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Rule 11. Pleas
(a) Entering a Plea.
(1) In General. A defendant may plead not guilty, guilty, or (with the court's
consent) nolo contendere.
(2) Conditional Plea. With the consent of the court and the goernment, adefendant may enter a conditional plea of guilty or nolo contendere,
resering in writing the right to hae an appellate court reiew an aderse
determination of a specified pretrial motion. A defendant who preails on
appeal may then withdraw the plea.
(!) Nolo Contendere Plea. "efore accepting a plea of nolo contendere, the
court must consider the parties# iews and the pu$lic interest in the
effectie administration of %ustice.
(&) Failure to Enter a Plea. f a defendant refuses to enter a plea or if a
defendant organiation fails to appear, the court must enter a plea of not
guilty.
($) onsidering and Accepting a *uilty or +olo ontendere Plea.
(1) Advising and Questioning the Defendant . "efore the court accepts a plea of guilty or nolo contendere, the defendant may $e placed under oath,
and the court must address the defendant personally in open court. uring
this address, the court must inform the defendant of, and determine that thedefendant understands, the following-
(A) the goernment's right, in a prosecution for per%ury or false statement,
to use against the defendant any statement that the defendant gies under
oath
(") the right to plead not guilty, or haing already so pleaded, to persist in
that plea
() the right to a %ury trial
() the right to $e represented $y counsel/and if necessary hae the court
appoint counsel/at trial and at eery other stage of the proceeding
(E) the right at trial to confront and cross0eamine aderse witnesses, to $e
protected from compelled self0incrimination, to testify and presenteidence, and to compel the attendance of witnesses
() the defendant's waier of these trial rights if the court accepts a plea of
guilty or nolo contendere
(*) the nature of each charge to which the defendant is pleading
(3) any maimum possi$le penalty, including imprisonment, fine, and term
of superised release
() any mandatory minimum penalty
(4) any applica$le forfeiture
(5) the court's authority to order restitution
(6) the court's o$ligation to impose a special assessment
(7) in determining a sentence, the court's o$ligation to calculate the
applica$le sentencing0guideline range and to consider that range, possi$le
departures under the 8entencing *uidelines, and other sentencing factorsunder 19 :.8.. ;!<<!(a)
(+) the terms of any plea0agreement proision waiing the right to appeal
or to collaterally attac= the sentence and
(>) that, if conicted, a defendant who is not a :nited 8tates citien may $e
remoed from the :nited 8tates, denied citienship, and denied admission
to the :nited 8tates in the future.
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(2) Ensuring That a Plea Is Voluntary. "efore accepting a plea of guilty or
nolo contendere, the court must address the defendant personally in open
court and determine that the plea is oluntary and did not result from force,
threats, or promises (other than promises in a plea agreement).
(!) Determining the Fatual !asis for a Plea. "efore entering %udgment on
a guilty plea, the court must determine that there is a factual $asis for the
plea.
(c) Plea Agreement Procedure.
(1) In General. An attorney for the goernment and the defendant's
attorney, or the defendant when proceeding pro se, may discuss and reach a
plea agreement. ?he court must not participate in these discussions. f the
defendant pleads guilty or nolo contendere to either a charged offense or a
lesser or related offense, the plea agreement may specify that an attorney
for the goernment will-
(A) not $ring, or will moe to dismiss, other charges
(") recommend, or agree not to oppose the defendant's re@uest, that a
particular sentence or sentencing range is appropriate or that a particular
proision of the 8entencing *uidelines, or policy statement, or sentencingfactor does or does not apply (such a recommendation or re@uest does not
$ind the court) or
() agree that a specific sentence or sentencing range is the appropriate
disposition of the case, or that a particular proision of the 8entencing
*uidelines, or policy statement, or sentencing factor does or does not apply(such a recommendation or re@uest $inds the court once the court accepts
the plea agreement).
(2) Dislosing a Plea Agreement. ?he parties must disclose the plea
agreement in open court when the plea is offered, unless the court for good
cause allows the parties to disclose the plea agreement in camera.
(!) "udiial Consideration of a Plea Agreement.
(A) ?o the etent the plea agreement is of the type specified in ule 11(c)
(1)(A) or ()
, the court may accept the agreement, re%ect it, or defer a
decision until the court has reiewed the presentence report.
(") ?o the etent the plea agreement is of the type specified in ule 11(c)
(1)(")
, the court must adise the defendant that the defendant has no right
to withdraw the plea if the court does not follow the recommendation or
re@uest.
(&) Ae#ting a Plea Agreement. f the court accepts the plea agreement, it
must inform the defendant that to the etent the plea agreement is of the
type specified in ule 11(c)(1)(A) or ()
, the agreed disposition will $e
included in the %udgment.
(<) $e%eting a Plea Agreement. f the court re%ects a plea agreement
containing proisions of the type specified in ule 11(c)(1)(A) or ()
, the
court must do the following on the record and in open court (or, for good
cause, in camera)-
(A) inform the parties that the court re%ects the plea agreement
(") adise the defendant personally that the court is not re@uired to follow
the plea agreement and gie the defendant an opportunity to withdraw the plea and
() adise the defendant personally that if the plea is not withdrawn, the
court may dispose of the case less faora$ly toward the defendant than the
plea agreement contemplated.
(d) Withdrawing a *uilty or +olo ontendere Plea. A defendant may
withdraw a plea of guilty or nolo contendere-
(1) $efore the court accepts the plea, for any reason or no reason or
(2) after the court accepts the plea, $ut $efore it imposes sentence if-
(A) the court re%ects a plea agreement under 11(c)(<) or
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(") the defendant can show a fair and %ust reason for re@uesting the
withdrawal.
(e) inality of a *uilty or +olo ontendere Plea. After the court imposes
sentence, the defendant may not withdraw a plea of guilty or nolo
contendere, and the plea may $e set aside only on direct appeal or collateral
attac=.
(f) Admissi$ility or nadmissi$ility of a Plea, Plea iscussions, and elated
8tatements. ?he admissi$ility or inadmissi$ility of a plea, a plea discussion,
and any related statement is goerned $y ederal ule of Eidence &1B.
(g) ecording the Proceedings. ?he proceedings during which the
defendant enters a plea must $e recorded $y a court reporter or $y a
suita$le recording deice. f there is a guilty plea or a nolo contendere plea,
the record must include the in@uiries and adice to the defendant re@uired
under ule 11($) and (c).
(h) 3armless Error. A ariance from the re@uirements of this rule isharmless error if it does not affect su$stantial rights.
Notes
(As amended e$. 29, 1CDD, eff. 4uly 1, 1CDD Apr. 22, 1C&, eff. ec. 1,1C< Pu$. 6. C&FD&, ;!(<)F(1B), 4uly !1, 1C<, 9C 8tat. !1, !2 Apr. !B,
1CC, eff. Aug. 1, 1CC, and ec. 1, 1C9B Apr. 29, 1C92, eff. Aug. 1, 1C92
Apr. 29, 1C9!, eff. Aug. 1, 1C9! Apr. 2C, 1C9<, eff. Aug. 1, 1C9< 7ar. C,
1C9, eff. Aug. 1, 1C9 Pu$. 6. 1BBFDCB, title G, ;BD, +o. 19, 1C99,
1B2 8tat. &&BD Apr. 2<, 1C9C, eff. ec. 1, 1C9C Apr. 2D, 1CCC, eff. ec. 1,1CCC Apr. 2C, 2BB2, eff. ec. 1, 2BB2 Apr. !B, 2BB, eff. ec. 1, 2BB
Apr. 1D, 2B1!, eff. ec. 1, 2B1!.)
+otes of Adisory ommittee on ules/1C&&
1. ?his rule is su$stantially a restatement of eisting law and practice, 19
:.8.. HformerI <D& (8tanding mute) Fogus v. &nited 'tates, !& .2d C
(..A. &th) (duty of court to ascertain that plea of guilty is intelligently
and oluntarily made).
2. ?he plea of nolo ontendere has always eisted in the ederal courts,
(udson v. &nited 'tates, 22 :.8. &<1 &nited 'tates v. Norris, 291 :.8.
D1C. ?he use of the plea is recognied $y the Pro$ation Act, 19 :.8.. 2&
Hnow !D<1I. While at times criticied as theoretically lac=ing in logical
$asis, eperience has shown that it performs a useful function from a practical standpoint.
+otes of Adisory ommittee on ules/1CDD Amendment
?he great ma%ority of all defendants against whom indictments or
informations are filed in the federal courts plead guilty. >nly a
comparatiely small num$er go to trial. 8ee :nited 8tates Attorneys
8tatistical eport, iscal Jear 1CD&, p. 1. ?he fairness and ade@uacy of the
procedures on acceptance of pleas of guilty are of ital importance in
according e@ual %ustice to all in the federal courts.
?hree changes are made in the second sentence. ?he first change ma=es it
clear that $efore accepting either a plea of guilty or nolo contendere the
court must determine that the plea is made oluntarily with understandingof the nature of the charge. ?he second change epressly re@uires the court
to address the defendant personally in the course of determining that the
plea is made oluntarily and with understanding of the nature of the charge.
?he reported cases reflect some confusion oer this matter. ompare
&nited 'tates v. Diggs, !B& .2d C2C (Dth ir. 1CD2) Domenia v. &nited
'tates, 2C2 .2d &9! (1st ir. 1CD1) Gundlah v. &nited 'tates, 2D2 .2d 2
(&th ir. 1C<9), cert. den., !DB :.8. CB& (1C<C) and "ulian v. &nited 'tates,
2!D .2d 1<< (Dth ir. 1C<D), which contain the implication that personal
interrogation of the defendant is the $etter practice een when he is
represented $y counsel, with )ee*s v. &nited 'tates, 2C9 .2d 2B& (<th ir.
1CD2) Nunley v. &nited 'tates, 2C& .2d <C (1Bth ir. 1CD1), cert. den.,
!D9 :.8. CC1 (1CD2) and &nited 'tates v. Von der (eide, 1DC .8upp. <DB(... 1C<C).
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?he third change in the second sentence adds the words Kand the
conse@uences of his pleaL to state what clearly is the law. 8ee, e.g., Von
)olt*e v. Gillies, !!2 :.8. B9, 2& (1C&9) +erheval v. &nited 'tates, 2&
:.8. 22B, 22! (1C2) )unih v. &nited 'tates, !! .2d !<D (Cth ir.
1CD&) Pil*ington v. &nited 'tates , !1< .2d 2B& (&th ir. 1CD!) 'mith v.
&nited 'tates, !2& .2d &!D (.. ir. 1CD!) $ut cf. )arvel v. &nited
'tates, !!< .2d 1B1 (<th ir. 1CD&).
A new sentence is added at the end of the rule to impose a duty on the court
in cases where the defendant pleads guilty to satisfy itself that there is a
factual $asis for the plea $efore entering %udgment. ?he court should satisfy
itself, $y in@uiry of the defendant or the attorney for the goernment, or $y
eamining the presentence report, or otherwise, that the conduct which the
defendant admits constitutes the offense charged in the indictment or
information or an offense included therein to which the defendant has
pleaded guilty. 8uch in@uiry should, e.g., protect a defendant who is in the
position of pleading oluntarily with an understanding of the nature of the
charge $ut without realiing that his conduct does not actually fall within
the charge. or a similar re@uirement see 7ich. 8tat. Ann. ;29.1B<9(1C<&) 7ich. 8up. t. ule !<A In re Valle, !D& 7ich. &1, 11B +.W.2dD! (1CD1) Peo#le v. !arro,s, !<9 7ich. 2D, CC +.W.2d !& (1C<C)
Peo#le v. !um#us, !<< 7ich. !&, C& +.W.2d 9<& (1C<C) Peo#le v.
Coates, !! 7ich. <D, <C +.W.2d 9! (1C<!). 8ee also 'tinson v. &nited
'tates, !1D .2d <<& (<th ir. 1CD!). ?he normal conse@uence of a
determination that there is not a factual $asis for the plea would $e for the
court to set aside the plea and enter a plea of not guilty.
or a ariety of reasons it is desira$le in some cases to permit entry of
%udgment upon a plea of nolo contendere without in@uiry into the factual
$asis for the plea. ?he new third sentence is not, therefore, made applica$le
to pleas of nolo contendere. t is not intended $y this omission to reflect
any iew upon the effect of a plea of nolo contendere in relation to a pleaof guilty. ?hat pro$lem has $een dealt with $y the courts. 8ee e.g., -ott v.&nited 'tates, !D :.8. &21, &2D (1CD1).
+otes of Adisory ommittee on ules/1C& Amendment
?he amendments to rule 11 are designed to achiee two principal
o$%ecties-
(1) 8u$diision (c) prescri$es the adice which the court must gie to
insure that the defendant who pleads guilty has made an informed plea.
(2) 8u$diision (e) proides a plea agreement procedure designed to gie
recognition to the propriety of plea discussions to $ring the eistence of a plea agreement out into the open in court and to proide methods for court
acceptance or re%ection of a plea agreement.
>ther less $asic changes are also made. ?he changes are discussed in the
order in which they appear in the rule.
8u$diision ($) retains the re@uirement that the defendant o$tain the
consent of the court in order to plead nolo contendere. t adds that the court
shall, in deciding whether to accept the plea, consider the iews of the
prosecution and of the defense and also the larger pu$lic interest in the
administration of criminal %ustice.
Although the plea of nolo contendere has long eisted in the federal courts,
(udson v. &nited 'tates, 22 :.8. &<1, & 8.t. 12, 1 6.Ed. !& (1C2D),
the desira$ility of the plea has $een a su$%ect of disagreement. ompare6ane0etic=er, +olo ontendere in +orth arolina, !& +..6.e. 29B,
2CBF2C1 (1C<D), with +ote. ?he +ature and onse@uences of the Plea of
+olo ontendere, !! +e$.6.e. &29, &!& (1C<&), faoring the plea. ?he
American "ar Association Pro%ect on 8tandards for riminal 4ustice ta=es
the position that Kthe case for the nolo plea is not strong enough to %ustify a
minimum standard supporting its use,L $ut $ecause Kuse of the plea
contri$utes in some degree to the aoidance of unnecessary trialsL it does
not proscri$e use of the plea. A"A, 8tandards elating to Pleas of *uilty
;1.1(a) ommentary at 1D (Approed raft, 1CD9).
