Tag Archives: Sixth Amendment

Memphis Immigrant Wins Freedom Following U.S. Supreme Court Victory

Constitutional Law, Criminal Law, Criminal Procedure, Sixth Amendment, ,

By Daniel A. Horwitz:

Memphis, Tennessee—A Memphis man who secured a groundbreaking win before the U.S. Supreme Court this summer has officially won his freedom after a nearly nine-year legal battle to avoid being deported.  At the request of the U.S. Attorney for the Western District of Tennessee, the indictment against Mr. Lee was formally dismissed earlier this month, and his case is finally over.

In 2009, Mr. Jae Lee—a South Korean immigrant and successful Memphis restaurateur—was indicted for what the U.S. Court of Appeals for the Sixth Circuit described as “a relatively small-time drug offense.”  Thereafter, Mr. Lee pleaded guilty based on the advice of his defense attorney, who assured Mr. Lee that he would not be deported if he did so.

Unfortunately for Mr. Lee, his attorney’s advice was wrong, and spectacularly so.  Under federal immigration law, possession of ecstasy with intent to distribute is considered an “aggravated felony,” rendering Mr. Lee deportable immediately.  Consequently, when the Government initiated deportation proceedings against him, Mr. Lee sought to withdraw his guilty plea, asserting that his attorney had ineffectively assisted him by misadvising him about the consequences of pleading guilty.  Noting the strong evidence of his guilt, however, the District Court refused to allow Mr. Lee to withdraw his guilty plea, and the Sixth Circuit affirmed the District Court’s decision.

Ultimately, the United States Supreme Court agreed to hear Mr. Lee’s case in order to clarify the legal standard that governs ineffective assistance of counsel claims with respect to immigration-related plea bargaining.  In a 6-2 opinion, the Supreme Court held that “Lee has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.”[1]  As a result, the Supreme Court permitted Mr. Lee to withdraw his guilty plea and proceed to trial instead.

The two dissenting Justices who ruled against Mr. Lee—Clarence Thomas and Samuel Alito—held that Mr. Lee could not have been prejudiced by his attorney’s incompetent advice because Mr. Lee intended “to pursue a defense at trial with no reasonable chance of success.”[2]  As this author explained in his 2016 Harvard Latino Law Review article on the matter, however, this analysis is overly simplistic in several respects, and it significantly mischaracterizes the relevant prejudice inquiry.

Further, the notion that a weak defense necessarily means that a defendant will be convicted at trial is also quite simply wrong.  Several reasons support this conclusion, including the fact that the Government retains discretion not to take a case to trial at all for any reason.  As the above-mentioned article explains: “longstanding precedent entrusts to the Executive Branch’s ‘absolute discretion’ all decisions ‘not to prosecute or enforce, whether through civil or criminal process.’”  See Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 8 (2016).  Accordingly, no matter how strong the evidence of a defendant’s guilt, all immigrants “are potentially eligible for relief from deportation [and from being criminally prosecuted at all] through the Executive Branch’s use of prosecutorial discretion.”

Mr. Lee’s case aptly proves this point.  After the Supreme Court permitted Mr. Lee to withdraw his guilty plea back in June, the U.S. Attorney’s Office filed a motion to dismiss the indictment against him.  No specific reason was offered to justify the Government’s decision, and because prosecutorial discretion is absolute, the Government is not obligated to provide one.  If anyone were looking for a reason to support the U.S. Attorney’s decision to drop the charges, however, one need look no further than the Sixth Circuit’s opinion in Mr. Lee’s own case, which explained—in a ruling against him—that:

“[W]e should not be read as endorsing Lee’s impending deportation. It is unclear to us why it is in our national interests—much less the interests of justice—to exile a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small-time drug offense.”[3]

Ultimately, the Government’s decision to drop the case represents a tremendous win for Mr. Lee and his new lawyer, Mr. Patrick McNally, who was part of Mr. Lee’s Supreme Court team and secured the final dismissal of his indictment.  “[S]omeone finally understood the harm that his [first] lawyer’s advice caused him,” Mr. McNally told The Tennessean after the Supreme Court’s ruling in June.

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[1] Lee v. United States, 137 S. Ct. 1958, 1961 (2017).

