United States v. Griffin, No. 05-4016 (2d Cir. 2007)
Annotate this Case
The court issued a subsequent related opinion or order on January 28, 2008.
Download PDF
05-4016-cr United States v. Griffin 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2006 4 (Argued: December 19, 2006 Decided: December 21, 2007) 5 Docket No. 05-4016-cr 6 ------------------------------------- 7 UNITED STATES OF AMERICA, 8 Appellee, 9 - v - 10 MICHAEL J. GRIFFIN, 11 Defendant-Appellant. 12 ------------------------------------- 13 14 Before: POOLER, SACK, and WESLEY, Circuit Judges. The defendant-appellant, Michael Griffin, pleaded 15 guilty, pursuant to a plea agreement, in the United States 16 District Court for the Western District of New York (Charles J. 17 Siragusa, Judge), to one count of possession of child pornography 18 in violation of 18 U.S.C. § 2252A(a)(5)(B), after unlawfully 19 downloading such images to his computer using a peer-to-peer 20 file-sharing program. 21 the judgment of conviction sentencing him principally to 120 22 months' imprisonment, arguing, inter alia, that the government 23 breached the parties' plea agreement by advocating against an 24 acceptance of responsibility adjustment. The defendant appeals from the portion of 1 2 Remanded for resentencing by another judge. Judge Wesley dissents in a separate opinion. 3 4 BRUCE R. BRYAN, Syracuse, NY, for Defendant-Appellant. 5 6 7 8 9 TIFFANY H. LEE, Assistant United States Attorney (Terrance P. Flynn, United States Attorney for the Western District of New York, of counsel), Rochester, NY, for Appellee. 10 11 SACK, Circuit Judge: While there are aspects of this case that may implicate 12 complicated and difficult issues at the unhappy intersection of 13 computer technology and child pornography, we need not and 14 therefore do not address them. 15 hinges on the narrow question of whether the government adhered 16 to the terms of the plea agreement between it and the defendant 17 during sentencing proceedings. 18 government breached the plea agreement, we vacate the sentence 19 and remand for resentencing by another district judge. 20 21 The resolution of this appeal Because we conclude that the BACKGROUND On November 23, 2004, the defendant pleaded guilty 22 pursuant to a written plea agreement to one count of possession 23 of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). 24 By pleading guilty, he admitted that he "knowingly possessed 25 material that contained images of child pornography . . . [that] 26 had been . . . transported in interstate . . . commerce by any 27 means, including by computer . . . ." 28 J. Griffin, dated November 23, 2004, in the United States 2 Plea Agreement of Michael 1 District Court for the Western District of New York, at ¶ 6 (the 2 "Plea Agreement"). 3 This prosecution arose out of an FBI investigation 4 involving the defendant's use of a peer-to-peer file sharing 5 program called KaZaA (sometimes spelled "Kazaa"). 6 speaking, KaZaA is a computer program, downloaded to a computer, 7 that allows the computer's user to share and obtain, via the 8 Internet, many types of digital files including photographs and 9 video recordings. Broadly The program enables the user to create and 10 maintain a "shared folder" ("KaZaA Shared Folder") on his or her 11 computer's hard drive which, when enabled, allows other users to 12 download files located in that KaZaA Shared Folder onto their own 13 computer's hard drive. 14 program called "sharing disabled" which prevents other KaZaA 15 users from downloading any file from the original user's 16 computer, even if the file is located in the latter's KaZaA 17 Shared Folder. 18 on a KaZaA user's computer, however, he or she cannot download 19 files from other KaZaA users.1 A KaZaA user can enable a feature in the While the "sharing disabled" feature is enabled 1 See also United States v. Sewell, 457 F.3d 841, 842 (8th Cir. 2006) (describing how KaZaA works and noting that after an individual "downloads" a file from another user's shared folder, "[t]he downloaded file will automatically be placed in the user's [KaZaA] Shared Folder to be searched and downloaded by other users unless the local user disables this feature"). See generally Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380 F.3d 1154, 1158 59 (9th Cir. 2004) (describing mechanics of peerto-peer file sharing software), vacated and remanded, 545 U.S. 913 (2005). 3 1 In the plea agreement, Griffin admitted that in October 2 2003, he had opened approximately ten child pornography images 3 acquired using KaZaA and had deleted six of the images, but that 4 at least four of the images remained on his computer's hard 5 drive. 6 into the "My Documents" folder on his hard drive, and that one of 7 these images depicted a minor under the age of twelve years old. 8 During the plea colloquy before the district court, the 9 government explained that it had not given, and would not give, 10 the defendant a copy of his computer's hard drive, which it had 11 confiscated in accordance with its policy of treating hard drives 12 containing child pornography as contraband, but that the 13 defendant and his representatives could view the images in the 14 government's offices. 15 He further acknowledged that he moved two of these images The plea agreement left unresolved a variety of 16 disputes between the government and Griffin concerning the 17 application of the United States Sentencing Guidelines, including 18 the proper determination of the defendant's adjusted offense 19 level and the application of several possible enhancements. 20 order to address these disputes, the district court held an 21 evidentiary hearing that took the better part of four days during 22 June and July 2005. 23 computer forensic experts on behalf of the government and one on 24 behalf of the defendant. 25 the contents of the defendant's computer hard drives, the initial 26 FBI report produced after the defendant first was interviewed In The hearing included testimony from several Testimony at these hearings focused on 4 1 following a search of his home and seizure of his computers, and 2 the operation of KaZaA. 3 The district court adopted the recommendation of the 4 Probation Office and the government as to the calculation of the 5 Guidelines sentence. 6 offense level was fifteen. 7 KaZaA, the district court then applied a cross-reference for 8 "trafficking," which added two levels, United States Sentencing 9 Guidelines Manual ("U.S.S.G.") § 2G2.2(c)(1), and increased the 10 offense level by an additional five levels for distribution with 11 the expectation of receipt of a thing of value, but not pecuniary 12 value, id. § 2G2.2(b)(2)(B). 13 three more two-level enhancements -- for the use of a computer, 14 id. § 2G2.2(b)(5), possession of a photograph of a minor under 15 the age of twelve, id. § 2G2.2(b)(1), and possessing more than 10 16 but fewer than 150 images, id. § 2G2.2(b)(6)(A) -- and a four- 17 level enhancement for possession of photographs that included 18 sadistic or masochistic conduct, id. § 2G2.2(b)(3). 19 resulted in an adjusted total offense level of thirty-two. 20 It is undisputed that the defendant's base Based on the defendant's use of The district court also applied This The defendant had no previous criminal record, so his 21 criminal history fell within category I. 22 Guidelines range was therefore 121 to 151 months. 23 court sentenced Griffin to the statutory maximum sentence of ten 24 years' (120 months') imprisonment. 25 imposed a life term of supervised release, which included 26 requirements that the defendant register as a sex offender in 5 The applicable advisory The district The district court also 1 whichever state in which he lives and that he be subject to 2 searches of his person or property for the duration of the term 3 of supervised release. 4 Acceptance of Responsibility 5 In the plea agreement, the government agreed "not to 6 oppose the recommendation that the Court apply the two (2) level 7 downward adjustment of Guidelines §3E1.1(a) (acceptance of 8 responsibility) and further agree[d] to move the Court to apply 9 the additional one (1) level downward adjustment of Guidelines Plea Agreement at ¶ 12. 10 §3E1.1(b)." However, the agreement also 11 permitted the government to "respond at sentencing to any 12 statements made by the defendant or on the defendant's behalf 13 that are inconsistent with the information and evidence available 14 to the government." Id. at ¶ 18b. 15 Prior to sentencing, the defendant submitted his 16 objections to the initial Presentence Investigation Report 17 ("PSR"), which outlined Griffin's sentencing arguments, including 18 his objections to many of the Guidelines enhancements discussed 19 above. 20 Report, dated March 24, 2005 ("Def's March 24 Response"). 21 particular note, Griffin argued that the feature of his KaZaA 22 program that disabled its file-sharing capability remained active 23 nearly all of the time, which counseled against applying a cross- 24 reference for trafficking and a further enhancement for 25 distribution. See Defendant's Response to Presentence Investigation Id. at 3. Of He further contended that he was an 6 1 inadvertent child-pornography user because the PSR identified 2 only eight of more than 4,500 images on his computer as depicting 3 minors. 4 he knowingly possessed a particularly lewd and notorious video 5 that prompted the application of a four-level enhancement for 6 sadistic or masochistic conduct. 7 overarching objective of the defendant's objections was to narrow 8 the conduct underlying sentencing to that which Griffin admitted 9 in the plea agreement. 