Opposition Brief — United States v. Ruiz
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IN THE SUPREME COURT OF THE UNITED STATES
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No. 01-595
1Z/iu/Z0Ui 16:16 FAX 6196872666 _ FEDERA!. DEFENDERS OF SAN Booz
Cc, . .
UNITED STATES OF AMERICA, : wi US,
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PETITIONER, aT pee
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CLIRK
ANGELA RUIZ, (ie. ,
RESPONDENT.
MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS
Pursuant to Title 18 United States Code §3006A(d) (6) and
Rule 39 of this Court, Respondent, Angela Ruiz, asks leave to file
the attached Brief in Opposition to the United States’ Petition for
Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit without prepayment of fees or costs and to proceed in
forma pauperis.
Petitioner was represented by counsel appointed pursuant
to Title 18 United States Code §3006A in the district court and on
appeal to the Ninth Circuit Court of Appeals.
Res ly, submitted,
Dated: 7 December 2001 STEVEN F. HUBACHEK
BENJAMIN L. COLEMAN
Federal Defenders of San Diego, Ine.
225 Broadway, Suite 900
San Diego, California 92101-5008
Telephone: (619) 234-8467
Attorneys for Respondent
a oP
__5271072001 16:16 FAX 6196872966 FEDERAL DEFENDERS OF SAN @oos of 12/10/2001 16:16 FAA 6196872666 FEDERAL DEFENDERS OF SAX ~
= : - @oos
IN THE SUPREME COURT OF THE UNITED STATES | TABLE OF CONTENTS
page
UNITED STATES OF AMERICA, Table of Authorities ...--+-++-++*+****e* eee ee 8 8 8 iv
PETITIONER, QUESTIONS PRESENTED FOR REVIEW .- +++ +s es ss ss hots ix
- vs - i 1
ANGELA RUIZ, 2 i al 1
RESPONDENT . CONSTITUTIONAL PROVISION INVOLVED... +--+ +++ 5 e+ ss ee 2
ee rr ee ee ee
A. This Case is Not the Appropriate Vehicle to Address the
BRIEF FOR =o IN OPPOSITION Issues Raised in the Petition Because the Government
TO UNITED STATES’ PETITION FOR Failed To Present Its Main Position Below ...-.+++-+-s: 8
WRIT OF CERTIORARI
B. A Guilty Plea Entered In the Absence of the Disclosure of
Brady Material Is Not Knowing and Voluntary .-.-+--+-+-+- 3&8
a. The Lower Courts Agree That Brady Applies Pre-Plea. .11
2. Hill v. Lockhart Supports The Conclusion That A
Plea Entered Without Disclosure of Material
Exculpatory Evidence Is Involuntary ......-.+. 125
>. The Principles Underlying Brady Support Its
Application Pre-Plea tek @ 2 ¢ #2 &- Sete ce 22
STEVEN F. HUBACHEK a. Pre-plea Brady disclosure advances the
BENJAMIN L. COLEMAN interest in accuracy of guilty pleas and the
Federal Defenders of San Diego, Inc. goals of fairness and legitimacy in the
225 Broadway, Suite 900 criminal justice system .....+++ +++ + 22
San Diego, California 92101
Telephone (619) 234-8467 b. The Court should not create a pre-plea
Attorneys for Petitioner exception to Brady based upon the government’s
policy arguments ....+++ +++ * *+ * # « » 27
S. The Right To Pre-Plea Brady Disclosure Cannot Be Waived
Because It Is A Necessary Incident to a Knowing and
ii
— 1241042001 19:16 FAX 6196872606 FEDERAL DEFENDERS OF SAN @oos __ 12/20/2001 16:17 FAX 6196872606 — FEDERAL DEFENDERS OF SAN @ 006
Voluntary Plea and Because Such Disclosure Is Fundamental TABLE OF AUTHORITIES
to the Reliability of the Fact-Finding Process ..... 35
| ee ee ee ee ee ee ek a ee oe fe 39 FED CASES
Proof of Service
398 U.S. 144 (1969) a en a ee ee a ee ee 9
920 F. Supp. 688 (E.D.Va. 1996) ta as © 6 © 6-4°6°¢6 4 13
373 U.S. 83 (1963) i De a eg eg gf eg 6 oe os Eee
Brady v. United States,
397 U.S. 742 (1970 ire ee a ee oe ae a a ee a
324 U.S. 697 (1945) its ws & 6 + 8 @ @€ @e« @@# & eS 37
Campbell Vv. Marshall,
7 169 F.2d 314 (6th Cir. 1985) .....+ ++ +++ + «+ « + 22
25 .
450 U.S. 346 (1981) Ti. ~~ »« « « « « s @ 6 8s 68 @ 4s
Giglio v. United States,
405 U.S. 150 (1972) «a nine 2s @°o. @ e ae
Henderson v. Morgan,
426 U.S. 637 (1976) lawn a = 2 &@ & @ 6:2 28 6¢ e &'* 26
Hill _v. Lockhart,
474 U.S. 52 (1985) ncn @.@ 6 6 4 ¢ 11,16,17,20,28,29,30
503 U.S. 540 (1992) a a ei ay oe ow es en a oo”? ok oe 20
Jencks v. United States,
353 U.S. 657 (1957) ee ee a ae a ae an, ae a ee
Kyles v. Whitley,
514 U.S. 419 (1995) oe oe he oo ol a a ae i 10,19,26,34,37
iii iv
_—12410/2001 16:17 FAX 6196872606 FEDERAL DEFENDERS OF SAN @oo7 | __ 42/30/2001 16:17 PAX 6196872666 FEDERAL DEFENDERS OF SAN @oos
201 F.3d 353 (Sth Cir.), 874 F.2d 838 (lst Cir. 1989) » as ‘oe ae
cert. denied, 531 U.S. 830 (2000) 14
’ 267 F.3d 132 (2d Cir. 2001) 8,18,22,31
394 U.S. 459 (1968) 16,28,35
‘ 466 U.S. 648 (1984) 21
397 U.S. 759 (1970) 16
xY. ' 686 F.2d 1082 (Sth Cir. 1982) 27
848 F.2d 1312 (2d Cir. 1988) 6,12,19,21,22
2 ‘ 169 F.3d 1210 (9th Cir. 1999) 25
400 U.S. 25 (1970) 30
Peretz v. United States, 513 U.S. 196 (1995) 8,32,33,36,37,38
501 U.S. 923 (1991) 37
— ao ' 829 F. Supp. 620 (S.D.N.¥. 1993),
353 U.S. 53 (1957) 27 aff'd, 17 F.3d 14 (2d Cir. 1994) 13
Sanchez v. United States, United States v. Persico
SO F.3d 1448 (9th Cir. 1995) 4,12,15,18,32 164 F.3d 796 (2d Cir. 1999) 03
Santobello v. New York, United States v. Ros
404 U.S. 257 (1971 29 245 F.3d 577 (6th Cir. 2001) 12,13
*ric Vv W ; .
466 U.S. 668 (1984)
18,19,21,29
United States v. Ruiz ’
241 F.3d 1157 (9th Cir. 2001)
2,4,5,17,18,21,22,26,27
Strickler v. Greene, United States v. Valenzuela-Bernal
527 U.S. 263 (1999) 10,11,29,34 458 U.S. 858 (1982) . ; 19
Tate v. Wood, United States v. Walters
$63 F.2d 20 (2d Cir. 1992) 12 269 F.3d 1207 (10th Cir. 2001) se a et
cllerr v. ‘ Waley v. Johnston
411 U.S. 258 (1973) 16 316 U.S. 101 (1942) 35
United States v. Aqgurs, Wheat v. United States,
427 U.S. 97 (1976) 19 486 U.S. 153 (1988 27
tn: v i White v. United States
473 U.S. 667 (1985) 5,10,14,18,38 858 F.2d 416 (8th Cir. 1988) 13
vi
12/10/2001 16°17 PAX 6196872666 FEDERAL DEFENDERS OF SAN
323 U.S. 471 (1945)
In re Winship.
397 U.S. 358 (1970)
STATE CASES
Gibson vy. State,
514 S.E.2d 320, 334 S.C. 515 (1999)
Scroggins v. State,
859 S.W.2d 704 (Mo. App. 1993)
State v. Gardner,
885 P.2d 1144, 126 Idaho 428 (1994)
‘ State v. Parsons,
775 A.2d 576, 341 N.J. Super. 448 (2001)
State v. Sturgeon,
605 N.W.2d 589, 231 Wis. 2d 487 (1999)
Villareal v. State,
860 S.W.2d 529 (Ct. App. Tex. 1993)
FEDERAL STATUTES
6 U.S.C. § 1324
18 U.S.C. § 2113 (a)
21 U.S.c. § 841
2. U.S.C. § 952
21 U.S.C. § 960
28 U.S.C. § 1254(1)
FEDERAL RULES
Fed. R. Crim. P. 11 (b)
Fed. R. Crim. P. 16 » 6 bees
Fed. R. Crim. P. 32(e)
vii
21
23
13
13
13
13
13
13
12/10/2001 16:17 PAX 6196872666
MISCELLANEOUS
Daniel P. Blank,
and Alienation, 68 Fordham L.
