United States v. Griffin ( 2007 )

05-4016-cr
United States v. Griffin
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2006
4 (Argued: December 19, 2006 Decided: December 21, 2007)
5 Docket No. 05-4016-cr
6 -------------------------------------
7 UNITED STATES OF AMERICA,
8 Appellee,
9 - v -
10 MICHAEL J. GRIFFIN,
11 Defendant-Appellant.
12 -------------------------------------
13 Before: POOLER, SACK, and WESLEY, Circuit Judges.
14 The defendant-appellant, Michael Griffin, pleaded
15 guilty, pursuant to a plea agreement, in the United States
16 District Court for the Western District of New York (Charles J.
17 Siragusa, Judge), to one count of possession of child pornography
18 in violation of 18 U.S.C. § 2252A(a)(5)(B), after unlawfully
19 downloading such images to his computer using a peer-to-peer
20 file-sharing program. The defendant appeals from the portion of
21 the judgment of conviction sentencing him principally to 120
22 months' imprisonment, arguing, inter alia, that the government
23 breached the parties' plea agreement by advocating against an
24 acceptance of responsibility adjustment.
1 Remanded for resentencing by another judge. Judge
2 Wesley dissents in a separate opinion.
3 BRUCE R. BRYAN, Syracuse, NY, for
4 Defendant-Appellant.
5 TIFFANY H. LEE, Assistant United States
6 Attorney (Terrance P. Flynn, United
7 States Attorney for the Western District
8 of New York, of counsel), Rochester, NY,
9 for Appellee.
10 SACK, Circuit Judge:
11 While there are aspects of this case that may implicate
12 complicated and difficult issues at the unhappy intersection of
13 computer technology and child pornography, we need not and
14 therefore do not address them. The resolution of this appeal
15 hinges on the narrow question of whether the government adhered
16 to the terms of the plea agreement between it and the defendant
17 during sentencing proceedings. Because we conclude that the
18 government breached the plea agreement, we vacate the sentence
19 and remand for resentencing by another district judge.
20 BACKGROUND
21 On November 23, 2004, the defendant pleaded guilty
22 pursuant to a written plea agreement to one count of possession
23 of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
24 By pleading guilty, he admitted that he "knowingly possessed
25 material that contained images of child pornography . . . [that]
26 had been . . . transported in interstate . . . commerce by any
27 means, including by computer . . . ." Plea Agreement of Michael
28 J. Griffin, dated November 23, 2004, in the United States
2
1 District Court for the Western District of New York, at ¶ 6 (the
2 "Plea Agreement").
3 This prosecution arose out of an FBI investigation
4 involving the defendant's use of a peer-to-peer file sharing
5 program called KaZaA (sometimes spelled "Kazaa"). Broadly
6 speaking, KaZaA is a computer program, downloaded to a computer,
7 that allows the computer's user to share and obtain, via the
8 Internet, many types of digital files including photographs and
9 video recordings. The program enables the user to create and
10 maintain a "shared folder" ("KaZaA Shared Folder") on his or her
11 computer's hard drive which, when enabled, allows other users to
12 download files located in that KaZaA Shared Folder onto their own
13 computer's hard drive. A KaZaA user can enable a feature in the
14 program called "sharing disabled" which prevents other KaZaA
15 users from downloading any file from the original user's
16 computer, even if the file is located in the latter's KaZaA
17 Shared Folder. While the "sharing disabled" feature is enabled
18 on a KaZaA user's computer, however, he or she cannot download
19 files from other KaZaA users.1
1
See also United States v. Sewell, 457 F.3d 841, 842 (8th
Cir. 2006) (describing how KaZaA works and noting that after an
individual "downloads" a file from another user's shared folder,
"[t]he downloaded file will automatically be placed in the user's
[KaZaA] Shared Folder to be searched and downloaded by other
users unless the local user disables this feature"). See
generally Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380
F.3d 1154, 1158–59 (9th Cir. 2004) (describing mechanics of peer-
to-peer file sharing software), vacated and remanded, 545 U.S.
913 (2005).
3
1 In the plea agreement, Griffin admitted that in October
2 2003, he had opened approximately ten child pornography images
3 acquired using KaZaA and had deleted six of the images, but that
4 at least four of the images remained on his computer's hard
5 drive. He further acknowledged that he moved two of these images
6 into the "My Documents" folder on his hard drive, and that one of
7 these images depicted a minor under the age of twelve years old.
8 During the plea colloquy before the district court, the
9 government explained that it had not given, and would not give,
10 the defendant a copy of his computer's hard drive, which it had
11 confiscated in accordance with its policy of treating hard drives
12 containing child pornography as contraband, but that the
13 defendant and his representatives could view the images in the
14 government's offices.
15 The plea agreement left unresolved a variety of
16 disputes between the government and Griffin concerning the
17 application of the United States Sentencing Guidelines, including
18 the proper determination of the defendant's adjusted offense
19 level and the application of several possible enhancements. In
20 order to address these disputes, the district court held an
21 evidentiary hearing that took the better part of four days during
22 June and July 2005. The hearing included testimony from several
23 computer forensic experts on behalf of the government and one on
24 behalf of the defendant. Testimony at these hearings focused on
25 the contents of the defendant's computer hard drives, the initial
26 FBI report produced after the defendant first was interviewed
4
1 following a search of his home and seizure of his computers, and
2 the operation of KaZaA.
3 The district court adopted the recommendation of the
4 Probation Office and the government as to the calculation of the
5 Guidelines sentence. It is undisputed that the defendant's base
6 offense level was fifteen. Based on the defendant's use of
7 KaZaA, the district court then applied a cross-reference for
8 "trafficking," which added two levels, United States Sentencing
9 Guidelines Manual ("U.S.S.G.") § 2G2.2(c)(1), and increased the
10 offense level by an additional five levels for distribution with
11 the expectation of receipt of a thing of value, but not pecuniary
12 value, id. § 2G2.2(b)(2)(B). The district court also applied
13 three more two-level enhancements -- for the use of a computer,
14 id. § 2G2.2(b)(5), possession of a photograph of a minor under
15 the age of twelve, id. § 2G2.2(b)(1), and possessing more than 10
16 but fewer than 150 images, id. § 2G2.2(b)(6)(A) -- and a four-
17 level enhancement for possession of photographs that included
18 sadistic or masochistic conduct, id. § 2G2.2(b)(3). This
19 resulted in an adjusted total offense level of thirty-two.
20 The defendant had no previous criminal record, so his
21 criminal history fell within category I. The applicable advisory
22 Guidelines range was therefore 121 to 151 months. The district
23 court sentenced Griffin to the statutory maximum sentence of ten
24 years' (120 months') imprisonment. The district court also
25 imposed a life term of supervised release, which included
26 requirements that the defendant register as a sex offender in
5
1 whichever state in which he lives and that he be subject to
2 searches of his person or property for the duration of the term
3 of supervised release.
4 Acceptance of Responsibility
5 In the plea agreement, the government agreed "not to
6 oppose the recommendation that the Court apply the two (2) level
7 downward adjustment of Guidelines §3E1.1(a) (acceptance of
8 responsibility) and further agree[d] to move the Court to apply
9 the additional one (1) level downward adjustment of Guidelines
10 §3E1.1(b)." Plea Agreement at ¶ 12. However, the agreement also
11 permitted the government to "respond at sentencing to any
12 statements made by the defendant or on the defendant's behalf
13 that are inconsistent with the information and evidence available
14 to the government." Id. at ¶ 18b.
15 Prior to sentencing, the defendant submitted his
16 objections to the initial Presentence Investigation Report
17 ("PSR"), which outlined Griffin's sentencing arguments, including
18 his objections to many of the Guidelines enhancements discussed
19 above. See Defendant's Response to Presentence Investigation
20 Report, dated March 24, 2005 ("Def's March 24 Response"). Of
21 particular note, Griffin argued that the feature of his KaZaA
22 program that disabled its file-sharing capability remained active
23 nearly all of the time, which counseled against applying a cross-
24 reference for trafficking and a further enhancement for
25 distribution. Id. at 3. He further contended that he was an
6
1 inadvertent child-pornography user because the PSR identified
2 only eight of more than 4,500 images on his computer as depicting
3 minors. Id. Griffin also asserted that there was no proof that
4 he knowingly possessed a particularly lewd and notorious video
5 that prompted the application of a four-level enhancement for
6 sadistic or masochistic conduct. Id. at 4-5. The apparent
7 overarching objective of the defendant's objections was to narrow
8 the conduct underlying sentencing to that which Griffin admitted
9 in the plea agreement.
