UNITED STATES оf America, Appellant, v. Jamal T. NORRIS, Appellee.
No. 04-2073.
United States Court of Appeals, Eighth Circuit.
April 23, 2007.
Rehearing and Rehearing En Banc Denied June 28, 2007.
482 F.3d 1045
Submitted: Sept. 27, 2006.
Before LOKEN, Chief Judge, BRIGHT, WOLLMAN, ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER and BENTON, Circuit Judges, en banc.
GRUENDER, Circuit Judge, with whom LOKEN, Chief Judge, WOLLMAN, ARNOLD, RILEY and SMITH, Circuit Judges, join.
The Government withdrew from a signed plea agreement with defendant Jamal T. Norris. Although the district court had not yet accepted Norris‘s plea of guilty, it granted Norris‘s motion for specific performance of the plea agreement. The Government appeals, arguing that because Norris‘s guilty plea was never accepted, Norris has no grounds upon which to enforce the plea agreement. For the reasons discussed below, we agree with the Government and reverse.
I. BACKGROUND
The Government‘s prosecution of Norris arose from an extensive investigation into the activities of the 51st Street Crips street gang in Kansas City, Missouri. The
The Government, represented by AUSA Candace Cole, and Norris concluded negotiations on the plea agreement at issue in this appeal on September 8, 2003. The plea agreement called for Norris to plead guilty to Count One (conspiracy) and Count Eight (forfeiture) in return for the Government‘s promise “not to file any additional charges or pursue additional forfeiture action against defendant arising out of the present offenses or investigation in the Western District of Missouri.” Under the agreement, Norris was expected to receive the mandatory minimum ten-year sentence.1 A change-of-plea hearing was scheduled for September 12.
On the afternoon before the plea hearing, AUSA Charles Ambrose, who was assigned to review all cases associated with the Crips investigation, received an e-mail noting Norris‘s scheduled plea hearing the following day. Ambrose reviewed the plea agreement and compared it to a recently prepared сomprehensive overview of gang activities uncovered during the investigation. He noted evidence that Norris was involved in a more significant criminal conspiracy in the two years prior to the April 2002 conduct listed in his indictment. Ambrose instructed AUSA Kate Mahoney, who was to represent the Government at the plea hearing the following morning in Cole‘s absence, to make clear on the record before the court accepted Norris‘s plea that the Government construed its agreement “not to file any additional charges ... arising out of the present offenses or investigation” to mean only that no additional charges would be filed for conduct occurring between April 1 and April 24, 2002, the time period of the actions alleged in the indictment. According to Mahoney, she decided not to discuss this interpretation with Norris‘s counsel prior to the next morning‘s plea hearing due to the lateness of the hour.
The plea agreement was executed by the parties on the morning of the change-of-plea hearing. At the hearing, the district court placed Norris under oath and began the standard inquiry into Norris‘s competencе to plead guilty. Norris stated that, at the time of the charged conduct, marijuana use had rendered him unable to understand that his actions violated the law. The district court voiced concern to Norris‘s counsel as to whether Norris would admit guilt to the offense. Norris stated “Yeah, I did it...” and equivocated briefly before stating that at the time he “knew it was against the law.” The plea hearing continued. After the district court had stepped through most of the requirements of
Norris was charged in a 20-count superseding indictment on October 9, 2003 with conspiracy to distribute marijuana, ecstasy and more than 50 grams of cocaine base, possession with intent to distribute these controlled substances and possession of firearms during and in furtherance оf drug trafficking offenses. Norris moved to compel specific performance of the previous plea agreement. The district court denied the motion on November 20, 2003, but, upon Norris‘s motion for reconsideration, granted the motion for specific performance on May 3, 2004. The district court, citing United States v. DeWitt, 366 F.3d 667 (8th Cir.2004), held that the Government was bound by the terms of the signed plea agreement. Consequently, the district court dismissed the superseding indictment because it was based upon conduct covered by the Government‘s promise in the plea agreement not to file any additional charges.2 The Government appeals, arguing that because Norris‘s guilty plea was never accepted by the district court, Norris has no grounds upon which to enforce the plea agreement.