- - 6 2 ee eS 6 8 6S Ss ae eee
Rev. 2011 (2000)
Erica G. Franklin, Comment,
Waiving Prosecutorial Disclosure in the Guilty Plea
2 7 [SGGGe ccececeeeeeeneneews
Kevin C. McMunigal, a
Hastings L.J. 957 (1989) - & 6 @ 6 688 ee 3 14,23,24,25
Barry Scheck et al, |
Actual Innocence (2000) .... +++ ++ ++2 ee © « BF
viii
——. ——_———
12/10/2001 16:17 PAX 6196872666 FEDERAL DEFENDERS OF SAN @o11 12/10/2001 16:18 PAX 6196872666 FEDERAL WEFENDERS OF San @oiz2
QUESTIONS PRESENTED FOR REVIEW IN THE SUPREME COURT OF THE UNITED STATES
1. Whether before pleading guilty, a criminal defendant has a
constitutional right to obtain material exculpatory information, No. 01-595
including impeachment material, from the government.
UNITED STATES OF AMERICA,
2. If so, whether that right may be waived through a plea
agreement. Petitioner,
- Vv =
ANGELA RUIZ,
Respondent.
BRIEF FOR RESPONDENT IN OPPOSITION TO
UNITED STATES’ PETITION FOR WRIT OF CERTIORARI
Respondent Angela Ruiz respectfully requests that the Court
deny the Solicitor General’s petition for a writ of certiorari
filed on behalf of the United States.
OPINION BELOW
The opinion of the United States Court of Appeals for the
Ninth Circuit is reported at United States v. Ruiz, 241 F.3d 1157
(9th Cir. 2001).
> JURISDICTION
On March 5, 2001, the Ninth Circuit entered its judgment. The
government ’s petition for rehearing and suggestion for rehearing en
banc was denied on June 11, 2001. United States’ Petition for a
ix
12/10/2001 16:18 FAX 6196872666 FEDERAL DEFENDERS OF SAN - @ois
Writ of Certioyari (Pet.), App. at 40a. The government has invoked
the Court’s jurisdiction under 28 U.S.C. § 1254(1).
CONSTITUTIONAL PROVISION INVOLVED
Fifth Amendment to the United States Constitution:
\
No person shall ... be deprived of life, liberty, or property
without due process of law...
STATEMENT OF THE CASE
On August 13, 1999, Respondent attempted to enter the United
States at the Tecate Port of Entry as the driver of a 1970 Mercury
Cougar. [ER 9]}.' Hidden in the vehicle were 66.3 pounds of
marijuana. [ER 9). Respondent was arrested and made her first
court appearance on August 16, 1999. [CR 3; ER 68].
On August 23, 1999, Respondent was offered a plea agreement.
[ER 6-7). The government’s offer consisted of a two page letter
providing that Respondent would (1) waive her right to indictment
and plead guilty to an information within thirty days of the
initial appearance before a magistrate judge; (2) not file or argue
any motions; (3) agree to waive her right to appeal the sentencing
decision of the district court or otherwise challenge her judgment
anc sentence; and (4) waive her right to receive certain
* “ER” refers to the Excerpt of Record filed in the Court
of Appeals. “CR” refers to the district court clerk's docket
entries.
12/10/2001 16:18 FAA 6190872666 FEDERAL DEFENDERS OF SAN @oi4
Brady’/Giglio’ information. [ER 6-7). Initially, Respondent did not
explicitly reject the government’s offer which included a promise
on the part of the government to recommend a downward departure
from the Sentencing Guideline for participation in the government's
"fast-track" disposition program.
The case, however, was subsequently indicted on September 8,
1999. [CR 6; ER 4-5). Respondent was charged with one count of
importing marijuana, in violation of 21 U.S.C. §§ 952 and 960, and
one count of possession of marijuana with intent to distribute, in
violation of 21 U.S.C. § 841. [CR 6; ER 4-5]. Respondent declined
to accept the government’s “fast-track” offer on the basis of her
objection to the requisite waiver of her Brady/Giglio rights. [ER
12). On October 12, 1999, Respondent entered a guilty plea to a
charge of importing marijuana, in violation of 21 U.S.C. §§ 952 and
960. [CR 15; ER 61-64). There was no plea agreement.
At sentencing, the prosecution opposed a departure for “fast
track” stating that the government is “giving up all the benefits
that would normally come with the fast track departure.” [ER 55;
RT 4). The defense argued that Respondent was entitled to a “fast
track departure”. [ER 55-56; RT 3-4). Defense counsel stated,
Respondent “did not file any motion [sic]. She did everything that
? Brady v. Maryland, 373 U.S. 83 (1963).
> Giglio v. United States, 405 U.S. 150 (1972).
3
12/10/2001 16:18 FAX 6196872666 FEDERAL DEFENDERS OF SAN @015
someone in her position would normally do but for the disagreement
over the language in the standard plea agreement.” [ER 54-55; RT
2-3). The district court stated that a “plea bargain [is] a matter
of contract that’s an offer and acceptance.” [ER 56-58; RT 4-6).
The district court did not make any factual findings and did not
grant any departures. [ER 58; RT 6-7]. Respondent was sentenced
to a term of 18 months in custody.
Respondent appealed, arguing that the district court had
discretion to depart, discretion that it did not acknowledge it
had, because the government’s insistence on aé_e so-called
“Brady/Giglio” waiver constituted unconstitutional conduct on the
part of the government. The government argued that while it
recognized its continuing responsibility to produce exculpatory
evidence of the defendant’s actual innocence of the charged
offenses, it could constitutionally seek a waiver of a defendant's
right to receive material exculpatory evidence that went to
impeachment of government witnesses or to any affirmative defense.
Brief for Appellee United States at 24.
The Ninth Circuit reversed and remanded for a resentencing
hearing. Following its previous decision in Sanchez v. United
States, 50 F.3d 1448 (Sth Cir. 1995), the Ninth Circuit reaffirmed
that a criminal defendant has a due process right to receive
material exculpatory evidence in the possession of the government
prior to entering a guilty plea. RBuiz, 241 F.3d at 1164. Relying
12/10/2001 16:18 PAX 6196872666 FEDERAL DEFENDERS OF SAN @oieé
on Sanchez’s conclusion that Brady disclosure is essential to a
“knowing” and “voluntary” guilty plea, the Ninth Circuit concluded
that “(t]he disclosure of Brady evidence is just as important in
ensuring the voluntary and intelligent nature of a plea bargain as
it is in ensuring the voluntary and intelligent nature of a plea.”
Id. The Ninth Circuit further held that the right to this
necessary predicate to a voluntary and intelligent plea of guilty
could not be waived. Jd. at 1164-65.
Judge Tallman dissented, arguing that various policy
considerations militated against the constitutional requirement
recognized by Sanchez and reaffirmed by the majority opinion. Id,
at 1176-77 (Tallman, J., dissenting).
ARGUMENT
In holding that a defendant is entitled to receive
Brady/Giolio* information -- a limited subset of exculpatory
evidence that meets the stringent test of materiality -- prior to
entering a guilty plea, the Ninth Circuit joined the Second, Sixth
and Tenth Circuits, all of which hold that Brady’ applies in the
* Because material exculpatory evidence and material
impeachment evidence are constitutionally indistinguishable, gee
United States v. Bagley, 473 U.S. 667, 676 (1985), both types of
evidence will be referred to collectively as Brady information.
* Respondent will refer to the Court’s decision in Brady v.
Maryland, 373 U.S. 83 (1963) as “Brady.” When:discussing the
Court’s decision in Brady v. United States, 397 U.S. 742 (1970),
respondent will use the full title, “Brady v. United States.”
12/10/2001 16:18 FAX 6196872666 FEDERAL DEFENDERS OF SAN @017
context of a guilty plea. Far from effecting the “radical change
in guilty plea practice in the federal system” posited by the
government in its petition, Pet, at 7, the Ninth Circuit merely
followed the lead of the Second Circuit’s approach adopted in
Miller v. Angliker, 848 F.2d 1312 (2d Cir. 1988), a decision
rendered over a decade ago.