10 In a letter to the district court following the receipt
11 of the defendant's objections to the PSR, the government wrote:
12 [T]he government is troubled by some of the
13 defendant's objections which seem to raise
14 questions regarding whether the defendant has
15 truly accepted responsibility . . . .
16 However, the defendant did timely notify
17 authorities of his intention to enter into a
18 guilty plea, thereby permitting the
19 government to avoid preparing for trial and
20 permitting the government and the court to
21 allocate their resources efficiently.
22 If the Court finds that the defendant is
23 entitled for [sic] the two-level downward
24 adjustment pursuant to Guidelines §3E1.1(a)
25 for clearly demonstrating acceptance of
26 responsibility, the government submits that
27 the defendant, based on his actions in
28 promptly entering a guilty plea, would be
29 entitled to the further one-level decrease
30 pursuant to § 3E1.1(b).
31 Statement of the Government with Respect to Sentencing Factors
32 and Motion Pursuant to U.S.S.G. § 3E1.1(b), dated March 31, 2005,
33 at 1-2 ("Gov't March 31 Statement").
7
1 The government elaborated on its views in its
2 subsequent sentencing brief. There it said that it found
3 "troubling . . . the fact that the defendant is now attempting to
4 distance himself from the other images and movies found in his
5 possession." Government's Response to Defendant's Response to
6 the Presentence Report, dated Apr. 15, 2005, at 20 ("Gov't April
7 15 Response"). The defendant's conduct therefore "le[d] the
8 government to question whether the defendant has truly accepted
9 responsibility." Id. at 21. The government brief also
10 synthesized cases and commentary related to acceptance of
11 responsibility, noting that "while a guilty plea combined with
12 truthful statements about the defendant's offense and other
13 relevant conduct is 'significant evidence' of acceptance of
14 responsibility, 'it can be outweighed by conduct that is
15 inconsistent with acceptance of responsibility.'" Id. at 21–22
16 (quoting United States v. Ortiz, 218 F.3d 107, 108 (2d Cir. 2000)
17 (per curiam)). The government concluded:
18 It is unclear whether the defendant's
19 objections to the inclusion of all the
20 relevant conduct rises to the level of
21 outweighing his acceptance of responsibility.
22 Suffice it to say that the defendant's
23 objections to the relevant conduct raises
24 [sic] questions on the issue of acceptance.
25 Id. at 22.2
2
The government also noted that it did not object to the
defendant's arguments that the disputed Guidelines enhancements
did not apply and was well aware of the defendant's intent to
disagree on these points. Gov't April 15 Response at 20.
8
1 The district court thereafter made the following
2 determination:
3 While the Government, for purposes of the
4 plea, agreed not to oppose a recommendation
5 that I reduce your offense level by a total
6 of three for acceptance of responsibility, I
7 have found otherwise. The Government has not
8 taken any position on that and they have not
9 opposed it. On its own, based on the posture
10 of this case and finding of facts, the Court
11 has denied that.
12 Sent'g Hr'g Tr., July 14, 2005, at 29.
13 The defendant now challenges his sentence on several
14 grounds: (1) The government's refusal to provide to him a copy of
15 the confiscated computer hard drives constitutes a violation of
16 Rule 16 of the Federal Rules of Criminal Procedure and Brady v.
17 Maryland, 373 U.S. 83 (1963); (2) the district court's
18 determination that he trafficked and distributed child
19 pornography through his use of KaZaA; (3) the district court's
20 denial of a downward adjustment for acceptance of responsibility;
21 (4) the government's alleged breach of the plea agreement by
22 encouraging the district court to deny an adjustment for
23 acceptance of responsibility; (5) the propriety of the term and
24 provisions of his supervised release; and (6) an alleged
25 violation of the Constitution's Ex Post Facto Clause. Because we
26 conclude that the government breached the plea agreement, which,
27 in this case, requires remand for resentencing de novo, we
28 decline to address the defendant's other arguments.
29 DISCUSSION
30 I. Breach of the Plea Agreement
9
1 A. Legal Standard and Standard of Review
2 We review interpretations of plea agreements de novo
3 and in accordance with principles of contract law. United States
4 v. Riera, 298 F.3d 128, 133 (2d Cir. 2002) (citing United States
5 v. Padilla, 186 F.3d 136, 139 (2d Cir. 1999)). "To determine
6 whether a plea agreement has been breached, we 'look[] to the
7 reasonable understanding of the parties as to the terms of the
8 agreement.'" Id. (quoting United States v. Colon, 220 F.3d 48, 51
9 (2d Cir. 2000)). "Because the government ordinarily has certain
10 awesome advantages in bargaining power, any ambiguities in the
11 agreement must be resolved in favor of the defendant." Id.
12 (citations and internal quotation marks omitted). Where plea
13 agreements are involved, the government must take particular
14 "'care in fulfilling its responsibilities.'" United States v.
15 Lawlor, 168 F.3d 633, 637 (2d Cir. 1999) (quoting United States
16 v. Brody, 808 F.2d 944, 948 (2d Cir. 1986)).3
17 Because the defendant did not argue in the district
18 court that the government breached the plea agreement, the
19 government asserts that we must review the argument for plain
20 error. We have held to the contrary that "a defendant is not
3
The statement in Lawlor is that the government must "take
much greater care in fulfilling its responsibilities." Lawlor,
168 F.3d at 637 (emphasis added). The context of the statement
in the opinion from which this repeated admonishment first
emanated suggests that "much greater" means "much greater than
the government in fact exercised." See United States v.
Januszewski, 777 F.2d 108 (2d Cir. 1985), cited in Brody, 808
F.2d at 948.
10
1 required to object to the violation of a plea agreement at the
2 sentencing hearing." Lawlor, 168 F.3d at 636 ("Lawlor's claim
3 [that the government breached the plea agreement] is not barred
4 by his failure to raise this issue with the District Court, nor
5 are we bound to apply a plain error standard of review."). The
6 defendant need not demonstrate that any error as to the
7 government's compliance with his plea agreement satisfies plain
8 error review.
9 B. The Government's Breach
10 Whether the government breaches a plea agreement by
11 making allegedly impermissible comments to the sentencing court
12 has been the subject of substantial discussion in this Circuit.
13 Our cases have not yielded a bright-line rule as to the leeway
14 the government has with respect to what it tells the court while
15 operating under such an agreement. "[The] circumstances must
16 [therefore] be carefully studied in context, and where the
17 government's commentary reasonably appears to seek to influence
18 the court in a manner incompatible with the agreement, we will
19 not hesitate to find a breach, notwithstanding formal language of
20 disclaimer." United States v. Amico, 416 F.3d 163, 167 n.2 (2d
21 Cir. 2005).
22 Amico, upon which the government exclusively relies,4
23 contains our most recent application of such a fact-specific
4
The government refers to the case as United States v.
Peters. Peters was the sole appellant in the appeal. But Amico
was the first named defendant in the official caption of the
case, and we therefore refer to it using his name.
11
1 analysis. There, the defendant-appellant made several arguments
2 to support his contention that the government had breached its
3 plea agreement with the him.
4 First, the defendant-appellant argued that the
5 government's statement that it "adopts the findings of the
6 revised Presentence Investigation Report" violated the plea
7 agreement insofar as this endorsement advocated, by reference,
8 the imposition of a higher sentence than that to which the
9 parties agreed. Id. at 165. Once notified of this violation,
10 however, the government filed an amended statement explaining
11 that it expressly did not advocate the additional enhancements,
12 and it reiterated that position several times thereafter. Id.13 We noted that "a retraction of an argument advanced by the
14 government in violation of its plea agreement would [not] always
15 cure its breach," but concluded that, "upon careful examination
16 of all the circumstances, especially the mild, brief, and
17 unassertive form of the statement and its rapid retraction, . . .
18 the temporary breach was adequately cured." Id.19 Second, the defendant-appellant argued that a
20 government memorandum of law, submitted in response to his
21 objections to the Presentence Investigation Report, violated the
22 plea agreement by advocating a position on an issue about which
23 the plea agreement did not permit discussion. We rejected the
24 argument, concluding: "[The defendant-appellant] opened the door
25 to this response when he attempted to characterize the criminal
26 scheme in a manner favorable to himself, minimized the importance
12
1 to the criminal scheme of the mortgage brokers, and claimed not
2 to have known supporting documentation accompanying the loan
3 applications was false." Id. Moreover, the government's
4 discussion of the state of the law in response to the defendant-
5 appellant's "inaccurate description of the law" was considered an
6 appropriate response that was permitted by the agreement,
7 particularly because it was surrounded by several statements to
8 the effect that the government did not intend to advocate the
9 imposition of the additional enhancement. Id. at 166.
