Judge Weinstein Holds that an Appeal Waiver Provision in a Plea Agreement that Seeks a Waiver of All Collateral Rights Is Impermissible Under the Constitution Unless it Specifically Enumerates All Exceptions Required by Law So that a Defendant Has Notice
by Punch & Jurists
In Chua, District Judge Jack Weinstein of the E.D.N.Y. addressed what he called “an important constitutional Issue” — namely, “whether a defendant may, in effect, be forced by the government to waive, as part of a plea agreement, his or her constitutional right to collaterally attack a conviction or sentence.” And, in a discerning analysis that challenges some of the basic tenets of appeal waivers in general, he held that, where a plea agreement contains a near blanket waiver of the right to collateral review without enumeration of all recognized exceptions, such a waiver is not constitutionally valid.
U.S. v. Chua, 349 F.Supp.3d 214 (E.D.N.Y. Nov. 20, 2018) (District Judge Jack Weinstein)
Even at age 97, Judge Jack B. Weinstein of the E.D.N.Y. continues to publish discerning and provocative decisions that question and challenge basic tenets of law that few members of the Judiciary are willing (or even afraid) to confront. The instant case is a perfect example of that trait; and it shows that Judge Weinstein still relishes playing the role of provocateur to start a new discussion about an issue that bothers him.
While plea agreements have long been the backbone and the sine qua non of the Federal criminal justice system, appeal waiver provisions in such plea agreement are of a more recent vintage. But, even within that shorter time frame, appeal waivers have become nearly as widespread as plea agreements: Judge Weinstein noted that, as recent as 2015, 67.5% of plea agreements contained a waiver of the right to a collateral attack. Because of that widespread use, appeal waivers are deemed by the courts to be just as sacrosanct as plea agreements, to the point that it is rare today for a judge even to consider any meaningful restraints on the scope of such provisions.
Not so for Judge Weinstein. He started the instant decision with these words:
“This memorandum concerns an important constitutional issue: whether a defendant may, in effect, be forced by the government to waive, as part of a plea agreement, his or her constitutional right to collaterally attack a conviction or sentence. Collateral attacks for constitutional right violations—the equivalent of a writ of habeas corpus—hold a vital place in United States constitutional jurisprudence. The continued availability of the writ of habeas corpus and similar remedies are ‘bulwark[s] against convictions that violate fundamental fairness.’
“A waiver of collateral attack rights is restricted. Some claims may not be waived.
“In the instant case, the government effectively compelled a waiver of nearly all of Defendant’s collateral attack rights. Such a general waiver is impermissible under the Constitution. The waiver is deemed modified to state its limits. If the government seeks a waiver of collateral attack rights in a plea agreement, it must specifically enumerate exceptions required by law so that a defendant has notice of what rights he or she is waiving.” (Id., at 216) (Internal citations omitted).
Nestor Chua, the Defendant in this case, worked as a teller at Chase Bank Flushing Branch. At the request of a co-worker, he exchanged small denominations of currency for larger denominations on approximately 30 occasions without properly reporting those transactions’ and he was ultimately indicted for, and pled guilty to, causing a financial institution to fail to file currency transaction reports required by 31 U.S.C. § 5313(a) in violation of 31 U.S.C. § 5324.
As part of his plea agreement, Chua agreed not to challenge his conviction or sentence by a collateral attack, except for claiming ineffective assistance of counsel. Due to the broad reach of that provision, Judge Weinstein objected. He wrote: “Because of the prevalence of plea agreements and the absence of arm’s-length negotiation of the terms by parties of equal power, courts must review such agreements closely to ensure that defendants’ rights are not crushed by government’s power.” (Id., at 218).
Judge Weinstein acknowledged that, while there is a presumption against the waiver of fundamental rights, a knowing and voluntary waiver is typically permissible. However, “[w]here, as here, there is a near blanket waiver of the right to collateral review without enumeration of all recognized exceptions, a waiver is not allowed. Any general waiver of collateral attack rights must specify what rights have not been waived; the waiver of collateral attack rights in a plea agreement must account for the exceptions, otherwise a defendant will be under the misimpression that he or she retains only those rights explicitly excluded from the waiver.” (Id.)
He then proceeded to list four specific examples of rights that cannot be waived by a general waiver, namely:
• a claim of ineffective assistance of counsel;
• a claim that the plea was not valuntary and knowing;
• a claim that the proceeding was instituted or the sentence imposed on the basis of a constitutionally impermissible factor; and
• a claim that foreclosure of the collateral attack right would result in a miscarriage of justice.
In the end, Judge Weinstein noted that the general appeal waiver provision used in this case specifically referred to only the first of those four categories of claim (namely ineffective assistance of counsel) — which he said was “insufficient. A waiver of collateral attack rights must specifically indicate what the exceptions to the waiver are.” Based on that reasoning, Judge Weinstein used his judicial authority to amend the text of Chua’s plea agreement to read as follows:
“The defendant agrees not to file an appeal or otherwise challenge, by petition pursuant to 28 U.S.C. § 2255 or any other provision, the conviction or sentence in the event that the Court imposes a term of imprisonment at or below 51 months. This waiver is binding without regard to the sentencing analysis used by the Court.
“Nothing in the foregoing waiver of appellate and collateral review rights shall preclude the defendant from raising a claim of ineffective assistance of counsel; a claim that the plea was not voluntary and knowing, including because relevant evidence was withheld by the government; a claim that the proceeding was instituted or the sentence imposed on the basis of a constitutionally impermissible factor; or a claim that foreclosure of collateral review would result in a miscarriage of justice.” (Id., at 220).
He also wrote that, “as the law develops, any new exceptions should be added to the waiver so that a defendant has notice of what collateral attack rights he or she has waived.”
This article originally appeared in the April 29, 2019 issue of Punch & Jurists and is reprinted with permission. Copyright, Punch & Jurists, Ltd.
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