By asking the Court to hold that Brady does not apply in the
guilty plea context, the government ignores the facts that it took
a contrary position below and that the wealth of lower court
opinions refutes its position. Indeed, in holding that Brady
applies in the context of a guilty plea, the Second, Sixth, Ninth
and Tenth Circuits have carefully applied the Court’s decisions
analyzing both Brady and the role played by counsel in advising
dGefencants as to which plea to enter. The lower courts have
concluded that just as a guilty plea may be invalidated as
involuntary and unknowing by defense counsel’s failure to discover
material exculpatory evidence and advise his client accordingly,
the failure of the government to disclose such material evidence
s-milarly renders a plea of guilty involuntary and unknowing by
effectively precluding the effective assistance of counsel. Any
other result would be anomalous: defense counsel’s failure to
d:scover a particular material fact would invalidate the plea while
tne government’s concealment of the same fact would not.
12/10/2001 16:19 FAA 6196872666 FEDERAL DEFENDERS OF SAN @ois
The decisions of the Second, Sixth, Ninth and Tenth Circuits
do not conflict with the Court’s Brady jurisprudence. None of the
Court's decisions applying Brady, all of which have involved
convictions by way of trial, have discussed Brady’s potential
application to convictions secured by way of guilty plea. Thus,
the government’s suggestion that the rule articulated by these
Circuits conflicts with the cCourt’s Brady jurisprudence is
incorrect. In fact, consistent with Brady and the role it plays in
the context of trial and sentencing, pre-plea Brady disclosure will
have the effects of (1) ensuring the reliability of guilty pleas by
discouraging the innocent from pleading guilty and (2) preserving
the reputation of judicial proceedings by preventing prosecutorial
authorities from inducing guilty pleas by withholding exculpatory
evidence. On the other hand, the government’s current position
that it need not disclose any Brady material at all prior to a
guilty plea, a position it did not properly present below,
unjustifiably increases the risk that innocent but risk-averse
defendants will accept favorable plea bargains and needlessly
demeans the values underlying the Brady decision itself.
Nor are the government’s policy concerns, such as its fear
that application of Brady to guilty pleas will necessarily lead to
“open file" discovery of non-material and even inculpatory evidence
in criminal cases, well taken. Pet. at 7. The Second Circuit has
easily rejected a claim that its Brady analysis requires immediate
7
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production of all impeaching material, material or otherwise; its
rule applies only to material exculpatory evidence. See in re
United States v. Coppa, 267 F.3d 132 (2d Cir. 2001) (reversing
district court’s broad discovery order but also reaffirming that
Brady material must be disclosed prior to any guilty plea).
Finally, the Ninth Circuit correctly concluded that the right
to receive pre-guilty plea Brady material cannot be waived.
Because a ausity plea must be knowing and voluntary, and a guilty
plea entered without Brady disclosure is not knowing and voluntary,
Brady disclosure cannot be waived. Morever, the Court has made
clear that no "waiver" rationale may be employed where the
procedural principles at issue are "so fundamental to. the
reliability of the fact-finding process that they may never be
waived without irreparably discrediting the federal courts."
Uost , 513 U.S. 196, 204 (1995) (internal
guotations, brackets, citations omitted). As a bedrock due process
r-ght that is specifically directed “to the reliability of the
fact-finding process," id., the right to Brady material cannot be
wa:ved.
A. This Case is Not the Appropriate Vehicle to Address the Issues
In its petition for a writ of certiorari, the government
principally argues that it has no obligation at all to produce
Brady material prior to a guilty plea, regardless of whether the
FEDERAL DEFENDERS OF SAN 019
Re
12/10/2001 16:19 FAA 6196872666
information relates to factual innocence or impeachment. Pet. at
7-9. This argument was presented to neither the district court nor
the original three judge panel of the Ninth Circuit.
Rather, the government set forth in its proposed plea
agreement that “/t)he Government understands it has a continuing
duty to provide ... information establishing the factual innocence
of the defendant.” Appendix D to Government ’s Petition for a Writ
of Certiorarj at 45a-46a (emphasis added). Similarly, in its
Response Brief filed in the Ninth Circuit, the government argued
that “(t)he plea agreement acknowledges the Government’s duty to
disclose ‘exculpatory’ information indicating actual innocence of
the defendant as opposed to ‘exculpatory’ information which is
based in impeachment information.” Brief for Appellee United
States at 24. It was not until the Petition for Rehearing and
Suggestion for Rehearing En Banc filed in the Ninth Circuit and the
instant petition for a writ of certiorari that the government took
its current position that it need disclose no Brady material at all
prior to a defendant’s guilty plea.
The Court does not ordinarily consider issues not properly
raised in the lower courts. Adickes v. S. H. Kress & Co., 398
U.S. 144, 147 n.2 (1969) (citations omitted); accord Delta Airlines
v. August, 450 U.S. 346, 362 (1981). Pursuant to Rule 15.2 of this
Court, respondent objects to the consideration of this question
based on the position asserted by the government in the district
9
FEDERAL DEFENDERS OF SAN @ozo
12/10/2001 16:18 FAL 6196872666
court and in the Ninth Circuit. As a result, the petition should
be denied because the government’s main position was not properly
presented to the lower courts.
B. A Guilty Plea Entered In the Absence of the Disclosure of
Brady Material Is Not Knowing and Voluntary
Brady “hold[s) that the suppression by the prosecution of
evidence favorable to an accused ... violates due process where the
evidence is material either to guilt or to punishment, irrespective
of the good faith or bad faith of the prosecution." Brady, 373
U.S. at 87 (emphasis added). Thus, only material favorable
evidence is subject to disclosure. Kyles v. Whitley, 514 U.S. 419,
433-34 (1995); accord Bagley, 473 U.S. at 681-82 (Blackmun, J.,
sep. op.); jad. at 685 (White, J., concurring). Evidence is
material “‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the
proceeding would be different.’” Strickler v. Greene, 527 U.S.
263, 280 (1999) (quoting Bagley, 473 U.S. at 682).
Brady itself made clear that the right it described was not
limited to trial of issues of guilt: it applies to “evidence [that]
is material either to guilt or to punishment.” Brady, 373 U.S. at
87 (emphasis added). In Strickler, Justice Souter made clear the
breadth of Brady's application to the bifurcated sentencing
procecures in that case, procedures which gave both the jury and
the trial court a role. “([T)he (Brady) prejudice enquiry does not
10
FEDERAL DEFENDERS OF SAN @o21
ie ek ee ceil
12/10/2001 16:20 PAL 6196872666
stop at the conviction but goes to each phase of the sentencing
process: the jury’s consideration of aggravating, death-qualifying
facts, the jury’s discretionary recommendation of a death sentence
if it finds the requisite aggravating factors, and the judge’s
discretionary decision to follow the jury’s recommendation.’
Strickler, 527 U.S. at 297 (Souter, J., concurring in part and
dissenting in part) (citing jd. at 292-96 (maj. op.)). Thus,
although it is true that the Court has yet to address Brady’s
application to the guilty plea process, it has made it clear that
Brady’s application is not limited to trial on liability issues
alone.
1. The Lower Courts Agree That Brady Applies Pre-Plea
The lower courts have, however, addressed the issue and found
that Brady is applicable to the guilty plea process. See, e.q.,
United States v. Persico, 164 F.3d 796, 804 (2d Cir. 1999) (“The
Government ’s obligation to disclose Brady materials is pertinent to
the accused’s decision to plead guilty; the defendant is entitled
to make that decision with full awareness of favorable (exculpatory
and impeachment) evidence known to the Government”) (citation
omitted). While the rationales of the lower courts have varied
slightly, each of them analyzes the pre-guilty plea Brady
obligation in the context of the Court’s decisions in Brady vy.
United States, 397 U.S. 742, and Hill _v. Lockhart, 474 U.S. 52
(1985). For instance, the Ninth Circuit has concluded that a
11
FEDERAL DEFENDERS OF SAN @o22
AZ/10/ 2004 16:20 PAL 61960672666 FEDERAL DEFENDERS OF SAN @o23
guilty plea “cannot be deemed ‘intelligent and voluntary’ if
‘entered without knowledge of material information withheld by the
prosecution.'" Sanchez v. United States, 50 F.3d 1448, 1453 (9th
Cir. 1995) (quoting Miller, 848 F.2d at 1320). The Second Circuit
has offered a slightly different rationale, observing that “even a
Guilty plea that was ‘knowing’ and ‘intelligent’ may be vulnerable
to challenge if it was entered without knowledge of material
evidence withheld by the prosecution.” Miller, 848 F.2d at 1320.
