# Oral argument — USAv.Hodge > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A5154 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** May 26, 2010 ## Text versus Irvin Hodge Getting a little feedback and Mr. Fine, it's good of you to lead the equitable climate of Harrisburg to come down here and suffer the slings and arrows of the Of the weather here in the Virgin Islands. I'm sure it's tough duty for you It is indeed your honor May please the court. My name is David fine. I represent the appellant Irvin Hodge jr Judge Smith may reserve three minutes, please for rebuttal. Yes, granted. Thank you your honor The question before this court today is ultimately a narrow one Irvin Hodge and Devin Hodge pleaded guilty to the same crime their plea agreements were identical and they were sentenced in the same proceeding a Consider both allocutions by the government before he passed sentence on either of the brothers the question principally in Irvin Hodge's case is whether there is any material distinction between his situation and Devin Hodge's Situation that would call for a different result in this appeal than was obtained in Devin Hodge's appeal the government's argument in this case may be reduced principally to one point and Statement that this court found particularly troublesome in the Devin Hodge case was spoken principally during the allocution regarding Devin Hodge and therefore the government claims there is some distinction when you Well, I would just just which statement exactly are you talking about? The principal statement is the the statement about whether the people in the community would have to be concerned Were Devin Hodge ever to walk the streets again? I think that was probably the most Odious of the statements that was made and the one that this court focused principally on Now when you said it was spoken principally during Devin Hodge's What what makes it something that could be looked at as spoken or having impact outside The allocution Your honor, I think there are a few basic principles to bear in mind in answering your question The first is that as this court held in the Devin Hodge appeal? The government must be held strictly to the terms of its plea agreement. That's point one Point two is that we know from the decisions of this court And I'm paraphrasing the court's language that one is not to be stubbornly literal in viewing what the government does in Sure, but but can you can you say why what was said in response and reaction to Mr. Devin Hodge's lawyers comments Should be taken as impacting The sentence that was given to mr. Urban Absolutely, your honor the allocutions were done jointly and in fact before the allocution in which the assistant u.s attorney used that particular language or for focusing on the The what does the community have to worry about if he ever should walk the streets again language before that ever happened? Urban Hodge's Allocution took place the district judge said I'm not going to sentence either of them until I've heard Allocutions with respect to both the district judge made this a situation in which he was clearly listening To everything that was said about both brothers Which makes sense in some respects because it was the same crime the same plea agreement Very similar backgrounds for both of the brothers, but should we charge the prosecutor? with the decision made by the district judge simply as a matter of either judicial economy or his own mental processes to hear both recitations at one time or hear both recitations before Imposing sentence at the same time. This is prosecutorial misconduct. We're talking about not judicial misconduct That's absolutely right your honor. And I think that there is one fact that makes the answer to your question a Is that the prosecutor knew before he made the particular statements about Devin Hodge He knew that the district judge was going to be listening to all of it because the allocution with respect to urban Hodge occurred first The district judge made his statement and then the allocution with respect to Devin Hodge was second So the prosecutor was on notice. So did so are you suggesting that? That having been said by the district judge. The prosecutor was under Some kind of an obligation Certainly an obligation not to engage in prosecutorial misconduct not to make inflammatory Comments not to make comments that might be suggestive as we determined in Devin's case that were really kind of Suggestive of a request for a life sentence that here as applies to Irvine. He should have Kind of bifurcated his remarks or he has should have been more specific as to one of the other I'm not quite sure what it is The prosecutor could or could not have done in light of the district courts remarks well I think the first point your honor is that there was no need to For the prosecutor to be thinking about bifurcation or anything of that sort because that would suggest that anything he said Was appropriate with respect to a specific defendant and here we know that there are statements that this court has already determined Violated the plea agreement, which was identical as between the brothers It is the fact that this is a package deal have anything to do Have any impact on what our analysis should be in this Irvine's case. I don't think so Your honor I think that that's a sort of a secondary issue that obviously was raised and and the court addressed in Devin Hodges case We did not raise it here because of the court's decision in Devin Hodges case But I do think coming back judge Smith to the point that you raised that the prosecutor has an obligation Not to make statements that he knows or should reasonably know to be violative of what the government promised And in this two things first off Did anybody make a specific