Wednesday, December 26th, 2007

Breach Baby

United States v. Griffin, No. 05-4106-cr (2d Cir. December 21, 2007) (Pooler, Sack, Wesley, CJJ)

In this case, a divided panel concluded that the government breached its plea agreement in a child pornography case by twice suggesting that the defendant might not be entitled to a downward adjustment for acceptance of responsibility.

Facts: Defendant Michael Griffin pled guilty to possessing child pornography by using the file-sharing service Kazaaa. His plea agreement left open a number of disputed Guidelines issues, which were the subject of a lengthy evidentiary hearing, but stipulated that the government would not oppose a three-level acceptance of responsibility adjustment. Before sentencing, Griffin filed numerous objections to the Guidelines calculations in the presentence report; most pertinently, he denied knowingly possessing a particularly disturbing video known as “BabyJ,” and also denied telling the FBI, in a post-arrest statement, that he knew that the video had been on his computer.

In response to these objections, the government wrote to the district court and noted that it was “troubled by some of the defendant’s objections which seem to raise questions regarding whether the defendant has truly accepted responsibility.” The letter went on, however, to remind the court that the defendant had timely notified the authorities of his intention to plea guilty. In a subsequent, unsolicited, communication with the Court, the government took up this theme again, noting again that Griffin’s arguments were “troubling,” and, again, that the government questioned “whether the defendant has truly accepted responsibility.” This second brief contained a long discussion of the case law about acceptance of responsibility and it noted that a defendant’s guilty plea can be “outweighed by conduct that is inconsistent with acceptance of responsibility.” It concluded that it was “unclear” whether Griffin’s objections rose “to the level of outweighing his acceptance of responsibility,” but that they surely raised “questions on the issue of acceptance.”

During the sentencing hearings, which took place a few months after this briefing, the judge repeatedly warned the defendant that his apparently false denials relating to the BabyJ video and his post-arrest statements put his acceptance at risk. After the hearings, and just one day before sentencing, Griffin suddenly changed his position and “corrected” his previous statements. He admitted that he possessed a BabyJ video, and indicated that he might have told the FBI, although he did not recall for certain.

The district judge ultimately decided against applying the acceptance of responsibility adjustment, but indicated that he came to this position on his own, and was not influenced by the government’s briefing. Griffin received a 120-month sentence, the statutory maximum.

The Circuit’s Decision: The majority concluded that the government’s second letter was “beyond the pale,” and violated the plea agreement. First, the arguments Griffin made that triggered this response were “permitted by the plea agreement.” Moreover, the government’s extended discussion of the law of acceptance was not solicited by the court; rather, the government, “on its own initiative,” warned the court about the defendant’s “troubling” arguments and extensively reviewed the law surrounding acceptance of responsibility. The government’s letter also exceeded the bounds of the plea agreement, which only permitted it to correct inconsistencies in fact or law made by Griffin. Moreover, the government did nothing to retract its statements or ameliorate their impact. Although the government never expressly opposed the adjustment, it “could have done little more to attempt to persuade the court to deny it.” Finally, the majority was unimpressed by the district court’s disclaimer of reliance on the government’s statements; the appellate court did not want to have to speculate whether the court “was in fact influenced, even unconsciously.”

As it always does when the government has breached a plea agreement, the court remanded the case for resentencing before a different judge.

Comment: This case provoked an interesting debate between the dissent and the majority. Judge Wesley, in dissent, agreed that the government’s second communication to the court breached the plea agreement. His beef was with the majority’s choice of remedy, given that Griffin ultimately admitted that he had falsely denied important aspects of the relevant conduct. Judge Wesley acknowledged that since the government breached first, a later finding that Griffin lied after that initial breach would not render the breach harmless. But Judge Wesley saw this case differently. Griffin’s last minute change of position was, to Judge Wesley, an indication that Griffin had been lying along. Thus, Judge Wesley would have affirmed on a basic contract principle – Griffin did not bargain in good faith. “I am … hard pressed to award defendant a remand in light of his acknowledged untruthfulness long before the government’s breach.” The majority’s response to this is actually fairly weak: it notes that the government “never made” this argument, and that there is “no authority” for Judge Wesley’s position.

This case is also interesting for what it does not say. Griffin raised a host of other issues – a Rule 16/due process argument based on the government’s refusal to turn over a copy of his hard drives, and challenges to certain enhancements that were based on his use of Kazaa. The majority ultimately ducked these, although Judge Wesley, perhaps imprudently, noted that he would have resolved them all in the government’s favor. With respect to the Rule 16 claim, the majority noted that last year’s Adam Walsh act contains provisions that address these matters; since similar Adam Walsh challenges have not yet reached any court of appeals “we think it better for the district court to address” the arguments first. More interestingly, for the Kazaa issues, the majority noted that, despite a lengthy hearing about the operation of Kazaa, the record is “confused and difficult to follow.” The appellate court suggested that it “would benefit from further exposition and clarification in the district court.”

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