UNITED STATES OF AMERICA, Plaintiff, v. JONATHAN KEARN, Defendant.
Case No. 13-40057-01-DDC
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
Filed 01/04/22
Case 5:13-cr-40057-DDC Document 210
This matter comes before the court on Jonathan Kearn‘s Amended Motion to Vacate, Set Aside, or Correct a Sentence Under
The question presented by Mr. Kearn‘s motion is not about his guilt. The jury decided that question several years ago. Their 2015 verdict convicted Mr. Kearn of three federal child pornography charges stemming from pictures he took of his four-and-a-half-year-old daughter and then shared on the internet. See Doc. 97. And in affirming Mr. Kearn‘s conviction in 2017, the Tenth Circuit characterized “the evidence of [Mr.] Kearn‘s guilt [as] overwhelming[.]” United States v. Kearn, 863 F.3d 1299, 1312 (10th Cir. 2017), cert. denied, 138 S. Ct. 2025 (2018).
But no matter his guilt, Mr. Kearn had a constitutional right to effective assistance of counsel. This Order addresses that right as it pertains to the critical stage of plea bargaining, which, as the Supreme Court has recognized, “is not some adjunct to the criminal justice system; it is the criminal justice system.” Missouri v. Frye, 566 U.S. 134, 144 (2012) (quoting Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992)).
Before trial, the government offered Mr. Kearn a plea deal under
The court recognizes the difficulty with this claim. It first requires the court to evaluate the performance of counsel with the benefit of hindsight. Even more challenging, it requires the court to reach back in time and construct a counterfactual world to determine what Mr. Kearn would‘ve done had he received the legal advice he claims he‘d have received from effective assistance. But after considering at great length the focused and admirable guidance from the parties on this difficult claim, the court concludes it must decide
I. Background
A. Procedural Background
This case began many years ago. On May 29, 2013, a grand jury indicted Mr. Kearn on three charges: (1) permitting his minor children to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, violating
On April 25, 2019, Mr. Kearn filed a Motion for Relief under
The court considered and rejected all but one of Mr. Kearn‘s claims of ineffective assistance of counsel. See generally Doc. 173. The lone surviving claim asserted that Mr. Kearn‘s counsel had advised him that he could not plead guilty because, if he did, he would commit perjury by accepting responsibility for something he asserted he didn‘t do. See id. at 20-21 (citing Doc. 165 at 37-38). The court concluded that—on the extant record—it couldn‘t determine whether Mr. Kearn had received constitutionally adequate representation from counsel about the government‘s plea offer. So, the court concluded that this claim “may warrant” an evidentiary hearing. Id. at 24. But, citing logistical constraints imposed by the COVID-19 pandemic, the court ordered the government to submit an affidavit from Mr. Kearn‘s former trial counsel addressing Mr. Kearn‘s remaining claim. Id. at 24-25. The court noted that “[a]fter all parties have reviewed the affidavit, the court will evaluate next steps and, if an evidentiary hearing is warranted, the steps required to facilitate Mr. Kearn‘s travel.” Id. at 25.
The government then filed an Affidavit from Mr. Kearn‘s former trial counsel, Mr. Michael Francis, whom the court refers to throughout this Order as “counsel” or “trial counsel.” Doc. 178; Doc. 178-1. Counsel‘s Affidavit contested Mr. Kearn‘s allegations of ineffective assistance of counsel during the plea process. See Doc. 178-1. The court thus determined that the factual dispute created by the Affidavit required an evidentiary hearing “solely on the issue of whether Mr. Kearn‘s trial counsel provided
The evidentiary hearing took place on April 19, 2021. Mr. Kearn‘s counsel called three witnesses: (1) Mr. Kearn‘s trial counsel, (2) Mr. Kearn, and (3) Branden Bell, a criminal defense attorney with many years of experience in federal court criminal cases. See generally Doc. 204. The court summarizes their testimony in parts B, C, and D. The court begins by summarizing the events surrounding the plea offer and Mr. Kearn‘s rejection of it, as gleaned from the testimony of Mr. Kearn and his trial counsel. Then, the court summarizes the testimony of Mr. Kearn‘s trial counsel and Mr. Bell about their experiences with plea bargaining in federal court. These summaries comprise the court‘s findings providing the factual basis for this Order‘s ultimate conclusions.
