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# 9-16.000 - Pleas - Federal Rule Of Criminal Procedure 11

9-16.001 | Legal Considerations
9-16.010 | Approval Required for Consent to Plea of Nolo Contendere
9-16.015 | Approval Required for Consent to Alford Plea
9-16.020 | Approval Required for Plea Agreements Involving Members of Congress, Federal Judges, Extradition, Deportation, and Air Piracy Cases
9-16.030 | Investigative Agency and Victim to be Consulted
9-16.040 | Plea Bargains in Fraud Cases
9-16.050 | Pleas by Corporations
9-16.060 | Miscellaneous Sections Requiring Consultation or Approval of Plea Agreements
9-16.110 | Plea Negotiations with Public Officials
9-16.300 | Plea Agreements—Federal Rule of Criminal Procedure 11(e)
9-16.320 | Plea Agreements and Restitution
9-16.325 | Plea Agreements, Deferred Prosecution Agreements, Non-Prosecution Agreements and "Extraordinary Restitution"
9-16.330 | Plea Agreements and Sentencing Appeal Waivers
9-16.331 | Plea Agreements and Waiver of Ineffective Assistance of Counsel
9-16.400 | Inadmissibility of Pleas—Federal Rule of Criminal Procedure 11(e)(6)
9-16.500 | Identifying Uncharged Third-Parties During Plea and Sentencing Proceedings

## 9-16.001 - Legal Considerations

A defendant may plead guilty, not guilty, or with the consent of the court, nolo contendere. Fed. R. Crim. P. 11.

See the Criminal Resource Manual at 623 et seq. for a discussion of the law relating to pleas

Pleas—Federal Rule of Criminal Procedure 11 | Criminal Resource Manual at 623
Plea Negotiations with Public Officials—United States v. Richmond | Criminal Resource Manual at 624
Federal Rule of Criminal Procedure 11(e) | Criminal Resource Manual at 625
Plea Agreements and Sentencing Appeal Waivers—Discussion of the Law | Criminal Resource Manual at 626
Inadmissibility of Pleas: Federal Rule of Criminal Procedure 11(e)(6) | Criminal Resource Manual at 627

[cited in JM 6-4.320]

## 9-16.010 - Approval Required for Consent to Plea of Nolo Contendere

United States Attorneys may not consent to a plea of nolo contendere except in the most unusual circumstances and only after a recommendation for doing so has been approved by the Assistant Attorney General responsible for the subject matter or by the Associate Attorney General, Deputy Attorney General or the Attorney General. See also 9-27.500, Principles of Federal Prosecution, , which discusses the policy of opposing pleas of nolo contendere except when the circumstances of the case are so unusual that acceptance of the plea would be in the public interest.

The Policy and Statutory Enforcement Unit (PSEU) of the Office of Enforcement Operations will coordinate the review of requests for approval to consent to nolo contendere pleas in matters for which the Criminal Division is responsible. Such requests should be submitted to the PSEU using the Form at Criminal Resource Manual 164 which 1) describes the facts of the case; 2) sets out the specific statutory violations charged; 3) states the charges to which the defendant agrees to plead; 4) explains the circumstances supporting the requested consent to the plea; and 5) provides any other information that may be helpful in rendering a decision on the request. The PSEU will obtain the views of the Criminal Division section responsible for the substantive area involved in the case and will forward the request and the section's views to the Assistant Attorney General for the Criminal Division for decision.

Questions regarding this approval requirement in matters under the supervision of the Criminal Division may be directed to the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations at 202-305-4023.

