United States District Court, Eastern District of New York
May 9, 2002
UNITED STATES, PLAINTIFFS,
SPEED JOYEROS, S.A,; ARGENTO VIVO, S.A.; YARDENA HEBRONI A/K/A YARDENA HEVRONI; AND ELIAHU MIZRAHI, DEFENDANTS.
The opinion of the court was delivered by: Jack B. Weinstein, Senior District Court Judge.
The questions posed are whether acceptance of a plea of guilty and a
departure downward in sentencing were appropriate in this substantial
money laundering case. Serious factual and legal issues are presented by
evidence of the defendant's long pretrial incarceration under onerous
conditions, the government's control over funding for her counsel and the
threat of much greater punishment without a plea.
This case illustrates the danger of due process violations by intensive
pressure on defendants to plead guilty because of lengthy pretrial
incarcerations and the offer of advantageous deals for lesser terms of
imprisonment. The stick and carrot — largely controlled by prosecutors
— produces a danger of excessive coercion of a defendant and undue
pressures on defense counsel to avoid trial. It requires particularly
close supervision by the court to ensure voluntariness of the plea. In
evaluating the need for sentencing departures the unusual tensions some
defendants face while in custody awaiting trial also necessitate
The virtual elimination of federal criminal trials, substituting
administrative decisions not to prosecute or pleas of guilty, has
substantially changed our federal criminal law system. Increased
prosecutorial discretion and power have raised the percent of guilty pleas
from 86% of all federal convictions in 1971 to 95% in 2001. Discretion
not to prosecute is widely exercised. Enhancement of control of
sentencing by the prosecutor as a result of sentencing guidelines and
minimum sentences has increased the government's power to coerce
defendants. There has been a change from the paradigmatic concept of
investigation and accusation by the government of almost all persons
believed to have committed crimes, trial by jury with a strong role for
defense counsel, and discretion in sentencing by the court, to a system
sharply reducing the role of defense
counsel, the jury and the judge, and
whatever protections they can afford a defendant.
Defendant Hebroni and codefendants were charged with using jewelry
businesses in Panama to launder some $10,000,000 of drug money. The
prosecution was controlled by the Narcotics and Dangerous Drugs section of
the United States Department of Justice, from Washington, D.C., rather
than by the district's United States Attorney.
After lengthy pre-trial proceedings, drawn out over a period of more
than a year and a half largely because of failure of the government to
produce the huge amount of documents seized by the government of Panama;
successive grants of bail by the trial court which were overturned on
appeal; and strong government opposition to payment of defense counsel
from defendant's known assets, all of which had been seized; defendant
and the government entered into a plea agreement. It required defendant
to be incarcerated for a term of somewhere between 33 and 41 months under
the guidelines, and to give up all her assets. Without such an
agreement, upon conviction she would have faced a prison sentence of 151
to 188 months and possibly more, based on a level of 34 or higher. See
U.S. Sentencing Guidelines Manual §§ 2S1.1(b)(1) & 2S1.1(b)(2)(I)
(2001) (hereinafter "Guidelines Manual").
The court entertained doubts about 1) defendant's capacity and desire
to sign the plea agreement and 2) a possible conflict of interest of
defense counsel in recommending a plea. Accordingly, the defendant was
ordered to undergo a psychiatric evaluation to determine her fitness.
Additional defense counsel was appointed to ensure that defendant's
rights were fully protected and that she was being appropriately
Ultimately defendant's plea was accepted by the court. While defendant
agreed not to seek a downward departure, the agreement did not limit the
court's independent authority to consider such a departure. On the basis
of the presentence report, briefs by both sides and sentencing hearings,
the court departed downward 2 levels and sentenced the defendant to a
total of 27 months in prison and forfeiture of all her personal and
business assets, a fine, and a term of supervised release of three
years, during which time defendant may not engage in the jewelry or rare
metals business, nor conduct any business in Panama.
Defendant Hebroni is a citizen of Israel domiciled in Panama. She is
forty-nine years old and recently widowed. Her immediate family is her
6-year-old son, now a resident of Israel, who was conceived after many
years of medical intervention. Defendant appears to be an intelligent
woman, though physically frail.
The court was presented with no admissible evidence. From the
contentions of government counsel and concessions by defendant, the facts
can be briefly summarized as follows:
Co-defendant Speed Joyeros, S.A., is a jewelry business fully owned by
defendant Hebroni. Speed Joyeros, S.A., engaged in the sale of gold and
silver jewelry and precious metals to many retail and wholesale customers
throughout Central and South America and in Europe and the Middle East.
Defendant's business was among the most successful jewelry businesses in
the Colon, Panama Free Zone, with revenues of $155 million in 1998 and
$105 million in 1999.
She received cash, checks and electronic money transfers in a money
laundering scheme. A primary modus was to sell jewelry to drug lords,
knowing that it was being paid for with drug money, thus allowing them to
convert dirty money into glistening clean jewelry. Financial
institutions in the United States and other countries were employed in
Co-defendant Argento Vivo S.A. is a corporation controlled by
defendant's brother and a named co-defendant, Eliahu Mizrahi, who has not
been found. Argento Vivo, S.A. is a wholesale and retail jewelry dealer
engaged in the sale of silver jewelry to retail stores located throughout
Central and South America.
B. Procedural History
On September 22, 2000, Hebroni was arrested and detained on money
laundering charges. She had voluntarily come to this country from Panama
to defend against forfeiture proceedings commenced here against millions
of dollars of her assets, mainly in Panama. Some $900,000 were in
American banks. The indictment charged the defendant with five counts of
washing and conspiring to wash drug money. 18 U.S.C. § 1956, 1957.
A superceding indictment was filed more than a year later, on December
13, 2001, clarifying the government's legal theory.
On October 10, 2000, defendant pled not guilty. After various pretrial
motions, defendant sought bail. On July 2, 2001, bail was denied by the
judge previously assigned to the case.
The case lagged, with large numbers of the basic business records from
Panama unavailable in this country. All the documents used by defendants
in their Panamanian businesses had been seized by the government of
Panama. Despite repeated attempts by the defendant to retrieve and
examine these many thousands of papers in preparation for trial, they had
still not been fully examined by the defense up to the time of plea.
After new bail hearings, on December 12, 2001, defendant was ordered
released if she could satisfy specified conditions. The magistrate
judge's hearings determined that pledged property fit the conditions set
by the court. It was the court's view that the bail and other conditions
would ensure that defendant could prepare for trial and that she would be
present at trial. These reasons were stated orally on the record.
Transcript of Dec. 12, 2001, pp. 39-56. The court was particularly
concerned that without bailed release there was a serious possibility
that defendant would not be able to properly defend herself. Her defense
as well as the prosecution was to be based on the documents seized from
her place of business by Panamanian authorities. They had not yet been
provided to her. In addition, her incarceration limited her ability to
work with her attorneys, accountants, and the necessary calculators and
computers required to analyze the extensive business records in this
complex case. Trial was set for March 11, 2002, giving defendant just
under three months to prepare.
The government appealed from the order of December 12, 2001 granting
release on conditions. Release was stayed by the court of appeals. By
its decision of January 8, 2002, it vacated the district court's order.
The district court was directed to consider "the determinative question
specified by § 3142 — whether any combination of conditions
would reasonably assure Hebroni's appearance as required." See United
States v. Hebroni, 25 Fed.Appx. 85, 86 (2d Cir. 2002). Following remand,
the district court held two additional evidentiary hearings.
Important events bearing on defendant's ability to defend had
occurred. First, over strong government objection, the court ordered
the release of sufficient of the defendants' funds to pay her attorneys for
work done to that time.
Second, the government began to make available to defendant numerous
boxes of papers. Since she was unable to study these documents except
while she was detained, the court made available a room in the
courthouse. She was brought to and from prison each day to view her
business writings under the guard of the marshals. This procedure was
burdensome since defendant was given limited space and she did not have
the necessary equipment and assistance. Trial would have required
introduction and analysis of thousands of documents, tracing transactions
running through institutions in many countries.
Third, defendant suffered physically. She submitted evidence
indicating that she was being held in the open in cold weather for
lengthy periods each day with inadequate clothing awaiting transportation
between jail and court, and was not being provided with appropriate
food. The court observed her physical and emotional deterioration. On
February 1, 2002, the court ordered that she be provided with adequate
clothing. On February 11, 2002, the court ordered that she be provided
with appropriate food. Despite these measures, continued suffering of
the defendant was noted.
Conditions of incarceration of the defendant and the nature of the case
raised doubts that due process could be served without some form of
release. The defendant had to be able to prepare for her impending
trial. In the court's view the bail terms were sufficient to assure her
presence at trial. The district court again granted bail on February 12,
2002 with detailed findings as required by the court of appeals. See
United States v. Hebroni, 187 F. Supp.2d 75 (E.D.N.Y. 2002). The
conditions were stringent. Defendant was to be detained under house
arrest; monitored by Pretrial Services with an electronic bracelet at her
own cost; subject to telephone monitoring; subject to a curfew; guarded
at all times if the government wished; required to place her passport in
government custody; and required to post bail of $10,000,000 guaranteed
by substantial real property.
At the time bail was granted this second time, the court noted that
defendant was only a month away from trial, so that further detention
would seriously hinder her ability to present a defense. Delays in
release on bail worked in the government's favor since it shortened the
time when defendant and her counsel could analyze the evidence in an
The government appealed from the district court's February 12, 2002
order granting release on bail. The court of appeals stayed the order.
Ultimately the court of appeals, on March 13, 2002, reversed the district
court's order "for the reasons stated in the government's brief." See
United States v. Hebroni, 2002 WL 391179 (2d Cir. Slip Op. Mar. 13,
As the defense's difficulty in adequately preparing for trial under
these conditions became more evident, and the date of trial grew closer,
the parties notified the court that they wished to enter into a plea
agreement. Defendant agreed to plead guilty to count one of the
indictment. See 18 U.S.C. § 1956(h). Count one contains allegations
of millions of dollars in money laundering, but the parties agreed that
the guilty plea would be limited to $474,000 of specific money laundering
events. Defendant agreed "not to contest that the Government would have
proven beyond a reasonable doubt at trial in this case that the funds
identified in Count One of the indictment were derived from drug
trafficking." Plea paragraph 5(b).
The agreement incorporated contemplated terms of a sentence for the
defendant. As already noted, the prospective guideline was at level 20,
carrying a range of imprisonment of 33 to 41 months; it included a
downward adjustment for acceptance of responsibility. Defendant agreed
not to seek a downward departure or to appeal her sentence if it was not
greater than 41 months. She also agreed to forfeit all of her own
ownership of assets in the defendant companies (estimated at some
$6,000,000) which had been seized by Panamanian authorities, as well as
the remaining more than $600,0000 of assets in a United States bank. The
indicted corporations also pleaded guilty as part of the deal.
A hearing was held on March 1, 2002 to review the plea. For reasons
set out orally at that time, and suggested in further detail in this
memorandum, the court ordered that the defendant be examined by a
physician to assist in determining if her plea was voluntary. The
resulting report of Dr. Sanford L. Drob was illuminating.