10 11 Id. Griffin also asserted that there was no proof that Id. at 4-5. The apparent In a letter to the district court following the receipt of the defendant's objections to the PSR, the government wrote: 12 13 14 15 16 17 18 19 20 21 [T]he government is troubled by some of the defendant's objections which seem to raise questions regarding whether the defendant has truly accepted responsibility . . . . However, the defendant did timely notify authorities of his intention to enter into a guilty plea, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently. 22 23 24 25 26 27 28 29 30 If the Court finds that the defendant is entitled for [sic] the two-level downward adjustment pursuant to Guidelines §3E1.1(a) for clearly demonstrating acceptance of responsibility, the government submits that the defendant, based on his actions in promptly entering a guilty plea, would be entitled to the further one-level decrease pursuant to § 3E1.1(b). 31 Statement of the Government with Respect to Sentencing Factors 32 and Motion Pursuant to U.S.S.G. § 3E1.1(b), dated March 31, 2005, 33 at 1-2 ("Gov't March 31 Statement"). 7 1 The government elaborated on its views in its 2 subsequent sentencing brief. There it said that it found 3 "troubling . . . the fact that the defendant is now attempting to 4 distance himself from the other images and movies found in his 5 possession." 6 the Presentence Report, dated Apr. 15, 2005, at 20 ("Gov't April 7 15 Response"). 8 government to question whether the defendant has truly accepted 9 responsibility." Government's Response to Defendant's Response to The defendant's conduct therefore "le[d] the Id. at 21. The government brief also 10 synthesized cases and commentary related to acceptance of 11 responsibility, noting that "while a guilty plea combined with 12 truthful statements about the defendant's offense and other 13 relevant conduct is 'significant evidence' of acceptance of 14 responsibility, 'it can be outweighed by conduct that is 15 inconsistent with acceptance of responsibility.'" 16 (quoting United States v. Ortiz, 218 F.3d 107, 108 (2d Cir. 2000) 17 (per curiam)). 18 19 20 21 22 23 24 25 Id. at 21 22 The government concluded: It is unclear whether the defendant's objections to the inclusion of all the relevant conduct rises to the level of outweighing his acceptance of responsibility. Suffice it to say that the defendant's objections to the relevant conduct raises [sic] questions on the issue of acceptance. Id. at 22.2 2 The government also defendant's arguments that did not apply and was well disagree on these points. noted that it did not object to the the disputed Guidelines enhancements aware of the defendant's intent to Gov't April 15 Response at 20. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 The district court thereafter made the following determination: While the Government, for purposes of the plea, agreed not to oppose a recommendation that I reduce your offense level by a total of three for acceptance of responsibility, I have found otherwise. The Government has not taken any position on that and they have not opposed it. On its own, based on the posture of this case and finding of facts, the Court has denied that. Sent'g Hr'g Tr., July 14, 2005, at 29. The defendant now challenges his sentence on several 14 grounds: (1) The government's refusal to provide to him a copy of 15 the confiscated computer hard drives constitutes a violation of 16 Rule 16 of the Federal Rules of Criminal Procedure and Brady v. 17 Maryland, 373 U.S. 83 (1963); (2) the district court's 18 determination that he trafficked and distributed child 19 pornography through his use of KaZaA; (3) the district court's 20 denial of a downward adjustment for acceptance of responsibility; 21 (4) the government's alleged breach of the plea agreement by 22 encouraging the district court to deny an adjustment for 23 acceptance of responsibility; (5) the propriety of the term and 24 provisions of his supervised release; and (6) an alleged 25 violation of the Constitution's Ex Post Facto Clause. 26 conclude that the government breached the plea agreement, which, 27 in this case, requires remand for resentencing de novo, we 28 decline to address the defendant's other arguments. DISCUSSION 29 30 I. Breach of the Plea Agreement 9 Because we 1 A. Legal Standard and Standard of Review 2 We review interpretations of plea agreements de novo 3 and in accordance with principles of contract law. United States 4 v. Riera, 298 F.3d 128, 133 (2d Cir. 2002) (citing United States 5 v. Padilla, 186 F.3d 136, 139 (2d Cir. 1999)). 6 whether a plea agreement has been breached, we 'look[] to the 7 reasonable understanding of the parties as to the terms of the 8 agreement.'" Id. (quoting United States v. Colon, 220 F.3d 48, 51 9 (2d Cir. 2000)). "To determine "Because the government ordinarily has certain 10 awesome advantages in bargaining power, any ambiguities in the 11 agreement must be resolved in favor of the defendant." 12 (citations and internal quotation marks omitted). 13 agreements are involved, the government must take particular 14 "'care in fulfilling its responsibilities.'" 15 Lawlor, 168 F.3d 633, 637 (2d Cir. 1999) (quoting United States 16 v. Brody, 808 F.2d 944, 948 (2d Cir. 1986)).3 17 Id. Where plea United States v. Because the defendant did not argue in the district 18 court that the government breached the plea agreement, the 19 government asserts that we must review the argument for plain 20 error. We have held to the contrary that "a defendant is not 3 The statement in Lawlor is that the government must "take much greater care in fulfilling its responsibilities." Lawlor, 168 F.3d at 637 (emphasis added). The context of the statement in the opinion from which this repeated admonishment first emanated suggests that "much greater" means "much greater than the government in fact exercised." See United States v. Januszewski, 777 F.2d 108 (2d Cir. 1985), cited in Brody, 808 F.2d at 948. 10 1 required to object to the violation of a plea agreement at the 2 sentencing hearing." 3 [that the government breached the plea agreement] is not barred 4 by his failure to raise this issue with the District Court, nor 5 are we bound to apply a plain error standard of review."). 6 defendant need not demonstrate that any error as to the 7 government's compliance with his plea agreement satisfies plain 8 error review. 9 B. Lawlor, 168 F.3d at 636 ("Lawlor's claim The The Government's Breach 10 Whether the government breaches a plea agreement by 11 making allegedly impermissible comments to the sentencing court 12 has been the subject of substantial discussion in this Circuit. 13 Our cases have not yielded a bright-line rule as to the leeway 14 the government has with respect to what it tells the court while 15 operating under such an agreement. 16 [therefore] be carefully studied in context, and where the 17 government's commentary reasonably appears to seek to influence 18 the court in a manner incompatible with the agreement, we will 19 not hesitate to find a breach, notwithstanding formal language of 20 disclaimer." 21 Cir. 2005). United States v. Amico, 416 F.3d 163, 167 n.2 (2d Amico, upon which the government exclusively relies,4 22 23 "[The] circumstances must contains our most recent application of such a fact-specific 4 The government refers to the case as United States v. Peters. Peters was the sole appellant in the appeal. But Amico was the first named defendant in the official caption of the case, and we therefore refer to it using his name. 11 1 analysis. 2 to support his contention that the government had breached its 3 plea agreement with the him. 4 There, the defendant-appellant made several arguments First, the defendant-appellant argued that the 5 government's statement that it "adopts the findings of the 6 revised Presentence Investigation Report" violated the plea 7 agreement insofar as this endorsement advocated, by reference, 8 the imposition of a higher sentence than that to which the 9 parties agreed. Id. at 165. Once notified of this violation, 10 however, the government filed an amended statement explaining 11 that it expressly did not advocate the additional enhancements, 12 and it reiterated that position several times thereafter. 13 We noted that "a retraction of an argument advanced by the 14 government in violation of its plea agreement would [not] always 15 cure its breach," but concluded that, "upon careful examination 16 of all the circumstances, especially the mild, brief, and 17 unassertive form of the statement and its rapid retraction, . . . 18 the temporary breach was adequately cured." 19 Id. Id. Second, the defendant-appellant argued that a 20 government memorandum of law, submitted in response to his 21 objections to the Presentence Investigation Report, violated the 22 plea agreement by advocating a position on an issue about which 23 the plea agreement did not permit discussion. 24 argument, concluding: 25 to this response when he attempted to characterize the criminal 26 scheme in a manner favorable to himself, minimized the importance We rejected the "[The defendant-appellant] opened the door 12 1 to the criminal scheme of the mortgage brokers, and claimed not 2 to have known supporting documentation accompanying the loan 3 applications was false." 4 discussion of the state of the law in response to the defendant- 5 appellant's "inaccurate description of the law" was considered an 6 appropriate response that was permitted by the agreement, 7 particularly because it was surrounded by several statements to 8 the effect that the government did not intend to advocate the 9 imposition of the additional enhancement. 