10 Similarly, in Riera, the prosecution and the defense
11 agreed that "neither party will seek . . . a departure," and that
12 neither party will "suggest that the Court sua sponte consider
13 such a departure." 298 F.3d at 133–34. The plea agreement also
14 permitted the parties to respond to inquiries from the district
15 court in the event that the court "contemplate[d] any Guidelines
16 adjustments, departures, or calculations different from those
17 stipulated to [in the agreement]." Id. at 134 (second brackets
18 in original). The defendant asserted that the government
19 breached the agreement when it argued by letter that the district
20 court "would be well within its discretion in upwardly departing"
21 before explaining in detail why such a departure would be
22 appropriate. Id. (internal quotation marks and citation
23 omitted). We stated that the government's letter was "too close
24 in tone and substance to forbidden advocacy to have been
25 well-advised," id. at 134, and "came very close to breaching the
26 agreement," id. at 135.
13
1 We found no breach, however, for three reasons: First,
2 the letter was submitted in response to a solicitation by the
3 court. Id. at 134-35. Second, the plea agreement expressly
4 permitted a response to a request from the district court to set
5 forth the relevant facts and advise the court whether a departure
6 would conform to the law. Id. at 135; see also United States v.
7 Goodman, 165 F.3d 169, 172-73 (2d Cir.) (finding no breach where
8 the government responded to a specific request from the district
9 court to "supply the Court with the law and the facts" without
10 advocating that such an adjustment should be imposed), cert.
11 denied, 528 U.S. 874 (1999). Third, the government "did not
12 explicitly advocate a departure" and thereafter repeatedly
13 asserted that it was responding to the court's request but was
14 not advocating an upward departure, in line with the plea
15 agreement. Id. at 135-36.
16 In United States v. Vaval, 404 F.3d 144 (2d Cir. 2005),
17 we reached the opposite conclusion. There, the defendant pleaded
18 guilty pursuant to a plea agreement to robbery of federal
19 property with a dangerous weapon. Id. at 149. According to the
20 plea agreement, the government was not permitted to "take [a]
21 position concerning where within the Guidelines range determined
22 by the Court the sentence should fall," or to "make [a] motion
23 for an upward departure," as long as no new "information relevant
24 to sentencing" was discovered subsequent to the effective date of
25 the plea agreement. Id. The plea agreement incorrectly
26 calculated the defendant's criminal history to fall within
14
1 category III rather than category II. Id. at 149. At
2 sentencing, the government acknowledged that the plea agreement
3 prevented the government from seeking an upward departure or
4 recommending a particular sentence within the guideline range,
5 but nonetheless stated, inter alia:
6 I find this defendant's criminal history
7 appalling. And the fact that he can sit here
8 today and say that he made a mistake, I find
9 completely disingenuous. Because it is a mistake
10 that he has made over and over and over again in
11 terms of robbing people at gun point and using
12 violence to commit robberies. I understand that
13 the guidelines preclude us from looking at or
14 calculating certain offenses. But certainly this
15 is not this defendant's first or second offense.
16 Id. at 150. The government, after recounting the factual basis
17 for the defendant's conviction, said: "I just ask the Court to
18 consider all of that when making the Court's decision about where
19 to sentence this defendant." Id. The government concluded:
20 "[B]ased on the information that I had at [the] time [of the plea
21 agreement,] I believed that the defendant was going to be in a
22 [CHC] category three. He is in a category two. I think,
23 technically, I could make an upward departure which I am not."
24 Id. (first brackets added).
25 The district court, which presided over the trial of
26 Vaval's co-defendants, acknowledged the defendant's objections to
27 the government's statements, but asserted that "[t]he
28 government's remarks do not change any view that the Court had of
29 this case coming out here." Id.15
1 We first noted that statements by the government
2 asserting that it did not intend to violate the plea agreement
3 "do not . . . insulate the government against a finding of breach
4 if in fact what was said constituted an argument about where
5 within the range to sentence appellant and/or whether to upwardly
6 depart." Id. at 153. We then concluded that the government's
7 "highly negative characterizations" of the defendant's criminal
8 history did not qualify as mere "information," and that a
9 statement that the government "technically" could make an upward
10 departure recommendation effectively qualified as such a
11 recommendation. Id. ("It is difficult to draw a principled
12 distinction between the government actually moving for an upward
13 departure and stating that it 'technically' could move for such a
14 departure and then adding arguments that would support such a
15 departure."). Furthermore, unlike the government's court-
16 solicited statements in Riera, "all relevant legal and factual
17 information had already been provided to the court, and the
18 government's statements served no purpose other than to advocate
19 that the court upwardly depart or impose a high sentence within
20 the Guidelines range." Id. at 154. As a result, we decided, the
21 government had breached the plea agreement. See also Lawlor, 168
22 F.3d at 637 (finding that the government breached the plea
23 agreement by asserting that the PSR properly determined the
24 Guidelines range where the plea agreement calculated the range
25 under a different (and lower) Guidelines range); United States v.
26 Enriquez, 42 F.3d 769, 770-71 (2d Cir. 1994) (vacating the
16
1 sentence based on the government's violation of the plea
2 agreement by arguing against a downward adjustment for acceptance
3 of responsibility where the plea agreement required the
4 government to "agree to a Probation Department finding that the
5 defendant is entitled to a two-level adjustment for acceptance of
6 responsibility").5
7 We have also strictly enforced plea agreements against
8 the government where, as here, the disputed issue concerned
9 enhancements or adjustments to a defendant's total offense level
10 rather than a specific sentence within a given Guidelines range
11 or an upward or downward departure from that range. In United
12 States v. Palladino, 347 F.3d 29 (2d Cir. 2003), the plea
13 agreement prohibited the government from moving for an upward
14 departure from the Guidelines range estimated in the agreement
15 "based on information known to [the United States Attorney's
16 Office] at this time." Id. at 33. The estimated total offense
17 level on which that range was based, however, was "not binding"
18 on the government, and the defendant was not permitted to
5
We have also applied this analytical framework to
government breaches of plea agreements after the initial sentence
has been executed. See United States v. Carbone, 739 F.2d 45,
46-47 (2d Cir. 1985) (concluding that the government breached its
promise to "make no recommendation to the sentencing judge as to
the sentence which Stephen Carbone may be given" when it
strenuously opposed a "split sentence" requested by the defendant
after the district judge announced a 30-month term of
imprisonment); United States v. Corsentino, 685 F.2d 48, 51–52
(2d Cir. 1982) (finding that the government breached the plea
agreement when, despite its agreement to "take no position" on
the defendant's sentence, it advocated against permitting the
possibility that the defendant might receive an earlier parole).
17
1 withdraw his plea if the government advocated for a different
2 offense level. Id. The agreement calculated the adjusted
3 offense level to be ten. Id. At sentencing, the government
4 sought a six-level enhancement based on information it conceded
5 was not new. Id. at 34. We concluded that this violated "the
6 language and the spirit" of the plea agreement, id. at 30; at
7 best, the language was ambiguous and was therefore construed
8 against the government, id. at 34.
9 In Griffin's plea agreement, the government committed
10 itself "not to oppose the recommendation that the Court apply the
11 two (2) level downward adjustment of Guidelines §3E1.1(a)
12 (acceptance of responsibility) and further agree[d] to move the
13 Court to apply the additional one (1) level downward adjustment
14 of Guidelines §3E1.1(b)." Plea Agreement at ¶ 12. The agreement
15 also permitted the government to "respond at sentencing to any
16 statements made by the defendant or on the defendant's behalf
17 that are inconsistent with the information and evidence available
18 to the government." Plea Agreement at ¶ 18b.6
19 In response to the defendant's objections to the PSR,
20 the government discussed the possible downward adjustment for
6
In Griffin's plea agreement, the government was permitted
to "advocate for a specific sentence within the Guidelines range"
and to "modify its position with respect to any sentencing
recommendation or sentencing factor under the Guidelines . . . in
the event that subsequent to this agreement the government
receives previously unknown information regarding the
recommendation or factor." Plea Agreement at ¶ 18. Neither
party cites either of these provisions on this appeal, so we do
not consider their relevance, if any.
