Over the history of the Court, patent cases were typically considered on simpler technologies – such as how to distribute weight in a train car for coal and the process recipe for opening a mold shaping rubber products – but in the last few decades the Court has increasingly begun to delve into more complex technologies.
This started in many ways with the Supreme Court’s 1980 Diamond v. Chakrabarty decision, where the Supreme Court grappled with the general issue of whether a living thing – specifically a human-made bacterium – could be patentable subject matter under 35 U.S.C. § 101 (the gatekeeper definition of what subject matters can be patented). In the last few years the Court has expanded to more and more complex analyses, looking at a series of cases about the patentability of computer algorithms and so-called “business method patents.” Last year it decided the biotechnology case of Mayo v. Prometheus, where the Court held that claims covering a method of measuring the metabolite levels from a particular treatment and then comparing them to an expected range of values – but not specifying how to respond if the results were outside the expected range – were not patentable under § 101 because they covered a law of nature.
Two currently pending cases this term, however, present stark attacks to the patent system and its ability to cover biotechnology advances, and these cases put the entire field of biotechnology – from agriculture to personalized medicine – at risk. The first case is Bowman v. Monsanto. The issue in that case is whether a patent protects subsequent generations of genetically engineered seed. Monsanto sells soy beans that have been modified so they will not be killed by Monsanto's well-known Round-Up herbicide. These Round-Up-Ready soy beans are sold to farmers with the agreement that the resulting “second generation” soy bean crop cannot be replanted to create a third generation of soy bean. There are no limitations, however, on using the second generation soy beans for any other purpose, including as animal feed or as food for humans.
Bowman bought soy beans as seed from a grain elevator and suspected that second generation Round-Up-Ready seed was included in his purchase. He planted those seeds and treated them with Round-Up, confirming his suspicion when third generation Round-Up-Ready soy beans survived the herbicide treatment. Monsanto argues that Bowman infringed its patents. Bowman counters that Monsanto should not control his freedom to use seed bought elsewhere as he sees fit; in other words, Bowman says Monsanto can control the use of Round-Up-Ready seed by contract for those who buy from Monsanto but not by patents for those who buy seed elsewhere.
As a matter of economics, Bowman asserts that Monsanto is trying to control farming. These arguments ignore the simple, specific fact that Bowman can always use seed other than Round-Up-Ready soy beans as many farmers do. On a macro-economic scale, Bowman cannot explain why anyone would conduct research to improve seed if the first sale of that improved seed to farmers meant they would be able to generate as much of that improved seed as they want by harvesting the crop and replanting a portion of it.
In effect, Bowman argues patent exhaustion – that the first time an item is sold the purchaser is free to use it for its intended purpose. That argument works for eye glass inserts (which can only be used for making eye glasses) and for computer parts (when they have a specific use) but this case is different. Here, planting seed can have a number of purposes, making food or generating more seed. You can read more about this in AIPLA’s amicus brief to the Supreme Court. This is the first time the Supreme Court has grappled with the issue of naturally self-reproducing inventions, where the patentee has made clear that some uses are licensed but another – making seed – is not.
It's fairly clear that if a company sells a machine you cannot then use that machine as a template for making new machines, i.e. by copying the purchased machine, without infringing, but in this instance the soy beans replicate themselves by the shear act of using them as intended. The Federal Circuit analyzed this argument by looking at the concept of "making," as found in the patent infringement statute, and indicated that making new third generation seed was different from using the second generation seed for other purposes. (The Federal Circuit also considered a conditional sale doctrine that went beyond what the Supreme Court has previously held, which may be subject to some attack at the Supreme Court.) If Bowman is allowed to succeed, it will choke off most biotechnological farming investments.
The second case is Association for Molecular Pathology v. Myriad. The essence of the dispute is whether isolated DNA is a product of nature and therefore not patent eligible under section 101, or instead has been isolated by man in such a way as is never found in nature and therefore can be patented.
The question asked by the Supreme Court, however, is actually much broader than the issue raised by the case. The Supreme Court has asked the more general question, "are human genes patentable?" But that is the wrongly positioned question for two reasons. First, the concept of patentable includes lots of statutory tests including whether an invention is new – human genes exist in the body and therefore generally are not new (i.e., they are not novel and nonobvious). Second, the facts of the case are much narrower than an attempt to patent human genes, the genes as found in the human body.
The question that the facts of the Myriad case actually present is whether a specific subset of the human gene, namely a particular segment of coding DNA, is patent eligible under Section 101. The patent claims involved in this case are for man-made strands of DNA. These claimed DNA sequences are not genes as found in humans, i.e. “human genes.” They are instead disparate but related strands of DNA that the inventors isolated and arranged into adjacent coding regions without the naturally-occurring, non-coding intervening strands. The inventors then correlated certain strand anomalies or mutations with an increased risk of breast and ovarian cancer, an expensive and time-consuming correlation. Patents on these sorts of inventions are exactly what the Constitution hoped to incentivize by creating patents to promote "the progress of science and the useful arts."
The Association of Molecular Pathology and its supporters make broad sweeping statements that the ability to patent coding segments of DNA stifles innovation. Such hysterical assertions, that biotechnology patents preempt all scientific research, are simply wrong and are inconsistent with the existing law. For instance, 35 U.S.C. § 271(e)(1) generally exempts medical research development work from infringement, and there are also are common law exceptions to infringement for certain types of experimentation. Congress also has already exempted certain groups conducting medical processes from being liable for patent infringement, 35 U.S.C. § 287(c), and in doing so recognized that genetic material can be subject of patent protection. Read more about this in AIPLA’s amicus brief to the Supreme Court .
Both the Bowman and Monsanto cases involve important social and ethical questions, in terms of public access to new technologies as well as in terms of incentivizing scientific advances. Hopefully the Supreme Court will get it right and continue to protect the economic incentives and the importance of the U.S. biotechnology industry. AIPLA’s briefs in both cases emphasize how important protecting innovation is and the central themes of incentivizing the next generation of scientific advance. It should be interesting to see whether what the Court says, but until then thanks for reading.


Justia › US Law › Case Law › Kentucky Case Law › Kentucky Supreme Court Decisions › 1996 › Potter v. Eli Lilly and Co.
Potter v. Eli Lilly and Co.
Hon. John W. POTTER, Judge, Jefferson Circuit Court, Appellant, v. ELI LILLY AND COMPANY, Dista Products Company, Joyce Fentress, Individually and as Executrix of the Estate of Kenneth Fentress, Roma Jean Barger, Individually and as Executrix of the Estate of Richard Owen Barger, Sr., Angela Bowman, Douglas Bowman, Michael P. Campbell, Forrest Conrad, Saundra Conrad, Linda Ganote, Individually and as Executrix of the Estate of William Spencer Ganote, Paul Gnadinger, Charles M. Gorman, Stanley Hatfield, Darlene Hatfield, William Hoffman, Janis G. Mudd, Administratrix of the Estate of James G. Husband, Sr., Andrew C. Pointer, Shirley Pointer, Juanita Sallee, Individually and as Administratrix and Personal Representative of Paul Sallee, Gordon L. Scherer, Sr., David C. Seidenfaden, Jerilyn M. Seidenfaden, John Edwin Stein, Linda Sue Stein, Jacquelyn Y. Tronzo and Tracey L. Needy Leet, Co-Administrators of the Estate of Sharon L. Needy, Paula Warman, David Warman, Maryla White, Individually and as Administratrix of the Estate of Lloyd Ray White, and Sarah Wible, Individually and as Executrix of the Estate of James P. Wible, Sr., Appellees.
Rehearing Denied August 29, 1996.
*451 Richard Hay, Somerset, John W. Potter, Jefferson Co. Hall of Justice, Louisville, for Appellant.
Irvin D. Foley, Louisville, Paul L. Smith, Dallas, TX, Edward H. Stopher, Boehl Stopher & Graves, Louisville, Lively M. Wilson, John L. Tate, Stites and Harbison, Louisville, John F. Brenner, McCarter & English, Newark, NJ, Lawrence J. Myers, Freeman & Hawkins, Atlanta, GA, Frank P. Doheny, Jr., Hirn, Doheny, Reed & Harper, Louisville, for Appellees.
This appeal is from a decision of the Court of Appeals which granted a Writ of Prohibition against Jefferson Circuit Judge John W. Potter from conducting a hearing to determine whether the judgment entered in the so-called Prozac case styled "Joyce Fentress, et al v. Eli Lilly and Company, Civil Action No. 90-CI-6033" was correct and reflects the truth.
The issue in this case is whether the trial judge can conduct a hearing to determine if the judgment rendered is true and correct.