B. The Government‘s Rule 11(c)(1)(C) Plea Offer
Before Mr. Kearn‘s criminal trial, the government offered him a
Mr. Kearn‘s trial counsel discussed the government‘s
(Counsel Testimony), 45 (Kearn Testimony). He didn‘t “weigh the pros and cons of that plea offer” with Mr. Kearn. Id. at 45 (Kearn Testimony). Nor did he discuss or explain to Mr. Kearn anything about
In those six minutes, counsel also advised Mr. Kearn about the need to supply a factual basis for the guilty plea. Id. (Kearn Testimony); see also id. at 30-31 (Counsel Testimony). According to Mr. Kearn, counsel advised him that if he accepted the guilty plea, he “would have to tell the judge [he] was guilty of the crime[.]” Id. at 44. And, counsel continued, because Mr. Kearn claimed he “was not guilty of the crime,” he “couldn‘t honestly say . . . to the judge in good conscience” that he was guilty of the crime. Id. (Kearn Testimony). Counsel did not “talk about an option where [Mr. Kearn] would not have to personally state a factual basis for the plea[.]” Id. at 44-45 (Kearn Testimony);
At the end of the meeting, Mr. Kearn told his counsel that “he would not plead guilty” because “he didn‘t do it—didn‘t do what he was charged with.” Id. at 31 (Counsel Testimony). Counsel noted in response that it was “too bad there‘s not a no contest plea” offered in federal court. Id. at 44 (Kearn Testimony).
Later, Mr. Kearn‘s counsel called the prosecutor in the case and left a voicemail declining the government‘s plea offer. He explained that Mr. Kearn said “he didn‘t do it,” so “that‘s a problem.” Gov. Ex. 100; see also Doc. 178-1 at 3 (prosecutor email to counsel noting that Mr. Kearn had rejected “an offer of a c1C to 10 years“). Counsel testified that he did not believe at any point during his representation of Mr. Kearn that his client would plead guilty. Doc. 204 at 31.
Shortly before trial, during a Lafler/Frye colloquy, Mr. Kearn acknowledged that he was made aware of the government‘s “binding plea agreement to a 10-year sentence to Count [Three].” See Gov. Ex. 101; Doc. 143 at 240-41. He then proceeded to trial where he was convicted on all three charges and later sentenced to more than 24 years in prison. At the evidentiary hearing on the current motion, Mr. Kearn testified that had he known the government could supply the factual basis for the guilty plea, he would have accepted the government‘s plea offer. Doc. 204 at 46-47; see also id. at 49 (Mr. Kearn testified he could have stated the government‘s evidence was sufficient to prove him guilty beyond a reasonable doubt). But, on cross examination, the government asked Mr. Kearn if he could have admitted that he knowingly committed the crime and was, in fact, guilty of it. Id. at 48 (noting that the court has asked that question in the past to defendants during their change of plea hearings). Mr. Kearn said he could not. Id.
C. Trial Counsel‘s Testimony About Federal Plea Agreements
Mr. Kearn‘s trial counsel could not recall specifically how he advised Mr. Kearn about the government‘s plea offer. Doc. 204 at 28. But in his Affidavit, counsel listed the general advice he customarily provides clients about plea offers. See Doc. 204 at 26; Doc. 178-1 at 2
(Counsel Aff.). And he testified about that general advice at the evidentiary hearing. See Doc. 204 at 28-31.
In his practice, trial counsel advises his clients about supplying a factual basis for the plea at a hearing. Counsel testified that he was aware of three potential ways that defendants could meet this requirement: (1) “the judge will ask the client to tell the court the facts surrounding the offense[;]” (2) the judge “will ask the client if he has read the affidavits and pleadings alleging the offense and whether the client agrees an offense is stated[;]” or (3) the judge “will have the prosecutor present facts to the court constituting the offense and then ask[ ] the client if he agrees with the prosecutor‘s statements.” Doc. 178-1 at 2 (Counsel Aff.). But, in all cases, counsel advises his clients “that the judge will ask if the client is pleading guilty because he is guilty.” Id.
Counsel also testified about his knowledge of
D. Mr. Bell‘s Testimony About Federal Plea Agreements
Mr. Kearn also offered testimony by Branden Bell, a criminal defense attorney based in Kansas City. Mr. Bell has practiced primarily in federal court for 12 years. Doc. 204 at 51. By the time of the hearing on this motion, he had represented some 240 clients in federal court, many of them while a member of the Office of the Federal Public Defender for this judicial district. Id.
Mr. Bell testified that it is common for criminal defendants to profess their innocence to him when charged with sensitive crimes, like sex cases or child abuse cases. Id. at 52. But in cases like these, “if there‘s a plea offer that substantially reduces their exposure, [his] goal is to make sure that [defendants] have all the information available to them but make the prospect of a plea hearing seem as painless as possible[.]” Id.