18
1 acceptance of responsibility under U.S.S.G. § 3E1.1 in two
2 separate written submissions to the district court. It first
3 noted that "the government is troubled by some of the defendant's
4 objections which seem to raise questions regarding whether the
5 defendant has truly accepted responsibility." Gov't March 31
6 Statement, at 1. But the submission continued: "However, the
7 defendant did timely notify authorities of his intention to enter
8 a guilty plea, thereby permitting the government to avoid
9 preparing for trial and permitting the government and the court
10 to allocate their resources efficiently." Id. at 1-2. The
11 government then proceeded to recommend that the defendant receive
12 the additional one-level decrease for acceptance of
13 responsibility pursuant to U.S.S.G. § 3E1.1(b) should the
14 district court find that the defendant is entitled to the two-
15 level adjustment under U.S.S.G. § 3E1.1(a). Were this the
16 government's only communication addressing acceptance of
17 responsibility, we would have little trouble characterizing this
18 submission as containing a "few ill-advised descriptive words"
19 that fall short of breaching the plea agreement. See Riera, 298
20 F.3d at 135.
21 But the government addressed the issue of acceptance of
22 responsibility a second, separate time. In response to Griffin's
23 arguments, permitted by the plea agreement, see Plea Agreement,
24 at ¶¶ 8–9, that no relevant conduct was applicable to his
25 sentencing beyond that to which he pleaded guilty, the government
26 wrote that "the defendant is attempting to limit his conduct to
19
1 only that to which he pled guilty," which "leads the government
2 to question whether the defendant has truly accepted
3 responsibility pursuant to U.S.S.G. § 3E1.1(a)." Gov't April 15
4 Response, at 21. The government then reviewed the legal
5 framework of a downward adjustment for acceptance of
6 responsibility, concluding: "It is unclear whether the
7 defendant's objections to the inclusion of all the relevant
8 conduct rises to the level of outweighing his acceptance of
9 responsibility. Suffice it to say that the defendant's
10 objections to the relevant conduct raises [sic] questions on the
11 issue of acceptance." Id. at 22.
12 This was well beyond the pale. No discussion of an
13 acceptance of responsibility adjustment was solicited by the
14 court. Cf. Riera, 298 F.3d at 134-35. It was not an effort
15 simply to correct an inaccurate representation of relevant
16 sentencing law. See Amico, 416 F.3d at 166 ("In view of the
17 defendant's inaccurate description of the law relating to
18 aggravating role, the government was entitled to explain the law
19 concerning this adjustment without violating its agreement.").
20 Nor did the government merely provide information or evidence in
21 response to any statements by the defendant. Plea Agreement, at
22 ¶ 18b. Instead, the government, on its own initiative, warned
23 the court about what it considered to be "troubling" statements
24 by the defendant in his submission to the court in anticipation
25 of sentencing.
20
1 The government did nothing to retract its questionable
2 statements or otherwise ameliorate their impact. Cf. Amico, 416
3 F.3d at 165 (noting that "a retraction of an argument advanced by
4 the government in violation of its plea agreement would [not]
5 always cure its breach," but concluding that the "temporary
6 breach" of a "mild, brief, and unassertive form," combined with a
7 "rapid retraction," sufficiently cured any breach). Instead, the
8 government followed up its first statement of misgivings
9 regarding the defendant's objections with both a reiteration of
10 its doubts regarding the defendant's acceptance of responsibility
11 and an unsolicited review of law relevant to denying the
12 adjustment. See Gov't April 15 Response, at 21–22.
13 The government argues that it adhered to its promise in
14 the plea agreement throughout the sentencing hearing by
15 advocating for a sentence within a Guidelines range that included
16 the downward adjustment for acceptance of responsibility and by
17 expressly stating that it did "not advocat[e] for anything beyond
18 what's in the plea agreement." Sent'g Hrg. Tr, June 21, 2005, at
19 5, 15. These indirect references to an acceptance of
20 responsibility adjustment do not, we think, effectively retract
21 the previous statements or cure any breach.7 And we hav
7
Even if we agreed that Griffin "opened the door" during
the sentencing hearing by denying relevant conduct that the
district court later determined to have occurred, see Amico, 416
F.3d at 165, this would not be relevant to the breach of the plea
agreement because the government's sentencing letters were
submitted prior to the sentencing hearing and prior to the
district court's explicit warnings to Griffin about the perilous
nature of his denial of such conduct in light of the guidelines
21
1 e determined that statements by the government asserting that it
2 did not intend to violate the plea agreement "do not . . .
3 insulate the government against a finding of breach if in fact
4 what was said constituted an argument" that violated the plea
5 agreement. Vaval, 404 F.3d at 153. "Given the government's
6 often decisive role in the sentencing context, we will not
7 hesitate to scrutinize the government's conduct to ensure that it
8 comports with the highest standard of fairness." Lawlor, 168
9 F.3d at 637.
10 This is not to say that the plea agreement required the
11 government to remain silent were the defendant to make statements
12 inconsistent with the government's understandings. It did not.
13 But the government did more than correct inconsistencies in fact
14 or law with information or evidence available to it, as permitted
15 by the plea agreement. Instead, it offered a thorough legal
16 analysis, unsolicited by the court, and concluded by noting its
17 own skepticism as to whether the defendant satisfied the
18 requirements for an adjustment for acceptance of responsibility
19 as set forth by its analysis.
20 To paraphrase our conclusion in Vaval, 404 F.3d at 153,
21 it is difficult to draw a principled distinction between the
22 government voicing outright opposition to a downward adjustment
23 for acceptance of responsibility and stating that the defendant's
24 conduct was "troubling" and "raises questions on the issue of
pertaining to acceptance of responsibility. See, e.g., Sent'g
Hr'g Tr., May 23, 2005, at 18-20.
22
1 acceptance." Without expressly opposing such an adjustment,
2 which would have been a more obvious and egregious breach of the
3 plea agreement, the government could have done little more to
4 attempt to persuade the court to deny an adjustment for
5 acceptance of responsibility. After the first letter directly
6 addressing the issue of acceptance of responsibility, "the
7 government's statements served no purpose other than to advocate
8 that the court" deny an adjustment for acceptance of
9 responsibility. Id. at 154.
10 That the district court disclaimed the government's
11 statements does not alter our conclusion. "Where the sentencing
12 court has sentenced in accordance with a position improperly
13 advocated, while claiming not to have been influenced by the
14 improper advocacy, a reviewing court can do no more than
15 speculate as to whether the judge was in fact influenced, even
16 unconsciously." Amico, 416 F.3d at 168. We therefore conclude
17 that although the government's mistake was a common one made in
18 the course of strongly felt and doubtlessly well-intentioned
19 advocacy, it breached the plea agreement by urging, in effect,
20 that the district court deny a downward adjustment for acceptance
21 of responsibility.
22 C. The Dissent
23 Judge Wesley does not dispute that the government was
24 forbidden by the plea agreement from making the statements in its
25 April 15 communication to the district court. And he agrees that
26 "the government[, therefore,] breached [the plea agreement]
23
1 before the sentencing hearing" took place. Dissent at [7].
2 Neither does he assert that there is, nor can we find, anything
3 in the plea agreement that (1) renders it a breach for the
4 defendant to make a false statement, confirm that he previously
5 made one, or to correct one, or (2) expunges or renders harmless
6 the government's previous breach in the event of any such action
7 by or on behalf of the defendant. See id. at [9]. Indeed, the
8 plea agreement explicitly anticipates the possibility of such
9 untruthfulness by reserving for the government the right to
10 "respond at sentencing to any statements made by the defendant or
11 on the defendant's behalf that are inconsistent with the
12 information and evidence available to the government." Plea
13 Agreement at ¶ 18.8
14 Embracing, instead, an argument that the government
15 never made, the dissent is focused on the fact that at the time
16 of the plea hearing -- several months after the government's
17 breach -- "the defendant did not continue to maintain his
18 [previous] denial," dissent at [7], in response to the PSR, as to
19 "knowledge [by him] of the BabyJ video," id. at [3]. Griffin
20 "recant[ed], showing that his earlier denials had been
21 untruthful," id. at [8]. The dissent would hold that this
22 concession of misstatements by the defendant excuses the
8
This is not to suggest that the defendant was free to lie
with impunity. He was, of course, subject to sanction for
testifying falsely, obstructing justice, or perhaps otherwise for
proffering untruthful information in this context.
24
1 government from having failed previously to "strict[ly] compl[y]"
2 with the agreement. Id. at [10]. We do not see how. We know of
3 no authority for the proposition that a defendant's concession of
4 previous misstatements during sentencing excuses the government
5 from its previous noncompliance with the plea agreement, nor any
6 theory upon which we think such a proposition could reasonably be
7 based.