Whichever rationale is employed, a substantial body of caselaw
supports the notion that Brady applies to guilty pleas. See United
Stat v. W , 269 F.3d 1207, 1214 (10th Cir. 2001) ("under
certain limited circumstances, ‘the prosecution's violation of
Bracy can render a defendant's plea involuntary’") (quoting United
States v. Wright, 43 F.3d 491, 496 (10th Cir. 1994)); United States
vu. Ross, 245 F.3d 577, 583 n.1 (6th Cir. 2001) (recognizing that a
Gefendant may file a post-plea Brady claim) (citing Campbell] v.
Marsh , 769 F.2d 314 (6th Cir. 1985));* Tate v. Wood, 963 F.2d
* The government suggests that the Sixth Circuit’s decision
>n Campbell is somehow contrary to the Ninth Circuit’s approach.
See Pet. at 21. Actually, Campbell] observed that under this
Court’s decisions, the petitioner’s guilty plea “did not
insulate all misconduct of constitutional proportions from
>udicial scrutiny solely because the misconduct was followed by a
p-ea which otherwise passes constitutional muster as knowing and
smtel.igent.” Campbell, 769 F.2d at 321. Ultimately, the
Campbe)] court found it unnecessary to resolve the issue of
whether Brady applied pre-plea, primarily due to the defendant's
inability to demonstrate prejudice. Jd, at 323-24. Ross, which
the government does not address in its petition, unequivocally
States that the Sixth Circuit “has recognized that a state
12
12/10/2001 16:20 FAX 6196872666 FEDERAL DEFENDERS OF SAN @oza
20, 24-25 (2d Cir. 1992) (material exculpatory evidence must be
disclosed prior to the guilty plea); White v. United States, 858
F.2d 416, 423-24 (8th Cir. 1988) (finding that the exculpatory
evidence at issue “was significant and ... it should have been
disclosed” but habeas relief denied due to lack of materiality);
Banks v. United States, 920 F. Supp. 688, 691-92 (E.D.Va. 1996)
(following the cases cited herein); United States v. Millan-Colon,
629 F. Supp. 620, 635-36 (S.D.N.Y¥. 1993), aff'd, 17 F.3d 14 (2d
Cir. 1994) (following Miller and Tate);’ Daniel P. Blank, Plea
. 1m tad 5 id Al 1p ‘st 's Guide To]
Abandonment and Alienation, 68 Fordham L. Rev. 2011 (2000)
(hereinafter “Plea Bargain Waivers”); Erica G. Franklin, Comment,
defendani may raise, after a plea of guilty, a claim that
prosecutors withhold (sic) exculpatory information in violation
of Brady.” 245 F.3d at 584 n.1 (emphasis added). Thus, the
Sixth Circuit’s position is not contrary to that of the Ninth
Circuit.
” ‘The Ninth Circuit’s position also enjoys substantial
support in the state courts. §tate v. Parsons, 775 A.2d 576,
560-61, 341 N.J. Super. 448, 455-56 (2001) (agreeing with
Sanchez); State v,. Sturgeon, 605 N.W.2d 589, 231 Wis.2d 487
(1999) (allowing withdrawal of guilty plea due to Brady
violation); Gibson v. State, 514 S.E.2d 320, 324-25, 334 S.C.
S515, 523-24 (1999) (agreeing with Sanchez); State v. Gardner, 885
P.2d 1144, 126 Idaho 426 (1994) (allowing withdrawal of guilty
plea due to Brady violation); Villareal _v. State, 860 S.W.2d 529,
532-33 (Ct. App. Tex. 1993) (“withholding ... [material] evidence
(from a defendant pleading guilty] amount(s] to a denial of [the
defendant’s) federal and state constitutional rights to due
process and due course of law”) (citing Ex Parte Lewis, 587
S.W.2d 697, 699-701 (Tex. Crim. App. 1979)); Scroggins v. State,
859 S.W.2d 704 (Mo. App. 1993) (“The principles of Brady are
applicable to the entry of a plea of guilty”) (citation omitted).
13
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Waivi p (al Disc) in _t} Guilt P] Process: 2
Debate on the Merits of "Discovery" Waivers, 51 Stan. L. Rev. 567
(1999); Kevin C. McMunigal, Disclosure and Accuracy In the Guilty
Plea Process, 40 Hastings L.J. 957 (1989) (hereinafter “Disclosure
and Accuracy”) .°
Thus, although the government complains that the Ninth
Circuit’s decision is “unique,” Pet, at 20, when compared to other
lower court authority, it glosses over the fact that the
overwhelming weight of this authority refutes its position that
Brady does not apply in the guilty plea context. Moreover, the
government’s contention that no other court “has gone as far” as
the Ninth Circuit is a-red herring, Pet. at 22, as no other court
has had the opportunity to address the issue of Brady waivers in
plea agreements. In other words, no court has disagreed with the
Ninth Circuit’s invalidation of Brady waivers. If anything, the
fact that no other court has had the opportunity to address the
* The Fifth Circuit, in dicta, has suggested that the right
recognized in Brady was solely trial-based, gee Matthew v.
Johnson, 201 F.3d 353, 360 (Sth Cir.), cert. denied, 531 U.S 830
(2000), although even that court acknowledges that the contrary
view enjoys wide support. See id. at 358. The facts that Brady
expiicitly held that its rule applies to the issues of both
liability and punishment, 373 U.S. at 87, and that Bagley makes
clear that the Brady materiality test requires analysis of
whether the “result of the proceeding would be different,” 473
U.S. at 682 (emphasis added), rather than solely whether the
result of the trial would have been different, refute the Fifth
Circuit’s suggestion that the right recognized in Brady was
solely trial-based.
14
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specific issue weighs against granting the petition. Rather than
granting the petition at this time, the Court should have the
benefit of other lower court opinions on the specific issue and
should also wait to see if a conflict ever arises.
2. Hill vv. Lockhart Supports The Conclusion That A Plea
Entered Without Disclosure of Material Exculpatory
Evidence Is Involuntary
In addition to its reliance on the decisions of its sister
Circuits, the Ninth Circuit has explained that a guilty plea
entered without disclosure of material exculpatory evidence is
involuntary. See Sanchez, 50 F.3d at 1453; accord Walters, 269
F.3d at 1214 (“under certain limited circumstances, ‘the
prosecution's violation of Brady can render a defendant's plea
involuntary’"). The government argues that the Ninth Circuit’s
analysis of Brady v. United States overlooks the Court’s
observation that "'[a) defendant is not entitled to withdraw his
piea merely because he discovers long after the plea has been
accepted that his calculus misapprehended the quality of the
State's case or the likely penalties attached to alternative
courses of action.'" Pet. at 13 (quoting Brady v. United States,
397 U.S. at 756-57). As a result, the government argues, even
though "'a defendant's decision whether or not to plead guilty is
often heavily influenced by his appraisal of the prosecutor's
case,'" Sanchez, SO F.3d at 1453 (quoting Miller, 648 F.2d at
1320), and even though the decision-making process may be adversely
15
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affected by the lack of disclosure of Brady material, the validity
of the guilty plea is not implicated because the guilty piecas of
defendants who “misapprehend[] the quality of the State's case or
the likely penalties,” Brady v. United States, 397 U.S. at 756-57,
are nonetheless valid.
The government’s argument ignores Hil]_v. Lockhart, 474 U.S.
52, which strongly supports the Ninth Circuit’s view that a guilty
plea entered in the absence of Brady disclosure is “involuntary”
under Brady v. United States, as well as the Court’s other
decisions assessing the validity of convictions entered by way of
guilty pleas. The Court’s cones emphasize the role of the advice
of counsel in establishing that guilty pleas are voluntarily and
intelligently made. See Brady v. United States, 397 U.S. at 758;
accord Tollett v. Henderson, 411 U.S. 258, 267 (1973); McMann v.
Richar , 397 U.S. 759, 771 (1970). The Court made clear in
Hill, however, that “[w)here, as here, a defendant is represented
by counsel during the guilty plea process and enters his: plea upon
the advice of counsel, the voluntariness of the plea depends on
whether counsel’s advice ‘was within the range of competence
demanded of attorneys in criminal cases.’” 474 U.S. at 56 (quoting
McMann, 397 U.S. at 771). Thus, a plea of guilty based upon sub-
standard advice is involuntary and therefore invalid. Id.; accord
McCarthy v. United States, 394 U.S. 459, 466 (1968) (“if a
defendant‘s guilty plea is not equally voluntary and knowing, it
16
FEDERAL DEFENDERS OF SAN @027
Sane + J
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has been obtained in violation of due process and is therefore
void”) (footnote omitted).