10 Id. Moreover, the government's Id. at 166. Similarly, in Riera, the prosecution and the defense 11 agreed that "neither party will seek . . . a departure," and that 12 neither party will "suggest that the Court sua sponte consider 13 such a departure." 14 permitted the parties to respond to inquiries from the district 15 court in the event that the court "contemplate[d] any Guidelines 16 adjustments, departures, or calculations different from those 17 stipulated to [in the agreement]." 18 in original). 19 breached the agreement when it argued by letter that the district 20 court "would be well within its discretion in upwardly departing" 21 before explaining in detail why such a departure would be 22 appropriate. 23 omitted). 24 in tone and substance to forbidden advocacy to have been 25 well-advised," id. at 134, and "came very close to breaching the 26 agreement," id. at 135. 298 F.3d at 133 34. The plea agreement also Id. at 134 (second brackets The defendant asserted that the government Id. (internal quotation marks and citation We stated that the government's letter was "too close 13 1 We found no breach, however, for three reasons: First, 2 the letter was submitted in response to a solicitation by the 3 court. 4 permitted a response to a request from the district court to set 5 forth the relevant facts and advise the court whether a departure 6 would conform to the law. 7 Goodman, 165 F.3d 169, 172-73 (2d Cir.) (finding no breach where 8 the government responded to a specific request from the district 9 court to "supply the Court with the law and the facts" without Id. at 134-35. Second, the plea agreement expressly Id. at 135; see also United States v. 10 advocating that such an adjustment should be imposed), cert. 11 denied, 528 U.S. 874 (1999). 12 explicitly advocate a departure" and thereafter repeatedly 13 asserted that it was responding to the court's request but was 14 not advocating an upward departure, in line with the plea 15 agreement. 16 Third, the government "did not Id. at 135-36. In United States v. Vaval, 404 F.3d 144 (2d Cir. 2005), 17 we reached the opposite conclusion. 18 guilty pursuant to a plea agreement to robbery of federal 19 property with a dangerous weapon. 20 plea agreement, the government was not permitted to "take [a] 21 position concerning where within the Guidelines range determined 22 by the Court the sentence should fall," or to "make [a] motion 23 for an upward departure," as long as no new "information relevant 24 to sentencing" was discovered subsequent to the effective date of 25 the plea agreement. 26 calculated the defendant's criminal history to fall within Id. There, the defendant pleaded Id. at 149. According to the The plea agreement incorrectly 14 1 category III rather than category II. 2 sentencing, the government acknowledged that the plea agreement 3 prevented the government from seeking an upward departure or 4 recommending a particular sentence within the guideline range, 5 but nonetheless stated, inter alia: 6 7 8 9 10 11 12 13 14 15 Id. at 149. At I find this defendant's criminal history appalling. And the fact that he can sit here today and say that he made a mistake, I find completely disingenuous. Because it is a mistake that he has made over and over and over again in terms of robbing people at gun point and using violence to commit robberies. I understand that the guidelines preclude us from looking at or calculating certain offenses. But certainly this is not this defendant's first or second offense. 16 Id. at 150. 17 for the defendant's conviction, said: 18 consider all of that when making the Court's decision about where 19 to sentence this defendant." 20 "[B]ased on the information that I had at [the] time [of the plea 21 agreement,] I believed that the defendant was going to be in a 22 [CHC] category three. 23 technically, I could make an upward departure which I am not." 24 Id. (first brackets added). 25 The government, after recounting the factual basis Id. "I just ask the Court to The government concluded: He is in a category two. I think, The district court, which presided over the trial of 26 Vaval's co-defendants, acknowledged the defendant's objections to 27 the government's statements, but asserted that "[t]he 28 government's remarks do not change any view that the Court had of 29 this case coming out here." Id. 15 1 We first noted that statements by the government 2 asserting that it did not intend to violate the plea agreement 3 "do not . . . insulate the government against a finding of breach 4 if in fact what was said constituted an argument about where 5 within the range to sentence appellant and/or whether to upwardly 6 depart." 7 "highly negative characterizations" of the defendant's criminal 8 history did not qualify as mere "information," and that a 9 statement that the government "technically" could make an upward Id. at 153. We then concluded that the government's 10 departure recommendation effectively qualified as such a 11 recommendation. 12 distinction between the government actually moving for an upward 13 departure and stating that it 'technically' could move for such a 14 departure and then adding arguments that would support such a 15 departure."). 16 solicited statements in Riera, "all relevant legal and factual 17 information had already been provided to the court, and the 18 government's statements served no purpose other than to advocate 19 that the court upwardly depart or impose a high sentence within 20 the Guidelines range." 21 government had breached the plea agreement. 22 F.3d at 637 (finding that the government breached the plea 23 agreement by asserting that the PSR properly determined the 24 Guidelines range where the plea agreement calculated the range 25 under a different (and lower) Guidelines range); United States v. 26 Enriquez, 42 F.3d 769, 770-71 (2d Cir. 1994) (vacating the Id. ("It is difficult to draw a principled Furthermore, unlike the government's court- Id. at 154. 16 As a result, we decided, the See also Lawlor, 168 1 sentence based on the government's violation of the plea 2 agreement by arguing against a downward adjustment for acceptance 3 of responsibility where the plea agreement required the 4 government to "agree to a Probation Department finding that the 5 defendant is entitled to a two-level adjustment for acceptance of 6 responsibility").5 7 We have also strictly enforced plea agreements against 8 the government where, as here, the disputed issue concerned 9 enhancements or adjustments to a defendant's total offense level 10 rather than a specific sentence within a given Guidelines range 11 or an upward or downward departure from that range. 12 States v. Palladino, 347 F.3d 29 (2d Cir. 2003), the plea 13 agreement prohibited the government from moving for an upward 14 departure from the Guidelines range estimated in the agreement 15 "based on information known to [the United States Attorney's 16 Office] at this time." 17 level on which that range was based, however, was "not binding" 18 on the government, and the defendant was not permitted to Id. at 33. 5 In United The estimated total offense We have also applied this analytical framework to government breaches of plea agreements after the initial sentence has been executed. See United States v. Carbone, 739 F.2d 45, 46-47 (2d Cir. 1985) (concluding that the government breached its promise to "make no recommendation to the sentencing judge as to the sentence which Stephen Carbone may be given" when it strenuously opposed a "split sentence" requested by the defendant after the district judge announced a 30-month term of imprisonment); United States v. Corsentino, 685 F.2d 48, 51 52 (2d Cir. 1982) (finding that the government breached the plea agreement when, despite its agreement to "take no position" on the defendant's sentence, it advocated against permitting the possibility that the defendant might receive an earlier parole). 17 1 withdraw his plea if the government advocated for a different 2 offense level. 3 offense level to be ten. 4 sought a six-level enhancement based on information it conceded 5 was not new. 6 language and the spirit" of the plea agreement, id. at 30; at 7 best, the language was ambiguous and was therefore construed 8 against the government, id. at 34. 9 Id. The agreement calculated the adjusted Id. at 34. Id. At sentencing, the government We concluded that this violated "the In Griffin's plea agreement, the government committed 10 itself "not to oppose the recommendation that the Court apply the 11 two (2) level downward adjustment of Guidelines §3E1.1(a) 12 (acceptance of responsibility) and further agree[d] to move the 13 Court to apply the additional one (1) level downward adjustment 14 of Guidelines §3E1.1(b)." 15 also permitted the government to "respond at sentencing to any 16 statements made by the defendant or on the defendant's behalf 17 that are inconsistent with the information and evidence available 18 to the government." 19 20 Plea Agreement at ¶ 12. The agreement Plea Agreement at ¶ 18b.6 In response to the defendant's objections to the PSR, the government discussed the possible downward adjustment for 6 In Griffin's plea agreement, the government was permitted to "advocate for a specific sentence within the Guidelines range" and to "modify its position with respect to any sentencing recommendation or sentencing factor under the Guidelines . . . in the event that subsequent to this agreement the government receives previously unknown information regarding the recommendation or factor." Plea Agreement at ¶ 18. Neither party cites either of these provisions on this appeal, so we do not consider their relevance, if any. 18 1 acceptance of responsibility under U.S.S.G. § 3E1.1 in two 2 separate written submissions to the district court. 