The precise legal issue in this case arose after a jury had returned a verdict on December 12, 1994 and the circuit judge entered a judgment on January 25, 1995 in which he ordered and adjudged that the claims against the defendants be dismissed with prejudice. No post-judgment motion was filed, and the appeal time pursuant to CR 73.02(1)(a) expired on February 24, 1995, without an appeal being filed. The circuit judge then filed his own motion pursuant to CR 60.01 on April 19, 1995 stating that the preamble to the judgment entered on January 25 suggested that the dismissal was based solely on a jury verdict but that he now believes it was more likely than not that the case had been settled. The circuit judge scheduled a hearing for any party to show cause why the judgment should not be amended to read, after amendment, that the case was "dismissed with prejudice as settled."
Some factual background must be presented in order to understand the significance of this case. In 1989, Joseph R. Wesbecker, a disgruntled former employee, entered the Standard Gravure Printing plant in Louisville and shot and killed eight people and seriously wounded twelve others. The estates of the eight decedents and twelve of the injured persons filed lawsuits against various defendants including Eli Lilly Company. All of the defendants other than Lilly settled or were dismissed prior to the trial which began on September 26, 1994.
The trial was trifurcated so that the only issue to be decided by the jury was whether the anti-depressant drug Prozac manufactured by Lilly was unreasonably dangerous and defective and whether it caused Wesbecker to kill or injure the plaintiffs. The trial judge reserved the issues of compensatory and punitive damages for future trials. The trial itself lasted 47 days during which 75 live witnesses testified, 22 depositions were presented to the jury and 411 exhibits were introduced into evidence. When the trial of this case started, there were approximately 160 other Prozac cases pending against Lilly. This case was the first to go to trial.
An important element in the proof presented by Lilly was that Prozac, and its U.S. package insert, had been approved by the Federal Food and Drug Administration. The plaintiffs attempted to counter this evidence by demonstrating that Lilly had failed to accurately report test results, including the German government tests, to the FDA. Before trial, the trial judge had excluded as irrelevant and unduly prejudicial evidence that Lilly in 1985 had been sanctioned for its failure to report to the FDA adverse incidents resulting from Oraflex, an arthritis drug that had been taken off the market. Both Lilly, as a corporation, and its chief *452 medical officer had pled guilty to violations of multiple criminal counts of various federal statutes and withholding evidence adverse to the drug, including the deaths, from the FDA.
During the presentation of the evidence by Lilly, the plaintiffs repeatedly asked the trial judge to rule that Lilly had "opened the door" to the Oraflex evidence through witnesses who had described Lilly's reputation for reporting adverse incidents to the FDA. This trial issue was extensively argued. The adversarial encounter took more than a day from the trial. The trial judge then reversed his prior ruling and held that the Oraflex evidence would be admitted. On the following day, the plaintiffs closed their rebuttal evidence without introducing the results of their victory in regard to the evidentiary ruling. The circuit judge immediately requested an off-the-record discussion where he asked "whether money had changed hands" or words to that effect. Counsel for the parties assured the court that no settlement had been reached. Counsel for the appellees dispute this sequence of events as recounted in Judge Potter's affidavit. However, we find the record devoid of any information that indicates that the trial judge was informed in any way that any settlement had been reached.
A careful and thoughtful examination of the entire record in this case indicates that some sort of settlement was reached before the case was submitted to the jury. It certainly can be argued that there was a great lack of candor to the trial court in regard to the settlement agreements.
As noted earlier, the case was submitted to the jury which returned a verdict finding that Lilly was not at fault. The circuit judge then entered a judgment which dismissed the claims with prejudice. Approximately three months later, on April 19, 1995, the trial judge issued a sua sponte motion pursuant to CR 60.01 to correct an alleged clerical mistake in the judgment. The circuit court ordered that any party may appear to show cause why the original judgment should not be amended. The judge also issued subpoenas for counsel for the plaintiffs and for Lilly, compelling them to appear and testify in behalf of the court's desire to enter the corrected judgment. The circuit court also issued a subpoena for a law firm, counsel for Lilly, requiring it to produce documents requested by the court. At this point, the parties united in the present action.
The Court of Appeals unanimously granted the request of the parties for a Writ of Prohibition preventing the circuit judge from proceeding with this motion pursuant to CR 60.01 and from enforcing any of the subpoenas which had been issued. The Court of Appeals determined that the circuit judge had lost jurisdiction to reopen the judgment.
We must observe that a Writ of Prohibition is an extraordinary remedy and is generally issued only when the court in question is proceeding or is about to proceed outside its jurisdiction and there is no adequate remedy by appeal, or where it is about to act incorrectly, although it is within its jurisdiction, and there exists no adequate remedy by appeal or otherwise, and great injustice and irreparable injury would result to the petitioner if the court in question should so act. Shumaker v. Paxton, Ky., 613 S.W.2d 130 (1981); Bender v. Eaton, Ky., 343 S.W.2d 799 (1961).
We are well aware that CR 60.01 allows a trial court to correct clerical mistakes in its judgments and errors therein arising from an oversight or omission at any time on its own initiative. We do not believe that CR 60.01 invests the trial court with either jurisdiction or authority to make substantive changes in a judgment. The effect of the rule is limited to mistakes that are clerical in nature.
In this case, it does not appear that CR 60.02 is applicable. Although it is not abundantly clear, the interpretations of the rule indicate that CR 60.02 is only available to a party or his legal representative. The trial judge is certainly not a party to the litigation originally. See Wright, Miller and Kane, Federal Practice & Procedure: Civil 2nd § 2852 at 235; Jude v. Morwood Sawmill, Inc., Ky.App., 726 S.W.2d 324 (1987).
The crux of the argument presented by Judge Potter is that a trial court has the *453 right and duty to see that its judgments accurately reflect the truth and that the trial court has the inherent authority to determine whether its judgment does so reflect the truth. Lilly argues that the trial judge does not have inherent power to modify a judgment or hold a hearing in the absence of actual fraud.
We must first note that the trial court has a duty and a right to determine that its judgments are correct and accurately reflect the truth. We agree with the rationale expressed in Montgomery v. Viers, 130 Ky. 694, 114 S.W. 251 (1908) as to the importance placed on the judgment of a court. "The highest verity, from considerations of public policy, is attributed to the records and judgments of courts as matters of evidence" and "they ought to be most carefully preserved and authenticated." Viers, supra. In that case, Justice O'Rear, writing for a unanimous court, stated that common law courts from earliest times have exercised the prerogative of correcting their own judgments by their own records so as to make them conform to the original fact. Viers. The judgment is the last word of the law in any judicial controversy. Hornback v. Hornback, Ky.App., 636 S.W.2d 24 (1982), quoting from Irvine Toll Bridge Co. v. Williams, 223 Ky. 141, 3 S.W.2d 193 (1928).
Once the trial judge had reason to believe that there was some absence of accuracy in its judgment so that the judgment did not properly conform to the true facts of the case, the trial judge had a duty, as well as a right, to investigate by means of a hearing to determine that the judgment accurately reflected the truth. The trial judge has inherent power to execute this responsibility.
We can fully understand the reluctance of the Court of Appeals to embark on such uncharted legal waters because there are no reported cases establishing such an authority in Kentucky. However, we believe it is prudent and persuasive to consider the federal case law as expressed in Hazel-Atlas Co. v. Hartford Co., 322 U.S. 238, 64 S. Ct. 997, 88 L. Ed. 1250 (1944). In that patent infringement case, the United States Supreme Court held that a Federal Court of Appeals had both the duty and the power to vacate its own judgment even though the recognized time period for doing so had expired. Hazel-Atlas, 322 U.S. at 249, 64 S. Ct. at 1002-1003. In that decision, the court held that a court of equity may grant relief against a judgment because of after-discovered fraud regardless of the term of its entry, but such power should be cautiously exercised.
We must agree with the principles expressed by the U.S. Supreme Court that equitable relief against fraudulent judgments is not a statutory creation but a judicially devised remedy fashioned so as to relieve hardships which from time to time arise from a literal adherence to the court-made rule that judgments should not be disturbed after a certain time period has expired.
This equity rule, which was firmly established in English practice long before the foundation of our Republic, the courts have developed and fashioned to fulfill a universally recognized need for correcting injustices which, in certain instances, are deemed sufficiently gross to demand a departure from rigid adherence to the term rule.
See also Chambers v. NASCO, Inc., 501 U.S. 32, 111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991); Lake Village Water Assn. v. Sorrell, Ky. App., 815 S.W.2d 418 (1991).
