     05-4016-cr
     United States v. Griffin

1                         UNITED STATES COURT OF APPEALS

2                                FOR THE SECOND CIRCUIT

3                                   August Term, 2006

4          (Argued: December 19, 2006         Decided: December 20, 2007
5                                             Errata Filed: January 22, 2008)
6                                 Docket No. 05-4016-cr

7                    -------------------------------------

8                               UNITED STATES OF AMERICA,

9                                       Appellee,

10                                        - v -

11                                 MICHAEL J. GRIFFIN,

12                                Defendant-Appellant.

13                   -------------------------------------

14   Before:     POOLER, SACK, and WESLEY, Circuit Judges.

15               The defendant-appellant, Michael Griffin, pleaded

16   guilty, pursuant to a plea agreement, in the United States

17   District Court for the Western District of New York (Charles J.

18   Siragusa, Judge), to one count of possession of child pornography

19   in violation of 18 U.S.C. § 2252A(a)(5)(B), after unlawfully

20   downloading pornographic images to his computer using a peer-to-

21   peer file-sharing program.        The defendant appeals from the

22   portion of the judgment of conviction sentencing him principally

23   to 120 months' imprisonment, arguing, inter alia, that the

24   government breached the parties' plea agreement by advocating

25   against an acceptance of responsibility adjustment.
1              Remanded for resentencing by another judge.    Judge

2    Wesley dissents in a separate opinion.

3                             BRUCE R. BRYAN, Syracuse, NY, for
4                             Defendant-Appellant.

5                             TIFFANY H. LEE, Assistant United States
6                             Attorney (Terrance P. Flynn, United
7                             States Attorney for the Western District
8                             of New York, of counsel), Rochester, NY,
9                             for Appellee.

10   SACK, Circuit Judge:

11             While there are aspects of this case that may implicate

12   complicated and difficult issues at the unhappy intersection of

13   computer technology and child pornography, we need not, and

14   therefore do not, address them.    The resolution of this appeal

15   hinges on the narrow question of whether the government adhered

16   to the terms of the plea agreement between it and the defendant

17   during sentencing proceedings.    Because we conclude that the

18   government breached the plea agreement, we vacate the sentence

19   and remand for resentencing by another district judge.

20                            BACKGROUND

21             On November 23, 2004, the defendant pleaded guilty

22   pursuant to a written plea agreement to one count of possession

23   of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

24   By pleading guilty, he admitted that he "knowingly possessed

25   material that contained images of child pornography . . . [that]

26   had been . . . transported in interstate . . . commerce by any

27   means, including by computer . . . ."    Plea Agreement of Michael

28   J. Griffin, dated November 23, 2004, in the United States


                                       2
1    District Court for the Western District of New York, at ¶ 6 (the

2    "Plea Agreement").

3              This prosecution arose out of an FBI investigation

4    involving the defendant's use of a peer-to-peer file sharing

5    program called KaZaA (sometimes spelled "kazaa").    Broadly

6    speaking, KaZaA is a computer program, downloaded to a computer,

7    that allows the computer's user to share and obtain, via the

8    Internet, many types of digital files, including photographs and

9    video recordings.    The program enables the user to create and

10   maintain a "shared folder" ("KaZaA Shared Folder") on his or her

11   computer's hard drive which, when enabled, allows other users to

12   download files located in that KaZaA Shared Folder onto their own

13   computer's hard drive.    A KaZaA user can enable a feature in the

14   program called "sharing disabled" which prevents other KaZaA

15   users from downloading any file from the original user's

16   computer, even if the file is located in the latter's KaZaA

17   Shared Folder.   While the "sharing disabled" feature is enabled

18   on a KaZaA user's computer, however, he or she cannot download

19   files from other KaZaA users.1



          1
            See also United States v. Sewell, 457 F.3d 841, 842 (8th
     Cir. 2006) (describing how KaZaA works and noting that after an
     individual "downloads" a file from another user's shared folder,
     "[t]he downloaded file will automatically be placed in the user's
     [KaZaA] Shared Folder to be searched and downloaded by other
     users unless the local user disables this feature"). See
     generally Metro-Goldwyn-Mayer Studios, Inc. v. Grokster Ltd., 380
     F.3d 1154, 1158–59 (9th Cir. 2004) (describing mechanics of peer-
     to-peer file sharing software), vacated and remanded, 545 U.S.
     913 (2005).

                                       3
1              In the plea agreement, Griffin admitted that in October

2    2003, he had opened approximately ten child pornography images

3    acquired using KaZaA and had deleted six of the images, but that

4    at least four of the images remained on his computer's hard

5    drive.   He further acknowledged that he moved two of these images

6    into the "My Documents" folder on his hard drive, and that one of

7    these images depicted a minor under the age of twelve years old.

8    During the plea colloquy before the district court, the

9    government explained that it had not given, and would not give,

10   the defendant a copy of his computer's hard drive, which it had

11   confiscated in accordance with its policy of treating hard drives

12   containing child pornography as contraband, but that the

13   defendant and his representatives could view the images in the

14   government's offices.

15             The plea agreement left unresolved a variety of

16   disputes between the government and Griffin concerning the

17   application of the United States Sentencing Guidelines, including

18   the proper determination of the defendant's adjusted offense

19   level and the application of several possible enhancements.    In

20   order to address these disputes, the district court held an

21   evidentiary hearing that took the better part of four days during

22   June and July 2005.   The hearing included testimony from several

23   computer forensic experts on behalf of the government and one on

24   behalf of the defendant.   Testimony at these hearings focused on

25   the contents of the defendant's computer hard drives, the initial

26   FBI report produced after the defendant first was interviewed

                                      4
1    following a search of his home and seizure of his computers, and

2    the operation of KaZaA.