3 noted that "the government is troubled by some of the defendant's 4 objections which seem to raise questions regarding whether the 5 defendant has truly accepted responsibility." 6 Statement, at 1. 7 defendant did timely notify authorities of his intention to enter 8 a guilty plea, thereby permitting the government to avoid 9 preparing for trial and permitting the government and the court It first Gov't March 31 But the submission continued: "However, the 10 to allocate their resources efficiently." 11 government then proceeded to recommend that the defendant receive 12 the additional one-level decrease for acceptance of 13 responsibility pursuant to U.S.S.G. § 3E1.1(b) should the 14 district court find that the defendant is entitled to the two- 15 level adjustment under U.S.S.G. § 3E1.1(a). 16 government's only communication addressing acceptance of 17 responsibility, we would have little trouble characterizing this 18 submission as containing a "few ill-advised descriptive words" 19 that fall short of breaching the plea agreement. 20 F.3d at 135. 21 Id. at 1-2. The Were this the See Riera, 298 But the government addressed the issue of acceptance of 22 responsibility a second, separate time. 23 arguments, permitted by the plea agreement, see Plea Agreement, 24 at ¶¶ 8 9, that no relevant conduct was applicable to his 25 sentencing beyond that to which he pleaded guilty, the government 26 wrote that "the defendant is attempting to limit his conduct to 19 In response to Griffin's 1 only that to which he pled guilty," which "leads the government 2 to question whether the defendant has truly accepted 3 responsibility pursuant to U.S.S.G. § 3E1.1(a)." 4 Response, at 21. 5 framework of a downward adjustment for acceptance of 6 responsibility, concluding: 7 defendant's objections to the inclusion of all the relevant 8 conduct rises to the level of outweighing his acceptance of 9 responsibility. Gov't April 15 The government then reviewed the legal "It is unclear whether the Suffice it to say that the defendant's 10 objections to the relevant conduct raises [sic] questions on the 11 issue of acceptance." 12 Id. at 22. This was well beyond the pale. No discussion of an 13 acceptance of responsibility adjustment was solicited by the 14 court. 15 simply to correct an inaccurate representation of relevant 16 sentencing law. 17 defendant's inaccurate description of the law relating to 18 aggravating role, the government was entitled to explain the law 19 concerning this adjustment without violating its agreement."). 20 Nor did the government merely provide information or evidence in 21 response to any statements by the defendant. 22 ¶ 18b. 23 the court about what it considered to be "troubling" statements 24 by the defendant in his submission to the court in anticipation 25 of sentencing. Cf. Riera, 298 F.3d at 134-35. It was not an effort See Amico, 416 F.3d at 166 ("In view of the Plea Agreement, at Instead, the government, on its own initiative, warned 20 1 The government did nothing to retract its questionable 2 statements or otherwise ameliorate their impact. Cf. Amico, 416 3 F.3d at 165 (noting that "a retraction of an argument advanced by 4 the government in violation of its plea agreement would [not] 5 always cure its breach," but concluding that the "temporary 6 breach" of a "mild, brief, and unassertive form," combined with a 7 "rapid retraction," sufficiently cured any breach). 8 government followed up its first statement of misgivings 9 regarding the defendant's objections with both a reiteration of Instead, the 10 its doubts regarding the defendant's acceptance of responsibility 11 and an unsolicited review of law relevant to denying the 12 adjustment. 13 See Gov't April 15 Response, at 21 22. The government argues that it adhered to its promise in 14 the plea agreement throughout the sentencing hearing by 15 advocating for a sentence within a Guidelines range that included 16 the downward adjustment for acceptance of responsibility and by 17 expressly stating that it did "not advocat[e] for anything beyond 18 what's in the plea agreement." 19 5, 15. 20 responsibility adjustment do not, we think, effectively retract 21 the previous statements or cure any breach.7 Sent'g Hrg. Tr, June 21, 2005, at These indirect references to an acceptance of 7 And we hav Even if we agreed that Griffin "opened the door" during the sentencing hearing by denying relevant conduct that the district court later determined to have occurred, see Amico, 416 F.3d at 165, this would not be relevant to the breach of the plea agreement because the government's sentencing letters were submitted prior to the sentencing hearing and prior to the district court's explicit warnings to Griffin about the perilous nature of his denial of such conduct in light of the guidelines 21 1 e determined that statements by the government asserting that it 2 did not intend to violate the plea agreement "do not . . . 3 insulate the government against a finding of breach if in fact 4 what was said constituted an argument" that violated the plea 5 agreement. 6 often decisive role in the sentencing context, we will not 7 hesitate to scrutinize the government's conduct to ensure that it 8 comports with the highest standard of fairness." 9 F.3d at 637. Vaval, 404 F.3d at 153. "Given the government's Lawlor, 168 10 This is not to say that the plea agreement required the 11 government to remain silent were the defendant to make statements 12 inconsistent with the government's understandings. 13 But the government did more than correct inconsistencies in fact 14 or law with information or evidence available to it, as permitted 15 by the plea agreement. 16 analysis, unsolicited by the court, and concluded by noting its 17 own skepticism as to whether the defendant satisfied the 18 requirements for an adjustment for acceptance of responsibility 19 as set forth by its analysis. 20 It did not. Instead, it offered a thorough legal To paraphrase our conclusion in Vaval, 404 F.3d at 153, 21 it is difficult to draw a principled distinction between the 22 government voicing outright opposition to a downward adjustment 23 for acceptance of responsibility and stating that the defendant's 24 conduct was "troubling" and "raises questions on the issue of pertaining to acceptance of responsibility. Hr'g Tr., May 23, 2005, at 18-20. 22 See, e.g., Sent'g 1 acceptance." 2 which would have been a more obvious and egregious breach of the 3 plea agreement, the government could have done little more to 4 attempt to persuade the court to deny an adjustment for 5 acceptance of responsibility. 6 addressing the issue of acceptance of responsibility, "the 7 government's statements served no purpose other than to advocate 8 that the court" deny an adjustment for acceptance of 9 responsibility. 10 Without expressly opposing such an adjustment, After the first letter directly Id. at 154. That the district court disclaimed the government's 11 statements does not alter our conclusion. 12 court has sentenced in accordance with a position improperly 13 advocated, while claiming not to have been influenced by the 14 improper advocacy, a reviewing court can do no more than 15 speculate as to whether the judge was in fact influenced, even 16 unconsciously." 17 that although the government's mistake was a common one made in 18 the course of strongly felt and doubtlessly well-intentioned 19 advocacy, it breached the plea agreement by urging, in effect, 20 that the district court deny a downward adjustment for acceptance 21 of responsibility. Amico, 416 F.3d at 168. "Where the sentencing We therefore conclude 22 C. The Dissent 23 Judge Wesley does not dispute that the government was 24 forbidden by the plea agreement from making the statements in its 25 April 15 communication to the district court. 26 "the government[, therefore,] breached [the plea agreement] 23 And he agrees that Dissent at [7]. 1 before the sentencing hearing" took place. 2 Neither does he assert that there is, nor can we find, anything 3 in the plea agreement that (1) renders it a breach for the 4 defendant to make a false statement, confirm that he previously 5 made one, or to correct one, or (2) expunges or renders harmless 6 the government's previous breach in the event of any such action 7 by or on behalf of the defendant. 8 plea agreement explicitly anticipates the possibility of such 9 untruthfulness by reserving for the government the right to See id. at [9]. Indeed, the 10 "respond at sentencing to any statements made by the defendant or 11 on the defendant's behalf that are inconsistent with the 12 information and evidence available to the government." 13 Agreement at ¶ 18.8 14 Plea Embracing, instead, an argument that the government 15 never made, the dissent is focused on the fact that at the time 16 of the plea hearing -- several months after the government's 17 breach -- "the defendant did not continue to maintain his 18 [previous] denial," dissent at [7], in response to the PSR, as to 19 "knowledge [by him] of the BabyJ video," id. at [3]. 20 "recant[ed], showing that his earlier denials had been 21 untruthful," id. at [8]. 