The Akron Legal News

Drug trafficker claiming poor representation loses appeal

ANNIE YAMSON
Special to the Legal News
Published: July 23, 2014

A panel of three judges in the 6th U.S. Circuit Court of Appeals affirmed the judgment of the U.S. District Court for the Southern District of Ohio at Columbus recently.

The opinion, authored by Judge Stephen Murphy, who sat by designation, held that a defendant’s constitutional right to counsel does not apply to preindictment plea negotiations.

The case stemmed from the drug trafficking investigation of Adam Jerome Kennedy, who had learned from his attorney that he might be able to reduce his sentencing exposure by pleading guilty to an information.

Unsure of what to do, Kennedy sought the advice of a second attorney who promised to beat the government’s case.

Kennedy then switched attorneys, heard from his new counsel that the government “might be bluffing” and decided not to negotiate a guilty plea.

“Unfortunately for Kennedy, the government was not bluffing,” wrote Judge Murphy.

Kennedy was subsequently indicted on multiple drug-trafficking, firearms and money-laundering charges and then he was caught accepting a marijuana shipment.

Kennedy changed attorneys two more times before he decided to enter a guilty plea and received a below-guidelines sentence of 180 months in prison.

Later, he moved to vacate his sentence under 28 U.S.C. 2255, arguing that he would have negotiated a preindictment plea agreement and received a lower sentence if not for the ineffective assistance of his second attorney.

The district court denied Kennedy’s motion based on United States v. Moody, which held that there is no Sixth Amendment right to counsel in preindictment plea negotiations.

Upon appeal, the 6th Circuit sided with the district court.

“The Sixth Amendment guarantees a right to counsel at critical stages of a criminal proceeding,” wrote Judge Murphy. “Those critical stages include some pretrial proceedings, such as postindictment interrogations, postindictment identifications and postindictment plea negotiations.”

However, the appellate panel held that not all pretrial events are included.

Judge Murphy cited the U.S. Supreme Court, which has held that, according to the plain language of the Sixth Amendment, the right to counsel “does not attach until the initiation of adversary judicial proceedings.”

In Moody’s case, the appellate panel noted that applying that rule to preindictment plea negotiations was unfair, but it applied it nonetheless.

“Binding decisions of the Supreme Court and of prior panels of this court prevented it from reaching a contrary result,” wrote Judge Murphy. “And these same decisions — along with Moody itself — constrain us unless and until they are overruled.”

Kennedy cited two additional cases, Missouri v. Frye and Lafler v. Cooper, which, according to him, reopened the question of when the right to counsel attaches in plea negotiations.

“To be sure, Frye and Lafler recognize that plea negotiations are central to the American system of criminal justice,” wrote Judge Murphy. “And together, the decisions make clear that the right to counsel applies in postindictment plea negotiations even if the negotiations have no effect on the fairness of a conviction.”

The court of appeals determined, however, that in neither case did the Supreme court consider whether the right to counsel attached in preindictment plea negotiations.

If anything, the appellate panel found that the cases Kennedy cited upheld the Supreme Court precedent that a right to counsel does not attach until adversary judicial proceedings are initiated.

“Neither decision expressly abrogates or questions the rule,” Judge Murphy wrote, noting that it would be “highly unusual” for the high court to discard or sharply limit a long-standing rule without comment, “especially when the rule supposedly abrogated comes from the text of the Sixth Amendment.”

Even the dissenting justices in the Supreme Court’s opinion did not read the majority opinion as creating a new right to counsel in other stages of pretrial proceedings.

“Had the Supreme Court erased the line between preindictment and postindictment proceedings for plea negotiations, it surely would have said so given its careful attention to the distinction for interrogations and lineups,” Judge Murphy concluded.

The appellate panel held that, because United States v. Moody has not been abrogated or overruled, it remains good law.

It did note that the Supreme Court may eventually extend the right to counsel to preindictment plea negotiations, “but a prediction of what the law might (or might not) become does not permit us to disregard binding precedent.”

Accordingly, the appellate panel upheld the judgment of the district court and Kennedy’s sentence.

Judges John Rogers and Deborah Cook joined Judge Murphy to form the majority.

The case is cited Kennedy v. United States, Case No. 13-3820.

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