Meddling with Plea Agreements—4th and 10th Circuit Courts of Appeal

Two recent cases address what happens when either a judge or the government meddle with a defendant’s plea agreement.

In the 4th Circuit, the Court of Appeals ruled in U.S. v. Bradley, No. 02-4390 (4th Cir. 2006),^[1] that the district judge impermissibly encouraged the defendants to plead guilty, which means that the judgment is vacated and the case remanded for further proceedings, with a different judge.^[2] Over the period of several months, Tavon Bradley, Solomon Jones, and Eric Bennett negotiated with the government to come to a plea agreement in a drug conspiracy prosecution; a plea agreement, however, never materialized and the defendants proceeded to trial.^[3]

On the third day of trial, before the jury entered the courtroom, the judge dismissed the Government and addressed the Defendants and their counsel directly.^[4] The judge stated that he wanted to “make sure that [the defendants] fully understand what is going on here,” and proceeded to point out that, in the judge’s view, a witness’s testimony on the first day of trial “demonstrated that the Government’s predictions during its opening statement about the strength of the evidence against the Defendants ‘were right on.’”^[5] He also stated, “in all candor,” that the defendants “may be better off pleading to the indictment.”^[6] He then said that he would dismiss the jury early for lunch to give the government and the defendants “a chance to see whether this rather unusual hearing might result in a termination of these proceedings,” and that doing so was “very dangerous” because if the proceedings are not terminated, there is the risk that the Court’s actions could be regarded as “inappropriate, and, in some form or fashion, coercive.”^[7] The trial continued, however, with the judge periodically asking the defendants if they really wanted to continue.^[8]

The 4th Circuit Court of Appeals, however, points out that Rule 11 of the Federal Rules of Criminal Procedure “governs guilty pleas and clearly prohibits a court from participating in plea negotiations.”^[9] As Fed. R. Crim. P. 11(c)(1) states, “The court must not participate in these discussions.”^[10] The government conceded that the district court “repeatedly violated Rule 11’s prohibition on judicial participation in plea negotiations, that this participation was error, and that the error was plain.”^[11] However, the Government argued that the error did not affect the defendant’s substantial rights, but the Circuit Court stated that “there is a ‘reasonable probability’ that the Defendants would not have pleaded guilty in the midst of trial without the district court’s criticizing their decision to reject plea offers from the Government, repeatedly questioning their reasons for proceeding with the trial and advising them to plead to the indictment.”^[12]

In the 10th Circuit, the Court of Appeals ruled in U.S. v. Scott, No. 05-6082 (10th Cir. 2006),^[13] that the government breached the terms of a plea agreement, which means that the case must remanded for resentencing. Kelvin B. Scott, Jr. appealed his sentence based on the argument that the government breached the plea agreement when it filed “Government’s Motion for Upward Departure and Sentencing Memorandum,” which asserted that the especially vulnerable victim enhancement should be applied.^[14] The plea agreement stated that the “’positions the [parties] expect to take at sentencing with respect to the United States Sentencing Guidelines will include’ that: (1) the offense occurred before April 30, 2003; (2) the offense involved a commercial sex act and the use of coercion; (3) the victim’s age was between 12 and 16 years; and (4) the defendant should receive a 2 level downward adjustment for acceptance of responsibility.”^[15] Mr. Scott argued that those terms “clearly implied that the government would not argue for other sentence enhancing factors.”^[16] The Court agreed.

While it is true that the government reserved the right to take other positions in the event new facts developed, that is not what happened in this case.^[17] The government argued in favor of the enhancements based on things “the district judge had suggested sua sponte,”^[18]

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[1] United States v. Bradley, No. 02-4390 (4th Cir. 2006).
[2] Id. at 18.
[3] Id. at 3-4.
[4] Id. at 4.
[5] Id.
[6] Id. at 5.
[7] Id. at 6.
[8] Id. at 6-9.
[9] Id. at 9.
[10] Id. (emphasis in original).
[11] Id. at 13.
[12] Id. at 16.
[13] United States v. Scott, No. 05-6082 (10th Cir. 2006).
[14] Id. at 6.
[15] Id. at 5.
[16] Id. (emphasis in original).
[17] Id. at 6.
[18] Id.