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The Case of Jae Lee

Posted by: Patrick McNally on Aug 29, 2017
Lee v. United States - Supreme Court Decision on Tennessee Case Involving imimigation  
 
In Lee v. United States, 2017 WL 2694701 (June 23, 2017), the U.S. Supreme Court in an opinion written by Chief Justice John B. Roberts and joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan held Jae Lee’s conviction should be vacated because he demonstrated prejudice predicated upon his trial counsel’s misadvice about deportation consequences in accepting a plea agreement. Not only is this an important decision but it was based on a Tennessee case and Mr. Lee was represented by Nashville counsel.
 
Deficient Performance of Trial Counsel – Affirmative Misadvice
 
Jae Lee, a citizen of South Korea and legal permanent resident of the U.S., had lived in the United States for 35 years and become a successful business man in Memphis with no ties to South Korea.  He pled guilty to possession of 88 ecstasy pills with intent to distribute in U.S. District Court for the Western District of Tennessee.  Avoiding deportation was the determinative issue for accepting the plea offer.  Lee’s trial counsel erroneously assured him, while discussing the government’s plea offer and during the guilty plea hearing, the guilty plea would not subject Lee to deportation.  In fact, the crime was an aggravated felony and the guilty plea rendered Lee subject to mandatory deportation.  This was not a difficult call that deportation was a consequence of the guilty plea.  The only exception to deportation for a narcotics conviction is a first-time offender convicted of possession of marijuana under 30 grams.  
 
District Court Proceedings to Vacate the Conviction
 
Lee was sentenced to 12 months and one day.  After surrendering to serve his sentence, Lee learned he was in a facility for offenders designated for deportation.  Then, Lee moved to vacate his conviction and set aside his guilty plea under 28 U.S.C. § 2255 - federal statute for post-conviction relief.  Mr. Lee claimed his trial lawyer had rendered ineffective assistance of counsel in advising him deportation would not happen upon pleading guilty.  
Interestingly, Mr. Lee’s guilty plea preceded the U.S. Supreme Court Opinion in Padilla v. Kentucky, 559 U.S. 356 (2010), establishing a performance standard that trial counsel must provide informed advice to their non-citizen clients considering a guilty plea.  Mr. Lee plead guilty in June 2009, and was sentenced in September 2009.  While Lee’s petition was pending, the U.S. Supreme Court concluded the Padilla decision would not be applied retroactively.  Chaidez v. United States, 133 U.S. 1103 (2013).  Lee abandoned his Padilla argument and advanced his claim of ineffective assistance of counsel under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985) (a petitioner who claims ineffective assistance of counsel based on the advice to enter a guilty plea must show a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”).
The District Court determined trial counsel’s performance was deficient but Lee had not suffered prejudice.  The District Court found the evidence of Lee’s guilt was overwhelming and reasoned Lee could show no prejudice because whether he went to trial or accepted the plea, he would have been found guilty and deportation inevitable.  
 
Is a Bona Fide Defense Required to Establish Prejudice?
 
Crediting the District Court’s assessment, the evidence of guilt against Lee was overwhelming the Sixth Circuit concluded, “[T]he problem for Lee is that he has no bona fide defense, not even a weak one.  Thus, despite his very strong ties to the United States, he cannot show prejudice.”  Lee v. United States, 825 F.3d 311 (6th Cir. 2016).  The Sixth Circuit affirmed the District Court’s decision reasoning deportation would have followed just as readily from a jury conviction as a guilty plea. Showing her disdain for the deportation consequence, Judge Bachhelder, who authored the opinion, wrote: “In reaching this conclusion, we should not be read as endorsing Lee’s impending deportation.  It is unclear to us why it is in our national interests – much less the interests of justice – to exile a productive member of our society to a country he hasn’t lived in since childhood for committing a relatively small-time drug offense.  But our duty is neither to prosecute nor to pardon; it is simply to say ‘what the law is.’”
The U.S. Supreme Court reversed holding Lee’s claim he would not have accepted the plea had he known it would lead to his deportation was supported by substantial and uncontroverted evidence, and concluded Lee demonstrated a reasonable probability that, but for trial counsel’s mistake, he would have insisted on going to trial.  Writing for the Court, Chief Justice Roberts said:
 
The Government asks that we, like the Court of Appeals below, adopt a per se rule that a defendant with no viable defense cannot show prejudice form the denial of his right to trial.  As a general matter, it makes sense that a defendant who has no realistic defense to a charge supported by sufficient evidence will be unable to carry his burden of showing prejudice from accepting a guilty plea.  But in elevating this general proposition to a per se rule, the Government makes two errors.  First, it forgets that categorical rules are ill suited to an inquiry that we have emphasized demands a “case-by-case examination” of the “totality of the evidence.”  And, more fundamentally, the Government overlooks that the inquiry we prescribed in Hill v. Lockhart focuses on a defendant’ decision-making, which may not turn solely on the likelihood of conviction after trial.  
 
We cannot agree [with the Government’s contention] that it would be irrational for a defendant in Lee’s position to reject the plea offer in favor of trial.  But for his attorney’s incompetence, Lee would have known that accepting the plea agreement would certainly led to deportation.  Going to trial? Almost certainly.
 
. . . if the consequences of taking a chance at trial were not markedly harsher than pleading, as in this case, that “almost” could make all the difference.
 
The Court understood whether to plead guilty involves assessing the respective consequences of a conviction after a trial and by plea.  In other words “what is the benefit to the plea over a trial?”  When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look more attractive.  This is particularly true for resident aliens considering a plea offer.    
The facts in Lee’s case provided the rationale for the Court’s holding.  Lee had lived in the United States for three decades, had established two businesses in Tennessee, and was the only family member in the United States to care for his elderly parents – both naturalized American citizens.  In contrast, Lee had no ties to South Korea which he left at age 13 and never returned.  Avoiding deportation was Lee’s primary objective in resolving the charge against him. The consequence of taking a chance at trial was only slightly harsher than the plea agreement.  (A difference of six months imprisonment though the Court suggested “a year or two more prison time.”) 
 
The conviction was vacated, the guilty plea set aside, and the case remanded for further proceedings in the federal District for the Western District of Tennessee consistent with the Court’s opinion.
 
Of note: Mr. Lee spent seven years in custody of which only one was for his sentence upon conviction.  His willingness to stay in U.S. Marshal’s custody, rather than be deported to South Korea, evidenced how hard a legally permanent resident alien will fight to remain in the United States.  On August 8, 2017, Mr. Lee was released from custody pending the disposition of the charge against him.  The author, who has been representing Mr. Lee for the past six years, had the privilege to walk out of the federal Courthouse in Memphis with Mr. Lee and drive him home.  
The author, Patrick McNally, is a founding partner at Weatherly, McNally & Dixon, P.L.C., where he practices criminal law, both misdemeanor and felony offenses. He received his J.D. at University of Tennessee College of Law in 1982. Patrick may be reached at pmcnally@wmdlawgroup.com or (615) 986-3377.