U.S. v. Redondo-Lemos

• Decision Date: 11 May 1992
• Docket Number: REDONDO-LEMO,D,No. 90-10430,90-10430
• Citation: 955 F.2d 1296
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Gilbertoefendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1296

955 F.2d 1296

60 USLW 2558

UNITED STATES of America, Plaintiff-Appellant, v. Gilberto REDONDO-LEMOS, Defendant-Appellee.

No. 90-10430.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Sept. 9, 1991.

Decided Feb. 5, 1992.

As Amended on Denial of Rehearing

and Rehearing En Banc

May 11, 1992.

Linda A. Akers, U.S. Atty., D. Ariz., Phoenix, Ariz., and Joseph C. Wyderko, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellant.

Fernando X. Gaxiola, Tucson, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before CANBY, and KOZINSKI, Circuit Judges, and WM. FREMMING NIELSEN, District Judge. ^*

KOZINSKI, Circuit Judge.

Defendant Redondo-Lemos pled guilty to an offense which carries a statutory minimum sentence of 5 years. The district court nevertheless sentenced him to 18 months, based on a finding that the Office of the United States Attorney acted arbitrarily and discriminated on the basis of gender in plea bargaining with this defendant. We must decide whether the district court may so second-guess the United States Attorney's exercise of prosecutorial discretion. We answer unequivocally: yes and no.

Facts

Gilberto Redondo-Lemos was caught transporting 695 pounds of marijuana into the United States from Mexico and was charged for possession with the intent to distribute marijuana in violation of 21 USC § 841(a)(1). In exchange for a guilty plea, the government promised to recommend that the district court impose only the mandatory minimum sentence of 5 years' imprisonment. See 21 USC § 841(b)(1)(B).

The government fulfilled its part of the deal and the defendant seemed resigned to his fate. The district court, however, expressed doubt whether the United States Attorney's Office was treating Redondo-Lemos the same as other similarly situated defendants. The court then sentenced Redondo-Lemos to 18 months.

The district court subsequently explained its reasoning in a memorandum. To impose a harsher sentence on Redondo-Lemos would deny him equal protection and due process, the court concluded, because the United States Attorney for the District of Arizona was enforcing the drug laws in a manner that was both quirky and favorable to female defendants. The United States appeals.

Discussion

I

The government argues initially that the district court had no authority to second-guess Redondo-Lemos's plea bargain because the defendant did not challenge it. In the government's view, district judges in this situation may act only in response to an objection raised by the defendant; courts step beyond their proper role--and transgress the bounds of seemliness--when they undertake a sua sponte inquiry into the methods and motives of the prosecutor.

We emphatically reject this argument. "The task of safeguarding the rights of criminal defendants ultimately rests with the experienced men and women who preside in our district courts." United States v. Balough, 820 F.2d 1485, 1491 (9th Cir.1987). That a district judge's responsibility does not end when he rules on objections and motions raised by the parties is recognized by the doctrine of plain error, which embodies the notion that there are some errors that are so prejudicial and obvious the district judges must remedy them even without an objection. ¹

Where a district judge detects what he suspects may be an error seriously affecting the rights of a criminal defendant, he must address the problem. This duty exists at all times, but never more so than when the problem is such that it is unlikely to be detected by an individual defendant. The matter that gave the district judge pause here--his suspicion that the United States Attorney was engaging in unconstitutionally selective prosecution--can rarely be identified based on a single case. A district judge who perceives a pattern of invidious enforcement has ample authority under the court's supervisory powers to raise the matter sua sponte. See United States v. Simpson, 927 F.2d 1088, 1090-91 (9th Cir.1991). While we disapprove of the manner in which the district judge handled the issue after he identified the problem, see pages 1302-03 infra, we commend his alertness and initiative in addressing a practice he had reason to believe impaired the fundamental fairness of the proceedings before him.

