Monday, August 18th, 2008


United States v. Doe, No. 06-4124-cr (2d Cir. August 13, 2008) (Kearse, Pooler, CJJ, Cote, DJ)

Defendant John Doe, along with others, was charged with “an array” of drug and gun offenses, racketeering, robbery and two murders. He expressed an interest in trying to cooperate with the government, but the government declined. Two year later, he tried again, writing a letter to the government asking to explore the possibility of cooperating. The government again said no.

At a reverse proffer, the government revealed that it had a series of letters that Doe had written to his girlfriend; in them Doe confessed to a number of crimes and also repeatedly discussed his desire to cooperate. The government offered Doe a forty-five year plea agreement – he faced life after trial – and also told him that the government would give those letters to his co-defendants if he went to trial. A few days later, Doe told his attorney he wanted to plead guilty.

A week later, Doe was brought to court, and told his attorney he had changed his mind and wanted to go to trial. He then overheard one of the prosecutors tell his counsel that “the rest of the discovery” would be given to the co-defendants that same day. Hearing this, Doe changed his mind again, executed the agreement, and pled guilty.

Five months later, Doe moved to withdraw his plea. He claimed that he had been frightened by the prosecutor’s threats to disclose his desire to cooperate, and that this fear coerced him to plead guilty. He renewed this motion one month later, this time with new counsel, and the court denied the motion without a hearing.

On appeal, the circuit held that the district court did not abuse its discretion in refusing to hold an evidentiary hearing on Doe’s claims. First, the prosecutor’s statement that Doe’s letters would be provided in discovery was not a threat, misrepresentation or promise unrelated to the prosecutor’s business. It was a “true recital of the scenario that would play out should [Doe] choose to proceed to trial.” Moreover, there were other indicia of the voluntariness of Doe’s guilty plea. During the allocution, he swore that he was entering the plea voluntarily, and not as the result of any threats. And, Doe waited five months to move to withdraw his plea, which “severely undercuts his argument that he pleaded guilty voluntarily.”

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