17-1841
Doe v. United States



                            UNITED STATES COURT OF APPEALS

                                    FOR THE SECOND CIRCUIT

                                        _______________

                                       August Term, 2018

                 (Argued: October 22, 2018           Decided: February 14, 2019)

                                       Docket No. 17-1841

                                        _______________

                                           JOHN DOE,

                                       Petitioner-Appellant,

                                              —v.—

                                   UNITED STATES OF AMERICA,

                                       Respondent-Appellee.
                                        _______________

      B e f o r e:

                     KATZMANN, Chief Judge, KEARSE AND CHIN, Circuit Judges.

                                        _______________

            Petitioner-appellant John Doe appeals from a judgment entered in the
      United States District Court for the
      Doe filed a petition for a writ of error coram nobis seeking to vacate his earlier


                                                 1
conviction for conspiracy                   . The petition argues that Doe’s
defense counsel was ineffective in affirmatively assuring him that there should
be no immigration consequences for pleading guilty when, in fact, the crime to
which he pleaded was an aggravated felony resulting in mandatory removal.
The Government joined in Doe’s petition after originally opposing it; the district
court nevertheless denied the petition. On appeal, Doe argues that the district
court applied incorrect legal standards in evaluating the petition and that the
court abused its discretion in denying relief. The Government now argues that
the district court’s decision was not an abuse of discretion. We agree with Doe
that the court below erred and that Doe is entitled to relief. Accordingly, the
judgment of the district court is REVERSED and the case is REMANDED.
                                  _______________

                                                 , for Petitioner-Appellant.

                                                        (argued), Assistant United
                    States Attorneys, for                       , United States
                    Attorney for the
                    for Respondent-Appellee.

             _______________

      KATZMANN, Chief Judge:

      Petitioner-Appellant John Doe 1 filed a writ of coram nobis in 2014 to vacate

a prior conviction. Both the Government and Doe’s original attorney admitted

that Doe was misled as to the serious immigration consequences of the crime to




      1
        Petitioner has been given the pseudonym “John Doe” throughout this litigation
to safeguard his identity. All citations to the record in this case have been omitted.

                                           2
which he pleaded guilty. The Government, after initially opposing the coram

nobis petition, joined in asking the district court to grant it. The district court

nevertheless denied the petition. Troublingly, the Government has now switched

positions again, arguing that the district court did not abuse its discretion. On

review, we grant the petition.

                                    BACKGROUND

      Pursuant to a plea agreement, Doe pleaded guilty in             to a one-count

information charging him with conspiracy




                                                                         . As part of

his agreement, Doe consented to cooperate with the Government. Doe was

sentenced in        to                       .

      In       , Doe filed a petition for a writ of error coram nobis. According to the

petition, Doe’s attorney had assured him that his plea should not result in

removal, when in fact the admitted loss amount                    rendered it an

aggravated felony, resulting in a lifetime citizenship bar, a conclusive

presumption of deportability, and automatic denial of discretionary relief. See



                                            3
8 U.S.C. §§ 1101(a)(43)(M)(i) (defining aggravated felony as including “an offense

that involves fraud or deceit in which the loss to the victim or victims exceeds

$10,000”), 1101(f)(8), 1227(a)(2)(A)(iii), 1228(c), 1229b(a)(3), 1229b(b)(1)(C),

1427(a). The petition also included an earlier written statement in which Doe’s

defense attorney admitted that he was ignorant as to immigration law and so

was unaware that Doe’s conviction would lead to mandatory deportation. He

and Doe had relied on the Government’s assurances that it would do everything

possible to keep Doe in the country.

