Criminal Procedure

Fact pattern

A, a foreign national, is charged in federal court with one count of wire fraud and three counts of mail fraud, all under federal law. She decides to plead guilty to wire fraud, a deportable offense under federal immigration laws, but to proceed to trial on the three counts of mail fraud.

At the plea hearing, the trial judge informs A of her constitutional rights before accepting her guilty plea. The judge and the defendant’s counsel both fail, however, to inform A that her guilty plea may get her deported from the United States. Although the wire fraud conviction may subject A to deportation, the Attorney General of the United States has the discretion to cancel her deportation under certain circumstances.

After A pleads guilty to wire fraud, the case proceeds to trial on the three mail-fraud counts. Each count carries a maximum term of three months’ imprisonment, for a total maximum term of nine months’ imprisonment. The mail-fraud statute does not create any additional penalties.

In due course, A challenges the validity of her guilty plea, contending that neither the court nor her counsel informed her that her guilty plea could subject her to deportation. More specifically, A argues that:

(1) her guilty plea was not knowing and voluntary, because the judge failed to inform her of the possible immigration consequences of her guilty plea, and

(2) her counsel provided ineffective assistance by failing to advise her of the immigration consequences of her guilty plea.

Questions

1. Which of these two arguments is more likely to succeed? Explain, assuming that A would not have pled guilty had she known that her guilty plea may result in her deportation.
2. If A were to move for a jury trial on the three counts of mail fraud, would she be entitled to a jury trial under the Sixth Amendment? Explain.