Puckett v. United States

On March 25, 2009, the Supreme Court issued its opinion in Puckett v. United States, 07-9712. (See http://www.supremecourtus.gov/opinions/08pdf/07-9712.pdf). The decision was made by a 7-2 majority, with Justice Scalia writing the opinion for the majority. Justice Souter dissented, and was joined by Justice Stevens.

In any case that an attorney receives a decision he or she personally disagrees with, that attorney is tempted to complain that judges were unfair or did not understand the issues presented. That is not my intent at all. However, there are a couple points arising from the decision that may have unexpected consequences.

The first has to do with the type of prejudice required to satisfy a "plain error" evaluation under Rule 52(b). In Puckett, the majority stated: "Because, as we have explained, the breach consists of a wrongful denial of the rights obtained by the defendant through the plea agreement and does not automatically invalidate the plea, we agree with the Government that the question with regard to prejudice is not whether Puckett would have entered the plea had he known about the future violation. Cf. United States v. Dominguez Benitez, 542 U. S. 74, 83 (2004). When the rights acquired by the defendant relate to sentencing, the ‘outcome’ he must show to have been affected is his sentence." Puckett, Slip op. at 12, n.4.

Unfortunately, it is my belief that no defendant will ever be able to satisfy this requirement. 18 USC 3553(a) states that a district court, in determining the particular sentence to be imposed, "shall consider" many different types of factors provided in that statute in determining a sentence. A district court judge must by law consider all these factors in imposing sentence. As the 3rd Circuit recently noted: "To be procedurally reasonable, a sentence must reflect a district court's meaningful consideration of the factors set forth at 18 U.S.C. § 3553(a). A district court "should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decision making authority." Rita v. United States, 127 S. Ct. 2456, 168 L. Ed. 2d 203 , 2007 WL 1772146, at *12 (2007). A sentencing court need not make findings as to each factor if the record otherwise makes clear that the court took the factors into account. Cooper, 437 F.3d at 329." United States v. Lessner, 498 F.3d 185, 203 (3rd Cir. 2007).

Because a district court judge is bound by law to consider all the factors listed under 3553(a), as a practical matter, it is difficult to imagine a sentence that would ever be found by an appellate court to have been determined solely by a factor not even listed under 3553(a), i.e., an agreement by the government to take or forgo taking an action that later is determined to have been breached. In effect, Puckett forecloses all Rule 52(b) relief when the defendant fails to object to the Government's breach of a plea agreement.

Another troubling point is that the Puckett decision may really be only half of the equation. The "other shoe" that may be dropping soon is when a defendant does object to a breach of the plea agreement. In Santobello v. New York, 404 U. S. 257 (1971), the Supreme Court held "that automatic reversal is warranted when objection to the Government’s breach of a plea agreement has been preserved, but that holding rested not upon the premise that plea-breach errors are (like “structural” errors) somehow not susceptible, or not amenable, to review for harmlessness, but rather upon a policy interest in establishing the trust between defendants and prosecutors that is necessary to sustain plea bargaining—an “essential” and “highly desirable” part of the criminal process, 404 U. S., at 261–262." Puckett, slip op. at 12. However, in Puckett, the Supreme Court indicated it was an open question whether Santobello was still good law. "We need not confront today the question whether Santobello’s automatic-reversal rule has survived our recent elaboration of harmless-error principles in such cases as Fulminante and Neder." Id., n.3.

Under the "harmless-error" test, an appellate court applies Rule 52(a), which states: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded[.]" "When the defendant has made a timely objection to an error and Rule 52(a) applies, a court of appeals normally engages in a specific analysis of the district court record -- a so-called "harmless error" inquiry -- to determine whether the error was prejudicial." United States v. Olano, 507 U.S. 725, 734 (1993).

Here, Puckett has seemingly answered this question- prejudice is only established when the breach affects the "outcome" of the defendant's sentence. It arguably does not matter then if the defense attorney objects. If no prejudice resulted to the defendant from the breach, the defendant cannot prevail. Further, a breach of a plea agreement is, according to the majority, not a structural error which would preclude Rule 52(a) consideration. "[B]reach of a plea deal is not a “structural” error as we have used that term. We have never described it as such, see Johnson, supra[.]" Puckett, Slip Op. at 11. While the Puckett majority held in passing that its earlier decision in Santobello (and presumably its automatic reversal standard with no required showing of prejudice) was still applicable in cases where the Defendant objects to a plea breach, I believe that the Government will challenge an objected to breach of a plea agreement as not amounting to "harmless error" in a future appeal.

Another sign Santobello is in trouble is the Puckett majority's casting aside its brethren decisions from the same time period. In Puckett, the Supreme Court distinguished or overruled its decisions holding that a plea agreement cannot stand if induced by "misrepresentation" including "unfulfilled" promises (Brady v. United States, 397 U. S. 742 (1970) and that “when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand." (Mabry v. Johnson, 467 U. S. 504, 509 (1984)). See Slip Op. at 8-9, n.1. If these "bedrocks" of Constitutional law are not safe, can Santobello be far behind?

