U.S. v. Modafferi, CRIM. 99-00333 SOM.
| Decision Date | 15 August 2000 |
| Docket Number | No. CRIM. 99-00333 SOM.,CRIM. 99-00333 SOM. |
| Citation | 112 F.Supp.2d 1192 |
| Parties | UNITED STATES of America, Plaintiff, v. Joy MODAFFERI, Defendant. |
| Court | Hawaii Supreme Court |
Thomas Muehleck, Asst. U.S. Atty., Honolulu, HI, for U.S.
Alan Ellis Sausalito, CA, Myles S. Breiner, Honolulu, HI, for Joy Modafferi, Defendant.
ORDER DENYING MOTION TO REJECT PLEA AGREEMENT AND/OR TO VOID DEFENDANT'S WAIVER OF APPELLATE RIGHTS
Defendant Joy Modafferi ("Modafferi") invokes three different procedures in seeking to escape from her plea agreement ("Plea Agreement"). She asks this court to reject her Plea Agreement (but retain her guilty plea), to allow her to withdraw from that agreement (again while retaining her guilty plea), or to void the part of the Plea Agreement in which she limits her rights of appeal.
This court denies Modaferri's request that this court reject the Plea Agreement. Modaferri's request is based on her conclusion that she received little in return for that agreement. Rejection of a plea agreement is not the proper procedural means for Modaferri to obtain the relief she seeks. This court usually makes its determination as to whether to accept or reject a plea agreement at the time of sentencing. In making that determination, the court assumes all parties want the agreement to be accepted, but the court examines whether acceptance is in the public's interest, not whether the defendant made a "bad deal."
The court also denies Modaferri's request that she be allowed to withdraw from the Plea Agreement. Modaferri has not met her burden of establishing that her counsel was ineffective and that she consequently has a "fair and just reason" for withdrawing from her Plea Agreement.
Finally, the court denies Modaferri's request to void the waiver of her appellate rights in her Plea Agreement. Modaferri has not demonstrated any legal justification sufficient to void any part of her Plea Agreement.
On July 15, 1999, the grand jury returned an eight-count Indictment, alleging that Modafferi had violated 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 by knowingly and intentionally distributing various controlled substances. Modafferi and the government entered into a Memorandum of Plea Agreement on December 2, 1999, in which Modaferri agreed, inter alia, to plead guilty to Counts 1 and 8 of the Indictment and to waive her right to file any appeal other than one challenging a sentence that reflected an upward departure from the Sentencing Guidelines or challenging the effectiveness of her counsel. In exchange, the government agreed, inter alia, to move to dismiss Counts 2 through 7 of the Indictment after sentencing. Modaferri pled guilty to Counts 1 and 8 pursuant to the Plea Agreement on December 2, 1999, and the court accepted the guilty plea but deferred a decision on whether to accept or reject the Plea Agreement.
The dismissal of Counts 2 through 7 would have eliminated mandatory special assessments of $100 that would have been imposed on Modafferi at sentencing for each of the six counts that the government agreed to move to dismiss. It would also have left Modaferri with a record of having been convicted of only two rather than eight counts of the Indictment. The dismissal of Counts 2 through 7, however would not have affected Modaferri's periods of confinement and supervised release, as the conduct alleged in Counts 2 through 7 would have been considered and grouped with the conduct alleged in Counts 1 and 8 for sentencing purposes.
Modaferri has not yet been sentenced. She has, however, reviewed the Presentence Investigation Report ("PSR"), which reflects a total offense level calculation that includes a "gun bump." Modaferri exchanged drugs for a gun. Transcript of Proceedings (December 2, 1999) at 19 (); Memorandum of Plea Agreement (December 2, 1999) at 4 (). In the PSR, the total offense level was enhanced two levels in light of Modaferri's use of a gun during the commission of a drug offense, and Modaferri was deemed ineligible for the safety valve given the use of a gun.1
Modaferri asks this court for three things. She asks this court to reject the Plea Agreement. She requests that this court allow her to withdraw from that agreement. Finally, she asks that this court void her waiver of her rights to appeal. In a letter to this court, Modafferi clarified the relief that she is seeking on this motion by stating that she
does not seek to withdraw her guilty plea. On the contrary, she wishes to plead open to the entire indictment. She does not wish to withdraw her guilty plea and go to trial. She merely does not want to waive her appellate rights ... [regarding] the so-called "gun-bump" under U.S.S.G. § 2D1.1(b)(1).