[2] Lee v. United States, 137 S. Ct. 1958, 1969 (2017) (Thomas, J., dissenting).

[3] Lee v. United States, 825 F.3d 311, 316–17 (6th Cir.), cert. granted, 137 S. Ct. 614 (2016), and rev’d and remanded, 137 S. Ct. 1958 (2017).

U.S. Supreme Court to Hear Tennessee Sixth Amendment Case on Immigration-Related Plea Bargains

Constitutional Law, Criminal Procedure, Sixth Amendment, , , ,

By Daniel Horwitz:

The United States Supreme Court has agreed to hear a Sixth Amendment case out of Tennessee in its March 2017 sitting.  The case – Jae Lee v. United States[1] – focuses on the Sixth Amendment’s guarantee of effective assistance of counsel when plea bargains trigger deportation consequences.  Specifically, Jae Lee will determine whether a defendant who would likely have been convicted if he had proceeded to trial is prejudiced by ineffective counsel when he accepts a guilty plea on the basis of erroneous legal advice that he will not be deported.

The facts of Jae Lee are not in dispute.  In 1982, Mr. Lee legally immigrated to the United States from South Korea.  Thereafter, Mr. Lee completed high school and moved to Memphis with his family, where he became a successful restaurateur.  As the Sixth Circuit noted, however, Mr. Lee “also became a small-time drug dealer,” and in 2009, he “was charged with possession of ecstasy with intent to distribute” in violation of federal drug laws.  If convicted, Mr. Lee would immediately become deportable.  Unfortunately for Mr. Lee and his family, the case against him was also very strong.

After being indicted, Mr. Lee’s criminal defense attorney advised him to plead guilty in exchange for a lighter sentence.  Mr. Lee’s attorney also advised him that if he accepted a guilty plea, he would not be deported.  On the basis of that advice, Mr. Lee decided to plead guilty.

Unfortunately for Mr. Lee, the advice that he received from his attorney turned out to be spectacularly wrong.  Notwithstanding his attorney’s advice to the contrary, Mr. Lee’s guilty plea actually did render him deportable, and he was immediately subjected to removal proceedings as a result.  Had he avoided a criminal conviction or been convicted of a different offense, however, Mr. Lee would have been permitted to remain in the country.

Understandably upset that he had pleaded guilty based on legal advice that turned out to be completely incorrect, Mr. Lee sought to withdraw his guilty plea on the basis that he had received the ineffective assistance counsel.  Under the standard for ineffective assistance of counsel established in Strickland v. Washington,[2] a defendant must satisfy two separate requirements in order to prevail.  First, a defendant must demonstrate that his attorney’s performance was “deficient” in that it fell below prevailing professional norms.  Second, the defendant must demonstrate that he suffered legal “prejudice” as a consequence of his counsel’s deficient performance.  Both requirements must be met in order to win a claim of ineffective assistance of counsel, which – if successful – would have allowed Mr. Lee to withdraw his guilty plea and proceed to trial instead.

Because the government conceded that Mr. Lee’s attorney had rendered deficient counsel by misadvising him about the deportation consequences of accepting a guilty plea, the only question remaining was whether Mr. Lee was legally “prejudiced” by his attorney’s erroneous advice.  Typically, a defendant challenging a conviction on the basis of ineffective assistance of counsel must prove that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”[3]  Importantly, however, when it comes to plea bargaining, the test for prejudice is slightly more favorable to defendants.  Generally, to withdraw a guilty plea on the basis of ineffective counsel, a defendant must show “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[4] As this author explains in his 2016 Harvard Latino Law Review article on this subject, however, following the U.S. Supreme Court’s landmark 2010 decision in Padilla v. Kentucky,[5] immigration-related pleas have a different standard still.  Specifically:

“In the context of deficient immigration counsel, [] the test is whether ‘a decision to reject the plea bargain would have been rational under the circumstances.’ It is not yet clear whether, or to what extent, there is a substantive difference between these standards, and indeed, the Government occasionally ‘wobbles between the two standards for allowing the withdrawal of one’s guilty plea upon belated discovery of the deportation threat.’  What is clear, however, is that the test for prejudice under Padilla is not whether a defendant would have been deported anyway.  Instead, it is whether the defendant would rationally have rejected the offered plea bargain and either proceeded to trial or negotiated an alternative plea bargain if the defendant had received the competent immigration counsel to which all immigrants are constitutionally entitled.”[6]