It is a wrong against the institutions set up to protect and safeguard the public, institutions in which fraud cannot complacently be tolerated consistently with the good order of society.
Hazel Atlas, 322 U.S. at 246, 64 S. Ct. at 1001.
We are persuaded that there are certain implied powers which are inherent in any Court of Justice in this State which arise from the very nature of their institution. Such authority is required because they are necessary to proper exercise of all other judicial authority. As such, these powers are governed not by statute or rule, but by the control vested in the court to manage its own affairs so as to achieve the orderly and expeditious, accurate and truthful disposition of causes and cases. This principle was well *454 expressed in Chambers, supra, which quotes with approval the early case of United States v. Hudson, 7 Cranch 32, 3 L. Ed. 259 (1812); See also Roadway Express, Inc. v. Piper, 447 U.S. 752, 100 S. Ct. 2455, 65 L. Ed. 2d 488 (1980). In Kentucky, such authority is vested in the sound discretion of the court in question subject to appropriate appellate review. All such authority must be exercised with great caution even though it is necessarily incidental to the function of all courts. Cf. Ex parte Burr, 9 Wheat 529, 6 L. Ed. 152 (1824).
It is obvious that along with the inherent power to set aside or correct the judgment after the time permitted by rule has expired, is the inherent power to conduct an independent investigation when there is a reasonable basis to believe that there is a possible lack of accuracy or truth in the original judgment. The Federal courts have also recognized this right of investigation so as to determine whether a judgment was obtained by fraud. Universal Oil Co. v. Root Refining Co., 328 U.S. 575, 66 S. Ct. 1176, 90 L. Ed. 1447 (1946).
Here, it is necessary to conduct the requisite investigation through a court hearing to determine the true nature of the settlement between the parties so as to ensure the integrity and accuracy of the judgment of the court.
The inherent authority of the court goes beyond actual fraud. It encompasses bad faith conduct, abuse of judicial process, any deception of the court and lack of candor to the court. Our system depends on the adversarial presentation of evidence. Even the slightest accommodation of deceit or a lack of candor in any material respect quickly erodes the validity of the process. U.S. v. Shaffer Equipment Co., 11 F.3d 450 (4th Cir. 1993).
In this case, there was a serious lack of candor with the trial court and there may have been deception, bad faith conduct, abuse of the judicial process or perhaps even fraud. That is what the investigation and hearing is to determine. We cannot tolerate even the possibility of such conduct at either the trial or appellate level.
We note with approval the language used by Justice Scalia in his dissent in Chambers v. NASCO, supra, to the effect that some elements of inherent authority are so essential to the judicial authority that they are indefeasible and among them is the ability of the Court to enter orders protecting the integrity of its own proceedings.
The circumstances surrounding this case provide a reasonable basis for inquiry and investigation by the trial judge as to whether there was a possible fraud or misrepresentation of the truth reflected in the judgment. It may be unusual for a case to be submitted to a jury for decision after the parties have reached a settlement, particularly if the trial court was not fully informed. The attempt for a directed verdict regarding punitive damages, the request that a nonexistent compensatory damage phase be conducted before a punitive damage phase, the request for oral argument ground rules regarding the mention of the various damage phases and the planning discussions regarding mediation in the event of a verdict for the plaintiff and how quickly the punitive phase would follow such a verdict, the latter while the jury was still deliberating, all form the basis of legitimate concern with which to support an investigation and hearing by the trial judge.
It is our instruction that such a hearing should be conducted in camera so that appropriate confidentiality may be maintained as needed. The specific determinations of that confidentiality remain with the trial judge pending possible appeal.
We find no irreparable injury. The only result is that the truth will be revealed. The revelation of confidential settlement agreements is not irreparable injury when most of the terms have already been disclosed. In any event, there is an adequate remedy by appeal. Moreover, there is no violation of the attorney/client privilege of confidentiality or work product. The only documents subpoenaed are those disclosed to and shared by the parties.
It is the holding of this Court that a trial court has the authority and duty to determine that its judgments are correct and accurately reflect the truth in all respects. In *455 order to so determine, the trial court has sufficient inherent authority to conduct an investigation and a hearing to determine whether its judgments accurately reflect the truth. This right of investigation is conditioned to such circumstances where there is a reasonable basis to believe that there is a possible lack of accuracy or truth in the judgment. This inherent power goes beyond actual fraud. It encompasses bad faith, abuse of judicial process, deception of the court and lack of candor to the court. There can be no accommodation of deceit or lack of candor in any respect in the judicial process.
The decision of the Court of Appeals is reversed and the Writ of Prohibition is dissolved.
STEPHENS, C.J., BAKER, GRAVES, LAMBERT and STUMBO, JJ., and PAUL K. MURPHY, Special Justice, concur.


The enactment of the federal Defend Trade Secrets Act of 2016 (DTSA) was a highly significant development in trade secrets law. as it for the first time provided a federal cause of action for trade secret misappropriation, beyond certain misappropriation claims that have been allowed to proceed under the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030. DTSA provides companies that desire to pursue claims for trade secret misappropriation to do so in federal court, and since it became effective on May 11, 2016, a variety of cases have been decided under the Act.
The DTSA was enacted as an amendment to the Economic Espionage Act of 1996, 18 U.S.C. §§ 1831, et seq. In addition to providing for criminal penalties related to theft of trade secrets, the DTSA establishes a federal cause of action for trade secret misappropriation if the trade secret is “related to a product or service used in, or intended for use in, interstate or foreign commerce.” 18 U.S.C. § 1836(b)(1). The DTSA incorporates many of the elements of the Uniform Trade Secrets Act (UTSA), which has been adopted in full or in part by virtually all states, including Pennsylvania.
The overlapping provisions of the DTSA and UTSA include similar definitions of “trade secret” and “misappropriation” as well as remedial provisions making available injunctive relief and recovery of actual damages, exemplary damages and attorneys’ fees. See DTSA at 18 U.S.C. §§ 1836(b)(3), 1839(3),(5). The statute also authorizes ex parte seizure orders in certain circumstances, if necessary to prevent immediate and irreparable injury. 18 U.S.C. § 1836(b)(2). A party asserting a claim under the DTSA in federal court may include in its complaint claims under the UTSA as well as state common law claims (e.g., conversion, breach of fiduciary duties), as DTSA provides that it is not intended to preempt to displace other remedies available under federal or state law. 18 U.S.C. § 1838.
The DTSA includes immunity protection for certain whistleblower disclosures, and it requires employers to provide notice of the statute’s immunity provisions to employees, contractors and consultants in any contract entered into after May 11, 2016. An employer’s failure to provide such notice is precluded from recovering exemplary damages or attorneys’ fees under DTSA in any action against a person to whom the notice was not provided. 18 U.S.C. § 1833.
Given the relatively short period of time that the DTSA has been effective, there is a limited number of reported cases under the statute to date. Because of the substantial overlap between the material provisions of the DTSA and the UTSA, it can be expected that federal courts applying the DTSA will do so in reliance on principles that have been established under state law for deciding trade secret misappropriation claims. For example, in a recently decided case in New York, the court evaluated misappropriation claims under the DTSA and New York law and noted the similarity of the standards applicable to the two sets of claims. Free Country Ltd. v. Drennen, No. 16 CV 8746 (JSR), 2016 U.S. Dist. LEXIS 180755 (S.D.N.Y. Jan. 3, 2017). Judge Rakoff described the plaintiff’s burden under DTSA as showing an “unconsented disclosure or use of a trade secret by one who (i) used improper means to acquire the secret, or, (ii) at the time of disclosure, knew or had reason to know that the trade secret was acquired through improper means, under circumstances giving rise to a duty to maintain the secrecy of the trade secret, or derived from or through a person who owed such a duty,” citing Syntel Sterling Best Shores Mauritius Ltd. v. Trizetto Grp., Inc., No. 15CV211LGSRLE, 2016 U.S. Dist. LEXIS 130918, at *18-19 (S.D.N.Y. Sept. 23, 2016), but then relied on cases applying New York law in determining whether the plaintiff in Free Country was entitled to the requested temporary restraining order.
Several decisions address the applicability of the DTSA to continuing conduct that could be regarded as having occurred both before and after the effective date of the statute, May 11, 2016. In the Syntel Sterling case cited above, the court granted defendants leave to amend their counterclaims to include claims under the DTSA, where the statute had become effective during the pendency of the case. The court rejected the plaintiff’s argument that the proposed amendment would be futile because the statute by its terms applies only to misappropriations that occur on or after May 11, 2016.
