United States v. Jesus Antonio Partida-Parra ( 1988 )

FLETCHER, Circuit Judge:

Jesus Antonio Partida-Parra appeals his conviction on four counts relating to heroin distribution and weapons possession. Par-tida-Parra claims that the district court abused its discretion by setting aside his guilty plea to a lesser charge of misdemeanor possession after the plea had been accepted by the court.

FACTS

On December 17, 1986, Partida-Parra was indicted for possession and conspiracy to possess heroin with intent to distribute, 21 U.S.C. §§ 841(a)(1), 846 and for using and carrying a firearm during a drug trafficking crime, 18 U.S.C. § 924(e). These charges cumulatively carried a mandatory minimum sentence of ten years and a maximum of 45.

During initial plea negotiations, Partida-Parra’s counsel, George Siddell, indicated that his client would only plead guilty to a misdemeanor, so as not to destroy his eligibility for immigration amnesty. However, Assistant U.S. Attorney Larry Burns maintained that he would only accept a plea to a felony.

On February 2, 1987, Siddell discussed a plea agreement with AUSA Phillip Hal-pern, who was standing in for Burns. Apparently, a plea agreement was reached. The same day, Halpern prepared, and Burns signed, an information superseding the original indictment and charging Parti-da-Parra with misdemeanor possession of heroin in violation of 21 U.S.C. § 844. On February 9, Halpern appeared at the trial-setting hearing and filed the superseding information, and Partida-Parra entered a plea of guilty to the misdemeanor. The court accepted the plea, pursuant to Rule 11.

On March 23, Burns telephoned Siddell and informed him that the superseding information contained a “clerical” error: the correct charge was not supposed to be 21 U.S.C. § 844, a misdemeanor, but 21 U.S.C. § 841, the felony possession section.¹ The next day, Burns wrote to the court that the defendant had been erroneously permitted to plead to a misdemeanor and indicated that the government would move to set aside the misdemeanor guilty plea.

On April 20, the court held a brief hearing and granted the government’s motion to set aside the misdemeanor guilty plea. The court reinstated Partida-Parra’s plea of not guilty to the charges in the original indictment and set the case for jury trial. The trial was held on May 19-20, and Parti-da-Parra was convicted on all counts. He was sentenced to a total of ten years imprisonment.

DISCUSSION

I. Court’s Authority to Vacate the Plea

Both parties and the district court assume that a district court has discretion to vacate a guilty plea on the government’s motion even though the court has accepted the plea and the defendant has not breached his part of the agreement. However, the basis for that authority is unclear. The possible bases are 1) the Federal Rules of Criminal Procedure and 2) the “common law” of plea agreements.

A. Authority under the federal rules

The procedure for plea agreements, set forth in Fed.R.Crim.P. 11(e), provides in relevant part for negotiated plea agreements in which the defendant offers to plead guilty “to a charged offense or to a lesser related offense” in return for the government’s promise to “move for dismissal of other charges ...” Fed.R.Crim.P. 11(e)(1)(A).² This agreement must be disclosed to the court at the time the plea is offered, at which time the court has three options: “the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report." Fed.R.Crim.P. 11(e)(2). In this case, the court unconditionally accepted the plea on February 9.

The Federal Rules allow the court to change its decision to accept a guilty plea under two circumstances. However, neither appears applicable here. Rule 11(f) states:

Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

While this provision implies that acceptance of the guilty plea does not foreclose a subsequent rejection of the plea if factual questions emerge, for instance at sentencing, it cannot be read to authorize the court to vacate a plea on the basis of a discrepancy in the parties’ understanding of the plea agreement. Having a “factual basis for the plea” means ascertaining “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.” Advisory Committee Notes to 1966 Amendment; 8 Moore’s Fed Prac. ¶ 11.07[1]; see Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); Salas v. United States, 529 F.2d 1276, 1277 (9th Cir.1976) (per curiam). Thus, the “factual basis” does not refer to the plea negotiations or the parties’ intent.

Rule 32(d) provides for a motion for withdrawal of a plea of guilty before imposition of sentence “upon a showing by the defendant of any fair and just reason.” (Emphasis added.) Neither Rule 32(d) nor any other provision of the Federal Rules expressly contemplates government motions to set asidé a plea.

