Doe v. United States , 915 F.3d 905 ( 2019 )

17-1841
Doe v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2018
(Argued: October 22, 2018 Decided: February 14, 2019)
Docket No. 17-1841
_______________
JOHN DOE,
Petitioner-Appellant,
—v.—
UNITED STATES OF AMERICA,
Respondent-Appellee.
_______________
B e f o r e:
KATZMANN, Chief Judge, KEARSE AND CHIN, Circuit Judges.
_______________
Petitioner-appellant John Doe appeals from a judgment entered in the
United States District Court for the
Doe filed a petition for a writ of error coram nobis seeking to vacate his earlier
1
conviction for conspiracy . The petition argues that Doe’s
defense counsel was ineffective in affirmatively assuring him that there should
be no immigration consequences for pleading guilty when, in fact, the crime to
which he pleaded was an aggravated felony resulting in mandatory removal.
The Government joined in Doe’s petition after originally opposing it; the district
court nevertheless denied the petition. On appeal, Doe argues that the district
court applied incorrect legal standards in evaluating the petition and that the
court abused its discretion in denying relief. The Government now argues that
the district court’s decision was not an abuse of discretion. We agree with Doe
that the court below erred and that Doe is entitled to relief. Accordingly, the
judgment of the district court is REVERSED and the case is REMANDED.
_______________
, for Petitioner-Appellant.
(argued), Assistant United
States Attorneys, for , United States
Attorney for the
for Respondent-Appellee.
_______________
KATZMANN, Chief Judge:
Petitioner-Appellant John Doe 1 filed a writ of coram nobis in 2014 to vacate
a prior conviction. Both the Government and Doe’s original attorney admitted
that Doe was misled as to the serious immigration consequences of the crime to
1
Petitioner has been given the pseudonym “John Doe” throughout this litigation
to safeguard his identity. All citations to the record in this case have been omitted.
2
which he pleaded guilty. The Government, after initially opposing the coram
nobis petition, joined in asking the district court to grant it. The district court
nevertheless denied the petition. Troublingly, the Government has now switched
positions again, arguing that the district court did not abuse its discretion. On
review, we grant the petition.
BACKGROUND
Pursuant to a plea agreement, Doe pleaded guilty in to a one-count
information charging him with conspiracy
. As part of
his agreement, Doe consented to cooperate with the Government. Doe was
sentenced in to .
In , Doe filed a petition for a writ of error coram nobis. According to the
petition, Doe’s attorney had assured him that his plea should not result in
removal, when in fact the admitted loss amount rendered it an
aggravated felony, resulting in a lifetime citizenship bar, a conclusive
presumption of deportability, and automatic denial of discretionary relief. See
3
8 U.S.C. §§ 1101(a)(43)(M)(i) (defining aggravated felony as including “an offense
that involves fraud or deceit in which the loss to the victim or victims exceeds
$10,000”), 1101(f)(8), 1227(a)(2)(A)(iii), 1228(c), 1229b(a)(3), 1229b(b)(1)(C),
1427(a). The petition also included an earlier written statement in which Doe’s
defense attorney admitted that he was ignorant as to immigration law and so
was unaware that Doe’s conviction would lead to mandatory deportation. He
and Doe had relied on the Government’s assurances that it would do everything
possible to keep Doe in the country.
After his sentencing, Doe applied to renew his green card, at which point
he was placed into removal proceedings. The agents with whom Doe had been
cooperating referred him to new agents, and Doe agreed to cooperate with them
in more sensitive matters. His removal proceedings were then administratively
closed. Now aware that he was deportable, Doe sought to vacate his conviction;
he was dissuaded by his handlers, who told him they would be able to obtain
citizenship for him or have his conviction vacated. With the agents’
encouragement, Doe applied for citizenship; this application, however, was
denied around or . Agents continued to assure him that they would
4
procure him citizenship and to discourage him from discussing a vacatur motion
with attorneys. Finally, in , Doe recognized that the agents could not actually
obtain citizenship for him and contacted a new lawyer.
