Posted On Wednesday, February 20, 2013
For the second time in 2013, the Third Circuit has reviewed the merits of a criminal appeal despite the defendant’s agreement to waive his appellate rights.
This time, in United States v. Wilson, No. 12-1881 (3d Cir. Feb. 14, 2013), the court ruled that the waiver did not cover the appeal before it, paving the way for full appellate review.
Wilson pleaded guilty to drug offenses in 2007 and was sentenced to 65 months’ imprisonment. As part of his plea agreement, he waived his right to appeal his sentence unless the government appealed, the sentence was illegal or the sentence unreasonably exceeded the advisory-guidelines range.
Wilson appealed anyway, challenging the district court’s guidelines calculations, but the Third Circuit enforced his waiver and tossed his appeal.
Shortly after Wilson was released from federal custody in 2011, his probation officer asked the district court to modify the terms of Wilson’s supervised release by requiring him to participate in mental-health treatment. Over Wilson’s objection, the court agreed, and Wilson appealed to the Third Circuit.
…the court joined the Tenth and Eleventh Circuits in concluding that a broad appellate waiver does not bar an appeal of a later modification of conditions of supervised release.
On appeal, the government argued that the court’s prior enforcement of Wilson’s appellate waiver precluded him from challenging it again. But the Third Circuit concluded that its previous decision established only that Wilson’s waiver was knowing and voluntarily.
As to the waiver’s scope, the court joined the Tenth and Eleventh Circuits in concluding that a broad appellate waiver does not bar an appeal of a later modification of conditions of supervised release.
“Wilson’s appellate waiver can reasonably be understood to encompass, as relevant here, only a waiver of his right to appeal his ‘sentence,’ that is, what was imposed at sentencing and memorialized in the judgment and commitment order,” the court wrote. “Wilson did not explicitly waive a right to appeal a later modification of his ‘sentence’ and such a waiver cannot be presumed or inferred.”
Back in January, we wrote about United States v. Castro, a case in which the Third Circuit reached the merits of an appellate claim that fell within the scope of a valid appellate waiver. In Castro, the court threw out the conviction challenged on appeal.
Wilson had a less-happy ending for the defendant: In a one-paragraph analysis, the court concluded that there was “utterly no reason” to overturn the district court’s decision. So for Wilson, who appeared pro se on appeal, his victory on the waiver issue was short-lived.
But given the frequency of appellate waivers in federal plea agreements, other defendants in the Third Circuit may benefit from Wilson and Castro for years to come.
Posted On Tuesday, February 19, 2013
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DOJ has announced that Lender Processing Services Inc. (LPS) has agreed to pay $35 million in criminal penalties and forfeiture to address its participation in a six-year scheme to prepare and file more than 1 million fraudulently signed and notarized mortgage-related documents. The settlement follows the November 2012 felony guilty plea by Lorraine Brown, the former CEO of wholly owned LPS subsidiary DocX LLC. Brown admitted to her leadership role in the scheme.
The take home points from the LPS settlement ring familiar…Soon after discovering the misconduct at DocX, LPS conducted a thorough internal investigation, reported all of its findings to the government, cooperated with the government’s investigation and effectively remediated any problems it discovered.
The NPA requires the company to make the payment and meet a series of other conditions. The LPS deal demonstrates the value of companies taking a proactive approach when pursuing NPAs. The company has already taken a number of remedial actions to address the misconduct at DocX. According to DOJ, LPS has wound down all of DocX’s operations, re-executed and re-filed mortgage assignments as appropriate and terminated Brown and others. LPS has also demonstrated changes in its compliance, training and overall approach to ensuring its adherence to the law, and has retained an independent consultant to review and report on LPS’s document execution practices; assess related operational, compliance, legal and reputational risks; and establish a plan for reimbursing any financial injuries to mortgage servicers or borrowers.
According to the statement of facts accompanying the agreement, employees of DocX, at the direction of Brown and others, falsified signatures on mortgage related documents. Through this scheme and unbeknownst to the clients, Brown and subordinates at DocX directed authorized signers to allow other, unauthorized personnel to sign and to have documents notarized as if they were executed by authorized signers.
DOJ further indicated that Brown hired temporary workers to sign as authorized signers. These temporary employees would sign mortgage-related documents at a much lower cost and without the quality controls represented to clients. These documents were then falsely notarized by employees at DocX, allowing the fraud scheme to remain undetected. After these documents were falsely signed and fraudulently notarized, Brown authorized DocX employees to file and record them with local county property records offices across the country.
The take home points from the LPS settlement ring familiar but are nonetheless instructive. DOJ announced that its decision to enter into the NPA was based on several factors. Soon after discovering the misconduct at DocX, LPS conducted a thorough internal investigation, reported all of its findings to the government, cooperated with the government’s investigation and effectively remediated any problems it discovered.
