Plea Bargaining Federal Criminal Matters


Pleas -- Federal Rule of Criminal Procedure 11


A defendant has the right to plead guilty, not guilty, no contest, or, with the court’s consent, nolo contendere, which means that the defendant accepts the conviction through a guilty plea but does not admit guilt. If the defendant refuses to enter a plea or fails to appear, the court is obligated to enter a plea of either guilty or not guilty.


Under the Federal Rule of Criminal Procedure 11, a nolo contendere plea shall be accepted by the court only if it gives consent and only after it gives due consideration to the views of the involved parties and public interest in the effective administration of justice. If a defendant does not have a requisite understanding and that his or her plea is voluntary, the court has no authority to accept a plea of guilty or nolo contendere. The requirement under Rule 11 is that the court refrains from entering a judgment upon a guilty plea without determining whether or not there is a factual basis for the plea. In order for a court to accept a plea of guilty or nolo contendere, the court must address the defendant in open court and inform him or her of (and ensure that he or she understands):


  • The nature of the charges

  • The mandatory minimum penalty as described by law

  • The maximum possible penalty as described by law (including the effect of any sort of special parole)

  • The possibility of restitution paid to any victim of the offense


Defendants have a right to be represented by an attorney at every stage of the proceedings against him or her. Under Rule 11, the defendant must know they have a right to an attorney and if he or she is not represented by an attorney, one will be appointed for him or her. Additionally, Rule 11 grants a defendant the right to plead guilty, not guilty, or to persist in the plea that has already been made. Furthermore, the defendant has the right to be tried by a jury, the right to confront and cross-examine witnesses, and the right to take the fifth amendment (which prevents self-incrimination). If a defendant enters a plea of guilty or nolo contendere and it's accepted by the court, there is to be no further trial of any kind. This means that he or she is waiving his right to a trail. Under Rule 11, if a court intends to question a defendant under oath, on the record in the presence of his or her legal counsel about the charge in which he or she has pleaded, those answers may be used against him or her and he or she may be found guilty of perjury if those answers are found to be false.


Rule 11 also requires that a court not refuse a guilty, or nolo contendere plea without first addressing the defendant in open court to ensure that this plea has not been forced, coerced, a result of threats, or apart from a plea agreement. The court is also required to inquire whether the defendant's willingness to plead guilty or nolo contendere is a result of prior discussions between the Government’s attorney and the defendant’s attorney.


Plea Negotiations with Public Officials -- United States v. Richmond


In United States v. Richmond, the court questioned the propriety of using the plea bargaining process to negotiate the resignation from office as a Congressman. The Criminal Division concluded that this decision was incorrect on the merits. United States Attorney personnel are encouraged to consider voluntary offers of resignation from their position as a desirable feature in a plea agreement with appointed and elected public officials (of all levels of government).


United States v. Richmond involved a former congressman from the state of New York, who became the subject of federal investigation in 1982. In attempts to dispel his criminal liability, Congressman Richmond voluntarily agreed to resign from Congress and Plead guilty to federal tax, narcotics, and conflict of interest charges. After the Congressman resigned and withdrew his candidacy in the 1982 Congressional election, he entered a guilty plea. A month later at his sentencing, the judge announced that his resignation and withdrawal conditions of his plea agreement violated the separation of powers doctrine and infringed upon the constitutional right of the public to select Congressmen of their choosing.


Even though the Criminal Division considered the decision in the Richmond case to be incorrect on its merits, the unusual procedural and factual setting of the case ruled out a judicial review in the Second Circuit. Additionally, the Richmond case was troublesome in terms of the orderly and efficient discharge of the Justice Department’s responsibilities to protect the public from criminal abuse of public trust by high federal officials.


Federal Rule of Criminal Procedure 11(E)


Federal Rule of Criminal Procedure 11(e) recognizes and codifies the concept of a plea agreement. Plea agreement procedures are not mandatory, furthermore, courts are free to reject a parties’ plea agreement. If the court permits a plea agreement, Rule 11(e) would regulate such agreements and recognizes the possibility that that the Government's attorney and the defendant’s attorney (or the defendant) may enter into such an agreement where the attorney for the government would agree to the defendant’s guilty or nolo contendere plea for a lesser or related offense. In a plea agreement situation, the attorney acting on behalf of the government has three choices:

  1. To move for the dismissal of other charges

  2. To make a recommendation or an agreement not to oppose the defendant’s request for a particular sentence (understanding that the court is not bound to uphold this recommendation)

  3. To agree that a specific sentence is an appropriate disposition in a case


In addition, the prosecutor may agree to refrain from bringing a particular charge against the defendant against a third party.


Example -- On Wednesday, July 1, 1998 a panel of the United States Court of Appeals for the Tenth Circuit decided a particular case where the court reversed the defendant’s conviction based on a finding that the plea agreement with a cooperator in the District of Kansas violated the Gratuity Statute and the Kansas Rule of Professional Conduct. Both of these statutes prohibited offering unlawful inducements to a witness. However, just nine days later, on July 10, 1998, this decision was vacated by the Tenth Circuit on its own motion.



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