When it comes to supplying the requisite factual basis for a plea, Mr. Bell testified that there are several options. One involves working with the government to change the language of the plea agreement to provide that his “client agrees that the government has evidence that would show” a certain fact. Id. at 59. Mr. Bell testified that he regularly uses this approach in conspiracy cases where a plea agreement asks his client to admit facts outside the scope of their personal knowledge. Id. But he also testified that this practice works for clients who are “reluctant” to plead guilty because a “psychological hurdle” prevents them from personally admitting the facts of the offense. See id. at 60. To overcome this hurdle, Mr. Bell explained that he shows clients “that the language in
Mr. Bell also testified about his knowledge of
plea hearing.” Id. at 61. In Mr. Bell‘s view, the “certainty of a (c)(1)(C) puts clients’ minds at ease . . . because now they know what‘s going to happen to them.” Id. at 61-62. He testified that
Finally, Mr. Bell explained his practice with clients who have professed their innocence. In his words, “when the evidence is overwhelming and a client is still persisting in their innocence, that is always an indication to me that . . . there‘s a psychological stumbling block that is not . . . allowing the client to come out and explicitly say what the evidence strongly suggests occurred.” Id. at 53-54. In these situations, Mr. Bell believes his role is “to try and lower that psychological hurdle[.]” Id. at 54. This involves repeatedly explaining the plea offer and its structure to help defendants make an informed decision. Id. at 54-55. Specifically, in Mr. Bell‘s view when the government has presented a “very good plea offer,” then he will spend more time than usual discussing the plea offer with a defendant. Id. at 54. Mr. Bell testified that he spends about an hour to an hour and a half discussing a plea offer with a client. Id. at 58. And, depending on how reluctant a client is to accept a plea deal, these conversations may take place over multiple visits and multiple hours. Id. at 57. Mr. Bell testified that he never has completed a plea offer discussion in six minutes. Id. at 56-57.
At all times, Mr. Bell views his role as providing his clients with all the information
II. Legal Standard
A prisoner in federal custody may move to vacate his sentence if such “sentence was imposed in violation of the Constitution or laws of the United States[.]”
To prevail on Strickland‘s first prong—constitutionally deficient performance—defendant “must show ‘that counsel‘s representation fell below an objective standard of reasonableness[.]‘” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Strickland, 466 U.S. at 688). But there is a “strong presumption that counsel provided effective assistance.” United States v. Holloway, 939 F.3d 1088, 1103 (10th Cir. 2019) (quotation cleaned up); see also Strickland, 466 U.S. at 689 (“Judicial scrutiny of counsel‘s performance must be highly deferential.“). “A fair assessment of attorney performance requires” the court to make every effort “to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel‘s challenged conduct, and to evaluate the conduct from counsel‘s perspective at the time.” Strickland, 466 U.S. at 689. “[T]o show that his counsel was deficient, [defendant] must demonstrate that the errors were so serious that ‘counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.‘” Hanson v. Sherrod, 797 F.3d 810, 826 (10th Cir. 2015) (quoting Strickland, 466 U.S. at 687); see also Wilson v. Sirmons, 536 F.3d 1064, 1083 (10th Cir. 2008) (“Counsel‘s performance must be completely unreasonable to be constitutionally ineffective, not merely wrong.” (quotation cleaned up)).
The Supreme Court has recognized the deficient performance prong “is necessarily linked to the practice and expectations of the legal community” as well as the “prevailing norms of practice as reflected in American Bar Association standards and the like[.]” Padilla v. Kentucky, 559 U.S. 356, 366 (2010) (quotation cleaned up). In the context of plea agreements, counsel has a “critical obligation . . . to advise the client of ‘the advantages and disadvantages of a plea agreement.‘” Id. at 370 (quoting Libretti v. United States, 516 U.S. 29, 50-51 (1995)). And counsel‘s “ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on
Strickland‘s second prong—prejudice—requires a defendant to “show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Lafler, 566 U.S. at 163 (quoting Strickland, 466 U.S. at 694). “In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice.” Id. When a defendant alleges ineffective assistance led the defendant to reject a plea offer, a defendant must establish that “but for the ineffective advice of counsel there is a reasonable probability” that:
[1] defendant would have accepted the plea . . . [2] the prosecution would not have withdrawn it in light of intervening circumstances . . . [3] the court would have accepted its terms, and . . . [4] the conviction or sentence, or both, under the offer‘s terms would have been less severe than under the judgment and sentence that in fact were imposed.
Id. at 164. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. This standard “does not require that the [defendant] show that counsel‘s deficient conduct more likely than not altered the outcome in the case[.]” Byrd v. Workman, 645 F.3d 1159, 1168 (10th Cir. 2011) (quotation cleaned up). But “mere speculation is not sufficient to satisfy this burden.” Id.
The court‘s analysis, following, applies this legal standard to Mr. Kearn‘s ineffective assistance of counsel claim.
III. Analysis
Mr. Kearn argues that his trial counsel provided ineffective assistance because he failed to explain adequately and accurately two aspects of his specific plea offer: “(1) the key benefits conveyed by
In response, the government argues that Mr. Kearn‘s trial counsel didn‘t provide deficient performance in either respect. To the contrary, the government contends, counsel provided sufficient information for Mr. Kearn to understand that he was rejecting a “binding” plea deal to 10 years in prison. See Doc. 207 at 10. And more importantly, the government continues, Mr. Kearn can‘t show that he would‘ve pleaded guilty to the offense because he was unwilling to admit that he was, in fact, guilty. Id. at 19-20.