The federal Circuits are deeply divided on whether it can ever be “rational” for an obviously guilty defendant to reject a plea bargain and instead attempt to “throw a Hail Mary” at trial in the hopes of avoiding near-certain deportation consequences.[7]  After acknowledging this split of authority, the Sixth Circuit reaffirmed its prior holding in Pilla v. United States that “no rational defendant charged with a deportable offense and facing ‘overwhelming evidence’ of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.”  Accordingly, the Sixth Circuit denied Mr. Lee an opportunity to withdraw his guilty plea, and the Supreme Court granted review.

The problem with the Sixth Circuit’s (and several other Circuits’) take on this issue, however, is that it misapplies the standard for prejudice under Padilla and also violates the bedrock constitutional requirement that a guilty plea must be entered voluntarily.  As Judge Posner of the Seventh Circuit wrote in a similar case, for example, “[j]udges and prosecutors should hesitate to speculate on what a defendant would have done in changed circumstances,” and “a criminal defendant cannot be denied the right to a trial, and forced to plead guilty, because he has no sturdy legal leg to stand on but thinks he has a chance that the jury will acquit him even if it thinks he’s guilty.”[8]  Additionally, as this author explains in his Harvard Latino Law Review article referenced above, “several commentators have recognized the reality that in most instances, non-citizen defendants are likely to view deportation as a far more serious punishment than a conviction that results in incarceration.” Thus:

By any metric, a defendant who accepts a guilty plea as a consequence of [] affirmative misadvice [that he will not be deported]—only to learn later on that he is to be deported anyway—has suffered serious prejudice in the form of a criminal conviction due to his counsel’s incompetence.

This sort of bait-and-switch—which, incidentally, occurred in Padilla itself—represents a classic case of ineffective assistance of counsel. Indeed, on this point, even the two concurring Justices in Padilla enthusiastically agreed. As Justice Alito explained:

when a defendant bases the decision to plead guilty on counsel’s express misrepresentation that the defendant will not be removable[,] . . . it seems hard to say that the plea was entered with the advice of constitutionally competent counsel—or that it embodies a voluntary and intelligent decision to forsake constitutional rights [at all].

Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 19 (2016).

Consequently, given that fully seven of the Supreme Court’s eight current Justices have held that a defendant cannot be denied the opportunity to withdraw a guilty plea under these circumstances, it seems likely that Mr. Lee – and his excellent Tennessee attorney Patrick McNally – will ultimately prevail.

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[1] 825 F.3d 311 (6th Cir. 2016), cert. granted, No. 16-327, 2016 WL 4944484 (U.S. Dec. 14, 2016).

[2] 466 U.S. 668, 687 (1984).

[3] Id. at 694.

[4] Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

[5] 559 U.S. 356 (2010).

[6] Daniel A. Horwitz, Actually, Padilla Does Apply to Undocumented Defendants, 19 Harv. Latino L. Rev. 1, 15 (2016) (citations omitted).

[7] Compare Pilla v. United States, 668 F.3d 368, 373 (6th Cir. 2012); Haddad v. United States, 486 Fed. Appx. 517, 521–22 (6th Cir. 2012); Kovacs v. United States, 744 F.3d 44, 52–53 (2d Cir. 2014); United States v. Akinsade, 686 F.3d 248, 255–56 (4th Cir. 2012); and United States v. Kayode, 777 F.3d 719, 724–29 (5th Cir. 2014), with United States v. Orocio, 645 F.3d 630, 643–46 (3d Cir. 2011), abrogated on other grounds by Chaidez v. United States, ––– U.S. ––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013); DeBartolo v. United States, 790 F.3d 775, 777–80 (7th Cir. 2015); United States v. Rodriguez–Vega, 797 F.3d 781, 789–90 (9th Cir. 2015); Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015).

[8] DeBartolo v. United States, 790 F.3d 775, 778-89 (7th Cir. 2015).