      After his sentencing, Doe applied to renew his green card, at which point

he was placed into removal proceedings. The agents with whom Doe had been

cooperating referred him to new agents, and Doe agreed to cooperate with them

in more sensitive matters. His removal proceedings were then administratively

closed. Now aware that he was deportable, Doe sought to vacate his conviction;

he was dissuaded by his handlers, who told him they would be able to obtain

citizenship for him or have his conviction vacated. With the agents’

encouragement, Doe applied for citizenship; this application, however, was

denied around         or     . Agents continued to assure him that they would



                                           4
procure him citizenship and to discourage him from discussing a vacatur motion

with attorneys. Finally, in     , Doe recognized that the agents could not actually

obtain citizenship for him and contacted a new lawyer.

      Doe then filed the instant coram nobis petition, after a delay of several

months occasioned by the need to retrieve the original criminal complaint

against him. The Government initially opposed the petition, asserting that Doe

did not meet the standard for coram nobis relief because he did not receive

ineffective assistance, he was not prejudiced by any ineffective assistance, and his

petition was untimely. However, after meeting with Doe, the Government filed a

letter with the court withdrawing its opposition. The Government requested that

the court (1) grant the coram nobis petition and (2) transfer the criminal case to the

                                . At a hearing in            , the Government

informed the court that after examining Second Circuit case law and meeting

with Doe—whose story the Government credited—the Government believed

that Doe had received ineffective assistance of counsel. Given the circuit law and

the factual circumstances, the Government determined that it “could not . . . in

good conscience oppose the motion.”



                                           5
      The district court orally denied the petition, stating that it was “not

persuaded.” Doe timely appealed the decision, seeking expedited summary

reversal. This Court determined that the district court’s reasoning could not be

discerned from the record; it remanded for the district court to identify the legal

standard applied and to explain its reasons for denying relief. The district court

then issued a written opinion denying Doe’s coram nobis petition. The court

stated that no “‘serious constitutional question’ would be raised by withdrawing

[Doe’s] guilty plea at this stage,” and held that a writ of coram nobis “hardly

seems the remedy in this case, if one is even in order.” The court said that “the

Executive Branch . . . is requesting that the Judicial Branch remedy what the

United States Attorney’s Office believes to be a wrong perpetrated by either ICE

or the FBI,” a request which the court did “not believe . . . to be sound, given the

separation of powers doctrine.” After the district court issued its decision, Doe

reinstated his appeal.




                                          6
                                     DISCUSSION

I.    Standard of Review

      “A writ of error coram nobis is an ‘extraordinary remedy’” typically granted

only when a prisoner is out of custody and so cannot pursue habeas relief. Kovacs

v. United States, 

, 49 (2d Cir. 2014) (quoting United States v. Morgan, 

, 511 (1954)). We review de novo the legal standards that the district court

has applied but review for abuse of discretion the court’s ultimate decision to

deny the writ. See Porcelli v. United States, 

, 158 (2d Cir. 2005).

II.   Coram Nobis Relief

      The sole issue on appeal is whether the district court improperly denied

Doe’s coram nobis petition. While the Government’s agreement with Doe below

might normally preclude it from opposing Doe now, see, e.g., Steagald v. United

States, 

, 209 (1981); United States v. Gupta, 

, 690 n.2 (2d

Cir. 2012); United States v. Canova, 

, 347 (2d Cir. 2005), we will

exercise our discretion to consider the matter on the merits, see Bogle-Assegai v.

Connecticut, 

, 504 (2d Cir. 2006), bearing in mind the concessions the

Government has made both below and on appeal.



                                           7
       To receive coram nobis relief, a petitioner must show “that 1) there are

circumstances compelling such action to achieve justice, 2) sound reasons exist

for failure to seek appropriate earlier relief, and 3) the petitioner continues to

suffer legal consequences from his conviction that may be remedied by granting

of the writ.” 

