Tag Archives: change-of-plea

Once You Say It, You Own It – Update for June 15, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


changeofplea170616Anyone spectator who has ever endured a change-of-plea hearing in Federal court has some sense of what the prophet Isaiah meant when he wrote of inhabiting eternity. The hearing drones on and on, with discussions about the defendant’s mental state, understanding of his or her rights, the nature of the rights being given up by the guilty plea, the elements of the charges, maximum and minimum sentences, fines and restitution, effect of the Guidelines, and on and on.

The whole back-and-forth between the defendant and the judge – known as the plea colloquy – is scripted by F.R.Crim.P. 11, which covers in detail what has to happen during the guilty plea. Such hearings go on over 70,000 times a year in federal court, and virtually every one of them is mind-numbing.

Before accepting a plea of guilty, the court must determine that the plea is voluntary and did not result from force, threats, or promises other than those in the plea agreement. One question that is almost always asked is whether the defendant is fully satisfied with his or her legal counsel, the representation, and advice received. Another is whether anyone had  threatened or attempted in any way to force the defendant to plead guilty.

ecoli170616At first blush, the questions seem silly. If the defendant is being forced to plead guilty, he or she is hardly going to screw the pooch by telling the judge that. Even worse is the question about satisfaction with counsel. The defendant has not even had his or her guilty plea accepted, let alone get sentenced. It’s as though Yelp required you to post your restaurant review before your appetizer arrives. Sure, the maître d’ was polite, and the tablecloths clean and starched. But you may well feel much different at 3 o’clock tomorrow morning, when you discover that e.coli. had been living in the house salad.

meanit170616As meaningless as the answers may be, they nevertheless because granite-hard truth if the defendant ever suffers buyer’s remorse. Consider Kevin Reed. Halfway through his federal fraud trial, he decided to plead guilty. During the plea colloquy, the district judge asked Kevin if he was “fully satisfied with the counsel, representation, and advice” he had been given. Kevin replied, “Yes.  He’s  excellent.”  He  also  confirmed  that  no  one  had  threatened him or attempted “in any way” to force him to plead, and that he was pleading guilty of his “own free will” because he was actually guilty.

A few months later, as sentencing loomed, Kevin hired a new set of lawyers. They moved to withdraw the plea, arguing that Kevin’s trial attorney’s ineffective representation at trial left Kevin with no choice but to bail out, and thus coerced him to plead guilty. The district court denied the motion.

Last Tuesday, the 7th Circuit upheld the district court. The Circuit acknowledged that a defendant could withdraw a guilty plea, but such a motion is “particularly unlikely to have merit if it seeks to dispute the defendant’s sworn assurances to the court.”

That was exactly what Kevin was trying to do. He argued that his trial attorney ignored tens of thousands of documents and didn’t interview dozens of potential witnesses, but he did not identify any of the witnesses or documents or show how they would have bolstered his case. More importantly, the appellate panel tartly noted, Kevin kind of forgot to mention any of this in his plea colloquy, or to complain that he was answering “yes” to the court only because his attorney told him to.

trifles170616At the plea colloquy, Kevin said his lawyer was excellent and that his plea was voluntary. “Those sworn statements were not ‘trifles’,” the 7th said, that Kevin could simply “elect to disregard.” To be sure, a plea entered because counsel is unprepared for trial would be an involuntary plea, but the district court found Kevin’s claim of lawyer ineffectiveness “vague,” and the appellate court agreed.

The problem is that at the change-of-plea colloquy, a defendant – especially one unfamiliar with the criminal process – has no way to know whether his lawyer has provided good representation or not. Nevertheless, a defendant will be held to the words he or she speaks. Whether the defendant knows the correct answer or not, that answer is going to bind him or her. Say it like you mean it, because once you give the answer, you own it.