Doe then filed the instant coram nobis petition, after a delay of several
months occasioned by the need to retrieve the original criminal complaint
against him. The Government initially opposed the petition, asserting that Doe
did not meet the standard for coram nobis relief because he did not receive
ineffective assistance, he was not prejudiced by any ineffective assistance, and his
petition was untimely. However, after meeting with Doe, the Government filed a
letter with the court withdrawing its opposition. The Government requested that
the court (1) grant the coram nobis petition and (2) transfer the criminal case to the
. At a hearing in , the Government
informed the court that after examining Second Circuit case law and meeting
with Doe—whose story the Government credited—the Government believed
that Doe had received ineffective assistance of counsel. Given the circuit law and
the factual circumstances, the Government determined that it “could not . . . in
good conscience oppose the motion.”
5
The district court orally denied the petition, stating that it was “not
persuaded.” Doe timely appealed the decision, seeking expedited summary
reversal. This Court determined that the district court’s reasoning could not be
discerned from the record; it remanded for the district court to identify the legal
standard applied and to explain its reasons for denying relief. The district court
then issued a written opinion denying Doe’s coram nobis petition. The court
stated that no “‘serious constitutional question’ would be raised by withdrawing
[Doe’s] guilty plea at this stage,” and held that a writ of coram nobis “hardly
seems the remedy in this case, if one is even in order.” The court said that “the
Executive Branch . . . is requesting that the Judicial Branch remedy what the
United States Attorney’s Office believes to be a wrong perpetrated by either ICE
or the FBI,” a request which the court did “not believe . . . to be sound, given the
separation of powers doctrine.” After the district court issued its decision, Doe
reinstated his appeal.
6
DISCUSSION
I. Standard of Review
“A writ of error coram nobis is an ‘extraordinary remedy’” typically granted
only when a prisoner is out of custody and so cannot pursue habeas relief. Kovacs
v. United States, 744 F.3d 44, 49 (2d Cir. 2014) (quoting United States v. Morgan, 346
U.S. 502, 511 (1954)). We review de novo the legal standards that the district court
has applied but review for abuse of discretion the court’s ultimate decision to
deny the writ. See Porcelli v. United States, 404 F.3d 157, 158 (2d Cir. 2005).
II. Coram Nobis Relief
The sole issue on appeal is whether the district court improperly denied
Doe’s coram nobis petition. While the Government’s agreement with Doe below
might normally preclude it from opposing Doe now, see, e.g., Steagald v. United
States, 451 U.S. 204, 209 (1981); United States v. Gupta, 699 F.3d 682, 690 n.2 (2d
Cir. 2012); United States v. Canova, 412 F.3d 331, 347 (2d Cir. 2005), we will
exercise our discretion to consider the matter on the merits, see Bogle-Assegai v.
Connecticut, 470 F.3d 498, 504 (2d Cir. 2006), bearing in mind the concessions the
Government has made both below and on appeal.
7
To receive coram nobis relief, a petitioner must show “that 1) there are
circumstances compelling such action to achieve justice, 2) sound reasons exist
for failure to seek appropriate earlier relief, and 3) the petitioner continues to
suffer legal consequences from his conviction that may be remedied by granting
of the writ.” Kovacs, 744 F.3d at 49 (quoting Foont v. United States, 93 F.3d 76, 79
(2d Cir. 1996)). 2 The district court neither laid out nor applied these legal
standards. Instead, it cited cases that asked whether “the failure to allow for
collateral review would raise serious constitutional questions,” a test used to
determine whether untimely habeas petitions alleging constitutional violations
2 As the Government does not contest the third factor for receiving coram nobis
relief, only the first and second factors are at issue here. See Norton v. Sam’s Club, 145
F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered
waived and normally will not be addressed on appeal.”). However, we note that Doe’s
conviction for an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M), means that he “shall
be conclusively presumed to be deportable,” id. § 1228(c); see id. § 1227(a)(2)(A)(iii), and
is ineligible for cancellation of removal or adjustment of status, id. § 1229b(a)(3),
(b)(1)(C). He is also categorically disqualified from proving moral character, id.