3              The district court adopted the recommendation of the

4    Probation Office and the government as to the calculation of the

5    Guidelines sentence.   It is undisputed that the defendant's base

6    offense level was fifteen.   Based on the defendant's use of

7    KaZaA, the district court then applied a cross-reference for

8    "trafficking," which added two levels, United States Sentencing

9    Guidelines Manual ("U.S.S.G.") § 2G2.2(c)(1), and increased the

10   offense level by an additional five levels for distribution with

11   the expectation of receipt of a thing of value, but not pecuniary

12   value, id. § 2G2.2(b)(2)(B).   The district court also applied

13   three more two-level enhancements -- for the use of a computer,

14   id. § 2G2.2(b)(5), possession of a photograph of a minor under

15   the age of twelve, id. § 2G2.2(b)(1), and possessing more than 10

16   but fewer than 150 images, id. § 2G2.2(b)(6)(A) -- and a four-

17   level enhancement for possession of photographs that included

18   sadistic or masochistic conduct, id. § 2G2.2(b)(3).   This

19   resulted in an adjusted total offense level of thirty-two.

20             The defendant had no previous criminal record, so his

21   criminal history fell within category I.   The applicable advisory

22   Guidelines range was therefore 121 to 151 months.   The district

23   court sentenced Griffin to the statutory maximum sentence of ten

24   years' (120 months') imprisonment.   The district court also

25   imposed a life term of supervised release, which included

26   requirements that the defendant register as a sex offender in

                                      5
1    whichever state in which he lives and that he be subject to

2    searches of his person or property for the duration of the term

3    of supervised release.

4               Acceptance of Responsibility

5               In the plea agreement, the government agreed "not to

6    oppose the recommendation that the Court apply the two (2) level

7    downward adjustment of Guidelines §3E1.1(a) (acceptance of

8    responsibility) and further agree[d] to move the Court to apply

9    the additional one (1) level downward adjustment of Guidelines

10   §3E1.1(b)."   Plea Agreement, at ¶ 12.    However, the agreement

11   also permitted the government to "respond at sentencing to any

12   statements made by the defendant or on the defendant's behalf

13   that are inconsistent with the information and evidence available

14   to the government."   Id. at ¶ 18b.

15              Prior to sentencing, the defendant submitted his

16   objections to the initial Presentence Investigation Report

17   ("PSR"), which outlined Griffin's sentencing arguments, including

18   his objections to many of the Guidelines enhancements discussed

19   above.   See Defendant's Response to Presentence Investigation

20   Report, dated March 24, 2005 ("Def's March 24 Response").     Of

21   particular note, Griffin argued that the feature of his KaZaA

22   program that disabled its file-sharing capability remained active

23   nearly all of the time, which counseled against applying a cross-

24   reference for trafficking and a further enhancement for

25   distribution.   Id. at 3.   He further contended that he was an



                                       6
1    inadvertent child-pornography user because the PSR identified

2    only eight of more than 4,500 images on his computer as depicting

3    minors.   Id.   Griffin also asserted that there was no proof that

4    he knowingly possessed a particularly lewd and notorious video

5    that prompted the application of a four-level enhancement for

6    sadistic or masochistic conduct.       Id. at 4-5.   The apparent

7    overarching objective of the defendant's objections was to narrow

8    the conduct underlying sentencing to that which Griffin had

9    admitted in the plea agreement.

10              In a letter to the district court following the receipt

11   of the defendant's objections to the PSR, the government wrote:

12              [T]he government is troubled by some of the
13              defendant's objections which seem to raise
14              questions regarding whether the defendant has
15              truly accepted responsibility . . . .
16              However, the defendant did timely notify
17              authorities of his intention to enter into a
18              guilty plea, thereby permitting the
19              government to avoid preparing for trial and
20              permitting the government and the court to
21              allocate their resources efficiently.
22              If the Court finds that the defendant is
23              entitled for [sic] the two-level downward
24              adjustment pursuant to Guidelines §3E1.1(a)
25              for clearly demonstrating acceptance of
26              responsibility, the government submits that
27              the defendant, based on his actions in
28              promptly entering a guilty plea, would be
29              entitled to the further one-level decrease
30              pursuant to § 3E1.1(b).

31   Statement of the Government with Respect to Sentencing Factors

32   and Motion Pursuant to U.S.S.G. § 3E1.1(b), dated March 31, 2005,

33   at 1-2 ("Gov't March 31 Statement").




                                        7
1              The government elaborated on its views in its

2    subsequent sentencing brief.    There it said that it found

3    "troubling . . . the fact that the defendant is now attempting to

4    distance himself from the other images and movies found in his

5    possession."   Government's Response to Defendant's Response to

6    the Presentence Report, dated Apr. 15, 2005, at 20 ("Gov't April

7    15 Response").   The defendant's conduct therefore "le[d] the

8    government to question whether the defendant has truly accepted

9    responsibility."   Id. at 21.   The government brief also

10   synthesized cases and commentary related to acceptance of

11   responsibility, noting that "while a guilty plea combined with

12   truthful statements about the defendant's offense and other

13   relevant conduct is 'significant evidence' of acceptance of

14   responsibility, 'it can be outweighed by conduct that is

15   inconsistent with acceptance of responsibility.'"    Id. at 21–22

16   (quoting United States v. Ortiz, 218 F.3d 107, 108 (2d Cir. 2000)

17   (per curiam)).   The government concluded:

18             It is unclear whether the defendant's
19             objections to the inclusion of all the
20             relevant conduct rises to the level of
21             outweighing his acceptance of responsibility.
22             Suffice it to say that the defendant's
23             objections to the relevant conduct raises
24             [sic] questions on the issue of acceptance.
25   Id. at 22.2




          2
            The government also    noted that it did not object to the
     defendant's arguments that   the disputed Guidelines enhancements
     did not apply and was well   aware of the defendant's intent to
     disagree on these points.    Gov't April 15 Response, at 20.