In explicating the “prejudice” inquiry to be undertaken in a
case where a defendant asserts a claim that his plea is involuntary
due to ineffective assistance of counsel at the plea stage, Hill
employed defense counsel’s failure to uncover exculpatory evidence
as an illustration.
[W)here the alleged error of counsel is a failure to
investigate or discover potentially exculpatory evidence,
the determination whether the error prejudiced the
defendant by causing him to plead guilty rather than go
to trial will depend on the likelihood that discovery of
the evidence would have led counsel to change his
recommendation as to the plea. This assessment, in turn,
will depend in large part on a prediction whether the
evidence likely would have changed the outcome of
trial.
Hill, 474 U.S. at 59. Based on this analysis, the failure of
counsel to discover a particular exculpatory fact - a fact which
would likely cause counsel to advise rejection of a plea agreement
- renders the guilty plea violative of the Sixth Amendment and
therefore involuntary.
The Ninth Circuit’s pre-plea Brady analysis is based upon an
analogy to Hill’s Sixth Amendment analysis: "[e)vidence is
‘material' if ‘there is a reasonable probability that but for the
failure to disclose the Brady material, the defendant would have
refused to plead and would have gone to trial.'" United States v.
Ruiz, 241 F.3d 1157, 1166 (9th Cir. 2001) (quoting Sanchez, 50 F.3d
17
FEDERAL DEFENDERS OF SAN @o2s
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FEDERAL DEFENDERS OF SAN @o29
at 1454).° Sanchez relied on Miller in adopting this test. See
Sanchez, 50 F.3d at 1454 (citing Miller, 848 F.2d at 1322).
The Second Circuit's adoption of the foregoing test was
informed by the Court's derivation of the post-trial Brady test.
In Bagley, Justice Blackmun's separate opinion, joined by a
majority of the Court, adopted the Sixth Amendment materiality test
established in Strickland v. Washington, 466 U.S. 668, 694 (1984),
‘trial Brady claims. See Bagley, 473 U.S. at
€81-82 (Blackmun, J., sep. op.); accord id. at 685 (White, J.,
as applicable to pow’
’ The government insists that the Ninth Circuit’s
analysis logically compels the conclusion that the government
must turn over not only material exculpatory evidence, but also
inculpatory evidence in order for the defendant to maximize his
knowledge of the government’s case prior to pleading guilty and
thet this sort of broad disclosure is inconsistent with the
Court’s cases. Pet. at 14-15. Quite to the contrary, the Ninth
Circuit’s materiality test can never require the disclosure of
inculpatory evidence: no defendant could ever claim that “but for
the failure to disclose [even more inculpatory evidence], [he]
would have refused to plead and would have gone to trial.'"
Ruiz. 241 F.3d at 1166. Moreover, the government’s concerns,
which are based on the Ninth Circuit’s observation that “‘a
defendant’s decision whether or not to plead guilty is often
heavily anfluenced by his appraisal of the government’s case,”
ic. at 1164, ignore the limitations inherent in the Brady
doctrine: the Ninth Circuit’s analysis, like that of the Second
Circuit, requires no more than the disclosure of material
exculpatory evidence. See Coppa, 267 F.3d at 142. While guilty
pleas would no doubt be even more “knowing” and “voluntary” if
all evidence were disclosed, including inculpatory evidence, the
Ninth Circuit’s rule applies to Brady material alone. See Ruiz,
241 F.3d at 1164 (requiring production of “material information
withheld by the prosecution”). At any rate, much of the
government’s inculpatory evidence is already otherwise
discoverable, upon request, under Fed. R. Crim. P. 16. Thus, the
government’s objections are both unfounded and overstated.
\
18
12/10/2001 16:22 FAA 6196872666 FEDERAL DEFENDERS OF SAN @030
concurring). The Sixth Amendment basis for the Brady materiality
test was later reaffirmed in Kyles. See 514 U.S. at 433-34." In
view of the Court's emphasis on its Sixth Amendment jurisprudence
in evaluating Brady due process claims, the Second Circuit
concluded that Sixth Amendment concepts were equally applicable to
pre-plea Brady claims.
[W]e consider it useful in the present case to look to
the Supreme Court's discussion of materiality in Hill v.
Lockhart, . which involved a claim that the
defendant's decision to enter a plea of guilty was caused
by the ineffective assistance of his counsel.
Miller, 848 F.2d at 1322. Thus, Miller adapted Hill's Sixth
Amendment test to a due process Brady claim and concluded that the
Brady test should focus on whether the undisclosed evidence created
a “reasonable probability” that the defendant “would have insisted
on going to a full trial." Id.”
Rejection of the analysis contained in Hil] and adoption of
the government‘s approach would lead to anomalous results. For
*° Strickland itself derived its test from United States v.
Agurs, 427 U.S. 97, 104, 112-13 (1976) and United States v.
Valenzuela-Bernal, 458 U.S. 858, 872-74 (1982), both of which are
Fifth Amendment cases. See Strickland, 466 U.S. at 694.
Strickland’s derivation of its test only serves to emphasize the
inter-relatedness of the Fifth and Sixth Amendment questions
posed by the failure of the government to disclose, and of
defense counsel to discover, material exculpatory information.
3} A hypothetical illustrates this point. If defense
counsel's failure to learn that a key witness had suffered a
conviction of perjury would violate the Sixth Amendment under
Hill, then the government's failure to disclose that a
significant unidentified witness had suffered that same
conviction violates the Fifth Amendment.
19
12/10/2001 16:22 FAX 6196872666 FEDERAL DEFENDERS OF SAN @o031
example, in Jacobson v. United States, 503 U.S. 540 (1992), the
Court found that Jacobson had been entrapped as a matter of law
into receiving visual depictions of minors engaging in explicit
sexual acts due to the conduct of various government agencies in
soliciting orders from him. If Jacobson had entered a guilty plea
without knowing that those who solicited him were government
actors, thereby foregoing his entrapment defense, the question of
whether his plea was voluntary or not would depend - under the
government’s approach -- solely on whether or not his counsel
should have discovered the fact that the solicitors were government
agents. If counsel should have discovered that fact, Jacobson’s
plea would be involuntary because he pleaded guilty without knowing
a fact reasonably likely to cause him to go to trial: the
availability of an entrapment defense. See Hill, 474 U.S. at 59.
By the same token, if the government had successfully concealed the
identity of the solicitors, such that counsel could not have
discovered it, Jacobson’s plea would suddenly be voluntary.
It would be bizarre indeed if the voluntariness of Jacobson’s
plea were to depend upon the government’s skill at concealing
material exculpatory facts. Hill, 474 U.S. at 56, makes clear that
a plea is not voluntary if the defendant is kept in the dark as to
material exculpatory facts; it should not matter who is at fault
for the defendant’s ignorance. In other words, the identity of the
responsible party is not logically related to the voluntariness of
the defendant’s plea. If defense counsel is at fault, then the
Sixth Amendment provides relief under Hil). But if it is the
20
12/10/Z0U1 16:22 FAA 6196872666 FEDERAL DEFENDERS OF SAN @o32
government that has failed to disclose the information, then
Brady’s Fifth Amendment analysis should apply. See Ruiz, 241 F.3d
at 1165 (analogizing to ineffective assistance of counsel claims in
concluding that “the failure to Gisclose Brady evidence
invalidates the plea agreement”) .”
The Second Circuit took a slightly different approach,
reasoning that the failure to disclose Brady information prior to
a guilty plea could invalidate that plea because Brady v. United
States applied "only in the absen[ce] of misrepresentation or other
impermissible conduct by state agents." Miller, 848 F.2d at 1320
(citing Brady v. United States, 397 U.S. at 757). Because the non-
disclosure of material exculpatory evidence constitutes
“impermissible conduct by state agents," Miller held “that even a
guilty plea that was ‘knowing’ and ‘inteiligent’ may be vulnerable
to challenge if it was entered without knowledge of material
2 The government’s conduct in withholding material
exculpatory evidence that cannot be discovered by defense counsel
would have the effect of preventing counsel from offering
adequate advice at a critical stage of the prosecution. See
Williams v. Kaiser, 323 U.S. 471, 475-76 (1945) (the assistance
of counsel is fundamental to the decision to plead guilty because
“[o]nly counsel could discern from the facts whether a plea of
not guilty to the offense charged or a plea of guilty toa lesser
offense would be appropriate”). Because “* (t]he Eigne to counsel
is the right to the effective assistance of counsel, “ Strickland
v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v.