I mean the plea agreement says no specific recommendation, is there a specific recommendation here Yes, yes, there is The specific recommendation was for a life sentence your honor because there were several statements We focused on just one but there were several statements explicitly or implicitly implicitly your honor and Implicit is good enough for purposes of determining whether the government has breached the plea agreement and that the most Definitive statement that was implicit about a life sentence was the does the community have to worry if he walks the streets again? Because as judge Smith wrote in the Devin Hodge case the clear implication of that statement is therefore make sure that he never walks The streets again, and that's a life sentence Similarly, there were other statements made he had the opportunity to be a good influence in the community all of this past tense discussion Mr. Davis did not get a second chance now fashion those why are those statements made? Statements that this court should view as Impacting Because the district judge wanted to hear about both of these defendants and they were both similarly situated They were co-conspirators or at least they pled guilty to being co-conspirators in the same crime. They came from the same family they had similar backgrounds and There was no reason why a statement about one would not very likely have been regarded as important about the other May I ask you what's the effect of you know now? Before Devin's allocution. Mr. Joseph specifically Objected to the court's procedure and said I hope you're good I hope you're gonna be considering both separately and the judge said well, I'm not necessarily gonna give the same sentence So I mean it was out there. What's the effect of this objection having judge consider it? Well, I don't the objection I think was essentially Mooted by the district judge's statement that he wasn't necessarily going to do anything He just wanted to hear it all but I think it makes even clearer to us That he did want to hear everything that was said in allocution about both brothers Before he passed sentence on the other and there's there's another way to look at this That's sort of telling there was a third young man who was involved in this offense and mr. Hall. Mr Hall was sentenced on the same day, but he was not sentenced jointly with the Hodge brothers. He was sentenced earlier There was an elocution and there was a sentencing and then came the Hodge brothers But there was an elocution the bridge between the elocution when the district judge said, please Go on. I want to hear everything about both and then there was the elocution about Devin Hodge They were made into something of a package deal By the way in which the district judge fashioned this proceeding and all of those things were known to the assistant u.s Attorney before he made any of the remarks that he made that this court found to be troublesome So You you said in your reply brief Paragraph excuse me page 5 footnote 2 that The proper consideration here is whether a legal conclusion ie that certain statements briefs a plea agreement is the law of the case The government's argument addresses not that point But the next point ie whether statements made during the government's allocutions specific to Devin Hodge may be considered to breach the plea agreement between the government Nervin Hodge So you I read that to me you're saying the government's Focus on whether there's bleed over from Devin to urban is really not the question in front of us The question we should be focused on is law Well Certainly not the intention of the footnote I'll grant perhaps it was in artfully said if it if it led you to a certain conclusion The government's argument in its opposition brief in response to our law of the case argument was to have a very lengthy Description of how it should not apply to whether there was as you refer to a judge Jordan bleed over That wasn't the purpose for which we raised it I'm not saying it's not the the central issue in the case. The law of the case issue here is whether certain Sentences certain statements made by the assistant US attorney did in fact breach the plea agreement because it's an identical plea agreement That's the only reason for which we raised the law of the case Your assertion is if one Are statements that Reasonably could be understood to have been Applied Then those statements have to be viewed as breaches because we've already held them That's exactly right your honor That's exactly right and the truth is of course that the law of the case doctrine is is for these purposes really just a tool to expedite the The court could simply say these statements are Clearly ones that that by implication demand a life sentence and therefore they are problematic and they breach the plea agreement so the law of the case is a Tool, but not a necessary tool to reverse in this case And at the end of the day we have a situation in which the government has to be held strictly To the terms of the bargain it struck with mr. Hodge Did not do so and mr. Hodge is entitled to the same relief his brother had which is a remand to determine whether there should be specific performance of the plea agreement Could you tell us specifically? What? statements Made by the prosecution during Devin's allocution are applicable to your client here If I may continue with with my yes, thank you your honor Yes, your honor Any of the statements that are listed in Devin Hodge the this court's opinion from now five years ago, I believe Would clearly qualify so Mentioned Devin specifically would be To the brother I think so your honor because the situations were so remarkably similar Let me let me offer just a couple one is does the community at large have to wonder