As Justice Souter wrote in his dissent, "Petitioner’s situation does not excite sympathy, but the Court’s holding will stand for a rule in circumstances less peculiar than those here." While the Supreme Court majority had an easy target in Mr. Puckett, the rules it set out may have unintended adverse results. The Puckett decision unfortunately may undermine the trust and confidence in the plea system and encourage United States Attorneys to breach plea agreements.

Puckett v. United States

On January 14, 2009, I argued for petitioner James Benjamin Puckett in Puckett v. United States, 07-9712, before the United States Supreme Court. With me at counsel table were Jonathan Hacker, Pamela Lakatos and M. Christina Rossi. Opposing was Assistant to the Solicitor General Lisa Schertler, and with her at counsel table was Kathleen Felton. The issue granted by the United States Supreme Court for review was: "Whether a forfeited claim that the government breached a plea agreement is subject to the plain-error standard of Rule 52(b) of the Federal Rules of Criminal Procedure." Amazingly, I don't think a single question was posed by the Justices to either side as to this issue.

I certainly could not have done this alone. The attorneys at O'Melveny & Meyers did a great job in preparing me for oral argument. I did five mock panels beforehand, which were all helpful. One of the these was held at the Georgetown Law School Supreme Court Institute, coordinated by Tina Drake-Zimmerman. Ms. Drake-Zimmerman was extremely friendly and of great assistance. Dahlia Fetouh wrote the excellent amicus brief for NACDL and kindly took the time to come to oral argument. Tom Vanderloo of the United States Sixth Circuit Court Library in Chattanooga was helpful and supportive. Richard Anderson, Jason Hawkins and Jerry Beard of the Federal Public Defender's Office of the Northern District of Texas were my foundation throughout this voyage.

In regard to the attorneys who sat with me a counsel table, Jonathan Hacker did a fabulous job on the briefs and was patient with this small town lawyer who had to throw his two cents in at every opportunity. Pamela Lakatos of Plano, Texas, is one of the finest attorneys I have ever known, and a real mentor to me. And M. Chris Rossi is a wonderful lawyer, and is an even more wonderful sister to assist her brother on this stressful day.

Oral argument itself was vigorous, to say the least. After my third sentence, Justice Ginsburg jumped in, and we were off to the races. All the justices, except for Justice Thomas, asked questions, some more pointed than others. Chief Justice Roberts seemed to be the most amenable to my client's position, but of course it is impossible to tell how the votes will come down. Justices Scalia and Alito seemed the least impressed with my arguments, and Justice Souter asked me a hypothetical in which he used the term "metaphysical." It was very challenging, and I did the best I could. My goal was not to appear to be hopelessly outclassed by the more experienced Assistant Solicitor General, and I like to think I achieved this goal.

All the pertinent documents can be found at: http://www.scotuswiki.com/index.php?title=Puckett_v._United_States. It is very rare that a sole practitioner gets to argue before the Supreme Court. I was aware of this, and felt the weight of history many times. One time was when we were being briefed by Clerk of the Supreme Court William Suter in the lawyers lounge on the day of oral argument. He could not have been nicer, but standing there before us in his morning coat and striped pants, and in the presence of numerous large portraits of former justices, it was a moment in which you felt a strong link to the history of the Court.

Another time I felt the weight of history was speaking with Justice Stevens during oral argument. Justice Stevens is a living link to some of the great justices of the past. Justice Stevens was preceded by Justice William O. Douglas. Justice Douglas had served with Associate then Chief Justice Harlan Stone. Associate/Chief Justice Stone had served with Justices Brandeis, Holmes, Cordozo and Taft, among others. How many poor souls had tried to match wits with these giants who have sat on the lofty bench of the Supreme Court? Not many have had this opportunity, but all probably felt as nervous as I did.

Two quotes from two very different authors seem appropriate, if not directly on point. First, Chief Justice Marshall wrote the following in his opinion in the Aaron Burr treason trial in 1807: "That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true." My hope is that the Supreme Court does not retreat from a bright line rule that a plea induced by a false promise cannot stand. There are many reasons why the Supreme Court loathes an automatic reversal rule- but, the repugnancy of such a rule pales in comparison to the repugnancy of allowing our government to trick a citizen into giving away his or her Constitutional rights to trial and due process of law.

The second quote is from recently-deceased author John Mortimer. In his short story "Rumpole and the Man of God," fictional aged lawyer T.C. Rowley ("Uncle Tom"), in lecturing his younger London temple-mates on the long-past workings of chambers, states: "We had no work in those days . . . No work of any kind. We spent our days practising chip shots, trying to get an old golf ball into the waste-paper basket with [a mashie niblick]. . . . Being able to defend myself with a club-like object would have been good training for my recent experience!