United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING THE UNITED
STATES' OPPOSED MOTION FOR LAFLER/FRYE HEARING
MATTER comes before the Court upon the United States'
Opposed Motion for a Lafler/Frye Hearing, filed July
21, 2017 (Doc. 20). Having reviewed the
parties' briefs and applicable law, the Court finds that
the Government's motion is well-taken and, therefore, is
granted, subject to the procedural considerations described
is charged with two counts of cocaine distribution, in
violation of 21 U.S.C. §§841(a)(1) and (b)(1). In
this motion, the United States (“the Government”)
moves this Court to conduct a hearing on the record as to
whether defense counsel communicated to the Defendant the
plea offer that was extended by the Government. The request
is made under the recent cases of Lafler v. Cooper,
566 U.S. 156 (2012), and Missouri v. Frye, 566 U.S.
134 (2012), in which the Supreme Court held that defendants
are entitled to the Sixth Amendment right of effective
counsel in the pre-trial plea bargaining context, applying
the standard in Strickland v. Washington, 466 U.S.
Court has recently addressed a similar motion by the
Government in another case in which it examined the available
legal authorities on this issue. See U.S. v. Morgan,
16-CR-3484 WJ, Doc. 48, Mar. 7, 2018. In that decision, the
Court found that Frye provided this Court with
discretion to conduct a pretrial colloquy for the purpose of
creating a record of the formal plea offer but acknowledged
the existence of a “number of authorities that restrict
the role of the Court during such an inquiry.”
Id. at 6. After an examination of these legal
authorities, the Court concluded that a “carefully
constructed colloquy should not offend them.”
counsel opposes the Government's motion, expressing a
concern about the sharing of client confidences which could
violate attorney-client privilege if an inquiry is made into
the reasons why the plea offer was rejected. Defense
counsel also points out that Lafler and
Frye would each provide for very different
procedures at a hearing which is meant to ensure that a
habeas proceeding cannot later be brought. Both cases were
post-conviction petitions, but Frye turned on
whether an attorney fell below the standard in
Strickland when the attorney failed to communicate
an offer that subsequently lapsed. 566 U.S. at 139. In
Lafler, on the other hand, the defendant received
information about the terms of the Government's plea
offer but rejected it on advice of counsel. 566 U.S. at 160.
Defense counsel points out that a Lafler hearing
would necessarily require an inquiry into the reason
Defendant rejected a plea offer, since Lafler
involved a situation where the defendant rejected a plea
based on his counsel's deficient advice and as a result
received a harsher sentence at trial. The Court is sensitive
to Defendant's concerns regarding the sharing of any
content of discussions between counsel and client which would
violate attorney-client privilege, but notes as it did in the
Morgan case, that the principles announced in
Frye (rather than Lafler) direct the
analysis in this case because the situation here is not
similar to that in Lafler. See 16-CR-03484-WJ, Doc.
48 at 5, n.3.
counsel does not appear to be opposed to having a record made
regarding the offer of a plea by the Government without a
full-blown hearing, suggesting that the Government file the
written plea offer with the Court and that the Court conduct
a short colloquy to determine whether Defendant has had an
opportunity to read and consider the plea offer.
Government appears to share the same concerns expressed by
defense counsel and assures that it has no intention of
probing into any communications that encroach on
attorney-client communications. Rather, the purpose here is
to determine whether defense counsel communicated to
Defendant the plea offer extended by the Government, and not
to delve into the reasons Defendant rejected the
offer. An inquiry concerning the factual information about
whether defense counsel communicated the terms of the plea
offer to Defendant is not protected by attorney-client
privilege. The “mere fact that an attorney was involved
in a communication does not automatically render the
communication subject to the attorney-client privilege[;]
rather, the “communication between a lawyer and client
must relate to legal advice or strategy sought by the client
. . . .” In re Grand Jury Proceedings, 616
F.3d at 1182 (citing Motley v. Marathon Oil Co., 71
F.3d 1547, 1550-51 (10th Cir. 1995) and U.S. v.
Johnston, 146 F.3d 785, 794 (10th Cir. 1998)).
analyzing the privilege issue in the Morgan case,
the Court found that it:
has the ability to carefully craft a colloquy aimed at only
ascertaining the terms of the plea offer and not the
substance of the advice from counsel or the reasoning behind
Defendant's decision-making.” U.S. v.
Braxton, 784 F.3d 240, 247 (4th Cir. 2015) (“Nor,
. . . does Frye require a district court to satisfy
itself of the intelligence of a defendant's decision to
exercise his right to trial instead of accepting a plea
offer.”). Questions designed to only establish the
terms of the plea offer and whether it was relayed to
Defendant should not reveal legal advice from defense counsel
or “the substance of a client confidence.”
[U.S. v. Defazio, 899 F.2d 626, 635 (7th Cir.
1990)]. The Court believes this limited degree of inquiry is
proper under the Frye standard and aligns with other
district courts that have conducted the same type of hearing.
[U.S. v. Pirk, 236 F.Supp.3d 796, 801 (W.D.N.Y.
2017)] (“To force the disclosure of any further details
regarding plea discussions between defense counsel and his
client-other than the fact that they had occurred[-]would in
the Court's view unreasonably invade the sanctity of the
attorney-client relationship.”); United States v.
Slane, No. 11-81, 2015 U.S. Dist. LEXIS 19867, at *60
n.14 (W.D. Pa. Feb. 19, 2015) (“[T]he Court is careful
to elicit only factual information from the parties and the
defendant rather than soliciting any advice provided by
defense counsel to the defendant and protected by the
Morgan, 16-CR-3484 WJ, Doc. 48 at 9.
end, both parties are essentially in agreement with having
the Court determine whether Defendant has had an opportunity
to read and consider the plea offer. The Government suggests