A plea of nolo contendere is, for purposes of punishment, the same as the
plea of guilty. 8ee discussion of the history of the nolo plea in North
Carolina v. Alford , &BB :.8. 2<, !< F!D n. 9, C1 8.t. 1DB, 2 6.Ed.2d 1D2(1CB). +ote, ?he +ature and onse@uences of the Plea of +olo
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ontendere, !! +e$.6.e. &29, &!B (1C<&). A %udgment upon the plea is a
coniction and may $e used to apply multiple offender statutes. 6enin and
7eyers, +olo ontendere- ts +ature and mplications, <1 Jale 6.4. 12<<,
12D< (1C&2). :nli=e a plea of guilty, howeer, it cannot $e used against a
defendant as an admission in a su$se@uent criminal or ciil case. &
Wigmore ;1BDD(&), at <9 (!d ed. 1C&B, 8upp. 1CB) ules of Eidence for
:nited 8tates ourts and 7agistrates, rule 9B!(22) (+o. 1C1). 8ee
6enin and 7eyers, +olo ontendere- ts +ature and mplications, <1 Jale6.4. 12<< (1C&2) A"A 8tandards elating to Pleas of *uilty ;;1.1(a) and
($), ommentary at 1<F19 (Approed raft, 1CD9).
?he factors considered releant $y particular courts in determining whether
to permit the plea of nolo contendere ary. ompare &nited 'tates v.
!agliore, 192 .8upp. 1&, 1D (E..+.J. 1CDB), where the iew is ta=en
that the plea should $e re%ected unless a compelling reason for acceptance
is esta$lished, with &nited 'tates v. "ones, 11C .8upp. 299, 2CB (8..al.
1C<&), where the iew is ta=en that the plea should $e accepted in the
a$sence of a compelling reason to the contrary.
A defendant who desires to plead nolo contendere will commonly want toaoid pleading guilty $ecause the plea of guilty can $e introduced as an
admission in su$se@uent ciil litigation. ?he prosecution may oppose the
plea of nolo contendere $ecause it wants a definite resolution of the
defendant's guilty or innocence either for correctional purposes or for
reasons of su$se@uent litigation. A"A 8tandards elating to Pleas of *uilty
;1.1($) ommentary at 1DF19 (Approed raft, 1CD9). :nder su$diision
($) of the new rule the $alancing of the interests is left to the trial %udge,
who is mandated to ta=e into account the larger pu$lic interest in the
effectie administration of %ustice.
8u$diision (c) prescri$es the adice which the court must gie to the
defendant as a prere@uisite to the acceptance of a plea of guilty. ?he former
rule re@uired that the court determine that the plea was made withKunderstanding of the nature of the charge and the conse@uences of the
plea.L ?he amendment identifies more specifically what must $e eplained
to the defendant and also codifies, in the rule, the re@uirements of !oy*in v.
Alaama, !C< :.8. 2!9, 9C 8.t. 1BC, 2! 6.Ed.2d 2& (1CDC), which held
that a defendant must $e apprised of the fact that he relin@uishes certain
constitutional rights $y pleading guilty.
8u$diision (c) retains the re@uirement that the court address the defendant
personally. 8ee )Carthy v. &nited 'tates, !C& :.8. &<C, &DD, 9C 8.t.
11DD, 22 6.Ed.2d &19 (1CDC). ?here is also an amendment to rule &! to
ma=e clear that a defendant must $e in court at the time of the plea.
8u$diision (c)(1) retains the current re@uirement that the court determine
that the defendant understands the nature of the charge. ?his is a common
re@uirement. 8ee A"A 8tandards elating to Pleas of *uilty ;1.&(a)
(Approed raft, 1CD9) llinois 8upreme ourt ule &B2(a)(1) (1CB),
ll.e.8tat. 1C!, ch. 11BA, ;&B2(a)(1). ?he method $y which the
defendant's understanding of the nature of the charge is determined may
ary from case to case, depending on the compleity of the circumstances
and the particular defendant. n some cases, a %udge may do this $y reading
the indictment and $y eplaining the elements of the offense to the
defendants. ?hompson, ?he 4udge's esponsi$ility on a Plea of *uilty D2
W.Ga.6.e. 21!, 22B (1CDB) esolution of 4udges of :.8. istrict ourtfor .., 4une 2&, 1C<C.
ormer rule 11 re@uired the court to inform the defendant of the
Kconse@uences of the plea.L 8u$diision (c)(2) changes this and re@uires
instead that the court inform the defendant of and determine that he
understands Kthe mandatory minimum penalty proided $y law, if any, and
the maimum possi$le penalty proided $y law for the offense to which the
plea is offered.L ?he o$%ectie is to insure that a defendant =nows what
minimum sentence the %udge must impose and what maimum sentence the
%udge may impose. ?his information is usually readily ascertaina$le from
the face of the statute defining the crime, and thus it is feasi$le for the
%udge to =now specifically what to tell the defendant. *iing this adice
tells a defendant the shortest mandatory sentence and also the longest
possi$le sentence for the offense to which he is pleading guilty.
t has $een suggested that it is desira$le to inform a defendant of additional
conse@uences which might follow from his plea of guilty. Durant v. &nited
'tates, &1B .2d D9C (1st ir. 1CDC), held that a defendant must $e informed
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of his ineligi$ility for parole. Tru%illo v. &nited 'tates, ! .2d 2DD (<th
ir. 1CD), cert. denied !9C :.8. 9CC, 99 8.t. 22&, 1C 6.Ed.2d 221 (1CD),
held that adice a$out eligi$ility for parole is not re@uired. t has $een
suggested that a defendant $e adised that a %ury might find him guilty only
of a lesser included offense. . Wright, ederal Practice and Procedure-
riminal ;1! at !& (1CDC). 8ee contra Dorrough v. &nited 'tates, !9<
.2d 99 (<th ir. 1CD). ?he A"A 8tandards elating to Pleas of *uilty
;1.&(c)(iii) (Approed raft, 1CD9) recommend that the defendant $einformed that he may $e su$%ect to additional punishment if the offense
charged is one for which a different or additional punishment is authoried
$y reason of the defendant's preious coniction.
:nder the rule the %udge is not re@uired to inform a defendant a$out these
matters, though a %udge is free to do so if he feels a conse@uence of a plea
of guilty in a particular case is li=ely to $e of real significance to the
defendant. urrently, certain conse@uences of a plea of guilty, such as
parole eligi$ility, may $e so complicated that it is not feasi$le to epect a
%udge to clearly adise the defendant. or eample, the %udge may impose a
sentence under 19 :.8.. ;&2B2 ma=ing the defendant eligi$le for parolewhen he has sered one third of the %udicially imposed maimum or, under 19 :.8.. ;&2B9(a)(1), ma=ing parole eligi$ility after a specified period of
time less than one third of the maimum or, under 19 :.8.. ;&2B9(a)(2),
leaing eligi$ility to the discretion of the parole $oard. At the time the
%udge is re@uired to adise the defendant of the conse@uences of his plea,
the %udge will usually not hae seen the presentence report and thus will
hae no $asis for giing a defendant any ery realistic adice as to when he
might $e eligi$le for parole. 8imilar complications eist with regard to
other, particularly collateral, conse@uences of a plea of guilty in a gien
case.
8u$diisions (c)(!) and (&) specify the constitutional rights that the
defendant waies $y a plea of guilty or nolo contendere. ?hesesu$diisions are designed to satisfy the re@uirements of understanding
waier set forth in !oy*in v. Alaama, !C< :.8. 2!9, 9C 8.t. 1BC, 2!
6.Ed.2d 2& (1CDC). 8u$diision (c)(!) is intended to re@uire that the %udge
inform the defendant and determine that he understands that he waies his
fifth amendment rights. ?he rule ta=es the position that the defendant's
right not to incriminate himself is $est eplained in terms of his right to
plead not guilty and to persist in that plea if it has already $een made. ?his
is language identical to that adopted in llinois for the same purpose. 8ee
llinois 8upreme ourt ule &B2(a)(!) (1CB), ll.e.8tat. 1C!, ch. 11BA,
;&B2(a)(!).
8u$diision (c)(&) assumes that a defendant's right to hae his guilt proed
$eyond a reasona$le dou$t and the right to confront his accusers are $esteplained $y indicating that the right to trial is waied. 8pecifying that
there will $e no future trial of any =ind ma=es this fact clear to those
defendants who, though =nowing they hae waied trial $y %ury, are under
the mista=en impression that some =ind of trial will follow. llinois has
recently adopted similar language. llinois 8upreme ourt ule &B2(a)(&)
(1CB), ll.e.8tat. 1C!, ch. 11BA, ;&B2(a)(&). n eplaining to a
defendant that he waies his right to trial, the %udge may want to eplain
some of the aspects of trial such as the right to confront witnesses, to
su$poena witnesses, to testify in his own $ehalf, or, if he chooses, not to
testify. What is re@uired, in this respect, to conform to !oy*in is left to
future case0law deelopment.
8u$diision (d) retains the re@uirement that the court determine that a plea
of guilty or nolo contendere is oluntary $efore accepting it. t adds the
re@uirement that the court also in@uire whether the defendant's willingness
to plead guilty or nolo contendere results from prior plea discussions
$etween the attorney for the goernment and the defendant or his attorney.
8ee 'antoello v. Ne, /or* , &B& :.8. 2<, 2D1 F2D2, C2 8.t. &C<, !B
6.Ed.2d &2 (1C1)- K?he plea must, of course, $e oluntary and =nowing
and if it was induced $y promises, the essence of those promises must in
some way $e made =nown.L 8u$diisions (d) and (e) afford the court
ade@uate $asis for re%ecting an improper plea agreement induced $y threats
or inappropriate promises.
?he new rule specifies that the court personally address the defendant indetermining the oluntariness of the plea.
"y personally interrogating the defendant, not only will the %udge $e $etter
a$le to ascertain the plea's oluntariness, $ut he will also deelop a more
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complete record to support his determination in a su$se@uent post0
coniction attac=. M M M "oth of these goals are undermined in proportion to
the degree the district %udge resorts to KassumptionsL not $ased upon
recorded responses to his in@uiries. )Carthy v. &nited 'tates, !C& :.8.
&<C, &DD, &D, 9C 8.t. 11DD, 22 6.Ed.2d &19 (1CDC).
8u$diision (e) proides a plea agreement procedure. n doing so it gies
recognition to the propriety of plea discussions and plea agreements proided that they are disclosed in open court and su$%ect to acceptance or
re%ection $y the trial %udge.
Although relia$le statistical information is limited, one recent estimate
indicated that guilty pleas account for the disposition of as many as C<N of
all criminal cases. A"A 8tandards elating to Pleas of *uilty, pp. 1F2
(Approed raft, 1CD9). A su$stantial num$er of these are the result of plea
discussions. ?he President's ommission on 6aw Enforcement and
Administration of 4ustice, ?as= orce eport- ?he ourts C (1CD) .
+ewman, oniction- ?he etermination of *uilt or nnocence Without
?rial ! (1CDD) 6. Weinre$, riminal Process &! (1CDC) +ote, *uilty Plea"argaining- ompromises $y Prosecutors ?o 8ecure *uilty Pleas, 112:.Pa.6.e. 9D< (1CD&).
?here is increasing ac=nowledgement of $oth the ineita$ility and the
propriety of plea agreements. 8ee, e.g., A"A 8tandards elating to Pleas of
*uilty ;!.1 (Approed raft, 1CD9) llinois 8upreme ourt ule &B2
(1CB), ll.e.8tat. 1C!, ch. 11BA, ;&B2.
n !rady v. &nited 'tates, !C :.8. &2, <2 F<!, CB 8.t. 1&D!, 2<
6.Ed.2d & (1CB), the court said-
>f course, that the prealence of guilty pleas is eplaina$le does not
necessarily alidate those pleas or the system which produces them. "ut we
cannot hold that it is unconstitutional for the 8tate to etend a $enefit to a
defendant who in turn etends a su$stantial $enefit to the 8tate and who
demonstrates $y his plea that he is ready and willing to admit his crime andto enter the correctional system in a frame of mind that affords hope for
success in reha$ilitation oer a shorter period of time than might otherwise
$e necessary.
n 'antoello v. Ne, /or* , &B& :.8. 2<, 2DB, C2 8.t. &C<, &C9, !B
6.Ed.2d &2 (1C1), the court said-
?he disposition of criminal charges $y agreement $etween the prosecutor
and the accused, sometimes loosely called Kplea $argaining,L is an essentialcomponent of the administration of %ustice. Properly administered, it is to
$e encouraged.
Administratiely, the criminal %ustice system has come to depend upon
pleas of guilty and, hence, upon plea discussions. 8ee, e.g., President's
ommission on 6aw Enforcement and Administration of 4ustice, ?as=
orce eport. ?he ourts C (1CD) +ote, *uilty Plea "argaining-
ompromises "y Prosecutors ?o 8ecure *uilty Pleas, 112 :.Pa.6.e. 9D<
(1CD&). "ut epediency is not the $asis for recogniing the propriety of a
plea agreement practice. Properly implemented, a plea agreement
procedure is consistent with $oth effectie and %ust administration of thecriminal law. 'antoello v. Ne, /or* , &B& :.8. 2<, C2 8.t. &C<, !B
6.Ed.2d &2. ?his is the conclusion reached in the A"A 8tandards elatingto Pleas of *uilty ;1.9 (Approed raft, 1CD9) the A"A 8tandards
elating to ?he Prosecution unction and ?he efense unction pp. 2&!F
2<! (Approed raft, 1C1) and the A"A 8tandards elating to the
unction of the ?rial 4udge, ;&.1 (App.raft, 1C2). ?he 8upreme ourt of
alifornia recently recognied the propriety of plea $argaining. 8ee Peo#le
v. 0est , ! al.!d <C<, C1 al.ptr. !9<, & P.2d &BC (1CB). A plea
agreement procedure has recently $een decided in the istrict of olum$ia
ourt of *eneral 8essions upon the recommendation of the :nited 8tates
Attorney. 8ee <1 ... 1BC (1C1).
Where the defendant $y his plea aids in insuring prompt and certain
application of correctional measures, the proper ends of the criminal %ustice
system are furthered $ecause swift and certain punishment seres the endsof $oth general deterrence and the reha$ilitation of the indiidual
defendant. f. +ote, ?he nfluence of the efendant's Plea on 4udicial
etermination of 8entence, DD Jale 6.4. 2B&, 211 (1C<D). Where the
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defendant has ac=nowledged his guilt and shown a willingness to assume
responsi$ility for his conduct, it has $een thought proper to recognie this
in sentencing. 8ee also A6, 7odel Penal ode ;.B1 (P.>.. 1CD2) +PPA
*uides for 8entencing (1C<). *ranting a charge reduction in return for a
plea of guilty may gie the sentencing %udge needed discretion, particularly
where the facts of a case do not warrant the harsh conse@uences of a long
mandatory sentence or collateral conse@uences which are unduly seere. A
plea of guilty aoids the necessity of a pu$lic trial and may protect theinnocent ictim of a crime against the trauma of direct and cross0
eamination.
inally, a plea agreement may also contri$ute to the successful prosecution
of other more serious offenders. 8ee . +ewman, oniction- ?he
etermination of *uilt or nnocence Without ?rial, chs. 2 and ! (1CDD)
+ote, *uilty Plea "argaining- ompromises "y Prosecutors ?o 8ecure
*uilty Pleas, 112 :.Pa.6.e. 9D<, 991 (1CD&).
