Saturday, June 30, 2018

Case o' The Week: Government's Pleas Fall on Skeptical Ninth Ears - Armando Vera and Use of Co-D Plea Agreements at Sentencing

 If at first you don’t succeed,
 Find a co-d, make him plead,
 Use co-D’s plea to prove your fact,
 Then up to the Ninth, who sends you back.

United States v. Armando Vera, 2018 WL 3097956 (9th Cir. June 25, 2018), decision available here.

Players: Decision by Judge Owens, joined by Judges Wardlaw and Nguyen.  

Facts: Brothers Salvador and Armando Vera were convicted of a drug-trafficking conspiracy after trial. Id. at *1. In a welcome holding rejecting cop “interpretations” of recorded calls, the Ninth’s first opinion vacated the drug quantity findings and the defendant’s sentences. See United States v. Salvador Vera, 770 F.3d 1232 (9th Cir. 2014), see also blog entry here. 
  On round two of sentencing, the government decided not to try to fix the cops’ methodology, or actually call the co-conspirators to establish drug amounts. Armando Vera, 2018 WL 3097956, at *2. Instead, the government “relied heavily” on the co-conspirators’ plea agreements to pin drug amounts on the Vera brothers. Id.
   Over objection, the district court found these agreements reliable, declarations against interest, and – primarily relying on the facts from the plea agreements – re-sentenced one brother to 27 years, and the second to 14 years. Id.

Issue(s): “At sentencing, the Confrontation Clause does not apply, . . . and district courts have wide latitude when deciding upon which information to rely, . . . But that information must still have “sufficient indicia of reliability to support its probable accuracy.” U.S.S.G. § 6A1.3(a).” Id. at *3.

Held: “Here, the district court relied heavily upon the co-conspirator plea agreements to determine the drug quantities attributable to the Veras, concluding that the plea agreements were reliable statements against interest under Federal Rule of Evidence 804(b)(3). This was reversible error.” Id.
  “Of course, “hearsay is admissible at sentencing, so long as it is accompanied by some minimal indicia of reliability.” Littlesun, 444 F.3d at 1200 (internal quotation marks omitted). But here, the district court’s primary rationale for relying upon the plea agreements —Rule 804(b)(3)—was incorrect. At sentencing, district courts may not rely solely on Rule 804(b)(3) to use non-self-inculpatory statements in a co-conspirator’s plea agreement to determine a defendant’s drug-quantity liability.” Id. at *4.
  “Vacated and remanded.” Id. at *6.

Of Note: Can a complaint affidavit be used to support the government’s facts at sentencing? Weird, but the government stretched for that argument here, urging in a 28(j) letter that complaint affidavits supported the drug amount findings in Vera. Id. at *5 & n.4.
  The panel “assumes without deciding” that a complaint affidavit can be used at sentencing, but holds the reliability of the government’s showing still falls short. Id.
  A good ultimate holding by the panel, but this complaint-tactic remains a government scheme that merits close watching – it seems terrifically unreliable, litigation-driven, hearsay evidence.

How to Use: AUSAs inexplicably lard-up plea agreements with facts inculpating co-defendants – even when the pleading defendant isn’t snitching. Of course, a pleading defendant trying to “curry favor” with the government, id. at *3, doesn’t really care if facts inculpating co-Ds are actually true.
  Judge Owns understands this reality: his pragmatic analysis works through the dubious reliability of the government’s rambling factual bases. As he explains, in Vera “Neither the district court nor the government cited any authority suggesting that a factual basis in a plea agreement pointing the finger at someone else qualifies as Rule 804(b)(3) material, and there is ample case law . . .  suggesting otherwise.” Id. at *3.
  Use Armando Vera to brush back on the novels AUSAs jam into Paragraph 2 (the factual bases) of our plea agreements. As the Vera opinion illustrates, those lengthy statements nailing co-Ds aren't particularly reliable, have little value in litigation, earn our clients unwarranted snitch jackets, and seriously complicate efforts to resolve cases. 
For Further Reading: The conduct in this case was in 2008. Two sentencing remands and a decade later, Vera I and II don’t say much for the reliability of our current federal sentencing system. 
  What say we use the Federal Rules of Evidence at sentencing, to increase reliability? For an interesting piece making that pitch, see Deborah Young, Fact-Finding at Federal Sentencing: Why the Guidelines Should Meet the Rules, available here 

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


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