8 This is not a case where the government sought to
9 renounce a plea agreement because the defendant had breached it.
10 See United States v. Cruz-Mercado, 360 F.3d 30, 39 (1st Cir.
11 2004) (cited by the dissent, at [9]). The government flatly and
12 materially breached the plea agreement by advocating against an
13 acceptance of responsibility adjustment. Only now does the
14 dissenter search the record to find a misstatement by the
15 defendant on the basis of which he would have the court bestow a
16 pardon to the government for its breach. Especially in light of
17 our oft-repeated dictum that "courts construe plea agreements
18 strictly against the Government . . . for a variety of reasons,
19 including the fact that the Government is usually the party that
20 drafts the agreement, and the fact that the Government ordinarily
21 has certain awesome advantages in bargaining power," United
22 States v. Ready, 82 F.3d 551 (2d Cir. 1996), we conclude to the
23 contrary that the government was, and remained, bound by its plea
24 agreement and responsible for its material breach thereof.
25 D. Remedy
25
1 The appropriate remedy for a breach of a plea agreement
2 is "either to permit the plea to be withdrawn or to order
3 specific performance of the agreement." Lawlor, 168 F.3d at 638
4 (citation omitted). The defendant seeks only specific
5 performance here. We therefore vacate the sentence and remand
6 for resentencing.
7 In doing so, we must remand to a different district
8 judge. Id. Although in most other contexts we resist such a
9 course of action, we have concluded that where a plea agreement
10 is concerned it is appropriate because "the government's breach
11 of its commitment is difficult to erase if the case remains
12 before the same judge, because the judge's decision . . . was
13 based on his assessment of the facts." Id. (quoting Enriquez, 42
14 F.3d at 772). It is an understatement to observe, in light of
15 the transcript of the proceedings in the district court, that
16 this "disqualification results not from any inappropriate action
17 on [the judge's] part, but by reason of the government's failure
18 to adhere to its contractual obligation." Id. (internal citation
19 omitted). But "the government-rung bell cannot be unrung."
20 Riera, 298 F.3d at 134. If the district court were again to deny
21 acceptance of responsibility, even if such an action is
22 warranted, there is no way to be certain that the government's
23 breach had no effect on that determination. Treating this course
24 of action as a prophylactic rule ensures that the appearance of
25 justice will not be compromised, see United States v. Kaba, 480
26
1 F.3d 152, 159 (2d Cir. 2007), and, of course, encourages
2 punctilious respect for similar agreements in the future.
3 We therefore remand to a different judge reluctantly.
4 The district court proceeded with what we view as extraordinary
5 diligence. The hearings it held were unusually lengthy and
6 complex. The extent to which this exemplary effort will be
7 wasted is a matter of no small concern. We conclude nonetheless
8 that we are required to do so by our case law and the principles
9 underlying it.
10 E. Other Arguments
11 The defendant makes several additional arguments. Of
12 particular note are his assertions that the government violated
13 Federal Rule of Criminal Procedure 16 and Brady by failing to
14 turn over a copy of his hard drives, and his challenges to the
15 district court's application of sentencing enhancements for
16 trafficking and distribution based on his use of KaZaA. We often
17 address issues raised on appeal that are not central to the
18 disposition of the appeal and might ordinarily be inclined to do
19 so here. On this sentencing appeal, however, we choose to
20 exercise our discretion not to do so for several reasons.
21 First, subsequent to the sentencing proceedings below,
22 Congress passed a law that requires that "any property or
23 material that constitutes child pornography . . . shall remain in
24 the care, custody, and control of either the Government or the
25 court." Adam Walsh Child Protection and Safety Act of 2006, Pub.
27
1 L. No. 109-248, 120 Stat. 629, 631 (codified at 18 U.S.C.
2 § 3509(m)(1) (2006)). This law appears to track closely the
3 government's former policy in that it prohibits the government
4 from providing a copy of any "property or material that
5 constitutes child pornography" to a defendant, notwithstanding
6 the requirements of Rule 16 of the Federal Rules of Criminal
7 Procedure. Id. § 3509(m)(2)(A). A defendant or his or her
8 expert may only examine the property at a government facility.
9 Id. § 3509(m)(2)(B). Interpretations of this provision have
10 begun to percolate through the district courts but, to the best
11 of our knowledge, no Court of Appeals has yet addressed it. See
12 generally Adam Liptak, Locking Up the Crucial Evidence and
13 Crippling the Defense, N.Y. Times, Apr. 9, 2007, at A10. In
14 light of this change in the law subsequent to Griffin's sentence
15 on an issue he raises before us for the first time on appeal, we
16 think it better for the district court to address his arguments
17 under Rule 16 and Brady and to await possible further
18 developments in the law in this regard before addressing it if
19 indeed we eventually must in this case.9
20 Second, despite the lengthy sentencing hearing directed
21 primarily at understanding the use, function, and operation of
22 KaZaA, we find the record to be, through no apparent fault of the
9
Because we do not address the Rule 16 argument, we need
not determine on the present record and at this point whether
Griffin requested a copy of the hard drive prior to sentencing as
required.
28
1 court, confused and difficult to follow. The court repeatedly
2 expressed its frustration in this regard. See, e.g., Sent'g Hr'g
3 Tr., June 21, 2005, at 75 ("To the Government, I think you're
4 making this way [too] confusing . . . ."); Sent'g Hr'g Tr., July
5 13, 2005, at 22 ("In this case, because of issues that have
6 arisen at the fault of the Prosecution and law enforcement,
7 frankly, this is now the fourth day of this hearing. What
8 boggles my mind, I've rarely heard an agent testify as [an FBI]
9 agent did on the stand. He changed a report without indicating
10 it was an amended report."); Id. at 33 ("This is what the case is
11 all about, KaZaA. I can't believe in the FBI somebody doesn't
12 know about KaZaA. It doesn't have to be a live witness [i]f I
13 had an affidavit from somebody explaining to me how KaZaA
14 works . . . ."). Moreover, on remand, the defendant or his
15 expert witness may be afforded an opportunity to inspect the
16 computer hard drives in an effort to complete the record, which
17 may be of benefit to what at least seem on the surface to present
18 complicated technical issues. We think our review of this
19 argument, should we be required to conduct one, would benefit
20 from further exposition and clarification in the district court.
21 Finally, when remanding for a retrial on the merits, we
22 do, of course, often decide issues that are not strictly before
23 us when they are likely to arise again in the course of the
24 retrial. See, e.g., United States v. Shellef, 2007 WL ----, *?,
25 2007 U.S. App. LEXIS 25974, *52 (2d Cir. Nov. 8, 2007)
29
1 (addressing various issues "because they [were] likely to arise
2 again on remand and retrial . . . even though their resolution
3 [was] not strictly necessary in order to decide [the appeal.");
4 United States v. Amico, 486 F.3d 764, 767 (2d Cir. 2007)
5 (vacating the conviction and addressing "only those issues
6 calling for guidance on remand"); United States v. Quattrone, 441
7 F.3d 153, 182 (2d Cir. 2006) (addressing evidentiary rulings on
8 appeal where conviction was vacated and remanded for retrial
9 based on a flawed jury instruction). Deciding them may save the
10 investment of the substantial judicial resources -- as well as
11 those of counsel and members of another jury -- that might be
12 required by yet another remand should we eventually decide those
13 additional issues contrary to the view of the district court.
14 Yet another complete retrial might well follow. The resources
15 expended, however, tend to be considerably less where, as here,
16 the remand is confined to resentencing and subsequent additional
17 sentencing hearings rather than a subsequent retrial on the
18 merits. Cf. United States v. Leung, 40 F.3d 577, 586 n.2 (2d
19 Cir. 1994) ("Our slightly greater willingness, when there are
20 extenuating circumstances, to entertain sentencing objections
21 that were not presented to the District Court may reflect the
22 different impact on the judicial system engendered by vacating a
23 sentence in comparison with reversing a conviction. Unlike trial
24 errors, whose correction requires a new trial that a timely
25 objection might have obviated, correcting sentencing errors
30
1 usually demands only a brief resentencing procedure.") (citing
2 United States v. Baez, 944 F.2d 88, 90 n.1 (2d Cir. 1991)).
3 The remaining subsidiary arguments are also best left
4 for the district court to address in the first instance.
5 CONCLUSION
6 The case is remanded to the district court with the
7 direction that it be assigned to a different district judge for
8 the court to vacate the current sentence and impose sentence de
9 novo.