The court agrees with Mr. Kearn. When viewed in the aggregate, the totality of trial counsel‘s legal advice during the plea process fell below an objective standard of reasonableness. In short, trial counsel understated the benefits of
A. Strickland Prong One: Deficient Performance
The court discusses trial counsel‘s deficient performance in two individual aspects: his failure to advise Mr. Kearn adequately about (1) the benefits of
1. Benefits of Rule 11(c)(1)(C)
A plea agreement under
On the other hand, if the court chooses not to accept the plea agreement, the court must inform the defendant that the court isn‘t bound by the recommended sentence.
When trial counsel discussed this offer with Mr. Kearn, he devoted just six minutes to the subject. While it isn‘t entirely clear what Mr. Kearn‘s counsel told him, it‘s apparent that he didn‘t discuss the contours of
than by looking at the schedule of—if you don‘t have ‘x’ number offenses and you plead to this offense, then I believe this is what it was. Either that or else [the prosecutor] had told me that that was what it was going to be.” Id.
Mr. Kearn argues that this testimony reveals his trial counsel‘s misunderstanding of how
Nevertheless, in the plea agreement context, counsel has a “critical obligation to advise the client of ‘the advantages and disadvantages of a plea agreement.‘” Padilla v. Kentucky, 559 U.S. 356, 370 (2010) (quoting Libretti v. United States, 516 U.S. 29, 50-51 (1995)). And here, the court finds, trial counsel failed to convey the extraordinary value of a
Courts across the country have recognized the benefits that flow from the certainty of a
In a related context, our Circuit has explained that knowledge “of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.” United States v. Washington, 619 F.3d 1252, 1259-60 (10th Cir. 2010) (quotation cleaned up). And so, where counsel displays a failure “to understand the basic structure and mechanics of the sentencing guidelines[,]” such that the defendant is “incapable” of “mak[ing] reasonably informed decisions[,]” that failure amounts to deficient performance under Strickland. Id. at 1260.
Mindful of this guidance, the court likewise concludes that a failure to understand the basic structure and mechanics of this important aspect of the
2. Burdens of Rule 11(b)(3)
Counsel‘s advice also materially overstated the burdens imposed on Mr. Kearn to provide the factual basis for a guilty plea under
“Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.”
Often, the court makes this determination after questioning the defendant about the facts of his offense. But “nothing in
long as the factual basis is put on the record.” United States v. Moran, 452 F.3d 1167, 1171 (10th Cir. 2006) (quotation cleaned up).
From his Affidavit and testimony, it appears that trial counsel was aware of these multiple paths to supplying a factual basis for a guilty plea. His Affidavit describing his general advice to clients explains three such paths that a plea colloquy can follow: (1) “the judge will ask the client to tell the court the facts surrounding the offense[;]” (2) the judge “will ask the client if he has read the affidavits and pleadings alleging the offense and whether the client agrees an offense is stated[;]” or (3) the judge “will have the prosecutor present facts to the court constituting the offense and then ask[ ] the client if he agrees with the prosecutor’s statements.” Doc. 178-1 at 2 (Counsel Aff.); see also Doc. 204 at 28–29 (counsel testimony acknowledging “three different ways that a plea hearing can go”).
But in his testimony, counsel conceded that he regularly advised his clients to take the first path. Doc. 204 at 29–30. Indeed, in all nine federal court guilty pleas trial counsel had hearing concludes. See Landeros-Lopez, 615 F.3d at 1264 (“Because the PSR was not prepared until after [defendant’s] guilty plea was accepted, we cannot look to it in considering whether the district court correctly determined there was a factual basis for accepting the plea.”). But the federal rules don’t require the parties to provide the factual basis during the plea hearing itself. See
Thus, presentence reports are relevant to the factual basis requirement, but only when the court enters judgment on the guilty plea. Such reports likely aren’t relevant to accepting the factual basis for a plea at the change of plea hearing. But the court knows of nothing requiring courts to decide whether to accept a defendant’s guilty plea during the change of plea hearing. See Wright, Miller & Leipold, supra, § 177 (“At the conclusion of the plea colloquy the district court may accept the guilty plea, reject it, or may defer a decision pending further consideration of the accompanying plea agreement or the presentence report.”). So, to make a long story short, presentence reports can supply the factual basis for a plea, but only when: (a) the court delays its decision to accept the plea until sometime after the plea hearing concludes but accepts it before entering judgment; or (b) the relatively rare circumstance where the United States Probation Office conducts a pre-plea investigation and prepares a presentence report before the change of plea hearing. participated in before Mr. Kearn’s case, the defendant had supplied the factual basis for the guilty plea in the plea petition. Id. at 16–25. And while counsel couldn’t recall the specific advice he gave Mr. Kearn, he testified that he likely would’ve advised him to do the same. See Id. at 30–31. He testified that he would’ve done so because he believed the law required defendants to admit the facts. Id. at 25.