once a sentence is completed and it's released Back into the community whether it's a genuine change or not That's a statement that I think covers both brothers if one reads it With a sort of open mind that the cases compel us to read these things with to avoid again using the language of this court Having a stubbornly literal reading of the statements and there are other statements This defendant had every opportunity to be a positive influence in his community Now in the Devin Hodge case when judge Smith wrote there what he told us was that The plain implication of that statement was that Devin should not be given another chance to be a positive influence in the community The precise state same statement was made with respect to Irvin The other statements that were made Involved the court having to fashion a sentence as fair and as just and it sends a clear message You may go out with the intention of committing a robbery But if someone dies while you're committing that robbery there are grave consequences to your actions Similar statement was made about Devin Hodge and the court noted in a footnote in that decision that That it was troubling because it was joined with a victim statement by Gwendolyn Rollins Who told the court and this was specifically during the allocution of Devin pardon me of Irvin Hodge She said whatever the decision is or whatever the decision come out to I feel to myself that with the fullness of the law That these guys should pay for what they have done. So a witness a victim statement sponsored by the government Pretty clearly was asking for the fullest possible sentence, which is in this circumstance, of course a life sentence Alright, we'll have you back on rebuttal. Thank you. Thank you. Mr. Jones Make please the court. Good morning on good morning. Mr. Jones, you you know this case pretty well You were yes, I'm there at the sentencing proceeding that we're all talking about this morning. That's correct If there's my name Nelson Jones, I was in the United States of America the appellee in this case the gist of the Argument in this case revolves whether these statements made during Devin Hodges allocution Apply to Irvin Hodge and therefore as the previous panel of this court ruled Constituted a breach of the plea agreement It's the government position that the allocution of Devin Hodge was separate and apart from that of Irvin Hodge and the statements made with respect to the to Devin Hodge should not Transfer over to Irvin Hodge jr. Now Taking that as as the given that that's the central question. I want to ask you something I Got you, I forgot it's on my desk. I'm sorry, but I'm sure I can recall I've read it several times Because I do want to ask you some things specifically here turn if you would to Page 66 68 a and this is where It's roughly the beginning or the beginning of your your statements in allocution as to Irvin Hodge Yes, sir. The first brother right? Yes, sir, and you talk about first. We're here now you You talk about before that the defendant had every opportunity to be a positive influence in the community That's a statement you make it towards the top of that And then you talk about at the bottom of the page, but we're here now Larry Davis is dead And this Rollins is traumatized for the rest of her life been turning over to page 69 You begin a series of statements about both You say these two young men Devin and Irvin Hodge who will we ever be able to understand? What was in the mind of these two young men going down a little bit? They decided to be lawless they decided to do these evil acts and now they have to face the consequences of these actions going down Further you make the comment about the grave consequences for going out Committing an act like this and then go on to say It wasn't the first time they had robbed the Emerald Lady jewelry store So not only did they victimize them the first time by robbing them they return their second time this was a bit more tragic Someone dies their grave consequence so as I'm reading that It appears to me that you as the prosecutor are treating these two as two peas in a pod So my question to you is if you're treating them as a they When you're talking about Irvin Hodge why should We view it as oh These are completely separate or in your terms from the red brief. You're one out. You should have nothing With respect to the comments as indicated by your honor the Only statement out of all of those that you made that was objectionable in Devin Hodge was the last one concerning the The fact that their grave consequences the other comments whether or not were not found to be Objective I'm not I'm sorry. I'm not making myself clear. Mr. Jones. My question isn't really so much that Any comment in there is objectionable so much as it appears from that You're You're repeatedly talking about them as together. They did these evil acts. They did this they did that they did the other thing they they they they they that you are urging the court and treating them and pressing the court to see them as Functionally and effectively the same that what goes for one goes for the other. So what my question to you is if in light of those comments Why How can the government take the position? That as you put it in your reply in your answering brief that one allocution had nothing to do with the other basically on because as Tony finally indicated his Presentation to you. There was the first sentence involving Jason Hull We had a set yet an allocution by the defendant actually by the government and a sentence Urban Hodges case was called Urban Hodges had an allocution allocution by the government There was no sentence. How would the allocutions had been completed when the court decided that then they want to hear? both allocutions So Urban Hodges