Appeals court finds Utah defendant should have been told of plea offer
By Brooke Adams
The Salt Lake TribuneFirst published Mar 19 2013 01:01AM
The 10th Circuit Court of Appeals ruled Monday that a Utah federal court judge erred in dismissing an appeal without considering the defendant’s allegation that his attorney committed fraud by not informing him prosecutors had offered a plea deal.
The court said Alfonso Moya-Breton properly raised an allegation of fraud, which was supported by a letter he obtained under the Freedom of Information Act. The letter showed that prosecutors offered a plea deal prior to Moya-Breton’s trial that, if accepted, might have reduced his sentence by as much as six years.
Moya-Breton, 33, was indicted by a federal grand jury in September 2006 on various drug charges. At trial, he was represented by defense attorney Ed Brass. A jury found Moya-Breton guilty on Aug. 29, 2007, and he was sentenced five months later by U.S. District Judge Tena Campbell to 30 years in prison. That sentence was upheld by the 10th Circuit Court in 2009.
Moya-Breton subsequently filed a motion appealing his sentence, claiming ineffective counsel, arguing among other things that his attorney had not pursued a plea deal as requested and misinformed him about his potential sentence and the evidence against him.
Moya-Breton claimed Brass told him he had called prosecutors but had not heard back from them about a plea deal. Moya-Breton also said he was told a plea deal would likely result in a higher sentence than the 17 years he was likely to get if found guilty at trial.
In response to the motion, Assistant U.S. Attorney Adam Elggren wrote that Moya-Breton had "failed to produce evidence that a plea offer was ever extended by the government, and therefore cannot support his claim that his attorney failed to inform him of such an offer."
Judge Campbell rejected the appeal in March 2011, noting that Moya-Breton "admits that he doesn’t know if the government offered a plea agreement to his attorney." She also said he had failed to prove other claims of ineffective counsel related to his sentence.
But Moya-Breton filed a second motion in June 2011. Campbell denied Moya-Breton’s second motion to reconsider his sentence, saying she no longer had jurisdiction because he had an appeal pending before the 10th Circuit Court.
In March 2012, Moya-Breton filed a third motion seeking to have his conviction and sentence vacated, this time invoking a rule that allows reconsideration when, among other factors, there is a mistake, fraud or newly discovered evidence.
This time, Moya-Breton included a copy of the letter he obtained in November 2011 showing there had indeed been a plea offer. The letter, sent from Elggren to Brass and dated July 18, 2007, noted that Moya-Breton might get his sentence reduced if he accepted responsibility.
"At the time the court made its initially holding concerning the [motion], the court was not aware of any plea agreements ... ," Moya-Breton said in the filing. "Now it is undisputable that there was at least one."
Moya-Breton also included a letter he sent Brass asking him to file an affidavit acknowledging the plea deal as well as Brass’ response. The attorney wrote that he had taken the case to trial because Moya-Beton was "never willing to provide any information that could have resulted in you receiving a lesser sentence. … You were not willing to plead guilty because you said you were not guilty."
Campbell once again denied the petition, saying she had already dealt with the issues it raised and thus was without merit.
The appeals court, however, said Campbell should have considered the fraud allegation in Moya-Breton’s final motion.
"Unfortunately, the district court did not distinguish the motion’s fraud allegation ... from its other assertions," the appeals court said. "That is a problem."
The letter discovered by Moya-Breton "undercuts the district court’s apparent understanding that there was no plea agreement," the appeals court said.
The appellate court questioned why government prosecutors failed to mention the letter in responding to Moya-Breton’s motions before the district court. The court also said Moya-Breton’s attorney should "explain or clarify" why he said the government wasn’t interested in a plea deal.
The case began when a Nevada trooper stopped a vehicle driven by a man and discovered about 10 pounds of cocaine and 6 pounds of methamphetamine in the gas tank of the Volkswagen Passat. The man said he was delivering the drugs to a home in West Jordan, where Moya-Breton and a third man also lived.
Federal drug agents set up a sting by disabling the car near the residence; Moya-Breton and the third man were arrested after they responded to the driver’s call for help with the vehicle. Other narcotics, "distribution paraphernalia" and firearms were found during a later search at the men’s residence. The other two men also were convicted of various drug charges.
Moya-Breton, incarcerated at the federal prison in Lompoc, Calif., is "functionally illiterate" in his native Spanish language and does not read, speak or write English. He filed the appeal to the 10th Circuit Court with the help of another inmate.
Melodie Rydalch, spokeswoman for the U.S. attorney’s office, said the office was reviewing the decision, but did not have further comment.