What Promises Can Federal Prosecutors Actually Make??

# What Promises Can Federal Prosecutors Actually Make? Federal Criminal Rule 11(c)(1)(A) allows federal prosecutors to promise to dismiss all pending charges or forgo any additional charges in exchange for a defendant’s guilty plea. It also allows prosecutors to agree to charge the defendant only with specific charges and at specific ranges.

Federal Criminal Rule 11(c)(1)(B) allows prosecutors to agree to recommend the sentence that the defendant proposes, or not to oppose the defendant’s proposed sentence.

Federal Criminal Rule 11(c)(1)(C) allows prosecutors and the defendant to agree to a particular sentence, a sentencing range, or a sentencing provision. With the defendant’s consent, the sentence can also be the one that the judge deems most appropriate.

Judges impose criminal sentences at federal courts, not federal prosecutors. Federal prosecutors can only propose a sentencing recommendation for the judge to approve. Similarly, the judge has the final word on the sentence in an agreed-upon sentence or range as well.

Federal prosecutors select the charges to be filed and propose the concessions they will offer; our lawyers’ requests to have a different charge filed, or to have a different concession offered, will never compel federal prosecutors to act.

Juries will determine guilt at federal criminal trials; federal prosecutors will only be able to propose guilty pleas, seek convictions, and prove guilt beyond a reasonable doubt.

The lawyers’ “80/20 rule” denotes the informal Pareto principle: that “80% of all one’s problems come from 20% of the circumstances,” rather than any principle of federal criminal procedure. ## Which Prosecutor Promises Bind the Sentencing Judge and Which Do Not? Federal Criminal Rule 11(c)(1)(B) provisions do not bind sentencing judges, and, as a result, rejecting a Rule 11(c)(1)(B) sentencing recommendation does not provide sufficient grounds for the defendant to withdraw his or her guilty plea. If the sentencing court accepts the terms of a Rule 11(c)(1)(C) plea agreement, it is bound to comply with them. The sentencing court is entitled to defer its decision to accept the terms of a Rule 11(c)(1)(C) plea agreement until it has the benefit of the presentence report.

As a result, if the sentencing court rejects the terms of a Rule 11(c)(1)(A) or (C) plea agreement, it must allow the defendant to withdraw his or her guilty plea. If the sentencing judge does not convict his or her defendant, it does not constitute a breach of the plea agreement if the sentencing judge did not agree to accept the prosecutor’s recommendation. The sentencing judge accepts the recommendation on the record, or he/she can defer the decision until after a full review of the presentence investigation report.

The sentencing judge may accept a recommendation because it is reasonable, and the sentencing judge may reject it as being unreasonable. In either case, the sentencing judge is only bound to render a verdict of guilt or innocence in order to not be deemed a bias towards or against the defendant, unless the sentencing judge finds evidence that the defendant is not guilty beyond a reasonable doubt or that the prosecution has breached its duty to the court and the defendant. The United States Supreme Court’s decision in United States v. Booker (2005) rendered the Federal Sentencing Guidelines advisory in nature rather than mandatory. Instead of using them as the exclusive tool for sentencing, judges are now required to consider a range of sentencing factors pursuant to 18 U.S.C. § 3553(a).

With that in mind, if the prosecutor and the defendant have negotiated a sentencing range, the sentencing judge can either: (i) respect the range, but consider the circumstances in the case; (ii) impose a sentence that does not fall within the range; or (iii) accept the range for all sentences, subject to his or her discretion. ## Can a Federal Prosecutor Promise Immunity So I am Never Charged? While prosecutors in many other types of cases can grant immunity, at the federal level, the ability to grant immunity is limited by statute, judicial orders, and the specific wording of the agreement. ### 1. Federal Statutory Immunity There are two types of federal statutory immunity: use immunity and transactional immunity. Unlike transactional immunity, which prohibits prosecuting the witness for any offense that may be disclosed during the compelled testimony, use immunity only protects the witness against the use of compelled testimony (and any evidence derived therefrom) in a criminal case against the witness.