We are aware of no case which has decided the issue before us: whether the trial court has the authority, on the government’s motion, to set aside a guilty plea accepted by the court. However, related precedents suggest that the district court’s authority under the Rules to revisit an accepted guilty plea is limited.

In United States v. Cruz, 709 F.2d 111 (1st Cir.1983), the defendant Cruz was indicted for cocaine trafficking in violation of 21 U.S.C. § 841(a)(1), and (as occurred in Partida-Parra’s case) an information substituting for the indictment was filed, pursuant to a plea bargain, charging misdemeanor narcotics possession in violation of 21 U.S.C. § 844. The district court fully complied with Rule 11(c) (advice to defendant) and unconditionally accepted the plea bargain, which included a lenient sentence recommendation by the prosecutor. At sentencing, two months later, the court reversed itself by rejecting the plea bargain: the court found the misdemeanor charge and recommendation to be too lenient in light of the presentence report and the sentences received by Cruz’s co-defendants. The case was set for trial on the original indictment, and Cruz filed an interlocutory appeal. The First Circuit reversed the district court and reinstated Cruz’s guilty plea to the misdemeanor. “[Ojnce the court accepted the agreement, thereby binding the defendant and prosecution, it could not simply change its mind on the basis of information in the presentence report, at least where that information revealed less than fraud on the court.” Id. at 114-15.³

In United States v. Blackwell, 694 F.2d 1325 (D.C.Cir.1983), the district court, after accepting defendant’s guilty plea pursuant to a plea agreement, warned the defendant that she could lose the benefit of her bargain if she gave certain testimony at her co-defendant’s trial. In holding this to be an error in the co-defendant’s trial, the court of appeals strictly construed “the straightforward language” of Rule 11:

... [Ojnce the plea was accepted the judge no longer had discretion to repudiate the agreement because of Robinson’s subsequent testimony.

... The plea and the bargain were sealed at that point, and we know of no authority for the judge, short of evidence of fraud, to change her mind as to the wisdom of the bargain and refuse to enforce it.

... Rule 11 appears to speak unequivocally; if the plea is accepted, the judge does not announce any deferral of that acceptance, and the defendant adheres to the terms of the bargain, all parties to it are bound. Although the rule does permit deferral of the decision to accept or reject the plea, usually for the purpose of viewing the presentence report, the mere postponement of the sentencing itself to a future date does not authorize the judge to remake or vacate the plea bargain for whatever reasons later seem appropriate to her.

694 F.2d at 1338-39 (footnotes omitted).

Although Cruz and Blackwell are distinguishable on their facts from this case, they do indicate that the district court is not authorized to go beyond the confines of Rule 11 in accepting or rejecting plea agreements. The only recognized exception to strict adherence to Rule 11 is for fraud on the court. See, e.g., Cruz, 709 F.2d at 114-15; Blackwell, 694 F.2d at 1338-39. The fraud exception is grounded in the court’s inherent supervisory powers, which enable the court to preserve the integrity of the judicial process. See United States v. Ramirez, 710 F.2d 535, 540 (9th Cir.1983); United States v. Cortina, 630 F.2d 1207, 1214 (7th Cir.1980).

The government does not suggest that fraud is present in this case. Rather, it argues that a mistake of fact (on its part) prevented the formation of a binding agreement. We have found no authority that empowers the court to abrogate a plea agreement to relieve one party of its own mistake. While Rule 32(d) allows the defendant to move for withdrawal of a guilty plea for “any fair and just reason,” neither that nor any other rule allows the government to make a similar motion. In sum, we conclude that the district court was without authority under the Federal Rules to vacate Partida-Parra’s guilty plea.

B. “Common law” authority

The government and the dissent argue that, independent of the court’s authority to vacate a guilty plea under the Federal Rules, the district court has the power to undo or “rescind” the parties’ obligations under a plea agreement, a power which was properly invoked by the government in this case.

In the wake of the Supreme Court’s official sanction of plea bargaining, see Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); see also Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), the federal courts have developed a “common law” of plea agreements around the notion that the negotiated guilty plea represents a bargained-for quid pro quo. Thus, we have stated that “a plea bargain is contractual in nature” and is subject to contract-law standards. United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985). Any dispute over the terms of the agreement must be resolved by determining, under an objective standard, “what the parties to the plea bargain reasonably understood to be the terms of the agreement.” Id. (quoting United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979)).