§ 1101(f)(8), which in turn disqualifies him from naturalized citizenship, id. § 1427(a).
The fact that his deportation proceedings have been administratively stayed does not
alleviate these legal consequences, as Doe is still unable to apply for citizenship and
remains subject to mandatory removal at any moment if the Government removes the
stay. See Matter of Castro-Tum, 27 I. & N. Dec. 271, 271 (A.G. 2018) (prohibiting the use of
administrative closure in most removal cases and requiring all administratively closed
cases to be re-calendared on the motion of either party unless they were closed pursuant
to an explicit grant of authority via regulation or judicially approved settlement).
8
may be brought under 28 U.S.C. § 2241. Triestman v. United States, 124 F.3d 361,
377 (2d Cir. 1997). Doe argues that the district court applied the wrong legal
standards, and we agree. Under the correct standards, Doe merits relief.
A. Ineffective Assistance
Doe claims that his attorney misadvised him as to the immigration
consequences of his plea, and that there is a reasonable probability he would
have gone to trial, litigated a defense, or negotiated a different plea had he not
been misadvised. Ineffective assistance of counsel, including during the plea-
bargaining process, is a circumstance compelling the grant of a timely
application for coram nobis relief. Kovacs, 744 F.3d at 49. To prove ineffective
assistance, a petitioner must show that “defense counsel’s performance was
objectively unreasonable” and that “the deficient performance prejudiced the
defense.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). “The
question of whether a defendant’s lawyer’s representation violates the Sixth
Amendment right to effective assistance of counsel is a mixed question of law
and fact that is reviewed de novo.” LoCascio v. United States, 395 F.3d 51, 54 (2d
Cir. 2005) (citation omitted).
9
The Government conceded both in the district court and on appeal that
Doe’s counsel’s actions were objectively unreasonable. They were. At the time of
Doe’s plea in , the Supreme Court had not yet held that attorneys must
affirmatively warn their clients of the immigration consequences of their
potential convictions. See Padilla v. Kentucky, 559 U.S. 356, 369 (2010). However,
this court had already held that “an affirmative misrepresentation by counsel as
to the deportation consequences of a guilty plea is . . . objectively unreasonable.”
United States v. Couto, 311 F.3d 179, 188 (2d Cir. 2002), abrogated on other grounds
by Padilla, 559 U.S. 356.
Doe claims that when he asked his defense counsel about the immigration
consequences of the proposed plea agreement, counsel indicated that, with Doe’s
cooperation and an ultimate plea of guilty in this nonviolent case, Doe should
not have a problem with the immigration authorities and should not face
deportation. An earlier statement by Doe’s defense counsel effectively admitted
as much. The statement noted that counsel neither was a practitioner of nor was
knowledgeable about immigration law; that he and Doe had been assured by the
Government that the Government would do everything it could to keep Doe
10
from being deported; that the attorney and Doe had relied on the Government’s
representations; and that he had not been aware that deportation was mandatory
for the offense to which Doe was considering pleading guilty. The district court
made no findings as to the credibility of Doe’s or his attorney’s representations.
The Government, however, has credited Doe’s description of the events and of
what he was told by government agents, and the Government has admitted that
defense counsel effectively conceded that he provided incorrect information to
Doe as to whether mandatory deportation would result from his plea. Reviewing
the record de novo, we conclude that there is no genuine dispute as to the fact that
counsel’s representations to Doe, which inaccurately conveyed that his plea of
guilty to the charge would not make his deportation mandatory, fell below
an objective standard of reasonableness. Couto, 311 F.3d at 187 (finding
ineffective assistance when “counsel affirmatively misled [d]efendant into
believing there were things that could be done to avoid deportation”).