                                       8
1              The district court thereafter made the following

2    determination:

 3             While the Government, for purposes of the
 4             plea, agreed not to oppose a recommendation
 5             that I reduce your offense level by a total
 6             of three for acceptance of responsibility, I
 7             have found otherwise. The Government has not
 8             taken any position on that and they have not
 9             opposed it. On its own, based on the posture
10             of this case and finding of facts, the Court
11             has denied that.
12   Sent'g Hr'g Tr., July 14, 2005, at 29.

13             The defendant now challenges his sentence on several

14   grounds: (1) The government's refusal to provide to him a copy of

15   the confiscated computer hard drives constitutes a violation of

16   Rule 16 of the Federal Rules of Criminal Procedure and Brady v.

17   Maryland, 373 U.S. 83 (1963); (2) the district court's

18   determination that he trafficked and distributed child

19   pornography through his use of KaZaA; (3) the district court's

20   denial of a downward adjustment for acceptance of responsibility;

21   (4) the government's alleged breach of the plea agreement by

22   encouraging the district court to deny an adjustment for

23   acceptance of responsibility; (5) the propriety of the term and

24   provisions of his supervised release; and (6) an alleged

25   violation of the Constitution's Ex Post Facto Clause.    Because we

26   conclude that the government breached the plea agreement, which,

27   in this case, requires remand for resentencing de novo, we

28   decline to address the defendant's other arguments.

29                             DISCUSSION

30             I.   Breach of the Plea Agreement

                                      9
1    A. Legal Standard and Standard of Review

2               We review interpretations of plea agreements de novo

3    and in accordance with principles of contract law.    United States

4    v. Riera, 298 F.3d 128, 133 (2d Cir. 2002) (citing United States

5    v. Padilla, 186 F.3d 136, 139 (2d Cir. 1999)).    "To determine

6    whether a plea agreement has been breached, we 'look[] to the

7    reasonable understanding of the parties as to the terms of the

8    agreement.'" Id. (quoting United States v. Colon, 220 F.3d 48, 51

9    (2d Cir. 2000)).   "Because the government ordinarily has certain

10   awesome advantages in bargaining power, any ambiguities in the

11   agreement must be resolved in favor of the defendant."    Id.

12   (citations and internal quotation marks omitted).    Where plea

13   agreements are involved, the government must take particular

14   "'care in fulfilling its responsibilities.'"    United States v.

15   Lawlor, 168 F.3d 633, 637 (2d Cir. 1999) (quoting United States

16   v. Brody, 808 F.2d 944, 948 (2d Cir. 1986)).3

17              Because the defendant did not argue in the district

18   court that the government breached the plea agreement, the

19   government asserts that we must review the argument for plain

20   error.   We have held to the contrary that "a defendant is not


          3
            The statement in Lawlor is that the government must "take
     much greater care in fulfilling its responsibilities." Lawlor,
     168 F.3d at 637 (emphasis added). The context of the statement
     in the opinion from which this repeated admonishment first
     emanated suggests that "much greater" means "much greater than
     the government in fact exercised." See United States v.
     Januszewski, 777 F.2d 108 (2d Cir. 1985), cited in Brody, 808
     F.2d at 948.


                                     10
1    required to object to the violation of a plea agreement at the

2    sentencing hearing."   Lawlor, 168 F.3d at 636   ("Lawlor's claim

3    [that the government breached the plea agreement] is not barred

4    by his failure to raise this issue with the District Court, nor

5    are we bound to apply a plain error standard of review.").    The

6    defendant need not demonstrate that any error as to the

7    government's compliance with his plea agreement satisfies plain

8    error review.

9    B.   The Government's Breach

10              Whether the government breaches a plea agreement by

11   making allegedly impermissible comments to the sentencing court

12   has been the subject of substantial discussion in this Circuit.

13   Our cases have not yielded a bright-line rule as to the leeway

14   the government has with respect to what it tells the court while

15   operating under such an agreement.    "[The] circumstances must

16   [therefore] be carefully studied in context, and where the

17   government's commentary reasonably appears to seek to influence

18   the court in a manner incompatible with the agreement, we will

19   not hesitate to find a breach, notwithstanding formal language of

20   disclaimer."    United States v. Amico, 416 F.3d 163, 167 n.2 (2d

21   Cir. 2005).

22              Amico, upon which the government exclusively relies,4

23   contains our most recent application of such a fact-specific


           4
            The government refers to the case as United States v.
     Peters. Peters was the sole appellant in the appeal. But Amico
     was the first named defendant in the official caption of the
     case, and we therefore refer to it using his name.

                                      11
1    analysis.    There, the defendant-appellant made several arguments

2    to support his contention that the government had breached its

3    plea agreement with him.

