Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 1 of 25

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v.

MICHAEL T. FLYNN,
Crim. No. 1:17-cr-00232 (EGS)
Defendant.

AMICUS CURIAE BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS IN SUPPORT OF DEFENDANT

David Oscar Markus Jeffrey T. Green (D.C. Bar No. 426747)

MARKUS/MOSS PLLC Christopher S. Ross (D.C. Bar No. 1643856)
40 N.W. Third Street, PH1 SIDLEY AUSTIN LLP
Miami, FL 33128 1501 K Street, N.W.
Telephone: (305) 379-6667 Washington, D.C. 20005
Facsimile: (305) 379-6668 Telephone: (202) 736-8000
dmarkus@markuslaw.com Facsimile: (202) 736-8711
jgreen@sidley.com
Prof. Ricardo J. Bascuas christopher.ross@sidley.com
UNIVERSITY OF MIAMI SCHOOL OF LAW
1311 Miller Drive
Coral Gables, FL 33146 Counsel for Amicus Curiae
Telephone: (305) 284-2672 National Association of Criminal
Facsimile: (305) 284-1588 Defense Lawyers
r.bascuas@miami.edu

Dated: June 9, 2020

 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 2 of 25

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

IDENTITY AND INTEREST OF AMICUS CURIAE .................................................. 1

SUMMARY OF ARGUMENT ....................................................................................... 2

ARGUMENT .................................................................................................................. 3

I. THE FEDERAL JUSTICE SYSTEM IS A SYSTEM OF PLEAS ..................... 3

II. INNOCENT DEFENDANTS CAN FACE STRONG INSTITUTIONAL

PRESSURES TO PLEAD GUILTY .................................................................... 6

A. The Prosecutor’s Arsenal Of Sentencing Tactics Creates A Trial

Penalty ...................................................................................................... 6

B. Defendants Face Significant Pressure To Accept A Plea Offer, Even

While Maintaining Their Innocence ........................................................ 8

III. A LEGALLY INNOCENT PERSON WHO NONETHELESS PLEADS

GUILTY TO A FEDERAL CRIME DOES NOT THEREBY COMMIT
CRIMINAL CONTEMPT OF COURT ............................................................. 12

A. Perjury Is Not A Contempt Of Court..................................................... 13

B. Even If Perjury Did Constitute Contempt Of Court, The Rationale For

That Would Not Reach A Defendant Who Pleads Guilty Though He
Believes Himself To Be Legally Innocent.............................................. 16

CONCLUSION............................................................................................................. 19

i
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 3 of 25

TABLE OF AUTHORITIES

Page(s)

Cases

Blackledge v. Allison,
431 U.S. 63 (1977) .................................................................................................... 5

Blakely v. Washington,
542 U.S. 296 (2004) ................................................................................................ 18

Bordenkircher v. Hayes,
434 U.S. 357 (1978) .................................................................................................. 9

Brady v. United States,

397 U.S. 742 (1970) .......................................................................................... 4, 5, 9

Cage v. Louisiana,
498 U.S. 39 (1990), overruled on other grounds by Estelle v.
McGuire, 502 U.S. 62 (1991) .................................................................................... 6

California v. Green,
399 U.S. 149 (1970) ................................................................................................ 18

Cammer v. United States,

350 U.S. 399 (1956) .......................................................................................... 12, 15

Clark v. United States,

289 U.S. 1 (1933) .................................................................................................... 15

Dickerson v. United States,

530 U.S. 428 (2000) .................................................................................................. 6

Ex parte Hudgings,
249 U.S. 378 (1919) .................................................................................... 13, 14, 16

Hudson v. United States,

272 U.S. 451 (1926) ................................................................................................ 17

*Lafler v. Cooper,
566 U.S. 156 (2012) .................................................................................................. 3

McQuiggin v. Perkins,
569 U.S. 383 (2013) ................................................................................................ 11

*Authorities chiefly relied upon are marked with asterisks.

ii
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 4 of 25

In re Michael,
326 U.S. 224 (1945) .................................................................................... 14, 15, 16

*Missouri v. Frye,
566 U.S. 134 (2012) .............................................................................................. 3, 4

*North Carolina v. Alford,

400 U.S. 25 (1970) .................................................................................... 3, 8, 16, 17

Ramos v. Louisiana,
140 S. Ct. 1390 (2020) ............................................................................................ 17

United States v. Appel,

211 F. 495 (S.D.N.Y. 1913) ..................................................................................... 14

United States v. Dunnigan,

507 U.S. 87 (1993) ............................................................................................ 15, 16

United States v. Jackson,

390 U.S. 570 (1968) ................................................................................................ 10

United States v. Monia,

317 U.S. 424 (1943) ................................................................................................ 16

Young v. United States ex rel. Vuitton et Fils S.A.,

481 U.S. 787 (1987) ................................................................................................ 16

Constitution and Statute

U.S. Const. amend. VI ................................................................................................... 4