II. DISCUSSION
We have jurisdiction over an appeal by the Government from an order dismissing an indictment under
As an initial matter, if the court accepts a defendant‘s guilty plea entered in reliance on a plea agreement or other promise that is then not honored by the Government, the defendant‘s due process rights are violated. Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); see also Santobello v. New York, 404 U.S. 257, 261-62, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). No detriment, and thus no due process violation, occurs until the guilty plea is accepted by the district court. Mabry, 467 U.S. at 507, 104 S.Ct. 2543 (“A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.“). In the instant case, the district court did not accept Norris‘s guilty plea. Therefore, specific performance of Norris‘s plea agreement is not available on due process grounds under Mabry.3
[T]he realization of whatever expectations the prosecutor and defendant have as a result of their bargain depends entirely on the approval of the trial court. Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court.
McGovern, 822 F.2d at 744 (quoting United States v. Ocanas, 628 F.2d 353, 358 (5th Cir.1980)); see also United States v. Wessels, 12 F.3d 746, 753 (8th Cir. 1993); United States v. Walker, 927 F.2d 389, 390 (8th Cir. 1991) (“Whatever benefits the parties intend to rеap as a result of this [plea] agreement are contingent entirely upon the approval of the trial court.“). We continue to recognize that this reasoning does not apply in “cases [that] either: (1) do not deal with plea agreements that required the court‘s acceptance under Rule 11,” such as agreements that promise immunity from prosecution in return for testimony or cooperation, “or (2) involve the breach of an agreement after the court has accepted the defendant‘s guilty plea.” McGovern, 822 F.2d at 745. Therefore, before the guilty plea is accepted, either party may withdraw from the plea agreement.4
The Government‘s right to withdraw from a plea agreement before it is accepted by the district court is qualified by the requirement that the Government gain no unfair advantage from the withdrawal in future proceedings against the defendant. Wessels, 12 F.3d at 753. For example, the Government may not make use at the defendant‘s subsequent trial of statements the defendant made during plea negotiations or in the course of cooperating with the Government under the terms of the plea agreement. Id. We have also stated that “[i]n an agreement that contemplates the defendant‘s pre-plea cooperation as well as his plea of guilty, the government must, unless and until the court rejects the plea, honor in good faith its obligations under the agreement.” McGovern, 822 F.2d at 744 (emphasis added).5
While such use of Norris‘s admission would almost certainly constitute an unfair advantage, the Government has averred before the district court, and again at oral argument before this Court, that it will not use Norris‘s plea colloquy statements against him in any proceeding for any purpose whatsoever. Moreover, because Norris has argued only that the Government may use its withdrawal at some point in the future to gain an unfair advantage, the proper time for this Court to rule on the issue is after the Government‘s proceedings against Norris are complete. In any future proceedings against Norris, the district court will be able, upon objection, to exclude any evidence that represents an attempt to take unfair advantage of the withdrawn plea agreement. If the Government obtains a conviction against Norris through the use of such evidence, Norris may present the issue of unfair advantage on direct appeal of that conviction. See Wessels, 12 F.3d at 753 (examining the Government‘s conduct in the defendant‘s subsequent trial to determine if the Government gained an unfair advantage over the defendant in withdrawing its consent to a plea agreement).6 Judge Melloy‘s dissenting opinion would hold that the plea agreement in this case is enforceable under general contract principles because Norris “fully performed” his duties under the plea agreemеnt.7 Judge Melloy‘s dis-
DeWitt and Young are not inconsistent with the general rule that the court must have accepted a guilty plea before the parties may be bound to an associated plea agreement. DeWitt applied general contract principles to interpret and enforce a plea agreement that had been accepted by the district court. 366 F.3d at 669-70. Because DeWitt “involve[d] the breach of an agreement after the court ha[d] accepted the defendant‘s guilty plea,” McGovern, 822 F.2d at 745, it is not relevant to our decision in the instant case.
