United States v. Merlino, 109 F. Supp. 3d 368

William Merlino was convicted after a lengthy jury trial for conspiracy and firearms offenses arising from an attempted armored‑car robbery; he was the least culpable participant and viewed as a "gopher."
Assistant U.S. Attorney James Lang testified he made an oral plea overture to defense counsel Peter Parker in August 2001: dismiss the grenade count (which carried a 30‑year mandatory) in exchange for guilty pleas to remaining counts with a 17‑year recommended sentence and no guideline departure.
Parker had notes memorializing a phone call with Lang but had no independent recollection of conveying the offer to Merlino and no file entry showing he discussed it with his client.
Merlino credibly testified he was never told of the plea offer and that he would have accepted it; he subsequently received a far longer sentence after trial.
The court held an evidentiary hearing, found Lang’s testimony and Parker’s notes credible, concluded Parker failed to communicate the offer to Merlino, and that Merlino was prejudiced under the Supreme Court’s Lafler/Frye framework.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did counsel fail to convey a plea offer?	Merlino: Parker never told him about Lang’s August 2001 offer.	Government/Parker: Offer existed but was not a binding written agreement; recall fuzzy.	Court found Parker had notes of the offer but did not communicate it; ineffective assistance.
Was the oral plea offer sufficiently definite/enforceable?	Merlino: Offer specified dismissed count, counts to plea to, guideline range, and no departure — thus complete.	Government: Oral offer not characterized as binding; customary to reduce to writing.	Court held the oral offer contained the essential terms and was enforceable.
Was Merlino prejudiced under Strickland/Lafler/Frye?	Merlino: But for counsel’s failure, he would have accepted the offer and received a lesser sentence.	Government: Uncertainty whether prosecution or court would have approved the offer.	Court found a reasonable probability Merlino would have accepted, the prosecutor would have advocated approval, and the court would have accepted it; prejudice established.
Appropriate remedy?	Merlino: Seek reinstatement of the plea and resentencing on offered terms.	Government: Concern about formality and whether offer remained available.	Court ordered the U.S. Attorney to extend the original plea terms to Merlino and set a resentencing date.

Padilla v. Kentucky, 559 U.S. 356 (2010) (counsel must advise on material collateral consequences of pleas; recognizes predominance of plea bargaining)
Premo v. Moore, 562 U.S. 115 (2011) (plea bargaining involves complex strategic judgments by counsel)
Lafler v. Cooper, 566 U.S. 156 (2012) (Strickland standard applies to counsel’s advice during plea bargaining; sets prejudice test and permits specific performance/remedy discretion)
Missouri v. Frye, 566 U.S. 134 (2012) (counsel has duty to communicate formal plea offers; oral offers can be enforceable)
Strickland v. Washington, 466 U.S. 668 (1984) (two‑part test for ineffective assistance of counsel)