While several cases have relied upon the contract analogy, they have done so within a limited range of fact patterns: specifically, appellate courts have been called upon to interpret the terms of plea agreements to determine whether one of the parties has breached. See, e.g., Read, 778 F.2d at 1441 (interpreting scope of government’s promise to “take no position on what sentence should be imposed”); Arnett, 628 F.2d at 1164-65 (same); United States v. Travis, 735 F.2d 1129, 1132 (9th Cir.1984) (determining whether government breached promise to remain silent at sentencing); United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir.1980) (interpreting whether plea bargain meant to provide blanket immunity from prosecution for uncharged offenses); see also United States v. Reardon, 787 F.2d 512, 516 (10th Cir.1986) (allowing government to revoke plea offer where defendant failed to fulfill his part of bargain).

The “contract” principles emerging from these cases are that courts will use objective canons of interpretation to construe plea agreements and will take some appropriate action where one party breaches the agreement. The cases suggest that courts have some remedial power to enforce plea bargains. Where the government breaches a plea bargain, it may be appropriate for the court to order “specific performance” of the bargain. United States v. Herrera, 640 F.2d 958, 960 (9th Cir.1981); 2 W. Lafave & J. Israel, Criminal Procedure, § 20.2, at 599 (1984) (“When the breach was a failure by the prosecutor to carry out a promise which was fulfillable, then certainly the defendant’s request for specific performance should be honored.”). In cases where the appropriate remedy is to allow the defendant to withdraw his guilty plea, the court is expressly authorized to do so under Rule 32(d).

On the other hand, where the defendant breaches the plea bargain, courts have found the government to be free from its obligations under the plea agreement. See, e.g., United States v. Verrusio, 803 F.2d 885, 887-89 (7th Cir.1986); United States v. Reardon, 787 F.2d at 516. The government and the dissent interpret these cases to mean that courts are empowered, bv virtue of the nlea-asrreement/contract analogy, to “rescind” plea agreements whenever one of the parties successfully interposes a valid contract defense.⁴ It is not at all clear to us that these cases implicate a common law power of “rescission.” However, we need not analyze the precise theoretical mechanism—whether “rescission” or something else—by which a court will, for example, allow a defendant who has breached his plea agreement to be reindicted. In this case, Partida-Parra did not breach his part of the agreement. Whatever “common law” powers a court may have to deal with breached plea agreements, we decline to extend those powers to cases where some “contract defense” other than breach is at issue.⁵

Here, the government argues that the superseding indictment, although unambiguous on its face, reflects a “mistake of fact,” such that there was no “meeting of the minds” between the parties. According to the government, a unilateral mistake of one party is a ground for relief from a contract where the other party “knew or had reason to know of the mistake.” We do not believe that the plea-agreement/contract analogy extends so far as to allow the district court to revisit an accepted plea to reconsider whether the “contract” was formed (as distinct from considering whether it was breached). The contract analogy is imperfect. The formation of binding plea agreements is governed not by the Uniform Commercial Code, but by the Federal Rules of Criminal Procedure, which requires, among other things, that the court approve the plea agreement and find it to have a factual basis. Here, the defendant’s plea of guilty was entered and accepted by the court in the presence of an Assistant U.S. Attorney (who had negotiated the plea and drafted the information). The information was valid on its face. Notwithstanding the government’s subsequent position, there is nothing inherently unreasonable about a misdemeanor plea offer in this case. Compare Cruz, 709 F.2d at 111-12. If the substitute information was obviously mistaken, the AUSA could and should have objected at the time the plea was entered. According to the government, the oversight occurred due to a communication breakdown between the two prosecutors involved in the case. The government is entitled to no relief from its mistake in such circumstances. See Santobello, 404 U.S. at 262, 92 S.Ct. at 499 (“inadvertence” no excuse for prosecutor’s breach of plea agreement, because “staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done”).

C. Conclusion

Once the district court had accepted the plea agreement in this case, it was without authority under the Federal Rules to undo the agreement and vacate the plea. Furthermore, this authority is not supplied by case law under which the government is released from its obligations in a plea agreement breached by the defendant. A district court that has accepted the plea is not entitled to go outside the Federal Rules and consider “contract defenses” to determine whether an agreement was made.

