Tips for negotiating with the prosecutor.

By Barry Boss

Excerpted from Federal Criminal Practice

Plea negotiations should only be conducted after discussing the matter with your client and assessing the strength or weakness of the government’s evidence, available defenses and risk of conviction after trial. For advising your client on choosing a plea, see Chapter 12, §§12:4 and 12:5.

The Process

§13:17      Initiation

The process may be initiated by you or the prosecutor. When you initiate the process, call the prosecutor and request a meeting at a future date. This will allow the prosecutor time to review the file and calculate the sentencing guidelines in advance of the meeting.

Practice Tip

Learn Government’s Opinions re Case

During the course of plea negotiations, you will likely obtain informal discovery about the government’s case and learn how the prosecutor believes the advisory sentencing guidelines will apply to your client in the event of a guilty plea or conviction after trial.

§13:18      Prepare to Meet With Prosecutor

Calculate the advisory sentencing guidelines in advance.

Know how they apply to your case. Guidelines that are questionable may be the subject of negotiations with the prosecutor. Review published Department of Justice policy on plea bargaining and plea agreements: Department of Justice Manual, §9-27.001 et seq. (2007 Supp.) (Principles of Federal Prosecution); Memorandum of John Ashcroft dated September 22, 2003 [see Form 13J]; Memorandum of James B. Comey, January 28, 2005 [see Form 13K]. The district court or court of appeals law library will have a copy of the DOJ Manual and you can also access it via the Internet:

http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/27mcrm.htm#9-27.001.

Learn the policies of the local United States Attorney’s Office from local practitioners and the Federal Public or Community Defender Office in your district.

§13:19      Negotiate All Terms

The prosecutor must obtain approval of a plea agreement from his supervisors. Thus, to the extent possible, discuss and agree on all terms of the plea agreement with the prosecutor before the prosecutor circulates the agreement to his superiors for approval. Once an agreement has been approved, it is difficult and time consuming to change or add terms because you and the prosecutor overlooked a point during negotiations.

§13:20      Prosecutor’s Guiding Principle

While Department of Justice policy has long been that plea agreements “should reflect adherence to the sentencing guidelines” [Attorney General Memorandum to Department of Justice Manual, §9-27.000, October 12, 1993], the current Administration has adopted rigid guidelines designed to reduce an individual prosecutor’s discretion to engage in bargaining over the charges to which the defendant will plead guilty or the applicable sentencing guidelines. See §13:8. The guiding principles are that the prosecutor must generally charge and pursue all charges that are determined to be readily provable and that, under the applicable statutes and Sentencing Guidelines, would yield the most substantial sentence. See Attorney General Memorandum, September 22, 2003 [Form 13J]; James B. Comey Memorandum, January 28, 2005 [Form 13K]. But see §13.8 with regard to the limited exceptions to this policy. As set forth in the Comey Memorandum, post-Booker, prosecutors must continue seeking sentences within the Guidelines range.

§13:21      Court Participation

The judge is prohibited from engaging in plea negotiations with the attorneys or the defendant. FRCrP 11(c)(1). This prohibition is directed at the plea bargaining process, not the process by which the parties, after having reached a plea agreement, present the agreement to the judge in open court, as required FRCrP 11(c)(2). United States v. Jeter, 315 F.3d 455, 449 (5th Cir. 2002) (before parties have concluded plea agreement and disclosed final agreement, judge must refrain from all forms of plea discussions). Thus, the judge’s involvement in the plea bargaining process is limited to the court’s inquiry on the record at the time of the guilty plea. See §§12:92 et seq. The prohibition on judge involvement serves three purposes: “It minimizes the risk that the defendant will be judicially coerced into pleading guilty, it preserves the impartiality of the court, and it avoids any appearance of impropriety.” United States v. Cano-Varela, 497 F.3d 1122, 1132 (10th Cir. 2007) (citation omitted); see also United States v. Baker, 489 F.3d 366, 370 (D.C. Cir. 2007). The prohibition does not apply once the parties have reached an agreement, even if the agreement is not formal and binding. Id.(noting that this position appears to be uniform among the Courts of Appeals).

