9th Circuit finds it is acceptable to use leniency towards a defendant’s child as a bargaining chip in plea bargaining

A panel (Judges Marsha Berzon, Michelle Friedland and Kathleen Cardone) of the 9th U.S. Circuit Court of Appeals recently decided the case of U.S. v. Seng Cheng Yong, 2019 DJDAR 4941 (June 7, 2019). In it, the court considered whether a guilty plea is involuntary if it is conditioned on leniency to a third party -- in this case, the son of the defendant. The court, joining several other circuits (including the D.C., 2nd, 4th, 5th, 7th, 8th, 10th, 11th) held that such pleas are involuntary if the government lacked probable cause to prosecute the third party at the time of the defendant's guilty plea. In Yong's case, the court determined that after reviewing the totality of the circumstances, Yong's guilty plea was legitimate as the government had probable cause to prosecute Yong's son.

The Yong case demonstrates just how entrenched the "bargaining" part of plea bargaining has become in our criminal system. As the court noted in its decision, "the Government does not deny using the charges against [the defendant's son] as a bargaining chip in its plea negotiations with Yong." Indeed, everything has become a bargaining chip in plea negotiations. The charge and sentence have long been considered bargaining chips, but so are constitutional rights (including the right to ineffective assistance of counsel), the facts of the case and, as we see in Yong, the freedom of a defendant's child, to name just a few.

In many ways, this is the logical end-point of the Supreme Court's 1978 decision in Bordenkircher v. Hayes, 434 U.S. 357 (1978), in which the court upheld the defendant's life sentence after he was charged with uttering a forged instrument in the amount of $88.30. The defendant had been offered a five-year plea deal with the warning that if he rejected it the prosecutor would pursue a three strikes penalty that called for a mandatory life sentence. The court found that such a threat was part and parcel of the plea system. As long as the defendant understood the potential penalty if he rejected the offer, the government was within its right to pursue a life sentence for a crime that it initially believed deserved five years of incarceration.

Like the waiver of other constitutional rights, a waiver of your trial rights must be made "knowingly and voluntarily." But, as Bordenkircher made clear in 1978 and as a case like Yong affirms now, "knowingly and voluntarily" is defined in quite literal terms. If the defendant knows the nature of the bargain, the bargain is generally upheld, even where the defendant has bargained for his life or his child's freedom.

The panel did not ask whether dangling the child as a bargaining chip was coercive itself, but rather focused on the defendant's answers to the Rule 11 colloquy that is required in the federal system. As the panel noted, Yong answered in the negative when asked by the trial judge, "have any threats or promises been made to you to get you to waive your right to an indictment," and whether "anyone threatened you in order to get you to plead guilty." These questions about coercion exclude inquiry into whether the plea itself was coercive, instead they ask about promises or threats other than the plea bargain -- meaning the court is not asking whether a promise to drop all charges against the defendant's son got him to waive his rights, but rather whether outside of the promised plea, there were any additional promises or threats that encouraged the defendant to plead guilty. In general, as long as the defendant understood the terms of the bargain and discussed them with competent counsel, the plea is upheld.

The fact that a person -- guilty or innocent -- might be motivated to plead guilty to save a child from a criminal penalty seems of little interest to courts, as long as the parent understood the nature of the exchange and the government had probable cause to prosecute the child at the time of the parent's plea. What should trouble us about this lack of exploration about whether the bargain itself is coercive is that recent literature in the field of law and psychology makes it clear that very little pressure can convince innocent people to plead guilty. Courts should at least reflect on whether the promise by the government to drop charges against a child might coerce a parent to give up certain constitutional rights. This should be especially true where the government's case is weak or rests on underlying misconduct, as it did here.

Indeed, to understand just how deep-rooted plea bargaining has become to our system, we need only look at Yong's second ground to support his claim that his plea was involuntary. Yong asserted that pervasive government misconduct during the investigation of his case tainted his plea. The government did not dispute the misconduct, nor did the court question it. Rather, the court found that because Yong was aware of the government misconduct at the time of the plea, the plea was therefore "knowing and voluntary."

And yet, at least one explanation for the offer to the defendant in the Yong case is that, knowing of the law enforcement misconduct, the government offered the defendant a deal he could not refuse -- plead guilty and all charges would be dropped against his son. By doing so, the government secured a conviction in what was otherwise a weak case (we know this because the one co-defendant who opted not to plead out had his case dismissed by the district court because of the misconduct). Courts should be more wary of these "too good to refuse" offers, particularly where the government has a weak case, to ensure that defendants are not being coerced into pleading. It is critical to safeguard the rights of individual defendants, but also to protect the integrity of the criminal system. 