US v. Olson, No. 19-16591 (2-22-21)(Per curiam w/Thomas, Schroeder, & Berzon; concurrence by Thomas; concurrence by Berzon). This is an interesting opinion: does the right to effective counsel apply to plea negotiations before a formal charge? The 9^th holds that circuit precedent binds it to reluctantly say “no”. The panel and concurrences conclude this is not a good vehicle to overturn precedent because counsel was not ineffective. The 9^th though should be on the lookout.

This case arises when petitioner received a “target letter” for a fraud investigation. Petitioner was appointed counsel, who received an offer of the low end of the guidelines for tax evasion. There was a recommended offer of 30 months. The government refused to share discovery with counsel, and counsel stated that she could not advise her client without having reviewed the evidence. The offer was withdrawn. The petitioner was indicted. With new counsel, he eventually pled and received a 48-month sentence.

Petitioner filed a 2255, alleging IAC. He claimed he was not informed of the plea. Counsel provided notes, emails, and a declaration affirming the petitioner was notified. The district court denied petitioner’s motion to vacate because the 9^th Circuit in US v. Hayes, 231 F.3d 663 (9^th Cir 2000)(en banc) adopted a bright-line rule that the Sixth Amendment right to counsel only attaches upon initiation of formal charges. The dissent warned about gamesmanship. Other circuits have raised similar concerns.

The 9^th discusses the role of plea negotiations, and how they frequently occur before formal charges. Frye extended IAC claims to post-indictment plea negotiations. However, there was no IAC here on the merits.

Thomas, concurring, writes that in his view, there is a Sixth Amendment right to counsel when a “functional equivalent of an indictment exists;” and that Hayes does not foreclose such a result.

Berzon, concurring, writes that she “reluctantly” concurs in the judgment. She believes Hayes imposes a far more stringent test for the Sixth Amendment right to counsel than is set by the Court. She would have the 9^th reconsider Hayes at “the first opportunity.”

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/02/22/19-16591.pdf