Where plea discussions and agreements are iewed as proper, it is generally
agreed that it is prefera$le that the fact of the plea agreement $e disclosedin open court and its propriety $e reiewed $y the trial %udge.
We hae preiously recognied plea $argaining as an ineradica$le fact.
ailure to recognie it tends not to destroy it $ut to drie it underground.
We reiterate what we hae said $efore- that when plea $argaining occurs it
ought to $e spread on the record H?he "ench "oo= prepared $y the ederal
4udicial enter for use $y :nited 8tates istrict 4udges now suggests that
the defendant $e as=ed $y the court Kif he $eliees there is any
understanding or if any predictions hae $een made to him concerning the
sentence he will receie.L "ench "oo= for :nited 8tates istrict 4udges,
ederal 4udicial enter (1CDC) at 1.B<.!.I and pu$licly disclosed. &nited
'tates v. 0illiams, &B .2d C&B (&th ir. 1CDC). M M M n the future we thin=
that the district %udges should not only ma=e the general in@uiry under ule
11 as to whether the plea of guilty has $een coerced or induced $y promises, $ut should specifically in@uire of counsel whether plea
$argaining has occurred. 6ogically the general in@uiry should elicit
information a$out plea $argaining, $ut it seldom has in the past. $aines v.
&nited 'tates, &2! .2d <2D, <!B (&th ir. 1CB).
n the past, plea discussions and agreements hae occurred in an informal
and largely inisi$le manner. En=er, Perspecties on Plea "argaining, in
President's ommission on 6aw Enforcement and Administration of
4ustice, ?as= orce eport- ?he ourts 1B9, 11< (1CD). ?here has often
$een a ritual of denial that any promises hae $een made, a ritual in which
%udges, prosecutors, and defense counsel hae participated. A"A 8tandards
elating to Pleas of *uilty ;!.1, ommentary at DBFDC (Approed raft
1CD9) ?as= orce eport- ?he ourts C. onse@uently, there has $een alac= of effectie %udicial reiew of the propriety of the agreements, thus
increasing the ris= of real or apparent unfairness. 8ee A"A 8tandards
elating to Pleas of *uilty ;!.1, ommentary at DB et se@. ?as= orce
eport- ?he ourts CF1!.
?he procedure descri$ed in su$diision (e) is designed to preent a$use of
plea discussions and agreements $y proiding appropriate and ade@uate
safeguards.
8u$diision (e)(1) specifies that the Kattorney for the goernment and the
attorney for the defendant or the defendant when acting pro se mayL participate in plea discussions. ?he inclusion of Kthe defendant when acting pro seL is intended to reflect the fact that there are situations in which a
defendant insists upon representing himself. t may $e desira$le that an
attorney for the goernment not enter plea discussions with a defendant
personally. f necessary, counsel can $e appointed for purposes of plea
discussions. (8u$diision (d) ma=es it mandatory that the court in@uire of
the defendant whether his plea is the result of plea discussions $etween him
and the attorney for the goernment. ?his is intended to ena$le the court to
re%ect an agreement reached $y an unrepresented defendant unless the court
is satisfied that acceptance of the agreement ade@uately protects the rights
of the defendant and the interests of %ustice.) ?his is su$stantially the
position of the A"A 8tandards elating to Pleas of *uilty ;!.1(a),
ommentary at D<FDD (Approed raft, 1CD9). Apparently, it is the practice of most prosecuting attorneys to enter plea discussions only with
defendant's counsel. +ote, *uilty Plea "argaining- ompromises "y
Prosecutors ?o 8ecure *uilty Pleas, 112 :.Pa.6.e. 9D<, CB& (1CD&).
iscussions without $enefit of counsel increase the li=elihood that such
discussions may $e unfair. 8ome courts hae indicated that plea discussions
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in the a$sence of defendant's attorney may $e constitutionally prohi$ited.
8ee Anderson v. North Carolina, 221 .8upp. C!B, C!< (W..+..1CD!)
'ha#e v. 'igler , 2!B .8upp. DB1, DBD (.+e$. 1CD&).
8u$diision (e)(1) is intended to ma=e clear that there are four possi$le
concessions that may $e made in a plea agreement. irst, the charge may $e
reduced to a lesser or related offense. 8econd, the attorney for the
goernment may promise to moe for dismissal of other charges. ?hird, theattorney for the goernment may agree to recommend or not oppose the
imposition of a particular sentence. ourth, the attorneys for the
goernment and the defense may agree that a gien sentence is an
appropriate disposition of the case. ?his is made eplicit in su$diision (e)
(2) where reference is made to an agreement made Kin the epectation that
a specific sentence will $e imposed.L 8ee +ote, *uilty Plea "argaining-
ompromises "y Prosecutors ?o 8ecure *uilty Pleas, 112 :.Pa.6.e.
9D<, 9C9 (1CD&).
8u$diision (e)(1) prohi$its the court from participating in plea
discussions. ?his is the position of the A"A 8tandards elating to Pleas of *uilty ;!.!(a) (Approed raft, 1CD9).
t has $een stated that it is common practice for a %udge to participate in
plea discussions. 8ee . +ewman, oniction- ?he etermination of *uilt
or nnocence Without ?rial !2F<2, 9F1B& (1CDD) +ote, *uilty Plea
"argaining- ompromises "y Prosecutors ?o 8ecure *uilty Pleas, 112
:.Pa.6.e. 9D<, 9C1, CB< (1CD&).
?here are alid reasons for a %udge to aoid inolement in plea
discussions. t might lead the defendant to $eliee that he would not receie
a fair trial, were there a trial $efore the same %udge. ?he ris= of not going
along with the disposition apparently desired $y the %udge might induce the
defendant to plead guilty, een if innocent. 8uch inolement ma=es it
difficult for a %udge to o$%ectiely assess the oluntariness of the plea. 8ee
A"A 8tandards elating to Pleas of *uilty ;!.!(a), ommentary at 2F&(Approed raft, 1CD9) +ote, *uilty Plea "argaining- ompromises "y
Prosecutors ?o 8ecure *uilty Pleas, 112 :.Pa.6.e. 9D<, 9C1F9C2 (1CD&)
omment, >fficial nducements to Plead *uilty- 8uggested 7orals for a
7ar=etplace, !2 :.hi.6.e. 1D, 19BF19! (1CD&) nformal >pinion +o.
C A"A Professional Ethics ommittee (KA %udge should not $e a party to
adance arrangements for the determination of sentence, whether as a result
of a guilty plea or a finding of guilt $ased on proof.L), <1 A.".A.4. &&&
(1CD<). As has $een recently pointed out-
?he une@ual positions of the %udge and the accused, one with the power to
commit to prison and the other deeply concerned to aoid prison, as onceraise a @uestion of fundamental fairness. When a %udge $ecomes a
participant in plea $argaining he $rings to $ear the full force and ma%esty of
his office. 3is awesome power to impose a su$stantially longer or een
maimum sentence in ecess of that proposed is present whether referred to
or not. A defendant needs no reminder that if he re%ects the proposal, stands
upon his right to trial and is conicted, he faces a significantly longer
sentence. &nited 'tates e1 rel. El*snis v. Gilligan , 2<D .8upp. 2&&, 2<&
(8..+.J. 1CDD).
>n the other hand, one commentator has ta=en the position that the %udge
may $e inoled in discussions either after the agreement is reached or tohelp elicit facts and an agreement. En=er, Perspecties on Plea "argaining,in President's ommission on 6aw Enforcement and Administration of
4ustice, ?as= orce eport- ?he ourts 1B9, 11F119 (1CD).
?he amendment ma=es clear that the %udge should not participate in plea
discussions leading to a plea agreement. t is contemplated that the %udge
may participate in such discussions as may occur when the plea agreement
is disclosed in open court. ?his is the position of the recently adopted
llinois 8upreme ourt ule &B2(d)(1) (1CB), ll.e.8tat. 1C!, ch. 11BA,
;&B2(d)(1). As to what may constitute Kparticipation,L contrast Peo#le v.
Earegood , 12 7ich.App. 2<D, 2D9F2DC, 1D2 +.W.2d 9B2, 9BCF91B (1CD9),
with +ruse v. 'tate, & Wis.2d &DB, 1 +.W.2d !22 (1CB).
8u$diision (e)(2) proides that the %udge shall re@uire the disclosure of
any plea agreement in open court. n Peo#le v. 0est , ! al.!d <C<, C1al.ptr. !9<, & P.2d &BC (1CB), the court said-
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H?Ihe $asis of the $argain should $e disclosed to the court and incorporated
in the record. M M M
Without limiting that court to those we set forth, we note four possi$le
methods of incorporation- (1) the $argain could $e stated orally and
recorded $y the court reporter, whose notes then must $e presered or
transcri$ed (2) the $argain could $e set forth $y the cler= in the minutes of
the court (!) the parties could file a written stipulation stating the terms of the $argain (&) finally, counsel or the court itself may find it useful to
prepare and utilie forms for the recordation of plea $argains. C1 al.ptr.
!C!, !C&, & P.2d at &1, &19.
?he istrict of olum$ia ourt of *eneral 8essions is using a K8entence0
ecommendation AgreementL form.
:pon notice of the plea agreement, the court is gien the option to accept
or re%ect the agreement or defer its decision until receipt of the presentence
report.
?he %udge may, and often should, defer his decision until he eamines the
presentence report. ?his is made possi$le $y rule !2 which allows a %udge,
with the defendant's consent, to inspect a presentence report to determinewhether a plea agreement should $e accepted. or a discussion of the use of
conditional plea acceptance, see A"A 8tandards elating to Pleas of *uilty
;!.!($), ommentary at &FD, and 8upplement, Proposed eisions
;!.!($) at 2F! (Approed raft, 1CD9) llinois 8upreme ourt ule &B2(d)
(2) (1CB), ll.e.8tat. 1C!, ch. 11BA, ;&B2(d)(2).
?he plea agreement procedure does not attempt to define criteria for the
acceptance or re%ection of a plea agreement. 8uch a decision is left to the
discretion of the indiidual trial %udge.
8u$diision (e)(!) ma=es is mandatory, if the court decides to accept the
plea agreement, that it inform the defendant that it will em$ody in the
%udgment and sentence the disposition proided in the plea agreement, or
one more faora$le to the defendant. ?his seres the purpose of informingthe defendant immediately that the agreement will $e implemented.
8u$diision (e)(&) re@uires the court, if it re%ects the plea agreement, to
inform the defendant of this fact and to adise the defendant personally, in
open court, that the court is not $ound $y the plea agreement. ?he
defendant must $e afforded an opportunity to withdraw his plea and must
$e adised that if he persists in his guilty plea or plea of nolo contendere,
the disposition of the case may $e less faora$le to him than that
contemplated $y the plea agreement. ?hat the defendant should hae the
opportunity to withdraw his plea if the court re%ects the plea agreement isthe position ta=en in A"A 8tandards elating to Pleas of *uilty,
8upplement, Proposed eisions ;2.1(a)(ii)(<) (Approed raft, 1CD9).
8uch a rule has $een adopted in llinois. llinois 8upreme ourt ule
&B2(d)(2) (1CB), ll.e.8tat. 1C!, ch. 11BA, ;&B2(d)(2).
f the court re%ects the plea agreement and affords the defendant the
opportunity to withdraw the plea, the court is not precluded from accepting
a guilty plea from the same defendant at a later time, when such plea
conforms to the re@uirements of rule 11.
8u$diision (e)(<) ma=es it mandatory that, ecept for good cause shown,the court $e notified of the eistence of a plea agreement at the arraignmentor at another time prior to trial fied $y the court. 3aing a plea entered at
this stage proides a reasona$le time for the defendant to consult with
counsel and for counsel to complete any plea discussions with the attorney
for the goernment. A"A 8tandards elating to Pleas of *uilty ;1.!
(Approed raft, 1CD9). ?he o$%ectie of the proision is to ma=e clear
that the court has authority to re@uire a plea agreement to $e disclosed
sufficiently in adance of trial so as not to interfere with the efficient
scheduling of criminal cases.
8u$diision (e)(D) is ta=en from rule &1B, ules of Eidence for :nited
8tates ourts and 7agistrates (+o. 1C1). 8ee Adisory ommittee +ote
thereto. 8ee also the A"A 8tandards elating to Pleas of *uilty ;2.2
(Approed raft, 1CD9) llinois 8upreme ourt ule &B2(f) (1CB),ll.e.8tat. 1C!, ch. 11BA, ;&B2(f).
8u$diision (f) retains the re@uirement of old rule 11 that the court should
not enter %udgment upon a plea of guilty without ma=ing such an in@uiry as
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will satisfy it that there is a factual $asis for the plea. ?he draft does not
specify that any particular type of in@uiry $e made. 8ee 'antoello v. Ne,
/or* , &B& :.8. 2<, 2D1, C2 8.t. &C<, !B 6.Ed.2d &2 (1C1) K ed.ule
rim.Proc. 11, goerning pleas in federal courts, now ma=es clear that the
sentencing %udge must deelop, on the record, the factual $asis for the plea,
as, for eample, $y haing the accused descri$e the conduct that gae rise
to the charge.L An in@uiry might $e made of the defendant, of the attorneys
for the goernment and the defense, of the presentence report when one isaaila$le, or $y whateer means is appropriate in a specific case. ?his is the
position of the A"A 8tandards elating to Pleas of *uilty ;1.D (Approed
raft, 1CD9). Where in@uiry is made of the defendant himself it may $e
desira$le practice to place the defendant under oath. With regard to a
determination that there is a factual $asis for a plea of guilty to a Klessor or
related offense,L compare A"A 8tandards elating to Pleas of *uilty
;!.1($)(ii), ommentary at DFD9 (Approed raft, 1CD9), with A6,
7odel Penal ode ;1.B(<) (P.>.. 1CD2). ?he rule does not spea= directly
to the issue of whether a %udge may accept a plea of guilty where there is a
factual $asis for the plea $ut the defendant asserts his innocence. North
Carolina v. Alford , &BB :.8. 2<, C1 8.t. 1DB, 2 6.Ed.2d 1D2 (1CB). ?he procedure in such case would seem to $e to deal with this as a plea of nolo
contendere, the acceptance of which would depend upon the %udge's
decision as to whether acceptance of the plea is consistent with Kthe interest
of the pu$lic in the effectie administration of %usticeL Hnew rule 11($)I.
