In United States v. Yong, --- F.3d ---, No. 17-16017 (9th Cir. 2019), the Court affirmed the district court’s denial of the petitioner's 28 U.S.C. § 2255 motion to vacate his guilty plea and set aside his misdemeanor conviction related to operating an unlawful sports betting operation.
The defendant raised two challenges to the voluntariness of his plea. First, he said it was improperly conditioned on leniency for his son. Second, he claimed the plea was tainted by government misconduct.
As to the first issue, the Court joined the other Circuits in holding: "the Government must have probable cause to prosecute a third party when it conditions leniency for that party in exchange for a defendant’s guilty plea. We note that these courts have used wording that focuses on whether probable cause was present at the time the threat was made or lenity offered. A prosecutor’s improper coercion actually takes effect, though, when a defendant pleads guilty as a result of the threat or offer of lenity. Therefore, a defendant may successfully challenge the voluntariness of his plea by showing that probable cause to prosecute the third party did not exist at the time the defendant pleaded guilty, even if the Government had probable cause to prosecute at an earlier time."
Further, "the Government must also have probable cause to prosecute the defendant being offered the plea in exchange for leniency for a third party, in addition to probable cause to prosecute the third party. In other words, a 'high standard of good faith' requires the Government to have probable cause both to prosecute the defendant and to prosecute the third party at the time the defendant enters the plea agreement in exchange for leniency for the third party."
The Court, however, found the government had probable cause as to both the petitioner and his son. Thus, the plea was not involuntary on this ground.
As to the second issue, there was no question the government engaged in serious misconduct. It created a ruse to gain access to the petitioner's room and then failed to provide that information in seeking a search warrant.
The Court agreed that deliberate fabrications by law enforcement officers used to obtain search warrants could render a subsequent plea involuntary. But this was so only if the defendant did not know of the misconduct at the time of the plea. Here, the Court held: "Given Yong’s awareness of the Government’s misconduct and his decision to plead guilty nevertheless, we do not believe that the misconduct tainted his guilty plea or otherwise improperly induced it."
