Sunday, April 02, 2017

Case o' The Week: Once More Into the Breach - Plascencia-Orozco and Breach of Plea Agreements

Honorable Judge Carlos Bea

 Practice pointer: When an opinion starts by observing that a defendant stands out as a “cara dura,” things probably won’t end well.
United States v. Plascencia-Orozco, 2017 U.S. App. LEXIS 5445 (9th Cir. Mar. 29, 2017), opinion available here.

Players: Decision by Judge Bea, joined by Judges Callahan and Ikuta.

Facts: Plascencia-Orozo stole the I.D. of U.S. citizen “Del Muro.” He attempted unlawful entry using the Del Muro identity in 2008 and 2011. Id. at *4.
  In 2008, Plascencia plead guilty to importation of marijuana: remaining counts were dismissed pursuant to a plea agreement. Id. The plea agreement allowed the dismissed agg ID and reentry charges to be resuscitated in the event of a breach, or if Plascencia unlawfully returned to the U.S. during his term of supervised release. Id. at *11.
  Plascencia was removed after serving his term.
  Two months later, in 2011, he was caught attempting to reenter again, with the “Del Muro” identity.
  Plascencia was charged with agg ID theft and attempted illegal reentry. Id. One set of the agg ID / reentry charges came from the (dismissed) 2008 counts, on a theory Plascencia had breached his ‘08 plea agreement. Id. at *5-*6.
  In a pretrial hearing, the district court found a breach of the plea agreement by a preponderance of the evidence. Plascencia was convicted after trial. Id. at *3, *6.

Issue(s): “Plascencia argues that the district court erred by ruling that Plascencia had breached his 2008 plea agreement at a pretrial motions-in-limine hearing. Instead, Plascencia argues, the district court should have submitted the issue to the jury. Alternatively, Plascencia contends, it should have at least required the government to seek a finding of breach before reindicting Plascencia on the 2008 charges.” Id. at *16.

Held:We have never squarely held that a district judge may find that a defendant breached a prior plea agreement at a pretrial hearing, without submitting the question to a jury.” Id. at *18 (footnote omitted). “We join the First Circuit in holding that the question of breach is for the district judge, not a jury, to decide.” Id. at *19.

  “We have also never expressly addressed whether the government must seek a judicial finding of breach before indicting a defendant on charges barred by a plea agreement. [W]e think that . . . —a motion to dismiss under Rule 12(b), with an evidentiary hearing to resolve disputed factual issues and a burden of proof that rests squarely on the government—are sufficient to protect a defendant’s due-process right to enforce the terms of his plea agreement. Plascencia has pointed us to no statute or case law requiring the government to seek a preindictment finding of breach, and we decline to recognize such a requirement here.” Id. at *21 (footnote omitted).

  “In sum, we conclude that the proper way for a defendant to raise a prior plea agreement as a defense to a criminal charge is to move to dismiss that charge under Federal Rule of Criminal Procedure 12(b). If the government thinks that the defendant has breached the plea agreement, such that it no longer applies, then it must proffer sufficient evidence to establish that breach by a preponderance of the evidence. . . . The matter need not be submitted to a jury, nor need it be decided before the indictment or information is filed. The district court followed these procedures here, and its ruling at the motions-in-limine hearing that Plascencia had breached his plea agreement was not reversible error.” Id. at *23.

Of Note: The defense of this case was – challenging. Plascencia initiated bar complaints against two attorneys, ended up with three attorneys, and was denied a fourth. He made “an obscene gesture” at a juror, and testified that he was the father of Del Muro’s children (contradicting the testimony of the mother of Del Muro’s children). The only (somewhat) bright spot is the Ninth’s reversal of a “free standing” order that Plascencia to use his true name in the future. Id. at *37-*38.

How to Use: Judge Bea notes (and avoids) conflicted standards of review in the breach context. Id. at *14 n. 8. Despite that sidestep, Plascencia creates new law for breach in the Ninth, and lays out the analysis of breach under the existing rules. It is now a lead Ninth opinion on how to tackle breached plea agreements.
For Further Reading: Can you exploit a D.J.’s wink, and deliberately breach a plea agreement when a better sentence than the deal is the likely outcome?
  For a good article on this ethical bind, see Can Defense Counsel Ethically Breach a Plea Agreement?, available here.

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


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