Saturday, March 10, 2012

Case o' The Week: Broaching the Breach - Whitney and Prosecutorial Breach of Plea Agreements

"The government's argument [on appeal] is disingenuous."

Expect good things to follow, when the analysis of an AUSA's breach of a plea agreement begins with that blunt assessment. United States v. Whitney, 2012 WL 718483, *4 (9th Cir. Mar. 7, 2012), decision available here.

Players: Decision by Judge Reinhardt, joined by Judges B. Fletcher and Tashima.

Facts: While incarcerated for another (similar) offense, Whitney filed false tax returns. Id. at *1. He was charged, then cooperated, and then ultimately pleaded guilty pursuant to a plea agreement. Id. 

  In the plea agreement the government pledged to recommend the low-end of the guideline range, and promised it wouldn’t use information from Whitney’s debrief. Id. The agreement permitted both parties to contest a role adjustment. Id. The PSR identified three inmates in the scheme, but failed to identify how Whitney "managed" others. Id. Nonetheless, Probation recommended the two-level upward adjustment, and a whopping upward departure to 87 months (double the guideline range). Id. at *2. 

   Whitney's defense counsel contested the role adjustment at sentencing. Id. The AUSA then recommended “the low end of the guidelines as we have obligated ourselves to do.” Id. She then argued for the +2 OL role adjustment, explaining that Whitney “supplied information to me during his debriefing session that put himself in a supervisory role, a two-level increase.” Id. 

 Defense counsel didn’t object to this argument. 

The district court found the role adjustment applied, and departed upwards to 87 months. Id.

Issue(s): “[Whitney] contends that the U.S. Attorney breached the parties’ plea agreement by disclosing admissions made by Whitney while cooperating with the government, and by urging imposition of a sentence above the low end of the Sentencing Guidelines.” Id. at *1.

Held: “Although the prosecutor uttered the requisite words by recommending a sentence at the low-end of the guidelines, her additional statements constituted an argument for a higher sentence, breached the government’s obligation to recommend a low-end Guideline sentence, and likely had an impact on the far-above-guideline sentence imposed  . . .  The prosecutor’s reference to inculpatory statements made by Whitney during the course of his cooperation bore on the applicability of the two-level sentencing enhancement as well and similarly constituted an obvious breach.” Id. at *4. “We hold that the breach of the plea agreement by the U.S. Attorney resulted in plain error that affected Whitney’s substantial rights.” Id. at *1.

Of Note: This would be a great breach decision in any context, but is a particularly potent case because Judge Reinhardt grants relief despite undertaking plain error review. Id. at *3. Olano plain error is that bane of the defense on appeal: a  four-part test that usually results in a government win. Id. at *3. Judge Reinhardt not only finds “plain” error in the breach -- he also explains that the breach affected Whitney’s substantial rights, id. at *5, and affected the fairness and integrity of the judiciary, id. at *6.  

Whitney make breaches even more dangerous for the government, because even if trial counsel fails to object the defendant can prevail -- on plain error – on appeal. The remedy? Specific performance and a different district judge on remand! Id. at *9.

How to Use: Whitney also reverses the sentence because insufficient facts supported the leadership role enhancement. Id. at *1. It is an equally valuable decision on that issue; Judge Reinhardt carefully explains the necessary "level of control" to support this adjustment – facts not found in Whitney. Id. at *7-*8. 

Footnote six is of special interest – the Court there eviscerates the government’s argument that 1993 amendments to the guidelines altered the showing necessary for a leadership role. Id. at 7 & n.6. Read and rely on Whitney when fighting leadership adjustments.
 For Further Reading: President Carter appointed the three judges on this panel: Judges Reinhardt, B. Fletcher, and Tashima. It is, sadly, increasingly rare to see a three-judge panel of Carter appointees – even this Whitney panel features two senior Ninth Circuit judges (Judges B. Fletcher and Tashima).

For a very interesting discussion of the unusually large Carter “cohort” of Ninth judges and their tremendous impact on this Circuit, see Susan B. Haire, Judicial Selection and Decisionmaking in the Ninth Circuit, 48 AZLR 267 (2006). 

 Ed. Note: An astute reader clarified that Judge Tashima was indeed appointed by President Carter -- but to the district court, not to the Ninth Circuit. Judge Tashima was appointed to the Ninth Circuit by President Clinton.

Trailer still of "Breach" from
Portrait of President Jimmy Carter from

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


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