The court noted that the proposed counterclaims alleged that the plaintiff continued to use the defendants’ alleged trade secrets after the effective date of the statute and that this was sufficient because the DTSA defines misappropriation to include “disclosure or use of a trade secret without the consent of another.” 18 U.S.C. § 1839(5). Similarly, the court in Adams Arms, LLC v. Unified Weapons Systems, Inc., No. 8:16-cv-1503-T-33AEP, 2016 U.S. Dist. LEXIS 132201 (M.D. Fla. Sept. 27, 2016), found that the plaintiff stated a claim under the DTSA where it alleged that the defendant had disclosed its trade secrets after the effective date of the statute. The court rejected the defendant’s argument, based on DTSA’s statute of limitations provision that states that “a continuing misappropriation constitutes a single claim of misappropriation,” relying on the plaintiff’s allegation that an act prohibited by the statute (disclosure) had occurred after the effective date.
In Unum Group v. Loftus, No. 4:16-CV-40154-TSH, 2016 U.S. Dist. LEXIS 168713 (D. Mass. Dec. 6, 2016), a company asserted claims for trade secret misappropriation against a former employee. The former employee moved to dismiss the DTSA claims, arguing that he was entitled to invoke the statute’s immunity provisions (18 U.S.C. § 1833), in that he had removed company documents and provided them to his attorney for the purpose of pursuing claims against the employer for suspected violations of law. The court granted the plaintiff’s motion for preliminary injunction on claims under the DTSA and ordered the return of materials that a former employee of the plaintiff had removed from the plaintiff’s offices. The court denied without prejudice the former employee’s the motion to dismiss, noting that no claims had yet been asserted by the former employer and that there were facts of record to support (or reject) the immunity defense.


Rodriguez-Penton moved from Cuba to the U.S. when he was 15. He is a lawful permanent resident. Rodriguez-Penton was indicted for conspiracy to distribute and possess Oxycodone, retained counsel Butler, and initially cooperated but stopped because he feared for his family’s safety. The government offered Rodriguez-Penton plea deals but he entered an open guilty plea. Rodriguez-Penton’s Cuban citizenship arose during the hearing: the court stated that there was no need to review the civil rights one forfeits by pleading guilty; inquired whether, due to Rodriguez-Penton’s citizenship, there would be an early sentencing; and asked about an Immigration and Customs Enforcement detainer, but did not advise Rodriguez-Penton that pleading guilty might have adverse immigration consequences and sentenced him to a 121-month prison term. Rodriguez-Penton alleges that he learned of the deportation risk after sentencing, during a meeting with his prison counselor. Rodriguez-Penton appealed, represented by Butler, arguing that his plea was not knowing and voluntary. After hearing testimony from Butler and an interpreter, a magistrate concluded that Butler merely told Rodriguez-Penton that he did not have to worry about deportation. Rodriguez-Penton testified unequivocally that he “would not have gone to trial, even if he could not have negotiated a better plea arrangement.” The district court dismissed his 28 U.S.C. 2255 motion. The Sixth Circuit reversed. The legal standard for ineffective assistance of counsel claims has changed in the context of non-citizens faced with criminal charges. Rodriguez-Penton asserted that his decision-making process would have been different if he had been properly advised; the government has not offered any countervailing evidence that Rodriguez-Penton could not have secured a more favorable plea.
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 18a0221p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT DAYNEL L. RODRIGUEZ-PENTON, Petitioner-Appellant, > v. UNITED STATES OF AMERICA, Respondent-Appellee. No. 15-6306 Appeal from the United States District Court for the Western District of Kentucky at Louisville. Nos. 3:11-cr-00130-1; 3:14-cv-00547—Charles R. Simpson, III, District Judge. Argued: May 2, 2018 Decided and Filed: October 2, 2018 Before: DAUGHTREY, STRANCH, and THAPAR, Circuit Judges. _________________ COUNSEL ARGUED: Doron M. Kalir, CLEVELAND-MARSHALL COLLEGE OF LAW, Cleveland, Ohio, for Appellant. Terry M. Cushing, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. ON BRIEF: Doron M. Kalir, CLEVELAND-MARSHALL COLLEGE OF LAW, Cleveland, Ohio, for Appellant. Terry M. Cushing, Candace G. Hill, Russell M. Coleman, UNITED STATES ATTORNEY’S OFFICE, Louisville, Kentucky, for Appellee. STRANCH, J., delivered the opinion of the court in which DAUGHTREY, J., joined. THAPAR, J. (pp. 11–18), delivered a separate dissenting opinion. No. 15-6306 Rodriguez-Penton v. United States Page 2 _________________ OPINION _________________ JANE B. STRANCH, Circuit Judge. Petitioner Daynel L. Rodriguez-Penton, a lawful permanent resident from Cuba, appeals the district court’s denial of his motion to vacate his sentence under 28 U.S.C. § 2255. He argues that his counsel performed deficiently by failing to warn him of the adverse immigration consequences of pleading guilty and that he was prejudiced by this failure. The district court denied his motion, relying on the standard for ineffective assistance of counsel claims set forth in Hill v. Lockart, 474 U.S. 52 (1985). But the legal landscape for such claims has changed in material ways since Hill, especially in the context of non-citizens faced with criminal charges. Because the district court applied the wrong analytical framework, we REVERSE and REMAND for further proceedings consistent with this opinion. I. BACKGROUND Rodriguez-Penton, now twenty-nine years old, moved from Cuba to the United States with his parents when he was fifteen. He has lived in Louisville, Kentucky since his arrival and is a permanent resident in possession of a green card. In 2011, the Government indicted Rodriguez-Penton and his parents on a single count of conspiracy to distribute and possess Oxycodone, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). The Government dismissed the charges against Rodriguez-Penton’s parents approximately six months after indictment. Rodriguez-Penton was detained pending trial and represented by retained counsel William M. Butler. Rodriguez-Penton cooperated with the Government at first, but eventually stopped, in large part because he feared for his family’s safety. The Government offered Rodriguez-Penton at least two separate plea deals in the year after his arrest, including one verbal offer and one written offer for a six-year sentence. Rodriguez-Penton eventually moved for rearraignment. At the re-arraignment hearing in October 2012, he entered an open guilty plea to the single charge in the indictment. No. 15-6306 Rodriguez-Penton v. United States Page 3 Rodriguez-Penton’s Cuban citizenship arose at three points during the plea hearing. First, when Rodriguez-Penton mentioned his Cuban citizenship, the district court responded that there was no need to review the civil rights one forfeits by pleading guilty because they did not apply to non-citizens. Second, the district court inquired whether, due to Rodriguez-Penton’s citizenship, there would be an early sentencing. The parties answered in the negative. Third, when asking about releasing Rodriguez-Penton from custody pending trial, the district court asked if “there is any legal reason your client should be released from custody, or is there an [Immigration and Customs Enforcement] detainer on him?” Butler responded “no,” although it is not clear whether he was saying no legal reason existed or no detainer existed. At no point during the plea hearing did the district court advise Rodriguez-Penton that pleading guilty might have adverse immigration consequences. In March 2013, the district court sentenced Rodriguez-Penton to a prison term of 121 months, to be followed by four years of supervised release.1 The sentencing court mentioned that it did not know “if this conviction would result in deportation” when discussing the supervised release portion of Rodriguez-Penton’s sentence. Rodriguez-Penton alleges that he was unaware of the risk of deportation until after sentencing. He learned of the risk when he had his “first appointment” with his prison counselor, who gave him “a sheet of paper where it said that [he] could possibly be deported.”2 Rodriguez-Penton filed a direct appeal while still represented by Butler in which he argued that his guilty plea was not knowing and voluntary because the district court failed to advise him of the risk of deportation. He also argued that the evidence did not support the drug 1Rodriguez-Penton’s sentence was subsequently lowered to 97 months of imprisonment for reasons unrelated to this appeal. 