allocution been completed as far as his making a statement and government making this allocution then there was the allocution of Devin Hodges attorney Respected his client and a second allocution by the government respected Devin Hodge So there was separate allocutions each step of the way the only difference between Mr. Hull's sentence and the Hodge brothers sentence was that There was no actual sentence pronounced after the conclusion of the allocution for urban Hodge Well, isn't the difference from the defense perspective at least the when Jason Hull was being Was before the court and the allocution was going on there that there was there was none of this they they they You treated Jason Hull separately and the court treated Jason Hull separately But when it came to the Hodge brothers you treated them the same and the court treated them the same That's the point. I take the defense to be making and that's the point I'm trying to get you answer. How can you be treating them the same speaking of them in the collective and Then come here and say as well. Yeah, and then come here and say Treat those two brothers completely separately when you're looking at the allocutions, I believe the the only way I can answer that question is by indicating that Jason Hull's charge was different than the charge facing the Hodge brothers and the government In essence, we're saying okay. These two defendants are charged with first-degree murder. They've been sentenced for first-degree murder Hull was being sentenced for a Hobbs act robbery so therefore there were two separate types of violations, but the Violations that the Hodge brothers were facing were both one in the same which is first-degree murder and said therefore When the the government's referring to they refer to the fact that they were charged with the same Offense the same type of offense versus that which was charged against Jason Hull which was severed in part a different offense altogether a Different violation altogether. Excuse me when you begin when you begin speaking about Devin over on page 84 a Appendix that's 59 of the transcript toward the beginning of your allocution in the Devin portion of the sentencing You say once again, we're faced with an argument that well, he's turned his life around When you use the words once again, is that a reference back to your comments about I'm cross-examining you on a historical fact, but reading the transcript That it occurred to me that that could fairly be read as a reference back to statements made with respect to urban once again, we're talk we're faced with the same kind of Argument that I already addressed It's one way to read that Is is that a fair reading of the transcript? No, your honor the reference to once again refers to defendants in general where they come before the court Claiming as I indicated in the other part of the the transcript claiming that they've either found religion or they're a different person That is Proforma for some defendants When facing it the sentencing judge and so that was it for defense in general not relating back to to Irvin Hodge You also spoke in respect Devin Allocution about and I want to quote this. This is from page 61 of transcript 86 Hey, I didn't hit the page. I see one of the transcript 86 a of the joint appendix The point is your honor that someone that evil to have complete transformation for your period it begs the question Is it genuine or isn't it and does the community at large have to wonder whether once his sense of completing is released back to community Whether it's a genuine change or not. That's a You you're using the same Kind of language there the evil acts that they committed as he spoke of with When you're speaking in the urban This is I'm just I'm just wondering is it is it a fair reading of the transcript to see this as link? You're talking about that earlier. This is in the context of the allocution about mr. Devin Hodge, that's correct, right and the the Devin Hodges attorney had indicated Concerning the evilness of the acts of his client and that was in response to that His specific claim that his client had committed these evil acts, but he had changed his life around Why he was in prison by having obtained his GED and obtained obtained certifications while incarcerated and therefore that particular Statement was in response to that statement made by Devin Hodges counsel at sentencing We know you're your adversary pointed out their statements such as when you talked about they had Irvine and every opportunity to be a positive influence apparently didn't You know, you're strictly held to that plea agreement or a case in Queensborough in other cases He's saying that implicitly is requesting a life sentence. How do you respond to that? Not at all? the the history as Recited in the pre-sentence report with respect to to Irvin Hodge clearly showed a defendant Who had been raised in a good family a sound family had been gone to church regularly was a Boy Scout had annual summer vacations So in that context that is what I meant about him having had the opportunity to be a positive influence in community he had With respect to a Functional family it was a mother a father. They looked out for their sons. They Mr. Hodge had opportunity to attend college That was the context within which that statement was made Now with respect to the Statements attributed directly to Irvin Hodge There were three statements One they decided to do these evil acts and not have the phase of council and consist consequence of those actions That was the first one the other one at some point this defendant referring to Irvin Hodge Has to realize that there are grave consequences for your actions and the third statement was so I asked the court to fashion a sentence as fair and as