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U.S. v Munoz

408 F.3d 222

Fifth Circuit Court of Appeals

Decided on April 29, 2005

Issue:

Government Advocates for Higher Offense Level at Sentencing

Whether the Government breached the plea agreement when, at sentencing, it advocated for a base offense level of 29, four points higher than the one stipulated in defendant Munoz’s plea agreement.

Holding:

Government Contradicted Promise Set Forth in Agreement

The Fifth Circuit held that the Government breached the agreement by advocating for an offense level other than the one stipulated, and defendant’s sentence was therefore vacated and remanded.

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Facts:

Defendant Munoz was involved in a Ponzi scheme that defrauded numerous individuals of their funds for falsified investments. Munoz and his codefendants were indicted for 33 counts of various instances of conspiracy, wire fraud, mail fraud, and money laundering. Munoz pled guilty, pursuant to a plea agreement, to conspiracy to commit wire and mail fraud and to conspiracy to commit money laundering. Per the agreement, the Government agreed to a total offense level of 25, combined with a criminal history category of I, with a sentencing guidelines range of 57-71 months of imprisonment.

The presentence report (PSR), however, calculated Munoz’s sentence differently: recommending a total offense level of 29, with a criminal history category of I, yielding a sentencing guidelines range of 87-108 months’ imprisonment. The higher offense level resulted because the crime was committed through abuse of a position of trust. Munoz filed a written objection to the PSR and asked the district court to follow the calculation set forth in the plea agreement. At sentencing, Munoz again renewed his objection to the PSR’s recommendation of the abuse-of-trust enhancement. The Assistant United States Attorney (AUSA) urged the application of the enhancement, and stated that he was free to take that position despite it not being stipulated in the plea agreement. The district court sentenced Munoz to 90 months of imprisonment for the money laundering and 60 months for the wire fraud conviction, to run concurrently. Munoz appealed, arguing that the Government breached the agreement when it argued for the enhancement at sentencing.

Analysis:

Government Must Adhere to the Terms and Conditions of the Agreement

If a defendant pleads guilty as part of an agreement, the Government must follow the terms it set forth in the agreement. “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled” (Santobello v New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed2d 427 (1971). In determining whether the Government breached the agreement, the Fifth Circuit considers whether the Government’s conduct was “consistent with the defendant’s reasonable understanding of the agreement.”

The Fifth Circuit affirmed that the Government breached the agreement, as the document stated that both parties “agree that the applicable sentencing guidelines should be calculated as follows” The agreement set out specific calculations, which did not include an enhancement for abuse of trust. Because the Government did not include that enhancement in the agreement, the parties agreed it was not an applicable guideline.

Nevertheless, the Government advocated for the application of the enhancement at the sentencing hearing, and the AUSA stated that “I…did not mention this aspect in the Plea Agreement, but that didn’t mean I was not free to argue my position about it.” The Fifth Circuit disagreed, however, concluding that because the enhancement was not part of the agreement, advocating for it at the sentencing hearing constituted a breach. The Government contradicted its promise set forth in the agreement. Accordingly, defendant Munoz’s sentence was vacated and remanded before a different judge.

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U.S. v E.V.

550 F.3d 747

Eighth Circuit Court of Appeals

Decided on September 14, 2007

Issue:

Agreement Stipulated a Dangerous Weapons Increase Did Not Apply

Whether the Government’s introduction of testimony about defendant’s being armed constituted a breach of plea agreement, where the agreement stipulated that those specific offense characteristics did not apply to defendant’s case.

Holding:

Government Breached Agreement with Testimony as to Firearms

The Eighth Circuit held that the Government breached the agreement by introducing the testimony, but that the breach did not warrant resentencing.

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Facts:

Defendant E.V. was arrested in 2001 while crossing the U.S. border from Mexico with 40 pounds of marijuana. In custody, defendant ascertained information from a fellow inmate and major trafficker that he was seeking to hire hit men to kill two witnesses who would testify against him in court. E.V. began working with the F.B.I. and acted as a cooperating witness. During this work, defendant formed an association with Special Agent Rich Schneider, with whom he spoke with on a daily basis and met with at least three to four times per week. After two years in the Witness Protection Program, E.V. reached out to Schneider expressing intent to resume his role as a cooperating witness for the F.B.I. However, defendant was still under supervision of the Parole Commission, so Schneider instructed E.V. to refrain from any operations until his parole expired.