?he defendant who asserts his innocence while pleading guilty or nolo
contendere is often difficult to deal with in a correctional setting, and it
may therefore $e prefera$le to resole the issue of guilt or innocence at the
trial stage rather than leaing that issue unresoled, thus complicating
su$se@uent correctional decisions. ?he rule is intended to ma=e clear that a
%udge may re%ect a plea of nolo contendere and re@uire the defendant either
to plead not guilty or to plead guilty under circumstances in which the
%udge is a$le to determine that the defendant is in fact guilty of the crime towhich he is pleading guilty.
8u$diision (g) re@uires that a er$atim record $e =ept of the proceedings.
f there is a plea of guilty or nolo contendere, the record must include,
without limitation, the court's adice to the defendant, the in@uiry into the
oluntariness of the plea and the plea agreement, and the in@uiry into the
accuracy of the plea. 8uch a record is important in the eent of a
postconiction attac=. A"A 8tandards elating to Pleas of *uilty ;1.
(Approed raft, 1CD9). A similar re@uirement was adopted in llinois-
llinois 8upreme ourt ule &B2(e) (1CB), ll.e.8tat. 1C!, ch. 11BA,
;&B2(e).
+otes of ommittee on the 4udiciary, 3ouse eport +o. C&F2& 1C<
Amendment
A. Amendments Proposed $y the 8upreme ourt. ule 11 of the ederal
ules of riminal Procedure deals with pleas. ?he 8upreme ourt has
proposed to amend this rule etensiely.
ule 11 proides that a defendant may plead guilty, not guilty, or nolo
contendere. ?he 8upreme ourt's amendments to ule 11($) proide that a
nolo contendere plea Kshall $e accepted $y the court only after due
consideration of the iews of the parties and the interest of the pu$lic in the
effectie administration of %ustice.L
?he 8upreme ourt amendments to ule 11(c) spell out the adise that the
court must gie to the defendant $efore accepting the defendant's plea of
guilty or nolo contendere. ?he 8upreme ourt amendments to ule 11(d)set forth the steps that the court must ta=e to insure that a guilty or nolo
contendere plea has $een oluntarily made.
?he 8upreme ourt amendments to ule 11(e) esta$lish a plea agreement
procedure. ?his procedure permits the parties to discuss disposing of a case
without a trial and sets forth the type of agreements that the parties can
reach concerning the disposition of the case. ?he procedure is not
mandatory a court is free not to permit the parties to present plea
agreements to it.
?he 8upreme ourt amendments to ule 11(f) re@uire that the court, $efore
entering %udgment upon a plea of guilty, satisfy itself that Kthere is a factual
$asis for the plea.L ?he 8upreme ourt amendments to ule 11(g) re@uire
that a er$atim record $e =ept of the proceedings at which the defendantenters a plea.
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". ommittee Action. ?he proposed amendments to ule 11, particularly
those relating to the plea negotiating procedure, hae generated much
comment and criticism. +o o$serer is entirely happy that our criminal
%ustice system must rely to the etent it does on negotiated dispositions of
cases. 3oweer, crowded court doc=ets ma=e plea negotiating a fact that
the ederal ules of riminal Procedure should contend with. ?he
ommittee accepts the $asic structure and proisions of ule 11(e).
ule 11(e) as proposed permits each federal court to decide for itself the
etent to which it will permit plea negotiations to $e carried on within its
own %urisdiction. +o court is compelled to permit any plea negotiations at
all. Proposed ule 11(e) regulates plea negotiations and agreements if, and
to the etent that, the court permits such negotiations and agreements.
HProposed ule 11(e) has $een criticied $y some federal %udges who read
it to mandate the court to permit plea negotiations and the reaching of plea
agreements. ?he Adisory ommittee stressed during its testimony that the
rule does not mandate that a court permit any form of plea agreement to $e
presented to it. 8ee, e.g., the remar=s of :nited 8tates ircuit 4udge
William 3. We$ster in 3earings , at 1CD. 8ee also the echange of correspondence $etween 4udge We$ster and :nited 8tates istrict 4udgeran= A. 5aufman in 3earings , at 29CFCB.I
Proposed ule 11(e) contemplates & different types of plea agreements.
irst, the defendant can plead guilty or nolo contendere in return for the
prosecutor's reducing the charge to a less serious offense. 8econd, the
defendant can plead guilty or nolo contendere in return for the prosecutor
dropping, or not $ringing, a charge or charges relating to other offenses.
?hird, the defendant can plead guilty or nolo contendere in return for the
prosecutor's recommending a sentence. ourth, the defendant and
prosecutor can agree that a particular sentence is the appropriate disposition
of the case. Ht is apparent, though not eplicitly stated, that ule 11(e)
contemplates that the plea agreement may $ind the defendant to do morethan %ust plead guilty or nolo contendere. or eample, the plea agreement
may $ind the defendant to cooperate with the prosecution in a different
inestigation. ?he ommittee intends $y its approal of ule 11(e) to
permit the parties to agree on such terms in a plea agreement.I
?he ommittee added language in su$diisions (e)(2) and (e)(&) to permit a
plea agreement to $e disclosed to the court, or re%ected $y it, in camera.
?here must $e a showing of good cause $efore the court can conduct such
proceedings in camera. ?he language does not address itself to whether the
showing of good cause may $e made in open court or in camera. ?hat issue
is left for the courts to resole on a case0$y0case $asis. ?hese changes in
su$diisions (e)(2) and (e)(&) will permit a fair trial when there is
su$stantial media interest in a case and the court is re%ecting a pleaagreement.
?he ommittee added an eception to su$diision (e)(D). ?hat su$diision
proides-
Eidence of a plea of guilty, later withdrawn, or a plea of nolo contendere,
or of an offer to plead guilty or nolo contendere to the crime charged or any
other crime, or of statements made in connection with any of the foregoing
pleas or offers, is not admissi$le in any ciil or criminal proceeding against
the person who made the plea or offer.
?he ommittee's eception permits the use of such eidence in a per%ury or
false statement prosecution where the plea, offer, or related statement wasmade $y the defendant on the record, under oath and in the presence of
counsel. ?he ommittee recognies that een this limited eception may
discourage defendants from $eing completely candid and open during plea
negotiations and may een result in discouraging the reaching of plea
agreements. 3oweer, the ommittee $eliees hat, on $alance, it is more
important to protect the integrity of the %udicial process from willful deceit
and untruthfulness. H?he ommittee does not intend its language to $e
construed as mandating or encouraging the swearing0in of the defendant
during proceedings in connection with the disclosure and acceptance or
re%ection of a plea agreement.I
?he ommittee recast the language of ule 11(c), which deals with the
adice gien to a defendant $efore the court can accept his plea of guilty or nolo contendere. ?he ommittee acted in part $ecause it $elieed that the
warnings gien to the defendant ought to include those that !oy*in v.
Alaama, !C< :.8. 2!9 (1CDC), said were constitutionally re@uired. n
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addition, and as a result of its change in su$diision (e)(D), the ommittee
thought if only fair that the defendant $e warned that his plea of guilty
(later withdrawn) or nolo contendere, or his offer of either plea, or his
statements made in connection with such pleas or offers, could later $e
used against him in a per%ury trial if made under oath, on the record, and in
the presence of counsel.
+otes of onference ommittee, 3ouse eport +o. C&F&1& 1C<Amendment
+ote to su$diision (c). ule 11(c) enumerates certain things that a %udge
must tell a defendant $efore the %udge can accept that defendant's plea of
guilty or nolo contendere. ?he 3ouse ersion epands upon the list
originally proposed $y the 8upreme ourt. ?he 8enate ersion adopts the
8upreme ourt's proposal.
?he onference adopts the 3ouse proision.
+ote to su$diision (e)(1). ule 11(e)(1) outlines some generalconsiderations concerning the plea agreement procedure. ?he 8enate
ersion ma=es nonsu$stantie change in the 3ouse ersion.
?he onference adopts the 8enate proision.
+ote to su$diision (e)(D). ule 11(e)(D) deals with the use of statements
made in connection with plea agreements. ?he 3ouse ersion permits a
limited use of pleas of guilty, later withdrawn, or nolo contendere, offers of
such pleas, and statements made in connection with such pleas or offers.
8uch eidence can $e used in a per%ury or false statement prosecution if the
plea, offer, or related statement was made under oath, on the record, and in
the presence of counsel. ?he 8enate ersion permits eidence of oluntary
and relia$le statements made in court on the record to $e used for the
purpose of impeaching the credi$ility of the declarant or in a per%ury or
false statement prosecution.
?he onference adopts the 3ouse ersion with changes. ?he onference
agrees that neither a plea nor the offer of a plea ought to $e admissi$le for
any purpose. ?he onference0adopted proision, therefore, li=e the 8enate
proision, permits only the use of statements made in connection with a
plea of guilty, later withdrawn, or a plea of nolo contendere, or in
connection with an offer of a guilty or nolo contendere plea.
+otes of Adisory ommittee on ules/1CC Amendment
Note to 'udivision (e)(2). ?he amendment to rule 11(e)(2) is intended toclarify the circumstances in which the court may accept or re%ect a plea
agreement, with the conse@uences specified in su$diision (e)(!) and (&).
?he present language has $een the cause of some confusion and has led to
results which are not entirely consistent. ompare &nited 'tates v. 'arui,
&1D .8upp. D!! (. +.4. 1CD) with &nited 'tates v. (ull , &1! .8upp.
1&< (E.. ?enn. 1CD).
ule 11(e)(1) specifies three types of plea agreements, namely, those in
which the attorney for the goernment might
(A) moe for dismissal of other charges or
(") ma=e a recommendation, or agree not to oppose the defendant's
re@uest, for a particular sentence, with the understanding that such
recommendation or re@uest shall not $e $inding upon the court or
() agree that a specific sentence is the appropriate disposition of the case.
A (") type of plea agreement is clearly of a different order than the other
two, for an agreement to recommend or not to oppose is discharged when
the prosecutor performs as he agreed to do. "y comparison, critical to a
type (A) or () agreement is that the defendant receie the contemplated
charge dismissal or agreed0to sentence. onse@uently, there must ultimately
$e an acceptance or re%ection $y the court of a type (A) or () agreement so
that it may $e determined whether the defendant shall receie the
$argained0for concessions or shall instead $e afforded an opportunity to
withdraw his plea. "ut this is not so as to a type (") agreement there is no
Kdisposition proided forL in such a plea agreement so as to ma=e the
acceptance proisions of su$diision (e)(!) applica$le, nor is there a need
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for re%ection with opportunity for withdrawal under su$diision (e)(&) in
light of the fact that the defendant =new the non$inding character of the
recommendation or re@uest. &nited 'tates v. (enderson, <D< .2d 111C (Cth
ir. 1C) &nited 'tates v. 'avage, <D1 .2d <<& (&th ir. 1C).
"ecause a type (") agreement is distinguisha$le from the others in that it
inoles only a recommendation or re@uest not $inding upon the court, it is
important that the defendant $e aware that this is the nature of theagreement into which he has entered. ?he procedure contemplated $y the
last sentence of amended su$diision (e)(2) will esta$lish for the record
that there is such awareness. ?his proision conforms to A"A 8tandards
elating to Pleas of *uilty ;1.< (Approed raft, 1CD9), which proides
that Kthe court must adise the defendant personally that the
recommendations of the prosecuting attorney are not $inding on the court.L
8ometimes a plea agreement will $e partially $ut not entirely of the (")
type, as where a defendant, charged with counts 1, 2 and !, enters into an
agreement with the attorney for the goernment wherein it is agreed that if
defendant pleads guilty to count 1, the prosecutor will recommend a certainsentence as to that count and will moe for dismissal of counts 2 and !. nsuch a case, the court must ta=e particular care to ensure that the defendant
understands which components of the agreement inole only a (") type
recommendation and which do not. n the a$oe illustration, that part of the
agreement which contemplates the dismissal of counts 2 and ! is an (A)
type agreement, and thus under rule 11(e) the court must either accept the
agreement to dismiss these counts or else re%ect it and allow the defendant
to withdraw his plea. f re%ected, the defendant must $e allowed to
withdraw the plea on count 1 een if the type (") promise to recommend a
certain sentence on that count is =ept, for a multi0faceted plea agreement is
nonetheless a single agreement. >n the other hand, if counts 2 and ! are
dismissed and the sentence recommendation is made, then the defendant is
not entitled to withdraw his plea een if the sentence recommendation isnot accepted $y the court, for the defendant receied all he was entitled to
under the arious components of the plea agreement.
Note to 'udivision (e)(D). ?he ma%or o$%ectie of the amendment to rule
11(e)(D) is to descri$e more precisely, consistent with the original purpose
of the proision, what eidence relating to pleas or plea discussions is
inadmissi$le. ?he present language is suscepti$le to interpretation which
would ma=e it applica$le to a wide ariety of statements made under
arious circumstances other than within the contet of those plea
discussions authoried $y rule 11(e) and intended to $e protected $y
su$diision (e)(D) of the rule. 8ee &nited 'tates v. (erman, <&& .2d C1
(<th ir. 1C), discussed herein.
ed..E. &1B, as originally adopted $y Pu$. 6. C!F<C<, proided in part
that Keidence of a plea of guilty, later withdrawn, or a plea of nolo
contendere, or of an offer to plead guilty or nolo contendere to the crime
charged or any other crime, or of statements made in connection with any
of the foregoing pleas or offers, is not admissi$le in any ciil or criminal
action, case, or proceeding against the person who made the plea or offer.L
(?his rule was adopted with the proiso that it Kshall $e superseded $y any
amendment to the ederal ules of riminal Procedure which is
inconsistent with this rule.L) As the Adisory ommittee +ote eplained-
KEclusion of offers to plead guilty or nolo has as its purpose the
promotion of disposition of criminal cases $y compromise.L ?heamendment of ed..rim.P. 11, transmitted to ongress $y the 8upremeourt in April 1C&, contained a su$diision (e)(D) essentially identical to
the rule &1B language @uoted a$oe, as a part of a su$stantial reision of
rule 11. ?he most significant feature of this reision was the epress
recognition gien to the fact that the Kattorney for the goernment and the
attorney for the defendant or the defendant when acting pro se may engage
in discussions with a iew toward reachingL a plea agreement. 8u$diision
(e)(D) was intended to encourage such discussions. As noted in 3..ep.