[updated October 2008] [cited in JM 6-2.000; Criminal Resource Manual 164]

## 9-16.015 - Approval Required for Consent to Alford Plea

United States Attorneys may not consent to the plea known as an Alford plea (see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160 (1970)) (when the defendant maintains his or her innocence with respect to the charge to which he or she offers to plead guilty) except in the most unusual of circumstances and only after recommendation for doing so has been approved by the Assistant Attorney General responsible for the subject matter or by the Associate Attorney General, the Deputy Attorney General, or the Attorney General. In any case in which the defendant tenders a plea of guilty but denies that he or she has in fact committed the offense, the attorney for the Government should make an offer of proof of all facts known to the Government to support the conclusion that the defendant is in fact guilty. See JM 9-27.440, Principles of Federal Prosecution, which discusses the rationale of this policy; JM 6-4.330 (Approval of Alford pleas in tax cases).

The Policy and Statutory Enforcement Unit (PSEU) of the Office of Enforcement Operations will coordinate the review of requests for approval to consent to Alford pleas in matters for which the Criminal Division is responsible. Such requests should be submitted to the PSEU using the form at Criminal Resource Manual 263 which 1) describes the facts of the case; 2) sets out the specific statutory violations charged; 3) states the charges to which the defendant agrees to plead; 4) explains the circumstances supporting the requested consent to the plea: and 5) provides any other information that may be helpful in rendering a decision on the request. The PSEU will obtain the views of the Criminal Division section responsible for the substantive area involved in the case and will forward the request and the section's views to the Assistant Attorney General for the Criminal Division for decision.

Questions regarding this approval requirement in matters under the supervision of the Criminal Division may be directed to the Policy and Statutory Enforcement Unit of the Office of Enforcement Operations at 202-305-4023.

[updated October 2016] [cited in JM 6-4.330; Criminal Resource Manual 263]

## 9-16.020 - Approval Required for Plea Agreements Involving Members of Congress, Federal Judges, Extradition, Deportation, and Air Piracy Cases

Department attorneys should be cognizant of sensitivities when plea agreements involve either extradition or removal, areas where the United States may be bound by treaties or other international agreements. In cases involving defendants residing in the United States illegally, prosecutors may negotiate and enter into plea agreements in which defendants stipulate to the entry of a judicial order of removal, as set forth in 8 U.S.C. § 1228(c)(5). Government attorneys generally should not negotiate regarding a request that the government not seek an extradition or removal order in connection with any case. Department attorneys, before entering negotiations regarding a request not to seek extradition or removal, must obtain an endorsement by the head of the section or office responsible for supervising the case, then submit the request to the Office of International Affairs seeking specific approval from the Assistant Attorney General, Criminal Division. See JM 9-15.800 and 9-73.510.

The Department continues to advocate severe penalties for aircraft hijackers as a deterrent to future acts of piracy. Consequently, Department attorneys must obtain authorization from the Counterterrorism Section of the National Security Division before entering into any agreement to forego an air piracy prosecution in return for a guilty plea to a lesser offense, or decides otherwise not to fully prosecute an act of air piracy. See JM 9-63.181.

For policy regarding approval required for plea agreements involving defendants who are Members of Congress, candidates for Congress, or Federal judges, see JM 9-16.110.

[updated October 2018]

## 9-16.030 - Investigative Agency and Victim to be Consulted

Although United States Attorneys have wide discretion in negotiating guilty pleas in criminal cases, this power should be exercised only after appropriate consultation with the federal investigative agency involved. See the Victim and Witness Protection Act of 1982, P.L. 97-291, § 6, 96 Stat. 1256. In addition, the Attorney General Guidelines for Victim and Witness Assistance 2000 provides that United States Attorneys should make reasonable efforts to notify identified victims of, and consider victims' views about, any proposed or contemplated plea negotiations. See the Victim and Witness Protection Act of 1982, P.L. 97-291, § 6, 96 Stat. 1256.