The plea agreement in Young was enforced only to the extent that it specifically provided for pre-plea performance. In Young, the Government and defendant Young signed a plea agreement in which Young agreed to plead guilty in exchange for the Government‘s promise not to seek a particular sentencing enhancement and to enter into drug-quantity stipulations beneficial to Young. 223 F.3d at 907. As part of the plea agreement, the Government also agreed to support Young‘s release on bond pending his change-of-plea hearing in exchange for an affidavit from Young admitting the elements of the charged crime for use against him if hе absconded before the hearing. Id. The plea agreement stated that if Young breached the plea agreement, “all testimony and other information he has provided at any time to attorneys, employees or law enforcement officers of the government, to the court, or to the federal grand jury, may and will be used against him in any prosecution or proceeding.” Id. at 910. Young indeed absconded from pre-trial supervision the day before his scheduled plea hearing. After Young was re-captured,
Although Young was decided on the basis of the defendant‘s waiver of his rights under
III. CONCLUSION
We hold that a defendant generally has no right to specific performance of a plea agreement where the Government withdraws from the agreement before the defendant‘s associated guilty plea is accepted by the district court. We recognize exceptions to the general rule to the extent that the plea agreement specifically contemplates pre-plea performance or if the de-
COLLOTON, Circuit Judge, with whom MURPHY, Circuit Judge, joins, concurring in the judgment.
In his response to the petition for rehearing in this case, Jamal Norris stated that he “agrees with the Government that the issue in this case was whether the Government‘s withdrawal from what it terms an ‘executory’ plea agreement, prior to Norris’ entry of a guilty plea or its actual acceptance by the district court, violated the Due Process Clause.” I agree with Judge Gruender‘s opinion that the Due Process Clause provides no authority for ordering specific performance of the plea agreement signed by the parties on September 5, 2003. Because Norris‘s guilty plea was never accepted by the district court, the plea agreement standing alone was “a mere executory agreement,” which did not deprive Norris of “liberty or any other constitutionally protected interest.” Mabry v. Johnson, 467 U.S. 504, 507-08, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984).
Accepting that Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), extends to “cover the situation where the defendant has not yet entered the plea, but has relied on the bargain in such a way that a fair trial would no longer be possible,” Gov‘t of the Virgin Islands v. Scotland, 614 F.2d 360, 365 (3d Cir.1980), I also concur with the plurality that the government has gained no unfair advantage, “such as by the use at trial of statements made during the course of the plea negotiations.” United States v. Wessels, 12 F.3d 746, 753 (8th Cir. 1993). The district court may protect Norris‘s constitutional rights by prohibiting аny evidentiary use of statements made in the plea agreement or at the aborted plea hearing. Ante, at 1050; United States v. Coon, 805 F.2d 822, 825 (8th Cir. 1986); United States v. Kettering, 861 F.2d 675, 678-80 (11th Cir. 1988).
While Norris‘s constitutional claim fails for these reasons, the several opinions filed today raise the question whether there exists a non-constitutional rule of federal common law that creates for Norris a right to specific performance of the plea agreement. None of the opinions explains the potential source or scope of the court‘s authority to fashion common-law rules in this context. Whatever that authority may be, it may not be exercised to circumvent or conflict with the Federal Rules of Criminal Procedure, see Carlisle v. United States, 517 U.S. 416, 426, 116 S.Ct. 1460, 134 L.Ed.2d 613 (1996), and the suggestion of a common-law right to specific performance in this case must fail in light of
Cases like United States v. DeWitt, 366 F.3d 667, 669 (8th Cir. 2004), do apply an interstitial federal common law to provide for uniform federal interpretation of plea agreements that have been accepted by a district court. See United States v. Herrera, 928 F.2d 769, 773 (6th Cir. 1991). They do so, however, for the purpose of determining the meaning of those agreements in order to enforce the substantive rule of law established by the Constitution and Santobello. These decisions do not support the wholesale adoption of general contract principles to govern plea agreements in criminal cases.