(quoting Foont v. United States, 

, 79

(2d Cir. 1996)). 2 The district court neither laid out nor applied these legal

standards. Instead, it cited cases that asked whether “the failure to allow for

collateral review would raise serious constitutional questions,” a test used to

determine whether untimely habeas petitions alleging constitutional violations




       2 As the Government does not contest the third factor for receiving coram nobis
relief, only the first and second factors are at issue here. See Norton v. Sam’s Club, 

, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are considered
waived and normally will not be addressed on appeal.”). However, we note that Doe’s
conviction for an aggravated felony, see 8 U.S.C. § 1101(a)(43)(M), means that he “shall
be conclusively presumed to be deportable,” 

see 

and
is ineligible for cancellation of removal or adjustment of status, 

(b)(1)(C). He is also categorically disqualified from proving moral character, 

which in turn disqualifies him from naturalized citizenship, 

The fact that his deportation proceedings have been administratively stayed does not
alleviate these legal consequences, as Doe is still unable to apply for citizenship and
remains subject to mandatory removal at any moment if the Government removes the
stay. See Matter of Castro-Tum, 27 I. & N. Dec. 271, 271 (A.G. 2018) (prohibiting the use of
administrative closure in most removal cases and requiring all administratively closed
cases to be re-calendared on the motion of either party unless they were closed pursuant
to an explicit grant of authority via regulation or judicially approved settlement).

                                              8
may be brought under 28 U.S.C. § 2241. Triestman v. United States, 

,

377 (2d Cir. 1997). Doe argues that the district court applied the wrong legal

standards, and we agree. Under the correct standards, Doe merits relief.

      A.     Ineffective Assistance

      Doe claims that his attorney misadvised him as to the immigration

consequences of his plea, and that there is a reasonable probability he would

have gone to trial, litigated a defense, or negotiated a different plea had he not

been misadvised. Ineffective assistance of counsel, including during the plea-

bargaining process, is a circumstance compelling the grant of a timely

application for coram nobis relief. 

. To prove ineffective

assistance, a petitioner must show that “defense counsel’s performance was

objectively unreasonable” and that “the deficient performance prejudiced the

defense.” 

v. Washington, 

, 687-88 (1984)). “The

question of whether a defendant’s lawyer’s representation violates the Sixth

Amendment right to effective assistance of counsel is a mixed question of law

and fact that is reviewed de novo.” LoCascio v. United States, 

, 54 (2d

Cir. 2005) (citation omitted).



                                           9
      The Government conceded both in the district court and on appeal that

Doe’s counsel’s actions were objectively unreasonable. They were. At the time of

Doe’s plea in      , the Supreme Court had not yet held that attorneys must

affirmatively warn their clients of the immigration consequences of their

potential convictions. See Padilla v. Kentucky, 

, 369 (2010). However,

this court had already held that “an affirmative misrepresentation by counsel as

to the deportation consequences of a guilty plea is . . . objectively unreasonable.”

United States v. Couto, 

, 188 (2d Cir. 2002), abrogated on other grounds

by Padilla, 

.

      Doe claims that when he asked his defense counsel about the immigration

consequences of the proposed plea agreement, counsel indicated that, with Doe’s

cooperation and an ultimate plea of guilty in this nonviolent case, Doe should

not have a problem with the immigration authorities and should not face

deportation. An earlier statement by Doe’s defense counsel effectively admitted

as much. The statement noted that counsel neither was a practitioner of nor was

knowledgeable about immigration law; that he and Doe had been assured by the

Government that the Government would do everything it could to keep Doe



                                          10
from being deported; that the attorney and Doe had relied on the Government’s

representations; and that he had not been aware that deportation was mandatory

for the offense to which Doe was considering pleading guilty. The district court

made no findings as to the credibility of Doe’s or his attorney’s representations.

The Government, however, has credited Doe’s description of the events and of

what he was told by government agents, and the Government has admitted that

defense counsel effectively conceded that he provided incorrect information to

Doe as to whether mandatory deportation would result from his plea. Reviewing

the record de novo, we conclude that there is no genuine dispute as to the fact that

counsel’s representations to Doe, which inaccurately conveyed that his plea of

guilty to the      charge would not make his deportation mandatory, fell below

an objective standard of reasonableness. 