The defendant is not required to object at the district court level to the court’s participation in plea discussions in order to raise the issue on appeal, provided that an adequate record was developed in the district court. United States v. Markin, 263 F.3d 491, 496-97 (6th Cir. 2001) (record revealed that defendant entered into plea agreement and changed his plea well before problematic interchange with district court judge); United States v. Telemaque, 244 F.3d 1247, 1248 (11th Cir. 2001) (trial transcript reflected colloquy); United States v. Bradley, 455 F.3d 453, 463-65 (4th Cir. 2006) (finding plain error where trial court interjected itself repeatedly in plea negotiations and defendants pled guilty two weeks into the trial); United States v. Baker, 489 F.3d 366, (D.C. Cir. 2007) (finding plain error where trial court told defendant about a sentence it had imposed in a prior case and that the court would be “consistent,” that the prior defendant had pled early, and encouraging the parties to “talk again” to see if they could resolve the case); United States v. Cano-Varela, 497 F.3d at 1128 (10th Cir. 2007) (finding plain error where court crossed the line when it told the defendant that if he did not plead guilty, he would “be doing at least ten years in a federal penitentiary,” and that a sentence after trial would be “a harsh one”). When a record is not made in the district court, the defendant often will have to resort to a petition for a hearing, pursuant to 28 U.S.C. §2255 (habeas corpus), which permits him to develop facts outside of the existing record.

Appellate Review

The court’s participation in plea discussions is usually reviewed for plain error, under FRCrP 52(b), because the defendant does not raise a contemporaneous objection. United States v. Markin, 263 F.3d 491, 496-97 (6th Cir. 2001) (participating prior to entry of the plea would clearly violate the rule, and even participation after entry of the plea in sentencing negotiations raises “troubling” issues); United States v. Telemaque, 244 F.3d 1247, 1248 (11th Cir. 2001) (reviewing the court’s participation in negotiations for plain error); United States v. Bradley, 455 F.3d 453, 463-65 (4th Cir. 2006) (finding plain error). In Baker, the D.C. Circuit questioned whether plain error was the appropriate standard but assumed without deciding that plain error applied in that particular case. Baker, 489 F.3d at 373.

When the court of appeals reverses a conviction because of improper participation of the judge, the court will remand the case with instructions that it be assigned to another judge. See, e.g., United States v. Rodriguez, 197 F.3d 156, 160-61 (5th Cir. 1999); United States v. Bradley, 455 F.3d 453, 465 (4th Cir. Jul 25, 2006); United States v. Cano-Varela, 497 F.3d at 1134 (10th Cir. 2007).

B.  Statements During Plea Discussions

1.   Admissibility

§13:22      Inadmissible Statements

The government may not introduce against the defendant in any civil or criminal proceeding evidence of [FRE 410; FRCrP 11(f)]:

  • A withdrawn guilty plea.
  • Statements made in the course of proceedings under FRCrP 11 where the plea was later withdrawn.
  • Any oral or written statement made by counsel for the defendant or the defendant during plea discussions with an attorney for the government, if the discussions do not result in a guilty plea or result in a guilty plea the defendant later withdraws.

Formerly, Rule 11(e)(6) provided the same protection as FRE 410. In 2002, Rule 11(e)(6) was replaced by Rule 11(f), which simply incorporated the terms of Rule 410. This rule change should not result in any substantive change in the law, since Rule 11(e)(6) and Rule 410 were “substantively identical.” United States v. Rebbe, 314 F.3d 402, 405-06 (9th Cir. 2002).

§13:23      Definition of “Plea Discussions”

Not every discussion between an accused and an official of the government is a plea negotiation. There is a two-pronged test to determine whether the court should characterize statements made during the discussion as inadmissible plea negotiations [United States v. Sayakhom, 186 F.3d 928, 935-36 (9th Cir. 1999)]:

  • Defendant had an actual subjective expectation that the parties would negotiate a plea at the time of the discussions; and
  • The expectation was reasonable under the totality of objective circumstances

Practice Tip

Statements Made During Debriefings Usually Not Considered “Plea Discussions”

In many instances, prior to entering into a cooperation plea agreement [§13:5], the government will require that your client be “debriefed” by government agents. The government usually requires your client to sign a stock agreement that provides some limited protection to your client, but explicitly provides that the debriefing session is not “plea negotiations,” and that any information provided by your client can be used against him under certain scenarios (e.g., if the client testifies as a witness and contradicts his statements in the debriefing). See, e.g., United States v. Burch, 156 F.3d 1315, 1320 (D.C. Cir. 1998) (holding that waiver was valid and that statements from debriefing could be used during government’s case-in-chief in light of provisions in withdrawn plea agreement). For a sample cooperation plea agreement, see Form 13E.