22 concession of misstatements by the defendant excuses the Griffin The dissent would hold that this 8 This is not to suggest that the defendant was free to lie with impunity. He was, of course, subject to sanction for testifying falsely, obstructing justice, or perhaps otherwise for proffering untruthful information in this context. 24 1 government from having failed previously to "strict[ly] compl[y]" 2 with the agreement. Id. at [10]. 3 no authority for the proposition that a defendant's concession of 4 previous misstatements during sentencing excuses the government 5 from its previous noncompliance with the plea agreement, nor any 6 theory upon which we think such a proposition could reasonably be 7 based. 8 9 We do not see how. We know of This is not a case where the government sought to renounce a plea agreement because the defendant had breached it. 10 See United States v. Cruz-Mercado, 360 F.3d 30, 39 (1st Cir. 11 2004) (cited by the dissent, at [9]). 12 materially breached the plea agreement by advocating against an 13 acceptance of responsibility adjustment. 14 dissenter search the record to find a misstatement by the 15 defendant on the basis of which he would have the court bestow a 16 pardon to the government for its breach. 17 our oft-repeated dictum that "courts construe plea agreements 18 strictly against the Government . . . for a variety of reasons, 19 including the fact that the Government is usually the party that 20 drafts the agreement, and the fact that the Government ordinarily 21 has certain awesome advantages in bargaining power," United 22 States v. Ready, 82 F.3d 551 (2d Cir. 1996), we conclude to the 23 contrary that the government was, and remained, bound by its plea 24 agreement and responsible for its material breach thereof. 25 D. Remedy 25 The government flatly and Only now does the Especially in light of 1 The appropriate remedy for a breach of a plea agreement 2 is "either to permit the plea to be withdrawn or to order 3 specific performance of the agreement." 4 (citation omitted). 5 performance here. 6 for resentencing. 7 Lawlor, 168 F.3d at 638 The defendant seeks only specific We therefore vacate the sentence and remand In doing so, we must remand to a different district 8 judge. Id. Although in most other contexts we resist such a 9 course of action, we have concluded that where a plea agreement 10 is concerned it is appropriate because "the government's breach 11 of its commitment is difficult to erase if the case remains 12 before the same judge, because the judge's decision . . . was 13 based on his assessment of the facts." 14 F.3d at 772). 15 the transcript of the proceedings in the district court, that 16 this "disqualification results not from any inappropriate action 17 on [the judge's] part, but by reason of the government's failure 18 to adhere to its contractual obligation." 19 omitted). 20 Riera, 298 F.3d at 134. 21 acceptance of responsibility, even if such an action is 22 warranted, there is no way to be certain that the government's 23 breach had no effect on that determination. 24 of action as a prophylactic rule ensures that the appearance of 25 justice will not be compromised, see United States v. Kaba, 480 Id. (quoting Enriquez, 42 It is an understatement to observe, in light of Id. (internal citation But "the government-rung bell cannot be unrung." If the district court were again to deny 26 Treating this course 1 F.3d 152, 159 (2d Cir. 2007), and, of course, encourages 2 punctilious respect for similar agreements in the future. 3 We therefore remand to a different judge reluctantly. 4 The district court proceeded with what we view as extraordinary 5 diligence. 6 complex. 7 wasted is a matter of no small concern. 8 that we are required to do so by our case law and the principles 9 underlying it. The hearings it held were unusually lengthy and The extent to which this exemplary effort will be We conclude nonetheless 10 E. Other Arguments 11 The defendant makes several additional arguments. Of 12 particular note are his assertions that the government violated 13 Federal Rule of Criminal Procedure 16 and Brady by failing to 14 turn over a copy of his hard drives, and his challenges to the 15 district court's application of sentencing enhancements for 16 trafficking and distribution based on his use of KaZaA. 17 address issues raised on appeal that are not central to the 18 disposition of the appeal and might ordinarily be inclined to do 19 so here. 20 exercise our discretion not to do so for several reasons. 21 We often On this sentencing appeal, however, we choose to First, subsequent to the sentencing proceedings below, 22 Congress passed a law that requires that "any property or 23 material that constitutes child pornography . . . shall remain in 24 the care, custody, and control of either the Government or the 25 court." Adam Walsh Child Protection and Safety Act of 2006, Pub. 27 1 L. No. 109-248, 120 Stat. 629, 631 (codified at 18 U.S.C. 2 § 3509(m)(1) (2006)). 3 government's former policy in that it prohibits the government 4 from providing a copy of any "property or material that 5 constitutes child pornography" to a defendant, notwithstanding 6 the requirements of Rule 16 of the Federal Rules of Criminal 7 Procedure. 8 expert may only examine the property at a government facility. 9 Id. § 3509(m)(2)(B). This law appears to track closely the Id. § 3509(m)(2)(A). A defendant or his or her Interpretations of this provision have 10 begun to percolate through the district courts but, to the best 11 of our knowledge, no Court of Appeals has yet addressed it. 12 generally Adam Liptak, Locking Up the Crucial Evidence and 13 Crippling the Defense, N.Y. Times, Apr. 9, 2007, at A10. 14 light of this change in the law subsequent to Griffin's sentence 15 on an issue he raises before us for the first time on appeal, we 16 think it better for the district court to address his arguments 17 under Rule 16 and Brady and to await possible further 18 developments in the law in this regard before addressing it if 19 indeed we eventually must in this case.9 20 See In Second, despite the lengthy sentencing hearing directed 21 primarily at understanding the use, function, and operation of 22 KaZaA, we find the record to be, through no apparent fault of the 9 Because we do not address the Rule 16 argument, we need not determine on the present record and at this point whether Griffin requested a copy of the hard drive prior to sentencing as required. 28 1 court, confused and difficult to follow. The court repeatedly 2 expressed its frustration in this regard. 3 Tr., June 21, 2005, at 75 ("To the Government, I think you're 4 making this way [too] confusing . . . ."); Sent'g Hr'g Tr., July 5 13, 2005, at 22 ("In this case, because of issues that have 6 arisen at the fault of the Prosecution and law enforcement, 7 frankly, this is now the fourth day of this hearing. 8 boggles my mind, I've rarely heard an agent testify as [an FBI] 9 agent did on the stand. See, e.g., Sent'g Hr'g What He changed a report without indicating 10 it was an amended report."); Id. at 33 ("This is what the case is 11 all about, KaZaA. I can't believe in the FBI somebody doesn't 12 know about KaZaA. It doesn't have to be a live witness [i]f I 13 had an affidavit from somebody explaining to me how KaZaA 14 works . . . ."). 15 expert witness may be afforded an opportunity to inspect the 16 computer hard drives in an effort to complete the record, which 17 may be of benefit to what at least seem on the surface to present 18 complicated technical issues. 19 argument, should we be required to conduct one, would benefit 20 from further exposition and clarification in the district court. 21 Moreover, on remand, the defendant or his We think our review of this Finally, when remanding for a retrial on the merits, we 22 do, of course, often decide issues that are not strictly before 23 us when they are likely to arise again in the course of the 24 retrial. 25 2007 U.S. App. LEXIS 25974, *52 (2d Cir. Nov. 8, 2007) See, e.g., United States v. Shellef, 2007 WL ----, *?, 29 1 (addressing various issues "because they [were] likely to arise 2 again on remand and retrial . . . even though their resolution 3 [was] not strictly necessary in order to decide [the appeal."); 4 United States v. Amico, 486 F.3d 764, 767 (2d Cir. 2007) 5 (vacating the conviction and addressing "only those issues 6 calling for guidance on remand"); United States v. Quattrone, 441 7 F.3d 153, 182 (2d Cir. 2006) (addressing evidentiary rulings on 8 appeal where conviction was vacated and remanded for retrial 9 based on a flawed jury instruction). Deciding them may save the 10 investment of the substantial judicial resources -- as well as 11 those of counsel and members of another jury -- that might be 12 required by yet another remand should we eventually decide those 13 additional issues contrary to the view of the district court. 14 Yet another complete retrial might well follow. 15 expended, however, tend to be considerably less where, as here, 16 the remand is confined to resentencing and subsequent additional 17 sentencing hearings rather than a subsequent retrial on the 18 merits. 19 Cir. 1994) ("Our slightly greater willingness, when there are 20 extenuating circumstances, to entertain sentencing objections 21 that were not presented to the District Court may reflect the 22 different impact on the judicial system engendered by vacating a 23 sentence in comparison with reversing a conviction. 24 errors, whose correction requires a new trial that a timely 25 objection might have obviated, correcting sentencing errors The resources Cf. United States v. Leung, 40 F.3d 577, 586 n.2 (2d 30 Unlike trial 1 usually demands only a brief resentencing procedure.") (citing 2 United States v. Baez, 944 F.2d 88, 90 n.1 (2d Cir. 1991)). 