United States v. Reed, Case No. 16-3428 (7th Cir., June 13, 2017)

– Thomas L. RootLISAStatHeader2small

You Pay Your Money and You Take Your Chance – Update for May 2, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


With 97% of federal defendants entering guilty pleas, you’d think that law students aspiring to federal criminal defense work (that is, if any law student actually selects that as a career option) would take classes in plea negotiation even before studying evidence, criminal procedure or appellate advocacy.

pasdedeux170502To be sure, plea agreement negotiation is an art form, sort of akin to detailed choreography that has great implications for defendants, implications often never fully appreciated until much later. The change-of-plea hearing itself is a pas-de-deux for defendant and judge, with almost every question being scripted by Rule 11(b) of the Federal Rules of Criminal Procedure – and almost every answer being a trap for the unwary.

It’s little wonder the Supreme Court has held that the 6th Amendment’s right to effective legal counsel extends to negotiating and signing the plea agreement.

Gilbert Spiller was a man without a lot of choices. He was busted in Chicago for selling 121 grams of crack to a police informant, and then compounding his miscalculation by later selling the same guy a loaded .40 caliber pistol so the buyer – a convicted felon – could use it to protect his own drug trafficking operation. Gil was sort of a poster boy for what’s wrong with the Windy City.

Gil, a man with three prior drug felonies, was pretty much in a corner. The federal drug trafficking statute – 21 USC 841 – is a spaghetti bowl of “if-thens.” If the amount of drugs sold exceed x, then the minimum sentence becomes y. If the defendant has x number of prior drug felonies, then the minimum sentence is y, but if the number of prior felonies is x+1, then the minimum sentence is 2y. If death or serious injury resulted from the drug sales, then the minimum sentence is z. In Gil’s case, the amount of drugs he sold would have given him a mandatory minimum sentence of five years, but his prior felonies bumped it to double that.

pleading170502When the government intends to enhance a 21 USC 841 sentence, it has to provide a notice complying with 21 USC 851. In defendant parlance, someone receiving such an enhanced sentence has been “851’d.” Gil got 851’d right away, even before the government’s plea offer arrived on his lawyer’s email.

The government proposed that Gil would plead to a drug distribution count, and admit that the conduct underlying the remaining counts was relevant for sentencing purposes. He also had to stipulate to the government’s Guidelines calculation, including a Guidelines “career offender” enhancement that would send the sentencing range into the stratosphere.

Gil’s defense attorney was puzzled by the offer. Gil would be giving up his right to appeal or argue Guidelines enhancements at sentencing, and for what? We see this in many plea agreements: the defendant give up rights in exchange for vapor, getting nothing that he could not have gotten simply by pleading guilty without the agreement (called a “blind plea”). After all, a defendant does not have to have an agreement in order to plead guilty, and sometimes, no plea agreement might be a wise idea.

Gil clearly wondered what was in the deal for him, as did his attorney. She wrote back:

Mr. Spiller has asked a great question and one that I cannot seem to answer for him: what exactly does he gain if he proceeds by plea agreement, as opposed to a blind plea. Is the government withdrawing the 851? Can you tell me one concession the government makes in the draft plea you sent over? I want to make sure I am not missing something.

In an uncharacteristic flash of candor, the Assistant U.S. Attorney responded:

The government is not withdrawing the 851 notice. You ask a good question, and I admit that the plea agreement does not offer a whole lot beyond a blind plea. There are a few minor benefits: we would dismiss two counts so he would save himself $200 in special assessments. He also gets the recognition in the plea agreement that, as things currently stand, he is entitled to acceptance of responsibility.

forme170502Gil rejected the government’s proposed plea agreement and instead entered a blind plea, pleading guilty to all three counts and reserving his right to argue his sentence and appeal. His sentencing range was 262-327 months. At sentencing, his lawyer pointed to his troubled upbringing, asking for 120 months. The court sentenced Gil to 240 months.

Once ensconced in prison, Gil became afflicted with buyer’s remorse. He filed a 28 USC 2255 motion, arguing his lawyer had been constitutionally ineffective by counseling him to execute a blind plea rather than taking the government’s proposed plea agreement. The district court denied the motion.

