Third Circuit Opinion Cites Alain Leibman’s Fox WC Blog Entry

January 30, 2015Articles

Those of you who follow, or at least sporadically read, this blog know that it attempts to treat in a considered way important issues facing the white collar bar and our clients. Still, like any blog, it exists largely in the ether, the cabined air of the blogosphere where interesting ideas are explored and debated. Like the proverbial falling tree in a forest, though, one cannot be certain that any blog-based analysis finds resonance in the real world.

Until now, that is. I blogged here recently about an inexplicable decision of the Third Circuit in United States v. Erwin. Erwin had bargained for a cooperating plea agreement, gotten it, and performed his end of the bargain, both by pleading guilty and by cooperating successfully with the Government. A minor, boilerplate provision in his plea agreement provided that he waived any appeal of his sentence. Dissatisfied with his cooperation-reduced sentence, Erwin filed an appeal anyway, and a vindictive prosecution not only sought its dismissal as frivolous, but asked for, and was granted by the Circuit as a punitive measure, the right to a sentencing de novo where the Government would no longer be obliged to credit Erwin for cooperation.

Erwin sensibly moved for rehearing by the panel, or in the alternative, by the entire Court. The entire Third Circuit, in a split decision rendered on December 31, 2014, but filed yesterday, denied rehearing. However, several Judges joined an opinion written by Judge Ambro which would have affirmed only the dismissal of the appeal on the basis of the waiver, but which dissented from the broader judgment vacating the original sentence and granting de novo sentencing. In so doing, and in a very unusual sight, Judge Ambro cited to and quoted from the earlier blog entry in this space, among other blog entries critical of the original panel’s decision:

The panel provides no sound reason for its new remedy, and I join the growing chorus of commentators who have lamented this decision. See Kevin Bennardo, United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements, 71 Wash. & Lee L.Rev. Online (2014); Alain Leibman, “Third Circuit Holds that Breach of Agreement not to Appeal Justifies Government’s Withdrawal of 5K Motion,”White Collar Defense and Compliance (Sept. 18, 2014), available at (“Not only did the court get it wrong in terms of appreciating the true nature of the parties’ exchange of commitments, but it did not even apply contracts law correctly.”) ….

No. 13-3407, at 6 (emphasis added).