The decision in United States v. Young, 223 F.3d 905 (8th Cir.2000), likewise does not support such a broad proposition. The issue presented in Young was whether the defendant knowingly and vоluntarily waived his rights to exclude evidence under
The parties in this case have not briefed whether there is a rule of federal common law (or constitutional law) that provides for specific enforcement of all agreements be-
For these reasons, I concur in the judgment reversing the order of the district court.
BRIGHT, Circuit Judge, dissenting.
I join Judge Bye and Judge Melloy in dissent.
I focus on the precise facts in this case, which, as Judge Bye states, raise a unique and troubling situation that has not previously come before this court. See Op. at 1056. Norris had performed his part of the plea agreement when the government voiced its reinterpretation of an essential term, effectively abandoning its promise to perform. See Op. at 1059-60. As Judge Melloy states, the Government gained an unfair advantage from Norris‘s admission of guilt during the
Accordingly, I agree with Judge Bye and Judge Melloy that, on the facts of this case, the government should be bound by its word and not allowed—without any good reason—to abandon its prior promise during the change-of-plea hearing.
Justice Oliver Wendell Holmes wrote, “Men must turn square corners when they deal with the Government.” Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 65 L.Ed. 188 (1920). I agree. But the government, particularly in criminal cases that threaten to deprive a defendant of his liberty, must also turn square corners when dealing with its citizens. In this case, the government‘s conduct was inexplicable and fell short of the fair treatment that is expected from a representative of the United States.
The government reneged on its word. That omission is chargeable to the United States Attorney‘s Office for the Western District of Missouri and threatens to make the word of that office not worth the paper on which it is written. Fortunately for the country, I do not believe that federal prosecutors in other districts are in the mold of the Western District of Missouri.
Whether in criminal or civil litigation, or otherwise in the practice of law, a lawyer‘s word ought to be his or her bond.
BYE, Circuit Judge, with whom BENTON, Circuit Judge, joins, dissenting.
I join in the result proposed by Judge Melloy‘s dissent. Norris‘s signed and nearly accepted plea agreement should be enforced. I write separately because I believe we should reach this result for a different reason, and I disagree with the size of the step Judge Melloy would have us take.
Judge Gruender‘s plurality opinion starts with Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), and notes Norris has not triggered a due process right to enforce his plea agreement, as it was not yet accepted by the district court. In Mabry, the Supreme Court established a bright line rule when it held: “A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court,
It is true we have previously used language which seemingly precludes a departure from the Mabry bright line rule, even outside of the habeas corpus context. See United States v. McGovern, 822 F.2d 739, 746 (8th Cir. 1987) (“[A] defendant is not justified in relying on the terms of the plea agreement until the judge approves it and accepts the guilty plea.“); United States v. Walker, 927 F.2d 389, 390 (8th Cir. 1991) (“Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it.“). As Judge Melloy makes clear, however, both McGovern and Walker are factually distinguishable from the present case. The district court in McGovern rejected the plea agreement. McGovern, 822 F.2d at 742. In contrast, in the instant case, there was absolutely no indication the district court would have rejected the plea. In fact, as the district court had already fulfilled most of its Rule 11 requirements before the government interrupted with its “clarification,” there is every indication the court would have acceрted the plea agreement. In Walker, the plea agreement had already been accepted by the district court, and the issue was whether the government had breached the agreement because the probation office acted contrary to its terms at the district court‘s direction. Walker, 927 F.2d at 390. We found the district court had essentially rejected the plea agreement when it directed the probation office to act contrary to its terms. Id. at 391. Again, in the instant case, the facts strongly suggest the district court would have accepted rather than rejected the plea agreement. More importantly, in Walker we held: “As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court.” Id. at 390 (emphasis added). This language does not present the bright line rule of Mabry. Our use of the phrase “general rule” leaves open the possibility of an exception. The instant case presents a prime situation in which to invoke such an exception.
