Wednesday, August 31, 2016


In a recent case the 1lth Federal Court of Appeals which overseas the Middle District of Florida in Tampa took the federal government to task for failing to abide by a Plea Agreement. The court found in a rare piece of good news in this part of the country that federal prosecutors knowingly violated the agreement by not giving credit for acceptance of responsibility, see U.S. v Hunter. Apparently even our self-righteous, overly conservative federal appeals court judges can take a rare turn toward justice having sniffed the changing political winds of their failed war on drugs. 

The case began as many of these drug cases do with a questionable traffic stop, this one for improper window tint. After smelling marijuana the joyous officers found marijuana, crack cocaine, powder cocaine and heroin and charged the defendant with four federal crimes of possession with intent to distribute marijuana, heroin, cocaine and crack cocaine for which our hapless defendant was indicted. All in all a glorious day to be an officer, to be a freedom loving American maybe not so much. 

A motion to the federal judge to dismiss the case and to suppress the drugs for the obviously spurious stop or for the nosey officer's inability to actually smell the odor of marijuana of course failed. No wonder so many federal defendants plead guilty refusing to have a federal criminal trial because they believe the game of federal justice is rigged

Here's one case where the court finally looked at the question of the blatant breach of a plea agreement by the government. The court began by defining what constitutes a breach of a plea agreement.
 “[A] plea agreement must be construed in light of the fact that it constitutes a waiver of substantial constitutional rights requiring that the defendant be adequately warned of the consequences of the plea.” United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990) (internal quotation marks omitted). “A material promise by the government, which induces a defendant to plead guilty, binds the government to that promise.” United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007) (per curiam) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971)). Hence, the government breaches a plea agreement when it fails to perform the promises on which the plea was based...
… “Whether the government violated the agreement is judged according to the defendant’s reasonable understanding at the time he entered his plea.” United States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992).
The Court makes it clear that failing to perform as promised makes for an actionable breach. And that the promises of the government are held to the standard of the defendant's reasonable understanding of the plea agreement when he changed his plea to guilty. Federal plea agreements are notoriously one-sided, typically drafted by the government and having few benefits for defendants other than the possibility of 5K motions for substantial assistance to avoid minimum mandatory sentencing in complex drug cases and the three levels for acceptance of responsibility. Interestingly even without a finding of a breach the Florida Bar found a few years ago that federal waiver provisions in plea agreements were likely unethical. Let's face it, the entire federal justice system of forced pleas and sentencing is unjust and un-American.

Further the Court notes the following:
In exchange for Hunter’s promise to plead guilty to all four charges in his indictment, the government promised to recommend a reduction for acceptance of responsibility at sentencing. Yet, at sentencing, the government did not recommend the reduction. In fact, the government objected to and argued against Hunter receiving the reduction. Viewed objectively, “the government’s actions are inconsistent with what the defendant reasonably understood when he entered his guilty plea.”1 See Copeland, 381 F.3d at 1105...
 ...It is clear that Hunter reasonably understood the government would recommend the acceptance-of-responsibility reduction on his behalf at sentencing. The promise to recommend the reduction was a key material concession made by the government in the plea agreement.
 The court notes that although the government argues that the defendant gave false testimony at the suppression hearing, the change of plea as well as the signing of plea agreement occurred after the suppression hearing; therefore both parties were bound by the plea agreement's conditions and promises and the defendant should receive the three level of credit for acceptance of responsibility. 

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