Dr. Drob noted that Ms. Hebroni had suffered physically during her
incarceration, especially in recent months when she was shuttled back and
forth from jail to court daily to review papers. He also pointed out
that Ms. Hebroni was exceedingly anxious to be reunited with her infant
son. She told Dr. Drob that the reason she had agreed to a plea was to
be reunited with her son sooner. She was, according to the Doctor, under
the erroneous impression that she would be sentenced to time served. She
stated, according to his report, that she believed that "you can't win"
at trial. Dr. Drob concluded that defendant would have been far less
likely to accept a plea agreement if she had been allowed to leave jail
on bail while awaiting trial.
Dr. Drob noted that "several factors" were involved in defendant's
decision to plead. The primary reason was concern for her son. She had
suffered unusual stress as a result of separation from him — her
only child and the result of years of fertility treatments. Since she
was widowed, her son depended on her as his only parent; she had already
had to explain an absence of 18 months. She also felt physically worn
down and ill-equipped to undergo a lengthy trial.
Since the report indicated that defendant had an erroneous
understanding of the plea agreement — which did not, as she
reportedly thought, require immediate release — the court ordered
defense counsel to make clear to their client the effect of the
agreement. The court appointed supplemental counsel to ensure that
defendant's rights were adequately protected. It was concerned that the
lack of defendant's assets to pay legal and other costs of a trial might
have produced an inclination of defense counsel to reduce their own
obligations and potential financial risk were there a full trial, by
recommending a plea.
On March 20, 2002, the court held a second hearing on the plea
agreement. All parties, including supplemental counsel, were present.
Defense counsel stated that defendant was aware of the effect of the plea
agreement and was capable of making the agreement. Based on this
affirmation; the medical report; an oral report of supplemental defense
counsel that defendant understood the plea and that her counsel's advice
was based solely on her welfare; and close questioning of the defendant
by the court, the defendant's plea was accepted. See Transcript of Mar.
20, 2002 at 35-37.
The government requested an adjournment of sentence to consider
potential bases for a downward departure outlined by the court. Both
sides submitted briefs on
departure issues, the government contesting the court's power to depart
A presentence report was presented by Probation. The report was
significant in that it calculated defendant's offense level differently
than the plea agreement. The presentence report indicated that
defendant's adjusted offense level would be 24, rather than 20, requiring
a minimum sentence of 51 months rather than the 33 months set out in the
A. Conflicts of Interest
Attorneys are subject to strict rules designed to prevent them from
having conflicts of interest with their clients. The American Bar
Association Model Code of Professional Responsibility demands that a
lawyer "shall not accept [or continue in] employment if the exercise of
his professional judgment on behalf of his client will be or reasonably
may be affected by his own financial, business, property, or personal
interests." ABA Model Code DR 5-101. This principle is one of the
pillars of our judicial system — that an attorney should not have
any reservation in giving unalloyed support to the client he is
representing. A lawyer constrained by a conflict of interest between
attorney and client, or between two or more clients, may be required to
withdraw as counsel. ABA Model Rule 1.16. The right to counsel free
from conflicts of interest has been enforced by the Supreme Court. See
Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 55 L.Ed.2d 426
(1978) (right to effective counsel includes right to attorney free from
conflicts of interest).
Forfeiture cases may be particularly amenable to conflicts of
interest. In these cases, all of a defendant's assets may be seized,
preventing the attorney from recovering any fee if the defendant loses.
The attorney has a financial incentive to ensure that fees are paid, and
thus an incentive to advise a defendant in a manner likely to protect
fees — a position which may diverge from the best interests of the
All forfeiture cases do not raise conflicts per se. See, e.g., United
States v. Monsanto, 491 U.S. 600, 615, 109 S.Ct. 2657, 105 L.Ed.2d 512
(1989) (finding no coercion in forfeiture case). Coercion must be
measured by the way the government exercises its power to seize assets.
See, e.g., United States v. Marquez, 909 F.2d 738 (2d Cir. 1990) ("Any
attempt to use the prospect of getting the defendant's lawyer paid from
seized funds as a bargaining chip to obtain a concession from the
defendant poses the potential for a serious conflict of interest."); cf.
Cuyler v. Sullivan, 446 U.S. 335, 343-45, 100 S.Ct. 1708, 64 L.Ed.2d 333
(1980) (states may not conduct trials in a way that unconstitutionally
impairs a defendant's right to effective counsel).
B. Plea Bargains
1. Plea Bargaining and Coercion
The Federal Rules of Criminal Procedure allow a defendant to "plead
guilty, not guilty, or nolo contendere." F.R.Cr.P. 11(a)(1). Any plea
of guilty must be shown to the court to be "voluntary":
The court shall not accept a plea of guilty or nolo
contendere without first, by addressing the defendant
personally in open court, determining that the plea is
voluntary and not the result of force or threats or of
promises apart from a plea agreement. The court shall
also inquire as to whether the defendant's willingness
to plead guilty or nolo contendere results from prior
discussions between the attorney for the government
and the defendant or the defendant's attorney.
F.R.Cr.P. 11(d). While the rule warns of coercion as a "result of force
or threats or of promises apart from a plea agreement," the court's
obligation to determine "voluntariness" is not limited by these
examples. The word "voluntary" is itself laden with ambiguity; it is an
antonym of "coerced" which may be due to various forms of non-force or
non-threats. The second sentence starting with the words, "the court
shall also" inquire about prior "discussions," suggests that
inappropriate coercion may exist even where there is no "force or threats
or . . . promises apart from a plea agreement."
There is no single clear definition of "voluntary" for all legal
purposes. Even in the criminal-law-plea context, it is unclear whether
"voluntary" means freedom from any coercion or whether it means freedom
only from "wrongful" or "undue" coercion. A pristine rule of "no
coercion" would preclude many plea agreements. Requiring plea
negotiations to be free from "any coercion" would contradict the basic
notions of bargaining. Contract law theory suggests that no bargaining
process is completely devoid of coercion in some form. The problem is one
of discerning what level of coercion is so inappropriate as to render a
plea agreement invalid.
The seventh edition of Black's Law Dictionary's definition of
"voluntary" as something done "unconstrained by interference . . . not
compelled by outside influence," is not helpful in determining whether a
guilty plea was "voluntary" since a defendant is always "influenced" by
many factors including family demands and other social pressures as well
as by the hope of minimizing punishment. To conclude that a plea
agreement is made "unconstrained by interference" or "not compelled by
outside influence" would be to ignore the reality that such an agreement
is a bargain made between a relatively powerless defendant and a
prosecutor who can exercise a great deal of influence over the accused's
In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747
(1970), the Supreme Court explained that a plea agreement is based upon
mutual advantages gained by both the prosecutor and the defendant. If
the defendant is "fully aware of the direct consequences, including the
actual value of any commitments made to him by the court, prosecutor, or
his own counsel" the plea may be considered "voluntary." Id. at 755.
Courts recognize that "a great many [defendants are] no doubt motivated
at least in part by the hope or assurance of a lesser penalty than might
be imposed if there were a guilty verdict after a trial to judge or
jury." Id. at 752 (emphasis added).
It is sometimes said that a plea is not "voluntary" if it is obtained
through coercion that is "overbearing" to the defendant's will. Brady,
397 U.S. at 750. As noted in Miller v. Angliker, 848 F.2d 1312 (2d Cir.
1988), a plea is valid "if it is not the product of actual or threatened
physical harm, mental coercion overbearing the defendant's will, or the
defendant's sheer inability to weigh his options rationally." The words
"overbearing" and "sheer inability" imply that some degree of "coercion"
does not negate the validity of a guilty plea. Rather, forbidden is only
"coercion" that is so overbearing to the defendant's will that he or she
cannot make a rational decision. Undue coercion may be "mental as well
as physical" and may be the result of "subtle pressures" by the
government on a defendant. Garrity v. New Jersey, 385 U.S. 493, 495, 87
S.Ct. 616, 17 L.Ed.2d 562 (1967).
This flexible approach contradicts the absolute stand against coercion
expressed by some courts. See United States v. Bell, 776 F.2d 965 (11th
Cir. 1985) (explaining
the core requirements to a valid plea, including
that the "plea must be free from coercion"); United States v. Dayton,
604 F.2d 931, 934 (5th Cir. 1979) (stating that a guilty plea must be
free from coercion); United States ex rel. Siebold v. Reincke,
362 F.2d 592, 593 (2d Cir. 1966) ("A conviction will not be sustained if
it rests upon a plea of guilty which is the result of coercion."). To be
avoided, said one court, is "any semblance of coercion." Euziere v.
United States, 249 F.2d 293, 295 (10th Cir. 1957) ("Fundamental standards
of procedure in criminal cases require that a plea of guilty to the
charge or charges contained in an indictment or information be entered
freely, voluntarily, and without any semblance of coercion.").
One court of appeals has realistically declared that a plea is
involuntary only if it is obtained through "wrongful coercion." United
States v. Hernandez, 203 F.3d 614, 619 (9th Cir. 2000). This implies
that some coercion is implicit in the plea bargaining process and only
"wrongful coercion" — however defined — invalidates a plea.
That there are acceptable types and degrees of coercion is suggested by a
holding that only some activities, such as judges' participation in plea
negotiations, are "inherently coercive." See United States v. Barrett,
982 F.2d 193 (6th Cir. 1992), citing United States ex rel. Elkins v.
Gilligan, 256 F. Supp. 244, 254 (S.D.N.Y. 1966) (judges participation in
plea negotiations is prohibited by Rule 11 of the Federal Rules of
An illegally coerced plea may be analogized to an illegally obtained
confession. Some degree of coercion is present in many admissible
confessions. One English court summed up the common law rule as
follows: "A free and voluntary confession is deserving of the highest
credit, because it is presumed to flow from the strongest sense of
guilt . . . but a confession forced from the mind by the flattery of
hope, or by the torture of fear, comes in so questionable a shape . . .
that no credit ought to be given to it; and therefore it is rejected."
King v. Warickshall, 1 Leach 262, 263-264, 168 Eng. Rep. 234, 235
(K.B.1783). The due process test of voluntariness in a confession requires
the court to consider "the totality of all the surrounding circumstances
— both the characteristics of the accused and the details of the
interrogation . . . [and] whether the defendant's will was overborne."
Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147
L.Ed.2d 405 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973)). Factors to be considered in determining whether the defendant
rationally decided to confess include age, education, intelligence,
length of detention and questioning, and physical and mental
characteristics. See United States v. Hernandez, 893 F. Supp. 932,
[893 F. Supp. 952], 962 (D.Kan. 1995), aff'd, United States v. Hernandez,
103 F.3d 145 (10th Cir. 1996). Even wholly
ratiocinatory economic creatures fully capable of adequately weighing
the pros and cons of a prospective decision will take into account
advantages and disadvantages offered by a prosecutor — in other words
their coercive power. The carrot can be no less coercive than the stick
— both impose pressure on decision. Cf. F.R.Cr.P. 11 (plea must be
"voluntary and not the result of force or threats or of promises")
In addressing confessions as well as pleas, "voluntary" can not be
defined by freedom from "coercion," rather than by acknowledging
appropriate levels of coercion. Determining whether a confession or plea
is the product of illegitimate coercion requires consideration of the
state of mind of the defendant as well as the techniques used for
extracting agreement. Cf. Miller v. Fenton, 474 U.S. 104, 116, 106
S.Ct. 445, 88 L.Ed.2d 405 (1985) ("The admissibility of a confession
turns as much on whether the techniques for extracting the statements, as
applied to this suspect, are compatible with a system that presumes
innocence and assures that a conviction will not be secured by
inquisitorial means as on whether the defendant's will was in fact
overborne."). More "coercion" may be allowable in the form of bargained
for benefits in pleas than would be allowed in confessions because the
plea is developed with counsel's advice and with time to reflect and
formalize the decision.
