United States v. Olson

• Decision Date: 22 February 2021
• Docket Number: No. 19-16591,19-16591
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory J. OLSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

988 F.3d 1158

UNITED STATES of America, Plaintiff-Appellee,

v.Gregory J. OLSON, Defendant-Appellant.

No. 19-16591

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 18, 2020 San Francisco, California

Filed February 22, 2021

PER CURIAM:

The Sixth Amendment guarantees the accused "[i]n all criminal prosecutions" the right to "the Assistance of Counsel for his defence." Traditionally, this has been interpreted to mean that the right to counsel attaches when a criminal defendant is formally charged. See Kirby v. Illinois , 406 U.S. 682, 688–89, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972) ; United States v. Hayes , 231 F.3d 663, 669–70 (9th Cir. 2000) (en banc). The right to counsel means not merely a right to the services of an attorney, but a right to "reasonably effective" assistance of counsel. Strickland v. Washington , 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Effective assistance generally requires a defendant's counsel to "inform a defendant of the advantages and disadvantages of a plea agreement." Libretti v. United States , 516 U.S. 29, 50, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995).

This 28 U.S.C. § 2255 motion asks us to vacate the movant's sentence on the basis of a claim of ineffective assistance of counsel during plea negotiations that took place before the movant was formally accused of any crime. It represents what may be a growing practice of extensive pre-indictment dealings between prosecutors and their investigation targets, who may or may not be represented by counsel. The movant asks us to reexamine the traditional approach to attachment of the Sixth Amendment right to counsel, as set forth in Kirby and Hayes , in order to recognize that the right to counsel may attach before there has been a formal charge. This panel is not in a position to do so, however, because we cannot overrule binding circuit precedent. Miller v. Gammie , 335 F.3d 889, 899 (9th Cir. 2003). We further conclude that this is not an appropriate case to ask for an en banc court to consider overruling Hayes , since this movant was appointed counsel, and the record indicates that the movant's counsel was not ineffective.

Factual Background

Gregory Olson pleaded guilty to wire fraud and income tax evasion in 2017 after being charged with defrauding his church and its members of over one million dollars between 2006 and 2010. Olson had been serving as a church treasurer and property chairman during that time.

In June 2012, federal prosecutors sent Olson a "target letter" advising him that he was a target of a federal grand jury investigation. The letter invited Olson to "have [his] attorney contact" the U.S. Attorney's office if he was "interested in resolving this matter short of an Indictment." Advising Olson to contact a court clerk for the District Court of Nevada if he could not afford an attorney, the letter warned that "the matter w[ould] proceed in the ordinary course of prosecution" unless prosecutors heard from him within a month.

Olson contacted the court clerk as instructed, and Brenda Weksler, then an assistant federal public defender, was assigned to represent him. Shortly thereafter, prosecutors conveyed a plea offer to his counsel wherein Olson would plead guilty only to tax evasion and the parties would jointly recommend a sentence at the lower end of the guideline range. Defense counsel's handwritten notes suggest that accepting this offer would have led to a recommended sentence of approximately 30 months.

Communications between prosecutors and defense counsel broke down, however, after prosecutors, over defense counsel's objections, refused to share discovery or interview notes. After some contentious back-and-forth, defense counsel communicated that Olson was willing to plead to a misdemeanor resulting in probation, but prosecutors responded by withdrawing the offer. One week later, a grand jury indicted Olson for wire fraud and tax evasion.

In May 2016, Olson, now represented by different counsel, entered into a plea agreement wherein he pleaded guilty to both wire fraud and tax evasion. The district court sentenced Olson to 48 months in custody and 3 years of supervised release. Olson appealed to this Court, which dismissed under his plea agreement's appeal waiver provisions.

In October 2018, Olson filed a pro se motion to vacate his sentence under 28 U.S.C. § 2255. In addition to the ineffectiveness of counsel claim at issue here, the motion claimed that prosecutors violated his Fifth Amendment due process rights by refusing to provide inculpatory and exculpatory information during pre-indictment plea negotiations in 2012. The district court ruled that Olson waived his right to bring the latter claim in his 2016 plea agreement, and that claim is not before us.