We have never before been confronted by a situаtion like the one presented here—where the defendant and government have signed a plea agreement; the defendant has literally reached the last point in the proceedings before the court accepts his plea; the defendant has relied on the agreement such that he testified under oath about his guilt; and the court has shown every indication it will accept the plea. These facts, combined with the improper behavior of the government, justify a deviation from the general rule.
Judge Melloy‘s dissent circumvents Mabry by presenting another way to look at plea agreements—as simple contracts which become enforceable upon signing. Even in the face of United States v. Young, 223 F.3d 905 (8th Cir.2000), this presents an extension of our law. I am not prepared to take such a large step. Utilizing this analysis would undoubtedly broaden the enforcement of plea agreements. As soon as there is a signed plea agreement between the government and a defendant, this contract could be enforced and there would be no need for detrimental reliance. Drawing the line this early in the process
I agree with the plurality insofar as it reaffirms that a plea agreement is more than simply a contract. We have adopted language from the Fourth Circuit explicitly accepting that not only do federal plea agreements implicate individual constitutional rights, they actually implicate much more: “[W]ith respect to federal prosecutions, the courts’ concerns run even wider than protection of the defendant‘s individual constitutional rights—to concerns for the honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government.” United States v. Thompson, 403 F.3d 1037, 1039 (8th Cir.2005) (quoting United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986)) (internal citation and quotation marks omitted). In addition, as Judge Melloy reminds us, guilty pleas also сarry great significance—significance which triggers protection from the Due Process Clause of the Constitution. In this case and on these facts, we should keep these concerns about honor, justice, and fundamental fairness paramount in our minds and enforce the plea agreement. We should do so because Norris fulfilled his end of the bargain.
If it has not previously been established, determine whether the plea is being made pursuant to a plea agreement of any kind. If so, require disclosure of the terms of the agreement (or if the agreement is in writing, require that a copy be produced for your inspection and filing). See
Fed.R.Crim.P. 11(c)(2) .
Bankbook for U.S. District Court Judges § 2.01(B) (4th ed.2000). This is done even before the oath is administered to the defendant. Id. at § 2.01(C). Here, the agreement was not fully disclosed until after Norris completed most of the Rule 11 inquiry. Fixing the agreement‘s terms at the hearing‘s outset also implements the Rule‘s mandate that “[t]he court must not participate in these [plea agreement] discussions.”
In light of the foregoing, we must consider the timing of AUSA Mahoney‘s interjection. Here, the government, in attempting to “clarify” a provision in the plea agreement during the colloquy, impermissibly involved the district court in the negotiation process. Whether AUSA Mahoney was seeking the court‘s support in her interpretation of the provision is uncertain. Nevertheless, this court should not reward her behavior.
I am not accepting Judge Melloy‘s complete departure from the Mabry line of cases. Instead, I am advocating a narrow exception to this court‘s “general rule.” The line should be drawn, not at a defendant‘s signing of his plea agreement, but at his standing in court under oath and doing everything he promised to do under that agreement. My opinion would be very different had AUSA Ambrose or AUSA Mahoney chosen any time prior to the Rule 11 proceedings to inform Norris and his counsel of the government‘s new interpretation of the plea agreement. Because they waited until the end of the process during the Rule 11 proceedings and after Norris fulfilled his duties under the agreement, Norris deserves the benefit of his bargain. As such, I heartily agree with Judge Melloy‘s proposed result.
For the above reasons, I dissent.
MELLOY, Circuit Judge, with whom BRIGHT, Circuit Judge, joins, dissenting.
I believe that the Government has gained an unfair advantage by withdrawing from its plea agreement with Norris after he pleaded guilty under oath. Therefore, I respectfully dissent.