4                First, the defendant-appellant argued that the

5    government's statement that it "adopts the findings of the

6    revised Presentence Investigation Report" violated the plea

7    agreement insofar as this endorsement advocated, by reference,

8    the imposition of a higher sentence than that to which the

9    parties agreed.    Id. at 165.   Once notified of this violation,

10   however, the government filed an amended statement explaining

11   that it expressly did not advocate the additional enhancements,

12   and it reiterated that position several times thereafter.     Id.

13   We noted that "a retraction of an argument advanced by the

14   government in violation of its plea agreement would [not] always

15   cure its breach," but concluded that, "upon careful examination

16   of all the circumstances, especially the mild, brief, and

17   unassertive form of the statement and its rapid retraction, . . .

18   the temporary breach was adequately cured."     Id.

19               Second, the defendant-appellant argued that a

20   government memorandum of law, submitted in response to his

21   objections to the Presentence Investigation Report, violated the

22   plea agreement by advocating a position on an issue about which

23   the plea agreement did not permit discussion.     We rejected the

24   argument, concluding:    "[The defendant-appellant] opened the door

25   to this response when he attempted to characterize the criminal

26   scheme in a manner favorable to himself, minimized the importance

                                       12
1    to the criminal scheme of the mortgage brokers, and claimed not

2    to have known supporting documentation accompanying the loan

3    applications was false."    Id.   Moreover, the government's

4    discussion of the state of the law in response to the defendant-

5    appellant's "inaccurate description of the law" was considered an

6    appropriate response that was permitted by the agreement,

7    particularly because it was surrounded by several statements to

8    the effect that the government did not intend to advocate the

9    imposition of the additional enhancement.     Id. at 166.

10               Similarly, in Riera, the prosecution and the defense

11   agreed that "neither party will seek . . . a departure," and that

12   neither party will "suggest that the Court sua sponte consider

13   such a departure."    298 F.3d at 133–34.   The plea agreement also

14   permitted the parties to respond to inquiries from the district

15   court in the event that the court "contemplate[d] any Guidelines

16   adjustments, departures, or calculations different from those

17   stipulated to [in the agreement]."     Id. at 134 (second brackets

18   in original).    The defendant asserted that the government

19   breached the agreement when it argued by letter that the district

20   court "would be well within its discretion in upwardly departing"

21   before explaining in detail why such a departure would be

22   appropriate.    Id. (internal quotation marks and citation

23   omitted).    We stated that the government's letter was "too close

24   in tone and substance to forbidden advocacy to have been

25   well-advised," id. at 134, and "came very close to breaching the

26   agreement," id. at 135.

                                       13
1               We found no breach, however, for three reasons:     First,

2    the letter was submitted in response to a solicitation by the

3    court.   Id. at 134-35.   Second, the plea agreement expressly

4    permitted a response to a request from the district court to set

5    forth the relevant facts and advise the court whether a departure

6    would conform to the law.     Id. at 135; see also United States v.

7    Goodman, 165 F.3d 169, 172-73 (2d Cir. 1999) (finding no breach

8    where the government responded to a specific request from the

9    district court to "supply the Court with the law and the facts"

10   without advocating that such an adjustment should be imposed),

11   cert. denied, 528 U.S. 874 (1999).      Third, the government "did

12   not explicitly advocate a departure" and thereafter repeatedly

13   asserted that it was responding to the court's request but was

14   not advocating an upward departure, in line with the plea

15   agreement.   Id. at 135-36.

16              In United States v. Vaval, 404 F.3d 144 (2d Cir. 2005),

17   we reached the opposite conclusion.      There, the defendant pleaded

18   guilty pursuant to a plea agreement to robbery of federal

19   property with a dangerous weapon.      Id. at 149.   According to the

20   plea agreement, the government was not permitted to "take [a]

21   position concerning where within the Guidelines range determined

22   by the Court the sentence should fall," or to "make [a] motion

23   for an upward departure," as long as no new "information relevant

24   to sentencing" was discovered subsequent to the effective date of

25   the plea agreement.   Id.   The plea agreement incorrectly

26   calculated the defendant's criminal history to fall within

                                       14
1    category III rather than category II.     Id. at 149.   At

2    sentencing, the government acknowledged that the plea agreement

3    prevented the government from seeking an upward departure or

4    recommending a particular sentence within the guideline range,

5    but nonetheless stated, inter alia:

 6             I find this defendant's criminal history
 7             appalling. And the fact that he can sit here
 8             today and say that he made a mistake, I find
 9             completely disingenuous. Because it is a mistake
10             that he has made over and over and over again in
11             terms of robbing people at gun point and using
12             violence to commit robberies. I understand that
13             the guidelines preclude us from looking at or
14             calculating certain offenses. But certainly this
15             is not this defendant's first or second offense.

16   Id. at 150.   The government, after recounting the factual basis

17   for the defendant's conviction, said:     "I just ask the Court to

18   consider all of that when making the Court's decision about where

19   to sentence this defendant."    Id.   The government concluded:

20   "[B]ased on the information that I had at [the] time [of the plea

21   agreement,] I believed that the defendant was going to be in a

22   [CHC] category three.   He is in a category two.    I think,

23   technically, I could make an upward departure which I am not."

24   Id. (first brackets added).

25             The district court, which presided over the trial of

26   Vaval's co-defendants, acknowledged the defendant's objections to

27   the government's statements, but asserted that "[t]he

28   government's remarks do not change any view that the Court had of

29   this case coming out here."    Id.