The question then becomes whether this misadvice prejudiced Doe. The
Government asserts that the district court’s decision impliedly found a lack of
prejudice and claims that this holding was not an abuse of discretion. However,
11
the court did not make any clear determination regarding whether Doe had met
the Strickland standard. Instead, applying an incorrect legal test, the court stated
conclusorily that “[Doe] has not demonstrated that a ‘serious constitutional
question’ would be raised by withdrawing his guilty plea at this stage, nor that
any such constitutional question would be remedied by re-opening the
Information or transferring it to the .” We respectfully think the
question is not whether vacating Doe’s conviction would raise a constitutional
question, but rather whether allowing his conviction to stand would constitute a
miscarriage of justice.
Assuming that the district court meant to say that no serious constitutional
question would be raised by maintaining Doe’s conviction, we believe the court
neither employed the correct legal standard nor examined whether Doe was
prejudiced under Strickland. We therefore analyze the question ourselves.
Prejudice exists “if it is shown that, but for counsel’s unprofessional errors, there
was a reasonable probability that the petitioner could have negotiated a plea that
did not impact immigration status or that he would have litigated an available
defense.” Kovacs, 744 F.3d at 52. Doe has shown both.
12
As a predicate matter, a petitioner alleging ineffective assistance based on
immigration misadvice must “clearly demonstrate ‘that he placed particular
emphasis on [immigration consequences] in deciding whether or not to plead
guilty.’” Id. (citation omitted). 3 Courts cannot rely solely on “post hoc assertions
from a defendant about how he would have pleaded but for his attorney’s
deficiencies”; we must also “look to contemporaneous evidence to substantiate a
defendant’s expressed preferences.” Jae Lee v. United States, 137 S. Ct. 1958, 1967
(2017). This evidence shows that Doe was deeply concerned about deportation.
3 The Government suggests that it was not an abuse of discretion for the district
court to find a lack of prejudice in light of Jae Lee v. United States, 137 S. Ct. 1958 (2017),
because Doe did not show either that deportation was the “determinative issue” for him
or that he “had a large number of discussions with his counsel” about it. The Jae Lee
Court did note that, in that case, deportation was “determinative” for Lee, based on
Lee’s “repeated[]” questioning of his attorney and on the testimony of Lee and Lee’s
attorney at an evidentiary hearing that Lee would have gone to trial if he had known
about the risk of deportation. 137 S. Ct. at 1967-68. But Jae Lee did not say that a
petitioner must show that immigration consequences were his sole concern, or that he
had engaged in a “large” number of immigration-related discussions with counsel.
(What constitutes a “large” number of discussions the Government does not say,
though apparently it is more than the three with which the Government credits Doe.)
Rather, the Court asked whether the petitioner “has adequately demonstrated a
reasonable probability that he would have rejected the plea had he known that it would
lead to mandatory deportation.” Jae Lee, 137 S. Ct. at 1967. Thus, Jae Lee did not alter the
standard this court set in Kovacs.
13
While the district court did not hold an evidentiary hearing on the petition,
Doe submitted a declaration stating that during an early conversation with his
counsel, Doe asked about his immigration situation and his attorney indicated
that cooperation and an ultimate plea of guilty should not lead to deportation.
Counsel told Doe “that it was not a violent crime, that [Doe] had a green card,
and that essentially [Doe] should ‘be okay.’” When reviewing the plea agreement
that Doe ultimately signed, Doe asked counsel about the listed penalty of
deportation—another sign that Doe was particularly concerned about
immigration consequences—but counsel “soft-peddled the warning in the
agreement as a possible penalty that was put in all agreements for people who
were not citizens.” The Government credited Doe’s statements below and does
not challenge them on appeal.