Initially, I must note that I am not persuaded by Judge Gruender‘s plurality opinion and Judge Colloton‘s concurrence in their attempts to circumvent what I find to be irreconcilable circuit law. Despite the language in United States v. McGovern, 822 F.2d 739, 744 (8th Cir. 1987), United States v. Walker, 927 F.2d 389, 390 (8th Cir. 1991), and United States v. Wessels, 12 F.3d 746, 753 (8th Cir. 1993), we have repeatedly said that “[p]lea agreements arе contractual in nature, and should be interpreted according to general contract principles.” United States v. DeWitt, 366 F.3d 667, 669 (8th Cir. 2004); see United States v. Young, 223 F.3d 905, 911 (8th Cir. 2000) (using contract interpretation to determine that “the government is entitled to the benefit of its bargain“). I recognize that the factual situations in DeWitt and Young differ from the facts in this case. However, I believe these cases stand for the proposition that plea agreements are contracts, and therefore should be governed as such.
In particular, I do not believe Young is as easily distinguishable as the opinions of Judge Gruender and Judge Colloton suggest. I read Young for the proposition that Young‘s withdrawal from the plea agreement itself (not any pre-plea agreement) was the triggering event, or breach, that allowed the Government to reap “the benefit of its bargain.” Young, 223 F.3d at 911. The court in Young made no mention of pre-plea agreements; in fact, the thrust of Young was whether the plea agreement as a whole was a valid agreement. Once the court determined that the plea agreement was valid, traditional contract principles applied, and Young‘s failure to follow through on his agreement to plead guilty resulted in a breach. The attempt to recоncile Young with the concept that either party may withdraw from a plea agreement prior to its acceptance by the district court is belied by the penultimate para-
We are satisfied that, when Young signed the plea agreement, he was aware of the benefits he was securing, the rights he was foregoing, and the consequences of breaching the agreement. We find no evidence that he entered into the agreement involuntarily or unknowingly. Thus, the government is entitled to the benefit of its bargain....
Id.
When comparing the situation in Young with the situation here, it is evident that Norris should also receive the benefit of his bargain. In the Young case, Young and the Government entered into a valid plea agreement. Young breached the plea agreement before the court accepted it. Because the Government was willing to perform, the court determined that the Government was entitled to the benefit of its bargain. Here, it was the Government that breached before the court accepted the agreement, and it was Norris who was willing to perform. If we were willing to abide by traditional contract principles in Young, we must apply those principles here, as well.
We do not have to decide the simple issue of whether Young applies when the roles are reversеd, however, because Norris went further than simply signing a plea agreement.12 At his change-of-plea hearing, Norris went to the podium, the court swore him in, and the court “address[ed][him] personally in open court.”
The plurality opinion makes broad statements based on both Supreme Court and Eighth Circuit law that plea agreements have no real meaning “unless and until the trial judge approves the bargain and accepts the guilty plea.” McGovern, 822 F.2d at 744. It points to no cases, however, in which the defendant has actually performed his part of the bargain. This is what makes the present case fundamentally different from Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), and any case we have decided, where one of the parties to the plea agreement withdrew prior to one party actually performing all that he promised to do in exchange for the other party‘s promise.