                                      15
1               We first noted that statements by the government

2    asserting that it did not intend to violate the plea agreement

3    "do not . . . insulate the government against a finding of breach

4    if in fact what was said constituted an argument about where

5    within the range to sentence appellant and/or whether to upwardly

6    depart."   Id. at 153.    We then concluded that the government's

7    "highly negative characterizations" of the defendant's criminal

8    history did not qualify as mere "information," and that a

9    statement that the government "technically" could make an upward

10   departure recommendation effectively qualified as such a

11   recommendation.   Id.    ("It is difficult to draw a principled

12   distinction between the government actually moving for an upward

13   departure and stating that it 'technically' could move for such a

14   departure and then adding arguments that would support such a

15   departure.").   Furthermore, unlike the government's court-

16   solicited statements in Riera, "all relevant legal and factual

17   information had already been provided to the court, and the

18   government's statements served no purpose other than to advocate

19   that the court upwardly depart or impose a high sentence within

20   the Guidelines range."     Id. at 154.   As a result, we decided, the

21   government had breached the plea agreement.     See also Lawlor, 168

22   F.3d at 637 (finding that the government breached the plea

23   agreement by asserting that the PSR properly determined the

24   Guidelines range where the plea agreement calculated the range

25   under a different (and lower) Guidelines range); United States v.

26   Enriquez, 42 F.3d 769, 770-71 (2d Cir. 1994) (vacating the

                                       16
1    sentence based on the government's violation of the plea

2    agreement by arguing against a downward adjustment for acceptance

3    of responsibility where the plea agreement required the

4    government to "agree to a Probation Department finding that the

5    defendant is entitled to a two-level adjustment for acceptance of

6    responsibility").5

7              We have also strictly enforced plea agreements against

8    the government where, as here, the disputed issue concerned

9    enhancements or adjustments to a defendant's total offense level

10   rather than a specific sentence within a given Guidelines range

11   or an upward or downward departure from that range.   In United

12   States v. Palladino, 347 F.3d 29 (2d Cir. 2003), the plea

13   agreement prohibited the government from moving for an upward

14   departure from the Guidelines range estimated in the agreement

15   "based on information known to [the United States Attorney's

16   Office] at this time."   Id. at 33.   The estimated total offense

17   level on which that range was based, however, was "not binding"

18   on the government, and the defendant was not permitted to


          5
            We have also applied this analytical framework to
     government breaches of plea agreements after the initial sentence
     has been executed. See United States v. Carbone, 739 F.2d 45,
     46-47 (2d Cir. 1985) (concluding that the government breached its
     promise to "make no recommendation to the sentencing judge as to
     the sentence which Stephen Carbone may be given" when it
     strenuously opposed a "split sentence" requested by the defendant
     after the district judge announced a 30-month term of
     imprisonment); United States v. Corsentino, 685 F.2d 48, 51–52
     (2d Cir. 1982) (finding that the government breached the plea
     agreement when, despite its agreement to "take no position" on
     the defendant's sentence, it advocated against permitting the
     possibility that the defendant might receive an earlier parole).

                                     17
1    withdraw his plea if the government advocated for a different

2    offense level.   Id.   The agreement calculated the adjusted

3    offense level to be ten.    Id.   At sentencing, the government

4    sought a six-level enhancement based on information it conceded

5    was not new.   Id. at 34.   We concluded that this violated "the

6    language and the spirit" of the plea agreement, id. at 30; at

7    best, the language was ambiguous and was therefore construed

8    against the government, id. at 34.

9              In Griffin's plea agreement, the government committed

10   itself "not to oppose the recommendation that the Court apply the

11   two (2) level downward adjustment of Guidelines §3E1.1(a)

12   (acceptance of responsibility) and further agree[d] to move the

13   Court to apply the additional one (1) level downward adjustment

14   of Guidelines §3E1.1(b)."    Plea Agreement, at ¶ 12.   The

15   agreement also permitted the government to "respond at sentencing

16   to any statements made by the defendant or on the defendant's

17   behalf that are inconsistent with the information and evidence

18   available to the government."     Plea Agreement, at ¶ 18b.6

19             In response to the defendant's objections to the PSR,

20   the government discussed the possible downward adjustment for


          6
            In Griffin's plea agreement, the government was permitted
     to "advocate for a specific sentence within the Guidelines range"
     and to "modify its position with respect to any sentencing
     recommendation or sentencing factor under the Guidelines . . . in
     the event that subsequent to this agreement the government
     receives previously unknown information regarding the
     recommendation or factor." Plea Agreement at ¶ 18. Neither
     party cites either of these provisions on this appeal, so we do
     not consider their relevance, if any.

                                       18
1    acceptance of responsibility under U.S.S.G. § 3E1.1 in two

2    separate written submissions to the district court.    It first

3    noted that "the government is troubled by some of the defendant's

4    objections which seem to raise questions regarding whether the

5    defendant has truly accepted responsibility."   Gov't March 31

6    Statement, at 1.   But the submission continued:   "However, the

7    defendant did timely notify authorities of his intention to enter

8    a guilty plea, thereby permitting the government to avoid

9    preparing for trial and permitting the government and the court

10   to allocate their resources efficiently."   Id. at 1-2.   The

11   government then proceeded to recommend that the defendant receive

12   the additional one-level decrease for acceptance of

13   responsibility pursuant to U.S.S.G. § 3E1.1(b) should the

14   district court find that the defendant is entitled to the two-

15   level adjustment under U.S.S.G. § 3E1.1(a).   Were this the

16   government's only communication addressing acceptance of

17   responsibility, we would have little trouble characterizing this

18   submission as containing a "few ill-advised descriptive words"