A closer equivalence to "plea bargains" than confessions is suggested
by contract law. Cf. Brady, supra, 397 U.S. at 752 (plea bargains
involve "mutuality of advantage"). The law recognizes that some degree
of coercion exists in contract formation, but that the level of duress or
threat may not be such that a party is "unfairly" (however defined)
induced to enter into an agreement.
Coercion is inherent in the bargaining process
itself. . . . Every contract involves some kind of
threat. . . . The problem is one of singling out those
threats that amount to abuse of the bargaining
process. . . . The rules on duress . . . allow the
injured party to undo the transaction by avoiding it.
They seek to restore the parties to the positions in
which they found themselves before they made the
E. Allan Farnsworth, Contracts § 4.9 (Little, Brown & Co. 1982). Yet
there is no equivalence of a bargain between defendant and prosecutor and
between entrepreneurs. For example, a party to a contract generally may
not induce another party to agree by threat of criminal prosecution,
whereas the nature of a plea negotiation is that not consenting
necessarily results in further criminal prosecution. See Jamestown
Farmers Elevator, Inc. v. General, 552 F.2d 1285, 1291 (8th Cir. 1977)
("threats to institute criminal or regulatory proceedings . . . made in
order to secure another's consent to an undeserved bargain for one's own
private benefit, may be sufficiently wrongful to constitute duress");
Farnsworth, supra, at § 4.20; United States v. Bethlehem Steel
Corp., 315 U.S. 289, 300 (1942) ("The word duress implies feebleness on
one side, overpowering strength on the other."); see also N. Am. Rayon
Corp. v. Comm'r of Internal Revenue, 12 F.3d 583, 589 (6th Cir. 1993)
("Undue influence exists where a relationship of control exists between
the contracting parties, and the stronger party influences the weaker
party in a way that destroys the weaker party's free will and substitutes
for it the will of the stronger party."); Commentary to § 175 of the
Restatement (Second) of Contracts (a threat that would "arouse such fear
as precludes a party from exercising free will and judgment or . . .
[would] induce assent on the part of a brave man or a man of ordinary
firmness" is voidable).
In the context of plea negotiations, a defendant is likely to be in
such a state of fear that he or she might in a civil action be considered
"bereft of quality of mind essential for making a contract." Rissman v.
Rissman, 213 F.3d 381 (7th Cir. 2000) (citation omitted). A prosecutor's
offer suggests "take this offer or I will use every resource at the
government's disposal to deprive you of your liberty for as long as
possible." This type of coercion is backed by the Federal Sentencing
Guidelines. See Guidelines Manual § 3E1.1(b)(2) (2001) (defendant's
sentence may be decreased by up to 3 levels by "timely notifying
authorities of his intention to enter a plea of guilty, thereby
permitting the government to avoid preparing for trial and permitting the
court to allocate its resources efficiently").
"Coercion" and "voluntary" are, in short, vague terms of limited value
in deciding whether to accept a plea. The critical question is whether
the defendant was in a position to rationally weigh the advantages and
disadvantages of the plea and whether a reasonable person in that
position might make the same decision. This is a rather imprecise
standard. In addition, certain tactics are considered incompatible with
the etiquette of criminal justice, including overt threats and physical
abuse. In accepting the plea the court must try to be as fully cognizant
as practicable of the circumstances leading to the plea and of the nature
and the background of the particular defendant, including age,
education, social class, family pressures, and other relevant factors
that might have affected the decision. The defense attorney's position
is critical for he or she provides defendant with the crutch of cool
"Coercion" within limits is an available tool for prosecutors. It is
appropriate so long as it does not shock the judicial conscience and does
not depart substantially from commonly held beliefs of what is
appropriate pressure for the government to apply to supposed miscreants.
"Voluntary" under these circumstances means a capacity of the defendant
and his counsel under the circumstances to rationally and fairly weigh
the benefits of the plea against risks of not pleading. If "coerced" is
too strong a word, one that leaves members of the justice system
uncomfortable, many pleas are, to put the matter more politely, "induced"
by strong promises of great value (e.g., a lesser term of incarceration,
or life rather than death) — offers that, to paraphrase a famous
movie line, most defendants cannot refuse.
2. Competency to Plead
Voluntariness is comprised of at least two separate elements. First,
the plea may not be "coerced" in the sense already described. "The
agents of the State may not produce a [guilty] plea by actual or
threatened physical harm or by mental coercion overbearing the will of
the defendant." Brady v. United States, 397 U.S. 742, 750, 90 S.Ct.
1463, 25 L.Ed.2d 747 (1970). Coercion is a fact-intensive inquiry which
will depend on the particular case.
Second, a defendant must be competent to plead. Saddler v. United
States, 531 F.2d 83, 85 (2d Cir. 1976). "If the judge, in response to
his Rule 11 inquiries or because of information received from other
sources, has reasonable grounds to doubt the defendant's competence, he
must refuse to accept the plea or defer acceptance pending a request for
an examination of the defendant's mental capacity." Id. at 86.
In making these two inquiries, courts are instructed to err on the side
of caution and use "the `utmost solicitude of which courts are capable in
canvassing the matter with the accused to make sure [the defendant] has a
full understanding of what the plea connotes and of its consequence.'"
Id. at 85-86, citing Boykin v. Alabama, 395 U.S. 238
, 243-44, 89 S.Ct.
1709, 23 L.Ed.2d 274 (1969).
There is a lively debate among scholars over whether plea bargaining is
systemically unreasonably coercive in nature. Compare, e.g., John H.
Langbein, Torture and Plea Bargaining, 46 U. Chi. L. Rev. 3, 12-19 (1978)
(plea bargaining is similar to medieval European torture), and Stephen J.
Schulhofer, Plea Bargaining as Disaster, 101 Yale L.J. 1979, 1980 (1992)
(plea bargaining should be abolished), with Frank H. Easterbrook, Plea
Bargaining as Compromise, 101 Yale L.J. 1969, 1978 (1992) (plea
bargaining is an efficient compromise and maintains defendant autonomy).
Langbein's view, while perhaps overly dramatic, is relevant to the
present inquiry. He notes that:
Like the Europeans of distant centuries who did employ
[torture], we make it terribly costly for an accused
to claim his right to the constitutional safeguard of
trial. We threaten him with a materially increased
sanction if he avails himself of his right and is
thereafter convicted. This sentencing differential is
what makes plea bargaining coercive. There is, of
course, a difference between having your limbs crushed
if you refuse to confess, or suffering some extra
years of imprisonment if you refuse to confess, but
the difference is of degree, not kind. Plea
bargaining, like torture, is coercive.
Langbein at 12-13 (emphasis added). Langbein further notes the irony in
requiring that plea bargains be labeled "voluntary" and "not coerced"
before they can be approved by a court. "The plea agreement is the
source of the coercion," he notes, "and already embodies the
involuntariness." Id. at 14. His critique is rejected by the American
system of criminal justice as it has evolved; it is now firmly bottomed
on coercively induced pleas.
3. Changes in the Criminal Justice System
When the Sentencing Guidelines were introduced, some judges expressed
doubts about their constitutionality and fairness. See generally United
States v. Yu, 1993 WL 497985 (S.D.N.Y. Nov. 30, 1993) (Sweet, J.) (noting
problems when guidelines were adopted, including the resignation of one
district judge, findings of unconstitutionality by other judges, and a
poll indicating that 92% of district judges opposed mandatory
One concern of some judges was that if it made no difference to the
sentence under the guidelines whether a defendant was tried, or pleaded
guilty, then the new process would lead to a substantial increase in the
number of criminal trials. Defendants would, it was suggested, have no
incentive to plead, since the sentence would be the same under the
In fact, just the opposite result occurred. The number of criminal
jury trials has radically decreased since the guidelines were
implemented. There are now relatively few criminal trials. In the
meantime, the number of guilty pleas has increased dramatically. Cf.
H.R. Rep. No. 93-1508 (1974), reprinted in 1974 U.S.C.CAN 7401, 7450
(hereinafter Speedy Trial Act History) (Letter from Attorney General
opposing passage of the Speedy Trial Act, arguing that the legislation
"would result in a decrease in the number of guilty pleas, since
defendants would request jury trials with greater frequency"; in fact, as
the statistics below show, the opposite occurred).
One explanation for this largely unforeseen result is based on a series
of related factors: The government often works out deals to avoid
prosecution or drop more serious charges; 5K.1 letters (which are issued,
in accordance with U.S.S.G. § 5K.1 for defendants who cooperate with
the government, and which grant a judge broad discretion to depart
downward) are issued to many cooperating defendants; the government often
does not contest findings of fact essential to lower sentences, such as
"cooperation" or "minor role," which can favor defendants; the government
does not appeal many downward departures; and the government readily
agrees to "safety valve" provisions (guidelines and statutes allowing for
sentence reductions for certain defendants who cooperate with
government, and for making inapplicable harsh statutory minimums). All
of these benefits are available to the pleading defendant rather than to
one taking the case to trial. Between
safety valve and other
reductions, defendants can often reduce their guidelines calculation by 6
or more levels, in effect cutting many sentences in half or more. See
Guidelines Manual at 10 ("A change of six levels roughly doubles the
sentence irrespective of the level at which one starts."). The message
to defendants is clear: "Don't insist on your right to trial." Since the
sentencing judges' ability to impose a sentence other than the one the
government insists on under the guidelines is sharply reduced, the
government's power to induce pleas has been magnified. An officially
published 1994 study by the Sentencing Commission, authored by a
Sentencing Commissioner and a highly regarded law school professor, noted
some of these dangers:
Guideline factor bargaining remains common, especially
with regard to the "role in the offense" guidelines
provision. The common pattern is for the AUSA to
agree to recommend (or not to oppose) a reduction for
minor or minimal role when the facts do not support
the recommendation. . . . The AUSA's interpretation
tends to be accepted by the court even if it is
factually dubious. . . . An important vehicle for
circumvention [of the guidelines] is the § 5K1.1
"substantial assistance" motion, which often is made
on behalf of "sympathetic" defendants who have offered
either minimal assistance, assistance that did not
bear fruit in the way that § 5K requires, or no
assistance at all.