2The sheet of paper to which Rodriguez-Penton referred might have been the April 11, 2012, Immigration Detainer sent by the Department of Homeland Security (DHS) to the U.S. Marshals for the Western District of Kentucky. Although the detainer is dated April 11 and instructs that Rodriguez-Penton be notified of its existence, the record neither confirms when it was sent to the Marshals nor indicates that Rodriguez-Penton received a copy. The record is also silent as to whether anyone else involved in the case, including either the Assistant U.S. Attorney or Rodriguez-Penton’s attorney, was aware of the detainer’s existence. No one mentioned the detainer even though Rodriguez-Penton’s citizenship status arose at several points during the plea entry and sentencing hearings, and no one mentioned it at the plea hearing in response to the district court’s specific question. No. 15-6306 Rodriguez-Penton v. United States Page 4 quantities attributed to him at sentencing. This court rejected both arguments. United States v. Rodriguez-Penton, 547 F. App’x 738 (6th Cir. 2013). Rodriguez-Penton then filed a § 2255 motion to vacate, set aside, or correct his sentence. The district court eventually appointed counsel and a magistrate judge scheduled an evidentiary hearing where Rodriguez-Penton and Butler both testified. Butler estimated that he met with Rodriguez-Penton fifteen times during the year between Rodriguez-Penton’s arrest and plea, although Rodriguez-Penton said they met closer to ten times. Because Rodriguez-Penton does not speak English, a Spanish interpreter was present during the majority of these meetings. An interpreter was also present at all relevant hearings. Based on the testimony and oral argument at the evidentiary hearing, the magistrate judge issued Findings of Fact and Conclusions of Law. The magistrate judge described Butler’s performance as follows: “[H]e merely told Rodriguez-Penton that, based on Butler’s own experience, and what several immigration attorneys had told Butler, [Rodriguez-]Penton did not have to worry about deportation because the Government would not return him to Cuba.” The record confirms that Butler was not alone in reaching this conclusion—the Government also noted that Cuban defendants are rarely subject to deportation. Yet neither Butler nor the Government cited any authority in support of this position. The magistrate judge then noted that “Butler conceded on cross-examination that he did not recall ever telling Rodriguez-Penton that deportation nonetheless was a possibility.” This differed from Rodriguez-Penton’s testimony that Butler “never discussed the subject of deportation, nor did they ever discuss the impact of his status as a Cuban national lawfully present in the United States.” Rather than reconcile the conflicting testimony, the magistrate judge presumed “to the benefit of Rodriguez-Penton that attorney Butler’s performance was deficient.” He concluded that Rodriguez-Penton’s claim of ineffective assistance of counsel failed on the prejudice prong because Rodriguez-Penton testified unequivocally that he “would not have gone to trial, even if he could not have negotiated a better plea arrangement than the open plea of guilty that he previously chose to enter.” Absent a showing of prejudice, the magistrate judge held, Rodriguez-Penton could not prevail on his § 2255 petition. The district court adopted the No. 15-6306 Rodriguez-Penton v. United States Page 5 magistrate judge’s findings over Rodriguez-Penton’s objections, denied the § 2255 motion, and dismissed the case with prejudice. Rodriguez-Penton filed a timely notice of appeal and moved this court for a Certificate of Appealability (COA). This court granted his request after finding that “Rodriguez-Penton has arguably made a substantial showing that his attorney’s performance was deficient and that he was actually prejudiced by counsel’s alleged error.” More specifically, the COA stated: Rodriguez-Penton has arguably shown that, had he been advised that he could be deported, he might have accepted a similar plea offer especially if it contained a non-deportation clause, particularly in light of the prosecutor’s acknowledgement that citizens of Cuba are generally not deported following a guilty plea. Therefore, Rodriguez-Penton has made a substantial showing that counsel’s error prejudiced him because, even though he insisted on not going to trial, the error may have affected the outcome of the plea process. With this background in mind, we turn to Rodriguez-Penton’s arguments on appeal.3 II. ANALYSIS A. Standard of Review This court reviews a district court’s denial of a § 2255 motion de novo. Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006). The reviewing court “will accept the district court’s factual findings unless they are clearly erroneous.” McPhearson v. United States, 675 F.3d 553, 558 (6th Cir. 2012). The de novo review standard also applies to a claim of ineffective assistance of counsel, which is a mixed question of law and fact. Id. at 559. B. Ineffective Assistance of Counsel The basic contours of ineffective-assistance-of-counsel claims are well defined. To prevail on a claim that he was denied effective assistance, Rodriguez-Penton must meet the twopart test established in Strickland v. Washington, 466 U.S. 668 (1984), and subsequently tailored to the guilty-plea context, see Lafler v. Cooper, 566 U.S. 156, 162–63 (2012). “The performance 3After issuing the COA, this court granted the Government’s request to hold the case in abeyance pending the Supreme Court’s decision in Lee v. United States, 137 S. Ct. 1958 (2017). The parties updated their briefs after the decision in Lee. No. 15-6306 Rodriguez-Penton v. United States Page 6 prong of Strickland requires a defendant to show that counsel’s representation fell below an objective standard of reasonableness.” Id. at 163 (citation and internal quotation marks omitted). The prejudice prong requires a defendant to show that there is a reasonable probability the outcome of the plea process would have been different had he received competent advice. Id. Here, the district court assumed deficient performance, and rightly so. Under either version of the facts, that of Butler or that of Rodriguez-Penton, Butler’s conduct was objectively unreasonable. Counsel has an obligation to “advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” Padilla v. Kentucky, 559 U.S. 356, 369 (2010) (footnote omitted). This obligation is not met if counsel either fails to mention the risk of deportation or specifically discounts such a risk. See id. at 359, 368–69 (noting that Padilla’s counsel told him he did “not have to worry about immigration status since he had been in the country so long,” and finding that advice to be deficient); see also Lee v. United States, 137 S. Ct. 1958, 1964 (2017) (“The Government concedes that Lee’s plea-stage counsel provided inadequate representation when he assured Lee that he would not be deported if he pleaded guilty.”). We therefore agree that counsel’s performance was deficient. The district court’s resolution of Strickland’s prejudice prong, however, requires more attention. The prejudice inquiry asks whether there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In answering this inquiry in the negative, the district court relied on Hill v. Lockhart, 474 U.S. 52 (1985), and its progeny. Hill extended Sixth Amendment ineffective-assistance-of-counsel claims to the guilty-plea context, but held that Strickland prejudice requires a showing of “a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Id. at 59. Recent Supreme Court authority has expanded Hill’s holding in material ways. In Missouri v. Frye, the Supreme Court considered how to address prejudice where “[t]he challenge [wa]s not to the advice pertaining to the plea that was accepted but rather to the course of legal representation that preceded it with respect to other potential pleas and plea offers.” 566 U.S. 134, 141–42 (2012). Frye held that, “[t]o establish prejudice in this instance, it is No. 15-6306 Rodriguez-Penton v. United States Page 7 necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Id. at 147. Specifically distinguishing Hill, the Supreme Court explained that “Hill was correctly decided and applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations.” Id. at 148. Frye thus clarified that individuals who allege ineffective assistance of counsel during the plea process may satisfy the prejudice prong even without a showing that they would have gone to trial were it not for counsel’s deficient performance. Since Frye, Supreme Court authority and some persuasive caselaw from our sister circuits have further illuminated how to demonstrate prejudice in the guilty-plea context, and specifically as it relates to adverse immigration consequences. Lee, for example, is instructive. Although that case, like Hill, involved a defendant who claimed that counsel’s deficient performance deprived him of the opportunity to proceed to trial, the Supreme Court nevertheless confirmed that a defendant may be prejudiced when his counsel’s errors deprived him of the opportunity to make a fully informed choice during the plea process: “[W]here we are instead asking what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent to the extent it would have affected his decisionmaking.” 137 S. Ct. at 1967 (footnote omitted). Lee therefore indicates that prejudice may lie where a petitioner demonstrates that counsel’s deficient performance infected his decisionmaking process, and thus undermines confidence in the outcome of the plea process. Id. One question left open by Lee and raised by Petitioner is whether Rodriguez-Penton may demonstrate a reasonable probability of a different outcome by showing that he would have negotiated a plea deal that did not carry adverse immigration consequences. See id. at 1966 n.2 (“Lee also argues that he can show prejudice because, had his attorney advised him that he would be deported if he accepted the Government’s plea offer, he would have bargained for a plea deal that did not result in certain deportation. Given our conclusion that Lee can show prejudice based on the reasonable probability that he would have gone to trial, we need not reach this argument.”). The five circuits that have addressed this question have all concluded that such a showing would satisfy Strickland’s prejudice prong. See, e.g., United States v. Aguiar, No. 15-6306 Rodriguez-Penton v. United States Page 8 894 F.3d 351, 362 (D.C. Cir. 2018) (remanding for an evidentiary hearing on prejudice and noting that “[t]he Supreme Court did not suggest in Lee that a defendant must hypothesize his counsel’s advice might be erroneous and state contemporaneously that his plea decision would differ if that were so”); United States v. Swaby, 855 F.3d 233, 243 (4th Cir. 2017) (“Swaby has demonstrated a reasonable likelihood that, but for his counsel’s erroneous advice, he could have negotiated a different plea agreement. As a result, [counsel]’s deficient performance prejudiced Swaby’s defense.”); United States v. Rodriguez-Vega, 797 F.3d 781, 788 (9th Cir. 2015) (“A petitioner may demonstrate that there existed a reasonable probability of negotiating a better plea by identifying cases indicating a willingness by the government to permit defendants charged with the same or a substantially similar crime to plead guilty to a non-removable offense.”); DeBartolo v. United States, 790 F.3d 775, 779 (7th Cir. 2015) (noting that the petitioner “could have tried to negotiate a different plea deal for an offense that does not make deportation mandatory”); Kovacs v. United States, 744 F.3d 44, 52 (2d Cir. 2014) (“[A] petitioner must therefore demonstrate a reasonable probability that the prosecution would have accepted, and the court would have approved, a deal that had no adverse effect on the petitioner’s immigration status.”). We find the logic of these opinions sound, and we now likewise hold that RodriguezPenton may demonstrate prejudice if he can show that, had he known about the risk of adverse immigration consequences, he would have bargained for a more favorable plea. RodriguezPenton may make this showing in any number of ways, such as by showing similar plea agreements that were reached by others charged with the same crime. See Rodriguez-Vega, 797 F.3d at 788. And, under Lee, he can still show prejudice by demonstrating that, if properly advised, he would have gone to trial or his decisionmaking process would have been different. 