19   that fall short of breaching the plea agreement.    See Riera, 298

20   F.3d at 135.

21             But the government addressed the issue of acceptance of

22   responsibility a second, separate time.   In response to Griffin's

23   arguments, permitted by the plea agreement, see Plea Agreement,

24   at ¶¶ 8–9, that no relevant conduct was applicable to his

25   sentencing beyond that to which he pleaded guilty, the government

26   wrote that "the defendant is attempting to limit his conduct to

                                     19
1    only that to which he pled guilty," which "leads the government

2    to question whether the defendant has truly accepted

3    responsibility pursuant to U.S.S.G. § 3E1.1(a)."    Gov't April 15

4    Response, at 21.    The government then reviewed the legal

5    framework of a downward adjustment for acceptance of

6    responsibility, concluding:    "It is unclear whether the

7    defendant's objections to the inclusion of all the relevant

8    conduct rises to the level of outweighing his acceptance of

9    responsibility.    Suffice it to say that the defendant's

10   objections to the relevant conduct raises [sic] questions on the

11   issue of acceptance."    Id. at 22.

12              This was well beyond the pale.   No discussion of an

13   acceptance of responsibility adjustment was solicited by the

14   court.   Cf. Riera, 298 F.3d at 134-35.   It was not an effort

15   simply to correct an inaccurate representation of relevant

16   sentencing law.    See Amico, 416 F.3d at 166 ("In view of the

17   defendant's inaccurate description of the law relating to

18   aggravating role, the government was entitled to explain the law

19   concerning this adjustment without violating its agreement.").

20   Nor did the government merely provide information or evidence in

21   response to any statements by the defendant.    Plea Agreement, at

22   ¶ 18b.   Instead, the government, on its own initiative, warned

23   the court about what it considered to be "troubling" statements

24   by the defendant in his submission to the court in anticipation

25   of sentencing.



                                      20
1               The government did nothing to retract its questionable

2    statements or otherwise ameliorate their impact.   Cf. Amico, 416

3    F.3d at 165 (noting that "a retraction of an argument advanced by

4    the government in violation of its plea agreement would [not]

5    always cure its breach," but concluding that the "temporary

6    breach" of a "mild, brief, and unassertive form," combined with a

7    "rapid retraction," sufficiently cured any breach).    Instead, the

8    government followed up its first statement of misgivings

9    regarding the defendant's objections with both a reiteration of

10   its doubts regarding the defendant's acceptance of responsibility

11   and an unsolicited review of law relevant to denying the

12   adjustment.   See Gov't April 15 Response, at 21–22.

13              The government argues that it adhered to its promise in

14   the plea agreement throughout the sentencing hearing by

15   advocating for a sentence within a Guidelines range that included

16   the downward adjustment for acceptance of responsibility and by

17   expressly stating that it did "not advocat[e] for anything beyond

18   what's in the plea agreement."   Sent'g Hrg. Tr, June 21, 2005, at

19   5, 15.   These indirect references to an acceptance of

20   responsibility adjustment do not, we think, effectively retract

21   the previous statements or cure any breach.7   And we have


          7
           Even if we agreed that Griffin "opened the door" during
     the sentencing hearing by denying relevant conduct that the
     district court later determined to have occurred, see Amico, 416
     F.3d at 165, this would not be relevant to the breach of the plea
     agreement, because the government's sentencing letters were
     submitted prior to the sentencing hearing and prior to the
     district court's explicit warnings to Griffin about the perilous
     nature of his denial of such conduct in light of the guidelines

                                      21
1    determined that statements by the government asserting that it

2    did not intend to violate the plea agreement "do not . . .

3    insulate the government against a finding of breach if in fact

4    what was said constituted an argument" that violated the plea

5    agreement.   Vaval, 404 F.3d at 153.   "Given the government's

6    often decisive role in the sentencing context, we will not

7    hesitate to scrutinize the government's conduct to ensure that it

8    comports with the highest standard of fairness."    Lawlor, 168

9    F.3d at 637.

10             This is not to say that the plea agreement required the

11   government to remain silent were the defendant to make statements

12   inconsistent with the government's understandings.    It did not.

13   But the government did more than correct inconsistencies in fact

14   or law with information or evidence available to it, as permitted

15   by the plea agreement.   Instead, it offered a thorough legal

16   analysis, unsolicited by the court, and concluded by noting its

17   own skepticism as to whether the defendant satisfied the

18   requirements for an adjustment for acceptance of responsibility

19   as set forth by its analysis.

20             To paraphrase our conclusion in Vaval, 404 F.3d at 153,

21   it is difficult to draw a principled distinction between the

22   government voicing outright opposition to a downward adjustment

23   for acceptance of responsibility and stating that the defendant's

24   conduct was "troubling" and "raises questions on the issue of


     pertaining to acceptance of responsibility.    See, e.g., Sent'g
     Hr'g Tr., May 23, 2005, at 18-20.

                                     22
1    acceptance."   Without expressly opposing such an adjustment,

2    which would have been a more obvious and egregious breach of the

3    plea agreement, the government could have done little more to

4    attempt to persuade the court to deny an adjustment for

5    acceptance of responsibility.   After the first letter directly

6    addressing the issue of acceptance of responsibility, "the

7    government's statements served no purpose other than to advocate

8    that the court" deny an adjustment for acceptance of

9    responsibility.   Id. at 154.