Doe’s defense counsel also said in an earlier statement that he and Doe
were assured by the Government that they would do everything they could to
keep Doe in the United States, that the Government was aware of the extreme
danger Doe would face if he were sent back to his home country, and that
counsel and Doe relied on the representations the Government gave them at the
14
time of Doe’s plea. These statements buttress Doe’s claim that he would not have
pleaded guilty had he known about the deportation consequences of doing so.
Evidence regarding Doe’s background likewise backs up Doe’s later
assertions that he was focused on remaining in the country. His history in the
United States, his family circumstances, and his gainful employment all signal
Doe’s strong connection to, and desire to remain in, the United States. See Jae Lee,
137 S. Ct. at 1968 (finding it relevant that “Lee had lived in the United States for
nearly three decades, had established two businesses in Tennessee, and was the
only family member in the United States who could care for his elderly parents,”
and that “there is no indication that he had any ties to South Korea [as] he had
never returned there since leaving as a child”). The Government “has given no
persuasive reason to conclude that the likely grave immigration consequences of
his plea were not of great importance” to Doe. United States v. Gonzales, 884 F.3d
457, 461 (2d Cir. 2018) (per curiam).
While not contemporaneously documented, Doe’s statements regarding
what occurred at his plea hearing add to his claim. The Government attempts to
use the plea hearing against Doe: it points to Doe’s statements during the plea
15
hearing to argue that he pleaded guilty after being warned of the immigration
consequences of his plea. The district court stated that Doe “was instructed that
his entry of a plea of guilty could result in his deportation given that the value of
exceeded $10,000 and therefore constituted an aggravated felony.”
The latter part of this statement was clear error. The magistrate judge did ask
Doe, as part of a standard plea colloquy, if he understood that he “may be
deported as a result of this conviction.” Yet nowhere during the colloquy did the
court inform Doe that the crime to which he was pleading guilty constituted an
aggravated felony, or what the mandatory consequences of pleading to an
aggravated felony would be. And Doe indicated in a declaration that his attorney
misadvised him further in response to the judge’s question, emphasizing that the
judge said “may be” rather than “would be.” The Government does not
challenge Doe’s characterization of what occurred during the plea hearing. 4
Given the evidence that Doe was quite concerned about remaining in the
country, it is clear that he would have preferred to negotiate a plea that did not
The Government notes that there is no record that Doe’s counsel actually
4
stopped the proceedings, as counsel did in Jae Lee. But Jae Lee did not state that actual
stoppage is required in order to show prejudice. 137 S. Ct. at 1968 & n.4.
16
trigger mandatory removal. Likewise, there is “a reasonable probability that the
prosecution would have accepted, and the court would have approved, a deal
that had no adverse effect on [his] immigration status.” Kovacs, 744 F.3d at 52.
The Government cited this language in Kovacs in explaining to the district court
why it believed Doe’s counsel’s mistaken advice had prejudiced Doe. Therefore,
in joining Doe’s motion, the Government implicitly admitted that a plea might
have been negotiated without mandatory immigration consequences. There is
also a reasonable probability that the court would have accepted a plea to a lesser
charge, since the court ultimately sentenced Doe to probation rather than prison.
The entirety of the Government’s argument to the contrary on appeal is
that Doe does not cite any alternative charge that could have been brought. But it
was not necessary to bring a different charge. Doe pleaded to one count of
conspiracy
17
It was eminently possible to keep the loss amount
between and $10,000 by charging Doe for a conspiracy that only
encompassed a few of his documented transactions.
Moreover, while Doe did not point to another charge that could have
formed the basis of a plea, one clearly existed:
There is a
reasonable probability that, had all parties been aware of the possibility of
mandatory deportation, the Government would have been willing to charge Doe
with based on one or more specific transactions with a total loss amount
under $10,000—rather than the higher loss and restitution amounts actually
charged—in exchange for the cooperation that Doe promised in his plea deal.
Given Doe’s promised cooperation, as well as the Government’s assurances
during plea negotiations that it would do everything it could to prevent Doe’s
removal, there is a reasonable probability that the Government would have
accepted charging a lower loss amount.