10
11
12
13
14
15
16
17
18
19
20
31
1 WESLEY , Circuit Judge, dissenting:
2
3 The majority concludes that this case should be remanded to a new district court judge for
4 specific performance of the government’s promise not to object to defendant’s request for an
5 acceptance of responsibility adjustment. It does so in the name of preserving the integrity of the
6 plea bargaining process and public confidence in the federal criminal justice system. I agree with
7 my colleagues that courts must be vigilant in holding the government to its promises. I submit,
8 however, that the majority’s analysis overlooks a crucial fact in this case – defendant’s own prior
9 breach of the agreement. In my view, remand will seriously undercut the very policy concerns the
10 majority seeks to protect. I therefore respectfully dissent and vote to affirm the judgment.
11
12 The Plea Agreement1
13 In late November, 2004, defendant pleaded guilty to one count of possession of child
14 pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) pursuant to a plea agreement with the
15 government. Plea Agreement at ¶ 1. The plea agreement contained stipulated facts, including
16 defendant’s acknowledgment that he had admitted previously to an FBI agent that he had opened
17 downloaded images containing child pornography in a “shared folder” on the KaZaA system.2 Id.
18 at ¶ 7(c). The plea agreement also noted the “defendant[’s] state[ment] that in October of 2003, he
19 had opened approximately ten (10) child pornography images obtained through KaZaA.” Id. The
20 stipulated facts further indicated that defendant did not realize that he had downloaded images
21 containing child pornography, that he deleted six of them, that he was aware that four images
22 remained on his computer, and that he moved two images to his “My Documents” folder. Id. at ¶
23 7(c)-(d).
1
Defendant has not raised any objection to the adequacy of his plea colloquy or to the
knowing and voluntary nature of his consent to the plea agreement.
2
Judge Sack’s opinion describes how KaZaA functions. See Maj. at 3.
1
1 Although there is no mention in the stipulated facts of defendant’s possession of a “BabyJ”
2 movie, that movie plays a vital role in this case. The BabyJ movie is part of a series of BabyJ
3 pictures and movies that are graphic and disturbing. They involve a young girl in a number of
4 brutal sexual encounters. The undercover agent who first discovered defendant’s use of KaZaA to
5 possess and to share child pornography did so by looking for “underage” video clips on KaZaA and
6 came upon a media file shared by defendant entitled “Babyj12.” Thus, possession, use, and
7 familiarity with the BabyJ series were particularly relevant to defendant’s ultimate sentence
8 exposure even though his colloquy was silent on the issue.
9 The plea agreement also reflects the parties’ inability to agree upon a number of potential
10 sentencing enhancements under the United States Sentencing Guidelines. For instance, the
11 government maintained (without defendant’s agreement) that a trafficking enhancement should
12 apply. See Maj. at 5. The government also pressed for several enhancements that would raise
13 defendant’s sentence – possessing material involving children; using a computer for the
14 possession, transmission, receipt, or distribution of material; committing an offense that included
15 at least 10, but fewer than 150 images; and distributing images for the receipt, or expectation of
16 receipt, of a thing of value, but not for pecuniary gain. Id. Most importantly, the government took
17 the position (also disputed by defendant) that a four-level enhancement should apply for
18 defendant’s possession of images containing sadomasochistic conduct. Id.
19 The agreement left enhancement determinations to the district court, and provided that the
20 government would not oppose a downward adjustment for defendant’s acceptance of
21 responsibility. Plea Agreement at ¶ 12. The precise effect of that adjustment would, of course,
22 vary depending on the court’s ultimate Guideline determination.
23 Finally, the agreement allowed the government to “respond at sentencing to any statements
24 made by the defendant or on the defendant’s behalf that [we]re inconsistent with the information
25 and evidence available to the government; . . . .” Id. at ¶ 18(b); see also Maj. at 22 (noting “that
26 the plea agreement [did not] require[] the government to remain silent were the defendant to make
27 statements inconsistent with the government’s understandings”).
28
2
1 Defendant’s Initial Denial of Knowledge
2 and the Government’s Response
3 In late March, 2005, defendant’s attorney submitted detailed objections (affirmed by
4 defendant) to the presentence report (“PSR”). Those objections focused on the enhancements left
5 open by the plea agreement. Defendant’s fourth objection – the objection most relevant here – was
6 to the sentencing enhancement for sadomasochistic content. Defense Objections to Presentence
7 Report, dated March 24, 2005, at 4 (“Def. March 24 Objections”). The basis for that enhancement
8 – sought by the government and recommended by the Probation Officer – was defendant’s alleged
9 admission to a government agent, recorded in the FBI’s 302 Report, that defendant knew about the
10 BabyJ movie and had a copy of it on his computer. Defense counsel repeated his client’s prior
11 denial of any knowledge of the BabyJ file and recalled that defendant previously had “stated, as he
12 does here under oath, that he consistently denied knowing of the BabyJ file.” Id.
13 The government’s initial response to this objection was generic; it was “troubled by some of
14 the defendant’s objections [to the PSR] which seem[ed] to raise questions regarding whether the
15 defendant ha[d] truly accepted responsibility . . . .” Statement of the Government with Respect to
16 Sentencing Factors and Motion Pursuant to U.S.S.G. § 3E1.1(b), dated March 31, 2005, at 1
17 (“Gov’t March 31 Statement”). Two weeks later, the government countered defendant’s PSR
18 objections in greater detail. This time, reacting to defendant’s factual and legal assertions, the
19 government suggested that defendant was reneging upon his initial acceptance of responsibility by
20 disclaiming any knowledge of the BabyJ video in contradiction to the statements defendant
21 allegedly made to the government agent, and to the government’s assertion that defendant’s
22 computer contained “almost the entire series of movies involving BabyJ.” Government’s
23 Response to Defendant’s Objections to the Presentence Report, dated April 15, 2005, at 15 (“Gov’t
24 April 15 Response”).
25 While acknowledging the parties’ right to disagree on the applicable Guideline and any
26 potential enhancements, the government expressed concern that defendant, through his denial of
27 knowledge of the BabyJ files, was “now attempting to distance himself from the other images and
28 movies found in his possession.” Id. at 20. The government argued that defendant was “distancing
3
1 himself from the BabyJ movie series by discrediting the way the FBI conducted the interview
2 memorialized in the FBI 302 report and by stating that he had repeatedly told law enforcement that
3 he had ‘no idea’ what files or movies were on his computer.” Id. at 21. The government also
4 suggested that defendant was trying to cabin the “relevant conduct” made applicable by U.S.S.G. §
5 1B1.3(a) for which his sentence could be enhanced for sadomasochistic content. Id. Once more,
6 the government “question[ed] whether the defendant ha[d] truly accepted responsibility pursuant to
7 U.S.S.G. § 3E1.1(a).” Id. The government then proceeded to discuss how a defendant’s
8 untruthfulness with respect to relevant conduct might affect the sentencing judge’s conclusion that
9 defendant had accepted responsibility.
10
11 The Sentencing Hearing
12 In June and July of 2005, the district court conducted an extensive sentencing hearing that
13 included four days of testimony. During the hearing defendant vigorously contested the
14 government’s contentions that he: (1) was aware that a BabyJ file was on his computer,3 (2) had
15 admitted that fact to the FBI when he was arrested, and (3) had actually viewed those files and
16 searched for other BabyJ files. Indeed, just before the hearings began, defense counsel noted that
17 defendant was aware of the consequences if defendant’s denials regarding BabyJ files were not
18 accepted by the court:
19 I have gone over the acceptance of responsibility stakes with my client. He
20 understands that if the Court decides that he is not truthful, if he does testify, and I
21 have talked to him about testifying, that if he is not truthful with respect not only
22 to the offense conduct, but also what the Court may deem to be relevant conduct,
3
During the sentencing hearing an FBI agent testified that four computers were found at
defendant’s house. Sent’g Hr’g Tr. May 23, 2005, at 35. Two computers, however – a Dell and
an HP – were the focus of later testimony. As discussed further below, the government was able
to show that a BabyJ file on defendant’s Dell computer was among those that were file-sharing-
enabled. Sent’g Hr’g Tr. July 13, 2005, at 40. As also noted below, defendant later admitted that
he may have employed the HP in order to search for, and browse BabyJ files. Defense Counsel
Letter to Judge Siragusa, dated July 13, 2005 (“Def. July 13 Letter”). The court found, by a
preponderance of the evidence, that defendant had BabyJ files on both the Dell and HP
computers. Sent’g Hr’g Tr. July 14, 2005, at 8-10.
