Wednesday, February 20, 2008

Government Did Not Breach Agreement to Make No Recommendation as to Sentence in "Package Deal" Plea Bargain

United States v. Neal Hall, No. 07-2373, (3d Cir. February 8, 2008), involves a "package deal plea bargain" in which the government accepted defendant husband’s guilty plea to willfully failing to file tax returns on the condition that co-defendant wife also plead guilty. Only Dr. Hall appealed.

Dr. Hall first argued that the District Court failed to exercise the "special care" required in determining whether a plea entered during a joint plea hearing as part of a tied plea agreement was voluntary.

The Court begins by observing that (1) "package deal" plea agreements must be disclosed to the court, and (2) colloquies must be conducted with special care to ensure the plea is voluntary. Here, although the district court did not follow a specific script, the Court found the plea was voluntary considering defendant’s education and intelligence and the fact that Dr. Hall had his own separate attorney, who he consulted during the colloquy. The Court rejected the argument that tied pleas are involuntary merely because a defendant benefits his co-defendant more than himself by pleading.

Dr. Hall’s plea agreement included a provision that the government would make no recommendation as to the sentence. Mrs. Hall’s plea agreement contained no such provision.

The joint sentencing hearing proceeded with argument from Mrs. Hall’s attorney followed by allocution and argument from Dr. Hall’s attorney followed by allocution.

The government began by responding to both defendants’ arguments. At various points, the government specified he was directing his comments toward Mrs. Grayson-Hall as he could not make a sentencing recommendation as to Dr. Hall. He asked for a sentence at the top of the guidelines for Mrs. Hall and made no recommendation as to Dr. Hall.

The government also maintained it was important to send a message in these white collar cases, arguing that because failing to file tax returns is a significant crime, a sentence of imprisonment is necessary for public perception.

Dr. Hall argued that the government breached the plea agreement by recommending a sentence of incarceration.

"[T]he doctrine that the government must adhere to its bargain in the plea agreement is so fundamental that even though the government’s breach is inadvertent and the breach probably did not influence the judge in the sentence imposed, due process and equity require that the sentence be vacated."

The Court initially distinguished between a promise to "[m]ake no recommendation as to the sentence," and a promise to take no position as to sentence, which speaks to no attempt at all to influence the defendant’s sentence.

In finding no breach of the plea agreement, the Court stressed two points. (1) The parties’ crimes and roles in the offense were identical such that government comment about one defendant necessary reflected on the other, and (2) Mrs. Greyson-Hall was sentenced first at Dr. Hall’s request thereby ensuring that the court would hear the government’s ardent advocacy concerning Mrs.Hall before it imposed sentence on Dr. Hall:

In retrospect Hall may have been unrealistic to expect, if he did so, that the Government’s statements regarding Grayson-Hall’s sentence would not have the capacity to impact on the court when it considered his sentence. In fact, Hall likely should have expected that, in light of the plea agreement reached by his wife and the identical role in the crimes played by Hall and Grayson-Hall, the Government would be making recommendations and comments as to Grayson-Hall that could affect him. There is no escape from the reality that this case differs from criminal cases . . . in which different defendants may have different roles in the offenses and may have different criminal records so that a recommendation as to one defendant will have limited or no effect on the case of another defendant. Hall and his wife committed identical offenses in identical ways and each could point to the same mitigating sentencing factors on his or her own behalf. Nonetheless, Hall proposed and consented to the manner in which his sentencing occurred, i.e., in a joint proceeding in which Grayson-Hall would be sentenced first, which gave rise to the possibility that comments meant to refer to his wife could be taken as referring to his situation as well. Hall’s express request for and consent to this arrangement, when taken in conjunction with the Government’s explicit recognition of the terms of Hall’s plea agreement and its statement that it was limiting its sentencing comments to Grayson-Hall, leads us to conclude that the Government’s comments . . . did not breach the plea agreement. . . .
The Court also rejected Dr. Hall’s argument that a guidelines sentence was unreasonable where the Guidelines "evaluate tax felonies with an element of fraud exactly the same as they do tax misdemeanors which involve no more than a willful neglect of a known statutory filing duty".

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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