Federal Criminal Appeals: Waiver of the Right To Appeal, Contract Law and Parole Evidence

Evidence

A Federal Appellate Court recently held that Contract Law applied to criminal plea allocutions in Federal Court and that the Parole Evidence Rule invalidated a criminal defendant’s waiver of the right to appeal.

The Court held that a statement by the District Court during the plea colloquy, which improvidently expanded Defendant’s appellate rights, ultimately abrogated his waiver of the right to appeal and raise constitutional claims on appeal.

The criminal defendant pled guilty to four federal criminal charges. In the plea agreement, he waived his appellate rights subject to several exceptions, including an exception for “the assertion of constitutional claims that the relevant case law holds cannot be waived.”

The plea agreement contained an appellate waiver provision appeal attorney, which provided that he “voluntarily and expressly waive[d] all rights to appeal or collaterally attack” his conviction, subject to several exceptions. The waiver was “not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.” Further, it provided an exception if the government were to appeal the sentence and accepted a small number of enumerated claims that the defendant would be permitted to raise on appeal:
(1) That his sentence exceeded the statutory maximum for that count;
(2) That the sentencing judge erroneously departed upward under the Guidelines; or
(3) that the sentencing judge imposed an unreasonable sentence above the Guideline range.

During the plea colloquy, the court discussed the waiver in detail with the defendant. The court stated that the waiver “of course, is not intended to bar you [from] raising constitutional claims, and only the Court can decide whether they are constitutional claims or some other kind of claim.”

The Federal Appellate Court reasoned that when “the government invokes an appellate-waiver provision contained in a defendant’s plea agreement, the court must determine as a threshold matter whether the appellate waiver prevents the court from exercising appellate jurisdiction to review the merits of the defendant’s appeal.”

The Federal Appellate Court will decline to exercise jurisdiction over the appeal where the issues on appeal fall within the scope of the waiver and the defendant knowingly and voluntarily agreed to the waiver, unless “enforcing the waiver would work a miscarriage of justice.

The Federal Appellate Court found that the oral statements of the trial court at the plea had an impact on the validity of the waiver of the right to appeal and that contract principles clearly apply to the plea agreement.

The Court stated that “[L]logic indicates that if we may rely on the sentencing court’s statements to eliminate ambiguity prior to accepting a waiver of appellate rights, we must also be prepared to recognize the power of such statements to achieve the opposite effect. If it is reasonable to rely upon the court’s words for clarification, then we cannot expect a defendant to distinguish and disregard those statements of the court that deviate from the language of a particular provision in a lengthy plea agreement.

Because the government exercises tremendous bargaining power during the process of plea negotiation, the appellate court construes any ambiguities in the text against the government as drafter.

The parole evidence rule generally mandates that when a written contract is clear and unequivocal, its meaning must be determined by its contents alone.

Regardless of the clarity of a written plea agreement, Rule 11(b) of the Federal Rules of Criminal Procedure obligates a district court, before accepting a plea of guilty, to place the defendant under oath and to address the defendant orally and in open court, informing him of, inter alia, “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed. R. Crim. P. 11(b)(1)(N).

The Federal Appellate Court found that a statement made by the sentencing court during the colloquy can create ambiguity where none exists in the plain text of the plea agreement.

The appellate court construed this ambiguity against the government and interpreted the waiver of the right to appeal narrowly.

The Defendant had raised an ex post facto issue on appeal, which the Circuit Court of Appeals found in his favor and vacated his sentence and remanded the case back to the trial court for re-sentencing.