137 S. Ct. at 1967. But no matter the route he takes, Rodriguez-Penton must still end up at the same place: he must present evidence sufficient to undermine confidence in the outcome of the plea-negotiation process. Cf. id. (cautioning against relying on “post hoc assertions” about how a defendant would have pleaded). Because the district court looked only to Hill, it applied an incomplete analytical framework to Rodriguez-Penton’s prejudice arguments. For a case like this one—where a No. 15-6306 Rodriguez-Penton v. United States Page 9 criminal defendant risks deportation by pleading guilty and his counsel fails to so advise him— Hill does not encompass all the methods of satisfying Strickland’s prejudice prong. In light of the legal developments since Hill and today’s holding, we think a remand for additional proceedings is appropriate. See Rodriguez v. United States, 730 F. App’x 39, 44 (2d Cir. 2018) (remanding to “the district court to develop a fuller record concerning the issue of prejudice” after noting that, “[o]n the present record and under the circumstances, we cannot determine whether Rodriguez would have opted to defend against the charges had she known she could be denaturalized”). The dissent incorrectly concludes that today’s opinion “announces a new right” to plea bargaining—a right that it suggests transforms “plea bargaining into an absolute entitlement.” (Dissenting Op. at 11, 18) To the contrary, the constitutional right at issue in this case is not some newly minted right to plea bargaining: it is the long-recognized right to effective assistance of counsel. And the Supreme Court has told us that the right to effective assistance extends to the plea-bargaining process notwithstanding the fact that defendants have no constitutional right to a plea offer. In Frye, the Court rejected both the Government’s claim that Frye “was not deprived of any legal benefit” because “there is no right to a plea offer or a plea bargain in any event,” and its conclusion that “any wrongful or mistaken action of counsel with respect to earlier plea offers is beside the point.” 566 U.S. at 142. Because our criminal justice system is effectively “a system of pleas, not a system of trials,” the Court found it “insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process.” Id. at 143–44 (quoting Lafler, 566 U.S. at 170). In the context of the right to effective assistance of counsel, Lafler concludes that it is the absence of a right to be offered a plea or to have it accepted that is beside the point. The Court found that true because “[m]uch the same reasoning guides cases that find criminal defendants have a right to effective assistance of counsel in direct appeals even though the Constitution does not require States to provide a system of appellate review at all.” Lafler, 566 U.S. at 168 (citing Evitts v. Lucey, 469 U.S. 387 (1985)). Today’s decision no more announces a right to plea bargaining than Frye or Lafler announced such a right. In those cases, as in this one, the right at issue is the right to effective No. 15-6306 Rodriguez-Penton v. United States Page 10 assistance of counsel at all critical stages of the criminal process. Of course, if the Government exercises its discretion not to bargain for a guilty plea, no constitutional question is presented. But when the Government chooses to enter into plea negotiations, the Constitution requires that defendants receive effective assistance in navigating that crucial process. See id. (“[W]hen a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution.” (quoting Evitts, 469 U.S. at 401)). And where counsel’s assistance falls short, as here, at issue is whether the defendant can show a reasonable probability that, with proper advice, the outcome of those negotiations would have been different. The purpose of remand is to answer that narrow question in light of the facts of this case. Finally, contrary to the Government’s assertions in its supplemental brief, the lack of an obvious remedy (should Rodriguez-Penton satisfy Strickland on remand) does not automatically equate to a failure to show prejudice. There is some analytical overlap between the two inquiries—if there were, in fact, no other options at the time of the guilty plea, then RodriguezPenton could not demonstrate a reasonable probability that the outcome would have been different absent trial counsel’s deficient performance. But what options were available to Rodriguez-Penton at the time of the plea is distinct from what options are available to the court in the present day. Rodriguez-Penton has asserted that his decisionmaking process would have been different if he had been properly advised, and the Government has not offered any countervailing evidence that Rodriguez-Penton could not have secured a more favorable plea. Thus, it remains possible that, on remand, he will show a reasonable probability of a different outcome. III. CONCLUSION For the foregoing reasons, the district court’s decision is hereby REVERSED and REMANDED for additional proceedings consistent with this opinion. No. 15-6306 Rodriguez-Penton v. United States Page 11 _________________ DISSENT _________________ THAPAR, Circuit Judge, dissenting. Being a criminal defense attorney is not easy. You have to deal with the government, which often has the odds and resources stacked in its favor. You have to advise a client, who may not be willing to listen. Sometimes you may have to delve into law far afield from your day-to-day practice—like immigration law. And if you get that law wrong and a court says you were ineffective, you may face bar sanctions. Here, a defense attorney with a Cuban client says he sought out assistance of immigration attorneys and advised his client that he probably would not be deported if he pled guilty. Even the Assistant United States Attorney agreed. But things changed, and his client may get deported. Now his client says he wishes he would have negotiated a better deal that took deportation off the table and claims that, but for his counsel’s advice, he would have done so. The majority agrees and in the process announces a new right—the right to negotiate more (even though the government does not have to and has said it will not in this case). Because this “right” is found neither in the Constitution nor the case law, I respectfully dissent. I. The facts here are simple: Daynel Rodriguez-Penton, a permanent resident who came to the United States from Cuba, pled guilty to conspiring to distribute oxycodone. He received a sentence of 121-months imprisonment, which was later reduced to 97 months. While both the district court and his defense attorney apparently alluded to deportation, neither specifically told Rodriguez-Penton that he could be deported as a result of his guilty plea. R. 78, Pg. ID 248 (district court observed that “the defendant’s here on a green card,” but “d[id]n’t know if this conviction would result in deportation”); R. 128, Pg. ID 469 (defense counsel claimed he told Rodriguez-Penton that “since . . . he had emigrated from Cuba, I did not believe he would be deported”). Rodriguez-Penton claims that he first learned he was deportable when he arrived at prison. So he wanted out of his guilty plea. After an unsuccessful direct appeal in which he No. 15-6306 Rodriguez-Penton v. United States Page 12 charged the district court with failing to inform him of the risk of deportation, United States v. Rodriguez-Penton, 547 F. App’x 738, 740 (6th Cir. 2013), he filed this motion under 28 U.S.C. § 2255, claiming ineffective assistance of counsel under the Sixth Amendment. An ineffective-assistance claim requires two showings: deficient performance and prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). The district court assumed that Rodriguez-Penton’s counsel’s performance was deficient and proceeded to the prejudice inquiry.1 But since Rodriguez-Penton claimed that, even with better advice, he would not have forgone a plea and thus would not have proceeded to trial, the district court concluded that he could not show prejudice. Rodriguez-Penton appeals that finding. He argues that, but for his counsel’s immigration advice, he would have sought to negotiate a better plea offer that promised no deportation. II. In recent years, the Supreme Court has decided several important cases defining the Sixth Amendment rights of criminal defendants who plead guilty. Under those decisions, a criminal defendant has a right to effective assistance in deciding whether to accept a plea offer. Lafler v. Cooper, 566 U.S. 156, 168 (2012); Missouri v. Frye, 566 U.S. 134, 147 (2012). If he declines the offer because of his lawyer’s bad advice and ends up worse off after trial, he can show 1The district court did not make any factual findings as to deficiency. See Padilla v. Kentucky, 559 U.S. 356, 359, 368–69, 374 (2010) (holding that counsel rendered constitutionally deficient performance where he told his client that he “did not have to worry about immigration status since he had been in the country so long,” even though the law was clear that he would be