White-Collar Crime

An AUSA Would Like His Time To Be Worth More Than Ted Olson's; Or, DOJ's New Appellate Threat So It Can Avoid Work

Spending any time actually "lawyering" should demand a high price for federal prosecutors.

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The record for the highest hourly rate of a lawyer is currently Ted Olson’s $1800. One enterprising Assistant United States Attorney in the Third Circuit appears to be giving that rate a run for its money — so to speak — though valued in a slightly different way.

But first, a hopefully quick tour through the murky world of plea agreements and the Department of Justice’s continued efforts to require people to give up their rights.

In the federal criminal justice system, the vast majority of federal criminal cases result in a plea. The federal plea process is more than just going before the court and saying “Your Honor, I’m changing my plea to guilty.”

This is the federal government; there’s paperwork.

Each U.S. Attorney’s Office has a slightly different template that it uses to memorialize a plea agreement. The language is often technical and contains a number of take it or leave it conditions. You can negotiate many of these terms to about the same extent that you can negotiate the details of the note that comes with your mortgage.

The real meat of the plea — the stipulated guidelines calculation and the factual basis for the plea — can be negotiated, but you generally aren’t going to get any traction with, say, retaining your client’s right to send in a FOIA request about the investigation of his case. It isn’t going to happen.

And, of course, you can always plead guilty without an agreement and be free of these provisions, but if you want, say, to avoid a charge that contains a mandatory minimum, or to get any meaningful concession from the government, pleading open won’t get you there. And just about all the time, you really need something from the government.

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And that something is worth more than, say, the right to file a FOIA request.

In most judicial districts, the U.S. Attorney’s Office requires people pleading guilty to also waive their right to appeal the sentence or conviction except in very narrow circumstances — say, when the court imposes a sentence above the statutory maximum. If you can only get 20 years for wire fraud, but the court gives you 30, you can appeal. If the court gives you 20 because the judge confuses your case with the one coming up after you and thinks you’re also a serial killer, you’re most likely out of luck.

But, what happens when someone executes a plea where there’s an appeal waiver, then, after sentencing, files an appeal anyway?

As with all good questions in the law, it depends. How aggressively these appeal waivers are enforced varies by circuit. The Fourth Circuit is relatively strict; the D.C. Circuit less so.

The difference comes down to the extent to which a circuit thinks you should apply ordinary contract principles that would apply between two neutral parties negotiating at arm’s length, or whether you should recognize that one of these parties is the government and, perhaps, as a government bound by a constitution in the way it interacts with its citizens, it ought to have a heightened duty to treat those citizens fairly and, well, and not extort them to give up their constitutionally guaranteed rights on pain of more time in prison.

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In circuits where these are scrupulously enforced, what I’ve seen happen is that when there’s an appeal waiver in a plea and an appeal is, nonetheless, filed, the government files a motion to dismiss the appeal — it’s a standardized two page motion that I strongly suspect a paralegal files — the Court gives the defense an opportunity to respond, and the appeal is dismissed. Regardless of anything else, it’s an efficient process.

An AUSA in the Third Circuit, though, thinks that 45 minutes of paralegal time — or, perhaps, the effort of writing a brief arguing for dismissal — is just too onerous to be remedied by a mere dismissal of the appeal. It’s not enough that the guy doesn’t have the ability to appeal; that AUSA wants to have the court of appeals remand the case so that the sentencing can be reopened and the guy can get more time in prison just because he appealed.

And the Third Circuit went along with it in United States v. Erwin. This is a license for every lazy, lousy, burned-out lawyer who should have hung it up ten years ago to tell his client not to appeal a decent issue because of the specter of more time on remand, just so the lawyer can avoid 15 minutes of work filing a notice of appeal. (And, to be clear, I think the vast majority of lawyers wouldn’t do this, but there are enough it’s a live concern).

Tom Goldstein’s firm has filed a cert petition. The law on how to read appeal waivers wiggles from circuit to circuit; some clarity would be good, so I’m much hoping cert is granted. (Maybe. That assumes things come out the right way in the end. I have a bad feeling about this Court and criminal cases; there have been too many Kagan-Alito joint projects in criminal cases for my taste).

But, stepping back from the law a minute, let’s think about the AUSA who asked the court of appeals for a chance to seek more time in prison just because a guy filed an appeal.

Worst case scenario, this AUSA was required to do an additional brief. Figure that’s what, 15 hours of work? And in exchange for that, the guy who filed the appeal should get more time in prison, according to this AUSA.

This is what was lurking behind Barry Bonds’s reversed conviction — merely by requiring an AUSA to do slightly more work, the government has taken the position that someone else should spend more time in prison.

Prosecutors are supposed to do substantial justice. I think that should be read to mean “substantial justice to the person being prosecuted” rather than “substantial justice to DOJ’s work-life balance.”

But clearly I have a bias in these cases. Maybe if Ted Olson is worth $1800 an hour, an hour of an AUSA’s time is worth another human living in a cage for a month or so.

Matt Kaiser is a white-collar defense attorney at Kaiser, LeGrand & Dillon PLLC. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. Most of his clients come to the government’s attention because of some kind of misunderstanding. Matt writes the Federal Criminal Appeals Blog and has put together a webpage that’s meant to be the WebMD of federal criminal defense. His twitter handle is @mattkaiser. His email is mkaiser@kaiserlegrand.com He’d love to hear from you if you’re inclined to say something nice.

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