just and That sends a clear message You may go out with the intention of the committing a robbery But if someone dies while you're committing that robbery that grave consequences to your action Did not refer to Devin Hodge it first strictly to Irvin Hodge And those are the statements the only statements made that refer to Irvin Hodge Directly the other statements were made with respect to Devin Hodge the statement concerning the evilness of the act Referred to Devin Hodge in response to what his attorney had indicated to the sentencing judge Am I am I right that that Irvin Hodge was the actual shooter in the in the murder That's great job. Okay, and And he was the older of the two brothers. That's correct, and he was the one who had actually Assaulted mr. Davis on a previous occasion. Is that right? That's correct And and all those things were known to the district court judge. They were in the pre-sentence report. Yes, sir Okay With the district court understanding that as between the two brothers Irvin might reasonably be viewed as the more culpable and The one with a greater liability or propensity to The violence means that just should that make any difference in how we view what was said in this kind of altogether allocution With respect to Devin or is that irrelevant I believe is irrelevant because of the fact that there's also additional information pre-sentence report that spoke about other violent acts by Devin Hodge But So therefore I believe based on what did the information of the Trial judge had the sentencing judge had at that time I Don't think it would have been relevant If I have no further questions that completes my presentation, thank you, mr. Jones, mr. Fine rebuttal You Your honors I'd like just to take a brief moment to address some of the issues that came up during mr. Jones's statement to the court First the points that judge Jordan raised regarding the language that the Assistant US attorney used at the beginning of the colloquy pardon me the allocution Specific to Devin Hodge. I think that that is material and I think that it does make a good point The government and the district judge were treating these two defendants as though to use judge Jordans term peas in a pod And that is exactly how that proceeding Evolved that means that the statements that were made regarding either of the brothers could reasonably have been interpreted to be applied to both of the brothers and That forms a basis for finding a breach of the plea agreement in this case The question arose about the statement that Mr. Hodge had an opportunity to be a positive influence in his community And I think that was a question from judge Chigaris And I think that that does make a very important point for two reasons One is of course that it was said with respect to both brothers utterly independently So it was said in each of the specific allocutions and the second point is that this court has already held and this may be is where the law of the case pulls into the Into the discussion this court has already held what that statement meant in the context of this plea agreement In the Devon Hodge case the court wrote the plain implication was that Devon should not be given Another chance to be a positive influence in the community. So we know now as a matter of The jurisprudence, that's what that statement means There was another question from judge Jordan regarding the potentially different roles the brothers played in the course of The robbery and murder that led to these plea agreements and I will join with mr Jones in suggesting that the various background points that judge Jordan pointed out really are in fact irrelevant to The outcome of this case because the issue here isn't whether One sentence was was reasonable in light of another sentence because of different levels of culpability or something of that nature the brothers had Identical plea agreements and they said that there could be no specific Sentencing recommendation and here there clearly were specific Sentencing recommendations implied by the government. So it doesn't matter whether they were differently situated in some other form Yes, okay. Exactly. Your honor. That's that's the one It does not matter whether they had different levels of responsibility in the crime That's that's not where things have to match up They have to match up with the plea agreement and then with the statements that were made during the allocutions at the sentencing Finally your honors This case can ultimately be decided I think in a very narrow way and may finish in just 15 seconds, right? Yes. Thank you in a very narrow way and that is this it was an unusual situation The district judge heard both allocutions before sentencing either one of the brothers and The government knew that and the government proceeded to make certain statements the holding in this case Could simply be that where there is a sentencing proceeding like that where the defendants have identical plea agreements That where the district judge says he wants to hear both allocutions before passing sentence that the government cannot say with respect to one What he cannot say with respect to the other because there is to use judge Jordan's language that potential for bleed-over That's an ultimately narrow holding but it's one that can resolve this case for these purposes The government breached the agreement in this case. Mr. Hodge is entitled either either to specific performance or to withdraw his plea agreement and that's something that as I understand it would be decided by the district court if this court were to agree and vacate and remand the case Thank you. Thank you counsel We'll take the case under advisement --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A5154. Public record. Not legal advice.