4
1 that he could lose his acceptance reduction. The Defendant, from very early on in
2 the course of my recommendations, has indicated to me that he was not aware of
3 these items in the shared folder. . . . So the Defendant is aware that if he is going
4 to deny involvement with an awareness of the BabyJ file and the other materials in
5 the shared folder, there may be consequences and he is prepared to go forward
6 with that. He has not changed his position. He feels that the agents, while they
7 certainly may not be misrepresenting the facts, misinterpreted what he said and he
8 stands by his position.
9 Sent’g Hr’g Tr. May 23, 2005, at 24-25 (emphasis added).
10 Counsel’s statement followed an explicit warning from Judge Siragusa (paraphrasing
11 U.S.S.G. § 3E1.1 app. n.1(a)) that the sentence mitigation for acceptance of responsibility could be
12 denied and that defendant faced an enhancement for obstruction of justice if he was untruthful. See
13 id. at 20 (warning defense counsel that “there could be issues relating to acceptance of
14 responsibility or an enhancement under 3E1.1 for obstruction of justice”). Judge Siragusa repeated
15 his warning on several subsequent occasions, sometimes renewing his concern that defendant’s
16 denials under oath might result in an enhancement for obstruction of justice. See Sent’g Hr’g Tr.
17 June 2, 2005, at 4-5 (recalling prior comments on “the danger of losing accept[ance] of
18 responsibility”); Sent’g Hr’g Tr. June 21, 2005, at 7 (noting defendant’s denials under oath, and
19 commenting that “[t]he Court wanted to impress upon the Defense that not only does the
20 Defendant risk losing acceptance of responsibility, but also could potentially face an enhancement
21 for obstruction of justice”); Sent’g Hr’g Tr. July 13, 2005, at 4 (paraphrasing U.S.S.G. § 3E1.1
22 app. n.1(a) and providing defendant with an opportunity “to clarify his position”).
23 In response to defendant’s initial denials, and pursuant to the plea agreement provision
24 permitting it to respond to defendant’s inconsistent statements, see Plea Agreement at ¶ 18(b), the
25 government offered evidence of the search terms used to locate the BabyJ file and other files. See
26 Government Letter to Judge Siragusa, dated June 1, 2005, at 2-3 (“Gov’t June 1 Letter”). The
27 government put forth this evidence based upon the fact that “defendant provided inconsistent
28 statements and the government is entitled to exercise its rights to respond to those statements with
29 the information available to it.” Id. at 3.
30 But defendant’s position changed radically during the hearing (even though he never
31 testified). The government was able to establish, without objection from defense counsel, that
5
1 defendant did have a BabyJ file on his computer and that that file was file-sharing-enabled.
2 Furthermore, as a result of testimony from a defense expert, the court noted during the hearing that
3 defendant had “opened . . . a variant of BabyJ three separate times.” Sent’g Hr’g Tr. July 13, 2005,
4 at 44. Moreover, defense counsel admitted that the evidence showed that defendant had viewed
5 one of the BabyJ videos. Thus, the government was able to confirm its account of how defendant
6 came to the government’s attention and that defendant lied when he denied knowledge or use of
7 the BabyJ files.
8 Thereafter, defendant made a startling move not mentioned in the majority’s recitation of the
9 facts. In a letter to the district court dated July 13, 2005 – one day before he was sentenced –
10 defendant “corrected” the very statements that had generated the government’s earlier responses.
11 The “correction” came after Judge Siragusa gave defendant an opportunity “to clarify his position,”
12 and after three prior warnings about the consequences of a false denial. Id. at 4. Defendant finally
13 “accept[ed] the Court’s invitation to correct his previous statements” and retracted his contention
14 that he had never accessed a BabyJ file: “Defendant acknowledges that during his earlier use of
15 the HP computer . . . , he may have used the search term Baby J and may have browsed several
16 files bearing the Baby J label.” Def. July 13 Letter. In addition, defendant acknowledged that,
17 although he had previously denied admitting to the FBI that he recognized and downloaded the
18 BabyJ images, “he may or may not have told agents that he recognized or downloaded this image.”
19 Id. Defendant went on to say that he simply could no longer recall whether he had made the earlier
20 admission or not. Id. In short, after being confronted with evidence that seriously undercut his
21 previous factual assertions, and after repeated warnings from the court, defendant abandoned his
22 earlier denials. In essence, he conceded: (1) facts that made some of the more punitive
23 enhancements a certainty, and (2) that he had indeed been untruthful about relevant conduct.
24
25 Discussion
26 Judge Sack has thoughtfully outlined the law of this circuit with regard to claims of a breach
27 of plea agreement. I concur in his analysis and endorse his conclusion that, while the government’s
28 initial statement that it was “troubled” by defendant’s objections to the PSR was not a breach of the
6
1 plea agreement, the government reached the tipping point when it “offered a thorough legal
2 analysis, unsolicited by the court, and concluded by noting its own skepticism as to whether the
3 defendant satisfied the requirements for an adjustment for acceptance of responsibility as set forth
4 by its analysis.” See Maj. at 22. As Judge Sack points out, the government was free to argue that
5 defendant’s factual assertions were incredible fabrications and that his legal arguments with regard
6 to the enhancements lacked merit. Id. But when the government moved beyond mere factual
7 analysis to offer its views on defendant’s entitlement to a downward adjustment for acceptance of
8 responsibility, it crossed into an area it had agreed not to enter.
9 What relief, then, is due defendant in light of the government’s breach and defendant’s own
10 false denials? In the majority’s view, the choice of remedies is binary – either defendant is entitled
11 to withdrawal of his plea, or he is entitled to specific performance of the plea agreement.4 Id. at 26
12 (citing United States v. Lawlor, 168 F.3d 633, 638 (2d Cir. 1999)). As our case law implies,
13 however, another possibility arises from two of the guiding principles that our precedent teaches in
14 this area. First, contract law doctrine applies to plea agreements. See id. at 10 (citing United States
15 v. Riera, 298 F.3d 128, 133 (2d Cir. 2002)). Second, “not every breach requires a remedy. Rather,
16 the need for a remedy depends on the ‘nature of the broken promise and the facts of each particular
17 case.’” United States v. Vaval, 404 F.3d 144, 154 (2d Cir. 2005) (quoting United States v. Brody,
18 808 F.2d 944, 948 (2d Cir. 1986)).
19 The majority’s view – one I share – is that the government breached before the sentencing
20 hearing. Judge Sack goes on to note that, even if (hypothetically) defendant had continued to deny
21 the relevant conduct in question at the sentencing hearing and the district court disbelieved him,
22 “this would not be relevant to the breach of the plea agreement because the government’s
23 sentencing letters were submitted prior to the sentencing hearing . . . .” Maj. at 21 n.7. Indeed,
24 since the government’s breach occurred before the hearing, a later finding that defendant was
25 untruthful after the government’s initial breach – without more – would not render the breach
26 harmless. See Lippo v. Mobil Oil Corp., 776 F.2d 706, 724 (7th Cir. 1985) (Posner, J., dissenting
4
As the majority notes, defendant hopes for specific performance of the plea agreement,
rather than a retraction of his plea. See Maj. at 26.
7
1 in part) (“[I]f it is too late to undo the harm, the attempt at cure will not excuse the breach; you
2 cannot cure a disease after the patient has died from it.”). In that scenario, the hearing would
3 simply have continued the prior injury caused by the government’s implicit argument to the court
4 undermining defendant’s acceptance of responsibility. In fact, however, the majority’s
5 hypothetical never came to pass.
6 That defendant did not continue to maintain his denial is not clear from the majority’s
7 incomplete recitation of the record. To know that defendant subsequently changed his position
8 fundamentally, a fuller review of the record is required.5 What that review reflects is the all-
9 important revelation – prompted by the sentencing hearing – that culminated in defendant’s last-
10 minute recantation, showing that his earlier denials had been untruthful. In plain language, he
11 confirmed that he had lied from the very beginning. The belated retraction came after Judge
12 Siragusa’s explicit warning of the cost of false denial, and after defense counsel’s statement that
13 defendant was fully aware that he assumed the risk that his denials might have “consequences.”
14 Against this backdrop, Judge Siragusa focused on defendant’s “eleventh hour” change of heart in
15 deciding the acceptance of responsibility issue.6 Sent’g Hr’g Tr. July 14, 2005, at 14. He could not
5
Questions arising from the government’s alleged breach of a plea agreement, the
majority agrees, “must be carefully studied in context,” United States v. Amico, 416 F.3d 163,
167 n.2 (2d Cir. 2005), and thus merit “a fact-specific analysis,” Maj. at 11-12. For this reason,
careful consideration of the full record is all the more crucial in this case.
