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625

Federal Rule of Criminal Procedure 11(e)

Federal Rule of Criminal Procedure 11(e) recognizes and codifies the concept of plea agreements. The plea agreement procedure, however, is not mandatory; a court is free to reject the parties' plea agreement. H.R. Rep. No. 94-247, 94th Cong., 1st Sess., 6 (1975). To the extent that a court permits plea agreements, Fed. R. Crim. P. 11(e) shall regulate such agreements. Fed. R. Crim. P. 11(e) recognizes the possibility that the attorney for the government and either the attorney for the defendant or the defendant pro se may enter into an agreement whereby the attorney for the government would do any of three listed options upon the defendant's entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense. Those three listed options of the attorney for the government, included in Fed. R. Crim. P. 11(e)(1)(A) to (C) are as follows: he/she may move for dismissal of other charges; he/she may make a recommendation or an agreement not to oppose the defendant's request for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or he/she may agree that a specific sentence is the appropriate disposition of the case. These options are not the only subjects that may be addressed in a plea agreement. For example, the prosecutor may agree not to bring a particular charge against the defendant or against a third party. Moreover, Fed. R. Crim. P. 11(e), though not explicitly stating so, does contemplate that the plea agreement may bind the defendant to do more than just plead guilty or nolo contendere. The plea agreement, for example, may also require that the defendant further cooperate with the prosecution in another case or in another investigation. H.R. Rep. No. 94-247, 94th Cong., 1st Sess., 6 (1975). The courts are forbidden under the Rule from participating in discussions looking toward plea agreements.

NOTE: On Wednesday, July 1, 1998, a panel of the United States Court of Appeals for the Tenth Circuit decided United States v. Singleton, No. 97-3178. In this decision, the court reversed the defendant's conviction based on a finding that the District of Kansas' plea agreement with a cooperator violated 18 U.S.C. § 201(c)(2) (the gratuity statute) and Kansas Rule of Professional Conduct 3.4(b), both of which prohibit offering unlawful inducements to a witness. This decision was vacated by the Tenth Circuit on its own motion on July 10, 1998, pending en banc rehearing of the case (oral argument is set for November 16-20). The Deputy Attorney General has issued a Memorandum providing guidance on this issue; a copy of the Memorandum is in the Criminal Resource Manual at 692. In addition, a copy of the Department's supplemental brief, which should be used as a model for responding to any motions or appeals raising this issue, is in the Criminal Resource Manual at 693.
If the parties reach a plea agreement, the court, under the mandate of Fed. R. Crim. P. 11(e)(2), shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time that the plea is offered. Although there must be a showing of good cause before the court conducts a disclosure proceeding in camera, Fed. R. Crim. P. 11(e)(2) does not address itself to whether the showing of good cause may be made in open court or in camera. That issue is probably left for the courts to solve on a case-by-case basis. H.R. Rep. No. 94-247, 94th Cong., 1st Sess., 6 (1975).

After the plea agreement has been disclosed, the court may either accept or reject it. If the court accepts the plea agreement, the court must inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.

If the court rejects the plea agreement, the court is mandated by Fed. R. Crim. P. 11(e)(4) to inform the parties of its rejection, on the record, and to advise the defendant either personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement. The court must then afford the defendant the opportunity to withdraw his/her plea, and also must advise the defendant that if he/she persists in his/her guilty plea or plea of nolo contendere, the court may dispose of the case less favorably than what was contemplated by the plea agreement. Again, as in the somewhat similar situation of Fed. R. Crim. P. 11(e)(2), Rule 11(e)(4) does not address itself to whether the showing of good cause is to be made in open court or in camera. As in the situation of Fed. R. Crim. P. 11(e)(2), the issue is better left for the courts to solve on a case-by-case basis. H.R. Rep. No. 94-247, 94th Cong., 1st Sess., 6 (1975).

The court must be notified, except when good cause has been shown, of a plea agreement's existence either at the arraignment or some other time, prior to trial, as may be fixed by the court. Fed. R. Crim. P. 11(e)(5). Even though the court accepts a guilty plea, it is prohibited under Fed. R. Crim. P. 11(f) from entering a judgment upon that plea unless it first makes a satisfactory inquiry that the plea has a factual basis. See United States v. Navedo, 516 F.2d 293 (2d Cir. 1975); United States v. Bethany, 489 F.2d 91 (5th Cir.1974). This does not, however, include a plea as to any forfeiture charged in the indictment (See Fed. R. Crim. P. 7), since such forfeiture is an aspect of the sentence, not the offense. See Libretti v. United States, 116 S. Ct. 356 (1995). Fed. R. Crim. P. 11(g) requires that a verbatim record be made of the proceedings at which the defendant enters a plea. In addition, if the plea is one of guilty or nolo contendere, the record must include, without any limitations, the following: the court's advice to the defendant; the inquiry into the voluntariness of the plea including any plea agreement; and the inquiry into the accuracy of a guilty plea.

Defendants may contend that Federal Rule of Criminal Procedure 11 applies to statements of intention by prosecutors not in the course of plea agreements. For example, a merely informative statement to defense counsel by the prosecutor (after learning of the defendant's intention to plead guilty to the charges) that the prosecutor does not intend to make any recommendation as to sentence may be alleged to be an agreement "not to oppose the defendant's request" within the meaning of Federal Rule of Criminal Procedure 11(e)(1)(B), even though the general practice in the district is one of non-allocution by the government. Attorneys, therefore, should not indiscriminately convey such information to defendants or their counsel outside the plea bargaining context and should be alert to the need to make an adequate record both to preserve traditional judicial discretion with respect to sentencing (unless the agreement is otherwise) and to prevent successful attacks upon judgments based upon guilty pleas.

[updated July 1998] [cited in USAM 9-16.001; USAM 9-16.300]