United States District Court, E.D. New York
JOHN GLEESON, District Judge.
On April 12, 2012, Agron Hasbajrami pled guilty in his criminal case, No. 11-cr-623, to a single count of providing material support to terrorists. See DE 32. In January of 2013, I imposed a 15-year sentence, the statutory maximum. See DE 45. After sentence was imposed, I dismissed three other counts on the government's motion. See DE 44.
In July of 2013, it appears that Hasbajrami first attempted to file a pro se collateral attack under 28 U.S.C. § 2255. For reasons that are not clear, the paper filing never reached this Court; after some back and forth, Hasbajrami's § 2255 proceeding was instituted in December of 2013. Hasbajrami's pro se filing argued only that the statute under which he was convicted is unconstitutionally vague. Before that claim could be fully briefed and argued, however, the government disclosed new information that has changed the landscape of this case.
On September 13, 2011 - before Hasbajrami pled guilty - the government notified Hasbajrami that its evidence included "information obtained or derived from electronic surveillance and physical searches conducted pursuant to the Foreign Intelligence Surveillance Act of 1978 (FISA'), as amended, 50 U.S.C. §§ 1801-1812 and 1821-1829." DE 9 ("Initial Notice"). Key to the issue before me now is the government's subsequent supplemental disclosure, via a February 24, 2014 letter, of additional information about the evidence it would have used in Hasbajrami's case had it proceeded to trial. See Supplemental Notice, DE 65 in No. 11-cr-623. The Supplemental Notice revealed for the first time that the government's evidence included "information derived from acquisition of foreign intelligence information conducted pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. § 1881a."
Authority under § 1881a, also known as "Title VII" or "Section 702, " was conferred on the government by the FISA Amendments Act of 2008 ("FAA"). In broad terms, those amendments permit the government to gather an array of information from electronic communications made by people located outside the United States who are neither citizens nor legal permanent residents of the United States. See 50 U.S.C. §§ 1881a (grant of authority), 1801(i) (definition of "United States person"). In public debate, FAA intelligence has been described as "warrantless wiretap" information, since, in contrast to traditional FISA authority, the FAA does not require an individual court authorization (that is, a warrant) for each data collection. See, e.g., Charlie Savage, "Federal Prosecutors, in a Policy Shift, Cite Warrantless Wiretaps as Evidence, " N.Y. Times, October 26, 2013.
Following the Supplemental Notice (and before taking any action on Hasbajrami's pro se § 2255 petition), I reappointed counsel for Hasbajrami. See Unnumbered Order, March 13, 2014, in No. 13-cv-6852. Hasbajrami's attorneys sought additional information from the government about the FAA wiretaps, but the parties could not mutually agree on whether any specific material should be turned over. After failing to obtain any material on consent, Hasbajrami moved to compel. I held argument on the motion on September 12, 2014, and denied Hasbajrami's motion on the record.
In discussing Hasbajrami's discovery motion, however, it became clear that his 2012 guilty plea presents a significant barrier to many of the arguments he might present to challenge his conviction. Therefore I directed Hasbajrami to file a letter informing the Court whether (as suggested by his counsel at argument) he wishes to withdraw his guilty plea in light of the Supplemental Notice and any other developments in the case. By letter from counsel dated September 20, 2014, Hasbajrami confirmed that, contrary to his attorneys' advice, he wishes to withdraw his plea. See DE 84 in No. 11-cr-623.
Hasbajrami's guilty plea presents a serious obstacle to his ability to collaterally attack his conviction:
A plea of guilty and the ensuing conviction comprehend all of the factual and legal elements necessary to sustain a binding, final judgment of guilt and a lawful sentence. Accordingly, when the judgment of conviction upon a guilty plea has become final and the offender seeks to reopen the proceeding, the inquiry is ordinarily confined to whether the underlying plea was both counseled and voluntary. If the answer is in the affirmative then the conviction and the plea, as a general rule, foreclose the collateral attack.