Richardson, 397 U.S. 759, 771, n. 14 (1970)), the government
would essentially prevent the defendant’s exercise of his Sixth
Amendment right to counsel. “The Court has uniformly found
constitutional error ... when counsel was ... prevented from
assisting the accused during a critical stage of the proceeding.
United States v. Cronic, 466 U.S. 648, 659 n.25 (1984)
(collecting cases).
21
12/10/2001 16:22 FAX 6196872666
evidence withheld by the prosecution.” Jd. Thus, the Second
Circuit posited a pre-plea Brady obligation, but it did not apply
Hill’s voluntariness analysis, instead concluding that a Brady
violation satisfied the misconduct exception recognized by Brady v.
United States.
Even so, the Second Circuit relied upon Hill's prejudice
analysis to determine materiality, Miller, 848 F.2d at 1322, the
same test the Ninth Circuit adopted. See Ruiz, 241 F.3d at 1166.
Thus, even — the Second and Ninth Circuits applied somewhat
different approaches to Brady v. United States, both agreed that
Hill’s analysis was nonetheless applicable. This minor analytical
divergence is of no moment, however, as there is no disagreement
between the Second and Ninth Circuits on whether or not Brady
applies pre-plea: both correctly hold that it does. See Coppa, 267
F.3d at 142 (“Brady material must be disclosed in time for its
effective use at a plea proceéding”); Ruiz, 241 F.3d at 25
(describing the right to receive pre-plea Brady material as a “due
process right”).
a. Pre-plea Brady disclosure advances the interest in
accuracy of quilty pleas and the goals of fairness
and legitimacy in the criminal justice system
s
Even if the Court declines to adopt the Ninth Circuit’s
analysis of Hill, the Second and Ninth Circuits have nonetheless
correctly concluded that due process requires pre-plea Brady
22
FEDERAL DEFENDERS OF SAN @033
\°
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disclosure because euch disclosure serves to ensure the reliability
of convictions entered by way of guilty plea and to advance the
goals of fairness and legitimacy in the criminal justice system.
First, the disclosure of material exculpatory evidence will tend to
encourage innocent, but risk averse, defendants to exercise their
trial rights rather than to plea bargain, thus vindicating the
“fundamental value determination of our society that it is far
worse to convict an innocent man than to let a guilty man go free.”
In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring).
Because such defendants are likely to receive more attractive plea
offers,’ disclosure will serve to bolster those innocent defendants
who are more likely to succumb to a substantial difference in
potential penalty.”
4 Defendants with a more significant chance of acquittal
are likely to receive more attractive offers from prosecutors who
are risk averse See generally Disclosure and Accuracy, 40
Hastings L.J. at 990-92.
‘** While cases of innocent defendants pleading guilty are
difficult to identify, some have come to light. See, e.g., Paul
Duggan, i : :
Office Ignored Confession By Another, Washington Post Service,
Jan. 18, 2001, News Section at 3 (man who entered guilty plea
exonerated); Matt Lait and Scott Glove:,
, Les Angeles Times, Metro Desk, 1999 WL
26200706, November 30, 1999 (same); gee also Barry Scheck et al,
Actual Innocence 92 (2000) (noting that 23% of the DNA
exonerations studied by the Innocence Project were based on false
confessions or admissions).
23
FEDERAL DEFENDERS OF SAN @o34
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12/10/2001 16:23 PAX 6196872666 FEDERAL DEFENDERS OF SAN @036
Second, disclosure will also serve to prevent miscarriages of
justice in cases involving offenses containing elements that are
either outside the defendant’s knowledge or are based upon
application of objective standards. As for the former category of
offenses, numerous crimes contain elements that are outside the
defendant's personal knowledge. For example, a number of offenses
require that the victim have attained a eoctais age. A defendant
may well not have personal knowledge of the victim’s age and lack
access to evidence that calls that element into question, evidence
that the government may possess due to its superior access to the
victim or to confidential public records. Similarly, in a bank
robbery case, see 18 U.S.C. § 2113(a), a defendant would typically
lack any personal knowledge of the FDIC insurance element that the
government may possess. Even the availability of certain defenses
may turn on facts outside the defendant’s knowledge, as is the case
in entrapment, in which the defendant may not know that the person
who solicited him was a government agent. In these hypotheticals,
the defendant lacks conclusive knowledge of his guilt or innocence,
thus making pre-plea disclosure of exculpatory evidence even more
Significant. See generally Disclosure and Accuracy, 40 Hastings
L.J. at 972-75 (describing situations in which the defendant lacks
sufficient knowledge accurately to determine his guilt).
As to the latter category, numerous defenses and offense
elements turn on the analysis of objective factors, such as the
24
reasonableness of one’s conduct oF the justifiability of a
particular course of conduct. See aeneraliy Disclosure and
Accuracy, 40 Hastings L.J. at 976-80 (“It is problematic to expect
the typical defendant pleading guilty to provide accurate answers
to questions such as the reasonableness of the defendant’s conduct
or belief, or the justifiability of taking a particular risk, in
the same way that we rely on a defendant pleading guilty to reveal
the truth about his own conduct or subjective mental state”).
Again as an example, a claim of self defense frequently requires a4
showing of the reasonableness of the defendant’s fear, an objective
fact that could be corroborated by facts of which the defendant was
unaware. See, e.¢., United States v. James, 169 F.3d 1210, 1214-15
(9th Cir. 1999) (defendant's self defense theory was corroborated
by documentary proof of victim's prior violent acts even though the
defendant had never reviewed the documents). Because “(s)elf-
defense is about as basic a moral and legal principle there is,”
id. at 1215 (citation omitted), no legitimate policy could be
served by allowing James to enter a guilty plea without disclosure
of the documents which corroborated the victim’s violent past had
she been’ unaware of them and had the government possessed them.
Objective determinations are frequently required in offense
elements as well. See, e.g., 8 U.S.C. § 1324(a) (1) (ii), (214) and
(iv) (permitting liability for various alien smuggling offenses
25
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based upon the defendant’s “reckless disregard” of the illegality
of the alien’s presence in the United States) .**
Finally, non-disclosure implicates the fairness considerations
that animated Brady. "fO]ur system of the administration of
justice suffers when any accused is treated unfairly." Brady, 373
U.S. at 867. “(Dl isclosure will serve to justify trust in the
prosecutor as the representative ... of a sovereignty ... whose
interests in a criminal prosecution is not that it shall win a
case, but that justice shall be done." Kyles, 514 U.S. at 439
guetation omitted). A constitutional rule permitting the
suppression of all Brady material gives rise to a prosecutorial
incentive "'to deliberately withhold exculpatory information as
pert of an attempt to elicit guilty pleas,'" Ruiz. 241 F.3d at 1164
‘S In Henderson v. Morgan, 426 U.S. 637 (1976), the Court
considered a case involving a homicide statute which permitted a
f£:nding of increased liability based upon what was apparently a
purely objective standard. Henderson involved a homicide in
which a second degree murder charge was filed, but the defense
contended that a manslaughter charge was more appropriate under
che facts, including the defendant’s limited mental abilities.
The second degree murder charge, however, included as an element
the requirement that the “assault was committed with a design to
effect the death of the person killed.” Id, at 645 (internal
quotations, footnotes omitted). The Court observed that the
crucial “element of the [second degree murder) offense might have
been proved by the objective evidence even if respondent’s actual
state of mind was consistent with innocence or manslaughter.”
1d. (emphasis added). Thus, the existence of objective evidence
- of which the defendant may not have been aware - may have been
dispositive. The failure to disclose exculpatory evidence
relevant to the application of this objective standard could lead
to a plea of guilty by a defendant whose “actual state of mind
was consistent with innocence or manslaughter.” Id.
26
(quoting Sanchez, 50 F.3d at 1453), and demeans the values
underlying Brady.”
The government advances a number of policy justifications for
its request that the Court allow it to withhold all Brady material
from defendants considering guilty pleas. Ruiz's holding, however,
is constitutional; it cannot be rejected solely upon
reconsideration of the policy implications of the decision. §¢e
Ruiz, 241 F.3d at 1167-68. Nevertheless, the government’s
arguments are unconvincing.
% In the event that the Court rejects the Ninth Circuit’s
analysis of Hill and the application of Brady prior to entry of a
guilty plea, the Court should nonetheless exercise its
supervisory power to require such disclosure. See. e.g.. Jencks
v. United States, 353 U.S. 657 (1957) (exercising the Court’s
supervisory power to order discovery of the prior statements of
witnesses); Roviaro v. United States, 353 U.S. 53 (1957)
(exercising supervisory power to order discovery regarding
informants under some circumstances); see also United States v.
