White Collar Criminal Defense Group

U.S. Supreme Court To Hear Case Of Judicial Participation In Plea Negotiations

On January 4, 2013 the United States Supreme Court granted certiorari in U.S. v. Davila, No. 12-167.  The government filed the petition seeking to reverse the ruling of the 11th Circuit Court of Appeals.  This appeal stems from the conviction of the defendant for conspiracy to defraud the United States by obtaining false tax refunds in violation of 18 U.S.C. § 286.  The 11th Circuit noted in its opinion, 664 F.3d 1355 (11th Cir. 2011), that during a February 2010 hearing before a magistrate judge, Davila requested the discharge of his court-appointed attorney, expressing a concern that counsel had not discussed any pertinent strategies with him except to plead guilty. The magistrate judge responded that “there may not be viable defenses to these charges,” and that pleading guilty sometimes was the best advice an attorney could provide his client. The magistrate judge proceeded to inform Davila that:

“The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.”  In May 2010, Davila entered a plea of guilty before the district court, and on November 15, 2010, the court sentenced him to 115 months’ imprisonment.

The 11th Circuit held that the magistrate judge’s comments constituted judicial participation in plea negotiations in violation of Federal Rule of Criminal Procedure 11(C)(1).  The guilty plea is therefore invalid, regardless of prejudice.  The government argued in its cert petition that, contrary to the ruling of the 11th Circuit, “a showing of prejudice is a prerequisite for granting relief for a Rule 11 violation.”

Sentencing Calculations, Courtesy Of The FBI

Walter Pavlo has a nice follow-up to the not-guilty plea last week from Matthew Martoma, the former SAC Capital Advisors portfolio manager accused of insider trading on a tip he got about an Alzheimer’s drug that failed in test trials.  As Pavlo notes, there is already substantial speculation about whether Martoma will cooperate with the government in its ongoing investigation in hopes of leniency.

But what caught our eye is this discussion of how the FBI secures cooperation:

Tactics used by the FBI are meant to intimidate individuals and get them to cooperate in their investigation.  Cooperating witnesses are powerful in persuading jurors to convict and getting other co-conspirators to plead guilty.  Some agents have told me that they carry a copy of the Federal Sentencing Guideline[s] Table as a visual aid in showing targets how much prison time they could be looking at should they consider NOT cooperating.

That strategy is interesting for at least a couple of reasons.  First, the guidelines aren’t mandatory anymore.  And second, it’s often difficult to figure out exactly what a defendant’s guidelines range will be.  Many issues—such as how many participants are involved in an operation or whether a defendant can be classified as a leader, organizer, manager or supervisor—can’t be resolved until sentencing.

Perhaps in the interest of full disclosure, FBI agents should carry around a copy of United States v. Booker as well.