 years or as little as 5 when formally sentenced.

Under his first deal, Vanderwerff would have pleaded guilty to the less-serious charge of possession of child pornography and would have likely faced no more than 10 years in prison.  That deal, though, also contained a waiver of Vanderwerff's right to appeal, except in limited circumstances.

It was that last detail that tripped up Senior U.S. District Judge John Kane, who rejected the deal in June by explaining that, "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."

Appellate waivers have become commonplace in federal plea bargains, and both sides in the case argued that the waiver was a valuable bargaining chip in negotiations.  But Kane said neither side gave him enough information to determine whether the waiver was appropriate. He wrote it is questionable to sacrifice "constitutional rights at the altar of efficiency."

Vanderwerff's attorney soon appealed the plea-deal rejection, arguing that the decision put Vanderwerff in a tight spot. After Kane's ruling, federal public defender Edward Harris wrote in a case filing, prosecutors refused to offer Vanderwerff the same deal minus an appellate waiver, instead pushing a much tougher bargain. The plea agreement Vanderwerff ultimately signed does not contain an appellate waiver.

Prior post on the Vanderwerff case and a few older appeal waiver posts:

August 21, 2012 at 05:10 PM | Permalink

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Comments

"He wrote it is questionable to sacrifice 'constitutional rights at the altar of efficiency.'"

Does Kane know any law at all? First, there is no constitutional right to appeal. Second, what's at stake is less efficiency than the prerogative of the defendant to give up something he values less in order to get something he values more. Third, if appeal waivers prevent to an unacceptable degree the development of appellate law, that is the appellate courts' concern, not the district court's. Fourth, defendants all the time give up ACTUAL constitutional rights, to wit, the right to trial and to face one's accuser, et al., in the everyday plea bargain. Indeed, that is the DEFINITION of the everyday plea bargain.

I guess Kane thinks he gets to overrule the Tenth Circuit. If I were in the USAO there, I'd give him the opportunity to fact-check that proposition.

Posted by: Bill Otis | Aug 21, 2012 8:27:18 PM

hmm considering there is no mention of what the new deal he was blackmailed INTO TAKING has ...i'm gonna figure it's WORSE then the LEGAL CONTRAL he had at the start!

so sounds to me like the judge sanbagged this guy and shafted him on the illegal re-do!

Posted by: rodsmith | Aug 22, 2012 1:45:46 AM

Brazen, undisguised, judge rent seeking. These deals decrease appellate judge employment plus that of their good friends the appellate lawyers, who likely make donations to their campaigns coffers.

Posted by: Supremacy Claus | Aug 22, 2012 7:00:49 AM

What would the AUSA lose in maintaining the better offer? The defendant did everything he could to "play ball" with the government. It takes self-confidence on the part of the AUSA to care more about getting it "right" that just getting your way. In the event of an appeal, the worse that would happen is a government lawyer, with full employment, would have to respond, file briefs and maybe argue at the Court of Appeals. In forcing a plea to the higher charge, the AUSA treated this defendant as if he refused to tell where the body is buried.

Posted by: Stanley Feldman | Aug 22, 2012 10:33:40 AM

Sounds like the judge's rejection of the original plea offer will be an appealable issue in itself. The district court rejected a constitutional plea because of its personal dislike of appellate waivers, and because of that, Vanderwerff had to accept a worse deal and give up any chance of a sentence below five years. If he gets considerably more than five years at sentencing, then the Tenth Circuit may find that any error was harmless, but if he gets the minimum, he'd have a plausible claim that he would have done better with the original deal and that its rejection was an abuse of discretion.

@Stanley: If I were a cynical dude, I'd guess that the prosecutor took the better offer off the table precisely to force the defendant to appeal. If the government maintained the original offer, Vanderwerff would probably take his sentence and run. This way, he has to take the issue to the circuit, and the government may be hoping for a precedential decision holding that rejection of a plea bargain because of an appeal waiver clause is an abuse of discretion. If that happens, they'll never have this problem again, with Judge Kane or any other judge.

Posted by: Jonathan Edelstein | Aug 22, 2012 11:27:34 AM

"Sounds like the judge's rejection of the original plea offer will be an appealable issue in itself."

Look at the new plea agreement on PACER. It's an 11(a)(2) agreement where Defendant reserves the ability to appeal Kane's Order.

"If he gets considerably more than five years at sentencing, then the Tenth Circuit may find that any error was harmless"

I am not sure that should happen. His Guideline range is higher under a receipt conviction than it would have been under the rejected possession plea. That fact alone should make it not harmless -- even if he gets considerably more than 5 years -- since the Court must consider the now-higher Guideline range in making its sentencing decision.

Posted by: anon | Aug 22, 2012 12:09:16 PM

I agree with Mr. Feldman. The defendant did everything asked of him, and joined in asking that blockhead Kane to accept the original plea. Kane needs to learn a lesson, but the price for it should not be borne by the defendant.

Jonathan Edelstein --

What this case calls for is a slight extension of the newly minted Lafler/Frye doctrine: The defendant gets a do-over because, at the plea bargaining stage, there was ineffective assistance of jurist.

Posted by: Bill Otis | Aug 22, 2012 1:53:22 PM

no bill what the defendant should get is a RELEASE ORDER. The state had him cold. He legally plead out and because of criminal stupidity from an AGENT of the govt they fucked it up.

Case is DONE!

The state does not have the right to keep dragging the defendant in front of a court with all the uncertainly that implies simply becase the state CAN'T GET IT'S SHIT TOGETHER!

Posted by: rodsmith | Aug 22, 2012 3:34:46 PM

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