Campbel], 874 F.2d 838, 851 (l*. Cir. 1989) (characterizing
Jencks and Roviaro as involving the exercise of the Court’s
supervisory power) ; United States v. Fischel, 686 F.2d 1082 (Sth
Cir. 1982) (same as to Roviaro). The analysis in the foregoing
section supports the exercise of this Court’s authority. In
addition, the “[f]ederal courts have an independent interest in
ensuring criminal trials are conducted within the ethical
standards of the profession and that legal proceedings appear
fair to all who observe them.” Wheat v. United States, 486 U.S.
153, 160 (1988). By requiring such disclosure, the Court will
hold prosecutors to high ethical standards and enhance fairness.
27
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For instance, the government rejects any notion that pre-plea
Brady disclosure would serve to discourage the innocent from
pleading guilty, asserting that in any post-conviction proceeding
[t]he essence of a defendant’s Brady claim at that point
is not that his solemn admissions of guilt were false.
Instead, the claim is that, if the government had
disclosed a particular piece of evidence, the defendant
would have recalculated the risks and benefits of his
options and opted to go to trial rather than pleading
guilty.
Pet. at 18-19. As a threshold matter, the government's argument,
as set forth above, is difficult to reconcile with Hill.
Presumably, the government would also seek to dismiss the claim of
a criminal defendant raising ineffective assistance of counsel by
arguing that the essence of such a claim was not innocence but
rather a desire to “recalculate([] the risks and benefits of his
options,” albeit with better advice. The Court rejected that sort
of reasoning in Hil], concluding that the claim went to the
validity of the plea: a plea based on such advice was not
voluntary. Hill, 474 U.S. at 56; accord McCarthy, 394 U.S. 466.
The same analysis should apply here: regardless of the government’s
(apparently omniscient) view that a defendant making a post
conviction attack does not also assert his innocence, the non-
disclosure of Brady material invalidates the plea by rendering it
involuntary. An involuntary plea violates due process and is void,
whether or not there is also a claim of innocence asserted. Hill,
474 U.S. at 56; accord McCarthy, 394 U.S. 466.
\
28
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The government’s concern for the finality of judgments, Pet.
at 19, is also addressed in Hil], which concluded that “requiring
a showing of ‘prejudice’ from defendants who seek to challenge the
validity of guilty pleas on the ground of ineffective assistance of
counsel will serve the fundamental interest in the finality of
guilty pleas.” Hill, 474 U.S. at 58 (citation omitted); see also
Strickland, 466 U.S. at 694 (“[aJn ineffective assistance claim
asserts the absence of one of the crucial assurances that the
result of the proceeding is reliable, so finality concerns are
somewhat weaker”). Because any successful Brady claim includes, by
definition, a showing of materiality, gee Strickler, 527 U.S. at
281-82, the pre-plea disclosure rule adopted by the lower courts
provides precisely the same assurance that the finality of
judgments will not be unnecessarily disturbed.
But even apart from the analogy to Hill, the government’s
assertion that all post-conviction Brady claims are not, in
essence, claims of innocence overstates the efficacy of the guilty
plea process in separating the innocent from the guilty. While it
is true that the Court views plea bargaining as “not only an
essential part of the process but a highly desirable part,”
Santobello v. New York, 404 U.S. 257, 261 (1971), the Court has
also acknowledged that it cannot “say that guilty plea convictions
29
a
12/10/2001 16:25 FAL 6196872666
FEDERAL DEFENDERS OF SAN 9041
Brady v. United States, 397
U.S. at 757.*” In Brady v. United States the Court observed that
we take great precautions against unsound results, and we
should continue to do so whether the conviction is by
plea or trial. We would have serious doubts about this
case if the encouragement of guilty pleas by offer of
leniency substantially increased the likelihood that
defendants, advised by competent counsel, would falsely
condemn themselves.
id. Although in Brady v. United States the Court expressed
confidence that trial “courts will satisfy themselves that pleas of
hold no hazards for the innocent."
guilty are voluntarily and intelligently made by competent
defendants with adequate advice of counsel,” jid., the government
now proposes a rule that can only undermine that confidence.
Essentially, the government urges the Court to enable it to deny
defendants the very information defense counsel needs to provide
“adequate advice:” material exculpatory evidence. If it were true
thet “guilty plea convictions [held some) hazards for the
innecent,” when Brady v. United States was decided, those hazards
will be greatly increased in the event the government’s view
+7 Moreover, to the extent that the government focuses on a
defendant's effort to disown his previous sworn declarations of
guilt, that concern is completely absent in cases where a nolo
contendere plea is entered, see Fed. R. Crim. P. 11(b), or when
the defendant pleads guilty pursuant to North Carolina v. Alford,
40C U.S. 25 (1970), without providing a factual basis. Even
where there is a factual basis provided, Hill, 474 U.S. 52, still
provides a basis to challenge a guilty plea: it contains no
“factual basis” exception. See also Fed. R. Crim. P. 32(e)
(permitting guilty plea to be withdrawn prior to sentencing for
“any fair and just reason” and also containing no “factual basis”
exception).
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prevails, and it gains the ability to withhold material exculpatory
evidence from defendants contemplating guilty pleas.
In addition to its view that application of Brady to guilty
pleas will somehow not advance the interests of innocent
defendants, the government also insists that the lower courts will
not be able to confine the requisite disclosures to material
Pet. at 14-15. The government’s fear is
exculpatory evidence.
unfounded. The Second Circuit has already rejected a district
court’s discovery order that went beyond the scope of the general
rule that Brady material must be disclosed prior to a guilty plea,
reasoning that “we have never interpreted due process of law as
requiring more than that Brady material must be disclosed in time
for its effective use at trial or at a plea proceeding....”
Coppa, 267 F.3d at 142 (citations omitted). The Brady materiality
standard, as applied in Coppa, simply obviates the government’s
concerns that it might be required to conduct open file discovery.
The government also fears that the Ninth Circuit’s approach
“could endanger government witnesses, disrupt ongoing
investigations, and require additional commitment of scarce
resources to cases before entry of guilty pleas.” Pet. at 23. The
government again overlooks the strict limitations imposed by the
materiality requirement. Ruiz does not require the wholesale
disclosure of the identities of informers, although occasionally it
may. Sanchez illustrates this point: Mr. Sanchez did not prevail
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because his assertion that he would have pursued entrapment and
outrageous governmental misconduct claims if he had known the
identities of the informants was rejected because it was not
objectively reasonable. See 50 F.3d at 1454. Therefore, the
evidence he was denied was neither material nor subject to
disclosure. Id. In those few cases where the information is
material, such as those where a defendant who is not predisposed to
commit drug offenses is induced to do so by a government informant,
the balance, as tilted by the antecedent determination of
materiality, properly favors disclosure.”
Finally, the argument that Ruiz creates a burden on
prosecutors by requiring them to collect and assess evidence at an
earlier stage in order to determine if it constitutes Brady
material is equally unavailing. As an initial matter, the
government appears to concede that its prosecutors already look for
and disclose exculpatory evidence before guilty pleas, as it
repeatedly states that it is only “impeachment” information that it
does rot routinely disclose. Pet. at 9, 23. Until now, there have
** The government has provided no evidence that the absence
of Brady waivers will have a devastating impact on criminal
investigations. See Mezzanatto, 513 U.S. at 209 n.6 (“Respondent
has failed to offer any empirical support for his apocalyptic
predictions”). There is also no evidence that Brady waivers are
common, even though the government's claimed concerns certainly
are. In other words, if a controversial Brady waiver was so
vital to the government's investigations, this issue likely would
have been raised long before the instant case.
32
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been no complaints that prosecutors have been overburdened by their
efforts to disclose such exculpatory information pre-plea, and
certainly the system has not come to a grinding halt based on these
pre-plea efforts.
Also, the government’s complaint about having to do more work
at the initial stages of a case conflicts with its contentions
regarding finality. Certainly, finality concerns are better
addressed by a rule which requires early disclosure. Such a rule
eliminates post-conviction claims when exculpatory information
comes to light well after resolution of a case. The government’s
concern about the plea bargaining process also “focuse[s] entirely
on fits) incentives and completely ignores the other essential
party to the transaction: the [defendant].” Mezzanatto, 513 U.S.
at 207. While a prosecutor may wish to do even less work in a plea
bargain onnis. a defendant is often less likely to accept a plea
agreement where he must give up his right to receive exculpatory
information, as exemplified by what happened in this very case.
Indeed, Brady waivers have inhibited the plea bargaining process in
various judicial districts. See Plea Bargain Waivers, 68 Fordham
L. Rev. at 2043-44 and n.189 (detailing the impasse created in the
Northern District of California by the government’s effort to
require waivers similar to the one at issue here).