+o. C&F2&, C&th ong., 1st 8ess. (1C<), the purpose of su$diision (e)
(D) is to not Kdiscourage defendants from $eing completely candid and
open during plea negotiations.L 8imilarly, 3..ep. +o. C&F&1&, C&th
ong., 1st 8ess. 1B (1C<), states that Kule 11(e)(D) deals with the use of
statements made in connection with plea agreements.L (ule 11(e)(D) wasthereafter enacted, with the addition of the proiso allowing use of
statements in a prosecution for per%ury, and with the @ualification that the
inadmissi$le statements must also $e Kreleant toL the inadmissi$le pleas or
offers. Pu$. 6. C&FD& ed..E. &1B was then amended to conform. Pu$.
6. C&F1&C.)
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While this history shows that the purpose of ed..E. &1B and
ed..rim.P. 11 (e)(D) is to permit the unrestrained candor which
produces effectie plea discussions $etween the Kattorney for the
goernment and the attorney for the defendant or the defendant when
acting pro se,L gien isi$ility and sanction in rule 11(e), a literal reading
of the language of these two rules could reasona$ly lead to the conclusion
that a $roader rule of inadmissi$ility o$tains. ?hat is, $ecause KstatementsL
are generally inadmissi$le if Kmade in connection with, and releant toL anKoffer to plead guilty,L it might $e thought that an otherwise oluntary
admission to law enforcement officials is rendered inadmissi$le merely
$ecause it was made in the hope of o$taining leniency $y a plea. 8ome
decisions interpreting rule 11(e)(D) point in this direction. 8ee &nited
'tates v. (erman, <&& .2d C1 (<th ir. 1C) (defendant in custody of
two postal inspectors during continuance of remoal hearing instigated
conersation with them and at some point said he would plead guilty to
armed ro$$ery if the murder charge was dropped one inspector stated they
were not Kin positionL to ma=e any deals in this regard held, defendant's
statement inadmissi$le under rule 11(e)(D) $ecause the defendant Kmade
the statements during the course of a conersation in which he soughtconcessions from the goernment in return for a guilty pleaL) &nited
'tates v. !roo*s, <!D .2d 11! (Dth ir. 1CD) (defendant telephoned
postal inspector and offered to plead guilty if he got 20year maimum
statement inadmissi$le).
?he amendment ma=es inadmissi$le statements made Kin the course of any
proceedings under this rule regardingL either a plea of guilty later
withdrawn or a plea of nolo contendere, and also statements Kmade in the
course of plea discussions with an attorney for the goernment which do
not result in a plea of guilty or which result in a plea of guilty later
withdrawn.L t is not limited to statements $y the defendant himself, and
thus would coer statements $y defense counsel regarding defendant's
incriminating admissions to him. t thus fully protects the plea discussion process authoried $y rule 11 without attempting to deal with
confrontations $etween suspects and law enforcement agents, which
inole pro$lems of @uite different dimensions. 8ee, e.g., A6 7odel ode
of Pre0Arraignment Procedure, art. 1&B and ;1<B.2(9) (Proposed >fficial
raft, 1C<) (latter section re@uires eclusion if Ka law enforcement officer
induces any person to ma=e a statement $y promising leniencyL). ?his
change, it must $e emphasied, does not compel the conclusion that
statements made to law enforcement agents, especially when the agents
purport to hae authority to $argain, are ineita$ly admissi$le. ather, the
point is that such cases are not coered $y the per se rule of 11(e)(D) and
thus must $e resoled $y that $ody of law dealing with police
interrogations.
f there has $een a plea of guilty later withdrawn or a plea of nolo
contendere, su$diision (e)(D)() ma=es inadmissi$le statements made Kin
the course of any proceedings under this ruleL regarding such pleas. ?his
includes, for eample, admissions $y the defendant when he ma=es his plea
in court pursuant to rule 11 and also admissions made to proide the factual
$asis pursuant to su$diision (f). 3oweer, su$diision (e)(D)() is not
limited to statements made in court. f the court were to defer its decision
on a plea agreement pending eamination of the presentence report, as
authoried $y su$diision (e)(2), statements made to the pro$ation officer
in connection with the preparation of that report would come within this
proision.
?his amendment is fully consistent with all recent and ma%or law reform
efforts on this su$%ect. A6 7odel ode of Pre0Arraignment Procedure
;!<B. (Proposed >fficial raft, 1C<), and A"A 8tandards elating to
Pleas of *uilty ;!.& (Approed raft, 1CD9) $oth proide-
:nless the defendant su$se@uently enters a plea of guilty or nolo
contendere which is not withdrawn, the fact that the defendant or his
counsel and the prosecuting attorney engaged in plea discussions or made a
plea agreement should not $e receied in eidence against or in faor of the
defendant in any criminal or ciil action or administratie proceedings.
?he ommentary to the latter states-
?he a$oe standard is limited to discussions and agreements with the
prosecuting attorney. 8ometimes defendants will indicate to the police their willingness to $argain, and in such instances these statements are
sometimes admitted in court against the defendant. 'tate v. Christian, 2&<
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8.W.2d 9C< (7o.1C<2). f the police initiate this =ind of discussion, this
may hae some $earing on the admissi$ility of the defendant's statement.
3oweer, the policy considerations releant to this issue are $etter dealt
with in the contet of standards goerning in0custody interrogation $y the
police.
8imilarly, :nif..rim.P. &&1(d) (Approed raft, 1C&), proides that
ecept under limited circumstances Kno discussion $etween the parties or statement $y the defendant or his lawyer under this ule,L i.e., the rule
proiding Kthe parties may meet to discuss the possi$ility of pretrial
diersion M M M or of a plea agreement,L are admissi$le. ?he amendment is
li=ewise consistent with the typical state proision on this su$%ect see, e.g.,
ll.8.t. ule &B2(f).
?he language of the amendment identifies with more precision than the
present language the necessary relationship $etween the statements and the
plea or discussion. 8ee the dispute $etween the ma%ority and concurring
opinions in &nited 'tates v. (erman, <&& .2d C1 (<th ir. 1C),
concerning the meanings and effect of the phrases Kconnection toL andKreleant toL in the present rule. 7oreoer, $y relating the statements toKplea discussionsL rather than Kan offer to plead,L the amendment ensures
Kthat een an attempt to open plea $argaining HisI coered under the same
rule of inadmissi$ility.L &nited 'tates v. !roo*s, <!D .2d 11! (Dth ir.
1CD).
?he last sentence of ule 11(e)(D) is amended to proide a second
eception to the general rule of nonadmissi$ility of the descri$ed
statements. :nder the amendment, such a statement is also admissi$le Kin
any proceeding wherein another statement made in the course of the same
plea or plea discussions has $een introduced and the statement ought in
fairness $e considered contemporaneously with it.L ?his change is
necessary so that, when eidence of statements made in the course of or as
a conse@uence of a certain plea or plea discussions are introduced under circumstances not prohi$ited $y this rule (e.g., not KagainstL the person
who made the plea), other statements relating to the same plea or plea
discussions may also $e admitted when releant to the matter at issue. or
eample, if a defendant upon a motion to dismiss a prosecution on some
ground were a$le to admit certain statements made in a$orted plea
discussions in his faor, then other releant statements made in the same
plea discussions should $e admissi$le against the defendant in the interest
of determining the truth of the matter at issue. ?he language of the
amendment follows closely that in ed..Eid. 1BD, as the considerations
inoled are ery similar.
?he phrase Kin any ciil or criminal proceedingL has $een moed from its present position, following the word Kagainst,L for purposes of clarity. An
am$iguity presently eists $ecause the word KagainstL may $e read as
referring either to the =ind of proceeding in which the eidence is offered
or the purpose for which it is offered. ?he change ma=es it clear that the
latter construction is correct. +o change is intended with respect to
proisions ma=ing eidence rules inapplica$le in certain situations. 8ee,
e.g., ed..Eid. 1B& (a) and 11B1(d).
:nli=e A"A 8tandards elating to Pleas of *uilty ;!.& (Approed raft,
1CD9), and A6 7odel ode of Pre0Arraignment Procedure ;!<B.
(Proposed >fficial raft, 1C<), rule 11(e)(D) does not also proide that thedescri$ed eidence is inadmissi$le Kin faor ofL the defendant. ?his is notintended to suggest, howeer, that such eidence will ineita$ly $e
admissi$le in the defendant's faor. 8pecifically, no disapproal is intended
of such decisions as &nited 'tates v. Verdoorn, <29 .2d 1B! (9th ir.
1CD), holding that the trial %udge properly refused to permit the defendants
to put into eidence at their trial the fact the prosecution had attempted to
plea $argain with them, as Kmeaningful dialogue $etween the parties
would, as a practical matter, $e impossi$le if either party had to assume the
ris= that plea offers would $e admissi$le in eidence.L
+otes of Adisory ommittee on ules/1C92 Amendment
Note to 'udivision (c)(1). 8u$diision (c)(1) has $een amended $y
specifying Kthe effect of any special parole termL as one of the matters
a$out which a defendant who has tendered a plea of guilty or nolocontendere is to $e adised $y the court. ?his amendment does not ma=e
any change in the law, as the courts are in agreement that such adice is
presently re@uired $y ule 11. 8ee, e.g., )oore v. &nited 'tates, <C2 .2d
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<! (&th ir. 1CC) &nited 'tates v. Eaton, <C .2d 1191 (1Bth ir. 1C9)
$ihardson v. &nited 'tates, < .2d && (9th ir. 1C9) &nited 'tates v.
Del Prete, <D .2d C29 (Cth ir. 1C9) &nited 'tates v. 0atson, <&9 .2d
1B<9 (..ir. 1C) &nited 'tates v. Cruso, <!D .2d 21 (2d ir. 1CD)
&nited 'tates v. /a2e* , <2& .2d D&1 (1st ir. 1C<) &nited 'tates v.
0ola* , <1B .2d 1D& (Dth ir. 1C<). n &nited 'tates v. Timmre* , &&1 :.8.
9B (1CC), CC 8.t. 2B9<, DB 6.Ed.2d D!& (1CC), the 8upreme ourt
assumed that the %udge's failure in that case to descri$e the mandatoryspecial parole term constituted Ka failure to comply with the formal
re@uirements of the ule.L
?he purpose of the amendment is to draw more specific attention to the fact
that adice concerning special parole terms is a necessary part of ule 11
procedure. As noted in )oore v. &nited 'tates, supra-
8pecial parole is a significant penalty. M M M :nli=e ordinary parole, which
does not inole superision $eyond the original prison term set $y the
court and the iolation of which cannot lead to confinement $eyond that
sentence, special parole increases the possi$le period of confinement. tentails the possi$ility that a defendant may hae to sere his originalsentence plus a su$stantial additional period, without credit for time spent
on parole. Eplanation of special parole in open court is therefore essential
to comply with the ule's mandate that the defendant $e informed of Kthe
maimum possi$le penalty proided $y law.L
As the aforecited cases indicate, in the a$sence of specification of the
re@uirement in the rule it has sometimes happened that such adice has
$een inadertently omitted from ule 11 warnings.
?he amendment does not attempt to enumerate all of the characteristics of
the special parole term which the %udge ought to $ring to the defendant's
attention. 8ome flei$ility in this respect must $e presered although it is
well to note that the uni@ue characteristics of this =ind of parole are such
that they may not $e readily perceied $y laymen. )oore v. &nited 'tatessupra, recommends that in an appropriate case the %udge
inform the defendant and determine that he understands the following-
(1) that a special parole term will $e added to any prison sentence he
receies
(2) the minimum length of the special parole term that must $e imposed
and the a$sence of a statutory maimum
(!) that special parole is entirely different from/and in addition to/
ordinary parole and
(&) that if the special parole is iolated, the defendant can $e returned to
prison for the remainder of his sentence and the full length of his special
parole term.
?he amendment should not $e read as meaning that a failure to comply
with this particular re@uirement will ineita$ly entitle the defendant to
relief. 8ee &nited 'tates v. Timmre* , supra. 6i=ewise, the amendment
ma=es no change in the eisting law to the effect
that many aspects of traditional parole need not $e communicated to thedefendant $y the trial %udge under the um$rella of ule 11. or eample, a
defendant need not $e adised of all conceia$le conse@uences such as
when he may $e considered for parole or that, if he iolates his parole, he
will again $e imprisoned.
!un*er v. 0ise, <<B .2d 11<<, 11<9 (Cth ir. 1C).
Note to 'udivision (c)(&). ?he amendment to su$diision (c)(&) is intended
to oercome the present conflict $etween the introductory language of
su$diision (c), which contemplates the adice $eing gien KH$Iefore
accepting a plea of guilty or nolo contendere,L and thus presuma$ly after
the plea has $een tendered, and the Kif he pleadsL language of su$diision
(c)(&) which suggests the plea has not $een tendered.
As noted $y 4udge oyle in &nited 'tates v. 'inagu, &D9 .8upp. !<!
(W..Wis.1CC)-
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?a=en literally, this wording of su$section (&) of 11(c) suggests that $efore
eliciting any plea at an arraignment, the court is re@uired to insure that a
defendant understands that if he or she pleads guilty or nolo contendere, the
defendant will $e waiing the right to trial. :nder su$section (!) of 11(c),
howeer, there is no re@uirement that at this pre0plea stage, the court must
insure that the defendant understands that he or she en%oys the right to a
trial and, at trial, the right to the assistance of counsel, the right to confront
and cross0eamine witnesses against him or her, and the right not to $ecompelled to incriminate himself or herself. t would $e incongruous to
re@uire that at the pre0plea stage the court insure that the defendant
understands that if he enters a plea of guilty or nolo contendere he will $e
waiing a right, the eistence and nature of which need not $e eplained
until after such a plea has $een entered. conclude that the insertion of the
words Kthat if he pleads guilty or nolo contendere,L as they appear in
su$section (&) of 11(c), was an accident of draftsmanship which occurred in
the course of ongressional rewriting of 11(c) as it has $een approed $y
the 8upreme ourt. ?hose words are to $e construed consistently with the
words K"efore accepting a plea of guilty or nolo contendere,L as they
appear in the opening language of 11(c), and consistently with the omissionof the words Kthat if he pleadsL from su$sections (1), (2), and (!) of 11(c).
?hat is, as they appear in su$section (&) of 11(c), the words, Kthat if he
pleads guilty or nolo contendereL should $e construed to mean Kthat if his
plea of guilty or nolo contendere is accepted $y the court.L
Although this is a ery logical interpretation of the present language, the
amendment will aoid the necessity to engage in such analysis in order to
determine the true meaning of su$diision (c)(&).
