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Using a Western District of New York case to drive home a principle it has long advocated, the 2nd U.S. Circuit Court of Appeals Tuesday reminded prosecutors that all elements of a plea agreement should be in writing. The court, writing in U.S. v. Graves, 02-1015, told a trial judge to hold a hearing on whether a man facing drug charges was improperly induced to enter a plea after being told he might receive a more lenient sentence for his cooperation. “This appeal illustrates the importance of including in a written plea agreement the entirety of the understanding between the prosecutor and the defendant — a message we have previously communicated with apparent lack of success,” Judge Jon O. Newman wrote for the court. The ruling arises out of the sentencing of Gregory Graves, who had been arraigned on narcotics charges. Graves had a criminal record and faced a mandatory sentence of 20 years. He probably would have received 25 or 26 years under federal sentencing guidelines. Graves went through three attorneys, none of whom could negotiate a plea for him. His fourth won a deal that would allow him to plead guilty to a firearms violation and receive a sentence of 15 years in prison. Graves would have to cooperate with the government and agree not to appeal his sentence. During Graves’ plea proceeding, the government said there was “a 5K aspect to the plea agreement,” referring to Section 5K1.1 of the federal Sentencing Guidelines. It allows prosecutors to move for a reduced sentence because of a defendant’s cooperation. The written plea agreement, however, contained no mention of 5K1.1. In October 2001, Graves moved to withdraw his plea, alleging that the government was not holding up its end of the bargain. Graves said he had cooperated with the government but was told that his help was not substantial. Prosecutors told Western District Judge Michael A. Telesca of Rochester that Graves had provided good information but said they made it clear when the plea was taken that he had a “very slim likelihood” of being released. At a hearing, Assistant U.S. Attorney Bret A. Puscheck said Graves’ attorney was clearly told that it was a “long shot” that Graves would be released, “but it was nevertheless a possibility if the information outweighed the risk.” Telesca affirmed Graves’ sentence, saying that Graves’ arguments were defeated by the written plea agreement. In reversing, the 2nd Circuit said the government’s remarks about the “5K aspect” of the plea “raise a substantial factual issue as to whether Graves’s point has merit.” It cited its ruling in U.S. v. Miller, 993 F.2d 16, as a prior warning about the importance of written plea agreements. “Of course, all of the uncertainties surrounding this plea could have been avoided if the Government had heeded our prior admonition to include all representations in the written plea agreement,” Newman wrote. The appeals court ordered Telesca to hold a hearing on what was actually conveyed to Graves regarding his cooperation. Newman said that if Telesca again denies Graves’ request to withdraw his plea, the 2nd Circuit will assume jurisdiction and consider his reasoning. Judges Amalya L. Kearse and Robert A. Katzmann concurred with Newman’s ruling. David G. Jay of Buffalo represented Graves. Assistant U.S. Attorney Stephan J. Baczynski represented the government.

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