II

The district court's sentencing order purports to give the defendant the benefit of a plea bargain he never made. The court selected this as a remedy for what it viewed as an unconstitutional abuse of discretion by prosecutors who were improperly discriminating among similarly situated defendants, giving some a break that others were denied. The court identified two independent defects in the United States Attorney's charging and plea bargaining decisions. First, the court determined that among defendants who were equally culpable--a class consisting of drug runners (or mules) whose only involvement in the illegal enterprise was to haul drugs across the border for a relatively small sum--the Office of the United States Attorney arbitrarily selected those with whom it made sweetheart deals and those others with whom it dealt far more harshly. Second, the court concluded that the government was much more likely to give female mules the benefit of a favorable plea bargain than male mules.

Mules seldom have a viable defense, generally having been corralled red-hoofed with large quantities of illegal drugs at or near the border. Because serious drug trafficking crimes often carry mandatory minimum sentences, the crime with which the mules are charged normally determines the punishment they will suffer. As a practical matter, then, the charging decision winds up being the only decision that matters. In Judge Marquez's view, so sweeping a power over the life and liberty of individual defendants may not be exercised by the United States Attorney in an arbitrary or invidious manner.

A. We agree with the district court's conclusion that governmental decisions which have a profound effect on the life and freedom of individuals must conform to the constitutional requirement of due process. See Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951, 957-58 (9th Cir.1991). Given the significance of the prosecutor's charging and plea bargaining decisions, it would offend common notions of justice to have them made on the basis of a dart throw, a coin toss or some other arbitrary or capricious process. See Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F.2d 1398, 1407-10 (9th Cir.1989), cert. denied, 494 U.S. 1016, 110 S.Ct. 1317, 108 L.Ed.2d 493 (1990). It seems self-evident that decisions of such profound significance cannot be placed beyond constitutional constraints.

In most circumstances, of course, to say that there is a constitutional right is also to say that there is a judicially enforceable remedy. See Azul Pacifico, Inc. v. City of Los Angeles, 948 F.2d 575, 586-87 (9th Cir.1991). But not always. ² The judicial branch is not the only one charged with enforcing the Constitution of the United States. The President and Congress, and all of the subordinate employees within their respective branches, have a solemn responsibility to comply with the Constitution in the performance of their assigned functions. This responsibility is derived directly from the Constitution and is reinforced by the oath of office administered to every government employee before he enters on duty. 5 USC § 3331. When no judicial remedy is available to enforce constitutional strictures, we must rely on the diligence and good faith of the officials of the other branches to avoid constitutional violations.

Prosecutorial charging and plea bargaining decisions are particularly ill-suited for broad judicial oversight. In the first place, they involve exercises of judgment and discretion that are often difficult to articulate in a manner suitable for judicial evaluation. See Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir.1990) (cautioning against judicial review of executive decisions that are based on considerations beyond judicial expertise), cert. denied, --- U.S. ----, 111 S.Ct. 1104, 113 L.Ed.2d 214 (1991). Such decisions are normally made as a result of careful professional judgment as to the strength of the evidence, the availability of resources, the visibility of the crime and the likely deterrent effect on the particular defendant and others similarly situated. ³ Even were it able to collect, understand and balance all of these factors, a court would find it nearly impossible to lay down guidelines to be followed by prosecutors in future cases. We would be left with prosecutors not knowing when to prosecute and judges not having time to judge.

Assuming these problems of guidance and understanding could be overcome--and it is unlikely that they could be--there is an added constitutional consideration based on the peculiar relationship between the Office of the United States Attorney and the federal district courts: The United States is necessarily a party to every criminal case presented to a district court. It would raise serious separation of powers questions--as well as a host of virtually insurmountable practical problems--for the district court to inquire into and supervise the inner workings of the United States Attorney's Office. Cf. Simpson, 927 F.2d at 1091 ("The doctrine of separation of powers requires judicial respect for the independence of the prosecutor.").

The very breadth of the inquiry--whether the prosecutor's discretion was exercised in an arbitrary or capricious fashion--would require that the government divulge minute details about the process by which scores, perhaps hundreds, of charging decisions are made. The court would also have to consider the validity of various rationales advanced for particular charging decisions, which would enmesh it deeply into the policies, practices and procedures of the United States...