While I beliеve contract-law principles alone warrant specific performance of the agreement in this case, the fact that this is a contract between the Government and a criminal defendant regarding his liberty carries additional significance. We require more than just contract law protections in plea bargain cases in order to safeguard the defendant‘s constitutional rights. See United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996) (stating that a plea agreement “must be attended by constitutional safeguards to ensure a defendant receives the performance he [or she] is due“) (emphasis added). Because plea agreements, “necessarily implicate[] the integrity of the criminal justice system,” the Government must be held “to a greater degree of responsibility” during plea negotiations than the defendant. United States v. Wood, 378 F.3d 342, 348 (4th Cir. 2004) (citing, in part, McGovern, 822 F.2d at 743) (internal marks omitted).13
As a result of the unique setting for such agreements, the Government‘s breach has constitutional significance. Although I am willing to accept the proposition that the mere signing of a plea agreement does not carry constitutional import, I believe that the entry of a guilty plea by a defendant has independent constitutional ramifiсations. See Hall v. Luebbers, 341 F.3d 706, 716 (8th Cir. 2003) (“If the defendant has not pled guilty or the trial court has not accepted a plea and entered judgment, the defendant has not been deprived of his constitutional rights.“) (emphasis added). The entry of a guilty plea requires a court‘s involvement and it includes the waiver, under oath, of several important constitutional rights. It also strongly implicates the defendant‘s liberty interest. Once the court is involved and has accept-
As the Court stated in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), all of the benefits of plea bargaining “presuppose fairness in securing agreement between an accused and a prosecutor.” Id. at 261, 92 S.Ct. 495. While there is “no absolute right to have a guilty plea accepted” by the court, a defendant‘s plea “must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.” Id. at 261-62, 92 S.Ct. 495. According to the Court in Santobello, the plea bargaining phase
must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.
Id. at 262, 92 S.Ct. 495.
Norris‘s plea, which was tendered to the court, was based on the Government‘s promise that it would not “file any additional charges or pursue additional forfeiture action against defendant arising out of the present offenses or investigation.” Norris had seen the evidence the Government had against him for his acts in 2001, and he agreed to the Government‘s offer based on this information. Thus, according to Santobello and Mabry, the Government must now perform its end of the bargain. This proposition is particularly true under the facts of this case, where the Government attorneys knew at the time the agreement was signed that they did not intend to perform as promised, yet did not disclose that fact to the defendant, his attorney, or the court until after the Rule 11 procеeding was essentially complete.
Judge Gruender‘s plurality opinion holds that Norris cannot yet prove that the Government has gained an unfair advantage by its failure to meet its end of the bargain. It states that “the proper time for this Court to rule on the issue is after the Government‘s proceedings against Norris are complete.” The plurality admits that use of Norris‘s admission of guilt by the Government “would almost certainly constitute an unfair advantage,” and they are undoubtedly correct.14 However, the Government has already gained an advantage by convincing Norris to admit, in open court, his part in a conspiracy to distribute more than fifty grams of crack cocaine and provide factual details of his involvement. This information will inform every decision the Government and Norris now make:
Further, the plurality opinion‘s purported remedy of allowing Norris to appeal this issue in the future has very little practical effect. By the time Norris is “allowed” to argue unfair advantage, he will likely have already entered into a new plea agreement because he is now faced with a twenty-count indictment, far more prison time, and a significant amount of evidence against him. Not only will his next plea likely have a clause forbidding him from appealing under most circumstances, it will likely be held valid and binding by the future appellate court because it will have been entered into knowingly and voluntarily. See Mabry, 467 U.S. at 508-09, 104 S.Ct. 2543 (“It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired.“). The Court in Santobello did include as a possible remedy giving the defendant the chance to withdraw his guilty plea and enter into a new one; however, the Court assumed that the defendant in that case would “plead anew to the original charge.” Santobello, 404 U.S. at 263, 92 S.Ct. 495 n. 2. Whatever option Norris now chooses will place him in a worse position than he was before the Government withdrew its consent to the plea agreement. Because it waited to withdraw that consent until after Norris had fully performed, I believe the Government deprived Norris of his constitutional right to due process.
For the foregoing reasons, I part ways with the majority, and I would grant Norris‘s motion for specific performance of the plea agreement.
Notes
The plurality accepts the government‘s proposition that it may withdraw from a written signed plea agreement for any reason, or no reason at all, at any time prior to its acceptance by the district court. Assuming that to be true, as the plurality opinion holds, the credibility and good faith of the U.S. Attorney is seriously called into question when it exercises that discretion. It is hard to envision how such a loss of credibility by the U.S. Attorney enhances the integrity of the criminal justice system.