eligible to be deported). Since the district court will consider the case again on remand, I would leave the deficiency inquiry to the district court in the first instance, rather than find deficiency on our own. See, e.g., United States v. Williams, 527 F. App’x 457, 460 (6th Cir. 2013) (declining to consider ineffective-assistance claim where “a variety of questions remain[ed] unresolved” and concluding that “[t]he judge who heard the testimony and reviewed the evidence is better suited to decide these issues”); Bigelow v. Williams, 367 F.3d 562, 576 (6th Cir. 2004). As the Supreme Court said in Padilla, “[i]mmigration law can be complex, and it is a legal specialty of its own.” 559 U.S. at 369. When the law is not “succinct and straightforward,” a criminal defense attorney must only advise his client that there may be a risk of “adverse immigration consequences.” Id. And here, it appears that Rodriguez-Penton’s counsel, the Assistant United States Attorney, and some “immigration attorneys” all believed that Rodriguez-Penton would not be deported. R. 128, Pg. ID 484, 506. At the time, that conclusion may have been reasonable. After all, defense attorneys are not expected to be psychic. And the United States did not normalize relations with Cuba until 2014, which likely changed both whether the United States was willing to deport Cuban nationals and whether Cuba was willing to accept them. These are all things that a district court would ordinarily determine before calling a defense attorney deficient. In light of these difficult issues, it is best left to the district court to decide whether counsel’s advice rose to the level of being “unprofessional.” Padilla, 559 U.S. at 366–67. No. 15-6306 Rodriguez-Penton v. United States Page 13 prejudice and the court can order the prosecutor to reoffer the plea. Lafler, 566 U.S. at 168, 171. The Court’s decision in Lee v. United States, 137 S. Ct. 1958 (2017), stands for the flip side of the coin: if a defendant pleads guilty based on his lawyer’s bad advice but would have gone to trial otherwise, then the defendant can show prejudice from the lost opportunity to go to trial. Id. at 1966–67. Notwithstanding these decisions, the Supreme Court has never held that a criminal defendant has a right to try to bargain for a plea offer he never received. So what do we do when, as here, a defendant says he would have rolled the dice not at trial, but at more plea negotiating? Is a defendant who loses out on the opportunity at more negotiating therefore prejudiced because of it? Rodriguez-Penton thinks so. But neither the Constitution nor Supreme Court precedent supports his position. III. Central to this case is what to make of the Court’s decision in Lee. Lee concerned a defendant who, but for bad advice about deportation consequences, would have declined a plea bargain and instead gone to trial—rather than seeking a better plea deal. Id. at 1966–67. In vindicating the defendant’s lost opportunity to go to trial, Lee expressly left open the question that we must answer. Id. at 1966 n.2 (declining to reach the argument that Lee was prejudiced “because, had his attorney advised him that he would be deported if he accepted the Government’s plea offer, he would have bargained for a plea deal that did not result in certain deportation”). Still, Lee’s tea leaves are the best guidance we have to go on. One way to read Lee is the gambler’s reading, which is to say that prejudice focuses solely on a defendant’s lost opportunity to gamble. So long as a defendant who has pled guilty under bad advice says that good advice would have persuaded him to roll the dice—whether at trial or in attempting more plea negotiation—then that is prejudice. Certain portions of Lee, read in isolation, might support that reading. Id. at 1966–67 (characterizing the prejudice inquiry as “asking what an individual defendant would have done,” in which case “the possibility of even a No. 15-6306 Rodriguez-Penton v. United States Page 14 highly improbable result may be pertinent to the extent it would have affected his decisionmaking”).2 A more complete reading of Lee, however, eschews the sort of “categorical rule” that would treat trials and plea negotiations the same and accounts for the Court’s repeated emphasis on a defendant’s right to a trial. Id. at 1965–67, 1966 n.2. Where a defendant says that proper advice would have influenced him to go to trial, courts can say that improper advice denied him of a “proceeding” that the Sixth Amendment guarantees. Id. But the same is not true when a defendant says that improper advice denied him the chance at negotiating a better plea. A plea negotiation is not a “proceeding,” and a defendant has no right to it. Id.; see Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“[T]here is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial.”); accord Frye, 566 U.S. at 148 (“[A] defendant has no right to be offered a plea . . . .”). A reading of Lee that simply substitutes “plea negotiation” for “trial” in order to require a new chance to bargain ignores that trials are a matter of right, but plea negotiations are not. In addition, even under the gambler’s reading of Lee, a defendant still must show a “reasonable probability” that, but for counsel’s bad advice, he would have received a chance to negotiate a better offer—something much more difficult in the plea-bargaining context. Lee, 137 S. Ct. at 1969 (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Unless the judiciary can force the executive to negotiate—which, for reasons discussed below, it cannot—then a chance to negotiate is just that: a chance. It is just as (or more) likely that a defendant dead-set on avoiding trial would be forced to settle for the exact same offer he is trying to get out of or worse. It may never be reasonably probable (even if possible) that the government will sit down at the negotiating table, unless the government concedes as much. And according to Rodriguez2Several circuits have indicated that a defendant in Rodriguez-Penton’s situation can show prejudice based on the possibility of negotiating a better plea offer. United States v. Swaby, 855 F.3d 233, 241–43 (4th Cir. 2017); United States v. Rodriguez-Vega, 797 F.3d 781, 788–89 (9th Cir. 2015); DeBartolo v. United States, 790 F.3d 775, 779 (7th Cir. 2015); Kovacs v. United States, 744 F.3d 44, 52–53 (2d Cir. 2014). These decisions predate Lee and thus lack the benefit of its insights. In addition, unlike Rodriguez-Penton, the defendants in those cases pointed to facts demonstrating that a plea offer removing the possibility of deportation was on the table (or could have been). See, e.g., Swaby, 855 F.3d at 242–43; Rodriguez-Vega, 797 F.3d at 789; DeBartolo, 790 F.3d at 779–80; Kovacs, 744 F.3d at 53. Moreover, to the extent these cases conclude that a lost opportunity to negotiate a plea is prejudice under Strickland, none provides a constitutionally satisfactory answer why. No. 15-6306 Rodriguez-Penton v. United States Page 15 Penton, the government here told him in no uncertain terms that there would be no new negotiations. Appellant Suppl. Br. 11; see also Appellee Suppl. Br. 5 (stating that a plea without deportation is “not available to Rodriguez-Penton because he dealt in a large amount of oxycodone, so no non-deportable crime fits the facts of this case”). So if all a defendant can show is that he lost out on a possible chance to negotiate, that so-called prejudice cannot upset the “strong societal interest in finality” that applies with “special force” to guilty pleas. Lee, 137 S. Ct. at 1967 (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979)). The best reading of Lee, therefore, counsels against granting Rodriguez-Penton relief. Weatherford, 429 U.S. at 561; see Frye, 566 U.S. at 148; see also Lee, 137 S. Ct. at 1970 n.* (Thomas, J., dissenting) (“It is not enough for a defendant to show that he would have obtained a better plea agreement. A defendant has no right to be offered a plea, and this Court has never concluded that a defendant could show a ‘reasonable probability’ of a different result based on a purely hypothetical plea offer subject to absolute executive discretion.” (internal citations, quotations marks, and alteration omitted)). Understanding that Lee did not create a new right to plea bargaining, the majority claims that it is simply following Lafler and Frye. Majority Op. 9–10. But neither of those cases suggest a criminal defendant can prove prejudice from missing out on hypothetical plea offers. Indeed, the key in both Lafler and Frye was that there was a previous (more favorable) plea offer that the defendant rejected based on bad advice. Lafler, 566 U.S. at 161, 166; Frye, 566 U.S. at 148. In Lafler, the Court stated that “[i]f no plea offer is made, or a plea deal is accepted by the defendant but rejected by the judge, the issue raised here simply does not arise.” 566 U.S. at 168. And, in Frye, the Court held that to demonstrate prejudice, “defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel.” 566 U.S. at 147 (emphasis added). Here, Rodriguez-Penton has no plea offer to which he can point; he simply was not offered a plea deal with a guarantee that he would not be deported. Thus, the majority’s reliance on Lafler and Frye is misplaced. No. 15-6306 Rodriguez-Penton v. United States Page 16 IV. Even if Rodriguez-Penton could show prejudice, the question of remedy would present a separate hurdle. All the possible remedies here share a common characteristic: they push the judiciary well outside of its proper role in criminal proceedings. Ordering a prosecutor to reoffer a plea that was already offered is problematic enough. Lafler, 566 U.S. at 183–84 (Scalia, J., dissenting); id. at 187–88 (Alito, J., dissenting); Williams v. Jones, 571 F.3d 1086, 1109–10 (10th Cir. 2009) (Gorsuch, J., dissenting) (explaining that this remedy “use[s] the rubric of ineffective assistance to upend the plea bargaining process, transforming it from its historic role as an act of executive discretion to one of judicially enforceable right”). Yet ordering the prosecutor to extend a plea offer that was never made is something well beyond the judiciary’s powers. See Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 807 (1987) (observing that it is within a prosecutor’s discretion to decide “whether to enter into plea bargains and the terms on which they will be established,” and that such decisions “are all made outside the supervision of the court”). Rodriguez-Penton, to his credit, does not ask us to go that far. Instead, he proposes that we vacate his conviction and simply recommend that the prosecutor not recharge him. But Rodriguez-Penton’s proposed remedy fails to solve the problem it tries to address and creates a new problem along the way. First, the judicial branch has no business taking any position on the exercise of prosecutorial discretion, whether “recommended” or not. Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978) (“[T]he decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in [the prosecutor’s] discretion.”); see Fed. R. Crim. P. 11(c)(1) (“An attorney for the government and the defendant’s attorney . . . may discuss and reach a plea agreement. The court must not participate in these discussions.” (emphasis added)); United States v. Ushery, 785 F.3d 210, 219–21 (6th Cir. 2015). And recommending that the prosecutor take an action presents a new problem: the judiciary cannot render advisory rulings. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998). The Constitution tells us that our job as judges is to resolve “Cases” and “Controversies” through enforceable remedies—not to write strongly-worded advice columns. U.S. Const. art. III; see Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 38 (1976) (observing that our jurisdiction No. 15-6306 Rodriguez-Penton v. United States Page 17 extends only to matters where it is “likely” that an injury will be redressed by a favorable decision). Thus, we have no power to provide the remedy Rodriguez-Penton seeks. Rodriguez-Penton’s proposed remedy also presents a practical problem. If the court vacates his conviction, the prosecutor may well reject the court’s recommendation of clemency and adhere to Department of Justice policy that requires charging Rodriguez-Penton with “the most serious, readily provable offense”—likely that to which he already pled guilty in this case. Memorandum from the Office of the Att’y Gen. on Dep’t Charging and Sentencing Policy 1 (May 10, 2017). The government could then insist on going to trial, and Rodriguez-Penton, who has already admitted his guilt, would likely lose. Even with credit for time served, RodriguezPenton could be sentenced to more time than under his initial plea and still face the possibility of deportation. Counsel asserts that Rodriguez-Penton has been made adequately aware of the possible risks here, but there is no reason to expand the Sixth Amendment by judicial fiat and push courts out of their constitutional role, only to watch Rodriguez-Penton lose a game with long odds. Nor is the solution to remand to the district court with the hope that more evidence and more briefs will reveal a non-existent answer. See Majority Op. 9–10. Since courts have no power to provide the remedy Rodriguez-Penton seeks, remanding to the district court with instructions to sift through unavailable remedies is improper (not to mention unfair to the district court). Williams, 571 F.3d at 1108–09. Here, there is neither prejudice nor remedy. Today’s decision leaves to the district court the unenviable task of inventing both.3 * * * The impact of today’s decision could be wide-reaching. Rodriguez-Penton claims that he should have received better advice about deportation. But the decision today speaks more broadly than immigration consequences, potentially encompassing any deficient advice that 3I recognize that the district court, which did not have the benefit of Lee, relied solely on Hill v. Lockhart in reaching its decision. But the district court’s reliance on Hill is no reason to reverse and remand in this case. Hill remains good law and provides the correct answer here, where the only prejudice Rodriguez-Penton can show is a lost opportunity to go to trial, which he has made clear he does not want. 474 U.S. at 59; see Lee, 137 S. Ct. at 1965–66, 1969 (applying Hill). And again, in addition to the absence of prejudice, there is no constitutionally available remedy the district court can provide. No. 15-6306 Rodriguez-Penton v. United States Page 18 “infected [a defendant’s] decisionmaking process, and thus undermines confidence in the outcome of the plea process.” Majority Op. 7. After today, any time an attorney fails to inform a defendant about any direct consequence of a plea agreement, a defendant may have a right to negotiate again. And so we should expect to see all manner of § 2255 motions by defendants claiming they got bad advice about their appellate waiver, or drug quantity, or applicable sentencing enhancements, or recommended sentencing range, to name a few. All will be admittedly guilty, but all will want their chance at a better deal. And every one of them will have been “prejudiced.” It is one thing to recognize that plea bargaining is a “critical phase” of modern criminal prosecutions. Padilla, 559 U.S. at 373. It is wholly another to transform plea bargaining into an absolute entitlement—defendant’s satisfaction guaranteed. Since this entitlement is found neither in the Constitution nor the case law, I respectfully dissent.
Defendant, a lawful permanent resident, asserted that his decision-making process would have been different had been properly advised regarding the immigration consequences of a guilty plea; the government did not offer countervailing evidence that he could not have obtained a more favorable plea.


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Often referred to as the “Pentagon Papers” case, the landmark Supreme Court decision in New York Times Co. v. United States, 403 U.S. 713 (1971), defended the First Amendment right of free press against prior restraint by the government.
In 1967 then Secretary of Defense Robert McNamara commissioned a secret government study on American involvement in Vietnam. When completed in 1968, the project comprised 47 volumes containing more than 7,000 pages. The work was labeled classified, and only 15 copies were made.
After the first three installments were published, the Nixon administration, citing national security concerns, obtained a restraining order barring further publication of the Papers. When the Second Circuit Court of Appeals affirmed the order, the Times made an emergency appeal to the Supreme Court, which agreed to hear the case the next day (June 26). The Court issued its opinions on June 30; in all, the entire legal process had taken only 15 days.
In a 6-3 decision, the Court dissolved the restraining order and allowed the Times to continue with publication. Citing Bantam Books v. Sullivan (1963), Near v. Minnesota (1931), and Organization for a Better Austin v. Keefe (1971), the three-paragraph per curiam lead opinion noted that “any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity” and “the Government thus carries a heavy burden of showing justification for the imposition of such a restraint.” In this case, the government had failed to carry that burden.
On one extreme, Justice Hugo L. Black argued that “only a free and unrestrained press can effectively expose deception in government” and rejected any prior restraints on the press.
Justice Byron R. White, although specifically rejecting the idea that “in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations,” refused to grant censorship authority to the executive branch without the authorization of Congress.
Justice William J. Brennan Jr., referring to Justice Oliver Wendell Holmes’s clear and present danger test, concluded that prior censorship would be permissible in certain circumstances, but the vague, nonspecific claims of harm to national security made in this case were insufficient to justify prior restraint.
Justice William O. Douglas generally agreed with Justice Black and also argued that the legislation the government used to support its case, the Espionage Act of 1917, did not support the government’s case.
Justices Potter Stewart and Thurgood Marshall argued separately that in the absence of specific guidance by Congress, the Court should not grant the executive broad censorship power.
The dissenters — Chief Justice Warren E. Burger and Justices Harry A. Blackmun and John Marshall Harlan II — each filed separate opinions. They contended (in greater or lesser detail) that the case had been resolved far too quickly to consider and resolve fully the critically important legal issues at stake, especially the needs and prerogatives of the executive.
New York Times Co. v United States generally is regarded as a seminal victory for the free press in the United States. The per curiam opinion clearly states that in any situation in which the government wishes to resort to censorship, it faces a difficult task in convincing the courts to issue the necessary legal orders.
Despite this, many First Amendment advocates have criticized the decision. Although this case supports the right to publish, its impact is diluted by the failure of the Court to produce a clearly reasoned majority opinion. The Court’s fractured majority fails to say prior restraint may never be imposed; may be imposed only if the threat to national security can be proven to be real, serious, and immediate; or may be imposed if Congress provides sufficiently clear authorization and guidelines. Thus, far from being an unambiguous declaration of support for a free press, the decision leaves open the possibility of government censorship without specifying the conditions under which the First Amendment might permit it.
Unger, Sanford J. The Papers and the Papers. New York: E.P. Dutton, 1972.
The Pentagon Papers. National Archives.
New York Times v. United States. C-SPAN Landmark Cases.
Chokshi, Niraj. "Behind the Race to Publish the Top-Secret Pentagon Papers." The New York Times, Dec. 20, 1971.
Freedom of the Press: New York Times v. United States. Annenberg Classroom.

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