United States District Court, E.D. Michigan, Northern Division
ORDER DENYING DEFENDANT'S MOTION FOR
RECONSIDERATION
THOMAS
L. LUDINGTON United States District Judge
On May
20, 2019, the Court entered an order denying Defendant's
“motion for an order requiring the government's
specific performance with the terms of a January 22, 2019
pretrial diversion agreement.” ECF No. 75. A full
factual and procedural summary can be found in that order. On
June 3, 2019, Defendant moved for reconsideration of that
order or, in the alternative, for certification of the order
for an interlocutory appeal. ECF No. 77. The government
responded on June 14, 2019. ECF No. 81. For the reasons
stated below, the motions will be denied.
I.
A.
Pursuant
to Eastern District of Michigan Local Rule 7.1(h), a party
can file a motion for reconsideration of a previous order but
must do so within fourteen days. A motion for reconsideration
will be granted if the moving party shows: “(1) a
palpable defect, (2) the defect misled the court and the
parties, and (3) that correcting the defect will result in a
different disposition of the case.” Michigan Dept.
of Treasury v. Michalec, 181 F.Supp.2d 731, 733-34 (E.D.
Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). A
“palpable defect” is “obvious, clear,
unmistakable, manifest, or plain.” Id. at 734
(citing Marketing Displays, Inc. v. Traffix Devices,
Inc., 971 F.Supp.2d 262, 278 (E.D. Mich. 1997).
“[T]he Court will not grant motions for r ehearing or
reconsideration that merely present the same issues ruled
upon by the Court, either expressly or by reasonable
implication.” E.D. Mich. L.R. 7.1(h)(3). See also
Bowens v. Terris, 2015 WL 3441531, at *1 (E.D. Mich. May
28, 2015).
B.
Defendant
asserts that the Court's palpable defect was that the
Court “sua sponte presume[ed] that the
diversion agreement is unenforceable unless Defendant shows
otherwise, ” and in so doing the Court contravened the
“bedrock principle of America contract law that parties
are free to contract as they see, and the courts are to
enforce the agreement as written absent some highly unusual
circumstance such as contract in violation of law or public
policy.”
Despite
the misleading title of his initial motion (“motion for
an order requiring the government's specific performance
with the terms of a January 22, 2019 pretrial diversion
agreement”), and the fact the he now (on
reconsideration) refers to the agreement as a
“diversion agreement, ” Defendant has never
contended that he has a “pretrial-diversion
agreement.” He never signed an agreement waiving his
rights to a speedy trial and waiving his right to presentment
of his case within the statute of limitations.[1] Nor has he ever
contended he had a plea agreement and waived his right to a
jury trial and to be presumed innocent until proven guilty
beyond a reasonable doubt. Rather, to use his own
colloquialism, what he had was a
“polygraph-for-pretrial diversion agreement.”
Defendant acknowledges that there is “no specific case
law on enforceability of agreements like the one at
bar.” There is, however, well-developed caselaw
addressing the very limited circumstances in which civil
contract law has any application to plea negotiations. As
explained in the previous order, this is not one of those
circumstances.
II.
Defendant
asks, in the alternative, for certification of the order for
an interlocutory appeal based on 28 U.S.C. 1292(b), a
provision which by its express terms applies only to civil
actions. Notwithstanding that fact, he contends that
“cases have applied this Section to interlocutory
matters in criminal cases where the issues were essentially
civil in nature.” See, e.g. United States v.
Beach, 113 F.3d 188, 189 n.3 (11th Cir. 1997) (allowing
for a Section 1292(b) appeal related to the seized property
aspects of the defendant's criminal case).” He
contends that “a claim for specific performance of a
contract is essentially civil in nature.” The fact that
Defendant used the words “specific performance”
in the title of his motion does not transform plea
negotiations in a criminal case into a dispute that is
“essentially civil in nature.”
Defendant
asks the Court to compel the government to permit him to
participate in a pre-trial diversion program based on an
email communication with the United States Attorney's
office. He identifies no precedent for such a dispute being
certified for an interlocutory appeal under 1292(b). Existing
precedent cuts the opposite way. Cobbledick v. United
States, 309 U.S. 323 (1940); In re April 1977 Grand
Jury Subpoenas, 584 F.2d 1366 (6th Cir. 1978) (en banc);
United States v. Wampler, 624 F.3d 1331, 1332-33
(10th Cir. 2010); United States v. Pace, 201 F.3d
1116, 1118-19 (5th Cir. 2000).
Even if
section 1292(b) was applicable, an interlocutory appeal would
be inappropriate because, for all the reasons explained above
and in the previous order, there is no “substantial
ground for difference of an opinion.” Defendant argues
that there is substantial ground for difference of opinion
because “there is no case law specifically addressing
the enforceability of agreements such as the one [at
issue].” The absence of case law specifically
foreclosing a novel theory does not mean there is
“substantial ground for difference of an opinion”
as to the viability of that theory. If that were the proper
interpretation of section 1292(b), there would seemingly be
no limit to a party's ability to obtain an interlocutory
appeal by raising novel arguments. Where the party advancing
a novel theory cannot identify any precedent remotely in
support of the theory, it undermines the suggestion that the
theory is viable.
Accordingly,
it is ORDERED that Defendant's motion
for ...