[updated November 2000] [cited in JM 9-16.040]

## 9-16.040 - Plea Bargains in Fraud Cases

When possible, United States Attorneys should require an explicit stipulation of all facts of a defendant's fraud against the United States when agreeing to a plea bargain, including acknowledgement of the financial consequences or damages to the government. A good example of this approach and its usefulness in ensuing civil litigation may be found in United States v. Podell, 436 F. Supp. 1039, 1042-1044 (S.D.N.Y. 1977),aff'd 572 F.2d 31, 36 (2d Cir. 1978). Concerning such pleas, USAs should also be aware of JM 9-2.159; 9-27.641 (Multi-District (global) Agreement Requests); 9-42.010 (Coordination of Civil and Criminal Fraud Against the Government); 9-42.451 (Plea Bargaining in Medicare/Medicaid Cases); and 9-16.030 (Investigative Agency and Victim to be Consulted).

## 9-16.050 - Pleas by Corporations

Charges against an individual defendant should not be dismissed on the basis of a plea of guilty by a corporate defendant unless there are special circumstances justifying the dismissal. See also JM Chapter 9-28.000.

[updated August 2008] [cited in JM 5-11.114]

## 9-16.060 - Miscellaneous Sections Requiring Consultation or Approval of Plea Agreements

In addition to the sections listed above, see the JM 9-138.040, which states that the Secretary of Labor's statutory right to notice and representation in disability proceedings under 29 U.S.C §§ 504 and 1111 may not be waived or negotiated away as part of a plea agreement or sentencing bargain.

## 9-16.110 - Plea Negotiations with Public Officials

Plea bargains with defendants who are elected public officers can present issues of federalism and separation of powers when they require the public officer defendant to take action that affects his or her tenure in office. The same issues can also arise when the defendant is a candidate for elective office, or when plea negotiations call for withdrawal from candidacy or an undertaking by the defendant not to seek or hold public office in the future.

GENERAL RULE: Resignation from office, withdrawal from candidacy for elective office, and forbearance from seeking or holding future public offices, remain appropriate and desirable objectives in plea negotiations with public officials who are charged with federal offenses that focus on abuse of the office(s) involved. Where the office involved is not one within the Legislative or Judicial Branches of the federal government, such negotiated terms may be also be enforced involuntarily against the will of the defendant by a sentencing judge pursuant to the Federal Probation Act. United States v. Tonry, 605 F.2d 144 (5th Cir. 1979).

However, when the position that is the subject of a negotiated resignation, withdrawal from candidacy, or an agreement to forbear occupying future office, is a position within the Legislative or the Judicial Branches of the federal government (i.e., Member of Congress, United States Senator or federal judge), the inclusion of required withdrawal, resignation or forbearance may raise questions involving the separation of powers doctrine when included in a plea agreement negotiated by employees of the Executive Branch of government.

Resignation, withdrawal or forbearance from holding offices in the Legislative or the Judicial branches of the federal government may appropriately be made the subject of plea negotiations, and offers of resignation, withdrawal or forbearance concerning such offices may be incorporated into plea agreements with incumbent Members of Congress and federal judges. However, resignation, withdrawal or forbearance with respect to Congressional or federal judicial office may not be imposed involuntarily against the will of the judge or Member of Congress involved because of the separation of powers doctrine. See Powell v. McCormack, 395 U.S. 846 (1969); United States v. Richmond, 550 F. Supp. 144 (E.D.N.Y. 1982). See the Criminal Resource Manual at 624, for a discussion of Richmond.

To assure uniformity and fairness, all proposed plea agreements involving defendants who are Members of Congress, candidates for Congress, or federal judges shall be subject to prior approval by the Public Integrity Section of the Criminal Division.

The Public Integrity Section has substantial experience and expertise in the issues presented by taking pleas from federal public officials. Assistant United States Attorneys are encouraged to contact Public Integrity should questions arise concerning this issue.