3 4 The remaining subsidiary arguments are also best left for the district court to address in the first instance. CONCLUSION 5 6 The case is remanded to the district court with the 7 direction that it be assigned to a different district judge for 8 the court to vacate the current sentence and impose sentence de 9 novo. 10 11 12 13 14 15 16 17 18 19 20 31 1 WESLEY , Circuit Judge, dissenting: 2 3 The majority concludes that this case should be remanded to a new district court judge for 4 specific performance of the government s promise not to object to defendant s request for an 5 acceptance of responsibility adjustment. It does so in the name of preserving the integrity of the 6 plea bargaining process and public confidence in the federal criminal justice system. I agree with 7 my colleagues that courts must be vigilant in holding the government to its promises. I submit, 8 however, that the majority s analysis overlooks a crucial fact in this case defendant s own prior 9 breach of the agreement. In my view, remand will seriously undercut the very policy concerns the 10 majority seeks to protect. I therefore respectfully dissent and vote to affirm the judgment. 11 The Plea Agreement1 12 13 In late November, 2004, defendant pleaded guilty to one count of possession of child 14 pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) pursuant to a plea agreement with the 15 government. Plea Agreement at ¶ 1. The plea agreement contained stipulated facts, including 16 defendant s acknowledgment that he had admitted previously to an FBI agent that he had opened 17 downloaded images containing child pornography in a shared folder on the KaZaA system.2 Id. 18 at ¶ 7(c). The plea agreement also noted the defendant[ s] state[ment] that in October of 2003, he 19 had opened approximately ten (10) child pornography images obtained through KaZaA. Id. The 20 stipulated facts further indicated that defendant did not realize that he had downloaded images 21 containing child pornography, that he deleted six of them, that he was aware that four images 22 remained on his computer, and that he moved two images to his My Documents folder. Id. at ¶ 23 7(c)-(d). 1 Defendant has not raised any objection to the adequacy of his plea colloquy or to the knowing and voluntary nature of his consent to the plea agreement. 2 Judge Sack s opinion describes how KaZaA functions. See Maj. at 3. 1 1 Although there is no mention in the stipulated facts of defendant s possession of a BabyJ 2 movie, that movie plays a vital role in this case. The BabyJ movie is part of a series of BabyJ 3 pictures and movies that are graphic and disturbing. They involve a young girl in a number of 4 brutal sexual encounters. The undercover agent who first discovered defendant s use of KaZaA to 5 possess and to share child pornography did so by looking for underage video clips on KaZaA and 6 came upon a media file shared by defendant entitled Babyj12. Thus, possession, use, and 7 familiarity with the BabyJ series were particularly relevant to defendant s ultimate sentence 8 exposure even though his colloquy was silent on the issue. 9 The plea agreement also reflects the parties inability to agree upon a number of potential 10 sentencing enhancements under the United States Sentencing Guidelines. For instance, the 11 government maintained (without defendant s agreement) that a trafficking enhancement should 12 apply. See Maj. at 5. The government also pressed for several enhancements that would raise 13 defendant s sentence possessing material involving children; using a computer for the 14 possession, transmission, receipt, or distribution of material; committing an offense that included 15 at least 10, but fewer than 150 images; and distributing images for the receipt, or expectation of 16 receipt, of a thing of value, but not for pecuniary gain. Id. Most importantly, the government took 17 the position (also disputed by defendant) that a four-level enhancement should apply for 18 defendant s possession of images containing sadomasochistic conduct. Id. 19 The agreement left enhancement determinations to the district court, and provided that the 20 government would not oppose a downward adjustment for defendant s acceptance of 21 responsibility. Plea Agreement at ¶ 12. The precise effect of that adjustment would, of course, 22 vary depending on the court s ultimate Guideline determination. 23 Finally, the agreement allowed the government to respond at sentencing to any statements 24 made by the defendant or on the defendant s behalf that [we]re inconsistent with the information 25 and evidence available to the government; . . . . Id. at ¶ 18(b); see also Maj. at 22 (noting that 26 the plea agreement [did not] require[] the government to remain silent were the defendant to make 27 statements inconsistent with the government s understandings ). 28 2 1 Defendant s Initial Denial of Knowledge 2 and the Government s Response 3 In late March, 2005, defendant s attorney submitted detailed objections (affirmed by 4 defendant) to the presentence report ( PSR ). Those objections focused on the enhancements left 5 open by the plea agreement. Defendant s fourth objection the objection most relevant here was 6 to the sentencing enhancement for sadomasochistic content. Defense Objections to Presentence 7 Report, dated March 24, 2005, at 4 ( Def. March 24 Objections ). The basis for that enhancement 8 sought by the government and recommended by the Probation Officer was defendant s alleged 9 admission to a government agent, recorded in the FBI s 302 Report, that defendant knew about the 10 BabyJ movie and had a copy of it on his computer. Defense counsel repeated his client s prior 11 denial of any knowledge of the BabyJ file and recalled that defendant previously had stated, as he 12 does here under oath, that he consistently denied knowing of the BabyJ file. Id. 13 The government s initial response to this objection was generic; it was troubled by some of 14 the defendant s objections [to the PSR] which seem[ed] to raise questions regarding whether the 15 defendant ha[d] truly accepted responsibility . . . . Statement of the Government with Respect to 16 Sentencing Factors and Motion Pursuant to U.S.S.G. § 3E1.1(b), dated March 31, 2005, at 1 17 ( Gov t March 31 Statement ). Two weeks later, the government countered defendant s PSR 18 objections in greater detail. This time, reacting to defendant s factual and legal assertions, the 19 government suggested that defendant was reneging upon his initial acceptance of responsibility by 20 disclaiming any knowledge of the BabyJ video in contradiction to the statements defendant 21 allegedly made to the government agent, and to the government s assertion that defendant s 22 computer contained almost the entire series of movies involving BabyJ. Government s 23 Response to Defendant s Objections to the Presentence Report, dated April 15, 2005, at 15 ( Gov t 24 April 15 Response ). 25 While acknowledging the parties right to disagree on the applicable Guideline and any 26 potential enhancements, the government expressed concern that defendant, through his denial of 27 knowledge of the BabyJ files, was now attempting to distance himself from the other images and 28 movies found in his possession. Id. at 20. The government argued that defendant was distancing 3 1 himself from the BabyJ movie series by discrediting the way the FBI conducted the interview 2 memorialized in the FBI 302 report and by stating that he had repeatedly told law enforcement that 3 he had no idea what files or movies were on his computer. Id. at 21. The government also 4 suggested that defendant was trying to cabin the relevant conduct made applicable by U.S.S.G. § 5 1B1.3(a) for which his sentence could be enhanced for sadomasochistic content. Id. Once more, 6 the government question[ed] whether the defendant ha[d] truly accepted responsibility pursuant to 7 U.S.S.G. § 3E1.1(a). Id. The government then proceeded to discuss how a defendant s 8 untruthfulness with respect to relevant conduct might affect the sentencing judge s conclusion that 9 defendant had accepted responsibility. 10 11 12 The Sentencing Hearing In June and July of 2005, the district court conducted an extensive sentencing hearing that 13 included four days of testimony. During the hearing defendant vigorously contested the 14 government s contentions that he: (1) was aware that a BabyJ file was on his computer,3 (2) had 15 admitted that fact to the FBI when he was arrested, and (3) had actually viewed those files and 16 searched for other BabyJ files. Indeed, just before the hearings began, defense counsel noted that 17 defendant was aware of the consequences if defendant s denials regarding BabyJ files were not 18 accepted by the court: 19 20 21 22 I have gone over the acceptance of responsibility stakes with my client. He understands that if the Court decides that he is not truthful, if he does testify, and I have talked to him about testifying, that if he is not truthful with respect not only to the offense conduct, but also what the Court may deem to be relevant conduct, 3 During the sentencing hearing an FBI agent testified that four computers were found at defendant s house. Sent g Hr g Tr. May 23, 2005, at 35. Two computers, however a Dell and an HP were the focus of later testimony. As discussed further below, the government was able to show that a BabyJ file on defendant s Dell computer was among those that were file-sharingenabled. Sent g Hr g Tr. July 13, 2005, at 40. As also noted below, defendant later admitted that he may have employed the HP in order to search for, and browse BabyJ files. Defense Counsel Letter to Judge Siragusa, dated July 13, 2005 ( Def. July 13 Letter ). The court found, by a preponderance of the evidence, that defendant had BabyJ files on both the Dell and HP computers. Sent g Hr g Tr. July 14, 2005, at 8-10. 