Monday, January 16, 2006

Case o' The Week: An (Allen) Wrench Thrown into Plea Deal, Prosecutorial Breach

There’s a lot of detail in modern U.S. Currency (left). Too much detail for the defendant’s counterfeit to pass in United States v. Ted Allen, __ F.3d. __, C.A. No. 05-50078 (N.D. Cal. Jan. 12, 2006), available here. In Allen, the Ninth remands for evidentiary findings on a guideline enhancement. The more interesting aspect, however, is the Court’s discussion of prosecutor breach of plea agreements.

Players: Judge Berzon writes for the panel, with Canby and Fernandez on board.

Facts: Ted Allen pleaded guilty to counterfeiting. Slip. Op. at 528. The plea agreement had Allen pleading to selling 14 $100 bogus bills, and recommended an Offense Level (OL) of 9. Id. at 529. Probation, predictably, came in at OL 15 in the PSR. Id. at 530. The bump came from Allen’s alleged possession of a counterfeiting device. Id. The court asked the AUSA if a device had been recovered, and when pressed the AUSA said she could present evidence of that. Id. She clarified, though, that the government stood by its recommended agreement. Id. The court and the AUSA questioned the agent, that described counterfeiting gear. Id. at 531. The defendant got the bump and a 12 month sentence. Id.

Issue(s): 1. Did the district “misinterpret[ ] the Guidelines in determining [Allen’] sentence?” Id. at 532. 2. Did the “government breach[ ] the plea agreement by participating in the evidentiary hearing regarding the possession of counterfeiting devices or materials ordered by the district court?” Id. at 539.

Held: 1. Re: Guidelines: The court erred in its guideline calculations – it needed to make findings regarding the quality of the counterfiet bills. 2. Re: Breach: “The government’s actions in this case were not an attempt to persuade the district court to impose a higher sentence . . . . [T]he government did not argue, unprompted, that Allen manufactured the counterfeit bill. Instead, the government responded to the district court’s specific requests. Id. at 541.” “The combination of some judicial questioning and prosecutorial care to present the testimony neutrally avoided . . . a breach of the plea agreement.” Id. at 542-43.

Of Note: Even though Allen had already completed his term of imprisonment, he could bring this appeal. Id. at 532. “[W]here a defendant has received a sentence that includes a period of supervised release, a challenge to the length of the sentence of imprisonment is not moot because the district court has discretion regarding the length of supervised release . . . and can change the supervised release period.” Id.

How to Use: This case is a defense win, with a remand to for evidentiary findings on the guideline enhancement. The most interesting aspect of the opinion, however, is its discussion of “breach.” Id. at 539 Section IV. Over 97% of federal cases end in deals or pleas instead of trials. The federal system leaves little room for charge bargaining, and most USAO’s forbid “Booker” deals that avoid the guidelines. As a result, even in the post-Booker world, frequent and necessary bargaining chips are guideline enhancements. The value of these types of deals depends on the AUSA’s trustworthiness, and on a court’s reputation for “busting deals” (for going behind the agreement, as happened here). While the Ninth tolerated the AUSA’s actions in Allen, there are two important principles that arise from the decision’s discussion of breach. First, the AUSA made it clear that she was not seeking the enhancement, and only responded to the court’s inquires. Second, the Court explains that when this situation happens, the court – and not the AUSA – should question the government’s witnesses. Use these principles from Allen when fending off an AUSA who goes back on their deal in the face of a contrary PSR.

For Further Reading: Counterfeiting cases are usually lousy. They often seem to involve clumsy attempts at counterfeiting by drug addicts – and often by meth users. Despite these often pathetic counterfeiting attempts, the guidelines on the offense are nothing to sneeze at. An interesting web site explains in depth how to counterfeit money – and why it is a dumb idea. See article here. Hopeully the new security features will dissuade future clients, and fewer of these sad cases will make their way into federal court.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


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