Note to 'udivision (c)(<). 8u$diision (c)(<), in its present form, may
easily $e read as contemplating that in eery case in which a plea of guiltyor nolo contendere is tendered, warnings must $e gien a$out the possi$le
use of defendant's statements, o$tained under oath, on the record and in the presence of counsel, in a later prosecution for per%ury or false statement.
?he language has prompted some courts to reach the remar=a$le result that
a defendant who pleads guilty or nolo contendere without receiing those
warnings must $e allowed to oerturn his plea on appeal een though he
was neer @uestioned under oath, on the record, in the presence of counsel
a$out the offense to which he pleaded. &nited 'tates v. Artis, +o. 9F<B12
(&th ir. 7arch 12, 1CC) &nited 'tates v. !oone, <&! .2d 1BCB (&th ir.
1CD). ompare &nited 'tates v. )ihaelson, <<2 .2d &2 (2d ir. 1C)
(failure to gie su$diision (c)(<) warnings not a $asis for reersal, Kat least
when, as here, defendant was not put under oath $efore @uestioning a$out
his guilty pleaL). ?he present language of su$diision (c)(<) may also hae
contri$uted to the conclusion, not otherwise supported $y the rule, that
Kule 11 re@uires that the defendant $e under oath for the entirety of the proceedingsL conducted pursuant to that rule and that failure to place the
defendant under oath would itself ma=e necessary oerturning the plea on
appeal. &nited 'tates v. Aldridge, <<! .2d C22 (<th ir. 1C).
When @uestioning of the =ind descri$ed in su$diision (c)(<) is not
contemplated $y the %udge who is receiing the plea, no purpose is sered
$y giing the (c)(<) warnings, which in such circumstances can only
confuse the defendant and detract from the force of the other warnings
re@uired $y ule 11. As correctly noted in &nited 'tates v. 'inagu, supra,
su$section (<) of section (c) of ule 11 is @ualitatiely distinct from theother sections of the ule. t does not go to whether the plea is =nowinglyor oluntarily made, nor to whether the plea should $e accepted and
%udgment entered. ather, it does go to the possi$le conse@uences of an
eent which may or may not occur during the course of the arraignment
hearing itself, namely, the administration of an oath to the defendant.
Whether this eent is to occur is wholly within the control of the presiding
%udge. f the eent is not to occur, it is pointless to inform the defendant of
its conse@uences. f a presiding %udge intends that an oath not $e
administered to a defendant during an arraignment hearing, $ut alters that
intention at some point, only then would the need arise to inform the
defendant of the possi$le conse@uences of the administration of the oath.
?he amendment to su$diision (c)(<) is intended to ma=e it clear that this is
the case.
?he amendment limits the circumstances in which the warnings must $e
gien, $ut does not change the fact, as noted in 'inagu that these warnings
are K@ualitatiely distinctL from the other adice re@uired $y ule 11(c).
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?his $eing the case, a failure to gie the su$diision (c)(<) warnings een
when the defendant was @uestioned under oath, on the record and in the
presence of counsel would in no way affect the alidity of the defendant's
plea. ather, this failure $ears upon the admissi$ility of defendant's
answers pursuant to su$diision (e)(D) in a later prosecution for per%ury or
false statement.
+otes of Adisory ommittee on ules/1C9! Amendment
Note to 'udivision (a). ?here are many defenses, o$%ections and re@uests
which a defendant must ordinarily raise $y pretrial motion. 8ee, e.g., 19
:.8.. ;!1D2(a)(2) ed..rim.P.12($). 8hould that motion $e denied,
interlocutory appeal of the ruling $y the defendant is seldom permitted. 8ee
&nited 'tates v. )aDonald , &!< :.8. 9<B (1C9) (defendant may not
appeal denial of his motion to dismiss $ased upon 8ith Amendment
speedy trial grounds) Di!ella v. &nited 'tates, !DC :.8. 121 (1CD2)
(defendant may not appeal denial of pretrial motion to suppress eidence)
compare Aney v. &nited 'tates, &!1 :.8. D<1 (1C) (interlocutory appeal
of denial of motion to dismiss on dou$le %eopardy grounds permissi$le).7oreoer, should the defendant thereafter plead guilty or nolo contendere,this will usually foreclose later appeal with respect to denial of the pretrial
motion KWhen a criminal defendant has solemnly admitted in open court
that he is in fact guilty of the offense with which he is charged, he may not
thereafter raise independent claims relating to the depriation of
constitutional rights that occurred prior to the entry of the guilty plea.L
Tollett v. (enderson, &11 :.8. 2<9, (1C!). ?hough a nolo plea differs from
a guilty plea in other respects, it is clear that it also constitutes a waier of
all non%urisdictional defects in a manner e@uialent to a guilty plea. -ott v.
&nited 'tates, !D :.8. &21 (1CD1).
As a conse@uence, a defendant who has lost one or more pretrial motions
will often go through an entire trial simply to presere the pretrial issues for
later appellate reiew. ?his results in a waste of prosecutorial and %udicialresources, and causes delay in the trial of other cases, contrary to the
o$%ecties underlying the 8peedy ?rial Act of 1C&, 19 :.8.. ;!1D1 et
se@. ?hese unfortunate conse@uences may $e aoided $y the conditional
plea deice epressly authoried $y new su$diision (a)(2).
?he deelopment of procedures to aoid the necessity for trials which are
underta=en for the sole purpose of presering pretrial o$%ections has $een
consistently faored $y the commentators. 8ee A"A 8tandards elating to
the Administration of riminal 4ustice, standard 21F1.!(c) (2d ed. 1C9)
7odel ode of Pre0Arraignment Procedure ;88 2CB.1(&)($) (1C<)
:niform ules of riminal Procedure, rule &&&(d) (Approed raft, 1C&)
1 . Wright, ederal Practice and Procedure / riminal ;1< (1CDC) ! W.
6aae, 8earch and 8eiure ;11.1 (1C9). ?he 8upreme ourt hascharacteried the +ew Jor= practice, where$y appeals from suppression
motions may $e appealed notwithstanding a guilty plea, as a
Kcommenda$le effort to reliee the pro$lem of congested trial calendars in
a manner that does not diminish the opportunity for the assertion of rights
guaranteed $y the onstitution.L -ef*o,it2 v. Ne,some, &2B :.8. 29!, 2C!
(1C<). ?hat ourt has neer discussed conditional pleas as such, $ut has
permitted without comment a federal appeal on issues presered $y a
conditional plea. "aen v. &nited 'tates, !91 :.8. 21& (1CD<).
n the a$sence of specific authoriation $y statute or rule for a conditional
plea, the circuits hae diided on the permissi$ility of the practice. ?wocircuits hae actually approed the entry of conditional pleas, &nited 'tatesv. !ur*e, <1 .2d ! (2d ir. 1C<) &nited 'tates v. )os*o,, <99 .2d
992 (!d ir. 1C9) and two others hae praised the conditional plea
concept, &nited 'tates v. Clar* , &<C .2d C (9th ir. 1C2) &nited 'tates
v. Dorsey, &&C .2d 11B& (..ir. 1C1). ?hree circuits hae epressed the
iew that a conditional plea is logically inconsistent and thus improper,
&nited 'tates v. !ro,n, &CC .2d 92C (th ir. 1C&) &nited 'tates v. 'e#e,
&2 .2d 9&, aff'd en $anc, &9D .2d 1B&& (<th ir. 1C!) &nited 'tates v.
Co1, &D& .2d C! (Dth ir. 1C2) three others hae determined only that
conditional pleas are not now authoried in the federal system, &nited
'tates v. !enson, <C .2d <B9 (Cth ir. 1C9) &nited 'tates v. Nooner , <D<.2d D!! (1Bth ir. 1C) &nited 'tates v. )atthe,s, &2 .2d 11! (&th
ir. 1C!) while one circuit has resered %udgment on the issue, &nited 'tates v. 0ar,ar , &9 .2d 119! (1st ir. 1C!). (At the state leel, a few
%urisdictions $y statute allow appeal from denial of a motion to suppress
notwithstanding a su$se@uent guilty plea, al. Penal ode ;1<!9.< (m)
+.J.rim. Proc. 6aw ;1B.2B(1) Wis.8tat.Ann. ;C1.!1 (1B), $ut in the
a$sence of such a proision the state courts are also in disagreement as to
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whether a conditional plea is permissi$le see cases collected in omment,
2D :..6.A. 6.e. !DB, !! (1C9).)
?he conditional plea procedure proided for in su$diision (a)(2) will, as
preiously noted, sere to consere prosecutorial and %udicial resources and
adance speedy trial o$%ecties. t will also produce much needed
uniformity in the federal system on this matter see &nited 'tates v. Clar* ,
supra, noting the split of authority and urging resolution $y statute or rule.Also, the aaila$ility of a conditional plea under specified circumstances
will aid in clarifying the fact that traditional, un@ualified pleas do constitute
a waier of non%urisdictional defects. 8ee &nited 'tates v. Nooner , supra
(defendant sought appellate reiew of denial of pretrial suppression motion,
despite his prior un@ualified guilty plea, claiming the 8econd ircuit
conditional plea practice led him to $eliee a guilty plea did not $ar appeal
of pretrial issues).
?he o$ious adantages of the conditional plea procedure authoried $y
su$diision (a)(2) are not outweighed $y any significant or compelling
disadantages. As noted in omment, supra, at !<- Kour ma%or argumentshae $een raised $y courts disapproing of conditioned pleas. ?heo$%ections are that the procedure encourages a flood of appellate litigation,
militates against achieing finality in the criminal process, reduces
effectieness of appellate reiew due to the lac= of a full trial record, and
forces decision on constitutional @uestions that could otherwise $e aoided
$y ino=ing the harmless error doctrine.L "ut, as concluded therein, those
Karguments do not withstand close analysis.L $id.
As for the first of those arguments, eperience in states which hae
permitted appeals of suppression motions notwithstanding a su$se@uent
plea of guilty is most releant, as conditional pleas are li=ely to $e mostcommon when the o$%ectie is to appeal that =ind of pretrial ruling. ?hat
eperience has shown that the num$er of appeals has not increased
su$stantially. 8ee omment, C 3ous.6.e. !B<, !1<F1C (1C1). ?heminimal added $urden at the appellate leel is certainly a small price to pay
for aoiding otherwise unnecessary trials.
As for the o$%ection that conditional pleas conflict with the goernment's
interest in achieing finality, it is li=ewise without force. While it is true
that the conditional plea does not hae the complete finality of the
traditional plea of guilty or nolo contendere $ecause Kthe essence of the
agreement is that the legal guilt of the defendant eists only if the
prosecution's caseL suries on appeal, the plea
continues to sere a partial state interest in finality, howeer, $yesta$lishing admission of the defendant's factual guilt. ?he defendant
stands guilty and the proceedings come to an end if the resered issue is
ultimately decided in the goernment's faor.
omment, 2D :..6.A. 6.e. !DB, !9 (1C9).
?he claim that the lac= of a full trial record precludes effectie appellate
reiew may on occasion $e releant. f. &nited 'tates v. )aDonald , supra
(holding interlocutory appeal not aaila$le for denial of defendant's pretrial
motion to dismiss, on speedy trial grounds, and noting that Kmost speedy
trial claims M M M are $est considered only after the releant facts hae $eendeeloped at trialL). 3oweer, most of the o$%ections which would li=ely
$e raised $y pretrial motion and presered for appellate reiew $y aconditional plea are su$%ect to appellate resolution without a trial record.
ertainly this is true as to the ery common motion to suppress eidence,
as is indicated $y the fact that appellate courts presently decide such issues
upon interlocutory appeal $y the goernment.
With respect to the o$%ection that conditional pleas circument application
of the harmless error doctrine, it must $e ac=nowledged that KHaI$sent a full
trial record, containing all the goernment's eidence against the defendant,
inocation of the harmless error rule is argua$ly impossi$le.L omment,supra, at !9B. "ut, the harmless error standard with respect to constitutional
o$%ections is sufficiently high, see Cha#man v. California, !9D :.8. 19
(1CD), that relatiely few appellate decisions result in affirmance upon that
$asis. ?hus it will only rarely $e true that the conditional plea deice willcause an appellate court to consider constitutional @uestions which could
otherwise hae $een aoided $y inocation of the doctrine of harmless
error.
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?o the etent that these or related o$%ections would otherwise hae some
su$stance, they are oercome $y the proision in ule 11(a)(2) that the
defendant may enter a conditional plea only Kwith the approal of the court
and the consent of the goernment.L (n this respect, the rule adopts the
practice now found in the 8econd ircuit.) ?he re@uirement of approal $y
the court is most appropriate, as it ensures, for eample, that the defendant
is not allowed to ta=e an appeal on a matter which can only $e fully
deeloped $y proceeding to trial cf. &nited 'tates v. )aDonald , supra. Asfor consent $y the goernment, it will ensure that conditional pleas will $e
allowed only when the decision of the court of appeals will dispose of the
case either $y allowing the plea to stand or $y such action as compelling
dismissal of the indictment or suppressing essential eidence. A$sent such
circumstances, the conditional plea might only sere to postpone the trial
and re@uire the goernment to try the case after su$stantial delay, during
which time witnesses may $e lost, memories dimmed, and the offense
grown so stale as to lose %ury appeal. ?he goernment is in a uni@ue
position to determine whether the matter at issue would $e case0dispositie,
and, as a party to the litigation, should hae an a$solute right to refuse to
consent to potentially pre%udicial delay. Although it was suggested in&nited 'tates v. )os*o,, supra, that the goernment should hae no right
to preent the entry of a conditional plea $ecause a defendant has no
compara$le right to $loc= goernment appeal of a pretrial ruling pursuant
to 19 :.8.. ;!!1, that analogy is unconincing. ?hat statute re@uires the
goernment to certify that the appeal is not ta=en for purposes of delay.
7oreoer, where the pretrial ruling is case0dispositie, ;!!1 is the only
mechanism $y which the goernment can o$tain appellate reiew, $ut a
defendant may always o$tain reiew $y pleading not guilty.
:nli=e the state statutes cited earlier, ule 11(a)(2) is not limited to
instances in which the pretrial ruling the defendant wishes to appeal was in
response to defendant's motion to suppress eidence. ?hough it may $e true
that the conditional plea deice will $e most commonly employed as to
such rulings, the o$%ecties of the rule are well sered $y etending it to
other pretrial rulings as well. 8ee, e.g., A"A 8tandards, supra (declaring the
+ew Jor= proision Kshould $e enlarged to include other pretrial
defensesL) :niform ules of riminal Procedure, rule &&&(d) (Approedraft, 1C&) (Kany pretrial motion which, if granted, would $e dispositie
of the caseL).