(finding

ineffective assistance when “counsel affirmatively misled [d]efendant into

believing there were things that could be done to avoid deportation”).

      The question then becomes whether this misadvice prejudiced Doe. The

Government asserts that the district court’s decision impliedly found a lack of

prejudice and claims that this holding was not an abuse of discretion. However,



                                         11
the court did not make any clear determination regarding whether Doe had met

the Strickland standard. Instead, applying an incorrect legal test, the court stated

conclusorily that “[Doe] has not demonstrated that a ‘serious constitutional

question’ would be raised by withdrawing his guilty plea at this stage, nor that

any such constitutional question would be remedied by re-opening the

Information or transferring it to the                   .” We respectfully think the

question is not whether vacating Doe’s conviction would raise a constitutional

question, but rather whether allowing his conviction to stand would constitute a

miscarriage of justice.

      Assuming that the district court meant to say that no serious constitutional

question would be raised by maintaining Doe’s conviction, we believe the court

neither employed the correct legal standard nor examined whether Doe was

prejudiced under Strickland. We therefore analyze the question ourselves.

Prejudice exists “if it is shown that, but for counsel’s unprofessional errors, there

was a reasonable probability that the petitioner could have negotiated a plea that

did not impact immigration status or that he would have litigated an available

defense.” 

. Doe has shown both.



                                          12
       As a predicate matter, a petitioner alleging ineffective assistance based on

immigration misadvice must “clearly demonstrate ‘that he placed particular

emphasis on [immigration consequences] in deciding whether or not to plead

guilty.’” 

3 Courts cannot rely solely on “post hoc assertions

from a defendant about how he would have pleaded but for his attorney’s

deficiencies”; we must also “look to contemporaneous evidence to substantiate a

defendant’s expressed preferences.” Jae Lee v. United States, 

, 1967

(2017). This evidence shows that Doe was deeply concerned about deportation.




       3 The Government suggests that it was not an abuse of discretion for the district
court to find a lack of prejudice in light of Jae Lee v. United States, 

(2017),
because Doe did not show either that deportation was the “determinative issue” for him
or that he “had a large number of discussions with his counsel” about it. The Jae Lee
Court did note that, in that case, deportation was “determinative” for Lee, based on
Lee’s “repeated[]” questioning of his attorney and on the testimony of Lee and Lee’s
attorney at an evidentiary hearing that Lee would have gone to trial if he had known
about the risk of 

. But Jae Lee did not say that a
petitioner must show that immigration consequences were his sole concern, or that he
had engaged in a “large” number of immigration-related discussions with counsel.
(What constitutes a “large” number of discussions the Government does not say,
though apparently it is more than the three with which the Government credits Doe.)
Rather, the Court asked whether the petitioner “has adequately demonstrated a
reasonable probability that he would have rejected the plea had he known that it would
lead to mandatory deportation.” Jae 

. Thus, Jae Lee did not alter the
standard this court set in Kovacs.

                                              13
      While the district court did not hold an evidentiary hearing on the petition,

Doe submitted a declaration stating that during an early conversation with his

counsel, Doe asked about his immigration situation and his attorney indicated

that cooperation and an ultimate plea of guilty should not lead to deportation.

Counsel told Doe “that it was not a violent crime, that [Doe] had a green card,

and that essentially [Doe] should ‘be okay.’” When reviewing the plea agreement

that Doe ultimately signed, Doe asked counsel about the listed penalty of

deportation—another sign that Doe was particularly concerned about

immigration consequences—but counsel “soft-peddled the warning in the

agreement as a possible penalty that was put in all agreements for people who

were not citizens.” The Government credited Doe’s statements below and does

not challenge them on appeal.

