United States v. Frostman
| Decision Date | 24 October 2016 |
| Docket Number | Criminal No. 4:16cr55 |
| Parties | UNITED STATES of America, v. Jerome Paul FROSTMAN, Defendant. |
| Court | U.S. District Court — Eastern District of Virginia |
Megan Cowles, United States Attorney Office-Newport News, Newport News, VA, for United States of America.
Andrew William Grindrod, Office of the Federal Public Defender-Norfolk, Norfolk, VA, for Jerome Paul Frostman.
This matter is before the Court after issuance of an Order requiring Defendant to show cause why the Court should not reject his guilty plea and Plea Agreement, and vacate its prior finding of guilt. ECF No. 38. For the following reasons, the Court orders the parties to schedule a hearing to address the Court's conclusions in this Opinion and Order.
On May 16, 2016, Defendant, Jerome Paul Frostman, was charged in a criminal complaint with one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). ECF No. 1. On June 14, 2016, a grand jury of this Court returned a four count indictment charging Defendant with one count of distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(2) ; and three counts of receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). ECF Nos. 20, 21. Defendant entered a plea of not guilty at his arraignment. ECF No. 28. The Court was later advised that Defendant had entered into a plea agreement with the Government and wished to change his plea to guilty as to Count Two, distribution of child pornography. Defendant appeared before the Court for a guilty plea hearing as to Count Two on August 8, 2016. ECF No. 33. During the guilty plea hearing, the following exchanges, as well as many others not directly relevant here, took place between the Court and Defendant:
The Court then asked Defense counsel the following questions to which he responded:
After the Defendant pled guilty, the following exchange took place between the Court and Defendant:
Aug. 8, 2016 Plea Tr. 13–15, 18–21, 24, ECF No. 44. After this exchange and further discussion, the Court accepted the plea agreement, accepted the guilty plea, and made a finding of guilt, having previously indicated that it would give further thought to Defense counsel's responses to the two questions at issue. Id. at 19, 21–23, 25.
As a result of the responses provided by Defense counsel at such hearing, and upon further reflection, the Court was left in doubt as to whether Defendant pled guilty voluntarily and with an appropriate understanding of his trial and constitutional rights, and the waiver of such rights that results upon entry of a guilty plea. Therefore, on August 16, 2016, the Court issued an Order requiring Defendant to (1) show cause why the Court should not reject his guilty plea and the Plea Agreement and vacate its finding of guilt; and (2) explain, as necessary, why Defense counsel could not affirm or deny the existence of potential meritorious defenses or constitutional claims related to the charged offenses. ECF No. 38 (hereinafter "Show Cause Order").
On August 26, 2016, Defense counsel filed a Response to the Court's Show Cause Order. ECF No. 39. In his Response, Defense counsel asserts that his responses to the questions posed during the guilty plea hearing, regarding the existence of a potential meritorious defense or constitutional violation, are protected by the attorney opinion work product doctrine. Defense counsel further asserts that such answers are not necessary for the Court to comply with Federal Rule of Criminal Procedure 11, to find that Defendant entered his guilty plea voluntarily and with appropriate knowledge of his constitutional rights and the waiver of such rights, and to accept Defendant's guilty plea or plea agreement. Id. Nonetheless, Defense counsel requests that, to the extent the Court requires such questions be answered or is inclined to reject Defendant's guilty plea if such questions are not answered, the Court reopen the guilty plea proceedings to allow Defense counsel to waive the work product protections and substantively answer the Court's questions regarding the existence of potential meritorious defenses and constitutional violations.
On September 2, 2016, the Government filed its Response to Defendant's submission and the Court's Show Cause Order. ECF No. 40. The Government argues that the Court's inquiry during the guilty plea hearing in this matter did not infringe on work product protection, and Defense counsel's failure to answer the Court's questions regarding the existence of a potential meritorious defense or constitutional violation casts serious doubt on the voluntary nature of the guilty plea and Defendant's knowing waiver of his constitutional rights. Id. The Government, therefore, requests that the Court reject Defendant's guilty plea and Plea Agreement, and vacate its finding of guilt. Further, on September 2, 2016, the Government filed a "Motion for Inquiry into Potential Conflict of Interest or Breakdown in Communication," seeking to determine whether new Defense counsel should be appointed to represent Defendant. ECF No. 41. The Government asserts that Defense counsel's responses during the guilty plea hearing, and Defense counsel's response to the Court's Show Cause Order, suggest a possible conflict of interest or a breakdown of communication between Defendant and Defense counsel. Accordingly, the Government requests that the Court inquire into such circumstances and advise Defendant of his right to independent counsel. Id.
On September 8, 2016, Defense counsel filed a consolidated Reply to the Court's Show Cause Order and the Government's Motion. ECF No. 43. The Government did not file a Reply in further support of its Motion to Inquire. Thus, both the Court's Show Cause Order and the Government's Motion are ripe for review....
To continue reading
Request your trial