§13:24      Statements to Probation Officer

Federal Rule of Evidence 410 does not expressly address whether statements made by the defendant to a probation officer after a guilty plea are excludable. Commentators consider such statements to be “made in the course of any proceedings under [FRCrP 11].” Christopher B. Mueller and Laird C. Kirkpatrick, 2 Federal Evidence §147 (Lawyers Cooperative Publishing 1994). There is little case authority on the issue. See United States v. Perez-Franco, 873 F.2d 455, 460-61 (1st Cir. 1989) (FRE 410 would appear to offer defendant no automatic protection from self-incriminating statements to probation officer) (dictum)). However, the protection against use of a withdrawn guilty plea itself would not mean much if statements made to a probation officer during a mandatory presentence investigation [U.S.S.G. §6A1.1, p.s.] were admissible. Probation officers have, however, on occasion, attempted to use a defendant’s admissions to expand the scope of “relevant conduct” under the sentencing guidelines. See, e.g., United States v. Raposa, 84 F.3d 502, 505-06 (1st Cir. 1996) (finding that exclusionary rule did not prohibit use of defendant’s statement at sentencing where defendant voluntary admitted “relevant conduct” to the probation officer). See §15:95.

§13:25      Statements to Law Enforcement Officers

The per se ban against the use of statements made by the defendant during plea negotiations does not apply to confrontations between the defendant and law enforcement officers. United States v. Smith, 2001 WL 523371, *5 (D. Kan. Apr. 26, 2001); see Advisory Committee Note, 1979 Amendment to FRCrP 11(e) (statements to law enforcement officers not covered by per se rule of former FRCrP 11(e)(6) (now FRCrP 11(f)), but must be resolved by body of case law dealing with police interrogations). See, e.g., Rachlin v. United States, 723 F.2d 1373, 1377-78 (8th Cir. 1983) (defendant’s statements to Secret Service agents, in hope of leniency, not involuntary as coerced by promise of leniency). However, statements made to a law enforcement officer acting with the express authority of an attorney for the government are not admissible. United States v. Grant, 622 F.2d 308, 313 (8th Cir. 1980).

Practice Tip

Always Negotiate with Government Attorney

To avoid problems over the admissibility of statements, do not engage in discussions with investigating agents in the absence of an attorney for the government. Alternatively, obtain ­written confirmation from the prosecutor that discussions with investigating agents are considered plea negotiations.

2.   Use

§13:26      New Indictment or Evidence

There is presently competing authority on whether evidence indirectly derived from statements made during plea negotiations falls within the protections of FRCrP 11(f) (incorporating FRE 410 and generally rendering plea negotiations inadmissible). The District of Columbia Circuit has interpreted the evidentiary protection broadly and provided defendants with Kastigar protection [Kastigar v. United States, 406 U.S. 441 (1972) (providing protection against indirect use of immunized statements)] for any statements made or leads derived from plea negotiations. United States v. Hylton, 294 F.3d 130, 134 (D.C. Cir. 2002) (defendant’s statements during debriefing with prosecutor, which were not subject to a specific debriefing agreement, could not be used to induce plea from third party who then became a witness against defendant). However, the Eighth and Eleventh Circuits and a district court in the Second Circuit have held that the “plea negotiations” doctrine does not bar indirect use of statements against the defendant. See United States v. Fronk, 173 F.R.D. 59, 61 (W.D.N.Y. 1997) (following United States v. Ware, 890 F.2d 1008, 1012 (8th Cir. 1989) and United States v. Cusack, 827 F.2d 696, 698 (11th Cir. 1987), and holding that “fruits” of plea negotiations statements are not inadmissible).

§13:27      Impeachment

Federal Rule of Evidence 410 prohibits the prosecutor from using statements made during plea negotiations to impeach inconsistent testimony given by defendant at a subsequent trial, unless defendant knowingly and voluntarily waives the protection. United States v. Rebbe, 314 F.3d 402, 405-06 (9th Cir. 2002) (citing United States v. Mezzanatto, 513 U.S.196, 200-03 (1995)).

§13:28      Subsequent Perjury Prosecution

In a subsequent trial for perjury arising from defendant’s inconsistent trial testimony, the court will admit statements made during plea negotiations under oath, on the record, and in the presence of counsel. FRE 410.