18 U.S.C. § 401 ............................................................................................................. 13

Scholarly Authorities

*Rachel E. Barkow, Separation of Powers and the Criminal Law, 58

Stan. L. Rev. 989 (2006) ....................................................................................... 5, 6

Ricardo Bascuas, The American Inquisition: Sentencing After the

Federal Guidelines, 45 Wake Forest L. Rev. 1 (2010) ............................................. 9

Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117

Harv. L. Rev. 2463 (2004) ...................................................................................... 11

*Lucian E. Dervan & Vanessa A. Edkins, The Innocent Defendant’s

Dilemma: An Innovative Empirical Study of Plea Bargaining’s
Innocence Problem, 103 J. Crim. L. & Criminology 1 (2013) ...................... 4, 10, 11

iii
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 5 of 25

Brian D. Johnson, Plea-Trial Differences in Federal Punishment:

Research and Policy Implications, 31 Fed. Sent’g Rep. 256 (2019) ........................ 7

Marc L. Miller, Domination & Dissatisfaction: Prosecutors as

Sentencers, 56 Stan. L. Rev. 1211 (2004)................................................................. 5

Sarah French Russell, Reluctance to Resentence: Courts, Congress, and

Collateral Review, 91 N.C. L. Rev. 79 (2012) ........................................................ 11

Other Authorities

Innocence Project, DNA Exonerations in the United States,

https://www.innocenceproject.org/dna-exonerations-in-the-united-
states/ (last visited June 9, 2020) ............................................................................ 8

Mark Motivans, Bureau of Justice Statistics, U.S. Dep’t of Justice,

NCJ 251770, Federal Justice Statistics, 2015–2016 (Jan. 2019),
https://www.bjs.gov/content/pub/pdf/fjs1516.pdf................................................... 11

*Nat’l Ass’n of Crim. Def. Lawyers, The Trial Penalty: The Sixth
Amendment Right to Trial on the Verge of Extinction and How to
Save It (2018), https://www.nacdl.org/getattachment/95b7f0f5-90df-
4f9f-9115-520b3f58036a/the-trial-penalty-the-sixth-amendment-
right-to-trial-on-the-verge-of-extinction-and- ........................................... 7, 8, 9, 12

*Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. Rev. Books
(Nov. 20, 2014), https://www.nybooks.com/articles/2014/11/20/why-
innocent-people-plead-guilty/ ........................................................................... 4, 5, 6

U.S. Sentencing Comm’n, 2019 Annual Report and Sourcebook of

Federal Sentencing Statistics (2019),
https://www.ussc.gov/sites/default/files/pdf/research-and-
publications/annual-reports-and-sourcebooks/2019/2019-Annual-
Report-and-Sourcebook.pdf .................................................................................. 3, 4

U.S. Sentencing Guidelines Manual (U.S. Sentencing Comm’n 2018)...................... 10

iv
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 6 of 25

IDENTITY AND INTEREST OF AMICUS CURIAE1

The National Association of Criminal Defense Lawyers (“NACDL”) is a

nonprofit voluntary professional bar association that works on behalf of criminal

defense attorneys to ensure justice and due process for those accused of crime or

misconduct. NACDL was founded in 1958. It has a nationwide membership of many

thousands of direct members, and up to 40,000 with affiliates. NACDL’s members

include private criminal defense lawyers, public defenders, military defense counsel,

law professors, and judges. NACDL is the only nationwide professional bar

association for public defenders and private criminal defense lawyers. NACDL is

dedicated to advancing the proper, efficient, and just administration of justice.

NACDL files numerous amicus briefs each year in the U.S. Supreme Court and other

federal and state courts, seeking to provide amicus assistance in cases that present

issues of broad importance to criminal defendants, criminal defense lawyers, and the

criminal justice system as a whole.

This case presents a question of great importance to NACDL because the vast

majority of criminal prosecutions resolve by guilty plea. NACDL has as part of its

mission to protect the fairness of the plea-bargaining process through rules of

criminal procedure that level the playing field between prosecutors and defendants.

This includes the elimination of a “trial penalty” for defendants who elect to exercise

1 Pursuant to Federal Rule of Appellate Procedure 29(a)(4)(E) and Local Civil

Rule 7(o)(5), no counsel for any party authored this brief in whole or in part; no such
counsel or party made a monetary contribution intended to fund the preparation or
submission of this brief; and no person other than amicus curiae, its members, or its
counsel made such a monetary contribution.