Ilene H. Nagel and Steven J Schulhofer, Plea Negotiations Under the
Federal Sentencing Guidelines: An Empirical Examination of the
Post-Mistretta Experience 22, 23 (1994) (hereinafter "Plea Negotiations
The power of the prosecutor is particularly enhanced in connection with
informers. If the government is satisfied that a putative defendant has
made early admissions, particularly if accompanied by a promise to
testify against other persons in the criminal enterprise, the government
can provide a 5K.1 letter that permits probation for even the most
heinous crimes accompanied by a waiver of any minimum sentence. See
18 U.S.C. § 3553(e) (court may impose sentence less than mandatory
minimum in cases of substantial assistance); Guidelines Manual § 5K1.1,
Application Note 1 (waiver of mandatory minimum sentence appropriate in
some cases of assistance under § 5K1). The pressure on the informer
to shade the truth to assist the government in obtaining convictions of
others is enormous. Cf., e.g., Rothstein v. Carreire, 41 F. Supp.2d 381
(E.D.N.Y. 1999) (case against false informant). While the government does
all it can to ensure against false accusations, the use of informers does
place greater pressure on informed against defendants to plead guilty.
The court must guard particularly against pleas coerced in such
situations. (In the instant case there was a strong hint of former
employees of defendant informing on her.)
Statistics available from the United States Sentencing Commission
illustrate this trend to avoid the guidelines in order to induce pleas.
The number of sentences within guideline range has dropped from 82% in
1989 to 64% in 2000. See Percent of Offenders Receiving Each Type of
Departure 1996-2000, available online at
http://www.ussc.gov/ANNRPT/2000/fig-g.pdf, and Percent of Offenders
Receiving Each Type of Departure 1989-1996, available online at
http://www.ussc.gov/annrpt/1996/fig-g.pdf. (The figures contained in
these tables are included as Appendix 1 of this memorandum; they include
a small number of upward departures which are not displayed on the graph
because of space constraints). The majority of departures are granted
for substantial assistance to authorities. Though the number of other
has risen in recent years, it is still less than the number of
departures for substantial assistance to authorities. Since substantial
assistance departures require a letter from the government, the
government has control over whether or not to grant a defendant the
single most effective tool for receiving a sentence below the guideline
range. No calculation is available of those "within range" only because
the charge has been reduced or the application has been manipulated or
interpreted to avoid an apparent departure. See discussion below.
There may, of course, be other explanations for the reduction in the
relative number of trials besides utilization of the guidelines by the
prosecutors to induce pleas — perhaps prosecutions are now those
commenced only in the clearest cases of guilt, or perhaps now the mix of
cases, emphasizing drug violations or illegal entry into the United
States, has increased the ease of successful prosecution.
At the same time that it essentially controls the sentence, the
government can often block bail. In some cases this opposition is
justified (such as for instances for many foreign nationals who import
drugs and are likely to flee). Still, the combination of pretrial
incarceration, plus higher periods of potential incarceration after
conviction, when compared with a relatively easy plea and a known
relatively short period of incarceration, create intense pressure on a
defendant to plead. In most cases, this pressure does not result in a
serious concern that the innocent are being found guilty.
The 1994 Sentencing Commission study on plea negotiations conceded the
existence of problems. Its study stated that "prosecutors exercise a
considerable degree of sentencing discretion through charging and
bargaining decisions. This discretion, if unchecked, has the potential
to re-create the very disparities that the Sentencing Reform Act was
intended to alleviate." Plea Negotiations Study at 6. The report
further noted that "circumvention" of the guidelines occurs, through
bargaining by prosecutors in charging defendants. Id. at 7-8. It stated
bluntly, "our research uncovered unequivocal evidence that bargaining and
charging practices undercut the sentencing guidelines. There is simply
no way to deny the existence of this problem in every jurisdiction we
studied." Id. at 17-18 (emphasis in original). Inappropriate use of
minor role reductions and § 5K1 letters was found to lead to
circumvention of the guidelines. Id. at 22-23. "The most important
vehicle for guidelines evasion, post-Mistretta, is charge bargaining
which leads to the dismissal
of readily provable counts," id. at 23;
prosecutors seeking cooperation from defendants sometimes use charge
bargaining rather than § 5K1 reductions since § 5K1 "offers
inadequate certainty [of reduced sentence]." Id. at 30.
Statistics from the Administrative Office of the Federal Courts (some
of which are available online through J-Net, at
http://jnet/library/judfact/table3-5.htm) seem to indicate that this
trend, towards guilty pleas and away from trials, was already underway
before the implementation of the guidelines, but that the guidelines have
accelerated it. They show that, between 1971 and 2001, the number of
criminal defendants convicted in federal district courts rose from 78% of
total defendants charged in 1971, and 75% of those charged in the next
three years, to 90% of defendants charged in 2001. (Not all of the 10%
of those charged but not convicted were acquitted. Dismissal may have
taken place for a variety of reasons.)
This ratio of convicted defendants to charged defendants has been
driven up in part by large increases in the relative number of guilty
pleas. The number of defendants convicted by guilty or nolo contendere
plea has increased from 27,544 in 1971 to 64,402 in 2001.
The total number of defendants convicted after jury trial dropped from
3,143 in 1971 (and an average of 3745 for the years 1971-75) to 2,294 in
2001. Significantly, the years immediately following the guidelines saw
an increase in the number of defendants convicted after jury trials, from
4,191 in 1988, to 4,640 in 1989, to 4,851 in 1990, to over 5000 each in
1991 and 1992. Since 1992, the number of defendants convicted after jury
trials has decreased in every year except one, and the ten years of
decreases have halved the number of defendants convicted after jury
Overall, the percent of convictions resulting from guilty plea has
increased from 86% in 1971 (27,544 pleas in a total of 32,103
convictions) to 95% in 2001 (64,402 pleas in a total of 67,731
The statistics for the district court for the Eastern District of New
York are similar. In 1971, the Eastern District had a total of 147
(15.5% of total) defendants convicted after jury trials, and 28 (3%)
convicted after bench trials, with 773 (81.5% of total) convicted by
plea. By 2001, there were only 48 defendants convicted by jury trial and
a single defendant convicted by bench trial (3.5% of total) versus 1336
(96.5% of total) convicted by plea.
These numbers should not surprise anyone familiar with the current
criminal law system. They are available in part in the Sentencing
Commission's Sourcebook. See 2000 Sourcebook of Federal Sentencing
Statistics, Figure C ("Guilty Pleas and Trial Rates"). (The Sourcebook's
numbers for percent of pleas differ slightly from those provided by the
Accounting office, varying as much 0.5%; the reason for this slight
variation is unknown to the court.)
Numbers of pleas and trials for state courts, while not readily
available, are likely to be similar to those for Federal courts. Cf.
Plea Negotiations Study at 11 (in Minnesota, "the power of prosecutors
unquestionably increased" after state sentencing guidelines were
adopted; much of the shift is due to increased "charge bargaining" over
the nature of charges); id. at 12-13 (adoption of Pennsylvania guidelines
increased conviction rate; "plea practices in urban areas were
The Advisory Committee Note to Rule 11 of the Federal Rules of Criminal
Procedure discusses the issue in passing:
Although reliable statistical information is limited,
one recent estimate indicated that guilty pleas
account for the disposition of as many as 95% of all
criminal cases. ABA Standards Relating to Pleas of
Guilty, pp. 1-2 (Approved Draft, 1968). A substantial
these are the result of plea discussions.
The President's Commission on Law Enforcement and
Administration of Justice, Task Force Report: The
Courts 9 (1967); D. Newman, Conviction: The
Determination of Guilt or Innocence Without Trial 3
(1966); L. Weinreb, Criminal Process 437 (1969);
Note, Guilty Plea Bargaining: Compromises By
Prosecutors To Secure Guilty Pleas, 112 U.Pa.L.Rev.
865 (1964). . . .
Administratively, the criminal justice system has come
to depend upon pleas of guilty and, hence, upon plea
discussions. See, e.g., President's Commission on Law
Enforcement and Administration of Justice, Task Force
Report. The Courts 9 (1967); Note, Guilty Plea
Bargaining: Compromises By Prosecutors To Secure
Guilty Pleas, 112 U.Pa.L.Rev. 865 (1964).
F.R.Cr.P. 11, Advisory Committee Notes to 1974 Amendments.
Following this trend, the number of trials (including criminal jury
trials) handled by each Federal judge annually has dropped steadily. In
1992, the average judge handled 32 trials (bench and jury, civil plus
criminal) in a year; there were an average of 9 criminal jury trials per
year. By 2001, the average judge handled 20 trials in a year; there were
an average of 5 criminal jury trials per year. During the same time, the
annual number of criminal cases filed per judge rose, from 54 in 1992 to
77 in 2001. The statistics are directly available online (except for the
number of criminal jury trials per year); see Judicial Caseload Profile,
available online at www.uscourts.gov/cgi-bin/cmsd2001.pl, and Judicial
Caseload Profile, available online at www.uscourts.gov/cgi-bin/cms.pl.
The number of criminal jury trials is derived from the number of judges
per year, see citations supra, and the number of criminal jury trials
which is available at http://jnet/library/judfact/table4-3.htm. (These
figures appear compatible; for example, the numbers of total trials
available at the J-Net site corresponds exactly with the numbers of
trials per judge available in the CMS statistics).
Over the past 30 years, the number and percentage of defendants
convicted and sentenced in Federal courts has increased dramatically,
both nationally and within this district. The following charts
illustrate these patterns.
Corresponding changes to the number of defendants acquitted further
illustrate this trend.
These numbers are related to the increase in guilty pleas taken, both
in total number and as a percent of convictions. As both the total and
relative numbers of guilty pleas have increased, the number of trials has
decreased, both in total and relative terms, while the number of criminal
cases per judge has increased.
As the above chart demonstrates, while Federal judges have seen an
almost 50% rise in criminal cases per judge, from 54 to 77 per year in
the last 10 years, they have
also observed the total number of trials
(bench and jury, civil and criminal) drop by more than a third, from 32
to 20; the number of criminal jury trials has dropped by nearly half.
(For display purposes, this chart is rounded to the nearest whole numbers
(9 trials per year for 1992 and 5 for 2001); calculations of decrease are
not helpful with these rough numbers. An exact calculation can be made
using the more precise numbers of 8.84 for 1992 and 5.05 for 2001,
accurately showing a 43% decrease in the number of criminal jury trials
per judge since 1992.)
When examining the criminal justice system in its report on the Speedy
Trial Act the House Judiciary Committee noted the danger signal flashed
by our increased reliance on pleas. It declared:
Whether the negotiated plea is a desirable element
within the system or one of the basic causes of delay
and court-clogging is another question. The National
Advisory Commission in its Courts report found that
plea bargaining constitutes a triple danger to the
(1) Danger to the Defendant's Rights — A survey
of more that 3,400 criminal justice practitioners
in four states — California, Michigan, New
Jersey, and Texas — revealed that 61 percent
of those polled agreed that it was probable or
somewhat probable that most defense attorneys
engage in plea bargaining primarily to expedite
the movement of cases. Furthermore, 8 percent
agreed that it was probable or somewhat probably
that most defense attorneys in plea bargaining
negotiations pressure clients into entering a plea
that the client feels is unsatisfactory.