Moreover, the government will not dispute that the “fast-
track” plea bargain program in the Southern District of California
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has survived in the wake of Ruiz. That program has proceeded in
the same fashion, simply without the inclusion of Brady waiver
provisions in the plea agreement. And, the government cannot claim
that there has been an alarming slow down in prosecutions in the
Ninth Circuit because prosecutors are now so busy spending their
time looking for impeachment information before a defendant pleads
guilty.
To the extent that Brady waivers relieve prosecutors of their
duty to collect and evaluate potential Brady evidence, due process
concerns are demeaned. See Strickler, 527 U.S. at 280 (“the
individual prosecutor has a duty to learn of any favorable evidence
known to the others acting on the government’s behalf in this case,
including the police”). As to any claim of difficulty in assessing
such information pre-plea, Kyles counsels prosecutors to err on the
side of disclosure. 514 U.S. at 439 ("Unless, indeed, the
adversary system of prosecution is to descend to a gladiatorial
level unmitigated by any prosecutorial obligation for the sake of
truth, the government simply cannot avoid responsibility for
knowing when the suppression of evidence has come to portend such
an effect on the trial's outcome as to destroy confidence in its
result"). There is no reason to believe that the pre-plea Brady
test is any more difficult to apply than the post-trial test; the
government “cannot avoid [its] responsibility" to ensure that
guilty pleas are entered knowingly and voluntarily. Id.
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The government also contends that, even if a defendant has a
right to receive Brady information before pleading guilty, that
right can be waived. Pet, at 15-16. As an initial matter, the
government appears to concede that if disclosure of Brady
information is necessary to a knowing and voluntary guilty plea,
then the right to receive such information cannot be waived in a
plea agreement. Indeed, the government does not challenge the
Ninth Circuit’s holding in this regard and instead simply relies
upon its position that the disclosure of Brady information is not
a prerequisite to a knowing and voluntary guilty plea. Jd. at 15.
Of course, respondent has shown that the disclosure of such
information is necessary to a knowing and voluntary guilty plea,
and therefore further consideration of the “waiver” issue is
unnecessary given the government’s concession, a concession that is
well taken. See McCarthy, 394 U.S. at 459 (“if a defendant's
guilty plea is not equally voluntary and knowing, it has been
obtained in violation of due process and is therefore void”); Waley
v. Johnston, 316 U.S. 101, 104 (1942) (if a guilty “plea was so
coerced as to deprive it of validity to support the conviction, the
coercion likewise deprived it of validity as a waiver of his right
to assail the conviction”).
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a
Nevertheless, even if this Court finds that disclosure of
Brady information is not required to ensure a knowing and voluntary
guilty plea, the right to receive such information still cannot be
waived pursuant to a plea agreement.” While the government
correctly states that the Court has recognized that many
- fundamental rights are waivable, gee Mezzanatto, 513 U.S. at 201,
it incorrectly contends that the right to receive Brady information
is indistinguishable from such waivable rights. Pet. at 16.
Instead, the right to receive Brady information is one of those
rights that “are so fundamental to the reliability of the
factfinding process that they may never be waived without
irreparably ‘discrediting the federal courts.’'” Mezzanatto, 513
U.S. at 204 (citation omitted).
Unlike the right in Mezzanatto, which was found to be waivable
pecause it involved the suppression of evidence and therefore did
” The government contends that if the right to receive
Brady information in the guilty plea context is not rooted in the
requirement of a knowing and voluntary guilty plea, then it could
only be rooted “in an expansion of the due process holding in
Bragy itself... .” Pet. at 16. For reasons explained
earlier, this contention is doubly flawed. First, the right to
receive exculpatory information in the guilty plea context does
not require an expansion of Brady, as the government readily
conceded in the district court and in the Ninth Circuit. Second,
even if the Due Process holding in Brady somehow did not apply in
the guilty plea context, this Court can create such a right
pursuant to its supervisory powers. Whether the right to receive
exculpatory information in the guilty plea context is based in
the Due Process Clause or this Court’s supervisory powers, the
following discussion of waiver is equally applicable.
36
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not enhance the search for truth, id. at 204-05, the right to
receive Brady information involves the disclosure of material
evidence and therefore “enhances the truth-seeking function” of the
federal criminal justice system. Id. at 204 (emphasis in
original). To ensure this truth-seeking function, which is
essential to the credibility of the federal courts, our guilty plea
“system should be given a stable and constant structure, one that
cannot be varied by a court with or without the consent of the
parties... .” Jd, at 205 (quoting United States v. Olano, 507
U.S. 725, 742 (1993) (Kennedy, J., concurring)). Indeed, because
Brady does not simply bestow personal rights upon a defendant but
also imposes obligations upon prosecutors that are designed to
protect the integrity and truth-seeking purpose of the criminal
justice system as a whole, see Kyles, 514 U.S. at 439, a defendant
and a prosecutor cannot simply waive the decision’s applicability
in a plea agreement. Cf. Peretz v. United States, 501 U.S. 923,
937 (1991 (“a litigant may not waive structural protections”);
Brooklyn Savinas Bank v. O'Neil, 324 U.S. 697, 704 (1945) (private
rights “charged or -colored with the public interest” cannot be
waived where waiver will defeat public interest).
In short, the credibility of the federal courts would be
irreparably discredited by a rule which permitted the parties to
avoid structural protections set forth by this Court to ensure the
integrity of the criminal justice system as a whole. Of course,
37
12/10/2001 16:27 FAX 6196872666
the specific consequence of this end-run around these structural
protections is the unsettling reality that federal courts could
accept guilty pleas while prosecutors silently stand by knowing
that there is information pointing to innocence.”
and without citation to
Finally, in half of a sentence,
authority, the government appears to assert the position it
articulated below, a position that appears to have been otherwise
abandoned at this stage of the proceedings. Specifically, it
contends that waiver should be allowed “particularly with respect
to the subset of information relating not to substantive evidence
of guilt, but to the credibility of government witnesses.” Pet. at
16. It is not surprising that this argument is without citation to
authority and has now been relegated to half of a sentence, as the
“rejected any such distinction between
Court has definitively
Bagley, 473 U.S.
impeachment evidence and exculpatory evidence.”
at €7€. In sum, the right to receive all exculpatory information,
including impeachment information, cannot be waived in a plea
agreement.
= Not only is a non-waiver rule necessary to maintain the
amtegrity of the federal courts and “some minimum of civilized
procedure|,)” Mezzanatto, 513 U.S. at 204 (quoting Ynited States
v. Josefik, 753 F.2d 585, 588 (7th Cir. 1985)), but it is also
required under other legal doctrines, such as contract and
property law. See Plea Bargain Waivers, 68 Fordham L. Rev. at
2960-85 (discussing the doctrines of unconstitutional conditions,
contract, property, and procedural due process in concluding that
Brady rights cannot be waived).
38
FEDERAL DEFENDERS OF SAN @os49
NS 2
12/10/200) 16:27 FAX 6196872666
——
FEDERAL DEFENDERS OF SAN
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfull ubmitted,
Dated: December 7, 2001 s ; CHEK
BENJAMIN L. COLEMAN
Federal Defenders of San Diego,
225 Broadway, Suite 900
San Diego, California 92101
Telephone (619) 234-8467
39
Inc.
12/10/2001 16:27 FAX 6196872666 FEDERAL DEFENDERS OF SAN @os1
IN THE SUPREME COURT OF THE UNITED STATES
No. 01-595
UNITED STATES OF AMERICA,
PETITIONER,
-vs -
ANGELA RUIZ,
RESPONDENT.
PROOF OF SERVICE
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO sal
ANGELICA HERNANDEZ, being first duly sworn, deposes and says:
That pursuant to Rule 29.4(a) of this Court he served the within
Brief in Opposition to the United States’ Petition for Writ of
Certiorari on the counsel for Petitioner by enclosing a copy
thereof in an envelope, First Class Postage Prepaid, addressed to
Theodore Olsen, Solicitor General of the United States, ATTN:
irving Gornstein, Assistant to the Solicitor General, Department of
Justice Washington, D.C. 20530-0001; and included an original and
ten (10) copies to Hon. William K. Suter, Clerk United States
Supreme Court, 1 First Street, NE Washington, D.C. 20530 and
Gepositing same in the United States mails at San Diego, California
Lng. Manas,
ANGELICA HERNANDEZ, Atfiant
on December 7, 2001.
Subscribed and Sworn to before me
this 7th day of December, 2001.
Notary Public in and for 4aid
County and State.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.