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Unlocking the Locked Plea Agreement

Fundamental fairness is the common thread woven into all parts of the criminal justice system. Due process is required in all stages of a criminal prosecution, and its importance in plea bargaining should not be minimized.   Because most criminal cases are resolved through plea bargaining, the means by which plea agreements are put together must be carefully considered by the trial court. To assure fundamental fairness of the bargaining process, it is essential for trial courts to ensure that plea agreements, and ultimately guilty pleas, are knowingly, voluntarily and intelligently (“KVI”) entered by defendants. This then should lead the zealous appellate attorney to scrutinize carefully what are commonly called by the federal district courts “locked plea agreements,” (sometimes called “tied plea agreements,” or “package deal agreements”).  Sometimes the lock should be picked to release the defendant from a coerced plea agreement.

“As their name suggests, package deal plea bargains exist where the government accepts a defendant’s guilty plea on the condition that his co-defendant(s) also plead guilty.” United States v. Hodge, 412 F.3d 479 (2005).  “The incentive to join such arrangements is straightforward: the government offers defendants a volume discount- a better deal than each could have gotten separately.” Id. citing United States v. Caro, 997 F.2d 657, 658 (9th Cir. 1992).  “Of course, the benefits of such deals are seldom distributed evenly, and every defendant may not be equally interested in bargain shopping.  Familial or fraternal coercion of putative confederates in package plea deals is a serious concern.” Id. citing United States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990). 

In general, locked plea agreements have been found to be constitutional. See United States v. Pollard, 959 F.2d 1011, 1021-22, (D.C.Cir. 1992), United States v. Marquez, 909 F.2d 738, 742 (2nd Cir. 1990); United States v. Seligsohn, 981 F.2d 1418, 1426 (3rd Cir. 1992). However, under certain circumstances they may violate a defendant’s rights. As observed by the Court in Hodge, “[t]hough reserving judgment on the question, the Supreme Court has warned that offers of leniency or adverse treatment for some person other than the accused might pose a greater danger of inducing a false guilty plea by skewing the assessment of the risks a defendant must consider.” Id. citing Bordenkircher v. Hayes, 434 U.S. 357, 365 n. 8 (1977).  

More troubling is the element of coercion that may be present in certain locked plea deals. “Though allowed, package deal pleas pose special risks, particularly when a trial court is unaware that defendants’ pleas are tied together.” Hodge. These risks include undue influence of a co-defendant, and the coercive effect of having a spouse or relative subject to lengthy confinement.  Imagine a married couple being jointly tried for a fraudulent scheme, or tax evasion, where they have small children at risk of having both parents serving lengthy prison terms.  An innocent spouse may succumb to accepting a deal to protect the guilty spouse in order to protect their children from foster care. The First Circuit is considered to have “an extensive jurisprudence in this area.” Hodge. See United States v. Mescual-Cruz, 387 F.3d 1 (1st Cir. 2004)(package deal plea set aside when district court was uninformed of the packaging); United States v. Buckley, 847 F.2d 991 (1st Cir. 1988)(the district court should inquire of the defendant what benefit he expects to gain from the deal before accepting plea); United States v. Martinez-Molina, 64 F.3d 719 (1995)(the district court should take care to inquire whether anyone in addition to the prosecutor threatened or in any way coerced the defendant to take the packaged deal); United States v. Daniels, 821 F.2d 76 (1st Cir. 1987)(the district court should be particularly attuned to even mild expressions of reluctance to enter guilty plea based on a packaged plea bargain). 

To combat these risks, the Third Circuit requires the district courts to undertake “special care colloquies.” In United States v. Hall, 515 F.3d 186 (3rd Cir. 2008), the Court discussed “the general terms of what constitutes ‘special care’ in the context of a plea colloquy involving tied plea agreements:

At the threshold, a district court notified of a package deal plea bargain should question counsel closely to ensure that the precise terms of the package plea deal are on the record. Once it is clear exactly how a defendant’s plea benefits his confederate(s), it may be helpful to ask who first proposed the package deal, how extensively defense counsel was involved in developing the deal, and what benefit the defendant expects to gain from the deal. When asking whether a plea is a product of force, threats, or inducements and the like, a district court should take care not to ask only whether the prosecutor forced, threatened, or coerced the defendant, but whether anyone did so. Having so inquired, the court should be particularly attuned to even mild expressions of reluctance by a defendant. Such expressions always should trigger a more searching inquiry. On the other hand, as none of the defendants may be particularly eager to plead guilty, one defendant’s expressions of reluctance should be compared to those of other defendants involved in the package deal.”

Not every Circuit has adopted a formal “special care colloquy” when it comes to locked plea bargains. But it has a practical efficiency that all should approve.  If faced with a situation on appeal involving a locked plea bargain, closely scrutinize the record in a fashion similar to the “special care colloquy.”  If the record doesn’t meet muster, you may have an important, if not winning appellate argument.

At a time when legal experts are taking deeper looks into the problems inherent with plea bargaining, the time may be getting riper to make the argument that locked plea bargains are on their face violate the notion of fundamental fairness, and are thus unconstitutional.

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