by David M. Reutter

The U.S. Court of Appeals for the Sixth Circuit ruled that a plea agreement, as written, does not provide the basis for the Government to withdraw consent to a lesser included, but not indicted, offense where the U.S. District Court for the Western District of Kentucky accepted the defendant’s guilty pleas but rejected the plea agreement.

Damone D. Bell was charged on August 15, 2018, in a two-count indictment with (1) distribution of a controlled substance that resulted in death and (2) possession with intent to distribute heroin and fentanyl. He entered into a written plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) on February 11, 2020, that provided he would “enter a voluntary plea of guilty to charges in this case, including a lesser included offense in Count 1.” The Government agreed to eliminate the mandatory sentence of 20 years that comes with such a charge and capped the maximum punishment at 40 years rather than life. The parties agreed “that a sentence of 168 months’ imprisonment . . . is the appropriate disposition of this case.”

The District Court accepted Bell’s guilty pleas but deferred sentencing until after it reviewed the presentence report. Following review of the report, the District Court found a “vast discrepancy” between the Guidelines that recommended 6 to 12 months imprisonment and the 168 months provided for in the plea agreement. The court rejected the plea agreement and advised Bell of his right to withdraw his guilty pleas in accordance with Rule 11. He declined the opportunity to withdraw his guilty pleas, and the court proceeded to sentence him to 36 month’s imprisonment.

The Government objected and request a trial be set in the case. The District Court denied the Government’s subsequent motion for reconsideration and to set the matter for trial.

The Government appealed, asking the Court to vacate Bell’s conviction on the lesser included, but not indicted, offense and remand for further proceedings on the greater charged offense, arguing that Bell couldn’t plead guilty to the lesser included offense without its consent under the plea agreement based upon (1) its prosecutorial authority in charging determinations and (2) language in the plea agreement.

The Court noted that it is “normally the exclusive province of the prosecutor” to agree to a reduced charge to secure a less severe range of sentencing possibilities for the defendant. United States v. Ammidown, 497 F.2d 615 (D.C. Cir. 1973). However, the Court point out that in this case “the government did consent to a plea to a lesser included offense.” It did not object until the District Court rejected the plea agreement seven months later, the Court stated.

The Government argued that its consent was contingent on the District Court accepting the plea agreement. The Court rejected that argument, stating that it runs counter to the Supreme Court’s decision in United States v. Hyde, 520 U.S. 670 (1997), in which the Supreme Court explained that Rule 11 contemplates the Government accepting a guilty plea to a lesser included offense prior to the District Court determining whether to accept the plea agreement.   

The Court then examined Rule 11, which (a) describes the types of pleas a defendant may enter, (b) details the prerequisites for accepting a plea, and (c) sets forth the process for accepting or rejecting plea agreements. Fed. R. Crim. P. 11(a)-(c); Hyde. Of particular relevance for the present case, when a District Court rejects a Rule 11(c)(1)(C) agreement, it must follow Rule 11(c)(5), which provides that the court do the following on the record and in open court: “(A) inform the parties that the court rejects the plea agreement; (B) advise the defendant personally that the court is not required to follow the plea agreement and give the defendant an opportunity to withdraw the plea; and (C) advise the defendant personally that if the plea is not withdrawn, the court may dispose of the case less favorably toward the defendant than the plea agreement contemplated.”

The Court stated that Rule 11(c)(5)(C) permits the defendant to withdraw or continue in the plea, not the prosecutor, explaining “the defendant retains final authority over the status of the guilty plea…. Rule 11 does not give the government the authority to withdraw its previously given consent for a defendant’s guilty plea to a lesser included offense.”

The Government next argued that the so-called “fail-safe” provision in the plea agreement serves as authority to withdraw its consent. That provision states: “If the Court refuses to accept this agreement and impose sentence in accordance with its terms, pursuant to Fed. R. Crim. P. 11(c)(1)(C), this Agreement will become null and void and neither party shall be bound thereto. The defendant will be allowed to withdraw the pleas of guilty. Similarly, the United States may pursue any and all charges supported by the facts and law and, upon conviction, pursue imposition of any sentence supported by the facts and law.”

The Court noted that courts utilize “traditional contract principles in interpreting and enforcing plea agreements.” United States v. Winans, 748 F.3d 268 (6th Cir. 2014). As such, ambiguities are “construed against the government, especially because the government can take steps in drafting a plea agreement to avoid imprecision.” Id.

After examining the provision, the Court declared it “does not create any rights beyond those provided in Criminal Rule 11.” The first sentence simply acknowledges that the District Court has the authority to reject the plea agreement and clarifies that neither party is bound to its commitments in such an event; the second sentence reiterates Bell’s right to withdraw under Rule 11; and the third sentence provides for the Government’s right to prosecute the case, according to the Court.

Importantly, the Court explained that the third sentence doesn’t unequivocally state that the Government’s consent to Bell’s plea is contingent on the District Court subsequently accepting the plea agreement. The Court further explained that this sentence allows the Government to pursue other charges that remain pending or continue prosecuting the defendant if he withdraws his plea. However, Bell pleaded guilty to all charges against him, and he didn’t withdraw his guilty pleas. Consequently, “there are no remaining charges for which the government may proceed to trial, and a subsequent reindictment for the greater included offense implicates double jeopardy concerns under the Fifth Amendment,” the Court stated. Thus, the Court concluded that neither the Government’s general prosecutorial authority nor the plea agreement itself can serve as the basis for reinstating the original charge because the District Court accepted Bell’s guilty pleas and entered final judgment.

Accordingly, the Court affirmed the District Court’s judgment. See: United States v. Bell, 37 F.4th 1190 (6th Cir. 2022). 

Editor’s note: Regular readers of CLN will note that this is yet another instance of the Government losing on appeal due to poor, imprecise, and/or sloppy drafting with respect to a plea agreement. As the Court points out, under general principles of contract law, ambiguities that are subject to multiple reasonable interpretations are interpreted against the party who drafted the agreement, i.e., with plea agreements, the Government. Even the most skilled corporate attorneys who specialize in drafting complex agreements inadvertently draft provisions that are ambiguous or imprecise. And generally, federal prosecutors who are drafting plea agreements aren’t specialists in contract law. The world is cluttered with poorly drafted agreements. Chances are, yours may be one of them. Read your plea agreement extremely carefully; there may be a lot to work with in there. Don’t assume that it’s unassailable simply because your lawyer reviewed it.

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