But the law doesn’t require defendants to admit the facts. Relevant here, the government could’ve satisfied the factual basis requirement by reciting a summary of the evidence it had adduced of Mr. Kearn’s guilt. Mr. Kearn then could’ve acknowledged that the government possessed evidence sufficient to support a conviction beyond a reasonable doubt. As explained above,
Also, the undersigned judicial officer has followed this procedure for establishing a factual basis when circumstances required it. See Def. Ex. 12 (Transcript of Change of Plea Hearing, United States v. Martinez-Martinez, No. 18-20090 (D. Kan. Sept. 19, 2019), ECF No. 46 at 22-23). And, Mr. Bell testified that he regularly follows this process for establishing a factual basis when a client maintains innocence even after receiving a favorable plea offer. In this situation, Mr. Bell explained, he’ll work with the government to change the language of a plea agreement to state that the “client agrees that the government has evidence that would show” a certain fact. Doc. 204 at 59. In Mr. Bell’s experience, this lowers any “psychological hurdle” preventing clients from personally admitting the facts of their charged offense. Id. at 60. It allows clients to satisfy the factual basis requirement for a guilty plea, but also abides their desire not to admit the facts of the charged offense in open court. See id.
Given Mr. Kearn’s protests of innocence before trial and his unwillingness to admit to a factual basis in open court, advice about this option for a plea colloquy was decidedly relevant to Mr. Kearn’s decision whether to accept the government’s plea offer. But the evidence adduced at the hearing established that trial counsel didn’t advise Mr. Kearn about any alternatives to supplying a factual basis for the guilty plea. Instead, counsel advised Mr. Kearn that he would have to admit the facts of his charged offense. And if he were unwilling to do that, he couldn’t plead guilty. As counsel agreed at the hearing, “if a client wants to plead guilty and admit to the facts, they can, but the alternative is trial.” Id. at 39.
In this situation, counsel’s advice was, again, incomplete and imprecise. No statute, rule, or other legal authority required Mr. Kearn to admit the facts in open court. But his belief—based on trial counsel’s advice—that he must do so to plead guilty foreclosed accepting the plea deal as a viable option. In short, counsel’s failure to advise adequately about any alternatives to supply the factual basis closed Mr. Kearn’s narrow path to a guilty plea before he even knew it existed.
In the end, Mr. Kearn provides a compelling and persuasive theory of deficient performance. Counsel understated the benefits of the
B. Strickland Prong Two: Prejudice
In a case like this, Strickland’s prejudice inquiry is a difficult one. The court must first imagine a world different from the one described above—the real facts where Mr. Kearn received deficient advice from his counsel. That is, the court must construct a counterfactual world in which Mr. Kearn’s counsel adequately had advised him about the immense benefits of the government’s plea offer and the relatively light burden of supplying a factual basis for a guilty plea. See Lafler, 566 U.S. at 163 (“To establish Strickland prejudice a defendant must ‘show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” (quoting Strickland, 466 U.S. at 694)); see also Mayfield v. United States, 955 F.3d 707, 713 (8th Cir. 2020) (explaining that, under Lafler, the prejudice inquiry requires district courts “to make findings about what likely would have transpired in . . . a counterfactual scenario” where counsel adequately advised the defendant). The court must then determine how Mr. Kearn would’ve responded to this counterfactual scenario. Or, more precisely, the court must determine whether there is a reasonable probability that things would’ve gone as Mr. Kearn now says they would have—that he would have accepted the government’s plea offer, acknowledged at the plea hearing that the government had sufficient evidence to convict him, and then, pleaded guilty in open court. See Lafler, 566 U.S. at 164.
In this situation—where choosing “to stand trial, [and] not choosing to waive it, is the prejudice alleged”—the Supreme Court has required defendants to establish four things. Id. at 163-64. A defendant must demonstrate that “but for the ineffective advice of counsel there is a reasonable probability that” (1) “the defendant would have accepted the plea[,]” (2) “the prosecution would not have withdrawn it in light of intervening circumstances,” (3) “that the court would have accepted its terms,” and (4) “that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.” Id. at 164.
