FEDERAL PROSECUTORS TAKE BEATING AT SENTENCING FOR BREACH OF PROMISES MADE IN PLEA AGREEMENT

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. 

HOW PROSECUTORS CONTROL & DIRECT AMERICAN FEDERAL GRAND JURY INDICTMENT DELIBERATIONS

In a well-known yet hidden truth of federal criminal law, federal grand jury's don't indict people - federal prosecutors do. It's the United State's prosecutors aided by government agents from the FBI, the DEA and fraud inspectors from a variety of Government agencies who bring cases to American grand jurors and direct the deliberations until the desired indictment is delivered. 

Grand Jury with victorious Prosecutor
after delivering Indictment

The grand jury hears only the evidence deemed worthy by the government. In practical terms this means that unless the prosecutor does not want an indictment, little or no evidence that could help the defendant will ever be given to members of the grand jury. It's an unfair process, but of course it's meant to be. 

The objective of an effective prosecutor is first to mold the charging document or indictment. During that process the prosecutor seeks to iron out or at least gain useful knowledge of possible defenses to a potential criminal case. It's not unusual for the grand jury to hear snippets of evidence of uncharged misconduct over a long course of time, even for weeks or months, especially in complex federal conspiracy and trafficking cases or complicated white collar fraud cases, until the prosecutor is satisfied that the case if contested by the defense can still be won at federal trial or better, that the defendant in the case can be forced to plead guilty. It's rare that the grand jury members will have the presence of mind, will power or strength of character to stop an inappropriate indictment from being issued by an ardent prosecutor. 

After all, the members of an American grand jury are relying on the prosecutor to not only give them the appropriate federal laws allegedly being violated, but also to provide the facts necessary to support a conviction under those laws. Nor is it likely to be considered prosecutorial misconduct for the federal prosecutor to unduly influence the grand jury's decision-making process as it's built within an often unfair federal criminal justice system that has a very high rate of success in forcing guilty pleas since many defendants come to believe that the criminal justice system is rigged in the government's favor.

In the federal prosecutions there's incentive to overcharge defendants at the grand jury level in order to gain leverage over defendants and to force a guilty plea with co-operation to indict other defendants. In fact in the Middle District of Florida in Tampa a defendant may receive a target letter, that advises the defendant that a grand jury has been convened to look at criminal conduct with the implicit threat that failure to respond, retain the services of a federal defense attorney and co-operate may result in a federal indictment. As a practical matter the prosecutor has such control and direction of the federal grand jury that the threats must be taken seriously. After a federal indictment the defendant with help from a federal criminal defense attorney must make an important life-changing decision, whether to plead guilty or have a federal trial.