1
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 7 of 25

their constitutional rights and put the prosecution to its proof. Trials are important

for numerous reasons, including the development of the law, clarification of jury

instructions, and the public perception of the criminal justice system as one of

fairness and integrity that necessarily involves the judgment of peers. Existing trial

penalties (e.g., enhanced charges, sentencing increases), however, present not just

the risk, but the reality that innocent defendants plead guilty to especially grave

charges in order to avoid the risk of a greater term of imprisonment. Such defendants

should not be threatened with perjury or contempt of court for doing so. NACDL

therefore files this brief in support of Defendant Michael T. Flynn.

SUMMARY OF ARGUMENT

Although the plea-bargaining system provides important efficiencies,

prosecutors enjoy significant institutional leverage over criminal defendants. The

prosecutor’s ability to bring certain charges and forgo others necessarily defines a

defendant’s potential sentencing range. And because defendants face a higher

sentence as a result of going to trial, many innocent defendants will take the certainty

of a lower sentence rather than elect to proceed to trial, where conviction rates are

high. The resulting trial penalty, or the gap between the sentence received through a

plea bargain versus going to trial, underscores exactly why some innocent defendants

must and do plead guilty.

The criminal contempt sanction is a poor fit. A coerced, or even potentially

coerced, act of perjury generally does not equate to criminal contempt of a court. And

the plea-bargaining system’s core justification—efficiency—does not concern itself

2
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 8 of 25

with the truth-seeking function that a jury trial entails. Hence, the Supreme Court

decades ago sanctioned the “Alford Plea,” allowing defendants to plead guilty while

maintaining their innocence. See North Carolina v. Alford, 400 U.S. 25 (1970). The

contempt sanction better fits those acts of disruption in the courtroom or

intransigence (e.g., wholesale failure to respond to a subpoena or to questions) that

preclude the administration of justice. Levying contempt sanctions against “lies in

the courtroom” can become an unbounded and ultra vires exercise that presents

separation of powers concerns. Finally, there can be little doubt that this closely

followed case will establish precedent. Authorities’ reasons for dismissing charges

may be wholly laudable in myriad cases, and the exercise of a contempt sanction may

provide a novel means for other courts to reject those reasons in future.

ARGUMENT

I. THE FEDERAL JUSTICE SYSTEM IS A SYSTEM OF PLEAS.

The Supreme Court has noted the steep and worrying decline in the use of jury

trials and described the modern criminal justice system as “a system of pleas, not a

system of trials.” Lafler v. Cooper, 566 U.S. 156, 169–70 (2012). In 2012, the Court

highlighted that “[n]inety-seven percent of federal convictions and ninety-four

percent of state convictions [were] the result of guilty pleas.” Missouri v. Frye, 566

U.S. 134, 143 (2012). Last year’s statistics bear out this trend. According to the United

States Sentencing Commission, 97.6% of federal convictions are obtained through a

guilty plea, and only 2.4% of cases go to trial. See U.S. Sentencing Comm’n, 2019

Annual Report and Sourcebook of Federal Sentencing Statistics tbl.11 (2019),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-

3
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 9 of 25

reports-and-sourcebooks/2019/2019-Annual-Report-and-Sourcebook.pdf. The figures

are not much different in this district: 95.2% of convictions result from guilty pleas,

and 4.8% from trial. See id. With so few cases going to trial, however, prosecutors

have broadly been relieved of their duty to prove offenses beyond a reasonable doubt.

Accordingly, plea bargaining “is not some adjunct to the criminal justice system; it is

the criminal justice system.” See Frye, 566 U.S. at 144 (quoting Robert E. Scott &

William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992)).

Because the plea-bargaining system can circumvent defendants’ right to a trial by

jury, see U.S. Const. amend. VI, the Supreme Court has recognized that plea

bargaining is a “critical point for a defendant” in a prosecution. See Frye, 566 U.S. at

143–44. The negotiation is so critical that the defendant’s Sixth Amendment right to

effective assistance of counsel attaches during it. See id.

One proffered justification for the plea-bargaining system is that it functions

as “an indispensable solution for an overwhelmed structure.” Lucian E. Dervan &

Vanessa A. Edkins, The Innocent Defendant’s Dilemma: An Innovative Empirical

Study of Plea Bargaining’s Innocence Problem, 103 J. Crim. L. & Criminology 1, 10

(2013) (hereinafter “Dervan and Edkins Study”). Courts largely approved of the use

of plea agreements well before the rise of mandatory minimum sentences and

mandatory sentencing guidelines in the 1970s and 1980s. See Jed S. Rakoff, Why

Innocent People Plead Guilty, N.Y. Rev. Books (Nov. 20, 2014),

https://www.nybooks.com/articles/2014/11/20/why-innocent-people-plead-guilty/; see

also Brady v. United States, 397 U.S. 742 (1970) (approving of plea bargain). When

4
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 10 of 25

made in good faith, a plea bargain can “limit[] the probable penalty,” serve “the

objectives of punishment,” and preserve “scarce judicial and prosecutorial resources.”