The government doesn’t dispute Mr. Kearn’s ability to satisfy the second and fourth requirements. See Doc. 207 at 19 (arguing only that Mr. Kearn “cannot establish the first or third o[f] these requirements”). And the court agrees. Mr. Kearn has made those two required showings. Nothing suggests that the government would’ve withdrawn its
That leaves the most difficult inquiry—whether there’s a reasonable probability that Mr. Kearn would’ve accepted the plea deal but for his counsel’s deficient advice. As one would expect, Mr. Kearn contends there is. While he maintains that he could not and would not have admitted to the facts of the charged offense, he asserts that he would’ve pleaded guilty in one narrow circumstance: one where the government would supply the factual basis for the plea and he would acknowledge that the government had sufficient evidence to convict him. The government responds in form, arguing that no such thing would have happened. In its view, even if the government had supplied the factual basis for the plea, Mr. Kearn still would’ve had to admit his guilt in open court. And, the government contends, that’s something Mr. Kearn just couldn’t do, given the specific questions this court has asked defendants in the past when they entered their guilty pleas.
The court concludes otherwise. It agrees with Mr. Kearn that there is a reasonable probability that, but for his counsel’s deficient advice, he would’ve accepted the government’s plea offer. To reach this finding, the court relies heavily on the recent opinion from the D.C. Circuit in United States v. Knight, 981 F.3d 1095 (D.C. Cir. 2020). This case explored at length the difficulties of the prejudice inquiry in a case like this one. But before summarizing that decision, the court explains why it relies so heavily on it here. While neither party cited Knight in their papers, their arguments led the court to it. In his post-hearing brief, Mr. Kearn cited one of the Supreme Court’s latest decisions about ineffective assistance of counsel in the plea process, Lee v. United States, 137 S. Ct. 1958 (2017). That case dealt with the inverse of Mr. Kearn’s situation. Unlike Mr. Kearn, the Lee defendant chose to plead guilty and waived his right to a trial. But after learning about the deportation consequences of his guilty plea, the defendant later argued that—but for the ineffective assistance of counsel—he would’ve instead taken his chances at trial even though the evidence against him was overwhelming. The Supreme Court agreed with the defendant for reasons that don’t matter here. But in reaching its conclusion, the Supreme Court provided clear instruction for courts facing ineffective assistance of counsel claims arising from the plea process: “Courts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.” Id. at 1967 (second emphasis added).
This direction from the Supreme Court isn’t new, at least not in our Circuit. Long ago, the Tenth Circuit cautioned district courts to “remain suspicious of bald, post hoc and unsupported statements that a defendant would have changed his plea absent counsel’s errors[.]” Heard v. Addison, 728 F.3d 1170, 1184 (10th Cir. 2013); see also United States v. Watson, 766 F.3d 1219, 1226 (10th Cir. 2014) (explaining that defendants need something more than a “self-serving statement” that “does no more than open the door to conjecture”). But what counts as contemporaneous evidence after Lee? Conducting its own research while looking for an answer to that question led the court to Knight.
All that makes sense. Courts can’t rationally expect defendants to theorize contemporaneously about the decisions they would make if they were receiving different advice. If courts required this kind of evidence, no defendant could show prejudice. And that can’t be what Lafler and Lee intended. Lafler envisions a world—albeit a limited one—where defendants can show that they would’ve pleaded guilty had they not received constitutionally inadequate advice. Applying a standard that effectively forecloses defendants from making the requisite showing would ignore Lafler and leave only a shell of a constitutional right. It would mean defendants could receive constitutionally inadequate advice but never secure any relief. The court doesn’t take that path here because, in its judgment, that’s not what the Supreme Court or our Circuit intended. So, absent clear direction from the Supreme Court or the Tenth Circuit about what qualifies as sufficient “contemporaneous evidence,” the court follows the trail blazed by the D.C. Circuit in Knight. And the court thus predicts that the Tenth Circuit, if presented with the question, would do the same.
Using that approach, Knight highlighted two key pieces of contemporaneous evidence corroborating the defendant’s post hoc testimony that he would have pleaded guilty had he received different advice.