10             That the district court disclaimed the government's

11   statements does not alter our conclusion.   "Where the sentencing

12   court has sentenced in accordance with a position improperly

13   advocated, while claiming not to have been influenced by the

14   improper advocacy, a reviewing court can do no more than

15   speculate as to whether the judge was in fact influenced, even

16   unconsciously."   Amico, 416 F.3d at 168.   We therefore conclude

17   that although the government's mistake was a common one made in

18   the course of strongly felt and doubtlessly well-intentioned

19   advocacy, it breached the plea agreement by urging, in effect,

20   that the district court deny a downward adjustment for acceptance

21   of responsibility.

22             C.   The Dissent

23             Judge Wesley does not dispute that the government was

24   forbidden by the plea agreement from making the statements in its

25   April 15 communication to the district court.   And he agrees that

26   "the government[, therefore,] breached [the plea agreement]

                                     23
1    before the sentencing hearing" took place.    Dissent at [7].

2    Neither does he assert that there is, nor can we find, anything

3    in the plea agreement that (1) renders it a breach for the

4    defendant to make a false statement, confirm that he previously

5    made one, or to correct one, or (2) expunges or renders harmless

6    the government's previous breach in the event of any such action

7    by or on behalf of the defendant.     See id. at [9].   Indeed, the

8    plea agreement explicitly anticipates the possibility of such

9    untruthfulness by reserving for the government the right to

10   "respond at sentencing to any statements made by the defendant or

11   on the defendant's behalf that are inconsistent with the

12   information and evidence available to the government."     Plea

13   Agreement at ¶ 18.8

14             Embracing, instead, an argument that the government

15   never made, the dissent is focused on the fact that at the time

16   of the plea hearing -- several months after the government's

17   breach -- "the defendant did not continue to maintain his

18   [previous] denial," dissent at [7], in response to the PSR, as to

19   "knowledge [by him] of the BabyJ video."    Id. at [3].    Griffin

20   "recant[ed], showing that his earlier denials had been

21   untruthful."   Id. at [8].   The dissent would hold that this

22   concession of misstatements by the defendant excuses the



          8
            This is not to suggest that the defendant was free to lie
     with impunity. He was, of course, subject to sanction for
     testifying falsely, obstructing justice, or perhaps otherwise for
     proffering untruthful information in this context.

                                      24
1    government from having failed previously to "strict[ly] compl[y]"

2    with the agreement. Id. at [10].    We do not see how.   We know of

3    no authority for the proposition that a defendant's concession of

4    previous misstatements during sentencing excuses the government

5    from its previous noncompliance with the plea agreement, nor any

6    theory upon which we think such a proposition could reasonably be

7    based.

8              This is not a case where the government sought to

9    renounce a plea agreement because the defendant had breached it.

10   See United States v. Cruz-Mercado, 360 F.3d 30, 39 (1st Cir.

11   2004) (cited by the dissent, at [9]).    The government flatly and

12   materially breached the plea agreement by advocating against an

13   acceptance of responsibility adjustment.   Only now does the

14   dissenter search the record to find a misstatement by the

15   defendant on the basis of which he would have the court bestow a

16   pardon on the government for its breach.   Especially having

17   carefully reviewed our oft-repeated dictum that "courts construe

18   plea agreements strictly against the Government . . . for a

19   variety of reasons, including the fact that the Government is

20   usually the party that drafts the agreement, and the fact that

21   the Government ordinarily has certain awesome advantages in

22   bargaining power," United States v. Ready, 82 F.3d 551 (2d Cir.

23   1996), we conclude to the contrary that the government was, and

24   remained, bound by its plea agreement and responsible for its

25   material breach thereof.



                                    25
1                D.    Remedy

2                The appropriate remedy for a breach of a plea agreement

3    is "either to permit the plea to be withdrawn or to order

4    specific performance of the agreement."        Lawlor, 168 F.3d at 638

5    (citation omitted).        The defendant seeks only specific

6    performance here.      We therefore vacate the sentence and remand

7    for resentencing.

8                In doing so, we must remand to a different district

9    judge.    Id.    Although in most other contexts we resist such a

10   course of action, we have concluded that it is appropriate where

11   a plea agreement is concerned; "the government's breach of its

12   commitment is difficult to erase if the case remains before the

13   same judge, because the judge's decision . . . was based on his

14   assessment of the facts."        Id. (quoting Enriquez, 42 F.3d at

15   772).    It is an understatement to observe, in light of the

16   transcript of the proceedings in the district court, that this

17   "disqualification results not from any inappropriate action on

18   [the judge's] part, but by reason of the government's failure to

19   adhere to its contractual obligation."        Id. (internal citation

20   omitted).    But "the government-rung bell cannot be unrung."

21   Riera, 298 F.3d at 134.        If the district court were again to deny

22   acceptance of responsibility, even if such an action is

23   warranted, there is no way to be certain that the government's

24   breach had no effect on that determination.        Treating this course

25   of action as a prophylactic rule ensures that the appearance of


                                          26
1    justice will not be compromised, see United States v. Kaba, 480

2    F.3d 152, 159 (2d Cir. 2007), and, of course, encourages

3    punctilious respect for similar agreements in the future.

4               We therefore remand to a different judge reluctantly.

5    The district court proceeded with what we view as extraordinary

6    diligence.   The hearings it held were unusually lengthy and

7    complex.   The extent to which this exemplary effort will be

8    wasted is a matter of no small concern.   We conclude nonetheless

9    that we are required to do so by our case law and the principles

10   underlying it.

11              E.   Other Arguments

12              The defendant makes several additional arguments.   Of

13   particular note are his assertions that the government violated

14   Federal Rule of Criminal Procedure 16 and Brady by failing to

15   turn over a copy of his hard drives, and his challenges to the

16   district court's application of sentencing enhancements for

17   trafficking and distribution based on his use of KaZaA.    We often

18   address issues raised on appeal that are not central to the

19   disposition of the appeal and might ordinarily be inclined to do

20   so here.   On this sentencing appeal, however, we choose to

21   exercise our discretion not to do so for several reasons.