18
There is also a reasonable probability that, had Doe known of the
mandatory removal provision, Doe would have litigated an available defense.
Doe asserts that he could have (and would have) tried the case or challenged the
loss figure had he known that a plea would lead to deportation. The Government
responds that the evidence against Doe was too “overwhelming” to go to trial,
and that Doe would have had no way to successfully challenge the loss amount.
But this is not entirely certain. There were ways for Doe to challenge both the
charges themselves and the loss amount. Doe provided some of the evidence
against himself during his proffer sessions, which Doe claims he would not have
undertaken had his attorney told him about the possibility of mandatory
deportation. Doe also might have contested intent, as he believed he had a good
argument that he did not know the purpose of the and
was just .
To contest the loss amount, Doe could have challenged the extent of his
involvement in the scheme and argued that he should be held liable only for the
losses he himself caused. See United States v. Studley, 47 F.3d 569, 575 (2d Cir.
1995) (holding that “the fact that the defendant is aware of the scope of the
19
overall operation is not enough to hold him accountable for the activities of the
whole operation,” and that the key question is “what role the defendant agreed
to play in the operation”). There was no indication in the complaint that Doe had
“suggested” the crimes that caused the loss. United States v. Germosen, 139 F.3d
120, 130 (2d Cir. 1998). Therefore, Doe could have argued that “[h]e followed
instructions on potential customers but did not design or
develop the scam.” Id. He might then have only been held responsible for the
transactions he himself made—and Doe had a possible basis to argue that these
transactions totaled less than $10,000. The criminal complaint stated that Doe and
and that together they caused well over
$100,000 in losses; it did not state how much of the money went to Doe rather
than —information that could weigh on the nature or extent of
any conspiracy. Doe also claimed that a second person
Thus, there
was a path available to Doe—albeit a narrow one—to challenge either the
20
charges against him or the loss amount had he not cooperated under a mistaken
impression that he would be safe from removal.
Moreover, the Supreme Court has clarified that “there is more to consider
than simply the likelihood of success at trial”; the inquiry focuses on the
defendant’s decision-making process, and “[t]he decision whether to plead guilty
also involves assessing the respective consequences of a conviction after trial and
by plea.” Jae Lee, 137 S. Ct. at 1966. Here, even if Doe were likely to lose, it would
be far from irrational for Doe to litigate either the entire charge or the loss
amount, given his strong interest in remaining in the country. If Doe had fought
the charge in the information and lost, he would have had a Guidelines level of
, exposing him to . His plea agreement left him at a
Guidelines level of , for a Guidelines sentence. This difference
in risk is slight enough to pursue even a small possibility of an acquittal or a
successful challenge of the loss figure. See id. at 1966-67. As Doe can show that he
had a reasonable probability either of negotiating a different plea or of going to
trial or litigating the loss amount, he has proven that his counsel’s immigration
misadvice was prejudicial. See Kovacs, 744 F.3d at 53 (“[T]he question is not
21
whether the defense would ultimately have been successful. Rather, the inquiry
is whether the defense was viable and sufficiently promising that [petitioner]
would have litigated the defense to avoid immigration consequences.”).
B. Sound Reasons for Delay
To receive coram nobis relief, Doe must also show that he provided sound
reasons for his delay in seeking to vacate his conviction. The district court did
not determine whether Doe had justified his delay. However, we must do so to
resolve Doe’s claim. See Kovacs, 744 F.3d at 54. While “[n]o statute of limitations
governs the filing of a coram nobis petition,” id., a petitioner must still show
“sound reasons” for the delay in bringing the petition, Foont, 93 F.3d at 79. To
decide whether sound reasons exist, the court must focus on “the circumstances
surrounding the petitioner’s failure to raise the issue earlier rather than the
government’s injury that resulted from the delay.” Id. at 80. “The critical inquiry
. . . is whether the petitioner is able to show justifiable reasons for the delay.” Id.Doe has provided sufficient reasons to justify his delay. He claims that his
handlers promised him that he would obtain citizenship or that they would get
his criminal case dismissed. The Government does not contest Doe’s contentions
22
that his handlers dissuaded him from seeking to vacate his conviction. Instead, it
asserts that the timeline after Doe was denied citizenship in is somewhat
vague, such that a court could plausibly conclude that he had not sufficiently
explained why he waited five more years before filing his petition. However, as
noted above, the district court did not actually decide the issue. Abuse-of-
discretion review, therefore, is inappropriate here.
