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United States v. Morgan

United States District Court, D. New Mexico

March 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL MORGAN, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING IN PART UNITED STATES' MOTION FOR A LAFLER/FRYE HEARING

         THIS MATTER comes before the Court upon the United States' Motion for a Lafler/Frye Hearing, filed January 18, 2018 (Doc. 40). Defendant is charged with second-degree murder, in violation of 18 U.S.C. §§ 1153 and 1111(a). The United States moves this Court to conduct a hearing on the record to inquire whether Defendant's counsel communicated to Defendant a plea offer extended by the United States. Having reviewed the parties' pleadings and considered the controlling law, the Court finds that the United States' motion is well-taken and, therefore, is GRANTED in part.

         BACKGROUND

         I. Procedural Background[1]

         Defendant is charged with second-degree murder, pursuant to 18 U.S.C. §§ 1111(a) and 1153. Doc. 26 at 3. Defendant is also subject to pending charge(s) in the District of Arizona. Doc. 26 at 3; Doc. 40. On January 18, 2018, the Government filed the current motion to compel Defendant to answer questions on the record about whether Defendant received information from his attorney about a global plea agreement extended by the United States Attorney in the District of New Mexico. Doc. 40. According to the Government, the plea offer encompassed Defendant's pending case in the District of Arizona, as well as his case in the District of New Mexico. Doc. 40 at 3. The Government made this motion pursuant to the holdings in Lafler v. Cooper, 566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S. 134 (2012). In its motion, the Government submits a proposed colloquy, which it requests the Court read to Defendant in open court to create a record for any subsequent post-conviction petitions for relief. Doc. 40 at 2. Defense counsel timely filed a response objecting to this motion, and did not include a proposed colloquy. Doc. 41. A change of plea hearing took place on January 31, 2018, during which Defendant expressed his desire to proceed to trial. Doc. 46 at lines 6-12. The Government's proposed colloquy did not take place at the January 31, 2018 hearing and this matter was not decided at that time. A trial in the District of New Mexico is scheduled for August 6, 2018.

         II. Parties' Positions

         The Government's motion is made pursuant to Lafler v. Cooper and Missouri v. Frye, in which the Supreme Court held that defendants are entitled to the Sixth Amendment right of effective counsel in the plea bargaining context. See Lafler, 566 U.S. at 165; Frye, 566 U.S. at 145. Specifically, the Supreme Court determined in Lafler that “[i]f a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it.” 566 U.S. at 168. In Frye, the Supreme Court ruled that “[w]hen defense counsel allowed the offer to expire without advising the defendant or allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.” 566 U.S. at 145. Both cases were post-conviction petitions. See Lafler, 566 U.S. at 162; Frye, 566 U.S. at 139.

         The present matter, however, is a pretrial-not post-conviction-motion for a Lafler/Frye hearing. Doc. 40. The Government argues that its purpose is to establish “a clear record . . . in the event the defendant subsequently brings a claim under 28 U.S.C. § 2255 alleging that his attorney failed to effectively convey the global plea offer to him, . . . .” Doc. 40 at 2. The issue is whether Lafler and Frye provide this Court with authority to establish a pretrial record of the terms of a formal plea offer, with the foresight of referencing such a record in a post-conviction hearing based on a claim of ineffective assistance of counsel in the plea bargaining process, and what the scope of such an inquiry may be. Defendant's counsel objects to the Government's request for this hearing on the grounds that such an inquiry (a) places Defendant's Fifth Amendment right to remain silent in jeopardy and (b) contravenes the attorney-client privilege. Doc. 41 at 1. Defense counsel asserts that “[m]inimally, these type of hearings should be held outside of the presence of government counsel.” Id.

         The Government proposes the following colloquy (Doc. 40 at 2-3): I am informed that the government made you a global plea offer, pursuant to Rule 20, Fed. R. Crim. P., that you rejected or did not accept before it expired. This Court is not involved in any plea negotiations, and states no opinion regarding your decision to plead guilty or proceed to trial. I simply request a yes or no answer to the following questions:

To defense counsel:
Did you receive a global plea offer for Mr. Morgan from the government that was sent on behalf of both the United States Attorney's Offices for the District of New Mexico as well as the District of Arizona? Did you communicate the terms of this global plea offer to Mr. Morgan?
To Defendant Morgan:
Did you discuss with your attorney the global plea proposal the government made to you to resolve your case in New Mexico as well as Arizona? Are you satisfied that, prior to rejecting the global plea offer or failing to accept it before it expired, you had a full and complete opportunity to discuss the plea offer with your attorney?

         DISCUSSION

         I. Lafler and Frye as Applied to ...


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