4 1 2 3 4 5 6 7 8 9 that he could lose his acceptance reduction. The Defendant, from very early on in the course of my recommendations, has indicated to me that he was not aware of these items in the shared folder. . . . So the Defendant is aware that if he is going to deny involvement with an awareness of the BabyJ file and the other materials in the shared folder, there may be consequences and he is prepared to go forward with that. He has not changed his position. He feels that the agents, while they certainly may not be misrepresenting the facts, misinterpreted what he said and he stands by his position. Sent g Hr g Tr. May 23, 2005, at 24-25 (emphasis added). 10 Counsel s statement followed an explicit warning from Judge Siragusa (paraphrasing 11 U.S.S.G. § 3E1.1 app. n.1(a)) that the sentence mitigation for acceptance of responsibility could be 12 denied and that defendant faced an enhancement for obstruction of justice if he was untruthful. See 13 id. at 20 (warning defense counsel that there could be issues relating to acceptance of 14 responsibility or an enhancement under 3E1.1 for obstruction of justice ). Judge Siragusa repeated 15 his warning on several subsequent occasions, sometimes renewing his concern that defendant s 16 denials under oath might result in an enhancement for obstruction of justice. See Sent g Hr g Tr. 17 June 2, 2005, at 4-5 (recalling prior comments on the danger of losing accept[ance] of 18 responsibility ); Sent g Hr g Tr. June 21, 2005, at 7 (noting defendant s denials under oath, and 19 commenting that [t]he Court wanted to impress upon the Defense that not only does the 20 Defendant risk losing acceptance of responsibility, but also could potentially face an enhancement 21 for obstruction of justice ); Sent g Hr g Tr. July 13, 2005, at 4 (paraphrasing U.S.S.G. § 3E1.1 22 app. n.1(a) and providing defendant with an opportunity to clarify his position ). 23 In response to defendant s initial denials, and pursuant to the plea agreement provision 24 permitting it to respond to defendant s inconsistent statements, see Plea Agreement at ¶ 18(b), the 25 government offered evidence of the search terms used to locate the BabyJ file and other files. See 26 Government Letter to Judge Siragusa, dated June 1, 2005, at 2-3 ( Gov t June 1 Letter ). The 27 government put forth this evidence based upon the fact that defendant provided inconsistent 28 statements and the government is entitled to exercise its rights to respond to those statements with 29 the information available to it. Id. at 3. 30 31 But defendant s position changed radically during the hearing (even though he never testified). The government was able to establish, without objection from defense counsel, that 5 1 defendant did have a BabyJ file on his computer and that that file was file-sharing-enabled. 2 Furthermore, as a result of testimony from a defense expert, the court noted during the hearing that 3 defendant had opened . . . a variant of BabyJ three separate times. Sent g Hr g Tr. July 13, 2005, 4 at 44. Moreover, defense counsel admitted that the evidence showed that defendant had viewed 5 one of the BabyJ videos. Thus, the government was able to confirm its account of how defendant 6 came to the government s attention and that defendant lied when he denied knowledge or use of 7 the BabyJ files. 8 9 Thereafter, defendant made a startling move not mentioned in the majority s recitation of the facts. In a letter to the district court dated July 13, 2005 one day before he was sentenced 10 defendant corrected the very statements that had generated the government s earlier responses. 11 The correction came after Judge Siragusa gave defendant an opportunity to clarify his position, 12 and after three prior warnings about the consequences of a false denial. Id. at 4. Defendant finally 13 accept[ed] the Court s invitation to correct his previous statements and retracted his contention 14 that he had never accessed a BabyJ file: Defendant acknowledges that during his earlier use of 15 the HP computer . . . , he may have used the search term Baby J and may have browsed several 16 files bearing the Baby J label. Def. July 13 Letter. In addition, defendant acknowledged that, 17 although he had previously denied admitting to the FBI that he recognized and downloaded the 18 BabyJ images, he may or may not have told agents that he recognized or downloaded this image. 19 Id. Defendant went on to say that he simply could no longer recall whether he had made the earlier 20 admission or not. Id. In short, after being confronted with evidence that seriously undercut his 21 previous factual assertions, and after repeated warnings from the court, defendant abandoned his 22 earlier denials. In essence, he conceded: (1) facts that made some of the more punitive 23 enhancements a certainty, and (2) that he had indeed been untruthful about relevant conduct. 24 25 Discussion 26 Judge Sack has thoughtfully outlined the law of this circuit with regard to claims of a breach 27 of plea agreement. I concur in his analysis and endorse his conclusion that, while the government s 28 initial statement that it was troubled by defendant s objections to the PSR was not a breach of the 6 1 plea agreement, the government reached the tipping point when it offered a thorough legal 2 analysis, unsolicited by the court, and concluded by noting its own skepticism as to whether the 3 defendant satisfied the requirements for an adjustment for acceptance of responsibility as set forth 4 by its analysis. See Maj. at 22. As Judge Sack points out, the government was free to argue that 5 defendant s factual assertions were incredible fabrications and that his legal arguments with regard 6 to the enhancements lacked merit. Id. But when the government moved beyond mere factual 7 analysis to offer its views on defendant s entitlement to a downward adjustment for acceptance of 8 responsibility, it crossed into an area it had agreed not to enter. 9 What relief, then, is due defendant in light of the government s breach and defendant s own 10 false denials? In the majority s view, the choice of remedies is binary either defendant is entitled 11 to withdrawal of his plea, or he is entitled to specific performance of the plea agreement.4 Id. at 26 12 (citing United States v. Lawlor, 168 F.3d 633, 638 (2d Cir. 1999)). As our case law implies, 13 however, another possibility arises from two of the guiding principles that our precedent teaches in 14 this area. First, contract law doctrine applies to plea agreements. See id. at 10 (citing United States 15 v. Riera, 298 F.3d 128, 133 (2d Cir. 2002)). Second, not every breach requires a remedy. Rather, 16 the need for a remedy depends on the nature of the broken promise and the facts of each particular 17 case. United States v. Vaval, 404 F.3d 144, 154 (2d Cir. 2005) (quoting United States v. Brody, 18 808 F.2d 944, 948 (2d Cir. 1986)). 19 The majority s view one I share is that the government breached before the sentencing 20 hearing. Judge Sack goes on to note that, even if (hypothetically) defendant had continued to deny 21 the relevant conduct in question at the sentencing hearing and the district court disbelieved him, 22 this would not be relevant to the breach of the plea agreement because the government s 23 sentencing letters were submitted prior to the sentencing hearing . . . . Maj. at 21 n.7. Indeed, 24 since the government s breach occurred before the hearing, a later finding that defendant was 25 untruthful after the government s initial breach without more would not render the breach 26 harmless. See Lippo v. Mobil Oil Corp., 776 F.2d 706, 724 (7th Cir. 1985) (Posner, J., dissenting 4 As the majority notes, defendant hopes for specific performance of the plea agreement, rather than a retraction of his plea. See Maj. at 26. 7 1 in part) ( [I]f it is too late to undo the harm, the attempt at cure will not excuse the breach; you 2 cannot cure a disease after the patient has died from it. ). In that scenario, the hearing would 3 simply have continued the prior injury caused by the government s implicit argument to the court 4 undermining defendant s acceptance of responsibility. In fact, however, the majority s 5 hypothetical never came to pass. 6 That defendant did not continue to maintain his denial is not clear from the majority s 7 incomplete recitation of the record. To know that defendant subsequently changed his position 8 fundamentally, a fuller review of the record is required.5 What that review reflects is the all- 9 important revelation prompted by the sentencing hearing that culminated in defendant s last- 10 minute recantation, showing that his earlier denials had been untruthful. In plain language, he 11 confirmed that he had lied from the very beginning. The belated retraction came after Judge 12 Siragusa s explicit warning of the cost of false denial, and after defense counsel s statement that 13 defendant was fully aware that he assumed the risk that his denials might have consequences. 