22              First, subsequent to the sentencing proceedings below,

23   Congress passed a law that requires that "any property or

24   material that constitutes child pornography . . . shall remain in

25   the care, custody, and control of either the Government or the

                                       27
1    court."   Adam Walsh Child Protection and Safety Act of 2006, Pub.

2    L. No. 109-248, 120 Stat. 629, 631 (codified at 18 U.S.C.

3    § 3509(m)(1) (2006)).    This law appears to track closely the

4    government's former policy in that it prohibits the government

5    from providing a copy of any "property or material that

6    constitutes child pornography" to a defendant, notwithstanding

7    the requirements of Rule 16 of the Federal Rules of Criminal

8    Procedure.   Id. § 3509(m)(2)(A).     A defendant or his or her

9    expert may only examine the property at a government facility.

10   Id. § 3509(m)(2)(B).    Interpretations of this provision have

11   begun to percolate through the district courts but, to the best

12   of our knowledge, no Court of Appeals has yet addressed it.        See

13   generally Adam Liptak, Locking Up the Crucial Evidence and

14   Crippling the Defense, N.Y. Times, Apr. 9, 2007, at A10.      In

15   light of this change in the law subsequent to Griffin's sentence

16   on an issue he raises before us for the first time on appeal, we

17   think it better for the district court to address his arguments

18   under Rule 16 and Brady and to await possible further

19   developments in the law in this regard before addressing it if

20   indeed we eventually must in this case.9

21             Second, despite the lengthy sentencing hearing directed

22   primarily at understanding the use, function, and operation of



          9
            Because we do not address the Rule 16 argument, we need
     not determine, on the present record and at this point, whether
     Griffin requested a copy of the hard drive prior to sentencing as
     required.

                                      28
1    KaZaA, we find the record to be, through no apparent fault of the

2    court, confused and difficult to follow.    The court repeatedly

3    expressed its frustration in this regard.    See, e.g., Sent'g Hr'g

4    Tr., June 21, 2005, at 75 ("To the Government, I think you're

5    making this way [too] confusing . . . ."); Sent'g Hr'g Tr., July

6    13, 2005, at 22 ("In this case, because of issues that have

7    arisen at the fault of the Prosecution and law enforcement,

8    frankly, this is now the fourth day of this hearing.    What

9    boggles my mind, I've rarely heard an agent testify as [an FBI]

10   agent did on the stand.    He changed a report without indicating

11   it was an amended report."); Id. at 33 ("This is what the case is

12   all about, KaZaA.    I can't believe in the FBI somebody doesn't

13   know about KaZaA.    It doesn't have to be a live witness [i]f I

14   had an affidavit from somebody explaining to me how KaZaA

15   works . . . .").    Moreover, on remand, the defendant or his

16   expert witness may be afforded an opportunity to inspect the

17   computer hard drives in an effort to complete the record, which

18   may be of benefit to what at least seem on the surface to present

19   complicated technical issues.    We think our review of this

20   argument, should we be required to conduct one, would benefit

21   from further exposition and clarification in the district court.

22              Finally, when remanding for a retrial on the merits, we

23   do, of course, often decide issues that are not strictly before

24   us when they are likely to arise again in the course of the

25   retrial.   See, e.g., United States v. Shellef, 2007 WL ----, *?,



                                      29
1    2007 U.S. App. LEXIS 25974, *52 (2d Cir. Nov. 8, 2007)

2    (addressing various issues "because they [were] likely to arise

3    again on remand and retrial . . . even though their resolution

4    [was] not strictly necessary in order to decide th[e] appeal.");

5    United States v. Amico, 486 F.3d 764, 767 (2d Cir. 2007)

6    (vacating the conviction and addressing "only those issues

7    calling for guidance on remand"); United States v. Quattrone, 441

8    F.3d 153, 182 (2d Cir. 2006) (addressing evidentiary rulings on

9    appeal where conviction was vacated and remanded for retrial

10   based on a flawed jury instruction).   Deciding them may save the

11   investment of the substantial judicial resources -- as well as

12   those of counsel and members of another jury -- that might be

13   required by yet another remand should we eventually decide those

14   additional issues contrary to the view of the district court.

15   Yet another complete retrial might well follow.   The resources

16   expended, however, tend to be considerably less where, as here,

17   the remand is confined to resentencing and subsequent additional

18   sentencing hearings rather than a subsequent retrial on the

19   merits.   Cf. United States v. Leung, 40 F.3d 577, 586 n.2 (2d

20   Cir. 1994) ("Our slightly greater willingness, when there are

21   extenuating circumstances, to entertain sentencing objections

22   that were not presented to the District Court may reflect the

23   different impact on the judicial system engendered by vacating a

24   sentence in comparison with reversing a conviction.   Unlike trial

25   errors, whose correction requires a new trial that a timely



                                     30
1    objection might have obviated, correcting sentencing errors

2    usually demands only a brief resentencing procedure.") (citing

3    United States v. Baez, 944 F.2d 88, 90 n.1 (2d Cir. 1991)).

4              The remaining subsidiary arguments are also best left

5    for the district court to address in the first instance.

6                             CONCLUSION

7              The case is remanded to the district court with the

8    direction that it be assigned to a different district judge for

9    the court to vacate the current sentence and impose sentence de

10   novo.




                                    31