[cited in JM 9-16.020]

## 9-16.300 - Plea Agreements—Federal Rule of Criminal Procedure 11(e)

Federal Rule of Criminal Procedure 11(e) recognizes and codifies the concept of plea agreements. Plea agreements should honestly reflect the totality and seriousness of the defendant's conduct, and any departure to which the prosecutor is agreeing, and must be accomplished through appropriate Sentencing Guideline provisions. See JM 9-27.400. The Department's policy is to stipulate only to facts that accurately represent the defendant's conduct. See JM 9-27.430. In addition, in accordance with JM 9-27.630, United States Attorneys may not make agreements which prejudice civil or tax liability without the express agreement of all affected Divisions and/or agencies. For additional discussion regarding plea agreements, see the Principles of Federal Prosecution, JM 9-27.400 et seq. See the Crimi nal Resource Manual at 625 for additional discussion of the law relating to plea agreements.

## 9-16.320 - Plea Agreements and Restitution

The Antiterrorism and Effective Death Penalty Act of 1996, specifically Title II, Subtitle A, the Mandatory Victims Restitution Act ("the Act"), amended restitution laws and, by altering 18 U.S.C. § 3663 et seq., strengthened enforcement. On July 24, 1996, in response to a Congressional directive in the Act, the Attorney General issued a memorandum to all Department of Justice Attorneys and Victim-Witness Coordinators that addressed, among other things, plea agreements and restitution. The following language was taken from that memorandum and Article V of the Attorney General Guidelines for Victim and Witness Assistance 2000:

Section 209 of the Act mandates that when negotiating plea agreements, prosecutors must give consideration to "requesting that the defendant provide full restitution to all victims of all charges contained in the indictment or information, without regard to the count to which the defendant actually plead[s]." In addition to this mandate, the following general guidelines summarize the responsibilities of prosecutors with regard to plea agreements that include provisions regarding restitution:

First, 18 U.S.C. § 3663A mandates that restitution be ordered for crimes of violence, for offenses against property under the criminal code (unless the court makes a special finding described in subsection (c)(3) of that section), and for offenses described in 18 U.S.C. § 1365, if an identifiable victim or victims suffered a physical injury or pecuniary loss. There are also several other previously enacted statutes that mandate restitution: 18 U.S.C. § 2248; 18 U.S.C. § 2259; 18 U.S.C. § 2264; and 18 U.S.C. § 2327. In cases that fall under these statutes, the court is obligated to impose a restitution order.

Second, even when restitution is not mandatory, federal prosecutors should give careful consideration to seeking full restitution to all victims of all charges contained in the indictment or information as part of any plea agreement.

Third, when an indictment contains both charges for which restitution is mandatory, and charges for which restitution is not mandatory, prosecutors should give careful consideration to requiring either a plea to a mandatory restitution charge, or an acknowledgement by the defendant in the plea agreement that a mandatory restitution charge gave rise to the plea agreement, which acknowledgement will trigger the mandatory restitution provisions of 18 U.S.C. § 3663A. 18 U.S.C. § 3663A(c)(2).

Fourth, prosecutors should also be mindful that the United States Sentencing Guidelines (USSG) generally require the imposition of restitution when it is authorized by the law, and should not enter into agreements regarding restitution that would violate the Sentencing Guidelines. See USSG § 5E1.1; JM 9-27.400.

Fifth, supervisory attorneys who approve plea agreements, as is required by the Principles of Federal Prosecution (JM 9-27.450), should ensure that plea agreements comply with the law and these guidelines. The Principles of Federal Prosecution list the factors that should be considered when determining whether to enter into a plea agreement. These factors include, among other factors, the effect the plea agreement will have upon a victim's right to restitution. JM 9-27.420- 430.

[updated November 2000] [cited in Criminal Resource Manual 1977; 1989]

## 9-16.325 - Plea Agreements, Deferred Prosecution Agreements, Non-Prosecution Agreements and "Extraordinary Restitution"

Plea agreements, deferred prosecution agreements and non-prosecution agreements should not include terms requiring the defendant to pay funds to a charitable, educational, community, or other organization or individual that is not a victim of the criminal activity or is not providing services to redress the harm caused by the defendant's criminal conduct.

Such payments have sometimes been referred to as "extraordinary restitution." This is a misnomer, however, as restitution is intended to restore the victim's losses caused by the criminal conduct, not to provide funds to an unrelated third party.

