They Don’t Get to Decide on Their Own that You Breached; It’s Up to the Judge

November 5, 2013
By Hanging Out with Carl Gunn


  • The government can’t unilaterally decide you or your client has breached a plea agreement; it has to seek a ruling from the court.
  • The defense is entitled to an evidentiary hearing on the question if there are disputed facts.
  • The defense breach has to be “substantial,” or “material”; a mere technical, de minimus breach isn’t enough.


In the midst of working on a breach of plea agreement appeal this week, it came to my mind to share some case law I came across in some other research a year or so ago that adds an additional point to remember about plea agreement case law. Sometimes you’ll have a case where the government will claim your client or you breached the plea agreement and that they’re therefore relieved from their obligations under the agreement. So when can the government use your client’s or your conduct to back out of the deal?

It turns out there’s some very good case law holding that the government can’t just unilaterally decide for itself that the defendant has breached and then go on its merry way claiming that the agreement is now void and that it, the government, isn’t bound anymore. The cases have held that “[a] court must determine breach, with an evidentiary hearing if there are disputed issues of fact.” United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988) (emphasis added) (citing United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981)). As put another way in the Calabrese case which was cited inPackwood, “[t]he question of a defendant’s breach is not an issue to be finally determined unilaterally by the government.”Calabrese, 645 F.2d at 1390.

Calabrese is not just some outlier case, moreover. It has been followed by multiple other circuits, see United States v. Williams, 510 F.3d 416, 424 (3d Cir. 2007); United States v. Lezine, 166 F.3d 895, 901 (7th Cir. 1999); United States v. Brown, 801 F.2d 352, 355 (8th Cir. 1986); see also United States v. Castaneda, 162 F.3d 832, 836 (5th Cir. 1998) (stating same rule but citing other authority); United States v. Simmons, 537 F.2d 1260, 1261-62 (4th Cir. 1976), cited in Calabrese, 645 F.2d at 1390, and it remains good law,see United States v. Cudjoe, 534 F.3d 1349, 1354-55 (10th Cir. 2008) (quoting and followingCalabrese); United States v. Guzman, 318 F.3d 1191, 1196 (10th Cir. 2003) (same). As reiterated in the more recent Guzmancase:

“[I]f the pleadings reveal a factual dispute on the issue of breach [of the plea agreement], the district court must hold a hearing to resolve the factual issues.” United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981). In other words, the government may not unilaterally declare a breach of a plea agreement; the court must hold a hearing and make a finding that the defendant breached the agreement before the government is released from its obligations under the agreement. Id.; (additional citation omitted).

Guzman, 318 F.3d at 1196. One reason for these procedural protections is that “[p]lea agreements implicate important due process rights, . . . and so the process must be fair.” Packwood, 848 F.2d at 1011.

There’s also some nice case law stating that the defendant’s breach has to be more than a de minimus, technical violation of the agreement. The breach must be “substantial,” United States v. Lezine, 166 F.3d at 901 (quoting United States v. Ataya, 864 F.2d 1324, 1330 (7th Cir. 1988)), or “material,” United States v. Castaneda, 162 F.3d at 836. Query whether a client who technically violates his plea agreement by violating some bond condition when the plea agreement requires him to comply with all conditions of his bond has commited a “substantial” or “material” breach where the real crux of the agreement is the plea and an agreement on some sentence or set of guideline provisions.

Keep these requirements in mind if the prosecutor starts talking about your client having breached and threatening to back out of the agreement. First, the breach has to be substantial or material and you may be able to argue about that. Second, you have a right to say to the prosecutor: “Prove it. Let’s go in front of the judge for a hearing.” Third, you have a right to say to the judge: “I want a hearing.” You may or may not want that, but keep it in mind as an option in the right case. How many prosecutors and/or judges are going to want to open up a can of worms they don’t need to open up, especially if it’s something that’s just not that important?