Last week, the 7th Circuit upheld the denial. To win, Gil had to show his lawyer’s performance fell below an objective standard of reasonableness, and that there was a reasonable chance that, but for those errors, his sentence would have been different.

The Circuit said that a reasonably competent lawyer would have tried to learn all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing him to plead guilty. That, the Court said, was just what Gil’s lawyer did. She discussed the proposed plea agreement with him and conveyed Gil’s questions (and hers) to the government. She concluded that Gil would be better off rejecting the offer and pleading blindly.

remorse170502In fact, she went one better that most attorneys. She drafted an 11-page plea declaration illustrating the understanding of the relevant facts and law underlying the case that she and Gil had reached, which she had Gil sign. In the document, which was filed with the district court, Gil acknowledged he had read the indictment and the document he was signing, and had gone over the whole thing with his attorney. (This, in our experience, is an unusual but prudent practice: it both ensures the defendant knows what is happening and protects the lawyer from “buyer’s remorse” proceedings such as Gil’s 2255 motion).

Gil admitted in his 2255 motion that his attorney believed it was worth it to reserve his right to challenge the government’s Guidelines calculation — a right he would have sacrificed by signing the plea agreement — and believed she could get him a “better sentence.” The Court said her decision “sounds in strategy rather than in emotion, and a strategic decision, even if clearly wrong in retrospect, cannot sup-port a claim that counsel’s conduct was deficient.”

endof170502The Circuit observed that a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to re-construct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” This is especially true in the plea-bargaining context, the Court said, citing “the many uncertain-ties surrounding the difficult decision of whether to plead guilty.”

The 7th concluded that the district court had “a sufficient basis in the record to characterize counsel’s decision as strategic: Her email, Spiller’s affidavit, the government’s proposed plea agreement, and Spiller’s Plea Declaration, taken together, obviated the need for an evidentiary hearing.”

Spiller v. United States, Case No. 15-2889 (7th Cir., Apr. 28, 2017)

– Thomas L. Root


Guilty Plea Set Aside Due to Too Much Information – Update for March 16, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


The federal criminal justice system has adopted rituals as byzantine as a medieval exorcism to ensure that defendant’s guilty pleas are “knowingly, voluntarily and intelligently” made. And who can complain about that? Federal Criminal Rule 11 contains a laundry list of items a court must discuss with a defendant to make certain he or she understands all of he ramifications of a plea of guilty.

dazed170316To the shell-shocked defendant entering a plea of guilty, the entire proceeding passes as a jumble of nerves, rote answers and head-pounding legalese from judges and lawyers. That’s too bad, too, because by and large the defendant is later held to have perfectly digested everything said and to have meant every word he or she uttered in return.

That’s probably the way it should be, because no system could survive that made it too easy to withdraw a guilty plea after the fact. But that is not to obscure that – out of the 97.3% guilty-plea rate in the federal system – a good number of defendants go through whatever gyrations their lawyers tell them to perform during a guilty plea hearing, and only realize the finality of what they mindlessly agreed to after the fact.

For that reason, a case like United States v. Johnson, decided this week by the 2nd Circuit, is a breath of fresh air.

To believe the Feds, Cal Johnson was a bad dude, selling all manner of drugs and keeping guns in a nightclub he ran in the southern tier of New York State. The police found a gun behind the jukebox, and Cal was charged as a felon-in-possession and for drug distribution. In federal drug crimes, if the government alleges two prior drug convictions, the defendant’s sentence can be dramatically increased. Cal had two 20-year old drug beefs when he was arrested in 2012. They may have been committed when George H.W. Bush was president, but that didn’t matter: they weren’t too old to jack his mandatory minimum sentence to life.