Therefore, while statutory immunity protects a witness from having his or her own statements used against him or her, it does not protect a witness from prosecution in other cases, nor does it prevent prosecutors from using information developed through other sources to prosecute the witness. ### 2. 18 U.S.C. Section 6002 (Use Immunity) Pursuant to 18 U.S.C. Section 6002, a witness’s compelled testimony may not be used “directly or indirectly” against the witness in any criminal proceeding. This means that if the government obtains a witness’s compelled testimony by offering statutory immunity, then it may not prosecute the witness using that testimony or evidence obtained through that testimony.

That said, if the government can prove the witness’s guilt using evidence that is independent of the compelled testimony or evidence derived therefrom, then the witness remains subject to criminal prosecution. ### 3. Kastigar v. United States This rule was announced by the U.S. Supreme Court in Kastigar v. United States, a decision that placed the burden of proving independence in government’s hands. The Supreme Court established that, once statutory immunity is granted to a witness, any subsequently-obtained evidence used to prosecute the witness is presumed to be derived from the witness’s compelled testimony unless the government can demonstrate otherwise by a preponderance of the evidence. ### 4. 18 U.S.C. Section 6003 (Approval Requirement) Pursuant to 18 U.S.C. Section 6003, the U.S. Attorney for the district or the U.S. Attorney General must obtain approval from certain senior Justice Department officials before seeking to compel testimony from a witness who has been offered immunity or in order to pursue criminal charges against a witness who has been compelled to testify after an order of immunity. ### 5. Approval Authority The authorization to seek a court’s order granting immunity must come from:

• The U.S. Attorney General,
• The Deputy Attorney General,
• The Associate Attorney General, or,
• The Assistant Attorney General or the Deputy Assistant Attorney General, the latter of whom must be designated by an Assistant Attorney General to act in his or her stead. ### 6. Proffer Protection Agreements A proffer protection agreement grants the protections contained in the agreement itself; it does not grant immunity from prosecution, which is only possible by statute or judicial order. The extent to which a proffer protection agreement may offer protection against future prosecution depends on the agreement’s specific wording.

While most proffer protection agreements specifically prohibit the use of any participant’s statements as evidence in the government’s case-in-chief in any federal proceeding, they typically specifically allow the use of these statements for the purposes of impeachment or for establishing the criminal liability of a witness outside the scope of the agreement. ## Can Prosecutors Promise a Lower Sentence If I Cooperate Against Others? Under Federal Sentencing Guidelines Section 5K1.1, a court may depart from the guidelines if the government files a motion for a substantial-assistance departure. Section 5K1.1 specifically requires the government’s substantial-assistance motion; and, it is upon this motion that the judge may grant the departure.

A “substantial-assistance” departure refers to the court’s discretion to deviate from a sentencing range, and, it applies to a range of circumstances. As an example, Section 5K1.1 applies to a range of assistance including:

• Testifying before a grand jury, a criminal trial jury, or at sentencing, where the witness is compelled to testify after an order of immunity;
• Providing information to the government that allows it to convict a co-defendant, a defendant’s accomplice, a witness for the defense, or an unindicted individual; or,
• Identifying, apprehending, or which contributes to the conviction of a co-defendant, accomplice, or other individuals of criminal offenses. While a federal sentencing judge may consider a request from the government pursuant to Section 5K1.1, that section does not permit the judge to sentence a defendant below the statutory minimum for any crime that carries a mandatory minimum.

For example, if the statute carrying a mandatory minimum allows a sentence in a range of 5-10 years, a Section 5K1.1 substantial-assistance motion would allow the judge to impose a sentence of 5 years. However, the judge could not impose a sentence of 4 years unless the sentencing judge considers a government motion filed pursuant to 18 U.S.C. Section 3553(e). ### 1. 18 U.S.C. Section 3553(e) ( lapping a mandatory minimum sentence ) A sentence below a mandatory minimum is also a possibility in a federal criminal case, though not with ease. As noted above, in these circumstances, the judge cannot rely on Section 5K1.1, but must instead rely on a government motion filed pursuant to 18 U.S.C. Section 3553(e).

Pursuant to Section 3553(e), a judge may sentence a defendant below the mandatory minimum sentence when the government files a motion for the purpose. The reduction imposed by a judge can either reflect the defendant’s substantial assistance to the government, or include considerations such as those in § 3553(b)(1), as long as the government files a motion for the purpose. ### 2. Wade v. United States ( 1981 ) In Wade v. United States, 504 U.S. 181 (1992), the defendant alleged that he had a substantial-assistance agreement with federal prosecutors and that he cooperated in another defendant’s criminal case. However, the federal prosecutors did not file the promised substantial-assistance motions.

