Daniel D. Crabtree

MEMORANDUM AND ORDER DENYING GOVERNMENT'S MOTION (Doc. 85)

Still pending after the May 29, 2014, hearing in this criminal case is the "Government's Motion for [a] Lafler/Frye Inquiry" (Doc. 85). This motion asks the Court to require defendant Broombaugh, personally, to participate in a colloquy designed to establish that he knew about the Government's plea offer and he decided to reject it. Id. at 2. Counsel briefed the issues presented by this motion, argued it on May 29, and the Court took the matter under advisement so it could consider additional authority submitted by the Government at the hearing. The Court now has reviewed that additional authority, conducted its own research, and is prepared to rule.

For the reasons explained below, the Court denies the Government's motion.

Background

The Government asserts that it has offered a variety of defendants in this case, Mr. Broombaugh included, the opportunity to cooperate before securing their indictment. According to the Government, defendant Broombaugh manifested a desire to cooperate but wished to consult with legal counsel before he did so. Because Mr. Broombaugh lacked the resources to retain counsel, the Government sought assistance from the Federal Public Defender and she agreed to represent him. Doc. 85 at 2.

According to the Government, defendant Broombaugh made a proffer in his counsel's presence and after he did so, the Government "generally" discussed the following subjects with his counsel: the scope of the alleged conspiracy; defendant Broombaugh's alleged involvement in the conspiracy; and the legal principles governing the analogue drugs purportedly involved in the conspiracy. See id. After all this but still before any indictment, the Government says it "offered [Mr. Broombaugh] the opportunity to engage in plea negotiations, and made a specific [plea] offer" to defendant Broombaugh. The Government's motion asserts that Mr. Broombaugh's counsel reported that "the defendant [had] rejected the government's plea offer." Id.

The Government styles its motion as one made under Lafler v. Cooper and Missouri v. Frye , two cases decided by the Supreme Court on the same day in 2012. Both decisions considered ineffective assistance of counsel claims arising from the plea negotiations setting. In Frye, the defendant claimed his counsel rendered ineffective assistance by failing to inform him of the prosecutor's plea offer. The plea offer lapsed and later, the defendant accepted a plea offer that came with a sentence harsher than the first plea offer. 132 S. Ct. at 1404-05. Lafler, in contrast, arose when a "favorable plea offer was reported to the [defendant] but, on advice of [his] counsel," he rejected it. 132 S. Ct. at 1383. The defendant's case proceeded to trial, the jury found him guilty, and the defendant received a harsher sentence than he would have received under the plea offer. Id. In a post-conviction proceeding, the Lafler defendant asserted that his trial counsel had represented him ineffectively by recommending that he reject the prosecution's favorable plea offer. The government conceded the ineffectiveness of defendant's original counsel. 132 S. Ct. at 1383-84.

The Government's motion here asserts that Lafler and Frye "raise challenges for the Court and the government in protecting the record against [later] ineffective assistance of counsel claims." Doc. 85 at 3. Those challenges warrant a courtroom colloquy with Mr. Broombaugh, the Government argues, because only such a colloquy can "assure that the defendant has been fully advised of the government's plea offer before further proceedings commence." Id. Mr. Broombaugh opposes the Government's motion and proposed colloquy because: (a) the Court has advised him he has a Constitutional right to remain silent and he has decided to invoke that right; and (b) he has directed his counsel not to disclose any aspect of their privileged communications about plea negotiations. Doc. 167 at 1.

Mr. Broombaugh's counsel has offered, however, something of a substitute for the Government's proposed colloquy. In defendant's response to the motion, his counsel represents the following: "Counsel, as an officer of the Court, assures the Court that all constitutional and ethical obligations have been fulfilled, including [those] set forth in Lafler v. Cooper and Missouri v. Frye." Id. Defense counsel's representation does not satisfy the Government, at least not completely.

In its Reply, the Government seems to concede that the issue presented by its motion has narrowed. That is, the Government's Reply acknowledges that Lafler provides no authority for the Court to require Mr. Broombaugh to participate in a colloquy - at least not now. Doc. 180 at 2 ("Any Lafler inquiry will be left to another day."). But the Government persists in its position that defense counsel's representation does not abate the concern arising under Frye:

[T]he government submits that counsel's representations as to the Frye inquiry are insufficient, just as they would be if the defendant
were being asked to waive a conflict of interest. This Court even requires waivers of appearance to be in writing and on the record. The Court must hear from the defendant personally.

• Did you discuss the Government's plea offer with your attorney?
• Did you, in fact, reject the plea offer?
• Are you satisfied that before deciding to reject the Government's plea offer, you had a full and complete opportunity to discuss the plea offer with your attorney?
• Are you satisfied that before deciding to reject the plea offer, you had a full and complete opportunity to discuss with your attorney the benefits of accepting the plea as compared to the risks of rejecting the plea offer and proceeding to trial?

Discussion and Analysis

A. Frye and the "Measures" It Suggests

As a starting point, the Court agrees that the Government's motion has evolved and thus Frye, not Lafler, guides the analysis. See Doc. 180 at 2. The charges against Mr. Broombaugh are nowhere near the start of a trial and so the risk Lafler addressed is not presented here, at least not currently. Thus, the Court shifts its focus to Frye and assesses whether, on the record created by the Government's motion, it authorizes the Court to mandate defendant's participation in the Government's proposed colloquy.

