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July 1, 2014

Significant (but unpublished!?!) Sixth Circuit ruling finding Lafler prejudice despite defendant's claims of innocence

The Sixth Circuit just released an interesting and important ruling in Sawaf v. US, No. 13-5620 (6th Cir. June 30, 2014) (available here), which grants a white-collar defendant relief based on ineffective assistance of counsel at plea-bargaining based in part on the Supreme Court's recent Sixth Amendment jurisprudence in this area. Here are passages from the Sawaf opinion, which in part highlight why I think this ruling is significant (despite being "unpublished"):

In 2001, Dr. Sawaf, a medical doctor specializing in the practice of urology, was charged with multiple counts of unlawful drug distribution for prescribing narcotic pain medications without a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1). It is undisputed that, prior to trial, the Government offered Sawaf a plea bargain that would have resulted in a significantly reduced prison sentence of 41 months instead of the 235-293 month term of imprisonment he would likely receive under the applicable U.S. Sentencing Guidelines if convicted at trial. Upon the advice of his attorney, Sawaf rejected the Government’s plea offer and proceeded to trial, unsuccessfully, where he was convicted and ultimately received a prison sentence of 240 months....

After a careful review of the evidence, the district court found that Sawaf’s attorney had indeed failed to advise him about the applicable sentencing guidelines at any time prior to his trial, resulting in “objectively unreasonable and constitutionally ineffective” assistance of counsel at the pre-trial stage of the proceedings....

Although the district court acknowledged the general presumption of prejudice “created by the significant disparity between the plea offered and the ultimate sentence” that Sawaf received, it nonetheless concluded that Sawaf was not entitled to relief because he had failed to show that he would have accepted the Government’s plea offer but-for his counsel’s ineffectiveness.... [T]he district court determined that Sawaf’s claim that he would have entered a guilty plea if adequately informed was not credible, given Sawaf’s continued insistence that he was innocent, prior to and during the trial, after the trial, and even during the evidentiary hearing, and effectively declined to credit Sawaf with the applicable presumption of prejudice."...

Given Sawaf’s unrelenting insistence as to his innocence, the district court was understandably reluctant to credit Sawaf’s self-serving claim at the evidentiary hearing that he would have pleaded guilty under different circumstances. As the district court emphasized in its opinion, Sawaf’s continued declarations of innocence at the evidentiary hearing undermined the plausibility of his assertion that he would nonetheless have pleaded guilty if he had been properly informed as to the possible consequences of proceeding to trial. On the other hand, to conclude that this information would have had no impact on Sawaf’s decision-making process would undercut the very reasoning for the Supreme Court’s recognition that the Sixth Amendment right to counsel during the plea-bargaining process includes the right to be informed by counsel as to the range of penalties under the applicable guidelines. Lafler, 132 S. Ct. at 1384.... After all, the existence of that right is necessarily rooted, at least in part, in our general understanding that the discrepancy between the punishment resulting from a plea agreement and that which would result from a trial conviction is an important factor that the defendant is entitled to consider in his decision-making process.

More importantly, however, we have consistently declined to conclude that a defendant’s “repeated declarations of innocence” alone preclude the possibility that the defendant would have entered a guilty plea if he had been aware of the consequences of proceeding to trial....  In light of these cases, we are compelled to conclude that Sawaf’s continued insistence as to his innocence does not foreclose the possibility that he would have been willing to enter a guilty plea in exchange for a 41-month sentence, despite his proclaimed innocence, if he had known about the risk that he might otherwise receive a 20-year sentence.  Put simply, Sawaf’s claim that he is innocent does not conclusively establish that there is no “reasonable probability” that his decision would have been different if he had been adequately informed about its consequences.

I am eager to praise the Sixth Circuit for this notable application of Lafler and its unwillingness to sting the defendant here yet again for maintaining his innocence. But I am also a bit annoyed that this seemingly significant ruling is being left unpublished. Fortunately, in this digital age, even unpublished opinions can be found and heralded, and I am grateful to a helpful reader who made sure I did not miss this one.

July 1, 2014 at 11:02 AM | Permalink

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I worked for 4 1/2 years with Lexington, Ky. attorney Bill Swinford on this 2255 habeas corpus case. The 2255 Motion was originally filed in November 2009. It is profoundly troubling that the District Judge "sat" on this case for so long. Chief Judge Karen Caldwell did not deny relief until March 2013. At one point, the District Judge had failed to hold a simple status conference for more than a year after the Motion for a Status Conference was filed. So far as I can determine from Westlaw research, the August 2012 evidentiary hearing that Dr. Sawaf received is the only one that Judge Karen Caldwell has held in her 13 years on the bench. Indeed, Dr. Sawaf's trial was Judge caldwell's first criminal trial after becoming a U.S. District Judge in 2001.
We now expect that upon remand the court will vacate Dr. Sawaf's convictions and sentence and order the Government to offer him as 41-month plea of nolo contendere (not a straight guilty plea). Since Dr. Sawaf has already served 13 years in prison, he will receive immediate release. Counsel will be filing a bond motion on Monday, after the July 4th weekend. The AUSA assigned to the Sawaf case appears to be on vacation this week.