Nevertheless, E.V. continued to relay information to Schneider, who followed up on that information on two occasions. The third time, defendant conveyed information concerning a drug dealer named “Gato” who offered E.V. the opportunity to travel to Minnesota to collect a drug debt of $400,000. Schneider could not obtain the authorization necessary for E.V. to engage in this activity, so Schneider told E.V. not to move forward. E.V. did so anyway, and proceeded to Minnesota where he collection a portion of the drug money and was arrested by the F.B.I and D.E.A. Defendant was indicted for conspiracy to distribute in excess of 1,000 kilograms of marijuana.

Before sentencing, E.V. attempted to obtain evidence as to his relationship with Schneider, and he filed a memorandum addressing his cooperation with the authorities and the “encouragement he received from the Government to act on their behalf.” In response, the Government announced its position that defendant’s sentencing arguments forced it to offer the firearm evidence in rebuttal. After an evidentiary hearing, the district court imposed a sentence of 46 months’ imprisonment followed by four years of supervised release. Defendant appealed his sentencing, contending that the Government breached the agreement by introducing evidence that he possessed a firearm during the commission of the offense, and for arguing against his motion for a downward departure.

Analysis:

Testimony Regarding Firearms Breached ‘Enforceable, Bargained-For’ Agreement

Defendant’s plea agreement specified that “the parties agree that none of the specific offense characteristics listed under Guideline Section 2D1.1(b) is applicable in this case.” This clause encompasses subsection 2D1.1(b)(1), which requires a two-level increase to the base offense level “if a dangerous weapon was possessed” during the commission of the charged offense. The Eighth Circuit held that this agreement was an “enforceable, bargained-for term of the plea agreement” (United States v Thompson, 403 F.3d 1037, 1040 (8th Cir.2005)), and that the prosecutor’s introduction of the testimony regarding the firearms constituted a breach of that agreement.

The Eighth Circuit has previously held that the introduction of evidence contradicting a specific stipulation amounts to a breach of the agreement. In United States v. Dewitt, 366 F.3d 667, 669-70 (8th Cir.2004), the parties stipulated to an applicable drug quantity and base offense level, but the Government introduced evidence at sentencing in support of a higher drug quantity, and the Eighth Circuit held that the prosecutor breached the plea agreement. Likewise in this case, the stipulation that the dangerous weapon offense characteristics did not apply precluded the Government from introducing evidence to the contrary, either as purported rebuttal evidence or pursuant to the more general agreements that the parties could seek departures from the applicable guidelines range.

However, the Eighth Circuit found that the Government’s breach did not impact defendant’s sentence. The court adhered to its assurance that “there’s not going to be a gun enhancement.” The Eighth Circuit therefore denied defendant’s request to remand the case for resentencing, and affirmed the judgment despite the Government’s breach.

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US v Rought

No. 20-2667

Third Circuit Court of Appeals

Decided on August 24, 2021

You have the right to counsel: Contact an appeals attorney if you were denied your Miranda rights.

Issue:

Defendant Makes Incriminating Statements after Invoking Right to Counsel

Whether the District Court erred in denying defendant Rought’s motion to suppress evidence gathered after he invoked the right to counsel under the Fifth Amendment, but then continued discussion with the interrogator and made incriminating statements that resulted in his conviction and sentence of 360 months’ imprisonment.

Holding:

Miranda Rights Waived When Suspect Volunteers Information to Police

The Third Circuit held that the District Court did not err in denying the suppression motion as a defendant waives his post-invocation Miranda rights when he knowingly and voluntarily initiates an exchange with the police, or continues a discussion on a topic despite having requested counsel.

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Facts:

Defendant James Rought was indicted for possession of fentanyl with intent to distribute resulting in death and serious bodily injury after allegedly selling a batch of fentanyl that caused two women to overdose. During an investigation by the FBI, defendant was advised of his Miranda rights verbally and in writing. The interrogator asked if he was willing to talk and Rought responded that he was, “to a point.” The interrogator emphasized he could stop at any time, then began to ask Rought about his drug use and his supplier, his criminal history, his relationship to the victims. When the interrogator asked about one of the victim’s death and “what happened there,” Rought responded that he didn’t “really want to talk about that aspect without my lawyer” and that “that’s a serious situation…they’re trying to roof me.” The interrogator then turned the conversation back to defendant’s drug supplier and discussed the rampant drug problem in the area. The defendant responded that drug dealers were “killing my friends just as much as, right now, you’re trying to say that I killed my friend.” The interrogator responded that he was not trying to say Rought killed the victim, but that he had a role in it, that he “must feel like shit,” to which Rought responded, “Absolutely.”

