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Federal Judiciary

: Ninth Circuit Blog

Case o' The Week: Broaching the Breach - Whitney and Prosecutorial Breach of Plea Agreements

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"The government's argument [on appeal] is disingenuous."

Expect good things to follow, when the analysis of an AUSA'sbreach of a plea agreement begins with that blunt assessment. United States v.Whitney, 2012 WL 718483, *4 (9th Cir. Mar. 7, 2012), decision available here.

Players: Decision by JudgeReinhardt, joined by Judges B. Fletcher and Tashima.

Facts: While incarcerated foranother (similar) offense, Whitney filed false tax returns. Id. at *1. He was charged, then cooperated,and then ultimately pleaded guilty pursuant to a plea agreement. Id.

In the plea agreement the governmentpledged to recommend the low-end of the guideline range, and promised it wouldn?tuse information from Whitney?s debrief. Id.The agreement permitted both parties to contest a role adjustment. Id. The PSR identified three inmates inthe scheme, but failed to identify how Whitney "managed" others. Id. Nonetheless, Probation recommendedthe two-level upward adjustment, and a whopping upward departure to 87 months (double the guideline range). Id. at *2.

Whitney's defensecounsel contested the role adjustment at sentencing. Id.The AUSA then recommended ?the low end of the guidelines as we have obligatedourselves to do.? Id. She then arguedfor the +2 OL role adjustment, explaining that Whitney ?supplied information tome during his debriefing session that put himself in a supervisory role, atwo-level increase.? Id.

Defense counseldidn?t object to this argument.

The district court found the role adjustment applied, and departed upwards to 87months. Id.

Issue(s): ?[Whitney] contends that theU.S. Attorney breached the parties? plea agreement by disclosing admissionsmade by Whitney while cooperating with the government, and by urging impositionof a sentence above the low end of the Sentencing Guidelines.? Id. at *1.

Held: ?Although the prosecutoruttered the requisite words by recommending a sentence at the low-end of theguidelines, her additional statements constituted an argument for a higher sentence,breached the government?s obligation to recommend a low-end Guideline sentence,and likely had an impact on the far-above-guideline sentence imposed . . . The prosecutor?s reference to inculpatory statements made by Whitneyduring the course of his cooperation bore on the applicability of the two-levelsentencing enhancement as well and similarly constituted an obvious breach.? Id. at *4. ?We hold that the breach ofthe plea agreement by the U.S. Attorney resulted in plain error that affectedWhitney?s substantial rights.? Id. at*1.

Of Note: This would be a great breachdecision in any context, but is a particularly potent case because JudgeReinhardt grants relief despite undertaking plain error review. Id. at *3. Olano plain error is that bane of the defense on appeal: a four-part test that usually results in a governmentwin. Id. at *3. Judge Reinhardt notonly finds ?plain? error in the breach -- he also explains that the breachaffected Whitney?s substantial rights, id.at *5, and affected the fairness and integrity of the judiciary, id. at *6.

Whitney make breaches even more dangerous for the government,because even if trial counsel fails to object the defendant can prevail -- onplain error ? on appeal. The remedy? Specific performance and a different district judge on remand! Id. at *9.

How to Use: Whitney also reverses the sentence because insufficient factssupported the leadership role enhancement. Id.at *1. It is an equally valuable decision on that issue; Judge Reinhardtcarefully explains the necessary "level of control" to support this adjustment ?facts not found in Whitney. Id. at *7-*8.

Footnote six is of specialinterest ? the Court there eviscerates the government?s argument that 1993amendments to the guidelines altered the showing necessary for a leadershiprole. Id. at 7 & n.6. Read andrely on Whitney when fightingleadership adjustments.

For Further Reading: President Carter appointed the three judges on this panel: Judges Reinhardt,B. Fletcher, and Tashima. It is, sadly, increasingly rare to see a three-judgepanel of Carter appointees ? even this Whitneypanel features two senior Ninth Circuit judges (Judges B. Fletcher and Tashima).

For a very interestingdiscussion of the unusually large Carter ?cohort? of Ninth judges and their tremendousimpact on this Circuit, see Susan B.Haire, Judicial Selection andDecisionmaking in the Ninth Circuit, 48 AZLR 267 (2006).

Trailer still of "Breach" from http://www.annyas.com/screenshots/images/2007/breach-trailer-title-still.jpg

Portrait of President Jimmy Carter from http://en.wikipedia.org/wiki/File:James_E._Carter_-_portrait.gif

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

Full post as published by Ninth Circuit Blog on March 10, 2012 (boomark / email).