United States v. Pena

676 F.Supp.3d 978

UNITED STATES of America, Plaintiff, v. Jose PENA, Defendant.

No. 20-CR-01903 MV

United States District Court, D. New Mexico

Signed September 30, 2021

Jaymie L. Roybal, Sarah Jane Mease, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

MEMORANDUM OPINION AND ORDER

MARTHA VÁZQUEZ, UNITED STATES DISTRICT JUDGE

THIS MATTER is before the Court on Defendant Jose Pena's Response to the United States' Opposed Motion for a Lafler/Frye Hearing. Doc. 43. The United States requested a hearing on May 18, 2021. Doc. 31. Seeing no response, the Court granted the United States' motion and requested that a United States Magistrate Judge conduct a Lafler/Frye Hearing. Doc. 40. On the same day, Mr. Pena filed a Response. Doc. 43. Having carefully considered the response, relevant law, and being otherwise fully informed, the Court reconsiders its previous order [Doc. 40] and finds that the United States' motion is not well-taken and will be DENIED. The Lafler/Frye Hearing will be vacated.¹

BACKGROUND

On May 11, 2021, the United States extended a written plea offer to Mr. Pena via email to Mr. Pena's counsel. Doc. 31 ¶ 2. The proposed plea offer was set to expire on June 11, 2021. Id. On May 18, 2021, Mr. Pena's counsel informed the United States that, after reviewing the proposed plea agreement with counsel, Mr. Pena had rejected the plea offer. Id. The same day, the United States requested a hearing on whether defense counsel informed Mr. Pena of the United States' plea offer, whether they discussed the terms of the offer, and whether Mr. Pena then chose to reject the offer. Id. ¶¶ 3-4. The stated purpose of the requested Lafler/Frye hearing was "[t]o protect against any future claim of ineffective assistance of counsel on this issue." Id.

Mr. Pena asks the Court to deny the United States' motion for three reasons. First, although Mr. Pena's counsel considers the duty to communicate all plea offers "fundamental," Mr. Pena opposes a Lafler/Frye hearing because its purpose is to prevent Mr. Pena from succeeding on a future ineffective assistance of counsel claim. Id. ¶¶ 2-3. Additionally, Mr. Pena argues that Lafler/Frye hearings may run afoul of Rule 11(c)(1), which prevents the courts from participating in plea discussions. Id. ¶ 9 (citing Fed. R. Crim. P. 11(c)(1)). Finally, Mr. Pena argues that the grandeur and formality of a federal criminal hearing combined with questioning from the bench about a defendant's desire to proceed to trial risks influencing more risk-averse defendants to enter a guilty plea. Id. ¶¶ 5-13.

STANDARD

A criminal defendant has a constitutional right to effective assistance of counsel during plea negotiations. Missouri v. Frye, 566 U.S. 134, 145, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012); Lafler v. Cooper, 566 U.S. 156, 168, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). The cases establishing this Sixth Amendment right, Lafler and Frye, involved post-conviction claims for ineffective assistance of counsel. In Lafler, the defendant established ineffective assistance because he relied on deficient advice to reject a plea offer and was later convicted at trial. Lafler, 566 U.S. at 174, 132 S.Ct. 1376. In Frye, "defense counsel did not render the effective assistance the Constitution requires" when counsel allowed a plea offer "to expire without advising the defendant or allowing him to consider it." Frye, 566 U.S. at 145, 132 S.Ct. 1399.

The Lafler and Frye majorities drew a dissent from Justice Scalia, who argued that by recognizing plea bargaining as a critical stage in which defendants have a right to effective assistance of counsel, the Court had "open[ed] a whole new field of constitutionalized criminal procedure: plea-bargaining law." Lafler, 566 U.S. at 175, 177, 132 S.Ct. 1376 (Scalia, J., dissenting). The majority rejected the concern that their decision would "open the floodgates to litigation by defendants seeking to unsettle their convictions," writing that floods had not followed in the wake of similar decisions, nor had there been any indication "that defendants are receiving windfalls as a result of strategically timed [habeas] claims." Id. at 172, 132 S.Ct. 1376. The Court also suggested that "[t]he prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated [habeas] claims." Frye, 566 U.S. at 146, 132 S.Ct. 1399. For example, "formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence." Id. Neither decision required that formal offers be made part of the pretrial record. Id.; Lafler, 566 U.S. at 172, 132 S.Ct. 1376.

Lower courts thus developed Lafler/Frye hearings to address effective assistance of counsel and judicial efficiency concerns at the pretrial stage. In this District of New Mexico, the United States regularly requests such hearings to protect against future claims of ineffective assistance of counsel. See, e.g., Doc. 31 ¶ 3.