Olson's sole claim on appeal is that defense counsel was ineffective in handling prosecutors' 2012 plea offer. In his motion to vacate, Olson declared under penalty of perjury that his public defender in 2012 "did not make contact with [him] and discuss the offer, or provide professional guidance [on] the terms and foreseeable consequences of accepting or rejecting the offer." Olson claimed that his counsel's failure to "effectively communicat[e] the writ[t]en offer ... caused the denial of [his] Constitutional right to review and accept or reject the offer."

The district court ordered Olson's pre-indictment counsel to respond to the claim. In a sworn declaration, she stated that she communicated the pre-indictment offer to Olson on the same day it was offered, conveyed that prosecutors had not shared any reports or evidence with her, and explained to Olson that he could face much higher sentencing exposure if indicted. She attached her contemporaneous handwritten notes, which include sentencing calculations under the United States Federal Sentencing Guidelines and document her conversations with prosecutors and with Olson himself. Olson's own memorandum in support of his motion attached contemporaneous emails between defense counsel and prosecutors. The emails explicitly set forth not only that defense counsel communicated the pre-indictment offer to Olson but also that Olson responded by asking her to pass along "his desire to plead to a misdemeanor that will result in probation." The emails also show that, during the time in question, defense counsel found it "impossible" to counsel Olson as to the nature or sufficiency of the government's evidence against him because of prosecutors' refusal to share any discovery. "[B]ecause of my ethical duties," she explained in an email to the prosecutors, "I cannot counsel my client to entertain entering a plea of guilty without having seen any of the evidence involved in this case."

The district court denied Olson's motion to vacate his conviction. The district court concluded that, under binding precedent, "Olson did not have a Sixth Amendment right to effective counsel during the pre-indictment plea negotiation." The district court did grant a certificate of appealability, however, after noting that four judges on the Sixth Circuit had dissented in a similar case, Turner v. United States , 885 F.3d 949, 977–84 (6th Cir. 2018) (en banc) (Stranch, J., dissenting). We appointed counsel for the appeal, and Olson now asks us to reconsider the bright-line rule adopted in Hayes . We conclude that this panel is bound by Hayes and that this is not an appropriate case to reconsider it.

We therefore affirm. See Miller , 335 F.3d at 899.

Discussion

In Kirby v. Illinois , 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), a plurality of the Supreme Court described the Court's past cases as "firmly establish[ing] that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him." Id. at 688, 92 S.Ct. 1877. The plurality in Kirby cited nine previous Sixth Amendment cases and described them as "all ... involv[ing] points of time at or after the initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 689, 92 S.Ct. 1877. In subsequent cases, majorities of the Supreme Court have confirmed that "the right to counsel does not attach until the initiation of adversary judicial proceedings." United States v. Gouveia , 467 U.S. 180, 188, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) ; Moran v. Burbine , 475 U.S. 412, 431, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986).

Circuits have not agreed, however, on whether the Kirby line of cases mandates a "bright-line rule" holding that the right to counsel never attaches until formal charges have been initiated "by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby , 406 U.S. at 689, 92 S.Ct. 1877. Compare, e.g. , United States v. Waldon , 363 F.3d 1103, 1112 n.3 (11th Cir. 2004) (rejecting ineffective assistance claim "out-of-hand, because the Sixth Amendment right to counsel simply does not attach until the initiation of formal adversary proceedings."), with Matteo v. Superintendent, SCI Albion , 171 F.3d 877, 892 (3d Cir. 1999) ("The right also may attach at earlier stages ....").

In United States v. Hayes , 231 F.3d 663 (9th Cir. 2000) (en banc), this circuit adopted the bright-line rule. Id. at 675 ; see also United States v. Percy , 250 F.3d 720, 725 (9th Cir. 2001) ("This Circuit adheres to the bright-line rule that the Sixth Amendment's right to counsel attaches upon the initiation of formal charges.") (citing Hayes ). In Hayes , the prosecutors kept their tactical options open by declining to bring formal charges against the defendant. 231 F.3d at 666–69. By doing so, prosecutors were able to use a cooperating witness to record an incriminating conversation with the defendant without his counsel present. Id. At the same time, prosecutors detained and deposed other material witnesses under the district court's authority—an option...