Rejection of Plea Agreement OK Despite Court's Receipt of Undisclosed Victim Impact Evidence

U.S. v. Rakes, 2007 WL 4510264 (12/26/07)(Published) - The 10th acknowledges the defendant's arguments "have force," but rejects them all. The 10th affirms the d.ct.'s rejection of the defendant's plea agreement that would have resulted in a sentence of 9 months [after trial, the defendant ended up with a sentence of 63 months!), where, prior to the plea rejection, and unbeknownst to the defendant, the victim, who was an AUSA, had written to the judge explaining the impact on her of the defendant's threatening letter. The d.ct. rejected the plea based on the "very real victim impact presented by this case." Rule 32(i)(1)(B), which requires disclosure of information upon which the judge will rely for sentencing, does not require disclosure of evidence relied upon to reject a plea agreement. The 10th decided not to decide whether a d.ct. can exercise sound discretion under Rule 11 to reject a plea when it acts on undisclosed evidence. Instead, the 10th accepted at face value the d.ct.'s subsequent claim that it would have rejected the plea, even if it had not received the AUSA's letter, for the reasons it had given at the time, which were a lot about the impact on the AUSA, but also about the plea agreement sentence being below the guideline range. According to the 10th, the defendant failed to provide some reason why the d.ct, would have accepted the plea absent the letter. So, of course, no prejudice from any violation of Rule 11.

There was sufficient evidence of a conspiracy to write the threatening letter to prevent the prosecutor from going after the Aryan Brotherhood, where witnesses saw a woman writing the letter at the defendant's suggestion, without apparent coercion by the defendant.

The d.ct. correctly cross-referenced to § 2A6.1, which concerns threatening communications, rather than § 2A2.4, which concerns obstructing government employees. The defendant's offense was more like threatening harm under § 2A6.1, than simple assault under § 2A2.4. It didn't matter that the jury had acquitted the defendant of mailing a threatening communication.