First, there was an extreme disparity in sentencing exposure between accepting the plea offer and going to trial. The plea offer required Knight’s defendant to plead guilty to a single charge with a guideline range of two to six years. But proceeding to trial “risked a ten-count indictment in federal court, dramatically greater sentencing exposure, and an actual imposed sentence of more than twenty-two years.” Id. at 1103. The D.C. Circuit held that this severe disparity and the generosity of the plea offer itself qualified as “contemporaneous evidence” that the defendant would’ve accepted the offer “had counsel correctly apprised him of how favorable it
Second, there also was evidence that Knight’s defendant, at the time of the plea offer, was “amenable to accepting the plea offer” and “not otherwise . . . dead-set on going to trial[.]” Id. at 1104. The defendant testified at the § 2255 evidentiary hearing that “when his counsel informed him the government had extended a plea offer, his first question was ‘how much time does the government want for that?’” Id. (quotation cleaned up). The D.C. Circuit concluded that this “question suggest[ed] that [defendant’s] decision whether to accept the plea offer was calibrated to the sentence that he would receive as a result of pleading guilty.” Id. Also, at an earlier hearing when the plea offer still was open to defendant, counsel incorrectly informed him in open court that the guilty plea would require 10 years in prison. At first, the defendant was resistant. But when counsel said he would talk to defendant some more about the offer, the defendant replied “okay.” Id. This exchange, the D.C. Circuit reasoned, “indicates that . . . [defendant] was amenable to further discussion and possibly to changing his mind[.]” Id. And nothing in the record otherwise suggested that the defendant “was dead-set on going to trial no matter its risks and consequences[.]” Id. So, the D.C. Circuit determined, a “reasonable probability” existed “that [the defendant] would have changed his mind” and pleaded guilty if his counsel had advised him properly. Id.; see also Byrd, 940 F.3d at 259 (concluding that defendant showed contemporaneous evidence that he would’ve pleaded guilty because “he specifically asked [his counsel] about the possibility of pleading” but his counsel “convinced him to stay the course” and proceed to trial). In sum, the D.C. Circuit was persuaded by two key pieces of contemporaneous evidence: (1) the significant disparity in sentencing exposure between the plea offer and going to trial; and (2) evidence from the period when the plea was available to defendant showing that the defendant was amenable to pleading guilty and not otherwise dead-set on going to trial. When “[c]ombined with [defendant’s] after-the-fact testimony” that he would’ve accepted the plea deal had his counsel adequately advised him, these two pieces of contemporaneous evidence “suffice[d] to show a reasonable probability that [defendant] would have accepted the plea offer” but for his counsel’s deficient advice. Knight, 981 F.3d at 1103.
Applying Knight’s reasoning to this case’s facts, the court concludes that Mr. Kearn likewise has established a reasonable probability that he would’ve accepted the government’s plea offer but for his counsel’s deficient advice. This is a close and difficult call. Mr. Kearn acknowledges that he would’ve pleaded guilty only in a very narrow circumstance: where the government supplied the factual basis for the guilty plea, and he acknowledged that the government had sufficient evidence to convict him at trial. See Doc. 204 at 46–47, 49. And he lacks the same kind of contemporaneous evidence present in Knight, i.e., evidence suggesting that he was amenable to pleading guilty. But, as explained fully below, nothing in the record suggests that Mr. Kearn was dead set on going to trial and that no plea offer, no matter how
Second, nothing in the record suggests that Mr. Kearn was so intent on going to trial that no plea deal could convince him to do otherwise. On the contrary, the record suggests that he resisted the guilty plea because of his reluctance to admit the facts of his charged offense, personally and in open court. He testified at the evidentiary hearing on the current motion that it would’ve been difficult for him to admit the facts of his offense “before [his] friends and family[.]” Doc. 204 at 46. Trial counsel testified that Mr. Kearn rejected the plea deal because Mr. Kearn said “he didn’t do it—didn’t do what he was charged with.” Id. at 31. And in the voicemail message counsel used to inform the prosecutor of Mr. Kearn’s decision, he confirmed Mr. Kearn’s refusal to admit the facts of his offense. See Gov. Ex. 100 (rejecting plea offer because Mr. Kearn said “he didn’t do it,” so “that’s a problem”). Nowhere does the record suggest that Mr. Kearn’s objection to the plea offer was an objection to the fact of a guilty plea itself. Mr. Kearn testified that had he known the government could supply the factual basis for a plea, he would’ve accepted the deal, and would’ve pleaded guilty. See Doc. 204 at 46–47, 49. And while that’s a post-hoc assertion, the contemporaneous evidence comports with it.
Also, counsel’s testimony at the hearing suggests that Mr. Kearn potentially was amenable to accepting the government’s plea offer. When questioned whether he thought at any point during his representation that Mr. Kearn would plead guilty, counsel testified that he “didn’t think he would,” but that he was only confident of this belief after the Lafler/Frye colloquy—moments before the trial began. Doc. 204 at 31–32. Crucially, counsel immediately qualified his testimony, and said “there’s always a time they might” plead guilty. Id. at 32. While this statement didn’t implicate Mr. Kearn specifically, the court finds it significant that counsel offered this testimony on his own, unprompted. See id.
The court is mindful that this evidence must bear a lot of weight. But the evidence in Knight suggesting the defendant was amenable to pleading guilty—though a bit stronger than here—was no slam dunk. Still, the D.C. Circuit concluded that evidence showed a “reasonable probability” of a different outcome. And that’s all a defendant needs to show in these circumstances to secure relief. The “absence of unequivocal contemporaneous evidence that [the defendant] affirmatively wanted a plea deal” does not mean “that he cannot show a reasonable probability that he would have accepted the plea offer if he had been provided the effective assistance of counsel.” Knight, 981 F.3d at 1106 (emphasis added).