Yet, for good reason, district courts are explicitly barred from participating in plea discussions. See Fed. R. Crim. P. 11(c)(1). ("An attorney for the government and the defendant's attorney . . . may discuss and reach a plea agreement. The court must not participate in these discussions."). "Excluding the judge from the plea discussions . . . minimizes the risk that the defendant will be judicially coerced into pleading guilty." United States v. Cano-Varela, 497 F.3d 1122, 1132 (10th Cir. 2007); see also United States v. Begay, 497 F. Supp. 3d 1025, 1084 (D.N.M. 2020) (citations and quotations omitted) ("This rule is in place because such discussion inevitably carries with it the high and unacceptable risk of coercing a defendant to accept the proposed agreement and plead guilty."). Thus, the inquiry that a court may conduct in a Lafler/Frye hearing is extremely limited. See Begay, 497 F. Supp. 3d at 1084-85 (limiting the Lafler/Frye hearing to a "simple yes-or-no inquiry" to determine whether the plea offer was communicated); United States v. Morgan, 294 F. Supp. 3d 1218, 1226 (D.N.M. 2018) (extending the inquiry to include the terms of the plea offer, but acknowledging that only a "limited degree of inquiry" is proper under Frye) (citing United States v. Pirk, 236 F. Supp. 3d 796, 801 (W.D.N.Y. 2017); United States v. Slane, No. 11-81, 2015 WL 728481, at *20 n.14 (W.D. Pa. Feb. 19, 2015)).

The Tenth Circuit has never ruled on whether district courts have the authority or obligation to hold pretrial Lafler/Frye hearings. Two District of New Mexico cases have found that district courts have the authority to "hold a hearing to ascertain whether [defense] counsel communicated the United States' plea offer." Begay, 497 F. Supp. 3d at 1085; Morgan, 294 F. Supp. 3d at 1222. Outside this District, in United States v. Broombaugh, the court declined to hold a standalone Lafler/Frye hearing because (1) defense counsel represented to the court that she recognized and had discharged her duty under Frye, (2) such a colloquy "could set the stage for an unintended violation of Fed. R. Crim. P 11(c)(1)," and (3) "nothing in Frye suggests that the Court should mandate a colloquy every time a defendant declines the Government's plea offer." United States v. Broombaugh, No. 14-40005-10-DDC, 2014 WL 3107963, at *3-*4 (D. Kan. July 8, 2014) amended in part sub nom. United States v. Reulet, No. 14-40005-10-DDC, 2016 WL 126355, at *11 (D. Kan. Jan 11, 2016). The court later set a Lafler/Frye hearing immediately before the start of trial. Reulet, 2016 WL 126355, at *11; see also United States v. Mayer, No. 19-CR-0096 (WMW/HB), 2020 WL 1444964, at *6 (D. Minn. Mar. 25, 2020) (reasoning that, where there was an existing record of the plea offer and its rejection, the United States had not demonstrated the utility of a Lafler/Frye hearing).

DISCUSSION

1. Effective Assistance of Counsel Following Lafler and Frye

Given "that plea bargains have become so central to the administration of the criminal justice system . . . it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process." Frye, 566 U.S. at 143-44, 132 S.Ct. 1399. As such, "the Court is obligate[d] to ensure that [a defendant] receives effective assistance of counsel" during plea negotiations. Begay, 497 F. Supp. 3d at 1085 (citing Garcia v. Teitler, 443 F.3d 202, 209 (2d Cir. 2006)).

But what exactly is effective assistance of counsel at the plea-bargaining stage? The Supreme Court declined to define defense counsel's precise duties during the plea-bargaining process in Lafler and Frye. Frye, 566 U.S. at 145, 132 S.Ct. 1399. However, in Lafler, the Court made clear that a defendant could succeed on an ineffective assistance claim when he received constitutionally inadequate advice from defense counsel. Lafler, 566 U.S. at 160-61, 174, 132 S.Ct. 1376 (finding counsel ineffective when he advised his client to reject a favorable plea offer based on a misunderstanding of the applicable law). Elsewhere, the Supreme Court has strongly implied that constitutionally inadequate advice may occur where defense counsel's "failure to investigate or discover potentially exculpatory evidence . . . 'prejudiced' the defendant by causing him to plead guilty rather than go to trial." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In this District, at least one court has found that it was unreasonable for counsel to give advice "on the wisdom of going to trial or accepting a plea offer" before "completing a more thorough investigation." Duran v. Janecka, No. CV 10-0884 MCA/WPL, 2014 WL 11456085, at *3 (D.N.M. Sept. 25, 2014), aff'd, 608 F. App'x 579, 580 (10th Cir. 2015) (citing Am. Bar Ass'n, ABA Standards for Criminal Justice: Pleas of Guilty, 14-3.2(b) (3d ed. 1999) ("Defense counsel should not recommend to a defendant...