      Doe’s defense counsel also said in an earlier statement that he and Doe

were assured by the Government that they would do everything they could to

keep Doe in the United States, that the Government was aware of the extreme

danger Doe would face if he were sent back to his home country, and that

counsel and Doe relied on the representations the Government gave them at the



                                        14
time of Doe’s plea. These statements buttress Doe’s claim that he would not have

pleaded guilty had he known about the deportation consequences of doing so.

      Evidence regarding Doe’s background likewise backs up Doe’s later

assertions that he was focused on remaining in the country. His history in the

United States, his family circumstances, and his gainful employment all signal

Doe’s strong connection to, and desire to remain in, the United States. See Jae 

(finding it relevant that “Lee had lived in the United States for

nearly three decades, had established two businesses in Tennessee, and was the

only family member in the United States who could care for his elderly parents,”

and that “there is no indication that he had any ties to South Korea [as] he had

never returned there since leaving as a child”). The Government “has given no

persuasive reason to conclude that the likely grave immigration consequences of

his plea were not of great importance” to Doe. United States v. Gonzales, 

, 461 (2d Cir. 2018) (per curiam).

      While not contemporaneously documented, Doe’s statements regarding

what occurred at his plea hearing add to his claim. The Government attempts to

use the plea hearing against Doe: it points to Doe’s statements during the plea



                                          15
hearing to argue that he pleaded guilty after being warned of the immigration

consequences of his plea. The district court stated that Doe “was instructed that

his entry of a plea of guilty could result in his deportation given that the value of

              exceeded $10,000 and therefore constituted an aggravated felony.”

The latter part of this statement was clear error. The magistrate judge did ask

Doe, as part of a standard plea colloquy, if he understood that he “may be

deported as a result of this conviction.” Yet nowhere during the colloquy did the

court inform Doe that the crime to which he was pleading guilty constituted an

aggravated felony, or what the mandatory consequences of pleading to an

aggravated felony would be. And Doe indicated in a declaration that his attorney

misadvised him further in response to the judge’s question, emphasizing that the

judge said “may be” rather than “would be.” The Government does not

challenge Doe’s characterization of what occurred during the plea hearing. 4

       Given the evidence that Doe was quite concerned about remaining in the

country, it is clear that he would have preferred to negotiate a plea that did not




       The Government notes that there is no record that Doe’s counsel actually
       4

stopped the proceedings, as counsel did in Jae Lee. But Jae Lee did not state that actual
stoppage is required in order to show 

& n.4.

                                             16
trigger mandatory removal. Likewise, there is “a reasonable probability that the

prosecution would have accepted, and the court would have approved, a deal

that had no adverse effect on [his] immigration status.” 

.

The Government cited this language in Kovacs in explaining to the district court

why it believed Doe’s counsel’s mistaken advice had prejudiced Doe. Therefore,

in joining Doe’s motion, the Government implicitly admitted that a plea might

have been negotiated without mandatory immigration consequences. There is

also a reasonable probability that the court would have accepted a plea to a lesser

charge, since the court ultimately sentenced Doe to probation rather than prison.

      The entirety of the Government’s argument to the contrary on appeal is

that Doe does not cite any alternative charge that could have been brought. But it

was not necessary to bring a different charge. Doe pleaded to one count of

conspiracy




                                         17
                                 It was eminently possible to keep the loss amount

between         and $10,000 by charging Doe for a conspiracy that only

encompassed a few of his documented transactions.

       Moreover, while Doe did not point to another charge that could have

formed the basis of a plea, one clearly existed:




                                                                      There is a

reasonable probability that, had all parties been aware of the possibility of

mandatory deportation, the Government would have been willing to charge Doe

with       based on one or more specific transactions with a total loss amount

under $10,000—rather than the higher loss and restitution amounts actually

charged—in exchange for the cooperation that Doe promised in his plea deal.

Given Doe’s promised cooperation, as well as the Government’s assurances

during plea negotiations that it would do everything it could to prevent Doe’s

removal, there is a reasonable probability that the Government would have

accepted charging a lower loss amount.