United States v. Broce, 488 U.S. 563, 569 (1989). In Broce and other cases, the Supreme Court has made clear that a guilty plea generally extinguishes claims of any "antecedent constitutional violations." Tollett v. Henderson, 411 U.S. 258, 266 (1973).
There are two well-recognized exceptions to the general waiver principle. First, as outlined in the excerpt from Broce, the defendant may argue that the plea was not voluntary (for example, obtained by threat) or that the defendant did not know the consequences of pleading guilty (for example, the defendant was misled about the possible punishments he would face). But the bar is high: "[T]he law ordinarily considers a waiver knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances - even though the defendant may not know the specific detailed consequences of invoking it." United States v. Ruiz, 536 U.S. 622, 628-30 (2002) (emphasis in original). Thus, courts will usually hold enforceable a criminal defendant's waiver of his right to additional disclosures by the government,  as long as the defendant understands prior to his waiver the sorts of material he would generally be entitled to if the case went to trial. See Ruiz, 536 U.S. at 629-33 (government was not required to turn over potential impeachment material to defendant prior to guilty plea).
Second, in rare cases, a conviction may be collaterally attacked notwithstanding a guilty plea where "on the face of the record the court had no power to enter the conviction or impose the sentence." Broce, 488 U.S. at 569. The most notable recent examples include criminal defendants who pled guilty to a violation of 18 U.S.C. § 924(c) based on a reading of the law later held to be erroneous in Bailey v. United States, 516 U.S. 137, 144 (1995). Later, some petitioners whose offense conduct appeared not to violate the statute (as construed by Bailey ) were permitted to withdraw their pleas on the theory that they simply had not committed a criminal act. See generally Bousley v. United States, 523 U.S. 614 (1998). Perhaps Hasbajrami's pro se argument (that the statute under which he was convicted is unconstitutionally vague) could be thought to fall into this category, but here too he would face great difficulty. Cf. United States v. Yousef, 750 F.3d 254, 260 (2d Cir. -) (holding that the defendant's plea agreement waived a challenge to extraterritorial application of the material support statute).
The parties also appear to agree on a third exception: "in extraordinary circumstances where the defendant has been induced to plead guilty by egregious misrepresentations or other serious misconduct, a court may find that the defendant was deprived of his ability to plead guilty voluntarily." Govt. Br. 21-22, DE 25 in No. 13-cv-6852 (citing Bousley ). This theory derives from a reading of the Supreme Court's opinion in Brady v. United States, 397 U.S. 742 (1970), where the Court wrote that a knowing and voluntary guilty plea "must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)." Id. at 755 (quoting Shelton v. United States, 246 F.2d 571, 572 n. 2 (5th Cir. 1957) ( en banc ), rev'd on confession of error on other grounds, 356 U.S. 26 (1958)). Recent applications of this exception include United States v. Fisher, 711 F.3d 460, 465-66 (4th Cir. 2013) and Ferrara v. United States, 456 F.3d 278, 290 (1st Cir. 2006). Both Fisher and Ferrara involved egregious governmental conduct: in Fisher, a DEA agent lied about the source of information used to obtain a warrant as part of a larger pattern of self-enriching criminal activity, see 711 F.3d at 463; and in Ferrara, members of the prosecution knowingly withheld and then manipulated evidence that the defendant had not ordered a murder he pled guilty to committing, see 456 F.3d at 281-86. In independently researching this question, I have not found any Second Circuit decisions citing either Fisher or Ferrara with approval, nor any other recent Second Circuit case with such an expansive interpretation of the relevant language from Brady v. United States . Indeed, I am not convinced that Ferrara, and especially Fisher, were correctly decided, or that the government is correct to concede that Brady v. United States should be read so broadly. But I defer to the able prosecutors arguing the government's case and decide the motion on the terms on which it has been presented - which does not require me to address the legal merits of the third exception.
Rather, I will permit Hasbajrami to withdraw his plea of guilty because I conclude that he was not sufficiently informed about the facts. Under the precise circumstances presented here, and because of a DOJ policy that transcended this case, Hasbajrami could not have made an intelligent decision about whether to plead guilty: When the government provided ...