§13:29      Fairness

A party may introduce a plea or statement if, in fairness, it is needed to balance against a statement made a part of the same plea or plea discussion that the government or defendant has already introduced. FRE 410. The extent to which a statement may be admissible in the first instance or to balance a portion of the statement already admitted will usually be addressed through a motion in limine.

C.  Agreement

§13:30      Contents

The contents of a plea agreement are determined by:

  • The facts of the case.
  • Policies of the Department of Justice and local U.S. Attorney’s Office.
  • Sentencing guidelines.
  • Negotiation.

Agreements vary from district to district and prosecutor to prosecutor. For sample provisions, see the forms at the end of this chapter. Although government prosecutors often use form agreements, they exercise discretion in modifying the form to fit the case. The prosecutor usually drafts the agreement. Defense counsel will have an opportunity to review the agreement before it is signed. Counsel’s ability to make meaningful or substantive changes to the agreement will vary from case to case and prosecutor to prosecutor.

Practice Tip

Ask to Review Draft of Agreement

Ask the prosecutor to furnish you with a draft of the plea agreement before she submits it to her superiors for approval. You can more easily negotiate changes before the prosecutor’s supervisors have approved the agreement.

§13:31      Objectives

In negotiating a plea agreement, the goal is to reach an agreement that benefits your client and that will be accepted by the district court. In determining whether to accept a plea agreement, the district court will consider ­policy statements promulgated by the Sentencing Commission. Policy statements instruct the district court to, among other things, refuse to accept a plea agreement that (1) provides for departure from the applicable guideline range, unless the departure is made for justifiable reasons [U.S.S.G. §6B1.2(b)(c), p.s.], or (2) provides for dismissal of charges or an agreement not to pursue potential charges unless the remaining charges adequately reflect the seriousness of defendant’s actual offense behavior [U.S.S.G. §6B1.2, p.s.]. For binding nature of policy statements, see §13:52 and Chapter 15, §15:29; for sentence bargains, see §§13:50 et seq.; for charge bargains, see §§13:43 et seq. These policy statements limiting the trial judge’s discretion to accept certain plea agreements, particularly ones which involve a recommended or agreed-upon sentence outside of the applicable guideline range, cannot apply with full force post-Booker because they rest on the premise that the sentencing guidelines are mandatory, rather than advisory. Indeed, it is unclear what continuing force §6B1.2 has after Booker, and one would have expected the Sentencing Commission to promulgate amendments by now.

Avoid allowing your client to enter a guilty plea and go through the presentence investigation report process required by FRCrP 32(c) [Chapter 15, §§15:85 et seq.], only to learn that the district court will not accept the agreement and impose a sentence greater than the one the agreement contemplates. Even though your client has the right to withdraw a guilty plea when the court rejects an agreement which provides for a specific sentence [FRCrP 11(d)(2)(A)], going to trial will now be more difficult because the prosecutor has learned information from the presentence report about your client and the alleged offense, even if the prosecutor is prohibited from using that information directly against the defendant. Before entering into the agreement, try to obtain information about your specific judge and, in particular, whether he or she has a policy of accepting or not accepting certain types of agreements, and whether the judge has a reputation for rejecting plea agreements reached by the parties.

§13:32      Waiving Right to Appeal Sentence

Normally, both the defendant and the government may appeal sentences [18 U.S.C. §3742]:

  • Imposed in violation of law.
  • Resulting from an incorrect application of the guidelines.
  • Departing from the guidelines.

After Booker, courts of appeals review sentencing decisions for unreasonableness. Booker, 543U.S.at 264-65.

However, in the plea agreement, the prosecutor may seek to limit the defendant’s right to directly appeal and collaterally attack a sentence. Waivers may also be more specific and limited, for example, only to waiver of appeal of any sentence imposed outside of the otherwise applicable guideline range.

Prior to the Supreme Court’s holding in Booker, the requirement that the defendant must waive his or her right to appeal had become much more pervasive in the government’s stock plea agreements. Since Booker, however, the government seems to have backed off from insisting reflexively on blanket appellate waivers, although these are still sought in a number of jurisdictions. The apparent decrease in seeking these blanket waivers of appeal may be due to the fact that Justice Breyer noted that the existence of appeals is one feature of the remaining system that renders the revised sentencing landscape consistent with the stated Congressional objectives of honesty, uniformity and proportionality in sentencing. Booker, 543 U.S.at 264. Indeed, some United States Attorneys’ offices are seeking waivers which permit a defense appeal only when the district court “unreasonably departs upward” from the applicable guidelines range.