Brady, 397 U.S. at 752. “[T]he chief virtues of the plea system [are] speed, economy,

and finality.” Blackledge v. Allison, 431 U.S. 63, 71 (1977).

Even though the chief virtue of the plea system is efficiency, the system gives

prosecutors enormous leverage to pressure criminal defendants. Take, for instance,

mandatory minimums and sentencing guidelines. Minimums and guidelines “provide

prosecutors with weapons to bludgeon defendants into effectively coerced plea

bargains.” Rakoff, supra. A defendant who refuses to plead to a lesser offense may

face at trial a more serious charge that has a mandatory minimum sentence of

imprisonment of a decade or longer. See Rachel E. Barkow, Separation of Powers and

the Criminal Law, 58 Stan. L. Rev. 989, 1034 (2006) (“[L]onger sentences exist on the

books largely for bargaining purposes.”). The prominence of plea bargaining and the

existence of sentencing guidelines that define the punishment for nearly every offense

have given prosecutors “virtually absolute power … over federal prosecution and

sentencing.” Marc L. Miller, Domination & Dissatisfaction: Prosecutors as Sentencers,

56 Stan. L. Rev. 1211, 1252 (2004). As Judge Jed S. Rakoff of the United States

District Court for the Southern District of New York has explained, “our criminal

justice system is almost exclusively a system of plea bargaining, negotiated behind

closed doors and with no judicial oversight.” See Rakoff, supra.

Trials serve a specific and laudable purpose in our criminal justice system: to

ensure that the prosecution can satisfy a jury of the defendant’s peers that the

5
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 11 of 25

defendant is guilty beyond a reasonable doubt and to “so state[], publicly, in its

verdict.” Id. Further, pre-trial motions contesting legal theories, constitutional

violations, and evidentiary matters are vital to the development of the law. See, e.g.,

Dickerson v. United States, 530 U.S. 428, 441–43 (2000) (reviewing a motion to

suppress testimony and concluding that a law enacted by Congress regulating

admission of defendants’ testimony did not pass muster under Miranda). The absence

of trials also means that jury instructions are never subjected to adversarial testing,

so courts lose the chance to clarify the meaning of those instructions. Cf. Cage v.

Louisiana, 498 U.S. 39, 40–41 (1990) (per curiam) (reversing conviction where jury

instruction inaccurately defined the reasonable-doubt standard), overruled on other

grounds by Estelle v. McGuire, 502 U.S. 62 (1991). In addition, the near elimination

of trials severely restricts opportunities for the public and the press to interact with

the criminal justice system, whether as observers, grand jurors, members of the

venire, or petit jurors. Plea deals are, by definition, cut behind closed doors and do

not offer an opportunity to see that the system is acting fairly and with integrity. And

the system curtails the jury’s ultimate and unreviewable power to acquit a defendant,

which serves as an important check against the government. See Barkow, supra, at

1015.

II. INNOCENT DEFENDANTS CAN FACE STRONG INSTITUTIONAL

PRESSURES TO PLEAD GUILTY.

A. The Prosecutor’s Arsenal Of Sentencing Tactics Creates A Trial

Penalty.

The prosecutor’s arsenal contains sufficient tools to ensure that a defendant

who does not enter a guilty plea at the outset of a case will face an increased sentence.

6
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 12 of 25

Prosecutors are able to choose among charges or stack charges on top of each other,

and they have discretion to allege facts that trigger mandatory minimum sentences

or maximal sentencing ranges or to manipulate “relevant conduct” under the

sentencing guidelines. See Nat’l Ass’n of Crim. Def. Lawyers, The Trial Penalty: The

Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It 25,

32–34, 39–47 (2018), https://www.nacdl.org/getattachment/95b7f0f5-90df-4f9f-9115-

520b3f58036a/the-trial-penalty-the-sixth-amendment-right-to-trial-on-the-verge-of-

extinction-and- (“NACDL Report”). The gap between the sentence that can be

bargained for in a plea has widened so far from the sentence that will be received

after trial as to become “an overwhelming influence” in defendants’ weighing of a plea

offer. See id. at 6.

The result is a “trial penalty,” or a “discrepancy between the sentence offered

during plea negotiations and the sentence a defendant will face after trial.” Id. at 15.

Amicus curiae’s statistical analysis of the Sentencing Commission’s 2015 data files

shows that the “average sentence for fraud was three times as high for defendants

who went to trial versus those who pled guilty.” Id. at 17. For burglary, breaking and

entering, and embezzlement, the average sentence was nearly eight times as high for

the defendant who went to trial. See id. Accordingly, “individuals who choose to

exercise their Sixth Amendment right to trial face exponentially higher sentences if

they invoke the right to trial and lose.” Id. at 5. Indeed, “[o]n average, trial conviction

increases the odds of incarceration by two to six times and produces sentence lengths

that are 20 to 60 percent longer.” See Brian D. Johnson, Plea-Trial Differences in

7
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 13 of 25

Federal Punishment: Research and Policy Implications, 31 Fed. Sent’g Rep. 256, 257

(2019).

