You Can Make Them Fix That Breach! Really Fix It

August 21, 2012
By Hanging Out with Carl Gunn


  • The government can’t mouth its recommendation but then undercut it with other arguments.
  • The remedy for government breach of a plea agreement, if the defendant wants it, is specific performance.
  • The defendant is also entitled to transfer to a different judge who isn’t tainted by the breach.


A few weeks back, a plea agreement breach issue came up in our office here, and it triggered a couple of thoughts for blogs on plea agreements and plea bargaining. Today, I wanted to point out some good Ninth Circuit case law on the remedy for breach of a plea agreement. First, though, keep in mind a few principles regarding the interpretation of plea agreements. One general principle is that plea agreements are construed using general contract law principles. United States v. Partida-Parra, 859 F.2d 629, 633 (9th Cir. 1988). But there are limits on this general principle because, first, “the defendant’s underlying ‘contract’ right is constitutionally based and therefore reflects concerns that differ fundamentally from and run wider than those of commercial contract law,” and, second, there is an additional concern “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. Harvey, 791 F.2d 294, 300 (4th Cir. 1986) (quoting United States v. Carter, 454 F.2d 426, 428 (4th Cir. 1972)), quoted with approval in United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000).

There are some principles more specific to plea agreements to keep in mind as well. One is that plea agreements are strictly construed against the government and any ambiguity in an agreement is resolved against the government (sort of like adhesion contracts in civil law). E.g., United States v. Anderson, 970 F.2d 602, 607 (9th Cir. 1992), amended, 990 F.2d 1163 (9th Cir. 1993). A second principle, which is unfavorable, is that a government promise to make a particular recommendation doesn’t require the recommendation to be made enthusiastically.United States v. Benchimol, 471 U.S. 453, 455 (1985). On the other hand, the government can’t say or do things that affirmatively undercut its recommendation. See, e.g.,United States v. Grandinetti, 564 F.2d 723, 725, 727 (5th Cir. 1977) (finding breach where prosecutor indicated he had “very serious problems with” recommendation but agreed that “based on [the plea agreement] the government is locked-in”); United States v. Brown, 500 F.2d 375, 377-78 (4th Cir. 1974) (finding breach where prosecutor did make agreed-upon recommendation but when asked by court whether “you believe in it,” replied, “I do have some problems with that, anyhow, but that is the way I understand it”). Both Grandinetti and Brown were cited with approval in United States v. Benchimol, 738 F.2d 1001 (9th Cir. 1984), rev’d, 471 U.S. 453 (1985), and while the Supreme Court reversed in Benchimol, it expressly distinguished rather than reversed Grandinetti and Brown, see Benchimol, 471 U.S. at 456.

One good Ninth Circuit case is United States v. Johnson, 187 F.3d 1129 (9th Cir. 1999), in which the prosecutor agreed to recommend the low end of the guideline range, but then introduced a victim impact statement from another case that, inter alia, described the defendant as a “monster.” Id. at 1135. The court concluded that there was “no way to view the introduction of [the] statement other than as an attempt by the prosecutor to influence the court to give a higher sentence than the prosecutor’s recommendation” and that “[b]y introducing [the] statement solely for the purpose of influencing the district court to sentence [the defendant] more harshly, the prosecutor breached the government’s agreement to recommend the low end of the guideline range.” Id. See also United States v. Whitney, 673 F.3d 965, 970-71 (9th Cir. 2012) (holding statements emphasizing seriousness of defendant’s prior record were breach of agreement to make low end recommendation and rejecting argument that statements were necessary to assure court did not give sentence below guideline range); United States v. Mondragon, 228 F.3d 978, 980-81 (9th Cir. 2000) (holding comments about seriousness of defendant’s criminal history made in response to defense attorney’s characterization was breach of agreement to make no sentence recommendation).

But what I wanted to focus on more in this post is the good case law on the remedy for a government breach. One obvious remedy is to allow the defendant to withdraw the plea, but that may be just what the government wants your client to do and just what you and your client don’t want if you negotiated a good deal. As several circuits, including the Ninth, have recognized, “vacat[ing] a plea over the defendant’s objection on breach by the prosecution allows the government to back out of its agreement at will.” United States v. Villa-Vazquez, 536 F.3d 1189, 1202 (10th Cir. 2008) (quoting United States v. Kurkculer, 918 F.2d 295, 302 (1st Cir. 1990)). See also United States v. Partida-Parra, 859 F.2d at 635 (noting that remedy of withdrawal of plea “would, in effect, allow the government, any time it might have second thoughts about a plea bargain, to breach the agreement . . . , thereby ‘restoring’ the defendant’s ‘right to trial’ on those charges.”). Fortunately, there’s a well-established line of Ninth Circuit case law out there that holds that the remedy for breach of a plea agreement – if the defendant wants that remedy – is specific performance. United States v. Fagan, 996 F.2d 1009, 1013 (9th Cir. 1993); Partida-Parra, 859 F.2d at 633. See also Santobello v. New York, 404 U.S. 257, 262 (1971) (promise made to induce plea “must be fulfilled”). In other words, the government can be required to withdraw its breaching sentencing memorandum or argument and substitute one that complies with the plea agreement.

One might well ask how much good this will do when the judge has already been tainted by the breach and knows the government is filing its new sentencing memorandum or making its new argument only because it is required to and doesn’t really mean what it’s saying now. But here’s where the Ninth Circuit case law is really helpful. The cases hold that the defendant is entitled not only to specific performance but also transfer to a different judge who hasn’t been tainted by the breach. See, e.g., United States v. Whitney, 673 F.3d at 976;United States v. Franco-Lopez, 312 F.3d 984, 994 (9th Cir. 2002); United States v. Camarillo-Tello, 236 F.3d 1024, 1028 (9th Cir. 2001); United States v. Mondragon, 228 F.3d at 981;United States v. Johnson, 187 F.3d at 1135. See also Santobello, 404 U.S. at 262-63. In other words, you get specific performance in front of a new judge who hasn’t been tainted by the government’s initial breaching sentencing memorandum or argument.

Keep all this in mind if you’re dealing with a back-peddling prosecutor. First, don’t let him undercut his argument – either explicitly or by arguing things that implicitly undercut it. Second, assuming you and your client want to keep your deal, (1) demand that the prosecutor cure the breach by withdrawing the impermissible argument, and (2) unless there’s a particular reason you want the judge you already got, ask for a different judge who hasn’t been tainted.