For the most part, the courts have enforced such waivers, if the waiver is found to be knowing and voluntary. United States v. Andis, 333 F.3d 886, 893, (8th Cir. 2003) (noting that every circuit to have considered this issue has reached the conclusion that at least some form of appeal waiver is permissible, assuming it is entered into knowingly and voluntarily and that it will not result in a miscarriage of justice); United States v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001) (the sin qua non of a valid waiver is that the defendant enter into the agreement knowingly and voluntarily); United States v. Teeter, 247 F.3d 14, 25-26 (1st Cir. 2000) (upholding presentence waivers of appellate rights except where a “miscarriage of justice” occurs); United States v. Bibler, 483 F.3d 1010 (9th Cir. 2007) (waiver will not apply where: 1) guilty plea fails to comply with Rule 11; 2) sentencing judge informs defendant of a right to appeal; 3) sentence does not comport with terms of plea agreement; or 4) sentence violates the law); but see Federal Judge Not Taking Plea Deals, Charlotte Observer, July 19, 2003, available at www.charlotte.com/mid/charlotte/news/6338065.html (reporting that Graham Mullen, Chief District Judge in the Western District of North Carolina, has issued an order calling plea agreements requiring the waiver of a defendant’s appellate rights unconscionable and announcing his refusal to accept any such plea agreements in the future). At the entry of the plea, the court should question your client about his understanding of the waiver. For the court’s colloquy with the defendant on entry of a guilty plea, see Chapter 12, §§12:72 et seq.

Where the defendant waives the right to appeal as part of the plea bargain, defense counsel may still have an obligation to file an appeal when requested to do so by the defendant. See Campusano v. United States, 442 F.3d 770, 776 (2d Cir. Mar. 23, 2006) (failing to file notice of appeal constituted per se ineffective assistance of counsel); but see Nunez v. United States, 495 F.3d 544 (7th Cir. Jul 31, 2007) (questioning whether the Sixth Amendment actually requires an appeal under these circumstances). In the event of an appeal taken despite a signed appellate waiver, the courts generally hold that that the appellate court maintains subject matter jurisdiction over the appeal. See United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. Apr. 26, 2007) (joining the Sixth, Seventh and Tenth circuits and holding court retains subject matter jurisdiction).

Caution

Carefully Consider Appeal Waiver

Consider carefully the consequences of allowing your client to waive the right to appeal a sentence. Depending on the waiver language, a knowing and voluntary waiver may prevent your client from appealing an “unreasonable” sentence. See waiver language in the sample agreement [Form 13A] at the end of this Chapter. Where the waiver permits an appeal when the district court “unreasonably departs upward” from the guideline range, seek revision of the language so that the waiver permits not only an appeal from an upward departure under the Guidelines but also from any unreasonable sentence based on an application of the §3553(a) factors. Where there is likely to be a legal issue at sentencing, consider whether your client is better off pleading to the information or indictment without a plea agreement. On the other hand, given the current pressure on judges to issue Guideline sentences and the developing appellate case law which makes reversal much more likely for a below Guidelines sentence than for a sentence within or above the applicable Guideline range, an appellate waiver by both the government and the defense may prove advantageous to defendants. Where the defense has a strong argument for a downward departure under the Guidelines or a Booker variance, an appellate waiver by the government may cause a sentencing judge to consider the request more favorably given that there is no risk of being embarrassed in the court of appeals. This is a somewhat risky strategy given the possibility that you will not be able to challenge a sentence above the advisory Guideline range. However, in the appropriate case, where the mitigating factors truly predominate and where you know the history and practices of your sentencing judge, it may be a risk worth taking.

 


Barry Boss is a member of Cozen O’Connor and the managing partner of the Washington DCoffice.  He concentrates his practice in complex criminal matters, focusing on white-collar crime.  Mr. Boss served as Assistant Federal Public Defender in Washington DC between 1995 and 2000.  He is the former co-chair of the U.S. Sentencing Commission’s Practitioners Advisory Group.  He is an adjunct professor at the George Washington University Law School, and has been a featured speaker at seminars around the country including the annual federal sentencing guidelines conference co-sponsored by the U.S. Sentencing Commission.  He is the author of Federal Criminal Practice, from which this article is excerpted.