Thus, “strong evidence” supports the conclusion that this trial penalty “can

compel even an innocent person to plead guilty.” NACDL Report, supra, at 17 (citing

Lucian E. Dervan, Bargained Justice: Plea-Bargaining’s Innocence Problem and the

Brady Safety-Valve, 2012 Utah L. Rev. 51, 95 (2012) (“At some point, the sentencing

differential becomes so large that it destroys the defendant’s ability to act freely and

decide in a rational manner whether to accept or reject the government’s offer.”)).

The Innocence Project has noted that DNA evidence has helped exonerate 367

defendants. Forty-one of these people (11%) had pled guilty to a crime that they did

not commit. See Innocence Project, DNA Exonerations in the United States,

https://www.innocenceproject.org/dna-exonerations-in-the-united-states/ (last visited

June 9, 2020); see also NACDL Report, supra, at 17. And the National Registry of

Exonerations documents at least 359 examples of individuals who “were later

determined to be innocent of the crimes they originally pled guilty to.” NACDL

Report, supra, at 17. Innocent people can and do take plea bargains, and the trial

penalty associated with asserting their right to trial is a looming factor in that

decision.

B. Defendants Face Significant Pressure To Accept A Plea Offer,

Even While Maintaining Their Innocence.

The federal criminal justice system has long recognized that a defendant may

simultaneously proclaim his innocence and enter into a plea bargain. See Alford, 400

U.S. at 37. Likewise, when the Supreme Court initially held that plea bargaining was

8
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 14 of 25

constitutionally permissible, it noted that it “would have serious doubts” about the

practice “if the encouragement of guilty pleas by offers of leniency substantially

increased the likelihood that defendants, advised by competent counsel, would falsely

condemn themselves.” Brady, 397 U.S. at 758; see also Bordenkircher v. Hayes, 434

U.S. 357, 363 (1978) (“Defendants advised by competent counsel and protected by

other procedural safeguards are presumptively capable of intelligent choice in

response to prosecutorial persuasion, and unlikely to be driven to false self-

condemnation.”).

The federal sentencing guidelines built on Alford by providing substantial

incentives for nearly all defendants to plead guilty. While the percentage of federal

defendants who stood trial between 1960 and 1987 (when the guidelines took effect)

was consistently between about 15% and 20%, it has dropped every year under the

guidelines. See Ricardo J. Bascuas, The American Inquisition: Sentencing After the

Federal Guidelines, 45 Wake Forest L. Rev. 1, 44–45 (2010). As noted, almost all

federal defendants—around 97% of them—now waive trial and plead guilty under

the guidelines. NACDL Report, supra, at 14.

The Supreme Court’s note of caution in Alford and Bordenkircher was

prescient. If an innocent citizen is “[]likely to be driven to false self-condemnation” by

an overweening prosecutor, Bordenkircher, 434 U.S. at 363, the purported efficiency

gains justifying the plea-bargaining system are lost. Innocent Americans now

routinely plead guilty because the guidelines changed the conditions that made guilty

pleas reliable by virtually ensuring a longer sentence for standing trial. A defendant

9
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 15 of 25

is entitled to the substantial “acceptance-of-responsibility” reduction at sentencing

only if he does not put “the government to its burden of proof at trial” and admits any

conduct relevant to sentencing. U.S. Sentencing Guidelines Manual § 3E1.1 & cmt.

nn.1(A) & 2 (U.S. Sentencing Comm’n 2018). It is a barely veiled truth that this

provision exists only for the constitutionally impermissible purpose of encouraging

defendants to waive their right to a jury trial. United States v. Jackson, 390 U.S. 570,

581–83 (1968) (invalidating a federal statute because it “needlessly encourage[d]”

guilty pleas and stating that any provision designed to “chill the assertion” of trial

rights “by penalizing those who choose to exercise them” is “patently

unconstitutional”).

The psychology of “plea bargaining’s innocence problem” results in “innocent

participants [being] willing to falsely admit guilt in return for a perceived benefit.”

Dervan and Edkins Study, supra, at 4. In the Dervan and Edkins Study, college

students were confronted for allegedly cheating on an academic exercise. See id. at

28–33 (describing methodology of the study). By design, half of the students in fact

cheated in the experiment, and half were innocent. See id. Once confronted, the

student could either admit to cheating and accept a lenient punishment, or the

student could try his or her case before an academic panel and face the prospect of a

more serious punishment. See id. The study’s creators “sought to recreate the

innocent defendant’s dilemma in as real a manner as possible by presenting two

difficult and discernible choices to students and asking them to make a decision.” Id.

at 33. For example, study participants were informed that students going before the

10
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 16 of 25

academic panel were found “guilty” 80–90% of the time. Id. at 32 (explaining that this

figure was selected to mirror conviction rates in criminal trials); cf. Mark Motivans,

Bureau of Justice Statistics, U.S. Dep’t of Justice, NCJ 251770, Federal Justice

Statistics, 2015–2016, at 9 (Jan. 2019),

https://www.bjs.gov/content/pub/pdf/fjs1516.pdf (noting that 91% of “defendants

whose cases were terminated” in district courts in 2016 “were convicted”).