See Letter from Alan Ellis to this court (July 28, 2000).
Modaferri's first argument is that this court should reject the Plea Agreement. When, as here, the parties agree that certain charges will be dismissed in return for a defendant's pleading guilty to other charges, Rule 11(e)(2) of the Federal Rules of Criminal Procedure allows this court to accept or reject a plea agreement, or defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. It is within the discretion of this court to reject or accept any plea agreement. See United States v. Fagan, 996 F.2d 1009, 1014 (9th Cir.1993). That discretion revolves around the court's determination of whether a plea agreement is in the public's interest. For example, a sentencing court has the power to reject a plea agreement if it determines that the agreement does not adequately reflect the seriousness of the actual offense behavior or that accepting the agreement will undermine the statutory purposes of sentencing or the Sentencing Guidelines. United States v. Banuelos-Rodriguez, 215 F.3d 969, 975 (9th Cir.2000) (en banc) (quoting U.S.S.G. § 6B1.2(a)); United States v. Miller, 722 F.2d 562, 563 (9th Cir.1983) ().
The court is not convinced that, in seeking rejection of the Plea Agreement Modaferri is following correct procedure. Rejection or acceptance of a Plea Agreement presupposes that both parties seek acceptance of the agreement. Rejection is based on the court's independent assessment of factors outside what the parties want. Modaferri is not arguing that the court should reject the Plea Agreement because it is not in the public's interest. Instead, Modaferri is arguing that this court should reject the Plea Agreement because, in essence, it amounts to a bad deal for her. The rejection procedure was not designed to help a defendant escape a bad deal. Accordingly, Modaferri's request that this court reject the Plea Agreement is denied.
Modaferri's second argument is that this court should allow her to withdraw from the Plea Agreement. Modaferri's request is procedurally correct but substantively flawed.
The Ninth Circuit has not articulated the standard that a court should apply in analyzing whether a defendant who wishes to retain her guilty plea should be allowed to withdraw from her plea agreement. Rule 32(e) of the Federal Rules of Criminal Procedure provides that a defendant may withdraw a guilty plea for a "fair and just reason." This court concludes that the same standard applies when a defendant seeks to withdraw from a plea agreement rather than from a guilty plea.2
When the court has accepted a defendant's guilty plea, but the court has yet to accept that defendant's plea agreement, that defendant may withdraw the guilty plea (as opposed to the plea agreement) if he or she can demonstrate a "fair and just reason" under Rule 32(e) of the Federal Rules of Criminal Procedure.3 United States v. Hyde, 520 U.S. 670, 671, 117 S.Ct. 1630, 137 L.Ed.2d 935 (1997). Here, unlike in Hyde, Modaferri is not seeking to withdraw the guilty plea the court has already accepted, but instead to withdraw from only her Plea Agreement.
In United States v. Savage, 978 F.2d 1136, 1138 (9th Cir.1992), cert. denied, 507 U.S. 997, 113 S.Ct. 1613, 123 L.Ed.2d 174 (1993), the Ninth Circuit stated broadly that "neither the defendant nor the government is bound by a plea agreement until it is approved by the court." That broad statement, however, appears to have been premised on the assumption that the court had also not yet accepted any guilty plea. Indeed, the Ninth Circuit has quoted Savage to that effect. See United States v. Alvarez-Tautimez, 160 F.3d 573, 576 (9th Cir.1998) () (quoting Savage, 978 F.2d at 1137).
The Seventh Circuit is the only court that, following Hyde, has addressed the issue of what standard applies when a party seeks to withdraw only from a plea agreement, not from a guilty plea that has been accepted. In United States v. Standiford, 148 F.3d 864, 868 (7th Cir.1998), the court said, "We believe that it is appropriate to employ the standards of Federal Rule of Criminal Procedure 32(e) to determine whether Mr. Standiford ought to be allowed to withdraw from his plea agreement." In Standiford, the...
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