First Circuit: Defendant Entitled to Withdraw Plea Where Government Withdrew From Plea Agreement Based on Defendant’s Breach
by Douglas Ankney
The U.S. Court of Appeals for the First Circuit held that the U.S. District Court for the District of New Hampshire erred by refusing to allow Louis Gardner to withdraw his guilty plea after allowing the Government to withdraw from the plea agreement due to a breach by Gardner.
In exchange for Gardner’s guilty plea on three counts, the Government agreed to dismiss three additional counts. The plea agreement stated that the parties “stipulate and agree that 120 months’ imprisonment is an appropriate disposition of the case,” and the stipulation was “binding” under Federal Rule of Criminal Procedure (“Fed. R. Crim. P.” or “Rule”) 11(c)(1)(C), which meant that “if the Court will not accept the plea agreement under Fed. R. Crim. P. 11(c)(3)(A), the plea agreement is null and void and the defendant will be allowed the opportunity to withdraw his guilty pleas.” The plea agreement also specified that if, “before sentencing,” Gardner “engages in any criminal activity” the Government “may consider such conduct to be a breach of the Plea Agreement and may withdraw therefrom.”
At the change of plea hearing, the district court, inter alia, advised Gardner: “If the court does not accept that binding agreement and does not impose that sentence, do you understand that you would have the opportunity then to withdraw your guilty plea?” Gardner replied, “Yes.” The district court then accepted Gardner’s guilty plea and set a date for sentencing.
While in custody awaiting sentencing, Gardner assaulted another prisoner. Citing the breach provision, the Government moved to withdraw from the plea agreement. The district court granted the motion.
Sixteen days later, Gardner moved to withdraw his underlying guilty plea, arguing that since the Government had withdrawn from the plea agreement, the district court would likely not impose the stipulated 120-month sentence as agreed. The district court denied Gardner’s motion, reasoning that when it granted the Government’s motion to withdraw, the court had not actually rejected the plea agreement under Rule 11(c)(5). Instead, the court explained that it had simply allowed the Government to withdraw from the plea agreement under the breach provision, so Gardner’s right to withdraw his guilty plea under Rule 11(c)(3)(A) never triggered. The district court then sentenced Gardner to 160 months, and Gardner appealed.
The Court observed that whether Gardner could withdraw from the plea agreement “turns on the language” in the agreement itself. When interpreting plea agreements, courts apply the standard principles of contract law. United States v. Newbert, 504 F.3d 180 (1st Cir. 2007). The “defendant’s reasonable understanding” of the plea agreement serves as the standard for the analysis. United States v. Conway, 81 F.3d 15 (1st Cir. 1996).
According to the Court, the first issue to resolve was the parties’ reasonable understanding under the plea agreement “as to whether Gardner would be permitted to withdraw his guilty plea if the government withdrew” due to Gardner’s breach.
The Court determined that the plea agreement itself provides the answer, viz., “if the Court will not accept the plea agreement under Fed. R. Crim. P. 11(c)(3)(A), the plea agreement is null and void and the defendant will be allowed the opportunity to withdraw his guilty pleas.” The Court explained that nothing in the plea agreement limits Gardner’s right to withdraw “to any particular reason for non-acceptance” by the district court. Rather, under the terms of the agreement, Gardner will have the option to withdraw if the plea agreement is not accepted by the district court and the stipulated sentence is not imposed for any reason, the Court noted and declared, “[h]ere, undisputedly, that event [acceptance of agreement and imposition of stipulated sentence] never occurred.”
In reaching this conclusion, the Court stated that the district court misread the foregoing provision in the plea agreement by interpreting it to mean Gardner could withdraw only in the event the court rejected the plea agreement under Fed. R. Crim. P. 11(c)(3)(A), which the court stated it didn’t do—instead, the court claimed that it enforced the agreement. By doing so, Gardner’s right to withdraw was not triggered, according to the district court. However, the Court explained that in reaching its conclusion the district court erroneously focused on a word, “rejected,” that doesn’t appear in the plea agreement. In fact, the agreement uses the phrase “will not accept the plea agreement,” and the Court concluded that the district court “indisputably did not accept the agreement.” The Court explained that “‘not accept’ is a broader term than ‘reject.’” The former “encompasses every situation in which the court does not actually impose the stipulated sentence;” whereas, the latter “is just one of those situations.”
