Thanks to Federal Defenders of New York and their Blog: circuit2.blogspot.com.
Appellate waiver: In United States v. Suriel, No. 08-3952-cr (2d Cir. June 4, 2009), the court held that the wording of a Southern District plea agreement’s appellate waiver permitted the defendant to appeal an adverse “safety valve” determination. That means that a blanket waiver of appeal in plea bargains is not necessarily “blanket.” I have seen appeal waivers in plea bargains so complete that they appear to waive appeals of sentences that are clearly illegal. Waivers like these are worthless. Sometimes prosecutors get too tough for their own good.
Speedy trial: The defendant claimed his “right to a speedy trial” was violated. The government countered that some of the time had been properly excluded to give the parties time for plea negotiations, and that plea negotiations are automatically excluded as “other proceedings concerning the defendant” under § 3161(h)(1) of the Speedy Trial Act, with no “ends of justice” finding required.
While two other circuits have so held, the Second Circuit is “not yet convinced” by this argument. The phrase “other proceedings” typically refers to “formal judicial processes,” and the law itself includes as examples “formal processes over which the parties have no direct control.” Plea negotiations, by contrast, are controlled by the parties, not the court, and thus do not “fit comfortably into the ‘other proceedings’ section.”
Unfortunately for the defendant, the Court identified a single day during the 70-day period on which the district court held a status conference. Since a status conference is definitely a “proceeding,” and is “very similar” to the examples listed in § 3161(h)(1), that day was automatically covered by the district court’s exclusion order, and did not require an “ends of justice” finding. The court’s thoughtful analysis is thus merely dicta – not binding—but should be argued in any case where the government argues “plea negotiations” as excludable time. United States v. Lucky, No. 08-1939-cr (2d Cir. June 19, 2009)
Cooperation: In 1998, a defendant signed a cooperation agreement, which included a list of his assets that he agreed to forfeit to the government. Three years later, it emerged that the defendant had misled the government about some of his assets – millions of dollars hidden in Switzerland. His explanation was that, at the time of his original cooperation, he believed that the money had been appropriated by one of his associates. He later learned that this was not true, but did not tell the government, a violation of his cooperation agreement. As a result of this, in 2001, he pled guilty to making false statements to the government.
The government, however, decided to honor the cooperation agreement and made a 5K1.1 motion, urging a “substantial” sentence reduction in light of Defendant’s “extensive” cooperation.
The district court was unconvinced and took into account what it perceived to be the government’s “customary practice” of voiding plea agreements whenever a defendant violates one of its terms. The Appellate court rejected the district court’s reasoning and said there was no evidence before the district court that such a practice existed, and it was procedural error to rest a sentence on a “clearly erroneous finding of fact.” United States v. Timewell, No. 07-4587-cr (2d Cir. June 1, 2009).
Age: In United States v. Hamilton, No. 07-2874-cr (2d Cir. April 14, 2009), the court vacated a sentence under Kimbrough where the district court indicated that it would not consider the defendant’s age because the guidelines forbade it. The circuit would not “assume that the district court understood that it had discretion to consider age and its correlation with recidivism.”
Moving to Withdraw: In United States v. Cayce, No. 08-3784-cr (2d Cir. April 2, 2009), the court remanded the case for further consideration of the defendant’s motion to withdraw his plea. It noted that at least two factors supported the motion: he moved to withdraw on the next business day after the plea hearing, and the basis was a statute of limitations defense, a claim of “legal – though not factual – innocence.” Case after case shows the importance of timing. You wait too long and no matter how valid your argument is, you stand a good chance of losing.