Plea AgreementsFederal Rule of Criminal Procedure 11(e)
Federal Rule of Criminal Procedure 11(e) recognizes and
codifies the concept of plea agreements. Plea agreements should
honestly reflect the totality and seriousness of the defendant's
conduct, and any departure to which the prosecutor is agreeing, and
must be accomplished through appropriate Sentencing Guideline
provisions. See USAM 9-27.400.
The Department's policy is to stipulate only to facts that
accurately represent the defendant's conduct. See
USAM 9-27.430. In addition, in
accordance with USAM 9-27.630,
United States Attorneys may not make agreements which prejudice
civil or tax liability without the express agreement of all
affected Divisions and/or agencies. For additional discussion
regarding plea agreements, see the Principles of Federal
Prosecution, USAM 9-27.400 et
seq. See the Crimi nal Resource Manual at
625 for additional discussion of the law relating to plea
Plea Agreements and Restitution
The Antiterrorism and Effective Death Penalty Act of 1996,
specifically Title II, Subtitle A, the Mandatory Victims
Restitution Act ("the Act"), amended restitution laws and, by
altering 18 U.S.C. § 3663 et seq., strengthened
enforcement. On July 24, 1996, in response to a Congressional
directive in the Act, the Attorney General issued a memorandum to
all Department of Justice Attorneys and Victim-Witness Coordinators
that addressed, among other things, plea agreements and
restitution. The following language was taken from that memorandum
and Article V of the Attorney General Guidelines for Victim and
Witness Assistance 2000:|
Section 209 of the Act mandates that when negotiating plea
agreements, prosecutors must give consideration to "requesting that
the defendant provide full restitution to all victims of all
charges contained in the indictment or information, without regard
to the count to which the defendant actually plead[s]." In addition
to this mandate, the following general guidelines summarize the
responsibilities of prosecutors with regard to plea agreements that
include provisions regarding restitution:
First, 18 U.S.C. § 3663A mandates that restitution be
ordered for crimes of violence, for offenses against property under
the criminal code (unless the court makes a special finding
described in subsection (c)(3) of that section), and for offenses
described in 18 U.S.C. § 1365, if an identifiable victim
or victims suffered a physical injury or pecuniary loss. There are
also several other previously enacted statutes that mandate
restitution: 18 U.S.C. § 2248; 18 U.S.C.
§ 2259; 18 U.S.C. § 2264; and 18 U.S.C.
§ 2327. In cases that fall under these statutes, the
court is obligated to impose a restitution order.
Second, even when restitution is not mandatory, federal
prosecutors should give careful consideration to seeking full
restitution to all victims of all charges contained in the
indictment or information as part of any plea agreement.
Third, when an indictment contains both charges for which
restitution is mandatory, and charges for which restitution is not
mandatory, prosecutors should give careful consideration to
requiring either a plea to a mandatory restitution charge, or an
acknowledgement by the defendant in the plea agreement that a
mandatory restitution charge gave rise to the plea agreement, which
acknowledgement will trigger the mandatory restitution provisions
of 18 U.S.C. § 3663A. 18 U.S.C.
Fourth, prosecutors should also be mindful that the United
States Sentencing Guidelines (USSG) generally require the
imposition of restitution when it is authorized by the law, and
should not enter into agreements regarding restitution that would
violate the Sentencing Guidelines. See USSG § 5E1.1;
Fifth, supervisory attorneys who approve plea agreements, as is
required by the Principles of Federal Prosecution (
USAM 9-27.450), should ensure that
plea agreements comply with the law and these guidelines. The
Principles of Federal Prosecution list the factors that should be
considered when determining whether to enter into a plea agreement.
These factors include, among other factors, the effect the plea
agreement will have upon a victim's right to restitution.
[updated November 2000]
Criminal Resource Manual 1977;
Plea Agreements, Deferred Prosecution Agreements, Non-Prosecution
Agreements and "Extraordinary Restitution"
Plea agreements, deferred prosecution agreements and non-prosecution
agreements should not include terms requiring the defendant to pay funds to
a charitable, educational, community, or other organization or individual
that is not a victim of the criminal activity or is not providing services
to redress the harm caused by the defendant's criminal conduct.|
Such payments have sometimes been referred to as "extraordinary
restitution." This is a misnomer, however, as restitution is intended to
restore the victim's losses caused by the criminal conduct, not to provide
funds to an unrelated third party.
Apart from the limited circumstances described below, this practice is
restricted because it can create actual or perceived conflicts of interest
and/or other ethical issues.
This section does not, of course, restrict a defendant's own decision,
outside the context of a plea agreement, deferred prosecution agreement or a
non-prosecution agreement, to unilaterally pay monies to a charitable,
educational, community, or other organization or individual, and then to
request leniency from the judge at sentencing based upon such action.
This section also does not restrict "community restitution" payments
made pursuant to 18 U.S.C. § 3663(c). That section provides
guidance for such payments where the defendant is convicted under 21 U.S.C.
§ 841, § 848(a), § 849, § 856,
§ 861 or § 863. Among other factors, that section
requires the absence of identifiable victims, as well as a nexus between the
payment and the offense.
Neither does this section restrict the use of community service
provisions in plea agreements, deferred prosecution agreements or
non-prosecution agreements resolving environmental matters. United States
Attorneys' Offices contemplating such community service in a matter
involving environmental crimes shall consult with the Environmental Crimes
Section of the Environmental and Natural Resources Division, which has
issued guidance to ensure that the community service requirements are
narrowly tailored to the facts of the case. The guidance also requires that
any funds paid by a defendant as community service be directed to an entity
in which the prosecutors have no interest that could give rise to a conflict
and that is legally authorized to receive funds. See
[updated February 2010]
[cited in USAM 5-11.115
Plea Agreements and Sentencing Appeal Waivers
Some districts incorporate waivers of sentencing appeal rights
and post-conviction rights into plea agreements. The use of these
waivers in appropriate cases can be helpful in reducing the burden
of appellate and collateral litigation involving sentencing issues.
See the Criminal Resource Manual at 626
for a more extensive discussion of the law on this issue.
Inadmissibility of PleasFederal Rule of Criminal Procedure
See the Criminal Resource
Manual at 627.
Identifying Uncharged Third-Parties During Plea and Sentencing
In the absence of some significant justification, it is
generally not appropriate for a United States Attorney to identify
(either by name or unnecessarily-specific description), or cause a
defendant to identify, a third-party wrongdoer unless that party
has been officially charged with the misconduct at issue. See
[new August 2002]