We conclude that the district court erred by freeing the government from its obligation under the plea bargain in the absence of a breach by the defendant.⁶

II. Remedy

The government argues that, if we find the plea agreement binding, the government’s action in seeking to vacate the plea is a breach of the agreement, for which the appropriate remedy is reinstatement of Partida-Parra’s right to a jury trial. According to the government, a defendant is not entitled to specific performance even if the government breaches its plea agreement. This argument is merit-less.⁷ Were we to accept it, we would, in effect, allow the government, any time it might have second thoughts about a plea bargain, to breach the agreement by rein-dicting the defendant on the greater charges, thereby “restoring” the defendant’s “right to trial” on those charges. Such a practice would, of course, render the government’s plea-agreement obligations meaningless. Because the plea agreement was consummated, this court is in the position of undoing the district court’s error rather than requiring performance by the government. The district court erred not only in vacating the guilty plea, but also in failing to hold the government to its obligation under the plea agreement. See Santobello, 404 U.S. at 262, 92 S.Ct. at 499 (“when a plea rests in any significant degree on a promise or agreement of the prosecutor, ... such promise must be fulfilled”). Had the court held the government to its bargain, the court would not have allowed Partida-Parra to be rein-dicted and tried.⁸ The appropriate remedy is to reinstate the guilty plea and remand for resentencing. See Cruz, 709 F.2d at 115-16; Blackwell, 694 F.2d at 1337-38 n. 15.

REVERSED AND REMANDED.

1 . We note that a felony cannot be charged by information. Fed.R.Crim.P. 7(a). The charge of § 844, the misdemeanor, was appropriately charged by information. A superseding indictment would have been required for the § 841 charge that the government contends it intended.

2 . The different types of plea agreements in Rule 11(e)(1)(B) & (C) are not applicable to this case.

3 . Cruz also held that the double jeopardy clause prohibited trial on the original indictment because jeopardy had attached when the trial court unconditionally accepted the guilty plea. 709 F.2d at 115-16. We find it unnecessary to reach the double jeopardy issue in this case and express no opinion about this aspect of Cruz.

4 . This argument is slightly disingenuous. In actuality, given the court’s power under Rule 32(d) to allow a defendant to withdraw his guilty plea "upon a showing ... of any fair and just reason,” the question of a "common law” power of “rescission” would arise only when the government sought to interpose the contract defense.

5 . Again, because we are here speaking of the court’s “common law” authority, our statement does nothing to diminish the court’s power under Rule 32.

6 .Our holding does nothing to limit the court’s power to undo a plea agreement in a case where the defendant has obtained the agreement through fraud or misrepresentation. See Cruz, 709 F.2d at 114-15; Blackwell, 694 F.2d at 1338-39.

The dissent makes too much of the distinction between “vacating" and "rescinding” a guilty plea. When the district court exercises its power under the Federal Rules to reject a plea agreement or permit a defendant to withdraw his plea, it is clear by implication that the parties are consequently released from their obligations under the plea agreement. On the other hand, we are not persuaded that the court possesses some independent power of "rescission.” The proper analysis is not whether the court has “vacated” or "rescinded” a guilty plea, but whether the court has acted pursuant either to the Federal Rules or to its common law authorization to address breached plea agreements or fraud on the court. In this case, the district court's action was taken pursuant to neither basis of authority.

7 . This court has stated that specific performance may be appropriate where a plea agreement has been breached. United States v. Herrera, 640 F.2d 958, 960 (9th Cir.1981). The government relies upon Government of Virgin Islands v. Scotland, 614 F.2d 360, 365 (3d Cir.1980), for the proposition that a plea offer accepted by the defendant does not give the defendant the right to have specific performance, absent defendant’s detrimental reliance. The government’s reliance on Scotland is misplaced. In Scotland, the plea agreement had not yet been presented to the district court for acceptance and, in that sense, was unconsummated. Here, Partida-Parra’s plea was entered and accepted by the court.

8 . This error was obviously prejudicial. In finding "harmless error” in this case, the dissent simply fails to focus on the real error.