For a similar situation involving 2 brothers who were Indiana M.D.s, prosecuted for prescribing narcotics without a medical necessity, and whose sentences were reversed on direct appeal, see,"U.S. v. Chube", 538 F.3d 693, 705 (7th Cir. 2008), on remand, 2008 WL 4998382 (N.D. Indiana Nov. 20, 2008).

For another interesting, unpublished Sixth Circuit 2255 opinion, see, "Richard Jones, Jr. v. U.S.", 2012 F. App'x. 1145 (6th Cir. Nov. 5, 2012) (unpub.)(420 month sentence cut in half, to 210 months).

Posted by: Jim Gormley | Jul 1, 2014 12:32:05 PM

The lawyer is on a witch hunt of the doctor. The lawyer has taken over the health system, to the detriment of the entire nation. Now they are in a rampage of prosecution to deter access to care.

To those who believe in prayer, pray the prosecutor, the judge and the investigators get cancer that spreads throughout their bodies, especially their bones, where every of dozen sites will feel like a fracture. Then, their doctors should refuse them any pain medication. Let the lawyers die in screaming agony after weeks of torment.

I would support a boycott list, where these enemies of clinical care get refused all care. Any doctor breaking the boycott should get a beating. To deter.

Posted by: Supremacy Claus | Jul 2, 2014 12:00:50 AM

As a career prosecutor, I will say this decision (and Lafler) discourages me from making offers to defendants generally. I will be even more suspect of making offers to counsel that I do not think are particularly skilled or ethical.

Incentives matter.

Posted by: David | Jul 2, 2014 1:19:20 AM

David: The young lawyer (Russell Alred) who caused this situation was only 3 years out of law school and had never handled a federal criminal case before in his life. He did not even purchase a copy of the Federal Sentencing Guidelines Manuel until after his client (Dr. Sawaf) was convicted. Today, he could never get appointed to the CJA panel in the Eastern District of Kentucky, since he had no Federal criminal experience. A few years after mishandling Dr. sawaf's case, the attorney became a Circuit Judge in Harlan County, Kentucky (far southeastern Ky., on the Tennessee border). In 2012, he was removed from office by the Kentucky Supreme court for ethical misconduct and dishonesty. See, "Russell Alred v. Commonwealth of Kentucky Judicial Conduct Commission", 395 S.W.3d 417 (Ky. 2012). Attorneys this inexperienced and inept are rare in the Federal criminal system. Notably, the Government's plea offer in this case was not placed in writing either. The First Circuit now has Rules of Court concerning a documetn that defense counsel must file with the Court if a plea offer has been made and rejected by the defendant. On that form, defense counsel must state the Guidelines Sentencing Range estimate that he gave the defendant during the course of him considering the Government's plea offer. I think that is a good idea for heading off problems such as occurred in Dr. Sawaf's case.

Posted by: Jim Gormley | Jul 2, 2014 11:57:11 AM

I am an ordinary citizen and I am shocked by what I read here on this post. I'm glad however the doctor got out of jail after 13 years, guilty or innocent.

I think there's something wrong with our legal system in the United States.

It is ridiculous to prosecute the doctor like Soviet Russia for exercising his legal rights. Heck, even there dissidents had legal rights.

A friend of mines son was sentenced to ten years in jail for armed robbery and drugs trafficking. The case is the same in that the son and his father fought the charges. Now the actual facts were minor.

Do you consider it democratic that a district attorney can utilize infinite public resources that create a public deficit to defend his own ego when a citizen cannot. If you do, I think we should have some of the referees from the World Cup as judges because they do a better job.

The fact is that our legal system says you are presumed innocent until proven guilty. It does not say that if you are proven guilty, or if you do not agree you are guilty, you can be wacked over the head. This is another example like pork barrels, or like party primaries, where the Constitution has been turned on its head.

Do you people realize that there are nine tens more people in jail than in 1973 in the United States. If you're not part of the solution, your part of the problem, that is my take on it.

Posted by: Ciaran O'Donnell | Jul 7, 2014 10:30:04 PM

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