?he re@uirement that the conditional plea $e made $y the defendant
Kresering in writing the right to appeal from the aderse determination of
any specified pretrial motion,L though etending $eyond the 8econd ircuit
practice, will ensure careful attention to any conditional plea. t will
document that a particular plea was in fact conditional, and will identify
precisely what pretrial issues hae $een presered for appellate reiew. "y
re@uiring this added step, it will $e possi$le to aoid entry of a conditional
plea without the considered ac@uiescence of the goernment (see &nited 'tates v. !ur*e, supra, holding that failure of the goernment to o$%ect toentry of a conditional plea constituted consent) and post0plea claims $y the
defendant that his plea should $e deemed conditional merely $ecause it
occurred after denial of his pretrial motions (see &nited 'tates v. Nooner ,
supra).
t must $e emphasied that the only aenue of reiew of the specified
pretrial ruling permitted under a rule 11(a)(2) conditional plea is an appeal,
which must $e $rought in compliance with ed..App.P. & ($). elief ia
29 :.8.. ;22<< is not aaila$le for this purpose.
?he 8upreme ourt has held that certain =inds of constitutional o$%ections
may $e raised after a plea of guilty. )enna v. Ne, /or* , &2! :.8. D1 (1C<)
(dou$le %eopardy iolation) !la*ledge v. Perry, &1 :.8. 21 (1C&) (due process iolation $y charge enhancement following defendant's eercise of
right to trial de noo). 8u$diision 11(a)(2) has no application to such
situations, and should not $e interpreted as either $roadening or narrowing
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the )enna3!la*ledge doctrine or as esta$lishing procedures for its
application.
Note to 'udivision (h). 8u$diision (h) ma=es clear that the harmless error
rule of ule <2(a) is applica$le to ule 11. ?he proision does not,
howeer, attempt to define the meaning of Kharmless error,L which is left to
the case law. Prior to the amendments which too= effect on ec. 1, 1C<,
ule 11 was ery $rief it consisted of $ut four sentences. ?he 1C<amendments increased significantly the procedures which must $e
underta=en when a defendant tenders a plea of guilty or nolo contendere,
$ut this change was warranted $y the Ktwo principal o$%ectiesL then
identified in the Adisory ommittee +ote- (1) ensuring that the defendant
has made an informed plea and (2) ensuring that plea agreements are
$rought out into the open in court. An ineita$le conse@uence of the 1C<
amendments was some increase in the ris= that a trial %udge, in a particular
case, might inadertently deiate to some degree from the procedure which
a ery literal reading of ule 11 would appear to re@uire.
?his $eing so, it $ecame more apparent than eer that ule 11 should not $e gien such a cra$$ed interpretation that ceremony was ealted oer su$stance. As stated in &nited 'tates v. 'arf , <<1 .2d 112& (9th ir.
1C), concerning amended ule 11- Kt is a salutary rule, and district
courts are re@uired to act in su$stantial compliance with it although M M M
ritualistic compliance is not [email protected] As similarly pointed out in &nited
'tates v. 'aft , <<9 .2d 1B! (2d ir. 1C),
the ule does note say that compliance can $e achieed only $y reading the
specified items in hae vera. ongress meant to strip district %udges of
freedom to decide ,hat they must eplain to a defendant who wishes to
plead guilty, not to tell them precisely ho, to perform this important tas= inthe great ariety of cases that would come $efore them. While a %udge who
contents himself with literal application of the ule will hardly $e reersed,
it cannot $e supposed that ongress preferred this to a more meaningfuleplanation, proided that all the specified elements were coered.
?wo important points logically flow from these sound o$serations. >ne
concerns the matter of construing ule 11- it is not to $e read as re@uiring a
litany or other ritual which can $e carried out only $y word0for0word
adherence to a set Kscript.L ?he other, specifically addressed in new
su$diision (h), is that een when it may $e concluded ule 11 has not
$een complied with in all respects, it does not ineita$ly follow that the
defendant's plea of guilty or nolo contendere is inalid and su$%ect to $eing
oerturned $y any remedial deice then aaila$le to the defendant.
+otwithstanding the declaration in ule <2(a) that KHaIny error, defect,irregularity or ariance which does not affect su$stantial rights shall $e
disregarded,L there has eisted for some years considera$le disagreement
concerning the applica$ility of the harmless error doctrine to ule 11
iolations. n large part, this is attri$uta$le to uncertainty as to the
continued itality and the reach of )Carthy v. &nited 'tates, !C& :.8. &<C
(1CDC). n )Carthy, inoling a direct appeal from a plea of guilty
$ecause of noncompliance with ule 11, the ourt concluded
that pre%udice inheres in a failure to comply with ule 11, for
noncompliance depries the defendant of the ule's procedural safeguards,
which are designed to facilitate a more accurate determination of theoluntariness of his plea. >ur holding HisI that a defendant whose plea has $een accepted in iolation of ule 11 should $e afforded the opportunity to
plead anew M M M.
)Carthy has $een most fre@uently relied upon in cases where, as in that
case, the defendant sought relief $ecause of a ule 11 iolation $y the
aenue of direct appeal. t has $een held that in such circumstances a
defendant's coniction must $e reersed wheneer the Kdistrict court
accepts his guilty plea without fully adhering to the procedure proided for
in ule 11,L &nited 'tates v. !oone, <&! .2d 1BCB (&th ir. 1CD), and that
in this contet any reliance $y the goernment on the ule <2(a) harmlesserror concept Kmust $e re%ected.L &nited 'tates v. "ournet , <&& .2d D!! (2d
ir. 1CD). >n the other hand, decisions are to $e found ta=ing a harmless
error approach on direct appeal where it appeared the nature and etent of the deiation from ule 11 was such that it could not hae had any impact
on the defendant's decision to plead or the fairness in now holding him to
his plea. &nited 'tates v. Peters, +o. F1BB (&th ir., ec. 22, 1C9)
(where %udge failed to comply fully with ule 11(c)(1), in that defendant
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not correctly adised of maimum years of special parole term $ut was told
it is at least ! years, and defendant thereafter sentenced to 1< years plus !0
year special parole term, goernment's motion for summary affirmance
granted, as Kthe error was harmlessL) &nited 'tates v. Coronado, <<& .2d
1DD (<th ir. 1C) (court first holds that charge of conspiracy re@uires
some eplanation of what conspiracy means to comply with ule 11(c)(1),
$ut then finds no reersi$le error K$ecause the rule 11 proceeding on its
face discloses, despite the trial court's failure sufficiently to ma=e there@uired eplicitation of the charges, that oronado understood themL).
"ut this conflict has not $een limited to cases inoling nothing more than
a direct appeal following defendant's plea. or eample, another type of
case is that in which the defendant has $ased a post0sentence motion to
withdraw his plea on a ule 11 iolation. ule !2(d) says that such a
motion may $e granted Kto correct manifest in%ustice,L and some courts
hae relied upon this latter proision in holding that post0sentence plea
withdrawal need not $e permitted merely $ecause ule 11 was not fully
complied with and that instead the district court should hold an eidentiary
hearing to determine Kwhether manifest in%ustice will result if theconiction $ased on the guilty plea is permitted to stand.L &nited 'tates v.'arf , <<1 .2d 112& (9th ir. 1C). >thers, howeer, hae held that
)Carthy applies and preails oer the language of ule !2(d), so that Ka
failure to scrupulously comply with ule 11 will inalidate a plea without a
showing of manifest in%ustice.L &nited 'tates v. Cantor , &DC .2d &!< (!d
ir. 1C2).
isagreement has also eisted in the contet of collateral attac= upon pleas
pursuant to 29 :.8.. ;22<<. >n the one hand, it has $een concluded that
KHnIot eery iolation of ule 11 re@uires that the plea $e set asideL in a
;22<< proceeding, and that Ka guilty plea will $e set aside on collateralattac= only where to not do so would result in a miscarriage of %ustice, or
where there eists eceptional circumstances %ustifying such relief.L Evers
v. &nited 'tates, <C .2d 1 (1Bth ir. 1C9). ?he contrary iew was that
)Carthy goerned in ;22<< proceedings $ecause Kthe 8upreme ourt
hinted at no eceptions to its policy of strict enforcement of ule 11.L
Timmre* v. &nited 'tates, < .2d ! (Dth ir. 1C9). "ut a unanimous
8upreme ourt resoled this conflict in &nited 'tates v. Timmre* , &&1
:.8. 9B (1CC), where the ourt concluded that the reasoning of (ill v.
&nited 'tates, !D9 :.8. &2& (1CD2) (ruling a collateral attac= could not $e
predicated on a iolation of ule !2(a))
is e@ually applica$le to a formal iolation of ule 11.M M M
ndeed, if anything, this case may $e a stronger one for foreclosing
collateral relief than the (ill case. or the concern with finality sered $ythe limitation on collateral attac= has special force with respect to
conictions $ased on guilty pleas.
KEery inroad on the concept of finality undermines confidence in the
integrity of our procedures and, $y increasing the olume of %udicial wor=,
ineita$ly delays and impairs the orderly administration of %ustice. ?he
impact is greatest when new grounds for setting aside guilty pleas are
approed $ecause the ast ma%ority of criminal conictions result from
such pleas. 7oreoer, the concern that unfair procedures may hae resulted
in the coniction of an innocent defendant is only rarely raised $y a petition
to set aside a guilty plea.L
?his interest in finality is strongest in the collateral attac= contet the ourt
was dealing with in Timmre* , which eplains why the ourt there adoptedthe (ill re@uirement that in a ;22<< proceeding the rule iolation must
amount to Ka fundamental defect which inherently results in a complete
miscarriage of %usticeL or Kan omission inconsistent with the rudimentary
demands of fair procedure.L ?he interest in finality of guilty pleas
descri$ed in Timmre* is of somewhat lesser weight when a direct appeal is
inoled (so that the (ill standard is o$iously inappropriate in that
setting), $ut yet is sufficiently compelling to ma=e unsound the proposition
that reersal is re@uired een where it is apparent that the ule 11 iolationwas of the harmless error ariety.
?hough the )Carthy per se rule may hae $een %ustified at the time and in
the circumstances which o$tained when the plea in that case was ta=en, this
is no longer the case. or one thing, it is important to recall that )Carthydealt only with the much simpler pre01C< ersion of ule 11, which
re@uired only a $rief procedure during which the chances of a minor,
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insignificant and inadertent deiation were relatiely slight. ?his means
that the chances of a truly harmless error (which was not inoled in
)Carthy in any eent, as the %udge made no in@uiry into the defendant's
understanding of the nature of the charge, and the goernment had
presented only the etreme argument that a court Kcould properly assume
that petitioner was entering that plea with a complete understanding of the
charge against himL merely from the fact he had stated he desired to plead
guilty) are much greater under present ule 11 than under the ersion $efore the ourt in )Carthy. t also means that the more ela$orate and
lengthy procedures of present ule 11, again as compared with the ersion
applied in )Carthy, ma=e it more apparent than eer that a guilty plea is
not Ka mere gesture, a temporary and meaningless formality reersi$le at
the defendant's whim,L $ut rather K Oa grae and solemn act,# which is
Oaccepted only with care and discernment.# L &nited 'tates v. !ar*er , <1&
.2d 2B9 (..ir.1C<), @uoting from !rady v. &nited 'tates, !C :.8.
&2 (1CB). A plea of that character should not $e oerturned, een on
direct appeal, when there has $een a minor and technical iolation of ule
11 which amounts to harmless error.
8econdly, while )Carthy inoled a situation in which the defendant's plea of guilty was $efore the court of appeals on direct appeal, the 8upreme
ourt appears to hae $een primarily concerned with ;22<<0type cases, for
the ourt referred eclusiely to cases of that =ind in the course of
concluding that a per se rule was %ustified as to ule 11 iolations $ecause
of Kthe difficulty of achieing Hrule 11'sI purposes through a post0
coniction oluntariness hearing.L "ut that reasoning has now $een
su$stantially undercut $y &nited 'tates v. Timmre* , supra, for the ourt
there concluded ;22<< relief Kis not aaila$le when all that is shown is a
failure to comply with the formal re@uirements of the ule,L at least a$sent
Kother aggraating circumstances,L which presuma$ly could often only $edeeloped in the course of a later eidentiary hearing.
Although all of the aforementioned considerations support the policy
epressed in new su$diision (h), the Adisory ommittee does wish to
emphasie two important cautionary notes. ?he first is that su$diision (h)
should not $e read as supporting etreme or speculatie harmless error
claims or as, in effect, nullifying important ule 11 safeguards. ?here
would not $e harmless error under su$diision (h) where, for eample, as
in )Carthy, there had $een a$solutely no in@uiry $y the %udge into
defendant's understanding of the nature of the charge and the harmless error
claim of the goernment rests upon nothing more than the assertion that it
may $e KassumedL defendant possessed such understanding merely $ecause
he epressed a desire to plead guilty. 6i=ewise, it would not $e harmless
error if the trial %udge totally a$dicated to the prosecutor the responsi$ility
for giing to the defendant the arious ule 11 warnings, as this Kresults inthe creation of an atmosphere of su$tle coercion that clearly contraenes
the policy $ehind ule 11.L &nited 'tates v. Croo* , <2D .2d B9 (<th ir.
1CD).
ndeed, it is fair to say that the =inds of ule 11 iolations which might $e
found to constitute harmless error upon direct appeal are fairly limited, as
in such instances the matter Kmust $e resoled solely on the $asis of the
ule 11 transcriptL and the other portions (e.g., sentencing hearing) of the
limited record made in such cases. &nited 'tates v. Coronado, supra.
llustratie are- where the %udge's compliance with su$diision (c)(1) was
not a$solutely complete, in that some essential element of the crime wasnot mentioned, $ut the defendant's responses clearly indicate his awarenessof that element, see &nited 'tates v. Coronado, supra where the %udge's
compliance with su$diision (c)(2) was erroneous in part in that the %udge
understated the maimum penalty somewhat, $ut the penalty actually
imposed did not eceed that indicated in the warnings, see &nited 'tates v.
Peters, supra and where the %udge completely failed to comply with
su$diision (c)(<), which of course has no $earing on the alidity of the
plea itself, cf. &nited 'tates v. 'inagu, supra.
?he second cautionary note is that su$diision (h) should not $e read as an
initation to trial %udges to ta=e a more casual approach to ule 11 proceedings. t is still true, as the 8upreme ourt pointed out in )Carthy,
that thoughtful and careful compliance with ule 11 $est seres the causeof fair and efficient administration of criminal %ustice, as it
will help reduce the great waste of %udicial resources re@uired to process
the friolous attac=s on guilty plea conictions that are encouraged, and are
more difficult to dispose of, when the original record is inade@uate. t is,
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therefore, not too much to re@uire that, $efore sentencing defendants to
years of imprisonment, district %udges ta=e the few minutes necessary to
inform them of their rights and to determine whether they understand the
action they are ta=ing.