The U.S. Supreme Court acknowledged that, while a sentencing judge does not have the discretion to grant a substantial-assistance departure or a below-mandatory-minimum sentence without the government’s substantial-assistance motion, an appellate court could review the prosecutor’s refusal.

Although, the Supreme Court also described this opportunity for review as “an extraordinary remedy.”

The court held that, before a defendant is entitled to discovery or a hearing on the government’s refusal to file a substantial-assistance motion, he or she must make a substantial showing of bad faith, misconduct, or that the government’s decision to refuse is based on an unconstitutional motivation.

The Supreme Court indicated that, this alone will not justify judicial intervention in a prosecutor’s decision, but if a substantial showing is made, the district court may order discovery or an evidentiary hearing into the prosecutor’s motive for refusing. ### 3. Federal Criminal Rule 35(b) ( Reduction of Sentence ) A defendant sentenced to federal prison can receive a sentence reduction under Federal Criminal Rule 35(b). This rule allows the court to reduce a sentence to reward a defendant’s “substantial assistance,” although he/she could only do so with the approval of the government.

A sentence reduction under Rule 35(b) is only possible if the government files a motion. A sentencing judge who is contemplating a Rule 35(b) sentence reduction has the discretion to reduce the sentence, but a judge cannot grant a Rule 35(b) sentence reduction without a motion from the government. ## Is a Prosecutor’s or Agent’s Spoken Promise of Leniency Enforceable? ### 1. Oral Plea Agreements Generally, Federal Criminal Rule 11 requires the parties to a plea agreement to disclose it on the record before the defendant enters a guilty plea. However, Rule 11 does not require a written agreement to be in order. While the parties can meet with a judge to discuss an oral agreement’s terms, the Federal Criminal Rules do not prohibit the parties to an oral agreement to enter into a written contract for the purpose of making the agreement enforceable in federal court.

Although many federal criminal defendants enter into plea agreements and file them with the court, they are not strictly required to do so. Therefore, oral plea agreements are enforceable in the same way as other contracts, whenever the oral agreement’s terms can be clearly identified and authorized by the proper official. ### 2. Integration Clauses The integration clause in a written contract is the clause that establishes that the writing represents the final and only agreement between the parties. If a written plea agreement contains an integration clause, the plaintiff (the defendant who accepted the plea) will have more difficulty establishing that he/she entered into a separate oral agreement that supplemented the written plea agreement. ### 3. Investigating Agents’ Statements Generally, an investigating agent does not have authority to bind the government to anything other than his or her agent’s statements, so an agent cannot negotiate or enter into a binding contract on behalf of the government. Investigating agents usually work with federal prosecutors to communicate a case’s specific aspects to a prospective defendant, but this is done primarily for investigative purposes. The agent’s statements, including promises of leniency, will be unenforceable in light of the agent’s lack of actual authority.

Under the doctrine of apparent authority, a party who reasonably relies on apparent authority can make a party contractually bound to their oral or written agreements. For example, if a party does not know the agent has no authority, then that party may have grounds to argue that the agent has apparent authority.

However, this doctrine generally does not apply to federal law enforcement. With respect to the United States,apparent authority for an agent to bind the government to a plea concession must satisfy the federal requirement of “apparent authority established by federal legislation, administrative rule, or delegated authority.”

The Justice Manual, § 9-27.641, describes the federal government’s protocol for “global agreements” involving multiple districts. It specifically requires the agreement’s sponsors to meet with “the U.S. Attorney or Assistant U.S. Attorney designated to represent Justice Department concerns; and, if necessary, with representatives of each affected district or Justice Department division to obtain their approval.” ### 4. Frazier v. Cupp In Frazier v. Cupp, two defendants entered into plea agreements with the police. They agreed to plea in exchange for the promise that the police would only charge the defendant with two counts of a felony offense in one case and four counts of a felony offense in the other case. However, in both criminal cases, the prosecutor sought the maximum sentence against the defendants.

The defendants filed their first petition for writ of habeas corpus in the state courts, where they alleged the police officers had misrepresented the defendants’ criminal exposure. At this stage, however, the petition of Frazier was denied. Frazier’s petition was also denied by the U.S. Supreme Court in 1969.