                                         18
      There is also a reasonable probability that, had Doe known of the

mandatory removal provision, Doe would have litigated an available defense.

Doe asserts that he could have (and would have) tried the case or challenged the

loss figure had he known that a plea would lead to deportation. The Government

responds that the evidence against Doe was too “overwhelming” to go to trial,

and that Doe would have had no way to successfully challenge the loss amount.

But this is not entirely certain. There were ways for Doe to challenge both the

charges themselves and the loss amount. Doe provided some of the evidence

against himself during his proffer sessions, which Doe claims he would not have

undertaken had his attorney told him about the possibility of mandatory

deportation. Doe also might have contested intent, as he believed he had a good

argument that he did not know the purpose of the                                and

was just                                                                   .

      To contest the loss amount, Doe could have challenged the extent of his

involvement in the scheme and argued that he should be held liable only for the

losses he himself caused. See United States v. Studley, 

, 575 (2d Cir.

1995) (holding that “the fact that the defendant is aware of the scope of the



                                          19
overall operation is not enough to hold him accountable for the activities of the

whole operation,” and that the key question is “what role the defendant agreed

to play in the operation”). There was no indication in the complaint that Doe had

“suggested” the crimes that caused the loss. United States v. Germosen, 

, 130 (2d Cir. 1998). Therefore, Doe could have argued that “[h]e followed

instructions on                 potential customers but did not design or

develop the scam.” 

then have only been held responsible for the

transactions he himself made—and Doe had a possible basis to argue that these

transactions totaled less than $10,000. The criminal complaint stated that Doe and

                                       and that together they caused well over

$100,000 in losses; it did not state how much of the money went to Doe rather

than                  —information that could weigh on the nature or extent of

any conspiracy. Doe also claimed that a second person




                                                                      Thus, there

was a path available to Doe—albeit a narrow one—to challenge either the




                                         20
charges against him or the loss amount had he not cooperated under a mistaken

impression that he would be safe from removal.

      Moreover, the Supreme Court has clarified that “there is more to consider

than simply the likelihood of success at trial”; the inquiry focuses on the

defendant’s decision-making process, and “[t]he decision whether to plead guilty

also involves assessing the respective consequences of a conviction after trial and

by plea.” Jae 

. Here, even if Doe were likely to lose, it would

be far from irrational for Doe to litigate either the entire charge or the loss

amount, given his strong interest in remaining in the country. If Doe had fought

the charge in the information and lost, he would have had a Guidelines level of

  , exposing him to                                . His plea agreement left him at a

Guidelines level of    , for a                 Guidelines sentence. This difference

in risk is slight enough to pursue even a small possibility of an acquittal or a

successful challenge of the loss figure. See 

As Doe can show that he

had a reasonable probability either of negotiating a different plea or of going to

trial or litigating the loss amount, he has proven that his counsel’s immigration

misadvice was prejudicial. See 

(“[T]he question is not



                                          21
whether the defense would ultimately have been successful. Rather, the inquiry

is whether the defense was viable and sufficiently promising that [petitioner]

would have litigated the defense to avoid immigration consequences.”).

      B.     Sound Reasons for Delay

       To receive coram nobis relief, Doe must also show that he provided sound

reasons for his delay in seeking to vacate his conviction. The district court did

not determine whether Doe had justified his delay. However, we must do so to

resolve Doe’s claim. See 

. While “[n]o statute of limitations

governs the filing of a coram nobis petition,” 

must still show

“sound reasons” for the delay in bringing the petition, 

. To

decide whether sound reasons exist, the court must focus on “the circumstances

surrounding the petitioner’s failure to raise the issue earlier rather than the

government’s injury that resulted from the delay.” 

