Sunday, June 08, 2014

Case o' The Week: Government gets the (Spear) Point from Ninth - Spear, Appellate Waivers, and Plea Agreements

  “The government is entitled to receive what it bargains for but nothing more.”
   In a welcome decision, Judge Fisher holds the government to precisely the bargain struck. United States v. Spear, 2014 WL 2523649 (9th Cir. June 5, 2014), *5 (quotation and citation omitted), decision available here.

Players: Decision by Judge Fisher, joined by Chief Judge Kozinski and Judge Watford.

Facts: Spear, a doc in Kauai, was indicted for illegally distributing oxycodone and methadone. Id. at *1. He plead guilty pursuant to a plea agreement that allowed him to appeal a sentence above the guideline range. Id. Spear twice moved to withdraw his guilty plea (first motion withdrawn, second denied), and was ultimately sentenced to 151 months (the low end of the guideline range). Id. He appealed, arguing that his guilty plea lacked a sufficient factual basis, that the government breached the plea agreement, and that his motion to withdraw was improperly denied. Id.

Issue(s): “Spear does not challenge the knowing and voluntary nature of his waiver, but argues that the waiver pertained only to an appeal from his sentence and therefore does not encompass this appeal from his conviction.” Id. at *2. “Defendant . . . Spear . . .  appeals his conviction by guilty plea . . . . The government argues this appeal should be dismissed based on a provision of the plea agreement that limits Spear’s appellate rights.” Id. at *1.

Held:We reject this argument and reach the merits of this appeal because Spear’s knowing and voluntary waiver of his right to appeal his sentence did not extend to this appeal of his conviction by guilty plea.” Id. at *1. “We . . .  hold that a defendant’s knowing and voluntary waiver of his right to appeal his sentence does not inherently encompass a knowing and voluntary waiver of his right to appeal his conviction.” Id. at *4 (emphasis in original).

Of Note: Dr. Spear won this battle – how did the war turn out? Not as well. In a memorandum disposition, the Court denied each of his challenges, finding sufficient facts admitted during his plea colloquy, a sufficient factual basis for the plea, no breach by the government by introducing uncharged (illegal) prescriptions as relevant conduct, and upholding the district court’s refusal to allow Dr. Spear to withdraw his guilty plea. See United States v. Spear, 2014 WL 2526120 (9th Cir. June 5, 2014) (mem.) 
  With the defense 0 for 4 on the substantive issues, interesting the Court felt strongly enough about this waiver issue to publish on it. Fair to read Spear as a message to the government on overbroad appellate waivers – sloppy language is poorly received by the reviewing Court.

How to Use: In the context of plea agreements, “The government is entitled to receive what it bargains for and but nothing more.” Id. at *5 (internal quotations and citation omitted). “We have steadfastly applied the rule that any lack of clarity in a plea agreement should be construed against the government as drafter.” Id. at *3 (internal quotations and citations omitted). These, and many other bon mots, are layered throughout Judge Fisher’s decision. Turn to Spear for helpful language and analysis when fighting over the terms of a plea agreement – and note that the waiver language limited in this case parallels broad sentencing appeal waiver examples in the U.S. Attorneys’ Manual. Id. at *2.
Michael Millman
For Further Reading: We lost a legendary champion for indigent defense, and a dogged opponent of the death penalty, with the passing of Michael Millman last week. See L.A. Times article here. 
   Though a fierce advocate for his clients, Michael was also a kind and patient man with astute political sense. As the head of the California Appellate Project (“CAP”), Michael was a leader in the efforts to secure counsel for federal capital habeas corpus petitioners in the Northern District of California. 
  When we one day celebrate the end of the capital punishment, let’s remember to raise a glass to Michael and his decades of righteous battles in the fight against death.

Image of “contract” from
Image of Michael Millman from

Steven Kalar, Federal Public Defender N.D. Cal FPD Website at


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