The Court also stated that nothing in the case law or general law of plea bargaining prohibits Gardner from withdrawing under these facts. It’s generally accepted that if a defendant breaches his plea agreement, the Government can either seek specific performance or treat the entire agreement as unenforceable. 5 Wayne R. LaFave et al., Crim. Pro. § 21.2(e) (4th ed. 2020). Specific performance entails the Government enforcing the remaining provisions of the agreement. See United States v. Alexander, 869 F.2d 91 (2d Cir. 1989). If the Government elects to treat it as unenforceable, the defendant may similarly withdraw from it, unless the agreement itself specifically bars the defendant from doing so. LaFave. The Court noted that the plea agreement at issue didn’t contain any such prohibition in the event of defendant’s breach.
The Court then turned to the issue of whether there was a “fair and just reason to permit withdrawal of Gardner’s plea.” In making this determination, the Court explained that the relevant considerations include: “(1) whether the plea was knowing and voluntary and in compliance with Rule 11, (2) the strength of the reason for withdrawal, (3) the timing of the motion to withdraw,
(4) whether the defendant has a serious claim of actual innocence, (5) whether the parties had reached (or breached) a plea agreement, and (6) whether the government would suffer prejudice if withdrawal is allowed.” See United States v. Tilley, 964 F.2d 66 (1st Cir. 1992).
Apply the Tilley factors, the Court determined that three of the factors favored withdrawal. First, Gardner’s reason for withdrawal was compelling as it went to the heart of the bargain he struck with Government. Second, he moved to withdraw promptly as he filed it within 16 days of the event giving rise for the reason for withdrawal. Third, there did not appear to be any prejudice to the Government in allowing withdrawal of the guilty plea.
However, the other three factors weighed against withdrawal of the guilty plea. Gardner had not advanced any plausible theory of innocence; he unquestionably breached the agreement by committing the assault; and there was no indication the plea wasn’t knowing, intelligent, and voluntary. Nevertheless, the Court concluded that the strength of Gardner’s reason for withdrawal so far outweighed the three countervailing factors that it tilted the inquiry in his favor. Thus, the Court ruled that “there was a fair and just reason for the withdrawal of Gardner’s plea, and the district court abused its discretion in concluding otherwise.”
Accordingly, the Court vacated the judgment of the district court and ordered Gardner be permitted to withdraw his guilty plea. See: United States v. Gardner, 5 F.4th 110 (1st Cir. 2021).
Editor’s note: This opinion serves as a reminder of the importance of the actual contract language and carefully reviewing it before signing. Most contracts in any area of the law are merely templates that attorneys to the transaction modify to varying degrees and with wildly varying degrees of competence and care. As such, contracts often contain boilerplate language that may or may not even apply to the parties’ specific situation or adequately reflect their wishes, yet such provisions often make their way into executed contracts due to careless or inartful drafting and inattention to detail by the attorneys. Notice that, in contrast to the plea agreement in Tilley where the defendant was barred from withdrawing following his breach because the plea agreement expressly provided for such an eventuality, the plea agreement in Gardner was relatively sloppy. It happened to work in his favor on this occasion, but of course, that is not always the case.
Never assume that the attorneys for the parties to a contract (even your own attorney) have meticulously examined it and thoroughly thought through whether each and every provision contained within it safeguards their respective client’s best interests as a result of arm’s length negotiations. In reality, that simply doesn’t always occur. It’s bad enough when such a failure happens with a commercial contract; the dereliction of duty is magnitudes worse when decades of someone’s life is potentially at stake.
You should always carefully read any contract (plea agreements are a type of contract) and evaluate whether it clearly and satisfactorily reflects your wishes and understanding of what has been agreed upon by you and the other party. Don’t assume that it does, and if you believe it fails to do so, never hesitate to voice your concerns. Ultimately, no one will ever look after and care about your interests as much as you.
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