WHITE COLLAR CRIME
Keeping the Government To Its Promises Again
By: Kathryn Keneally
The Second Circuit in United States v. Vaval1 provides a reason to revisit a topic discussed in the most recent edition of this column and in several previous columns: the need for courts to keep the government to its promises. The court in Vaval took up the issue of determining when the government's actions at sentencing violates a plea agreement, and set out the factors to be considered in determining an appropriate remedy.
Allegations and the Deal
The facts in Vaval are not of the white-collar crime variety. The defendant was charged with carjacking, robbery of federal money using a dangerous weapon, and other firearm violations. In particular, the government alleged that the defendant promised to sell firearms to a confidential informant, but instead ambushed the informant and stole the money that the government had provided for the purchase, among other items. The court depicts other alleged crimes and the details of a high-speed chase and apprehension.
The defendant pled guilty to the charge of robbery of federal property with a dangerous weapon, and specifically allocated to planning the robbery.2 The government reserved to itself the right to "advise the Court and the Probation Department of information relevant to sentencing, including criminal activity engaged in by the defendant."3 In key and not uncommon language, however, the government agreed to: (1) "take no position concerning where within the Guidelines range determined by the Court the sentence should fall," and (2) "make no motion for an upward departure."4 These provisions were expressly "based upon information now known to the U.S. Attorney's Office," and the agreement included, again in not uncommon language, terms stating that the government would not be bound if it later learned "information relevant to sentencing" or if the defendant violated the agreement.5
Presentence Report and the Government's Conduct at Sentencing
The presentence report (PSR) varied in several ways from the plea agreement. First, the PSR stated a higher offense level, because it included a two-level increase for fleeing the police in a dangerous manner. The PSR also noted that the defendant had acknowledged a supervisory role and that there appeared to be more than five participants, but accepted the two-level adjustment set out in the plea agreement for this factor rather than the three-level adjustment called for by these facts. Most significantly, the PSR found that the criminal history category set out in the plea agreement was in error because it included outdated crimes, and determined that a criminal history category of II rather than III should apply.6
At sentencing, the prosecutor argued for the three-level adjustment for a supervisory role, rather than a two-level adjustment. Defense counsel objected to the argument as a breach of the plea agreement. The court relied on the two-level adjustment, stating a belief that the one-level difference would not affect the sentence.7
Defense counsel then argued for a sentence at the low end of the guideline range, and the defendant apologized and asked for leniency. In response, the prosecutor began by acknowledging that the government had waived its right to ask for an upward departure or to argue for a particular sentence within the applicable guideline range.8 The prosecutor continued nonetheless.
The prosecutor brought to the sentencing court's attention that the government had been mistaken in its calculation of the criminal history category, stating: "I find the defendant's criminal history appalling."9 The prosecutor then depicted the defendant's apology as "disingenuous," emphasizing the violence of the defendant's past crimes. Finally the prosecutor detailed the offense of conviction, describing the defendant as a "ring leader" who "punched the victim in the face," "orchestrated three people who were armed with guns...[including] an Intratek AB-10 semi automatic assault weapon," to have been "lying in wait for a victim," and to have intended that the victim "was going to be killed."10 In conclusion, the prosecutor stated: "I just ask the Court to consider all of that when making the Court's decision about where to sentence this defendant."11
The defense objected that the government was violating the plea agreement. In response, the prosecutor stated: "we don't make a promise that we will be silent at sentencing."12 The prosecutor also asserted that while the government was not making the argument for an upward departure as a result of its error in calculating the criminal history category at the time of sentencing, it believed that it could do so.13
The sentencing judge acknowledged the defense concerns, but stated that there was no resulting prejudice. Noting that the court was familiar with the evidence from the trial of the co-defendants, the judge sentenced to the top of the guideline range.14... Read More
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