(2) Danger to Court Administration — Very
simply, the Commission found that plea bargaining
resulted in the need to pull cases out of the
process — sometimes on the morning of
trial-making efficient scheduling of cases
difficult or impossible. Thus, plea bargaining
makes it difficult to use judicial and
prosecutorial time effectively.
(3) Danger to Society's Need for Protection —
The conclusion of the commission in this regard is
that, because defendants are often dealt with less
severely than might normally be the case, plea
bargaining results in leniency that reduces the
deterrent effect of the law and may have a less
direct effect on corrections programs.
Speedy Trial Act History at 7412 (emphasis supplied). Because of these
factors, the Commission recommended the prohibition of plea bargaining.
Id. Rejecting this radical recommendation, the House Committee suggested
only that the report deserved "weight."
The Sentencing Commission found that the result of "charge bargaining"
by prosecutors was that "the amount of [sentence reduction] is taken out
of the hands of the judge, where the Guidelines intended to place it, and
left more under control of the prosecutor, where neither the Congress nor
the Commission intended the discretion to be." Plea Negotiations Study
Most pleas of guilty are fully justified. There is often clear
evidence of guilt. Often the defendant agrees on his or her guilt at the
time of arrest. The catharsis of prompt acknowledgment of wrongdoing and
its potential first step on the road to rehabilitation should not be
underestimated as a value of the truly "voluntary" plea.
Occasionally, as in the case at hand, the coercive nature of the system
is such as to give serious cause for concern that we are utilizing
excessive coercion to avoid trials. Yet, there is no injustice on any
appreciable scale through conviction of the innocent that can be
prosecution nor defense, nor the trial nor
appellate courts, seem blameworthy. Nevertheless, the end result of the
"new criminal justice system" in almost eliminating trials is
disquieting. Such massive shifts may in practice require development of
new judicial techniques, ethical rules or attitudes. Cf., e.g. Mae C.
Quinn, Whose Team Am I on Anyway?, 26 Rev. L. Soc. Ch. 37, 38 (2001)
(noting new model of "teamwork" between judge, prosecutor, and defense in
drug cases, requiring change in attitude of defense counsel towards
client and court).
1. Law Governing Bail
Bail in Federal courts is governed by section 3142 of Title 18 of the
United States Code. Section 3142 establishes a general policy of release
of prisoners pending trial. Prisoners may be released on their own
recognizance (subsection (b)) or on conditions (subsection (c)). Only
if, after conducting hearings, the judge decides that release presents a
danger to the security of the public or that "no condition or combination
of conditions will reasonably assure that appearance of the person as
required," may the defendant be detained without bail.
18 U.S.C. § 3142(e). This provision codifies the longstanding norm
in our justice system that bail is the rule, and that few cases are to be
exceptions. The Constitution itself prohibits the use of excessive bail.
U.S. Const. Am. VIII.
"At common law in England pretrial release on bail was a matter within
the discretion of judges for all defendants." United States v.
Melendez-Carrion, 790 F.2d 984, 997 (giving history of bail under common
law, citing authorities including Blackstone). This common law tradition
was continued by the Judiciary Act of 1789, creating a right to bail in
all but capital cases, where the court had the option of non-release.
Jud. Act of 1789, Ch. 20, 1 Stat. 91 (1789), cited in Melendez-Carrion,
Later changes in the law made all prisoners subject to bail
requirements. The basic theory of freedom before conviction, however,
never changed. As the Supreme Court reiterated in Stack v. Boyle,
342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951):
From the passage of the Judiciary Act of 1789, 1
Stat. 73, 91, to the present Federal Rules of Criminal
Procedure, Rule 46(a)(1), 18 U.S.C.A., federal law has
unequivocally provided that a person arrested for a
non-capital offense shall be admitted to bail. This
traditional right to freedom before conviction permits
the unhampered preparation of a defense, and serves to
prevent the infliction of punishment prior to
conviction. Unless this right to bail before trial is
preserved, the presumption of innocence, secured only
after centuries of struggle, would lose its meaning.
Id. at 4 (Emphasis added).
2. History of Bail Reform
Despite these protections, many poor defendants were often unable to
make bail. A disparity based upon social status led to widespread
dissatisfaction. Public interest organizations urged increased release
There were several reasons why bail reform was urged. A primary
concern was that expressed by the Supreme Court earlier in Stack, that
defendants who are held in pretrial custody are less able to defend
themselves. Stack, 342 U.S. at 4. This correlation was shown in several
studies prior to passage of the Bail Reform Act in 1964. See, e.g., Anne
Rankin, The Effect of Pretrial Detention, 39 N.Y.U. L. Rev. 641 (1964).
Ms. Rankin, a Research Associate from the Vera Institute, relied upon
data from New York. She pointed out that "previous studies of
bail have indicated that an accused who has been detained in jail between
his arraignment and the final adjudication of his case is more likely to
receive a conviction or a jail sentence than an accused who has been free
on bail." Id. at 641. She used standard statistical techniques to
attempt to neutralize the effect of other variables. An initial reading
of the statistics showed that for the period in question, sixty-four
percent of non-bailed defendants were sentenced to prison time, while only
seventeen percent of bailed defendants were sentenced to prison. Id. at
643. This difference of forty-seven percent was largely attributable,
the study concluded, to the different decisions made on bail. Factors
one might think would cause a difference, such as the race of the
defendant and the type of offense charged, were not statistically
significant. Id. at 644. Rankin identified five factors which did have
a statistical correlation with disposition: defendant's previous record,
the bail amount, type of counsel, family integration, and employment
stability. Id. at 644-45. After controlling for each of these
variables, the study found that for sizable numbers of defendants, the
decision between bail and pretrial detention still accounted for a
difference unfavorable to those unreleased of thirty-five to thirty-seven
percent in final disposition. Id. at 654. Based on these findings, the
study concluded that "a causal relationship exists between [pretrial]
detention and unfavorable disposition." Id. at 655.
Similar finding were developed in other studies. See, e.g., Charles
E. Ares et al., The Manhattan Bail Project, 38 N.Y.U. L. Rev 67, 84 ("The
1960 figures support the proposition that a person not in jail at the
time of adjudication stands a better chance of receiving a favorable
disposition of his case."). "Released defendants fare better than those
who remain in jail" because, among other things, "such a defendant is
able to assist in the preparation of his own defense." Id. at 90. These
studies supported the 1964 Bail Reform Act. The House Committee on the
Judiciary took testimony from representatives of the Vera Foundation on
the subject. Federal Bail Reform Hearings at 85 (colloquy between Mrs.
Katzive of the Vera Foundation and Representative Corman of the House
One of the key statements during the floor debate on the bill was made
by Representative William McCulloch of Ohio:
Freedom between arrest and criminal trial is a
safeguard which cannot, in my judgment, be seriously
questioned. Other witnesses doubtless will detail
these beyond my brief remarks here. Most immediately,
however, the necessity for freedom within which to
prepare a defense to criminal charge, in the matter of
locating witnesses and establishing evidence, may be
more important to ascertainment of truth than
provision of counsel or a free transcript of trial on
which to appeal. An indigent's right to counsel is
absolute, as is the transcript; yet pretrial freedom
is too often needlessly denied.
Hearings on H.R. 3576, H.R. 3577, H.R. 3578, H.R. 5923, H.R. 6271, H.R.
6934, H.R. 10195 and S. 1357 before the House Committee on the
Judiciary, Federal Bail Reform, Mar. 9-16, 1966 (hereinafter "Federal
Bail Reform Hearings") at 16 (statement of William McCulloch).
Representative McCulloch's statement was made in the context of his
support for bail availability to indigents. The same concern — the
necessity for "freedom within which to prepare a defense to criminal
charge" — applies whether the defendant is being held in custody
for inability to pay bail, of for any other reason. The end result of
lack of freedom is a greatly hampered ability to prepare for trial.
Similar views were expressed by Senator Sam J. Ervin of North
Carolina, who sponsored the Bail Reform bill. Senator Ervin remarked
that individuals unable to make bail "are forced to remain in jail,
sometimes for many months, until their trial. In jail . . . they are
severely handicapped in the preparation of their defense. They may not
secure evidence, locate witnesses, or aid their attorneys." Federal Bail
Reform Hearings at 18 (statement of Senator Sam J. Ervin). See also id.
at 35 ("The inability to meet bail requirements severely handicaps the
accused in the preparation of his defense.") (statement of Representative
Roy H. McVicker).
Rufus King on behalf of the American Bar Association declared that,
Incarcerating people before trial goes against all of
our current efforts to separate the innocent from the
guilty and to assure every person who is caught up in
the machinery of justice a fair trial. . . . To put an
accused person, for long periods into [pretrial
detention in jail] so that he cannot defend himself,
so that he suffers all the humiliation and the
disabilities of being incarcerated, is a totally
unworkable alternative if there is any other.
Federal Bail Reform Hearings at 39 (statement of Rufus King).
The legislators were concerned about studies showing the increased
likelihood of unfavorable disposition for defendants denied bail.
Then-retired Director of the bureau of Prisons, James v. Bennet, reported
to the committee that "the person released while awaiting trial has a
better chance for acquittal or probation than he who waits in jail."
Federal Bail Reform Hearings at 41 (report of James V. Bennett).
The District of Columbia bail statutes were amended in 1970. These
amendments allowed detention of certain defendants based on a finding of
potential dangerousness. The changes were attacked by many academics.
See, e.g., Lawrence Tribe, An Ounce of Detention, 56 Va. L. Rev. 371
(critiquing 1970 changes).
The national bail laws were amended in 1984. The bail reform
provisions of the crime control statute passed in 1984 were part of a
massive crime control statute which included, among other things, the
statutory authorization for the Sentencing Guidelines. Similar to the
District of Columbia code, the Bail Reform Act of 1984 was designed to
allow judges discretion to deny bail in the case of dangerous
defendants. The 1984 Act's legislative history suggests Congressional
concern with dangerous defendants. The Act was designed to address "the
problem of how to change current bail laws to provide appropriate
authority to deal with dangerous defendants seeking release." See S.
Rep. No. 225, 98th Cong., 1st Sess. 8 (1983), Reprinted in 1984 U.S. Code
Cong. & Ad. News 3182, 3189 (Senate Report on the bail portion of the
1984 Crime act) (hereinafter 1984 Act History). The legislative history
contains no mention of Congressional repudiation of its earlier aims in
the 1964 Act, which included the need to enable defendants to prepare
adequately for trial.
The 1984 Act dealt with a very different kind of defendant than Ms.
Hebroni — the currently dangerous defendant. No one has suggested
that Ms. Hebroni is or was dangerous after her indictment and seizure of
her business and assets. Thus the concerns expressed about excessive
bail in the history of the prior legislation cannot be ignored in a case
such as hers.
In sum, the bail provisions as now written authorize the detention of
defendants without bail only for a severely restricted class of
defendants for whom no amount of bail would suffice to assure their
appearance, and for a small group of defendants
who present a danger of
criminal activity while they await disposition of criminal charges
against them. The presumption in favor of bail — the "traditional
right to freedom" of which the Stack court spoke — has remained in
force. The need for a general policy of release has remained the same:
With narrow exceptions, defendants should be released in order to be able
to adequately prepare their defense.