Over 56% of the “innocent” students took the plea offer rather than risk the

more serious penalties that could result from a trial. See Dervan and Edkins Study,

supra, at 34. In other words, “well over half of the innocent study participants … were

willing to falsely admit guilt in return for a reduced punishment.” Id. at 37. At its

core, the Dervan and Edkins Study relied on the same incentives—or disincentives—

faced by defendants in courtrooms across the country, including the high likelihood

of conviction if they go to trial to claim their innocence. See id. And the study showed

that “innocent individuals are actually highly risk averse.” Id.

The Dervan and Edkins Study demonstrates why courts should not reject out

of hand a defendant’s claim of innocence when the defendant seeks to withdraw a

guilty plea. In many cases, that claim of innocence is well-founded. But the defendant

took the guilty plea to avoid the obvious risks of a harsher penalty at trial. See

Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 Harv. L. Rev.

2463, 2507–10 (2004). Yet “[a]llowing people to continue to serve years of extra prison

time despite a plain error in their sentence undermines the legitimacy of the criminal

justice system.” Sarah French Russell, Reluctance to Resentence: Courts, Congress,

11
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 17 of 25

and Collateral Review, 91 N.C. L. Rev. 79, 161 (2012). And a defendant suffering

under an unfair deal is more likely to withdraw or challenge it collaterally later,

which undermines the efficiency of the process, as well as society’s interest in the

finality of sentences. See McQuiggin v. Perkins, 569 U.S. 383, 393 (2013).

III. A LEGALLY INNOCENT PERSON WHO NONETHELESS PLEADS

GUILTY TO A FEDERAL CRIME DOES NOT THEREBY COMMIT
CRIMINAL CONTEMPT OF COURT.

It is a sad and incontrovertible fact that our criminal justice system forces

innocent people to plead guilty. This Court’s appointed amicus, The Hon. John

Gleeson, said so in the forward to the National Association of Criminal Defense

Lawyer’s recent report on modern federal criminal practice: “A system characterized

by extravagant trial penalties produces guilty pleas in cases where the government

cannot satisfy [its] burden, hollowing out those protections and producing effects no

less pernicious than innocents pleading guilty.” NACDL Report, supra, at 3.

Subjecting to a contempt conviction people who see no better choice for

themselves—because trial was too great a risk, because prosecutors threatened to

charge a family member, or because they withheld Brady material—than to

acquiesce in the government’s accusations violates the law.

In 1831, following the impeachment of Judge James Peck, Congress enacted

legislation to circumscribe the contempt power that Judge Peck infamously abused.

See Cammer v. United States, 350 U.S. 399, 405–07 (1956). The resulting statute,

codified at 18 U.S.C. § 401, specifies three exclusive categories of contemptuous

acts:

12
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 18 of 25

A court of the United States shall have power to punish by

fine or imprisonment, or both, at its discretion, such
contempt of its authority, and none other, as—

(1) Misbehavior of any person in its presence or so

near thereto as to obstruct the administration of justice;

(2) Misbehavior of any of its officers in their official

transactions;

(3) Disobedience or resistance to its lawful writ,

process, order, rule, decree, or command.

18 U.S.C. § 401 (emphasis added). The Supreme Court’s decisions respecting the

judiciary’s contempt power confirm that ordinary perjury is not a contempt of court

under either the common law or the statute. Even if a witness’ perjured testimony at

trial did amount to contempt, Supreme Court decisions on the validity of pleading

guilty confirm that a defendant is free to plead guilty without penalty even if he

believes himself legally innocent. That is especially true in light of the fact that the

Federal Sentencing Guidelines affirmatively encourage guilty pleas by punishing the

exercise of trial rights.

A. Perjury Is Not A Contempt Of Court.

It has been settled for a hundred years that ordinary perjury is not a contempt

of court because perjury does not “obstruct the administration of justice” at common

law or under the contempt statute, 18 U.S.C. § 401. See Ex parte Hudgings, 249 U.S.