14 Against this backdrop, Judge Siragusa focused on defendant s eleventh hour change of heart in 15 deciding the acceptance of responsibility issue.6 Sent g Hr g Tr. July 14, 2005, at 14. He could not 5 Questions arising from the government s alleged breach of a plea agreement, the majority agrees, must be carefully studied in context, United States v. Amico, 416 F.3d 163, 167 n.2 (2d Cir. 2005), and thus merit a fact-specific analysis, Maj. at 11-12. For this reason, careful consideration of the full record is all the more crucial in this case. 6 The Application Notes to the provision of the Sentencing Guidelines governing acceptance of responsibility state (unsurprisingly) that [i]n determining whether a defendant qualifies for an acceptance of responsibility adjustment, appropriate considerations include, but are not limited to, among other things: (a) truthfully admitting the conduct comprising the offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct). Note that a defendant is not required to volunteer, or affirmatively admit, relevant conduct beyond the offense of conviction in order to obtain a reduction under subsection (a). A defendant may remain silent in respect to relevant conduct beyond the offense of conviction without affecting his ability to obtain a reduction under this subsection. However, a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility . . . . 8 1 have done otherwise, for that was the only evidence remaining before the court relevant to the 2 acceptance of responsibility determination.7 3 This circuit has eschewed a harmless error or lack of prejudice defense to the breach of 4 a plea agreement by the government, finding the absence of cognizable harm to a defendant 5 irrelevant to the need for remedy. Vaval, 404 F.3d at 154 ( Whether a breach by sentence 6 advocacy caused prejudice in the form of an increased sentence is irrelevant to the need for a 7 remedy. ). We rightly noted in Vaval that in order to preserve the integrity of plea bargaining 8 procedures and public confidence in the criminal justice system, a defendant is generally entitled to 9 the enforcement of a plea agreement without showing a tangible harm resulting from a breach. Id. 10 at 155.8 I readily agree. Generally, we will not accept the premise that once the government has 11 abandoned a plea agreement promise the sentencing bell can be unrung. Maj. at 26 (citing Riera, 12 298 F.3d at 134). The stain from a breach is not easily removed; the impression upon the district 13 court lingers, as does the impact upon a defendant (who, at resentencing, may well receive the 14 same sentence as a result). Thus, silencing the government and mandating an acceptance of 15 responsibility determination before a different district judge is sometimes justified in order to 16 preserve the integrity of plea bargaining procedures and public confidence that federal criminal 17 justice is not a one-sided affair. Vaval, 404 F.3d at 155. U.S.S.G. § 3E1.1 app. n.1(a) (2004) (emphasis added). The majority makes the curious statement that I have failed to identify a clause in the plea agreement that required Griffin to be scrupulously honest in his statements to the district court. Maj. at 24. I cannot agree with the majority s obvious implication that the plea agreement did not obligate Griffin to make factual representations to the court that were offered in good faith and were truthful. Were that the case, it would mark a quite radical departure from the contract law s historical requirement of good faith. It would also create a perverse incentive for defendants to lie at no great cost, thereby undermining our plea bargaining system s calculus of rewards and risks. 7 Defendant does not contest the factual basis for that finding. 8 Vaval recognized two exceptions to the need for a remedy curative performance by the government and de minimis injury arising from the breach. Vaval, 404 F.3d at 155-56. Neither is applicable here. 9 1 But harmless error is not the hook upon which I hang my vote in this case. As with all 2 contractual arrangements, each party has an obligation to operate in good faith, and to rigorously 3 adhere to the obligations outlined in the contract and the law of the governing jurisdiction, from the 4 contract s inception. [A] defendant is not entitled to the benefit of his bargain if he does not 5 himself comply with the terms of the agreement. United States v. Cruz-Mercado, 360 F.3d 30, 39 6 (1st Cir. 2004). As we have said before, applying contract law principles to agreements between 7 the government and a defendant in the criminal setting, [t]here is . . . an implied obligation of 8 good faith and fair dealing in every contract. United States v. Khan, 920 F.2d 1100, 1105 (2d Cir. 9 1990) (citations omitted); see also United States v. Rexach, 896 F.2d 710, 714 (2d Cir. 1990) 10 (citing Filner v. Shapiro, 633 F.2d 139, 143 (2d Cir. 1980); Restatement (Second) of Contracts § 11 205); Restatement (Second) of Contracts § 205 ( Every contract imposes upon each party a duty of 12 good faith and fair dealing in its performance and its enforcement. ). I am therefore hard pressed 13 to award defendant a remand in light of his acknowledged untruthfulness long before the 14 government s breach. Defendant asks us to hold that the government be held to strict compliance 15 with the plea agreement while ignoring his own admitted deviation from it.9 Judicial economy, the 16 integrity of the plea bargaining process, and the public s confidence in the federal criminal justice 17 system compel us, in my view, to deny that request. 18 Returning Mr. Griffin to district court for one more bite at the apple will produce an 19 interesting scenario. After his dramatic reversal at the sentencing hearing that was compelled by 20 testimony directly contradicting his initial denials of responsibility, defendant no longer embraces 21 the facts that served as the basis for his earlier objections to the PSR s enhancements calculation.10 22 See Def. March 24 Objections at 4-5 (objecting to the PSR, and denying that he: (1) knew of the 9 Although the majority is aware of my view that the government did, indeed, breach, see Maj. at 23-24, they nevertheless insist that I am attempting to excuse[] the government s noncompliance, or to pardon it. Id. at 25. While I am not willing to either excuse or pardon the government s breach, I likewise believe that the government s noncompliance cannot be examined in a vacuum, without reference to Griffin s own noncompliance. 10 Nor does defendant argue on appeal that the court s assessment of those enhancements is not supported by the record. 10 1 BabyJ file, (2) admitted such to the FBI, or (3) downloaded the BabyJ file). Moreover, he can no 2 longer argue, as he attempted to do in his objections to the PSR, that the only conduct relevant to 3 his sentence is that contained in the plea agreement.11 No doubt, defendant will attempt to make 4 the same argument at resentencing that he made to the district court when he was originally 5 sentenced that he is entitled to a reduction in his sentence for acceptance of responsibility 6 because that acceptance, however late in coming, was genuine. 7 The majority concedes that Judge Siragusa conducted an unusually lengthy and complex 8 hearing in this case with extraordinary diligence and, furthermore, acknowledges that [t]he 9 extent to which this exemplary effort will be wasted is a matter of no small concern. Maj. at 27. I 10 share the same concern. Indeed, I see no need to repeat the exercise.12 11 Finally, the majority takes the position that the remaining issues defendant raises need not be 12 addressed on this round of appeal as the record could use clarification on the trafficking issue one 13 of first impression in this circuit and because there have been some significant legislative 14 developments in the interim with regard to discovery of computer hard drives that contain child 15 pornography. Id. at 27-31. Had my view of the case carried the day, I would have been willing to 11 That argument was, of course, specious to begin with, as relevant conduct is determined by the Sentencing Guidelines to include, not merely conduct averted to in the four corners of a plea agreement, but other conduct related to the charge as well. See U.S.S.G. § 1B1.3(a) (permitting a sentence to be determined on the basis of . . . all acts and omissions . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense (emphasis added)); see also U.S.S.G. § 1B1.4 ( In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U.S.C. § 3661. ). 12 As we have recently restated in a different context, reassignment to another judge may be advisable in order to avoid an exercise in futility (in which) the Court is merely marching up the hill only to march right down again. United States v. Hirliman, 503 F.3d 212, 216 (2d Cir. 2007) (quoting United States v. Robin, 553 F.2d 8, 11 (2d Cir. 1977) (en banc)). Although the majority s order here is issued to a different district court, this will not likely save the resentencing judge from an unnecessary march of his own. Indeed, there is every reason to suspect that the resentencing judge will engage in the same exercise in futility that would have awaited Judge Siragusa, had we instead remanded directly to him. 11 1 resolve all of the issues that remain and affirm the judgment of conviction. As I find myself in the 2 minority, and because my resolution of these other issues would not impact today s result, I refrain 3 from elaborating as to how I would face them. That effort I defer to another panel and to another 4 day, confident that it is not far off. 5 6 7 Conclusion For the reasons offered above, I respectfully dissent. 8 9 10 11 12 13 14 15 16 12
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