Rought moved to suppress his post-invocation statements on the ground that they were obtained in violation of Miranda v. Arizona, arguing that his invocation of the right to counsel was not limited to the circumstances of the victim’s death but was instead without limitation and that law enforcement was therefore required to cease interrogation entirely under Edwards v. Arizona, 451 U.S. 477 (1981). Rought also argued that after he invoked right to counsel, he did not initiate the post-invocation discussion about the victim, and that any post-invocation waiver of the right to counsel was not knowing and intelligent because he was not “fully aware” of the potential consequences. The District Court denied his motion and he was convicted by jury and sentenced to 360 months in prison.

Analysis:

Miranda Obligations

The Fifth Amendment provides that “No person…shall be compelled in any criminal case to be a witness against himself.” With Miranda, the Supreme Court “imposed certain obligations on police in custodial interrogations, in order to dissipate the ‘compelling pressures which work to undermine the individuals will to resist and to compel him to speak where he would not otherwise do so freely.’” (United States v. Velasquez, 885 F.2d 1076, 1084 (3d Cir. 1989) (quoting Miranda, 384 U.S. at 467). The Miranda warnings also dictate that police “must cease the interrogation if at any point the suspect indicates that he wishes to remain silent or that he wants an attorney.” (Id.) A waiver of Miranda rights must be voluntary, knowing and intelligent given the totality of the circumstances. A waiver is voluntary if “it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” (Colorado v. Spring, 479 U.S. 564, 573 (1987)). A waiver is knowing and intelligent if “made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” (Id. at 573).

Post-Invocation Statements Admissible When Volunteered

With Edwards the Supreme Court established that “an accused person in custody who has invoked his desire not to speak until he has conferred with counsel ‘is not subject to further interrogation…until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversation with the police.’” (Edwards at 484-485). Post-invocation statements made during the exchange may then be admissible against him if the suspect knowingly and voluntarily waives his right to counsel and the right to remain silent.

With Connecticut v. Barrett, 479 U.S. 523 (1987), the Supreme Court held that not all invocations of the right to counsel are “effective for all purposes,” and that some can be “limited” in scope depending on the suspect’s desires. The defendant in Barrett refused to “put anything in writing until his attorney came,” but was willing to offer an oral confession despite knowing that police planned to record it. The Court held that Barrett’s statements were admissible, holding that nothing “requires authorities to ignore the tenor and sense of a defendant’s response to Miranda warnings.” (Id. at 528). The Court’s reasoning in Barrett is not limited to mode, and applies to invocations limited by topic or subject matter. The Third Circuit holds that after a limited invocation when the police have ceased interrogation about a covered topic, “an initiation occurs when a suspect initiations a [line of discussion that evinces] a willingness and desire for a generalized discussion about the [covered topic].” (Velasquez, 885 F.2d at 1085).

Defendant Offered “Limited” Invocation, Later Initiated the Topic of Interrogation

Defendant argued that his invocation of the right to counsel was not limited to the circumstances of the victim’s death, but was “for all purposes,” and that law enforcement was required to cease interrogation. The Third Circuit disagreed, holding that Rought proceeded to discuss a variety of topics including addiction, his fentanyl source, his criminal history, and only invoked the right to counsel on “that aspect” when the interrogator asked about the circumstances of the victim’s death. It is not plausible, the Court held, that by refusing to discuss “that aspect” of the case without a lawyer, Rought was actually expressing “his desire to deal with the police only through counsel.” (Edwards, 451 U.S. at 484).

Defendant also argued that he did not initiate the post-invocation discussion of the victim’s death. He asserted that there can not be a post-invocation initiation if the investigation never ceases, but the Third Circuit rejected this argument, explaining via Barrett that the interrogation need not cease following a limited invocation, but can continue to matters not covered by the invocation. Rought expressed his desire for counsel, the interrogator respected the right and refocused the interrogation on the defendant’s drug supplier. The Third Circuit held that defendant initiated the conversation about the victim when he stated that drug dealers were, “killing [his] friends just as right now…you’re trying to say that [he] killed” [the victim]. In offering this statement, he opened himself up to further investigation on the topic.