6
The Application Notes to the provision of the Sentencing Guidelines governing
acceptance of responsibility state (unsurprisingly) that “[i]n determining whether a defendant
qualifies” for an acceptance of responsibility adjustment, “appropriate considerations include, but
are not limited to,” among other things:
(a) truthfully admitting the conduct comprising the offense(s) of conviction,
and truthfully admitting or not falsely denying any additional relevant conduct for
which the defendant is accountable under § 1B1.3 (Relevant Conduct). Note that
a defendant is not required to volunteer, or affirmatively admit, relevant conduct
beyond the offense of conviction in order to obtain a reduction under subsection
(a). A defendant may remain silent in respect to relevant conduct beyond the
offense of conviction without affecting his ability to obtain a reduction under this
subsection. However, a defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has acted in a manner
inconsistent with acceptance of responsibility . . . .
8
1 have done otherwise, for that was the only evidence remaining before the court relevant to the
2 acceptance of responsibility determination.7
3 This circuit has eschewed a “harmless error” or “lack of prejudice” defense to the breach of
4 a plea agreement by the government, finding the absence of cognizable harm to a defendant
5 irrelevant to the need for remedy. Vaval, 404 F.3d at 154 (“Whether a breach by sentence
6 advocacy caused prejudice in the form of an increased sentence is irrelevant to the need for a
7 remedy.”). We rightly noted in Vaval that “in order to preserve the integrity of plea bargaining
8 procedures and public confidence in the criminal justice system, a defendant is generally entitled to
9 the enforcement of a plea agreement without showing a tangible harm resulting from a breach.” Id.10 at 155.8 I readily agree. Generally, we will not accept the premise that once the government has
11 abandoned a plea agreement promise the sentencing bell can be “unrung.” Maj. at 26 (citing Riera,
12 298 F.3d at 134). The stain from a breach is not easily removed; the impression upon the district
13 court lingers, as does the impact upon a defendant (who, at resentencing, may well receive the
14 same sentence as a result). Thus, silencing the government and mandating an acceptance of
15 responsibility determination before a different district judge is sometimes justified “in order to
16 preserve the integrity of plea bargaining procedures and public confidence” that federal criminal
17 justice is not a one-sided affair. Vaval, 404 F.3d at 155.
U.S.S.G. § 3E1.1 app. n.1(a) (2004) (emphasis added).
The majority makes the curious statement that I have failed to identify a clause in the plea
agreement that required Griffin to be scrupulously honest in his statements to the district court.
Maj. at 24. I cannot agree with the majority’s obvious implication – that the plea agreement did
not obligate Griffin to make factual representations to the court that were offered in good faith
and were truthful. Were that the case, it would mark a quite radical departure from the contract
law’s historical requirement of good faith. It would also create a perverse incentive for
defendants to lie at no great cost, thereby undermining our plea bargaining system’s calculus of
rewards and risks.
7
Defendant does not contest the factual basis for that finding.
8
Vaval recognized two exceptions to the need for a remedy – curative performance by the
government and de minimis injury arising from the breach. Vaval, 404 F.3d at 155-56. Neither
is applicable here.
9
1 But harmless error is not the hook upon which I hang my vote in this case. As with all
2 contractual arrangements, each party has an obligation to operate in good faith, and to rigorously
3 adhere to the obligations outlined in the contract and the law of the governing jurisdiction, from the
4 contract’s inception. “[A] defendant is not entitled to the benefit of his bargain if he does not
5 himself comply with the terms of the agreement.” United States v. Cruz-Mercado, 360 F.3d 30, 39
6 (1st Cir. 2004). As we have said before, applying contract law principles to agreements between
7 the government and a defendant in the criminal setting, “[t]here is . . . an implied obligation of
8 good faith and fair dealing in every contract.” United States v. Khan, 920 F.2d 1100, 1105 (2d Cir.
9 1990) (citations omitted); see also United States v. Rexach, 896 F.2d 710, 714 (2d Cir. 1990)
10 (citing Filner v. Shapiro, 633 F.2d 139, 143 (2d Cir. 1980); Restatement (Second) of Contracts §
11 205); Restatement (Second) of Contracts § 205 (“Every contract imposes upon each party a duty of
12 good faith and fair dealing in its performance and its enforcement.”). I am therefore hard pressed
13 to award defendant a remand in light of his acknowledged untruthfulness long before the
14 government’s breach. Defendant asks us to hold that the government be held to strict compliance
15 with the plea agreement while ignoring his own admitted deviation from it.9 Judicial economy, the
16 integrity of the plea bargaining process, and the public’s confidence in the federal criminal justice
17 system compel us, in my view, to deny that request.
18 Returning Mr. Griffin to district court for one more “bite at the apple” will produce an
19 interesting scenario. After his dramatic reversal at the sentencing hearing that was compelled by
20 testimony directly contradicting his initial denials of responsibility, defendant no longer embraces
21 the facts that served as the basis for his earlier objections to the PSR’s enhancements calculation.10
22 See Def. March 24 Objections at 4-5 (objecting to the PSR, and denying that he: (1) knew of the
9
Although the majority is aware of my view that the government did, indeed, breach, see
Maj. at 23-24, they nevertheless insist that I am attempting to “excuse[]” the government’s
noncompliance, or to “pardon” it. Id. at 25. While I am not willing to either excuse or pardon
the government’s breach, I likewise believe that the government’s noncompliance cannot be
examined in a vacuum, without reference to Griffin’s own noncompliance.
10
Nor does defendant argue on appeal that the court’s assessment of those enhancements
is not supported by the record.
10
1 BabyJ file, (2) admitted such to the FBI, or (3) downloaded the BabyJ file). Moreover, he can no
2 longer argue, as he attempted to do in his objections to the PSR, that the only conduct relevant to
3 his sentence is that contained in the plea agreement.11 No doubt, defendant will attempt to make
4 the same argument at resentencing that he made to the district court when he was originally
5 sentenced – that he is entitled to a reduction in his sentence for acceptance of responsibility
6 because that acceptance, however late in coming, was genuine.
7 The majority concedes that Judge Siragusa conducted an “unusually lengthy and complex”
8 hearing in this case with “extraordinary diligence” and, furthermore, acknowledges that “[t]he
9 extent to which this exemplary effort will be wasted is a matter of no small concern.” Maj. at 27. I
10 share the same concern. Indeed, I see no need to repeat the exercise.12
11 Finally, the majority takes the position that the remaining issues defendant raises need not be
12 addressed on this round of appeal as the record could use clarification on the trafficking issue – one
13 of first impression in this circuit – and because there have been some significant legislative
14 developments in the interim with regard to discovery of computer hard drives that contain child
15 pornography. Id. at 27-31. Had my view of the case carried the day, I would have been willing to
11
That argument was, of course, specious to begin with, as “relevant conduct” is
determined by the Sentencing Guidelines to include, not merely conduct averted to in the “four
corners” of a plea agreement, but other conduct related to the charge as well. See U.S.S.G. §
1B1.3(a) (permitting a sentence to “be determined on the basis of . . . all acts and omissions . . .
that occurred during the commission of the offense of conviction, in preparation for that offense,
or in the course of attempting to avoid detection or responsibility for that offense” (emphasis
added)); see also U.S.S.G. § 1B1.4 (“In determining the sentence to impose within the guideline
range, or whether a departure from the guidelines is warranted, the court may consider, without
limitation, any information concerning the background, character and conduct of the defendant,
unless otherwise prohibited by law. See 18 U.S.C. § 3661.”).
12
As we have recently restated in a different context, “‘reassignment to another judge
may be advisable in order to avoid an exercise in futility (in which) the Court is merely marching
up the hill only to march right down again.’” United States v. Hirliman, 503 F.3d 212, 216 (2d
Cir. 2007) (quoting United States v. Robin, 553 F.2d 8, 11 (2d Cir. 1977) (en banc)). Although
the majority’s order here is issued to a different district court, this will not likely save the
resentencing judge from an unnecessary “march” of his own. Indeed, there is every reason to
suspect that the resentencing judge will engage in the same “exercise in futility” that would have
awaited Judge Siragusa, had we instead remanded directly to him.
11
1 resolve all of the issues that remain and affirm the judgment of conviction. As I find myself in the
2 minority, and because my resolution of these other issues would not impact today’s result, I refrain
3 from elaborating as to how I would face them. That effort I defer to another panel and to another
4 day, confident that it is not far off.
5
6 Conclusion
7 For the reasons offered above, I respectfully dissent.
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