Supreme Court Reminds that Judges Should Not Participate in Plea Negotiations

Supreme Court Reminds that Judges Should Not Participate in Plea Negotiations

In United States v. Davila, ___ U.S. ___, 2013 U.S. LEXIS 4541 (2013) [enhanced version available to lexis.com subscribers], a criminal tax case, here free version, decided June 13, the defendant was charged with multiple counts of tax fraud and conspiracy. As is typical, the Government indicated a willingness to accept a plea for one count of conspiracy (referred to by the DOJ CTM as the major count) and dismiss the remaining counts. As I have noted before, achieving a dismissal of such remaining counts upon plea often achieves nothing practical for the defendant because of the operating of the Sentencing Guidelines, but the plea agreement itself can be rewarded under the Sentencing Guidelines by downward adjustment for Acceptance of Responsibility. The defendant finally did accept a plea, but not before he initially resisted and received some inappropriate advice to plead from the Magistrate Judge.

By way of background, most criminal tax cases, as most criminal cases generally, are resolved by plea agreement. (See the addendum below on a recent article on statistics dealing with the role of pleas in the federal criminal system.) For example, assume that potential client A comes into your office the day after he was indicted for several tax crimes. A announces that he came to you because you had the reputation of being the best criminal tax lawyer in the universe (you modestly but not totally candidly disavow that reputation). A then outlines his cryptic view of why he is innocent. He then asks what are the chances of you obtaining an acquittal for him. All you know is his cryptic account which or may not be a fair representation or summary of the facts, but that cryptic account proclaims his complete innocence, at least on the willfulness element of the tax crimes charged because he says he is innocent. So, you remind him that he is asking you to state conclusions based on cryptic facts which may or may not be true and which you have not investigated. On that basis, you advise first that, if the cryptic statement is a fair representation of the case that will be presented at trial, then he has a very good chance of being acquitted. You then state that your experience is that such cryptic initial accounts generally are too cryptic for anyone to feel comfortable that that is the way it will play out at trial. You then state that, given the highly selective systemic selection of criminal tax cases, culminating in DOJ Tax and AUSA review before indictment, the facts may well not play out that nicely at trial. You then tell him, that given that selectivity, the posted rates of conviction in tax cases are very high -- exceeding 90% (maybe, see my several other postings on the conviction rates in tax cases). You then tell him, based on that statistic alone, and discounting his cryptic proclamation of innocence, there is a 90+% chance he will be convicted. You finally tell him there is a systemic preference in the federal criminal system generally and in the tax crimes subset of that system to resolve cases by plea -- indeed a defendant is given a substantial benefit in the Sentencing Guidelines by resolving the case by plea. The combination of likely conviction and the benefit of pleading for a reduced sentence is a powerful incentive to plead. (Indeed as others have noted, it may be so powerful in some cases that the innocent plead, provided that they can clear the hurdle of allocution of guilt.)

Now, with that background, the defendant in Davila was unhappy with his attorney who, apparently with more facts in hand as to how the trial would play out, advised the Davila to accept  the plea proffered by the prosecutor.  Davila interpreted that recommendation as being a reflection of the fact that the attorney had no defensive strategy.  That is probably a fair lay interpretation, but criminal defense lawyer would characterize the recommendation as a conclusion that the defendant almost certainly would be convicted.  Davila's strategy then was to request new counsel.  An ex parte hearing or meeting on that request was held with the U.S. Magistrate Judge.  The prosecutor was not present (not clear why, but that was a no-no.).  During the course of the hearing or meeting, the Magistrate Judge advised that defendant that he would not get another court-appointed attorney and that his best course, given the strength of the Government's case, was to accept the plea.  Davila was not convinced.  Time passed.  Finally, he became convinced and pled with a full allocution saying that he was guilty of the crime to which he pled and that nothing had been promised him in return, etc., etc.

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View Jack Townsend's opinion in its entirety on the Federal Tax Crimes blog site.

For additional insight, explore Tax Crimes, authored by Jack Townsend and available at the LexisNexis® Store.

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