3. Constitutional Requirements
Like all other criminal statutes, bail provisions are implicitly
subject to limitations of due process. The Constitution operates as the
backdrop against which criminal statutes and rules function. The statute
provides that a person may be detained if no conditions would assure
appearance or ensure community safety; implied is the constitutional
requirement that due process not be offended. See, e.g., Doe v. Dept. of
Public Safety ex rel. Lee, 271 F.3d 38, 59 (2d Cir. 2001). Because of
this constitutional limitation, the statute must be read as authorizing
detention only where a due process analysis finds such detention
The Constitution, in its guarantee that excessive bail should not be
required, established the default rule that defendants should not be
detained prior to trial unless necessary. This is because the right to
freedom before conviction is basic. Similarly, the right to release on
bail is inextricably related to the presumption of innocence of an
accused. "Unless this right to bail before trial is preserved, the
presumption of innocence, secured only after centuries of struggle, would
lose its meaning." Stack, 342 U.S. at 4. See also 18 U.S.C. § 3142(j)
("Nothing in this section [Bail Reform Act of 1984] should be construed
as modifying or limiting the presumption of innocence.").
Even fundamental rights such as the right to freedom may be limited if
there is a compelling state interest. Cf. United States v. Edwards,
430 A.2d 1321 (D.C. Cir. 1981) ("Regardless of whether the right to bail
is characterized as fundamental or not, the legislative history provides
ample support for a compelling state interest in the pretrial detention
of the narrow class of persons covered by the statute."). The Edwards
decision, made in the context of pretrial detention of dangerous
persons, was a precursor to the Bail Reform Act of 1984. See 1984 Act
History at 3191 (Senate Report on the bail portion of the 1984 Crime
Assuring the presence of a defendant at trial is a compelling
interest, but infringements of basic rights, in the name of compelling
interests, must be narrowly tailored. For example, defendants should be
denied their freedom only where the trial court has a basis for its
finding that detention is clearly necessary to ensure presence at trial.
Government also has an interest in acquitting innocent defendants and a
corollary interest in assuring that all defendants have time and
conditions that will allow for the defense necessary in our adversarial
system. If either side has too great a systemic advantage, then the
fairness of the system itself is at risk. American courts may not
balance the equation by engaging in the more active roles available under
the inquisitorial continental judicial systems. See generally Ellen E.
Sward, Values, Ideology, and the Evolution of the Adversarial System, 64
Ind. L.J. 301, 302 (1988) (background of adversarial system as
"characterized by party control of the investigation and presentation of
evidence and argument, and by a passive decisionmaker who merely listens
to both sides and renders a decision based on what she has heard").
Finally, the analysis of bail must take into account the seismic
the criminal law which have occurred in the last few
decades. These changes were examined above in some detail in the
analysis of plea bargaining. See Part III.B.3 supra. The major shift is
that there are now significantly fewer trials and more pleas. This
alteration could mean different things in the bail context. One possible
change is that defendants might need the freedom bail provides in order
to effectively prepare a defense — not for trial, but rather as a
starting bargaining position in plea bargaining. Where a court denies
bail it places defendant in a weaker bargaining position in constructing
the plea bargain which will largely determine the sentence.
4. Use of Pretrial Services
In considering whether bail is appropriate judges in this district take
into account the close supervision of bailed defendants by Pretrial
Services. Congress created this organization to ensure that while bail
was granted wherever practicable, it did not result in defendants
becoming fugitives. 18 U.S.C. § 3153, 3154. Pretrial Services was
established by statute in 1974 as an experiment under the Speedy Trial
Act. Speedy Trial Act History at 7420. The program was implemented in
ten districts across the nation, with five districts, including the
Eastern District of New York, creating an independent Pretrial Services
Board, and five districts creating a Pretrial Services division within
their Probation department. The experiment was conducted to determine
whether Pretrial Services would better function as an independent court
agency, or as a sub-agency within Probation. The Director of the
Administrative office was to track the success of Pretrial Services and
report to Congress annually. Id.; see also id. at 7437-39 (statements by
Director of Administrative Office and Judge Zirpoli).
By 1982 there was broad consensus on the utility of some form of
pretrial services. See Senate Report No. 97-77, Pretrial Services Act of
1982, reprinted in 1982 U.S.C.CAN 2377, 2380-82 (lower rearrest rates,
better control by courts, and money savings). Both probation-controlled
and independent pretrial services conferred sizable benefits.
The Eastern District of New York is a special district with Pretrial
Services independent of probation. See generally Minutes to Board of
Judges Meetings, June 1980, December 1983, and September 1993
(establishment of pretrial services in this district). This organization
has an excellent record. It helps keep bail violations resulting in the
absconding of defendants rare to the vanishing point, while at the same
time assisting in presentence rehabilitation. See United States v.
Blake, 89 F. Supp.2d 328 (E.D.N.Y. 2000) (rehabilitation before
sentencing should be encouraged). Nevertheless, the prosecutor's power to
successfully oppose bail — at the trial and appellate level
— for those who will not cooperate or plead, suggests the enormous
influence of the government on bail as well as on pleas and sentences.
D. Speedy Trial
1. Constitutional Aspects
The right to a speedy trial is guaranteed by the Constitution. See
U.S. Const., Am. 6 ("In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial."). Where a defendant's
right to a speedy trial is threatened, courts are to use "a balancing
test . . . to approach speedy trial cases on an ad hoc basis." Barker
v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). Four
factors of this test are: "length of delay, the reason for the delay, the
defendant's assertion of his right, and prejudice to the defendant."
"In addition to the general concern that all accused persons be treated
according to decent and fair procedures, there is a societal interest in
providing a speedy trial which exists separate from, and at times in
opposition to, the interests of the accused." Id. at 519. See also
American Bar Association Model Code of Judicial Conduct, Canon 3, B(8)
("a judge shall dispose of all judicial matters promptly, efficiently,
and fairly"). Indefinite detention of non-convicted persons is a
violation of the Constitution. See Zadvydas v. Davis, 533 U.S. 678, 121
S.Ct. 2491, 150 L.Ed.2d 653 (2001).
2. Statutes and Rules
The Speedy Trial Act was passed in 1974 in order to ensure that
defendants right to a speedy trial was enforced. The Act, now codified
in sections 3161 et seq. of Title 18 of the United States Code, states at
the outset that courts are to "assure a speedy trial."
18 U.S.C. § 3161(a). In general, no defendant may be held before
trial more than 90 days. 18 U.S.C. § 3164. Certain endemic and
other delays are not factored into this calculation.
18 U.S.C. § 3161(h).
The legislative history of the Act shows that it was designed to
satisfy a variety of purposes. It was "to assist in reducing crime and
the danger of recidivism by requiring speedy trials and by strengthening
the supervision over persons released pending trial." Speedy Trial Act
History at 7402. Such a law was necessary, the House Committee felt, "in
order to give real meaning to the Sixth Amendment right [to a speedy
trial]." Id. at 7404. The committee recognized an earlier suggestion of
district-by-district reform through the use of local rules, but decided
that such a system would not sufficiently guarantee speedy trials. Id.
The House Committee was concerned that jail time would disrupt family
life, retard rehabilitation, and punish the innocent; significantly, the
Committee also relied upon the fact that pretrial detention, "hinders the
defendant's ability to gather evidence, contact witnesses, and otherwise
prepare his case." Id. at 7408. "Both the defense and prosecution rely
upon delay as a tactic in the trial of criminal cases," the committee
noted. Id. at 7407-08. "The right to a speedy trial belongs not only to
the defendant, but to society as well." Id. at 7408. The House
Committee favorably cited the remarks of then-Assistant Attorney General
William Rehnquist that, "criminal cases must be tried within a particular
period of time." Id. at 7414.
Legislative history reveals that there was some support for making the
90-day limit absolute. While the suggestion did not become law, it
indicates the concern of Congress for defendants detained for long
periods of time. See United States v. Melendez-Carrion, 790 F.2d 984 (2d
Cir. 1986) (providing additional legislative history of Speedy Trial
This case raises issues in several distinct areas of the law of
sentencing, including departure, fines, and terms of supervised release.
In sentencing courts had broad discretion at common law to tailor
sentences appropriate to a particular crime and defendant up to the
maximum fixed by statute. Alleged disparate sentences (especially in the
form of supposed harsher sentences given to minorities) and the urge to
increase punishments supported changes. See, e.g. Marvin Frankel,
Criminal Sentences: Law Without Order (1972) (critiquing sentence
in 1984 of legislation authorizing Sentencing
Guidelines, and the subsequent issuance of the Sentencing Guidelines in
1989, did reduce judicial discretion. See generally United States v.
Koon, 518 U.S. 81, 95-96 (1996) (background of Sentencing Guidelines).
In general a departure from the guidelines on any ground not considered
by the sentencing commission in establishing the guidelines is
permitted. See, e.g., United States v. Moe, 65 F.3d 245 (2d Cir. 1995).
If a factor was considered in drafting or amending the guidelines, but
not given enough weight for particular special circumstances (and so is
present "to an exceptional degree") departure is permitted. Koon, 518
U.S. at 95-96. This limited freedom of the court is sometimes described
as covering circumstances which take a case out of the "heartland" of the
A court may depart on its own motion even if the parties do not move
for departure. See, e.g., United States v. Arize, 792 F. Supp. 920
(E.D.N.Y. 1992); United States v. Ramirez, 792 F. Supp. 922 (E.D.N.Y.
1992). The fact that the defendant concedes in her plea agreement that a
certain level of the guidelines is appropriate does not bind the court.
Discussed below are reasons for departure that might be applicable in the
a. Destruction of Livelihood
The court may depart downward where defendant's business has been
destroyed, preventing re-entry into criminal life. United States v.
Gaind, 829 F. Supp. 669 (S.D.N.Y. 1993) (Broderick, J.) (downward
departure where defendant EPA tester's livelihood was destroyed and he
could not re-enter the testing profession to engage in more criminal
activity). This basis for departure is not encouraged where the evidence
does not show that defendant is barred by the destruction of business
from committing similar future criminal acts. Lieberman v. United
States, 839 F. Supp. 263 (S.D.N.Y 1993) (Broderick, J.) (no downward
departure on destruction of livelihood grounds for pharmacist who dealt
drugs; destruction of pharmacy business did not prevent future illegal
The instant case lies between Gaind and Lieberman. The defendant's
business has been seized by the government and its assets will be
forfeited pursuant to the plea. In addition, defendant has been ordered
not to engage in the jewelry or rare metals business during her term of
supervised release. See section III.E.4, infra (discussion of supervised
release). Defendant's livelihood is gone, and with it any chance to
immediately begin similar criminal money washing activity. While she is
not barred permanently by a licensing or other like inhibition as was the
Gaind defendant, her situation fits the Gaind pattern. The purposes of
the guidelines, protection of the public and deterrence of crime, are
independently met through the destruction of the defendant's business.