378, 383–84 (1919). In Hudgings, the district judge thought that a witness had falsely

answered the prosecutor’s question and, for that reason, jailed the witness for

contempt. Id. at 381–82. The issue before the Supreme Court was “[w]hether … power

to punish for contempt exists in every case where a court is of the opinion that a

13
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 19 of 25

witness is committing perjury.” Id. at 382. Because the contempt power’s “great and

only purpose is to secure judicial authority from obstruction in the performance of its

duties,” the Court held that “[a]n obstruction to the performance of judicial duty

resulting from an act done in the presence of the court is, then, the characteristic

upon which the power to punish for contempt must rest.” Id. at 383. Granting the

writ of habeas corpus, the Supreme Court rejected the government’s argument that

false testimony obstructs a court’s ability to do its work, even though an outright

refusal to testify does. Id. at 383–84. The Court relied on Judge Learned Hand’s rule

for determining whether a witness’ answer is tantamount to a refusal to testify, and

therefore contemptuous of the court’s authority:

If the witness’ conduct shows beyond any doubt whatever

that he is refusing to tell what he knows, he is in contempt
of court. That conduct is, of course, beyond question when
he flatly refuses to answer, but it may appear in other
ways. A court, like any one else who is in earnest, ought
not to be put off by transparent sham, and the mere fact
that the witness gives some answer cannot be an absolute
test. For instance, it could not be enough for a witness to
say that he did not remember where he had slept the night
before, if he was sane and sober, or that he could not tell
whether he had been married more than a week. If a court
is to have any power at all to compel an answer, it must
surely have power to compel an answer which is not given
to fob off inquiry. Nevertheless, this power must not be used
to punish perjury, and the only proper test is whether on its
mere face, and without inquiry collaterally, the testimony is
not a bona fide effort to answer the questions at all.

United States v. Appel, 211 F. 495, 495–96 (S.D.N.Y. 1913) (emphasis added) (cited

in Hudgings, 249 U.S. at 383).

A quarter century after Hudgings, Justice Black’s unanimous opinion for the

Court in In re Michael reaffirmed that perjury, without more, is not a contempt of

14
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 20 of 25

court: “[P]erjury alone does not constitute an ‘obstruction’ which justifies exertion of

the contempt power.” 326 U.S. 224, 227–28 (1945) (quoting Hudgings, 249 U.S. at

383, 384). Michael distinguished Clark v. United States, which affirmed the contempt

conviction of a woman who, “with intent to obstruct justice … gave answers

knowingly misleading and others knowingly false in response to questions affecting

her qualifications as a juror.” 289 U.S. 1, 6 (1933). The Court affirmed, emphasizing

that her contempt conviction was not “for false swearing, though false swearing has

been proved,” but because it considered jurors court officers under § 401’s second

category of contemptuous acts. 289 U.S. at 11–12. It is doubtful that Clark survived

the Court’s later determination that a lawyer is not a court officer within the meaning

of § 401. See Cammer, 350 U.S. at 407–08.

The Federal Sentencing Guidelines have conditioned lawyers and judges to

believe that testifying falsely is an “obstruction of justice,” but the guidelines give

that phrase much broader scope than it has in the contempt context. See United

States v. Dunnigan, 507 U.S. 87, 97 (1993). Dunnigan rejected a constitutional

challenge to the obstruction-of-justice enhancement predicated on the defendant’s

own testimony at her trial. Id. However, the Court expressly noted that its holding

was based only on the guidelines’ commentary, which defines obstruction differently

from its accepted meaning in the contempt context. Id. at 93–94.

Perjury is not a contempt of court but only an ordinary crime, subject to

prosecution in the exclusive discretion of the Executive Branch. “It is … well

established that the judicial power does not generally include the power to prosecute

15
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 21 of 25

crimes.” Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787, 816 (1987)

(Scalia, J., concurring in judgment).

B. Even If Perjury Did Constitute Contempt Of Court, The

Rationale For That Would Not Reach A Defendant Who Pleads
Guilty Though He Believes Himself To Be Legally Innocent.

The Supreme Court has repeatedly rejected the best argument the justices

themselves could identify for perjury constituting contempt of court—that it subverts

the judiciary’s truth-seeking function. See Dunnigan, 507 U.S. at 93–94; Michael, 326

U.S. at 227–28; Hudgings, 249 U.S. at 383–84. Even if these cases were overruled,

there would still be no valid argument for concluding that a defendant who pleads

guilty, though he believes himself legally innocent, is in contempt of court. A

defendant simply has no duty whatsoever to maintain his innocence if he believes

pleading guilty is to his advantage, especially given that the Sentencing Guidelines

unconstitutionally condition the trial right on exposure to an almost certainly more

severe sentence if the jury convicts.