Defendant’s final argument that any post-invocation waiver was not effective because he was not “fully aware of the consequences” of waiving his right to counsel is meritless. The Third Circuit holds that a waiver is knowing and voluntary “if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances, even though the defendant may not know the specific detailed consequences of invoking it.” (United States v. Ruiz, 536 U.S. 622, 629 (2002)). The Third Circuit concluded that Rought’s waiver of his rights was voluntary, knowing and intelligent under the totality of the circumstances. He was read his Miranda rights, he signed a form acknowledging that he understood them, and consented to questioning. By choosing to speak in detail about the circumstances of the victim’s death, Rought waived his right to remain silent and his limited invocation of the right to counsel. The Third Circuit concluded, then, that defendant’s post-invocation statements were thus admissible against him at trial, and the District Court correctly denied his motion to suppress.

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Guest Blogger Bio:

Hi! I’m Mark Gutman and I’m excited to be this week’s guest blogger. I am a former criminal defense attorney and current education law attorney representing students in disciplinary hearings across New York City and the surrounding counties. Student disciplinary cases are on the border of education law and criminal defense, where students are accused of misconduct and need to prove that either (1) the conduct they’re accused of never happened, (2) they have a defense to the misconduct, or (3) the school is using evidence that is inadmissible. For today’s case, we’ll discuss one way in which evidence used against a student in a suspension case may be inadmissible.

For more information about student rights, you can contact me or my partner, Anthoula Vasiliou, directly over at www.GVLLP.com.

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N.J. v. T.L.O.

469 U.S. 325 (1985)

Issue:

Does a student have a Fourth Amendment right to be safe from unreasonable searches and seizures when they are in a school setting?

Holding:

The Supreme Court of the United States held that yes, students do have a right to be safe from unreasonable searches and seizures even when they are within the confines of the school building. However, like other fundamental rights, those rights are slightly diminished for students. A student can be searched if school officials have reasonable suspicion, not just probable cause.

Facts:

A high school teacher caught a 14-year-old girl, T.L.O., in the bathroom with cigarette smoke in the air. She was brought to the principal’s office where she vehemently denied that she had been smoking and stated that she never smoked. The principal grabbed her purse and searched through it. He found not only a pack of cigarettes, but also marijuana, a pipe, plastic bags, a substantial amount of money, and an index card with the names of students who owed T.L.O. money, presumably for the sale of marijuana.

T.L.O. was suspended but also, the search was used against her in juvenile court where she was adjudicated as a delinquent. She appealed her case and argued to the court that the school did not have the right to grab her purse and search through it because it violated her Fourth Amendment right to be protected against unreasonable searches and seizures. The New Jersey Supreme Court agreed with her, reversed the decision of the lower court, and found that T.L.O.’s rights had been violated. The Supreme Court of the United States, however, felt differently.

Analysis:

The Supreme Court of the United States agreed with T.L.O. on one thing – students do maintain their right to be safe from unreasonable searches and seizures, even in a school. However, the Court found that what is considered unreasonable is different for a student in school than it would be for an adult in other settings. The Supreme Court balanced the child’s interest in privacy against “the substantial interest of teachers and administrators in maintaining disciple in in the classroom and on school grounds.” The Court found that in doing so, the proper standard is “reasonable suspicion.”

“This standard will, we trust, neither unduly burden the efforts of school authorities to maintain order in their schools nor authorize unrestrained intrusions upon the privacy of schoolchildren. By focusing attention on the question of reasonableness, the standard will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense. At the same time, the reasonableness standard should ensure that the interests of students will be invaded no more than is necessary to achieve the legitimate end of preserving order in the schools.”

When the Court applied this new standard to the facts in this case, it determined that yes, there was reasonable suspicion to search T.L.O.’s purse. Because T.L.O. was accused of smoking, a search of her purse would reveal whether she was actually in possession of cigarettes or not. The Court found that this was enough of a link to be reasonable and made the search of the purse legal. Once the search of the purse was justified, anything that the principal found during that search was fair game. Therefore, the evidence found could be used against her both in her suspension as well as the juvenile court hearing.