The operative passage of Frye begins with this observation:

This case presents neither the necessity nor the occasion to define the duties of defense counsel in [the plea bargaining process], however. Here, the question is whether defense counsel has the
duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction of lesser charges, or both.
This Court now holds that as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.

First, it suggests that the "terms [of a formal plea offer] and its processing" should be "documented so that what took place in the negotiation process becomes more clear if some later inquiry" hinges on the earlier plea negotiations. Id. at 1409. Second, Frye suggests that "States" - which presumably also means the United States in federal prosecutions - may "elect to follow rules [requiring] that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges." Id. And third, Frye suggests, "formal [plea] offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence." Id.

Nothing in Frye suggests that the Court meant for these three measures to foreclose other measures that also could protect against fabricated ineffective assistance claims. In this sense, the Court does not read Frye to prohibit a colloquy like the one requested here. Thus, the Court concludes that Frye does not explicitly answer the question presented by the current motion.

B. The Court's Rationale for Denying the Government's Motion

While Frye does not directly answer the question, it does identify several considerations important to the concern it recognizes. Three of those considerations, when viewed through the lens of this case's posture, lead the Court to deny the Government's motion in this instance.

First, Mr. Broombaugh's counsel has made two representations that are important to the Court. She represents that she recognizes her duty under Frye and, as an officer of the Court, that she has discharged this duty. Doc. 167 at 1. The Government has suggested no reason to distrust counsel's representations and the Court declines to invent one.

Second, the Court is concerned that the colloquy proposed by the Government could set the stage for an unintended violation of Fed. R. Crim. P. 11(c)(1). This rule provides, "The Court must not participate in [plea discussions]." Asking a defendant in a criminal case whether he has "had a full and complete opportunity to discuss with [his] attorney the benefits of accepting the plea offer" - a question the Government would have the Court ask Mr. Broombaugh - easily could generate a discussion that crosses the bright line established by Rule 11(c)(1). For example, one can imagine Mr. Broombaugh answering this part of the Government's proposed colloquy by saying something like, "That all depends on what you mean by a 'full and complete opportunity.' My lawyer tells me that we didn't get all the things we need to understand what sentence I'd get if I accepted the Government's plea offer." One can imagine this kind of response because Mr. Broombaugh asserts a more formal version of it in his Opposition to the Government's motion. See Doc. 167 at 3-4 (asserting that the Government refused to provide the requisite discovery for his counsel to calculate the base offense level on the § 2D1.1 drug guideline). Any response along these lines would require the Court either to stop the colloquy - before any protective value was derived from it - or engage in a discussion forbidden by Rule 11(1)(c). The Court sees no reason to borrow trouble like this, particularly when defense counsel has made representations that provide a workable alternative.

And third, the parties implicitly dispute whether the Government's offer even qualifies as the kind of "formal [plea] offer," 132 S. Ct. at 1409, coming within the scope of Frye's concern. Compare Doc. 167 at 2 (describing the Government's plea offer as one that capped "the maximum penalty at five years") with Doc. 85-1 at 15 (presenting Mr. Broombaugh's analysis that the Government's plea offer actually exposed him to a "statutory maximum . . . of 240 months"). The Court has no way to know whether Mr. Broombaugh's view of his sentencing exposure was correct or, instead, whether the Government's view was correct. But that is not the point. The point is that this dissonance evidently exists, and its existence generates doubt whether a colloquy could produce the kind of insulating record that Frye commends.

Finally, the Court has asked the parties whether any other federal courts have compelled a defendant to participate in a similar colloquy at a comparable stage of the case. The Government responded by saying that it had not researched the issue outside the District of Kansas. Consequently, the Court conducted its own research and located no case where a court had compelled a defendant to participate in a colloquy like the one proposed here and at a comparable stage. In fairness, the Government did provide a letter referencing four cases where our Court has conducted colloquies inspired by the concerns recognized in Frye and Lafler. See Letter dated May 28, 2014 (attached as Exhibit A). The Government's briefing argues that these four cases provide ballast for the conclusion that the Court should require Mr. Broombaugh to participate in a colloquy right now. All four cases cited by the Government, however, involved a colloquy conducted "before trial" and in some cases, "immediately before trial." Id. A colloquy conducted just before trial is, of course, one of the three measures that Frye endorses. See 132 S. Ct. at 1409. In contrast, nothing in Frye suggests that the Court should mandate a colloquy every time a defendant declines the Government's plea offer. Given this difference, the four cases cited by the Government's letter yield no support for the proposition that the Court should compel Mr. Broombaugh to participate in a colloquy at this stage of the case.

Conclusion

A case involving a different set of underlying circumstances might lead to a different conclusion. But here, on the record presented by the Government's motion, the Court concludes that it should not compel Mr. Broombaugh to participate in the colloquy sought by the Government's motion.

IT IS THEREFORE ORDERED BY THE COURT THAT the Government's Motion for Lafler/Frye Inquiry (Doc. 85) is denied.

IT IS SO ORDERED.

Dated this 8^th day of July, 2014 at Topeka, Kansas.

__________

Daniel D. Crabtree

United States District Judge