In 1969, the U.S. Supreme Court held in Frazier v. Cupp, that the police’s deception did not contribute to Frazier’s pleading of guilt.

Under the state court’s analysis, the police’s statements, including the statements given under pressure of police interrogation, constitutes a factor that warrants consideration for the plea was not the result of a free and voluntary waiver. ## What Happens If a Federal Prosecutor Breaks a Plea Agreement Promise? The first key Supreme Court decision to address the issue of a prosecutor’s breach of a plea agreement was Santobello v. New York, which established that federal prosecutors are held accountable for their promises even when their promises were made as part of an informal plea agreement.

According to Santobello, once a defendant enters a guilty plea following a prosecutor’s unrecorded promise of sentencing leniency, the prosecutor’s promise becomes enforceable. When a prosecutor violates a plea agreement promise, he or she is accountable for the violation, and, this includes promising that the prosecutor would make no sentencing recommendation in a sentencing hearing.

In Santobello, the prosecutor violated the agreement’s terms by suggesting a sentence within the statutory sentencing range. As a result, the U.S. Supreme Court noted, the defendant could either (i) present the plea, and (ii) withdraw the guilty plea. It could also require “specific performance” of the promise.

With regard to prosecutors’ ignorance or negligence as a potential excuse for failing to honor a plea promise, the U.S. Supreme Court noted that it does not protect the government when a prosecutor fails to perform, even in a case where the ignorance of a replacement prosecutor leads to the breach of the plea agreement. ### U.S. Supreme Court Holding in United States v. Puckett ( 2010 ) Under Federal Criminal Rule 52(b), in appellate cases, defendants generally must object when an alleged plea breach occurs to preserve their right to appeal. If a defendant does not object, the issue is judged under the plain-error review process.

In United States v. Puckett, the U.S. Supreme Court heard the arguments of a defendant’s counsel who argued that the prosecutor breached his or her plea agreement with the client, though the defendant did not object to the violation on the record, and the trial judge overruled the objection.

The U.S. Supreme Court rejected the request for automatic reversal, and instead held that a court cannot reverse a trial judge’s guilty plea determination based on a defendant’s unsuccessful motion or a non-objection unless the violation constitutes plain-error.

Although the defendant alleged the violation was prejudicially made, the U.S. Supreme Court determined that it did not constitute plain error. However, it left the possibility that a defendant can establish that a prosecutor’s breach was’ prejudiced under the standard set by the Sixth Circuit. ## Can Federal Prosecutors Be Sued for Breaking Their Promises? Prosecutorial damages immunity is not absolute. In Imbler v. Pace, the U.S. Supreme Court held that prosecutors possess absolute immunity from civil liability for their decisions during trial advocacy. As a result, in federal cases, the scope of damages immunity applies to, among others:

• Preparing and prosecuting an indictment; and,
• Selecting and prosecuting specific criminal charges.

However, prosecutors are not eligible for damages immunity with respect to their conduct in an investigative or legislative capacity. Under these circumstances, prosecutors’ civil liability for damages is qualified. This means that unless the prosecutor’s investigative or legislative conduct violates clearly established federal law, the prosecutor is not liable for damages.

Although prosecution damages immunity exists, this is not the same as immunity from disciplinary action, appellate review, and appeal. While prosecutors generally cannot be sued for breaking their promises, it does not mean that a prosecutor’s promise is automatically not enforceable.

Defense lawyers can seek the appropriate remedy depending on the nature of the offense charged, which could range from seeking a suppression, dismissal, or acquittal to seeking sentencing mitigation, and more. Defense lawyers can also seek the court’s intervention or the appellate court’s intervention, depending on the circumstances of the case.

The Sixth Amendment guarantees the accused the right to effective counsel in all criminal proceedings. To the fullest extent possible, defense lawyers can help charged individuals who have either (i) a clear right to a remedy, or (ii) a reasonable argument that a remedy is available, depending on the circumstances in each criminal case.

Defense lawyers can provide advice and counsel. As a result, defense lawyers will do everything in their power to help their clients make the best decision possible when deciding their next steps.

We handle matters defending clients in criminal cases. Our lawyers are dedicated to helping all of our clients as much as possible, and, as a result, if you are being investigated by the federal government, do not hesitate to call to get legal help.

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