TMI170316For reasons that baffled the Court of Appeals (and us), Johnson pled guilty without a plea agreement. At his change-of-plea hearing, the government explained that “the possible maximum penalty is life imprisonment” and that “the mandatory minimum pursuant to statute is life imprisonment.” The prosecutor also noted that “there’s a supervised release term required of at least ten years”; that “if there’s any violation of the terms of supervised release, the Court would have the power to add an additional five years of imprisonment for any violation thereof”; that the second count had a “possible maximum sentence” of ten years with “no mandatory minimum required”; and that, with respect to both counts, “in addition to these possible maximum penalties,” Cal would lose certain rights, including the right to vote, to possess a firearm, to hold certain public offices, and to obtain certain licenses.

The district judge then told Cal about the guidelines. The judge “described one calculation with the result that “the guidelines range is 30 to life,” another that is also “30 to life,” another that “would be 262 to 327 months,” another that “would be 151 to 188 months,” another that “is 108 to 135 months” and one that is “188 to 235 months.” He then added: All of the guideline provisions I’ve just described are nevertheless trumped by the fact that the statutory mandatory minimum is a life term under Section 21 U.S.C. 841(b)(1)(A) and as I indicated that is the statutory mandatory minimum in this case when I indicated the possible penalties under count one. So the Guidelines are trumped by that statutory mandatory minimum.”

Finally, the judge asked Cal’s lawyer if he knew any reason why Johnson should not plead guilty. Defense counsel said no. The judge accepted Cal’s plea.

A few months before sentencing, however, Cal wrote to the judge saying he wanted to withdraw his guilty plea, because 

my plea was not made knowingly or voluntary. I was mislead and ineffectively assisted by my attorney into believing that your Honor could sentence me to a sentence lower than the statutory sentence provided in Section 841(b)(1)(a) of the sentencing codes.

During my plea allocution you stated that you had the power to go above, below, or even outside the guidelines depending on the laws at the time of my sentencing. I misunderstood you to mean you could sentence outside of the statutory sentences as well.

Without being lead to believe this by my attorney I would never have plead guilty to charges that sentence me to a mandatory term of life in prison.

The district court told Cal that it was his tough luck: the life sentence was mentioned during the change-of-plea. He should have paid better attention.

jibber170316Last Tuesday, the 2nd Circuit disagreed. Certainly, Cal was told about the life sentence. The problem is that he was told too much. With all the jibber-jabber about statutory maximum sentences, statutory minimum sentences, applicable guidelines and supervised release after incarceration ended, Cal had been so bombarded with data that he was worse off than if he had no information at all. The Court said that “the baffling complexity of the prosecutor’s account did, however, render serious the failure by the court to confirm that Johnson understood the sentence that his guilty plea entailed. Johnson says that he was confused, and it is easy to see how that might be. Johnson was not trained in the law.”

COPInfo170316The matter that most concerned the 2nd Circuit was especially noteworthy, because all too often, we see it ignored by courts facing this kind of issue. The Circuit complained that his lawyer’s statement that he saw no reason for his client not to enter a plea was utter nonsense. “The most significant fact for Johnson at his plea hearing—a fact that he had to understand for his plea to be voluntary, knowing, and intelligent—was that life imprisonment was the certain consequence of pleading guilty. This was not merely a potential sentence, or one possible maximum among other possibilities, but his certain and inevitable sentence upon conviction. By pleading guilty, he was effectively sentencing himself to spend the rest of his life in prison; yet this fact was not conspicuous at his plea hearing, which included discussion of many other “possible” (though actually impossible) sentences and robotic references to (inapplicable) calculations and judicial discretion.”

Johnson’s plea gained him absolutely nothing. The Court expressed wonderment that “Johnson—in the midst of trial preparation—would knowingly elect to plead when a plea could yield no discount from the worst that could happen at trial.”

Johnson’s plea was withdrawn, and the case was sent back to the district court for trial.

United States v. Johnson, Case No. 15-3498 (2nd Cir., Mar. 14, 2017)

– Thomas L. Root