As the Gaind court put the matter: "Because of the destruction of the
defendant's . . . business, the necessity for achieving the purposes of
sentencing through sentencing itself [i.e. prison time] has been
reduced." Gaind at 671. All defendants assets have been taken. During
her term of supervised release, she will be prohibited from engaging in
trading in precious metals and will not be permitted to reside in
Panama. This sufficiently prevents future criminal activity which
depended in the past on her large international financial transactions.
The fact that she will probably be promptly deported and thus
unsupervised during her term of "supervised release" does not lift the
court imposed inhibitions; the court may consider the defendant's
background in concluding
that she is unlikely to violate her supervised release terms.
b. Stress of Pretrial Incarceration
A court may depart if the defendant has suffered from unusual stress
due to a lengthy or particularly stressful incarceration. United States
v. Ekwunoh, 888 F. Supp. 369 (E.D.N.Y. 1994); United States v.
Hoffenberg, 1997 WL 96563 (S.D.N.Y. March 5, 1997).
In some instances, lengthy pretrial incarceration, and the stress and
uncertainty which accompanies such lack of freedom, may be a factor
removing a case from the "heartland" of the guidelines sufficiently to
warrant departure. For example, in Ekwunoh, the defendant was in
pretrial detention for two and a half years. Ekwunoh, 888 F. Supp. at
373-74. During this time, her case was subject to various appeals. Id.
In addition, her family situation deteriorated because of her
incarceration. The court pointed out the effect of the lengthy
At her resentencing, it was evident that four years of
litigation and two-and-one-half years of incarceration
had taken a severe toll on Caroline Ekwunoh. Once a
prepossessing, articulate woman, she was at her
November 28 appearance emaciated, inarticulate, with a
visible tic and an expression that can only be
described as a permanent cringe. Due to the
labyrinthine operations of the sentencing system, this
mother of three has faced ongoing uncertainty and
dashed hopes for more than two years.
Id. at 373-74. The effect of her pretrial incarceration was sufficient
to remove that case from the heartland of the guidelines, and a departure
was granted. Similarly, in Hoffenberg, Judge Sweet found ground for
departure in, among other things, "the lengthy and complex criminal and
civil charges [defendant] has faced." Hoffenberg, 1997 WL 96563 at *12.
Departure is not appropriate as a blanket rule in all cases where there
has been pretrial detention of any length. The cases which have granted
departure on this ground have done so based on findings of lengthy and
complex cases and physical deterioration of a defendant, as well as
synergy adverse to the defendant created by the interaction of lengthy
pretrial incarceration and other grounds such as exceptional family
circumstances. All of these elements are present in the instant case.
As with many other grounds for departure, application of this ground
requires some attempt by the sentencing judge to appreciate the
defendant's situation and feelings. It is wrongly believed by some that
the word empathy — according to Webster's Third New International
Dictionary (1986), "the capacity for participating in or a vicarious
experiencing of another's feelings, volitions or ideas" (and thus the
predicate for implementation of the Golden Rule), was expurgated from the
lexicon of Federal judges by the Sentencing Guidelines. Such a sentiment
would be mistaken; as a Justice of the Supreme Court observed,
"compassion need not be exiled from the province of judging." DeShaney
v. Winnebago Co. Dep't of Soc. Svcs., 489 U.S. 189, 212, 109 S.Ct. 998,
103 L.Ed.2d 249 (1989) (Blackmun, J., dissenting). It would be hard to
believe that banning a compassionate interest in avoiding unnecessary
cruelty to defendants is the rule of our otherwise generous American
society. As the Home Secretary of Great Britain, R.A. Butler, among
others, put it, "the mood and temper of the public with regard to the
treatment of crime and criminals is one of the unfailing tests of the
civilization of a country." See Roy Jenkins, Churchill, A Biography 190
(2001). A similar observation was made by Fyodor Dostoyevsky, who
declared that "the degree of civilization in a society is revealed
by entering its prisons." F. Dostoyevsky, The House of the Dead 76 (C.
Garnett trans., 1957). The Supreme Court has recognized that this humane
vision lives. See Koon v. United States, 518 U.S. 81 (1996) (placing
reliance on trial judge's judgment in allowing departure).
Requiring Federal judges to apply the sentencing guidelines
mechanically, without trying to fathom the defendant's heart and mind, is
also questionable because it threatens a devastating effect on the judges
themselves — the destruction of their humanity. Cf. United States
v. Yu, 1993 WL 497985 (Sweet, J.) (judges must "consider . . . the
applicability of the Nuremberg principles of personal responsibility to
this arbitrary and ministerial act [sentencing by the Guidelines]
dictated by Congress"); see also United States v. Johnson, 964 F.2d 124
(2d Cir. 1992) ("The United States Sentencing Guidelines do not require a
judge to leave compassion and common sense at the door to the
courtroom."). The effect of a rule of law squeezing judgment of the
trial judge out of sentencing creates risks to the system and those who
serve it out of all proportion to the claimed benefits. It cannot be
that each time a judge exercises power to depart, the Sentencing
Commission or appellate courts will further corral that discretion with
more detailed rules to eliminate future judgment and choice. To do so
would be to turn the celebrated heartland of sentencing guidelines into a
heartless and barren area of our law.
The amount defendant may be fined under the statute is $500,000 or
double the amount of money involved in the crime, which in this case is
$948,000 (double the plea amount of $474,000).
The Sentencing Guidelines recommend that an offender with an offense
level of 18 receive a fine of between $6,000 and $60,000. Guidelines
Manual § 5E1.2(c)(2). This limit is inapplicable in the instant case
since the defendant has been convicted of a crime with a maximum fine of
greater than $250,000. Guidelines Manual § 5E1.2(c)(4).
The Guidelines state that "in determining the amount of the fine, the
court shall consider:
(1) the need for the combined sentence to reflect the
seriousness of the offense (including the harm or loss
to the victim and the gain to the defendant), to
promote respect for the law, to provide just
punishment and to afford adequate deterrence;
(2) any evidence presented as to the defendant's
ability to pay the fine (including the ability to pay
over a period of time) in light of his earning
capacity and financial resources;
(3) the burden that the fine places on the defendant
and his dependents relative to alternative
(4) any restitution or reparation that the defendant has made or is
obligated to make;
(5) any collateral consequences of conviction,
including civil obligations arising from the
(6) whether the defendant previously has been fined for a similar offense;
(7) the expected costs to the government of any term
of probation, or term of imprisonment and term of
supervised release imposed; and
(8) any other pertinent equitable considerations.
The amount of the fine should always be sufficient to
ensure that the fine, taken
together with other sanctions imposed, is punitive.
Guidelines Manual § 5E1.2(d).
3. Credit for Good Behavior
Section 3624(b) of Title 18 of the United States Code provides for
early release of prisoners who have displayed exemplary compliance with
institutional disciplinary regulations. For each year a prisoner has
been in custody, he or she may be credited with up to 54 days toward a
prison sentence, subject to the determinations of the Bureau of Prisons
that the prisoner deserves such a credit; in the final year of
incarceration, the good-behavior credit is prorated. Id. Pretrial
incarceration is entitled to this credit.
The Bureau of Prisons may also, if practicable, place a prisoner into
"pre-release custody" for a reasonable portion of the last ten-percent of
a prison sentence, not to exceed 6 months. The pre-release custody,
which may include home confinement, affords the prisoner the opportunity
to adjust and prepare for re-entry into society. 18 U.S.C. § 3624(c).
4. Supervised Release
A court may impose a term of supervised release following
incarceration. 18 U.S.C. § 3583. During this period, defendant's
behavior may be restricted by conditions. Id. Statutory conditions
prohibit defendants under supervision from committing additional crimes,
and possessing controlled substances or firearms. 18 U.S.C. § 3583(d).
For the crime that defendant pleaded guilty to, a term of supervised
release of up to three years may be imposed. 18 U.S.C. § 3583(b).
"Sentencing courts have broad discretion to tailor conditions of
supervised release to the goals and purposes outlined in [the
Guidelines]." United States v. Abrar, 58 F.3d 43, 46 (2d Cir. 1995). As
long as the terms of supervised release are related to the sentence, and
involve "no greater deprivation of liberty than is reasonably necessary"
for sentencing purposes, a court may issue "any . . . condition it
considers to be appropriate." 18 U.S.C. § 3583(d); see also
18 U.S.C. § 3553(a) (factors courts should consider at sentencing);
Abrar, supra, 58 F.3d at 46 (district court's conditions of supervised
release will be reviewed only for abuse of discretion).
Supervised release may impose restrictions on a defendant's behavior
which might not be allowed for other citizens. "Supervised release
requires a defendant to alter his or her behavior, but compared to
imprisonment, the conditions of supervised release impose a very minor
infringement on a defendant's liberty. Simply put, individuals on
supervised release are not entitled to the same liberties as others who
have not been determined to need supervision." United States v. Crea,
968 F. Supp. 826, 829 (E.D.N.Y. 1997). For example, a defendant may be
properly prohibited from associating with other felons. See Crea, supra.
The Crea court lists other conditions which have been upheld by various
United States v. Phaneuf, 91 F.3d 255 (1st Cir. 1996)
(defendant convicted of credit card fraud prohibited
from incurring extension of credit without permission
from probation department); United States v. Peppe,
80 F.3d 19 (1st Cir. 1996) (defendant convicted of
making extortionate extensions of credit required to
have any new credit charges or credit lines reviewed
by probation officer); . . . United States v.
Johnson, 998 F.2d 696 (9th Cir. 1993) (defendant
ordered to abstain from alcohol because of personal
and familial history of substance abuse, and proceeds
of crimes used to buy alcohol); United States v.
Mills, 959 F.2d 516 (5th Cir. 1992) (defendant
of altering odometers prohibited from participating in
Crea at 833; see also id. at 830 ("In United States v. Bolinger,
940 F.2d 478 (9th Cir. 1991), the court upheld a condition of supervised
release prohibiting the defendant's participation or membership in
motorcycle clubs."). But cf. United States v. Sofsky, 2002 WL 483482 (2d
Cir. 2002) (setting aside district court decision banning child
pornographer from accessing a computer or viewing television during
supervised release). The Sofsky court was concerned about the free
speech aspects of the prohibition; it was the daily activities of using
the mail, phone, or "reading the newspaper" to obtain information rather
than business activities, that the court of appeals protected. Sofsky
IV. Application of Law to Facts
A. Defendant's Ability to Plead
The defendant's ability to "voluntarily" enter into a plea agreement
was affected by her bail situation as her trial grew increasingly
closer. The adverse effect on defendant has been apparent.
An example of stresses on her was produced by separation from her only
child. Defendant's young son traveled from Israel to New York; he was to
live with defendant and other family members prior to her trial if she
complied with the bail decision of the trial court under supervised
conditions, similar to strict house arrest. Her affection for her son,
and the difficulty that the separation caused because of her detention
Living with her son was part of the highly restrictive bail package
this court approved on February 12, 2002. It was designed to satisfy the
demands of the appellate court that bail be related to appearance at
trial; the package satisfied this court that defendant would be likely to
appear at trial. The court was also aware of other important
considerations. Contact with her son would have been therapeutic for a
woman now incarcerated a year and a half pending trial, whose trial was
only a month away. Defendant's deterioration placed in jeopardy her
ability to prepare effectively for trial, including her mental ability to
make important decisions. Instead of any family contact, the defendant
was then subjected to an emotionally wrenching thwarted near-reunion.
