United States v. Griffin, Docket No. 05-4016-cr (2d Cir. Dec. 21, 2007)
An important case involving the circumstances under which the Government can be held to account for breaching a plea agreement.
The Government agreed in Griffin's plea agreement "not to oppose the recommendation that the Court apply the two (2) level downward adjustment of Guidelines § 3E1.1(a) (acceptance of responsibility) and further agree[d] to move the Court to apply the additional one (1) level downward adjustment of Guidelines § 3E1.1(b)." The plea agreement, however, also permitted the Government to "respond at sentencing to any statements made by the defendant or on the defendant's behalf that are inconsistent with the information and evidence available to the government."
That's what the Government did, and that's what got it into hot water with the Second Circuit.
Specifically, in response to Griffin's objections to the PSR, the Government discussed the possible downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1 in two separate written submissions. It first noted that "the government is troubled by some of the defendant's objections which seem to raise questions regarding whether the defendant has truly accepted responsibility." The submission continued by stating that "[h]owever, the defendant did timely notify authorities of his intention to enter a guilty plea, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently."
But that wasn't all it said. It made a second submission in response to Griffin's arguments -- permitted by the terms of the plea agreement -- that no relevant conduct was applicable to his sentencing beyond that to which he pled guilty. In that second submission, the Government wrote that "the defendant is attempting to limit his conduct to only that to which he pled guilty," which "leads the government to question whether the defendant has truly accepted responsibility pursuant to U.S.S.G. § 3E1.1(a)." The Government then reviewed the legal framework of a downward adjustment for acceptance of responsibility, concluding: "It is unclear whether the defendant's objections to the inclusion of all the relevant conduct rises to the level of outweighing his acceptance of responsibility. Suffice it to say that the defendant's objections to the relevant conduct raises [sic] questions on the issue of acceptance."
Well, that was just too much for the Second Circuit -- it was "well beyond the pale." According to the Second Circuit:
No discussion of an acceptance of responsibility adjustment was solicited by the court. It was not an effort simply to correct an inaccurate representation of relevant sentencing law. Nor did the government merely provide information or evidence in response to any statements by the dedendant. Instead, the government, on its own initiative, warned the court about what it considered to be "troubling" statements by the defendant in his submission to the court in anticipation of sentencing. (Internal citations omitted.)
In a word, the Government breached the plea agreement by encouraging the sentencing court to deny an adjustment for acceptance of responsibility.
The remedy? Two were available: (a) specific performance; and (b) permitting withdrawal of the guilty plea. Since Griffin sought only specific performance, the Second Circuit vacated the sentence and remanded for resentencing. In doing so, it directed that the case be reassigned, fearing that "[i]f the district court were again to deny acceptance of responsibility, there is no way to be certain that the government's breach had no effect on that determination."
Griffin, however, was not a unanimous decision. A dissent was filed. It's conclusions are well-summed up by its introductory paragraph:
The majority concludes that this case should be remanded to a new district court judge for specific performance of the government's promise not to object to defendant's request for an acceptance of responsibility adjustment. It does so in the name of preserving the integrity of the plea bargaining process and public confidence in the federal criminal justice system. I agree with my colleagues that courts must be vigilant in holding the government to its promises. I submit, however, that the majority's analysis overlooks a crucial fact in this case -- defendant's own prior breach of the agreement. In my view, remand will seriously undercut the very policy concerns the majority seeks to protect. I therefore respectfully dissent and vote to affirm the judgment.