Apart from the limited circumstances described below, this practice is restricted because it can create actual or perceived conflicts of interest and/or other ethical issues.

This section does not, of course, restrict a defendant's own decision, outside the context of a plea agreement, deferred prosecution agreement or a non-prosecution agreement, to unilaterally pay monies to a charitable, educational, community, or other organization or individual, and then to request leniency from the judge at sentencing based upon such action.

This section also does not restrict "community restitution" payments made pursuant to 18 U.S.C. § 3663(c). That section provides guidance for such payments where the defendant is convicted under 21 U.S.C. § 841, § 848(a), § 849, § 856, § 861 or § 863. Among other factors, that section requires the absence of identifiable victims, as well as a nexus between the payment and the offense.

Neither does this section restrict the use of community service provisions in plea agreements, deferred prosecution agreements or non-prosecution agreements resolving environmental matters. United States Attorneys' Offices contemplating such community service in a matter involving environmental crimes shall consult with the Environmental Crimes Section of the Environmental and Natural Resources Division, which has issued guidance to ensure that the community service requirements are narrowly tailored to the facts of the case. The guidance also requires that any funds paid by a defendant as community service be directed to an entity in which the prosecutors have no interest that could give rise to a conflict and that is legally authorized to receive funds. See JM 5-11.115.

[updated February 2010] [cited in JM 5-11.115]

## 9-16.330 - Plea Agreements and Sentencing Appeal Waivers

Some districts incorporate waivers of sentencing appeal rights and post-conviction rights into plea agreements. The use of these waivers in appropriate cases can be helpful in reducing the burden of appellate and collateral litigation involving sentencing issues. See the Criminal Resource Manual at 626 for a more extensive discussion of the law on this issue.

## 9-16.331 - Plea Agreements and Waiver of Ineffective Assistance of Counsel

The right to effective assistance of counsel is a core value of our Constitution. The Department of Justice has a strong interest in ensuring that individuals facing criminal charges receive effective assistance of counsel so that our adversarial system can function fairly, efficiently, and responsibly.

When negotiating a plea agreement, the majority of United States Attorneys’ offices do not seek a waiver of claims of ineffective assistance of counsel. This is true even though the federal courts have uniformly held a defendant may generally waive ineffective assistance claims pertaining to matters other than entry of the plea itself: such as claims related to sentencing. While the Department is confident that a waiver of a claim of ineffective assistance of counsel is both legal and ethical, in order to bring consistency to this practice, and in support of the underlying Sixth Amendment right, this section sets forth uniform Department of Justice policies relating to waivers of claims of ineffective assistance of counsel.

Federal prosecutors should not seek in plea agreements to have a defendant waive claims of ineffective assistance of counsel whether those claims are made on collateral attack or, when permitted by circuit law, made on direct appeal. For cases in which a defendant’s ineffective assistance claim would be barred by a previously executed waiver, prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant’s ineffective assistance claim raises a serious debatable issue that a court should resolve.

As long as prosecutors exempt ineffective-assistance claims from their waiver provisions, they are free to request waivers of appeal and of post-conviction remedies to the full extent permitted by law as a component of plea discussions and agreements.

[added December 2017]

## 9-16.400 - Inadmissibility of Pleas—Federal Rule of Criminal Procedure 11(e)(6)

See the Criminal Resource Manual at 627.

## 9-16.500 - Identifying Uncharged Third-Parties During Plea and Sentencing Proceedings

In the absence of some significant justification, it is generally not appropriate for a United States Attorney to identify (either by name or unnecessarily-specific description), or cause a defendant to identify, a third-party wrongdoer unless that party has been officially charged with the misconduct at issue. When referring to the uncharged third party, the use of non-generic descriptors, like a person's actual initials, is usually an unnecessarily-specific description and should not be used. See JM 9-11.130; 9-27.760.

[updated December 2014] [cited in JM 9-11.130]

Updated October 5, 2018