“The critical inquiry

. . . is whether the petitioner is able to show justifiable reasons for the delay.” 

provided sufficient reasons to justify his delay. He claims that his

handlers promised him that he would obtain citizenship or that they would get

his criminal case dismissed. The Government does not contest Doe’s contentions



                                           22
that his handlers dissuaded him from seeking to vacate his conviction. Instead, it

asserts that the timeline after Doe was denied citizenship in       is somewhat

vague, such that a court could plausibly conclude that he had not sufficiently

explained why he waited five more years before filing his petition. However, as

noted above, the district court did not actually decide the issue. Abuse-of-

discretion review, therefore, is inappropriate here.

      In any case, Doe’s declarations provide sufficient justification for his delay.

He states, and the Government does not dispute, that agents continued to tell

him after his failed citizenship application that they would be able to provide

him the relief he sought. Doe’s recollection of a      statement that his file was

“a 7 out of 10” and that he should “just hold on and it would be 10 out of 10” and

he would get the relief he wanted, further explains why Doe continued to rely on

his handlers rather than a coram nobis petition to address his immigration

problem.

      Nor is the timeline as vague as the Government suggests. Doe clearly

states that he decided to pursue a petition directly prior to hiring counsel in        ,

once he finally realized that his handlers could not, in fact, gain him citizenship.



                                          23
He then moved with diligence, pausing only to procure the original criminal

complaint. These facts clearly differentiate this case from those the Government

cites, in which petitioners provided either patently insufficient justifications or

no justifications at all. See, e.g., United States v. Sash, 374 F. App’x 198, 200 (2d Cir.

2010) (summary order); Jae Hyun Ahn v. United States, 96 F. App’x 43, 44 (2d Cir.

2004) (summary order); Rodriguez v. United States, No. 98 Cr. 00764 MHD, 

, at *10 (S.D.N.Y. Dec. 4, 2012). Nor does “the Government . . .

suggest any tactical reason [Doe] would have delayed pursuit of the writ” absent

continued discouragement from his handlers, 

—particularly

since the Government does not contest that Doe repeatedly discussed his desire

to vacate his conviction with the agents. We therefore conclude that Doe’s

petition was timely.

III.   Vacatur of the Plea and Transfer

       Having concluded that Doe has met his burden to receive coram nobis

relief, we must determine the scope of that relief. The plea for relief in Doe’s

petition asks only to vacate his conviction. However, both the petition itself and

the Government’s letter supporting the petition clearly contemplate vacatur of



                                            24
Doe’s guilty plea, as well. Both parties stated at oral argument that if we were to

grant Doe’s petition, we should also vacate Doe’s plea. We agree. We therefore

direct the district court to grant Doe’s coram nobis petition and vacate both his

conviction and his plea.

      Finally, because the district court denied Doe’s coram nobis petition, it did

not rule on the Government’s request to transfer Doe’s criminal case to the

                                 . However, both parties consented to this transfer

below and agree that such a transfer is the preferred outcome if the district

court’s judgment is reversed. Given that “the convenience of the parties, . . . in

the interest of justice,” clearly favors transfer, Fed. R. Crim. P. 21(b), and that the

parties have given their consent, we hereby direct the district court to transfer

Doe’s underlying criminal case to the                                     for further

proceedings.

                                    CONCLUSION

      As we reflect on the Government’s troubling changing positions in this

matter—after having once rightly concluded that Doe is entitled to relief—we are

reminded of then-Attorney General Robert F. Kennedy’s cautioning words: “It is,



                                           25
after all, not the Department of Prosecution but the Department of Justice . . . .

[T]he interest of the Government . . . is not that it shall win a case, but that justice

shall be done.” 5 For the foregoing reasons, the judgment below is REVERSED,

and the case is REMANDED to the district court with instructions to grant the

writ, vacate Doe’s plea and conviction, and transfer Doe’s criminal case to the

                                 .




      5
       Robert F. Kennedy, Att’y Gen., Address to the National Conference on Bail and
Criminal Justice 2 (May 29, 1964) (available in the John F. Kennedy Library).

                                           26