It was under a combination of trying circumstances that defendant
decided to plead. She agreed to plead guilty to charges which would lead
to a sentence of 33 to 47 months in prison. She also agreed that she
would not request a downward departure — a routine clause in such
Rule 11(f) makes clear that a plea may be accepted where there is a
"factual basis" for it. The court is not required to believe that the
defendant is actually guilty, or even likely to be found guilty. The
documents so far produced in court do not convincingly establish guilt.
Nevertheless, the admission of guilt when combined with the proffers of
the government of what cooperating witnesses will say and the huge number
of boxes of documents, which may or may not contain authenticable
incriminating records, provide a factual basis for the plea which
satisfies Rule 11(f). The court is not prepared to conclude on the basis
of what it has examined that defendant is likely to be guilty. It
decides merely that Rule 11(f)'s standard of a "factual basis" has been
met so that the plea may be accepted.
B. Conflicts of Interest
At the time defendant's counsel were originally retained, their
representation was not marred by a conflict of interest. Even though
incarceration may have hampered her counsel's ability to effectively
advise defendant regarding a plea agreement, it did not create a
More serious was the government's declared intent to take title to all
of defendant's funds, and to withhold her assets from use as attorneys
fees. Were defendant to proceed to trial and lose her case, all of her
assets would have been lost. In that event, her counsel risked not being
Her attorney was thus forced to choose between two equally unpalatable
alternatives. He could advise his client to proceed to a complex and
long trial, aware that preparation had been severely hindered by
defendant's detention, risking a huge financial loss of his own from
representation over many months with no substantial hope for a fee. Or
he could advise her to plead guilty and cut his potential losses. This
apparent conflict was forced upon defense counsel by government's declared
position that it now owned essentially all of defendant's assets through
The court attempted to mitigate the conflict problem by appointing
additional counsel, pursuant to the Criminal Justice Act.
18 U.S.C. § 3006A. Appointed counsel is not subject to the same
potential conflict since compensation comes from the government, not from
the defendant's seized assets.
1. Calculation of offense level
The plea agreement submitted by the parties suggested an offense level
of 20. This was calculated by using a base level of 8, a one-level
enhancement for the type of conviction (18 U.S.C. § 1957), and 14
levels for the amount of funds, minus three levels for acceptance of
Probation has suggested that defendant might be subject to a further
three-point enhancement for knowingly laundering drug money. If
defendant had been shown to have had knowledge that drug funds were
laundered, this enhancement would be appropriate. The government has not
sought to nor established this fact. The court takes judicial notice
from the trial of other cases in this court that forms of money
laundering to avoid taxation and national limits on the export of dollars
rather than drug trafficking leads to much black marketing of currency in
South and Central America.
As noted in section III.E.1.a, supra, a court may properly depart where
the defendant's livelihood has been destroyed, preventing re-entry into
criminal activity. This case meets the requirements of a destruction of
livelihood departure established in Gaind. The court departs downward
two points on this ground.
There are other reasons that this case remains outside of the
"heartland" of cases. The first is the length and rigor of pretrial
detention. Defendant was subject to a grueling schedule as she attempted
to prepare her defense. She traveled to and from the court each day
under guard, spending many cold hours in transportation or waiting. Due
to the bureaucratic difficulties in arranging this procedure, defendant
was forced to continually request basic necessities such as warm clothing
and appropriate food. This factor is an independent ground for the
two-point departure in this case.
A final concurrent and independent factor taking this case out of the
heartland is the repeated denials of bail. These denials prevented
defendant from effectively preparing her defense or seeing her child. As
a result there was an exceptionally strong danger that the plea was not
entered into voluntarily. Coercion through pretrial incarceration
was present. While the amount of coercion was not sufficient to require
rejection of the plea, it is enough to take this case out of the
heartland of cases envisioned by the Sentencing Commission. United
States v. Koon, 518 U.S. 81, 95-96 (1996).
These three factors, the destruction of livelihood, the rigor of
pretrial detention and the denial of bail creating unusual difficulties in
this case, are independent reasons for departure. Based on these reasons
individually and collectively, the court departs downward two levels.
This leaves an offense level after departures of 18, which translates to
a sentence between 27 and 33 months.
3. Credit for time served and for good behavior
A defendant may properly receive credit against her sentence for time
served in pretrial detention. In this case, defendant has already served
approximately eighteen months. She should receive credit for good
behavior from the time of original incarceration, September 22, 2000.
This will reduce her incarcerated time to approximately 23 months.
4. Supervised Release
The defendant has pled guilty to crimes of money laundering in Panama
through the use of her jewelry business. The government is
understandably concerned that upon release she will resume this
One purpose of supervised release is to discourage future criminal acts
by limiting behavior likely to lead to these acts. As part of her
supervised release for a period of three years after imprisonment,
defendant may not conduct business in Panama, nor may she engage in the
jewelry or precious metals business. Defendant will also be subject to
the additional standard terms of supervised release: She is not to
engage in criminal activity or drug use, or to own a firearm, and is not
to associate with people who engage in criminal activity, drug use, or
drug trafficking, or who use firearms.
The defendant is sentenced to 27 months in prison and a fine of
$250,000. She should receive credit for time served and for good
behavior if appropriate.
Following incarceration, she will serve a term of three years of
supervised release. Supervised release may be served abroad. As a
special condition of supervised release, she may not conduct business in
Panama, nor engage in the jewelry or precious metals businesses anywhere
or violate any law of the United States or of the country where she
resides. Any illegal entry into the United States will be a violation of
the terms of supervised release. Further details are spelled out in the
judgment of conviction.
Appendix 1: Types of Sentencing Departure by Year
Year Percent of Sentences
Within Range Substantial Other Downward Upward
1989 82.0 3.5 8.7 5.8
1990 83.4 7.5 6.9 2.3
1991 80.6 11.9 5.8 1.7
1992 77.4 15.1 6.0 1.5
1993 75.3 16.9 6.6 1.1
1994 71.1 19.5 7.6 1.2
1995 71.0 19.7 8.4 0.9
1996 69.6 19.2 10.3 0.9
1997 67.9 19.2 12.1 0.8
1998 66.3 19.3 13.6 0.8
1999 64.9 18.7 15.8 0.6
2000 64.5 17.9 17.0 0.7
Source: United States Sentencing Commission Sourcebook of Statistics,
Figure G (percent of Offenses Receiving Each Type of Departure). The
2000 Sourcebook provided 1996 to 2000 statistics; the 1996 Sourcebook
provided 1989-96 statistics.
As noted in the 1996 Sourcebook, 1989 and 1990 information is derived
from a 25-percent random sample of cases; later years represent all
guidelines cases where complete court data was available. 1989
information was for the calendar year; subsequent years' statistics are
for fiscal year, which results in some overlap for statistics from
October to December 1989.
Appendix 2: Disposition of Federal Criminal Defendants, National
Fiscal Total Number of Percent Guilty No Combined Percent Defendants Convicted At Trial
Year Defendants Defendants Convicted Plea Contest Guilty and Pleading
Convicted Plea[fn**]No Contest Guilty or Convicted Percent Convicted Percent
and Pleas No Contest by Court by Jury
1971 44,615 32,103 72% 27,544 — 27,544 85.8% 1,416 4.4% 3,143 9.8%
1972 49,516 37,220 75% 31,714 — 31,714 85.2% 1,847 5.0% 3,659 9.8%
1973 46,724 34,983 75% 29,009 — 29,009 82.9% 1,873 5.4% 4,101 11.7%
1974 48,014 36,230 75% 30,660 — 30,660 84.6% 1,785 4.9% 3,785 10.4%
1975 49,212 37,433 76% 31,816 — 31,816 85.0% 1,580 4.2% 4,037 10.8%
1976 51,612 40,112 78% 34,041 — 34,041 84.9% 1,587 4.0% 4,484 11.2%
1977 53,189 41,468 78% 35,336 — 35,336 85.2% 1,629 3.9% 4,503 10.9%
1978 45,922 36,505 79% 31,112 — 31,112 85.2% 1,431 3.9% 3,962 10.9%
1979 41,175 32,913 80% 27,295 — 27,295 82.9% 2,006 6.1% 3,612 11.0%
1980 36,560 28,598 78% 23,111 — 23,111 80.8% 1,851 6.5% 3,636 12.7%
1981 38,127 29,868 78% 24,322 — 24,322 81.4% 1,867 6.3% 3,679 12.3%
1982 40,466 32,252 80% 26,355 1,037 27,392 84.9% 1,205 3.7% 3,655 11.3%
1983 43,329 35,591 82% 29,814 709 30,523 85.8% 1,286 3.6% 3,782 10.6%
1984 44,501 36,104 81% 31,060 401 31,461 87.1% 969 2.7% 3,674 10.2%
1985 47,360 38,530 81% 33,364 459 33,823 87.8% 994 2.6% 3,713 9.6%
1986 50,040 40,740 81% 34,927 521 35,448 87.0% 1,139 2.8% 4,153 10.2%
1987 54,168 43,942 81% 37,816 624 38,440 87.5% 1,371 3.1% 4,131 9.4%
1988 50,440 40,931 81% 34,872 616 35,488 86.7% 1,252 3.1% 4,191 10.2%
1989 52,955 43,479 82% 36,993 718 37,711 86.7% 1,128 2.6% 4,640 10.7%
1990 55,267 45,520 82% 39,093 597 39,690 87.2% 979 2.2% 4,851 10.7%
1991 57,410 47,092 82% 40,918 539 41,457 88.0% 631 1.3% 5,004 10.6%
1992 59,644 50,260 84% 44,154 476 44,630 88.8% 578 1.2% 5,052 10.1%
1993 61,309 51,723 84% 46,178 360 46,538 90.0% 502 1.0% 4,683 9.1%
1994 59,625 49,717 83% 45,044 385 45,429 91.4% 491 1.0% 3,797 7.6%
1995 54,980 46,773 85% 42,803 300 43,103 92.2% 467 1.0% 3,203 6.8%
1996 60,255 52,270 87% 47,921 275 48,196 92.2% 461 0.9% 3,613 6.9%
1997 63,148 55,648 88% 51,647 271 51,918 93.3% 499 0.9% 3,231 5.8%
1998 67,934 59,885 88% 55,913 343 56,256 93.9% 601 1.0% 3,028 5.1%
1999 73,481 64,815 88% 61,239 387 61,626 95.1% 487 0.8% 2,702 4.2%
2000 75,071 67,036 89% 63,503 360 63,863 95.3% 632 0.9% 2,541 3.8%
2001 75,650 67,731 90% 64,148 254 64,402 95.1% 1,035 1.5% 2,294 3.4%
Source: Statistical Table D-4 and Table D-6 (provided by Accounting
Office); additional calculations of percentages done by the court.