United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING IN PART UNITED
STATES' MOTION FOR A LAFLER/FRYE HEARING
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.
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.
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.
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
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
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?
Lafler and Frye as Applied to ...