8u$diision (h) ma=es no hange in the responsi$ilities of the %udge at ule
11 proceedings, $ut instead merely re%ects the etreme sanction of
automatic reersal.
t must also $e emphasied that a harmless error proision has $een added
to ule 11 $ecause some courts hae read )Carthy as meaning that the
general harmless error proision in ule <2(a) cannot $e utilied with
respect to ule 11 proceedings. ?hus, the addition of su$diision (h) should
not $e read as suggesting that ule <2(a) does not apply in other
circumstances $ecause of the a$sence of a proision compara$le to
su$diision (h) attached to other rules.
+otes of Adisory ommittee on ules/1C9< Amendment
Note to 'udivision (c)(1). 8ection < of the Gictim and Witness Protection
Act of 1C92, Pu$. 6. +o. CF2C1, CD 8tat. 12&9 (1C92), adds 19 :.8..
;!<C, proiding that when sentencing a defendant conicted of a ?itle 19offense or of iolating arious su$sections of the ederal Aiation Act of
1C<9, the court Kmay order, in addition to or in lieu of any other penalty
authoried $y law, that the defendant ma=e restitution to any ictim of the
offense.L :nder this law restitution is faored if the court Kdoes not order
restitution, or orders only partial restitution, . . . the court shall state on the
record the reasons therefor.L "ecause this restitution is deemed an aspect of
the defendant's sentence, 8. ept. +o. CF<!2, Cth ong., 2d 8ess., !BF!!
(1C92), it is a matter a$out which a defendant tendering a plea of guilty or nolo contendere should $e adised.
"ecause this new legislation contemplates that the amount of the restitution
to $e ordered will $e ascertained later in the sentencing process, this
amendment to ule 11(c)(1) merely re@uires that the defendant $e told of the court's power to order restitution. ?he eact amount or upper limit
cannot and need not $e stated at the time of the plea. ailure of a court to
adise a defendant of the possi$ility of a restitution order would constitute
harmless error under su$diision (h) if no restitution were thereafter
ordered.
+otes of Adisory ommittee on ules/1C9 Amendment
?he amendments are technical. +o su$stantie change is intended.
+otes of Adisory ommittee on ules/1C9C Amendment
?he amendment mandates that the district court inform a defendant that the
court is re@uired to consider any applica$le guidelines $ut may depart from
them under some circumstances. ?his re@uirement assures that the
eistence of guidelines will $e =nown to a defendant $efore a plea of guilty
or nolo contendere is accepted. 8ince it will $e impractica$le, if not
impossi$le, to =now which guidelines will $e releant prior to the
formulation of a presentence report and resolution of disputed facts, the
amendment does not re@uire the court to specify which guidelines will $e
important or which grounds for departure might proe to $e significant.?he adice that the court is re@uired to gie cannot guarantee that a
defendant who pleads guilty will not later claim a lac= of understanding as
to the importance of guidelines at the time of the plea. +o adice is li=elyto sere as a complete protection against post0plea claims of ignorance or
confusion. "y giing the adice, the court places the defendant and defense
counsel on notice of the importance that guidelines may play in sentencing
and of the possi$ility of a departure from those guidelines. A defendant
represented $y competent counsel will $e in a position to enter an
intelligent plea.
?he amended rule does not limit the district court's discretion to engage ina more etended collo@uy with the defendant in order to impart additional
information a$out sentencing guidelines or to in@uire into the defendant's
=nowledge concerning guidelines. ?he amended rule sets forth only the
minimum adice that must $e proided to the defendant $y the court.
ommittee +otes on ules/1CCC Amendment
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Subdivision (a). ?he amendment deletes use of the term KcorporationL and
su$stitutes in its place the term Korganiation,L with a reference to the
definition of that term in 19 :.8.. ;19.
Subdivision (c)(6). ule 11(c) has $een amended specifically to reflect the
increasing practice of including proisions in plea agreements which
re@uire the defendant to waie certain appellate rights. ?he increased use of
such proisions is due in part to the increasing num$er of direct appealsand collateral reiews challenging sentencing decisions. *ien the
increased use of such proisions, the ommittee $elieed it was important
to insure that first, a complete record eists regarding any waier
proisions, and second, that the waier was oluntarily and =nowingly
made $y the defendant. Although a num$er of federal courts hae approed
the a$ility of a defendant to enter into such waier agreements, the
ommittee ta=es no position on the underlying alidity of such waiers.
Subdivision (e). Amendments hae $een made to ule 11(e)(1)(") and ()
to reflect the impact of the 8entencing *uidelines on guilty pleas. Although
ule 11 is generally silent on the su$%ect, it has $ecome clear that the courtshae struggled with the su$%ect of guideline sentencing is a is pleaagreements, entry and timing of guilty pleas, and the a$ility of the
defendant to withdraw a plea of guilty. ?he amendments are intended to
address two specific issues.
irst, $oth su$diisions (e)(1)(") and (e)(1)() hae $een amended to
recognie that a plea agreement may specifically address not only what
amounts to an appropriate sentence, $ut also a sentencing guideline, a
sentencing factor, or a policy statement accompanying a sentencing
guideline or factor. :nder an (e)(1)(") agreement, the goernment, as
$efore, simply agrees to ma=e a recommendation to the court, or agrees notto oppose a defense re@uest concerning a particular sentence or
consideration of a sentencing guideline, factor, or policy statement. ?he
amendment ma=es it clear that this type of agreement is not $inding on thecourt. 8econd, under an (e)(1)() agreement, the goernment and defense
hae actually agreed on what amounts to an appropriate sentence or hae
agreed to one of the specified components. ?he amendment also ma=es it
clear that this agreement is $inding on the court once the court accepts it.
As is the situation under the current ule, the court retains a$solute
discretion whether to accept a plea agreement.
GAP Report—Rule 11. ?he ommittee made no changes to the pu$lished
draft amendments to ule 11. "ut it did add language to the ommittee
+ote which reflects the iew that the amendment is not intended to signal
its approal of the underlying practice of including waier proisions in
pretrial agreements.
ommittee +otes on ules/2BB2 Amendment
?he language of ule 11 has $een amended and reorganied as part of the
general restyling of the riminal ules to ma=e them more easily
understood and to ma=e style and terminology consistent throughout the
rules. ?hese changes are intended to $e stylistic only, ecept as noted
$elow.
Amended ule 11($)(1) re@uires the court to apprise the defendant of his or
her rights $efore accepting a plea of guilty or nolo contendere. ?heommittee determined to epand upon the incomplete listing in the current
rule of the elements of the Kmaimum possi$le penaltyL and any
Kmandatory minimumL penalty to include adice as to the maimum or minimum term of imprisonment, forfeiture, fine, and special assessment, in
addition to the two types of maimum and minimum penalties presently
enumerated- restitution and superised release. ?he outmoded reference to
a term of Kspecial paroleL has $een eliminated.
Amended ule 11($)(2), formerly ule 11(d), coers the issue of
determining that the plea is oluntary, and not the result of force, threats, or
promises (other than those in a plea agreement). ?he reference to an in@uiryin current ule 11(d) whether the plea has resulted from plea discussions
with the goernment has $een deleted. ?hat reference, which was often a
source of confusion to defendants who were clearly pleading guilty as part
of a plea agreement with the goernment, was considered unnecessary.
ule 11(c)(1)(A) includes a change, which recognies a common type of plea agreement/that the goernment will Knot $ringL other charges.
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?he ommittee considered whether to address the practice in some courts
of using %udges to facilitate plea agreements. ?he current rule states that
Kthe court shall not participate in any discussions $etween the parties
concerning such plea agreement.L 8ome courts apparently $eliee that that
language acts as a limitation only upon the %udge ta=ing the defendant's
plea and thus permits other %udges to sere as facilitators for reaching a
plea agreement $etween the goernment and the defendant. 'ee4 e.g.4
&nited 'tates v. Torres, CCC .2d !D, !9 (Cth ir. 1CC!) (noting practiceand concluding that presiding %udge had not participated in a plea
agreement that had resulted from discussions inoling another %udge). ?he
ommittee decided to leae the ule as it is with the understanding that
doing so was in no way intended either to approe or disapproe the
eisting law interpreting that proision.
Amended ules 11(c)(!) to (<) address the topics of consideration,
acceptance, and re%ection of a plea agreement. ?he amendments are not
intended to ma=e any change in practice. ?he topics are discussed
separately $ecause in the past there has $een some @uestion a$out the
possi$le interplay $etween the court's consideration of the guilty plea incon%unction with a plea agreement and sentencing and the a$ility of thedefendant to withdraw a plea. 'ee &nited 'tates v. (yde, <2B :.8. DB
(1CC) (holding that plea and plea agreement need not $e accepted or
re%ected as a single unit Kguilty pleas can $e accepted while plea
agreements are deferred, and the acceptance of the two can $e separated in
time.L). 8imilarly, the ommittee decided to more clearly spell out in ule
11(d) and 11(e) the a$ility of the defendant to withdraw a plea. 'ee &nited
'tates v. (yde4 su#ra.
Amended ule 11(e) is a new proision, ta=en from current ule !2(e), that
addresses the finality of a guilty or nolo contendere plea after the courtimposes sentence. ?he proision ma=es it clear that it is not possi$le for a
defendant to withdraw a plea after sentence is imposed.
?he reference to a Kmotion under 29 :.8.. ;22<< L has $een changed to
the $roader term Kcollateral attac=L to recognie that in some instances a
court may grant collateral relief under proisions other than ;22<<. 'ee
&nited 'tates v. "effers, 2!& .!d 2 (<th ir. 2BBB) (petition under ;22&1
may $e appropriate where remedy under ;22<< is ineffectie or
inade@uate).
urrently, ule 11(e)(<) re@uires that unless good cause is shown, the
parties are to gie pretrial notice to the court that a plea agreement eists.
?hat proision has $een deleted. irst, the ommittee $elieed that
although the proision was originally drafted to assist %udges, under current
practice few counsel would ris= the conse@uences in the ordinary case of not informing the court that an agreement eists. 8econdly, the ommittee
was concerned that there might $e rare cases where the parties might agree
that informing the court of the eistence of an agreement might endanger a
defendant or compromise an ongoing inestigation in a related case. n the
end, the ommittee $elieed that, on $alance, it would $e prefera$le to
remoe the proision and reduce the ris= of pretrial disclosure.
inally, reised ule 11(f), which addresses the issue of admissi$ility or
inadmissi$ility of pleas and statements made during the plea in@uiry, cross
references ederal ule of Eidence &1B.
ommittee +otes on ules/2BB Amendment
'udivision 565765)6. ?he amendment conforms ule 11 to the 8upremeourt's decision in &nited 'tates v. !oo*er , <&! :.8. 22B (2BB<). !oo*er
held that the proision of the federal sentencing statute that ma=es the
*uidelines mandatory, 19 :.8.. ;!<<!($)(1), iolates the 8ith
Amendment right to %ury trial. With this proision seered and ecised, the
ourt held, the 8entencing eform Act Kma=es the *uidelines effectiely
adisory,L and Kre@uires a sentencing court to consider *uidelines ranges,
see 19 :.8..A. ;!<<!(a)(&) (8upp. 2BB&), $ut it permits the court to tailor
the sentence in light of other statutory concerns as well, see ;!<<!(a)(8upp. 2BB&).L Id . at 2&<F&D. ule 11($)(7) incorporates this analysis into
the information proided to the defendant at the time of a plea of guilty or
nolo contendere.
Changes )ade to Pro#osed Amendment $eleased for Puli Comment . +ochanges were made to the tet of the proposed amendment as released for
pu$lic comment. >ne change was made to the ommittee note. ?he
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reference to the ifth Amendment was deleted from the description of the
8upreme ourt's decision in !oo*er .
ommittee +otes on ules/2B1! Amendment
'udivision 56576586. ?he amendment re@uires the court to include a
general statement that there may $e immigration conse@uences of
coniction in the adice proided to the defendant $efore the court acceptsa plea of guilty or nolo contendre.
or a defendant who is not a citien of the :nited 8tates, a criminal
coniction may lead to remoal, eclusion, and the ina$ility to $ecome a
citien. n Padilla v. +entu*y, 1!B 8. t. 1&! (2B1B), the 8upreme ourt
held that a defense attorney's failure to adise the defendant concerning the
ris= of deportation fell $elow the o$%ectie standard of reasona$le
professional assistance guaranteed $y the 8ith Amendment.
?he amendment mandates a generic warning, not specific adice
concerning the defendant's indiidual situation. 4udges in many districtsalready include a warning a$out immigration conse@uences in the plea
collo@uy, and the amendment adopts this practice as good policy. ?he
ommittee concluded that the most effectie and efficient method of coneying this information is to proide it to eery defendant, without
attempting to determine the defendant's citienship.
Changes )ade After Puliation and Comment . ?he ommittee +ote was
reised to ma=e it clear that the court is to gie a general statement that
there may $e immigration conse@uences, not specific adice concerning a
defendant's indiidual situation.
eferences in ?et
?he ederal ules of Eidence, referred to in su$d. (f), are set out in the
Appendi to ?itle 29, 4udiciary and 4udicial Procedure.
Amendment $y Pu$lic 6aw
1988 /8u$d. (c)(1). Pu$. 6. 1BBFDCB inserted Kor term of superisedreleaseL after Kspecial parole termL.
197 /Pu$. 6. C&FD& amended su$ds. (c) and (e)(1)F(&), (D) generally.
Effectie ate of 1CC Amendment
Amendment of su$d. (e)(D) of this rule $y order of the :nited 8tates
8upreme ourt of Apr. !B, 1CC, effectie ec. 1, 1C9B, see section 1(1) of
Pu$. 6. CDF&2, 4uly !1, 1CC, C! 8tat. !2D, set out as a note under section
2B& of ?itle 29, 4udiciary and 4udicial Procedure.
Effectie ate of Amendments Proposed April 22, 1C& Effectie ate of
1C< Amendments
Amendments of this rule em$raced in the order of the :nited 8tates
8upreme ourt on Apr. 22, 1C&, and the amendments of this rule made $y
section ! of Pu$. 6. C&FD&, effectie ec. 1, 1C<, ecept with respect to
the amendment adding su$d. (e)(D) of this rule, effectie Aug. 1, 1C<, seesection 2 of Pu$. 6. C&FD&, set out as a note under rule & of these rules.
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