An oral agreement is worth … what?

Memo to criminal defense lawyers: If the government makes an oral promise, get it in writing.

Tyler M. Leach pleaded guilty to one count of using interstate commerce to attempt to entice a minor into illegal sexual conduct. U.S. District Judge Howard F. Sachs, of the Western District of Missouri, sentenced Leach to 10 years in prison last May. This was Leach’s second sentencing. At the first, Sachs sentenced Leach to six years in prison. The 8th U.S. Circuit Court of Appeals said in 2007 that Sachs should have applied an enhancement for Leach’s committing a sex offense after a prior sex offense.

On appeal, Leach argued the government breached a “possible oral agreement” to recommend the low end of the U.S. Sentencing Guidelines range.

At Leach’s first sentencing, the government stated its belief that it agreed orally to offer the bottom of the guideline range. Leach’s lawyer said at the second sentencing hearing, “I don’t personally recall any oral agreement between us, but I believe that at the initial sentencing hearing [the prosecutor] … referred to a Government agreement not to oppose sentencing at the low end of the range.”

Neither side could recall with certainty whether an oral agreement had, or had not, been made. The district judge also acknowledged that his “recollection, which was consistent with what Leach’s attorney remembered, might have been based on what was stated at the sentencing hearing, rather than the text of the plea agreement,” the 8th Circuit said.

Leach argued that, because the government breached its part of the agreement, he was entitled to another sentencing at which he’d be allowed to argue for a more lenient sentence. The plea agreement included a provision that Leach would not argue for a below-guideline sentence.

At Leach’s resentencing, Leach was still arguing for a sentence between five and six years, while the government said the guidelines called for a sentence between 14 and 17.5 years. According to the plea agreement, Leach acknowledged he was subject to a mandatory minimum of five years in prison.

On Monday, the 8th Circuit affirmed the 10-year sentence.

“When an alleged oral promise is made prior to, or in conjunction with, a plea agreement, such promise cannot serve as an inducement to plead guilty when the defendant’s ‘plea agreement and plea-hearing representations negate such a claim,’ ” the 8th Circuit said, quoting its 2001 U.S. v. Norris opinion.

Any oral promises made before Leach pleaded guilty would have been made part of the plea agreement, and any promises made after Leach’s plea could not have induced Leach to plead guilty, the court said.

Stephen C. Moss, the assistant federal defender who represented Leach, would not comment because he hadn’t yet read the opinion. Moss works out of the defender’s Kansas City office.

Don Ledford, spokesman for the U.S. Attorney’s Office in Kansas City, did not immediately return a call seeking comment.

The three-judge appellate panel consisted of Circuit Judge Diana E. Murphy, Circuit Judge Lavenski R. Smith and U.S. District Judge Stephen N. Limbaugh Jr., of the Eastern District of Missouri.

The case is U.S. v. Leach, 08-2086.