A witness who commits perjury violates the common law duty that all

witnesses owe to testify truthfully. “In the classic phrase of Lord Chancellor

Hardwicke, ‘the public has a right to every man’s evidence.’” United States v. Monia,

317 U.S. 424, 432 (1943) (Frankfurter, J., dissenting). A defendant, in contrast, has

no corresponding duty to maintain his innocence, no matter how firmly he believes

himself to be legally innocent. See Alford, 400 U.S. at 37. In Alford, the Supreme

Court considered whether a defendant’s guilty plea to second-degree murder, entered

only to avoid a first-degree murder charge, was unconstitutionally coerced. Id. at 28–

29. The Court first reiterated the standard for assessing the validity of a guilty plea,

16
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 22 of 25

which makes no mention of truthfulness or accuracy: “The standard was and remains

whether the plea represents a voluntary and intelligent choice among the alternative

courses of action open to the defendant.” Id. at 31. Alford thus recognizes that the

objective truth underlying a prosecution is often so elusive that it is essentially

unknowable—which explains why the Constitution requires criminal jury verdicts to

be the product of unanimous consent. Ramos v. Louisiana, 140 S. Ct. 1390, 1395

(2020) (“As Blackstone explained, no person could be found guilty of a serious crime

unless ‘the truth of every accusation … should … be confirmed by the unanimous

suffrage of twelve of his equals and neighbors, indifferently chosen, and superior to

all suspicion.’” (omissions in original) (quoting 4 William Blackstone, Commentaries

on the Laws of England 343 (1769)).

Relying largely on Hudson v. United States, 272 U.S. 451 (1926), which held

that a federal court can convict an accused who pleads nolo contendere and does not

admit factual guilt, Alford held that a defendant is free to plead guilty even if he

believes himself innocent: “An individual accused of crime may voluntarily,

knowingly, and understandingly consent to the imposition of a prison sentence even

if he is unwilling or unable to admit his participation in the acts constituting the

crime.” 400 U.S. at 37. Alford makes clear that an accused who “intelligently

concludes that his interests require entry of a guilty plea” is free to enter one, even if

he believes himself entirely innocent. Id.

Because defendants now must choose between admitting the government’s

allegations or risking a much higher sentence if a jury returns a guilty verdict, there

17
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 23 of 25

is no justification for presuming that guilty pleas are truthful. The guidelines system

is designed to promote “efficiency,” not to discover the truth. Blakely v. Washington,

542 U.S. 296, 313 (2004) (“Our Constitution and the common-law traditions it

entrenches, however, do not admit the contention that facts are better discovered by

judicial inquisition than by adversarial testing before a jury.”). The truth is

discovered through trials—where witness are subject to “cross-examination, the

‘greatest legal engine ever invented for the discovery of truth,’” California v. Green,

399 U.S. 149, 158 (1970) (quoting 5 John Henry Wigmore, Evidence § 1367 (3d ed.

1940))—and the guidelines discourage those.

The accused in this case was given a choice between a likely probationary

sentence and the risk of a jail sentence if he insisted on his “right” to trial. If, as the

Department of Justice now concedes, he succumbed to the pressure to plead guilty

even though he was legally innocent, he is hardly unique. His decision to do that in

no way obstructed justice or interfered with the judicial function. It is not, by any

stretch, a contemptuous act.

Even if this Court is understandably skeptical about the Department’s motive

is dismissing the charges in this closely followed case, there can be little doubt that

the Court’s decision will establish precedent. In many cases, the government’s reason

for dismissing charges—before or after a guilty plea—may be innocuous, or even

laudable. Should the Court choose to exercise the contempt sanction here, other

courts will look to this case as authority to reject the government’s exercise of

18
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 24 of 25

prosecutorial discretion. This would be a novel use of the judicial power that could

ultimately harm many defendants.

CONCLUSION

For the foregoing reasons, this Court should grant Defendant’s motion to

withdraw his plea of guilty.

Dated: June 9, 2020 Respectfully submitted,

/s/ Jeffrey T. Green

David Oscar Markus Jeffrey T. Green (D.C. Bar No. 426747)

MARKUS/MOSS PLLC Christopher S. Ross (D.C. Bar No. 1643856)
40 N.W. Third Street, PH1 SIDLEY AUSTIN LLP
Miami, FL 33128 1501 K Street, N.W.
Telephone: (305) 379-6667 Washington, D.C. 20005
Facsimile: (305) 379-6668 Telephone: (202) 736-8000
dmarkus@markuslaw.com Facsimile: (202) 736-8711
jgreen@sidley.com
Prof. Ricardo J. Bascuas christopher.ross@sidley.com
UNIVERSITY OF MIAMI SCHOOL OF LAW
1311 Miller Drive
Coral Gables, FL 33146 Counsel for Amicus Curiae
Telephone: (305) 284-2672 National Association of Criminal
Facsimile: (305) 284-1588 Defense Lawyers
r.bascuas@miami.edu

19
 Case 1:17-cr-00232-EGS Document 217-2 Filed 06/09/20 Page 25 of 25

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing will be served this 9th day of

June, 2020, electronically through the Court’s CM/ECF system on all registered

counsel.

/s/ Jeffrey T. Green

Jeffrey T. Green