Make it clear, get it in writing, litigate it

The NMCCA has issued an unpublished opinion in United States v. Belcher.  This case has lessons for the defense and the prosecution.

It appears the defense offered a PTA for nine months and included offers to testify against co-conspirators.  The PTAO languished.  Then, “a second trial counsel contacted the appellant’s defense counsel because he was prosecuting one of the appellant’s co-conspirators, and he wanted the appellant to be a Government witness in that case.”  The TC then provided the DC with a grant of immunity and order to testify.  The Appellant testified for the prosecution, “but the CA never [still had not] accepted the 9-month offer [at the time].”  Later a PTA for 12 months was negotiated.

It appears from the opinion that the fundamental problem stems from poor communications and a lack of documentation.

The contents of the subsequent exchange are disputed by the parties[.]

Some documentation may have helped – email for example.  It appears the defense counsel did not press the issues of ongoing PTA negotiations and clarify what was going on.  (This may have happened and that has not been put into the opinion, but the tenor of the opinion belies that.)

Notably, the appellant does not contend on appeal that the second trial counsel ever told him or his
counsel that the offer had been accepted.

And apparently the DC never asked?  On appeal appellant was left to argue:

The appellant’s main argument is that the Government constructively accepted his 9-month offer when its agents took advantage of his cooperation in the co-conspirator’s case.  We find that the appellant waived this issue when he entered an unconditional guilty plea according to the negotiated 12-month
pretrial agreement.

If the defense thought that they had an implied agreement or acceptance of an agreement, then a motion to “compel” or enforce an implied agreement would have been proper at the time of trial.

The first time the defense raised the 9-month confinement cap was in their clemency letter of 1 February 2012, making a case in equity based on the cooperation of the appellant in the absence of an approved
pretrial agreement.

A pretrial motion to enforce an implied PTA would have helped ferret out the facts, make a record, and have a military judge possibly agree with the defense.  At least NMCCA would not have been able to find waiver, would have been forced to address the issue (had the MJ ruled against the defense), and Appellant might have gotten some pyrrhic appellate relief (trial was in December 2011 and the decision is dated yesterday).

Trial counsel could have helped here in being clear about what was happening with the PTA negotiations and the immunity issues.  (Although perhaps that’s where some of the undocumented discussions are disputed.)