Here, no such independent factor dictated Mr. Kearn’s choice even if his counsel had provided constitutionally adequate advice. To the contrary, counsel easily could have alleviated the main sticking point for Mr. Kearn—his unwillingness to admit the facts of his charged offense in open court—had he informed Mr. Kearn that he didn’t have to admit the facts personally. In other words, Mr. Kearn didn’t demonstrate “a stubborn insistence on proceeding to trial[.]” United States v. Barajas, No. 10-20077-02-JWL, 2015 WL 2165300, at *7 (D. Kan. May 8, 2015) (recognizing that evidence of such behavior might foreclose a finding of prejudice under Watson). That is a meaningful distinction from Watson.
Finally, the court notes that it would’ve accepted both Mr. Kearn’s desired procedure for supplying a factual basis for the guilty plea and the
The government argues that even though it certainly could have supplied the factual basis for the guilty plea, and Mr. Kearn could have admitted that the government had the evidence to convict him at trial, he still would’ve had to admit his guilt to enter a guilty plea. See Doc. 207 at 17, 19–20. And, the government contends, Mr. Kearn couldn’t do that because he testified that he couldn’t answer a specific question this court has asked defendants in the past. But the government ignores Mr. Kearn’s other testimony on this question. It’s true that in our court, judges frequently asks defendants during plea colloquies whether they “knowingly committed this crime” and “are, in fact, guilty of it.” Doc. 204 at 48 (reciting a question the court asked during a plea colloquy). And Mr. Kearn did testify that he could not say that he knowingly committed the crime and was, in fact, guilty of it. See id. at 48–49. But, importantly, Mr. Kearn also testified that he could have acknowledged the government had evidence to convict him at trial, and that after “making that statement,” he would “have been willing to plead guilty[.]” Id. at 49. In other words, as long as the plea hearing played out in the narrow circumstances Mr. Kearn describes, he would’ve pleaded guilty. And had Mr. Kearn’s trial counsel provided the explanation Mr. Kearn now has made, it’s extremely likely that the court would have accepted Mr. Kearn’s plea on that basis. That is—had Mr. Kearn confirmed that the government possessed sufficient evidence to convict him and presented Circuit authority opining that he need not admit his guilt to supply the requisite factual basis—it’s far more likely than not that the court would have accepted his guilty plea. The court expresses special confidence about that prediction here because of the dramatic difference in sentencing exposure.
The court also concludes that it would’ve accepted the
In sum, Mr. Kearn adequately has demonstrated prejudice under Strickland. He has shown a reasonable probability that but for the deficient advice by his counsel, he would have accepted the plea offer, the prosecution would not have withdrawn it, the court would have accepted its terms, and both the conviction and sentence under the offer’s terms would have been less severe than the sentence the court in fact imposed. Lafler, 566 U.S. at 164. Mr. Kearn thus has established a violation of his Sixth Amendment right to effective assistance of counsel. He is entitled to relief.
C. Remedy
“Sixth Amendment remedies should be ‘tailored to the injury suffered from the constitutional violation[.]’” Lafler, 566 U.S. at 170 (quoting United States v. Morrison, 449 U.S. 361, 364 (1981)). That is, the remedy must “neutralize the taint” of any such violation without “grant[ing] a windfall to the defendant or needlessly squander[ing] the considerable resources the [government] properly invested in the criminal prosecution[.]” Id. (quoting Morrison, 449 U.S. at 365). So, in a situation like this, where the government offered a plea deal “to a count or counts less serious than the ones for which a defendant was convicted after trial,” the Supreme Court has suggested that the proper remedy is for the court “to require the prosecution to reoffer the plea proposal.” Id. at 171. And then, the court can “exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.” Id.
Both Mr. Kearn and the government agree that this procedure—should the court find a Sixth Amendment violation—is the proper remedy. In fact, the government was the first to suggest this remedy. See Doc. 207 at 22. While Lafler made clear that the court has considerable discretion to fashion a remedy in a case like this one, see 566 U.S. at 171, the court concludes that ordering the government to reoffer the plea deal is the appropriate remedy here. That was the remedy the D.C. Circuit ordered in Knight. 981 F.3d at 1107 (“[T]he appropriate remedy calls upon the government to reoffer the original plea deal to [the defendant].”). And, as the government highlights, this remedy would restore the parties to their positions before trial without granting Mr. Kearn an undue windfall. It also would avoid imposing the expense of conducting a new trial on the government. See Lafler, 566 U.S. at 170 (outlining these specific considerations for courts determining a remedy). The court thus concludes that this remedy “neutralizes the taint” of the constitutional violation while appropriately balancing the parties’ competing interests.
The court thus orders the government to re-offer the
IV. Conclusion
IT IS THEREFORE ORDERED BY THE COURT THAT Mr. Kearn’s Amended Motion to Vacate Sentence under § 2255 (Doc. 165) is granted in part.
IT IS FURTHER ORDERED BY THE COURT THAT the government, as remedy for the constitutional violation found in this Order, must re-offer its
IT IS SO ORDERED.
Dated this 4th day of January, 2022, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge