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United States v. Merlino

United States District Court, D. Massachusetts

June 11, 2015



RICHARD G. STEARNS, District Judge.

William Merlino seeks to reinstate a government plea offer that he alleges was never conveyed to him by his counsel. He claims that had he been made aware of the offer, he would have accepted it and not gone to trial, a lost opportunity that cost him years of his life.[1] This case squarely raises an issue with which the American criminal justice system has only recently begun to come to grips. As much pride as the American jury system justifiably inspires, in truth its impact on the disposition of most criminal cases is relatively slight. In the most recent year for which reliable statistics are available (2013), 96.9 percent of all federal criminal cases were resolved by guilty pleas, and many of those pursuant to a formal contract (a plea bargain) between the defendant and the government.[3] See U.S. Sentencing Comm'n, Overview of Federal Criminal Cases, Fiscal Year 2013.

In recent years, decisions of the U.S. Supreme Court have come to acknowledge the normative reality of plea bargaining in the criminal justice system. In the first of these cases, Padilla v. Kentucky, 559 U.S. 356 (2010), the Court held that a lawful resident alien defendant was entitled to competent advice from his counsel on the collateral immigration consequences of a plea-bargained felony conviction. As Professor Stephanos Bibas of the University of Pennsylvania Law School has thoughtfully commented,

[o]ne of the most important points in Padilla is not highlighted in the Court's opinion but largely implicit. Justice Stevens's majority opinion mentions only in passing that today, 95 percent of criminal convictions result from guilty pleas and only 5 percent result from trials. [ Padilla, 559 U.S. at 372 and n.13.] Plea bargaining is no longer a negligible exception to the norm of trials; it is the norm. Nor, given information deficits and pressures to bargain, can we simply trust in an efficient plea market that reflects full information about expected trial outcomes. Thus, plea bargaining needs tailored regulation in its own right, not simply a series of waivers of trial rights.
Since Padilla, the Supreme Court has reiterated [its] understanding of plea bargaining as a complex tradeoff of risks. In Premo v. Moore [, 562 U.S. 115 (2011)], the Court recently rejected a habeas challenge to a defense lawyer's advice to take a quick plea bargain. Justice Kennedy's opinion for the Court rightly stressed that "[p]lea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks." [ Id. at 124.] Parties reasonably trade that uncertainty for substantial discounts, to purchase finality, even as they know that their and the other side's evidence may wax or wane. [ Id. at 124-125.]... Thus, the early signs are that Padilla was not a one-off decision but may have heralded the dawn of a new era.

Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev. 1117, 1138-1139 (2011).

Professor Bibas's prediction was born out in two subsequent decisions, Missouri v. Frye, 132 S.Ct. 1399 (2012), and Lafler v. Cooper, 132 S.Ct. 1376 (2012), both authored by Justice Kennedy. In Lafler v. Cooper , respondent Cooper was charged with four counts under Michigan state law, including assault with intent to murder. On two occasions, the prosecution offered to dismiss two of the counts and recommend a sentence of 51 to 85 months in exchange for a guilty plea. In a communication to the court, respondent admitted guilt and expressed his intent to accept the offer. However, on the erroneous advice of counsel that the prosecution would be unable to prove an intent to murder because the victim had been shot below the waist, Cooper rejected the plea deal. Cooper was convicted by a jury and sentenced to a mandatory minimum of 185 to 360 months' imprisonment. He then sought post-conviction relief on the basis of ineffective assistance of counsel.

In affirming the Sixth Circuit's grant of habeas corpus, the Supreme Court rejected the government's contention that "[a] fair trial wipes clean any deficient performance by defense counsel during plea bargaining, " id. at 1388, and confirmed that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.'" Id. at 1384, quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985). The parties having agreed that counsel's advice regarding the plea agreement was deficient, the Court set out the standard for establishing prejudice under the circumstances:

a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court ( i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed.

Id. at 1385.

The Court also affirmed the Sixth Circuit's order of specific performance of the original plea agreement. Since the goal of a remedy is to "neutralize the taint' of a constitutional violation, " id. at 1388, it is within the discretion of the district court to "determin[e] whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between, " or if resentencing is infeasible, "require the prosecution to reoffer the plea proposal." Id. at 1389.

In the companion case decided on the same day, Missouri v. Frye , respondent Frye sought habeas relief because his attorney had failed to communicate to him a favorable written offer made by the prosecutors to reduce a felony driving with a revoked license charge to a misdemeanor with a recommendation of a 90-day sentence. The plea offer expired, Frye ultimately pled guilty without an agreement, and was sentenced to three years in prison. Frye also sought post-conviction relief on the basis of ineffective assistance of counsel during the plea process.

The Supreme Court held that, given the prevalence of plea bargaining and its central role in the criminal justice system,

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. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.

132 S.Ct. at 1408.

Although the Court accepted the lower court's findings that Frye's attorney was deficient in failing to communicate to him the favorable offer and that Frye would have accepted the offer had he been made aware of it, the Court remanded the case to the Missouri Court of Appeals to evaluate whether there was a reasonable probability that the prosecution would not have cancelled the agreement and whether the trial court would have accepted the agreement.

First, the fact of a formal offer means that its terms and its processing can be documented so that what took place in the negotiation process becomes more clear if some later inquiry turns on the conduct of earlier pretrial negotiations. Second, States may elect to follow rules that all offers must be in writing, again to ensure against later misunderstandings or fabricated charges. See N.J. Ct. Rule 3:9-1(b) (2012) ("Any plea offer to be made by the prosecutor shall be in writing and forwarded to the defendant's attorney"). Third, formal offers can be made part of the record at any subsequent plea proceeding or before a trial on the merits, all to ensure that a defendant has been fully advised before those further proceedings commence.

Id. at 1409.[4]


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