United States v. Fard is a nice study in the wrong way for a lawyer to handle a plea hearing.
Let me say, at the start, that I get that a plea hearing can be hard. Sometimes a lawyer sees what’s in his client’s best interests more clearly than the client. There can be a temptation to push a client really hard to take a plea when the client doesn’t want to. And getting a client who has reluctantly inked a plea through a plea hearing can also be hard.
There are few things you can do to handle that. Maybe you spend more time with the client explaining why a plea makes sense. Maybe you talk – with permission – to the client’s loved ones about whether a plea makes sense. Maybe, if the client doesn’t want to plead, you reflect that it’s the client’s Sixth Amendment right to go to trial, and not the lawyer’s and you take the case to trial.
But what do you not do?
You don’t just enter the plea for your client and speak over the person at the hearing.
Which appears to be what happened in Mr. Fard’s case.
Mr. Fard’s Charges and Trial Date
Mr. Fard was indicted for, basically, mortgage fraud. The day before trial, Mr. Fard’s lawyer asked the judge to push the trial date back six weeks because he thought he was close to a plea deal.
Mr. Fard’s lawyer explained that he thought his client could provide significant cooperation and that he was close to a deal with the government.
The judge didn’t give him six weeks, but did push it back a month. He then took a recess and Mr. Fard’s lawyer talked to the government with his client.
Mr. Fard’s Plea Hearing
After that break, Mr. Fard’s lawyer told the court that his client was ready to plead. He said,
We are going to change our plea to Count 3 with no agreement with the government at this time. We are entering, I guess we would call it a blind plea to Count 3 of the indictment, Judge.
The judge started reading the indictment. He stopped and this exchange happened:
Court: Do you follow me so far?
Fard: Yes, I do.
Court: And so far do you agree that you did all this?
Defense Counsel: Judge, he agrees that he participated in the scheme and he had knowledge of the scheme.
The judge asked Mr. Fard about his knowledge of the scheme. His lawyer answered:
[Fard] had knowledge of Nationwide submitting these, permitting and submitting these phony applications, and he knew it was going on, but he did nothing about it, he just participated in the scheme as it went along.
Later in the hearing, Fard told the court
I mean, I did not plan any scheme. We just tried to build typical American dream to build and fix and sell and, you know, bring the dream true, and just got involved with the wrong people.
Fard and the court, shortly after, had this conversation
Court: Now, did you participate in that scheme to defraud the lenders by submitting to them and causing them to rely upon these false loan applications which were false in the respects which are recited in the draft that I read?
Fard: Your Honor, the lender was Nationwide Mortgage Financial, which they put the whole thing together. But I had acknowledgment, but I did not say anything against the lender. Lender is the one introduce these people to me to bring them as a partner. Lender was Nationwide Financial Mortgage, which they brought these people.
The judge announced that there would be a break. He encouraged defense counsel that if Mr. Fard wanted to plead guilty, he would have to actually, you know, plead guilty.
After the break, the court and Mr. Fard kept talking. It included this bit:
Court: Mr. Fard, what do you plead guilty to?
Fard: I participate and I had the acknowledgment of the partners probably their stuff was not kosher, the document was not kosher.
Court: What do you mean probably?
Fard: Like [defense counsel] said, the partner did not reside in the property.
Court: You say “partner.” Do you mean these nominees?
Fard: Yes, Your Honor.
Court: You knew that they were not qualified for these loans, if they told the truth about themselves?
Court: Not what they intended to do. Did you know that?
Fard: Yes, Your Honor.
Court: All right. Now, did you know that the mortgage proceeds were going to be used by you and perhaps others to acquire and make improvements on properties other than this Oakley Avenue property?
Fard: The mortgage, we did lots of improvement on that subject property, and we might use some of the money for another property, but we spent a lot of money on that particular property.
The judge did two things. First, he said that, with respect to this plea, “[i]t’s like pulling teeth. I feel I ought to have a dental license this afternoon.” Then the court accepted the guilty plea.
The court probably had a busy calendar.
Fard’s Proffer Went Poorly
Fard met with the government to talk about cooperation right after his plea hearing. Fard told the government – much as he had just told the court – that he didn’t do anything wrong.
That was not what the prosecutors and agents wanted to hear. The proffer ended and Mr. Fard did not cooperate with the government.
The Motion to Withdraw the Plea
Mr. Fard told his lawyer he wanted to withdraw the plea. The court appointed a new lawyer for him on the motion to withdraw the plea. The new lawyer argued that Fard did not understand what he was pleading to, and that his prior lawyer had told him the case would be dismissed if he cooperated.
The court had a hearing on the motion to withdraw the plea where Fard testified, as did his prior lawyer. Fard said that he was told if he cooperated the government would drop the case.
The court decided Fard was lying and did not let him out of the plea.
The district court, clearly frustrated with Fard, gave him a two-level bump up for obstruction of justice under the guidelines and denied him acceptance of responsibility credit. He was sentenced to 84 months in prison.
On appeal, the Seventh Circuit held that
Reviewing the record here in light of the relevant factors, we cannot conclude that Fard was fully aware of the nature of the crime to which he pled guilty. The guilty plea was “enveloped in confusion and misunderstanding,” . . . such that we cannot say with confidence that Fard truly understood that a wire fraud conviction required intent to defraud.
They remanded the case to let Fard out of his guilty plea.