In any case, Doe’s declarations provide sufficient justification for his delay.
He states, and the Government does not dispute, that agents continued to tell
him after his failed citizenship application that they would be able to provide
him the relief he sought. Doe’s recollection of a statement that his file was
“a 7 out of 10” and that he should “just hold on and it would be 10 out of 10” and
he would get the relief he wanted, further explains why Doe continued to rely on
his handlers rather than a coram nobis petition to address his immigration
problem.
Nor is the timeline as vague as the Government suggests. Doe clearly
states that he decided to pursue a petition directly prior to hiring counsel in ,
once he finally realized that his handlers could not, in fact, gain him citizenship.
23
He then moved with diligence, pausing only to procure the original criminal
complaint. These facts clearly differentiate this case from those the Government
cites, in which petitioners provided either patently insufficient justifications or
no justifications at all. See, e.g., United States v. Sash, 374 F. App’x 198, 200 (2d Cir.
2010) (summary order); Jae Hyun Ahn v. United States, 96 F. App’x 43, 44 (2d Cir.
2004) (summary order); Rodriguez v. United States, No. 98 Cr. 00764 MHD, 2012
WL 6082477, at *10 (S.D.N.Y. Dec. 4, 2012). Nor does “the Government . . .
suggest any tactical reason [Doe] would have delayed pursuit of the writ” absent
continued discouragement from his handlers, Kovacs, 744 F.3d at 54—particularly
since the Government does not contest that Doe repeatedly discussed his desire
to vacate his conviction with the agents. We therefore conclude that Doe’s
petition was timely.
III. Vacatur of the Plea and Transfer
Having concluded that Doe has met his burden to receive coram nobis
relief, we must determine the scope of that relief. The plea for relief in Doe’s
petition asks only to vacate his conviction. However, both the petition itself and
the Government’s letter supporting the petition clearly contemplate vacatur of
24
Doe’s guilty plea, as well. Both parties stated at oral argument that if we were to
grant Doe’s petition, we should also vacate Doe’s plea. We agree. We therefore
direct the district court to grant Doe’s coram nobis petition and vacate both his
conviction and his plea.
Finally, because the district court denied Doe’s coram nobis petition, it did
not rule on the Government’s request to transfer Doe’s criminal case to the
. However, both parties consented to this transfer
below and agree that such a transfer is the preferred outcome if the district
court’s judgment is reversed. Given that “the convenience of the parties, . . . in
the interest of justice,” clearly favors transfer, Fed. R. Crim. P. 21(b), and that the
parties have given their consent, we hereby direct the district court to transfer
Doe’s underlying criminal case to the for further
proceedings.
CONCLUSION
As we reflect on the Government’s troubling changing positions in this
matter—after having once rightly concluded that Doe is entitled to relief—we are
reminded of then-Attorney General Robert F. Kennedy’s cautioning words: “It is,
25
after all, not the Department of Prosecution but the Department of Justice . . . .
[T]he interest of the Government . . . is not that it shall win a case, but that justice
shall be done.” 5 For the foregoing reasons, the judgment below is REVERSED,
and the case is REMANDED to the district court with instructions to grant the
writ, vacate Doe’s plea and conviction, and transfer Doe’s criminal case to the
.
5
Robert F. Kennedy, Att’y Gen., Address to the National Conference on Bail and
Criminal Justice 2 (May 29, 1964) (available in the John F. Kennedy Library).
26