05 August 2004

4th Circuit - Alteration of a Plea Agreement by Judge & Prosecutor

United States v. Wood - Subject: (1) Oral modification of a plea agreement. (2) Whether the probation officer is the "government" under the "safety valve" provision.

(1) [facts and procedure] The plea agreement clearly states that the Defendant agrees he is accountable for 500g of crack unless the presentence investigation finds a lesser amount. It goes on to state that at sentencing Defendant's attorney will argue that he is responsible for less than 1.5kg of crack. Apparently, the court finds that there was less than 1.5kg and refuses to hear evidence or argument on the weight involved in the sentencing hearing.1

[finding] A plea agreement is not merely a contract between two parties; it “implicates the integrity of the criminal justice system.” The prosecution is held to a higher standard than the Defendant for imprecisions or ambiguities in the plea agreement and beyond that “[t]he Government’s heightened responsibility extends beyond the plea negotiation to all matters relating to the plea agreement.”

The prosecution can alter the agreement through his statements in a hearing involving the case (even after the court has accepted it). The prosecution can alter the agreement by not correcting the trial judge as the judge makes an error and mischaracterizes the plea agreement to the Defendant.

In this case “the district court repeatedly suggested that Wood would have the right to challenge the drug weight finding at sentencing.” The prosecution not only acquiesced, he made at least one statement which seemed to accept the judge's characterization.2 Therefore, the plea agreement was altered. The fact that a court cannot alter the terms of a plea agreement is of no moment because the court lays the responsibility squarely at the feet of the prosecution for not objecting as well as making a statement at variance with the written plea agreement.

The fact that the Defense attorney understood the clause in the plea agreement and explained it to his client does not matter. It is the Defendant's understanding which is at the core of the matter and when the judge, without correction, mischaracterizes the terms of the agreement the Defendant is entitled to rely upon the mischaracterization.

The fact that the prosecution's alteration and subsequent breach of the plea agreement was inadvertent is of little importance.

The remedy is specific performance. Mr. Wood gets a hearing as to weight.

(2) A probation officer is not the government under the 18 U.S.C. Sec. 3553 (f) “safety valve” provision. The Defendant must cooperate with the government in order to qualify.

[comment] Just when you think you've gotten an appellate court in its nice little stereotypical box it goes and does this. This strikes me as a dang good decision for those of us out there representing Defendants. If the judge makes any mistake in his characterization of the plea agreement and the prosecutor doesn't jump up and immediately correct him it changes the terms of the agreement.

Given the vagaries of the English language, the statements made which always may be interpreted to mean something different by someone else, and the ability of clients to hear what they want to hear (and rely upon that improper understanding), you give a decent appellate lawyer a transcript and he's going to be able to make hay in all sorts of cases.

As I read it the case is well decided. Still, I'm a little surprised at the Fightin' Fourth walking away from the four corners of a contract. What next? Will the esteemed judges decide that a stop for an air freshener hanging from the rearview mirror is a pretext stop because the drug dog was there 10 seconds after the stop? (don't bet the house, folks)

---------- ---------- ----------
1 The opinion is not clear on the amount the judge decided was attributable to Mr. Wood. There were estimates from the co-conspirators of 285.5g and a guesstimate by the probation officer of 1.25kg based on co-conspirator statements that Wood had a sandwich bag and 2-3 kleenex boxes of crack. Math was never my strong point but that adds up to over 1.5kg as I do the addition. I can only assume that the judge did not give credence to the guesstimate and only found the 285.5g.

2 In fairness, the prosecutor seems to have believed that the weight would be over 1.5kg and therefore an argument as to weight would be required. Nevertheless, his statement that “there will be a more full hearing at sentencing concerning the drug weight issue” does anticipate an argument as to weight – just not the one that's at issue in this appeal.

No comments: