9-16.010
Approval Required for Consent to Plea of Nolo Contendere
United States Attorneys
may not consent to a plea of nolo contendere except in the most
unusual circumstances and only after a recommendation for doing so has been
approved by the Assistant Attorney General responsible for the subject
matter or by the Associate Attorney General, Deputy Attorney General or the
Attorney General. See also 9-27.500,
Principles of Federal Prosecution, , which discusses the policy of opposing
pleas of nolo contendere except when the circumstances of the case
are so unusual that acceptance of the plea would be in the public
interest.
The Policy and Statutory Enforcement Unit (PSEU) of the Office
of Enforcement Operations will coordinate the review of requests
for approval to consent to nolo contendere pleas in matters for
which the Criminal Division is responsible. Such requests should be
submitted to the PSEU using the Form at
Criminal Resource Manual 164 which 1) describes the facts
of the case; 2) sets out the specific statutory violations charged;
3) states the charges to which the defendant agrees to plead; 4)
explains the circumstances supporting the requested consent to the
plea; and 5) provides any other information that may be helpful in
rendering a decision on the request. The PSEU will obtain the views
of the Criminal Division section responsible for the substantive
area involved in the case and will forward the request and the
section's views to the Assistant Attorney General for the Criminal
Division for decision.
Questions regarding this approval requirement in matters under
the supervision of the Criminal Division may be directed to the
Policy and Statutory Enforcement Unit of the Office of Enforcement
Operations at 202-305-4023.
[updated October 2008]
[cited in USAM 6-2.000;
Criminal Resource Manual 164]
9-16.015
Approval Required for Consent to Alford Plea
United States Attorneys may not consent to
the plea known as an
Alford plea (see North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160
(1970)) (when a the defendant maintains his or her innocence with respect to
the charge to which he or she offers to plead guilty) except in the most
unusual of circumstances and only after recommendation for doing so has been
approved by the Assistant Attorney General responsible for the subject
matter or by the Associate Attorney General, the Deputy Attorney General, or
the Attorney General. In any case in which the defendant tenders a plea of
guilty but denies that he or she has in fact committed the offense, the
attorney for the Government should make an offer of proof of all facts known
to the Government to support the conclusion that the defendant is in fact
guilty. See USAM 9-27.440, Principles of
Federal Prosecution, which discusses the rationale of this policy; USAM 6-4.330 (Approval of Alford
pleas in tax cases).
The Policy and Statutory Enforcement Unit (PSEU) of the Office
of Enforcement Operations will coordinate the review of requests
for approval to consent to Alford pleas in matters for which the
Criminal Division is responsible. Such requests should be submitted
to the PSEU using the form at
Criminal Resource Manual 263 which 1) describes the facts
of the case; 2) sets out the specific statutory violations charged; 3)
states the charges to which the defendant agrees to plead; 4) explains the
circumstances supporting the requested consent to the plea: and 5) provides
any other information that may be helpful in rendering a decision on the
request. The PSEU will obtain the views of the Criminal Division section
responsible for the substantive area involved in the case and will forward
the request and the section's views to the Assistant Attorney General for
the Criminal Division for decision.
Questions regarding this approval requirement in matters under
the supervision of the Criminal Division may be directed to the
Policy and Statutory Enforcement Unit of the Office of Enforcement
Operations at 202-305-4023.
[updated October 2008]
[cited in
USAM 6-4.330;
Criminal Resource Manual 263]
9-16.020
Approval Required for Plea Agreements Involving Members of Congress,
Federal Judges, Extradition, Deportation, and Air Piracy Cases
United States Attorneys should also be cognizant of the
sensitive areas where plea agreements involve either extradition or
deportation. No United States Attorney or Assistant United States
Attorney has the authority to negotiate regarding an extradition or
deportation order in connection with any case. If extradition has
been requested or there is reason to believe that such a request
will be made, or if a deportation action is pending or completed,
United States Attorneys or Assistant United States Attorneys,
before entering negotiations regarding such matters, must seek
specific approval from the Assistant Attorney General, Criminal
Division. See USAM 9-15.800, and
9-73.510.
The Department continues to advocate severe penalties for
aircraft hijackers as a deterrent to future acts of piracy.
Consequently, authorization from the Criminal Division must be
obtained by the USA before he/she enters into any agreement to
forego an air piracy prosecution in return for a guilty plea to a
lesser offense, or decides otherwise not to fully prosecute an act
of air piracy. See USAM
9-63.181.
For policy regarding approval required for plea agreements
involving defendants who are Members of Congress, candidates for
Congress, or Federal judges, see USAM
9-16.110.
[cited in
USAM 9-63.135]
9-16.030
Investigative Agency and Victim to be Consulted
Although United States Attorneys have wide discretion in
negotiating guilty pleas in criminal cases, this power should be
exercised only after appropriate consultation with the federal
investigative agency involved. See the Victim and Witness
Protection Act of 1982, P.L. 97-291, § 6, 96 Stat. 1256.
In addition, the Attorney General Guidelines for Victim and
Witness Assistance 2000 provides that United States Attorneys
should make reasonable efforts to notify identified victims of, and
consider victims' views about, any proposed or contemplated plea
negotiations. See the Victim and Witness Protection Act of
1982, P.L. 97-291, § 6, 96 Stat. 1256.
[updated November 2000]
[cited in
USAM 9-16.040]
9-16.040
Plea Bargains in Fraud Cases
When possible, United States Attorneys should require an
explicit stipulation of all facts of a defendant's fraud against
the United States when agreeing to a plea bargain, including
acknowledgement of the financial consequences or damages to the
government. A good example of this approach and its usefulness in
ensuing civil litigation may be found in United States v.
Podell, 436 F. Supp. 1039, 1042-1044 (S.D.N.Y. 1977),
aff'd 572 F.2d 31, 36 (2d Cir. 1978). Concerning such pleas,
USAs should also be aware of USAM
9-2.159; 9-27.641
(Multi-District (global) Agreement Requests);
9-42.010 (Coordination of Civil and
Criminal Fraud Against the Government);
9-42.451 (Plea Bargaining in
Medicare/Medicaid Cases); and
9-16.030 (Investigative Agency and
Victim to be Consulted).
9-16.050
Pleas by Corporations
Charges against an individual defendant should not be dismissed
on the basis of a plea of guilty by a corporate defendant unless
there are special circumstances justifying the dismissal. See also
USAM Chapter 9-28.000.
[updated August 2008]
9-16.060
Miscellaneous Sections Requiring Consultation or Approval of Plea
Agreements
In addition to the sections listed above, see the
USAM 9-138.040, which states that
the Secretary of Labor's statutory right to notice and
representation in disability proceedings under 29 U.S.C
§§ 504 and 1111 may not be waived or negotiated away
as part of a plea agreement or sentencing bargain.
9-16.110
Plea Negotiations with Public Officials
Plea bargains with defendants who are elected public officers
can present issues of federalism and separation of powers when they
require the public officer defendant to take action that affects
his or her tenure in office. The same issues can also arise when
the defendant is a candidate for elective office, or when plea
negotiations call for withdrawal from candidacy or an undertaking
by the defendant not to seek or hold public office in the
future.
GENERAL RULE: Resignation from office, withdrawal from
candidacy for elective office, and forbearance from seeking or
holding future public offices, remain appropriate and desirable
objectives in plea negotiations with public officials who are
charged with federal offenses that focus on abuse of the office(s)
involved. Where the office involved is not one within the
Legislative or Judicial Branches of the federal government, such
negotiated terms may be also be enforced involuntarily against the
will of the defendant by a sentencing judge pursuant to the Federal
Probation Act. United States v. Tonry, 605 F.2d 144 (5th
Cir. 1979).
However, when the position that is the subject of a negotiated
resignation, withdrawal from candidacy, or an agreement to forbear
occupying future office, is a position within the Legislative or
the Judicial Branches of the federal government (i.e.,
Member of Congress, United States Senator or federal judge), the
inclusion of required withdrawal, resignation or forbearance may
raise questions involving the separation of powers doctrine when
included in a plea agreement negotiated by employees of the
Executive Branch of government.
Resignation, withdrawal or forbearance from holding offices in
the Legislative or the Judicial branches of the federal government
may appropriately be made the subject of plea negotiations, and
offers of resignation, withdrawal or forbearance concerning such
offices may be incorporated into plea agreements with incumbent
Members of Congress and federal judges. However, resignation,
withdrawal or forbearance with respect to Congressional or federal
judicial office may not be imposed involuntarily against
the will of the judge or Member of Congress involved because of the
separation of powers doctrine. See
Powell v. McCormack, 395 U.S. 846 (1969);
United States v. Richmond, 550 F. Supp. 144
(E.D.N.Y. 1982). See the Criminal Resource
Manual at 624, for a discussion of Richmond. | | | | | | | | | | | | | | | | | | | | | | | |