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Waiver Of The Right To Appeal – Plea Agreements – Contract Law and Parole Evidence: Trial Court’s Statements at Sentencing and FRCP Rule 11(b)

United States v. Saferstein 

Third Circuit Court of Appeals Decided January 24, 2012


1) Whether the waiver of the right to appeal at plea can be considered valid in light of the trial court’s comments at sentencing.

2) Whether the guidelines manual violated the ex post facto clause and was of constitutional dimension.

Holding: We hold, as a result of a statement by the District Court during the plea colloquy, which improvidently expanded Saferstein’s appellate rights, that Saferstein did not waive his right to raise constitutional claims on appeal. We further find that his ex post facto claim is of constitutional moment and meritorious. We will vacate and remand to the District Court for resentencing.

Facts: Neal Saferstein (“Saferstein”) pled guilty in the United States District Court for the Eastern District of Pennsylvania to four federal criminal charges related to a fraudulent business scheme.

In the plea agreement, Saferstein waived his appellate rights subject to several exceptions, including an exception for “the assertion of constitutional claims that the relevant case law holds cannot be waived.

Saferstein now argues on appeal that the District Court (1) violated his due process rights by denying him credit he believes he was due under the United States Sentencing Guidelines (the “Guidelines”) for acceptance of responsibility; (2) denied him his right of allocution at sentencing; and (3) violated his rights under the ex post facto clause.

Saferstein was President, Chief Executive Officer and majority owner of GoInternet, a telemarketing company based in Philadelphia.  GoInternet’s implementation of this business model had several fraudulent aspects. First, the telemarketers frequently failed to disclose the full terms of the agreement.

The plea agreement contained language stipulating that, “as of the date of this agreement, the defendant has demonstrated acceptance of responsibility for his offense” and is therefore “eligible for a 2-level downward adjustment” pursuant to the Guidelines.

It also contained an appellate waiver provision, which provided that Saferstein “voluntarily and expressly waive[d] all rights to appeal or collaterally attack” his conviction, subject to several exceptions. The waiver was “not intended to bar the assertion of constitutional claims that the relevant case law holds cannot be waived.” (Id.) Further, it provided an exception if the government were to appeal Saferstein’s sentence and accepted a small number of enumerated claims that Saferstein would be permitted to raise on appeal: (1) That his sentence exceeded the statutory maximum for that count; (2) That the sentencing judge erroneously departed upward under the Guidelines; or (3) that the sentencing judge imposed an unreasonable sentence above the Guideline range.

During the plea colloquy, the District Court discussed the waiver in detail with Saferstein. The court stated that the waiver “of course, is not intended to bar you [from] raising constitutional claims, and only the Court can decide whether they are constitutional claims or some other kind of claim.

The District Court denied Saferstein credit for acceptance of responsibility. It based this determination on several factors. First, the Court noted that after pleading guilty, Saferstein had failed to expeditiously turn over certain financial and medical reports to the probation office. Second, it determined that a number of his statements during the sentencing hearing “backtrack[ed] on the enormity of his own involvement in the scheme that he is responsible for contriving.

Legal Analysis: When “the government invokes an appellate-waiver provision contained in a defendant’s plea agreement, we must determine as a threshold matter whether the appellate waiver prevents us from exercising our jurisdiction to review the merits of the defendant’s appeal.”  We decline to exercise jurisdiction over the appeal where the issues on appeal fall within the scope of the waiver and the defendant knowingly and voluntarily agreed to the waiver, unless “enforcing the waiver would work a miscarriage of justice.

Contract Law – Parole Evidence: The Statements of the Trial Court at Sentencing:

We have not spoken before on the impact of a sentencing court’s oral statement during a plea colloquy on the interpretation of a plea agreement.

It is clear that principles of contract law apply to plea agreements.

“[L]logic indicates that if we may rely on the sentencing court’s statements to eliminate ambiguity prior to accepting a waiver of appellate rights, we must also be prepared to recognize the power of such statements to achieve the opposite effect. If it is reasonable to rely upon the court’s words for clarification, then we cannot expect a defendant to distinguish and disregard those statements of the court that deviate from the language of a particular provision in a lengthy plea agreement.

Because the government exercises tremendous bargaining power during the process of plea negotiation, we construe any ambiguities in the text against the government as drafter.

The parol evidence rule generally mandates that when a written contract is clear and unequivocal, its meaning must be determined by its contents alone.

Regardless of the clarity of a written plea agreement, Rule 11(b) of the Federal Rules of Criminal Procedure obligates a district court, before accepting a plea of guilty, to place the defendant under oath and to address the defendant orally and in open court, informing him of, inter alia, “the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.” Fed. R. Crim.  P. 11(b)(1)(N). The court must also determine that the defendant understands those terms.

We must find that a statement made by the sentencing court during the colloquy can create ambiguity where none exists in the plain text of the plea agreement.

We construe this ambiguity against the government and interpret the waiver narrowly. Therefore, we shall allow Saferstein to raise constitutional claims on appeal, as the District Court represented during the colloquy that he would be able to do.

The Ex Post Facto Rule, The Grouping Rule and The One Book Rule:

The only issue Saferstein raises which is of constitutional moment is his ex post facto claim.

The mail and wire fraud counts of which he was convicted occurred in December 2002 and June 2003, and the base offense level for fraud under the Guidelines was subsequently increased on November 1, 2003. U.S.S.G.appx. C, amend. 653. Both counts for submitting false tax returns of which Saferstein was convicted occurred after that date.

The Guidelines direct a one-book rule, requiring that a “Guidelines Manual in effect on a particular date shall be applied in its entirety.” U.S.S.G. § 1B1.11(b)(2). When a “defendant is convicted of two offenses, the first committed before, and the second after, a revised edition of the Guidelines Manual became effective, the revised edition of the Guidelines Manual is to be applied to both offenses.” § 1B1.11(b)(3).

Held that the ex post facto clause requires that a sentencing court apply the Guidelines Manual in effect at the time the offense was committed if retroactive application of the later Manual would result in harsher penalties. We have expressly disapproved the one-book rule where it conflicts with the ex post facto clause by resulting in more stringent penalties than were authorized at the time of the offense.

Although our ex post facto concerns are assuaged when counts are properly grouped under § 3D1.2(d) as “continuing, related conduct” and the sentencing court applies the Guidelines Manual relevant to the latest count.

In such a case, the grouping provisions, combined with the one-book rule, place a defendant on notice that a court will sentence him or her under the Guidelines Manual in effect during the commission of his or her last offense in a series of continuous, related offenses.

Here, the sentencing court applied the Guidelines Manual in effect when the false tax returns were submitted to the IRS even though those counts were not grouped with the mail and wire fraud counts. Indeed, the PSR recognized that, pursuant to our decision in United States v. Astorri, 923 F.2d 1052 (3d Cir. 1991), tax fraud counts could not be grouped with fraud on private individuals. In this circumstance, the application of the later edition of the Guidelines Manual did violate the ex post facto clause.

We have also held that when the application of the wrong Guidelines Manual, in violation of the ex post facto clause, results in the use of a higher sentencing range, there is a presumption that the defendant’s substantial rights are affected.

Accordingly, we vacate Saferstein’s sentence and remand to the District Court with instructions to calculate his base offense level in accordance with the Guidelines Manual in effect when the mail and wire fraud counts were committed.

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