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United States v. Quezada-Trujillo

United States District Court, D. New Mexico

April 5, 2018



         THIS 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 below.


         Defendant 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. 668 (1984).


         This 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.” Id.[1]

         I. The Inquiry

         Defense 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.

         Defense 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.

         The 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)).

         In 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 attorney-client privilege.”).

Morgan, 16-CR-3484 WJ, Doc. 48 at 9.

         In the 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 the ...

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