UNITED STATES of America, Appellant, v. Jamal T. NORRIS, Appellee, 486 F.3d 1045

GRUENDER, Circuit Judge, with whom LOKEN, Chief Judge, WOLLMAN, ARNOLD, RILEY and SMITH, Circuit Judges, join. The Government withdrew from a signed plea agreement with defendant Jamal T. Norris. Although the district court had not yet accepted Norris’s plea of guilty, it granted Norris’s motion for specific performance of the plea agreement. The Government appeals, arguing that because Norris’s guilty plea was never accepted, Norris has no grounds upon which to enforce the plea agreement. For the reasons discussed below, we agree with the Government and reverse. I.

BACKGROUND The Government’s prosecution of Norris arose from an extensive investigation into the activities of the 51st Street Crips street gang in Kansas City, Missouri. The investigation produced more than fifty suspects, and the potential prosecutions were distributed among several Assistant United States Attorneys (“AUSAs”) in the Western District of Missouri. Norris originally was charged in an eight-count indictment with conspiracy to distribute more than 50 grams of cocaine base and other related offenses.

The actions listed in the indictment were alleged to have occurred between April 1 and April 24, 2002. Norris initially pled guilty to one count but was allowed to withdraw his guilty plea in March 2003. The Government, represented by AUSA Candace Cole, and Norris concluded negotiations on the plea agreement at issue in this appeal on September 8, 2003.

The plea agreement called for Norris to plead guilty to Count One (conspiracy) and Count Eight (forfeiture) in return for the Government’s promise “not to file any additional charges or pursue additional forfeiture action against defendant arising out of the present offenses or investigation in the Western District of Missouri.” Under the agreement, Norris was expected to receive the mandatory minimum ten-year sentence. A change-of-plea hearing was scheduled for September 12.

On the afternoon before the plea hearing, AUSA Charles Ambrose, who was assigned to review all cases associated with the Crips investigation, received an e-mail noting Norris’s scheduled plea hearing the following day. Ambrose reviewed the plea agreement and compared it to a recently prepared comprehensive overview of gang activities uncovered during the investigation. He noted evidence that Norris was involved in a more significant criminal conspiracy in the two years prior to the April 2002 conduct listed in his indictment.

Am-brose instructed AUSA Kate Mahoney, who was to represent the Government at the plea hearing the following morning in Cole’s absence, to make clear on the record before the court accepted Norris’s plea that the Government construed its agreement “not to file any additional charges ... arising out of the present offenses or investigation” to mean only that no additional charges would be filed for conduct occurring between April 1 and April 24, 2002, the time period of the actions alleged in the indictment. According to Mahoney, she decided not to discuss this

interpretation with Norris’s counsel prior to the next morning’s plea hearing due to the lateness of the hour. The plea agreement was executed by the parties on the morning of the change-of-plea hearing. At the hearing, the district court placed Norris under oath and began the standard inquiry into Norris’s competence to plead guilty. Norris stated that, at the time of the charged conduct, marijuana use had rendered him unable to understand that his actions violated the law. The district court voiced concern to Norris’s counsel as to whether Norris would admit guilt to the offense.

Norris stated “Yeah, I did it ... ” and equivocated briefly before stating that at the time he “knew it was against the law.” The plea hearing continued. After the district court had stepped through most of the requirements of Fed.R.Crim.P. 11(b)(1) and was preparing to discuss the provisions of the plea agreement with Norris, Mahoney interjected to state the Government’s position that Norris could still be charged for actions occurring prior to April 2002. Norris’s counsel immediately disagreed with that

interpretation, and the district court recessed the hearing to allow the parties to discuss the matter. The parties could not reach a resolution. It is undisputed that the district court never accepted a guilty plea. Norris was charged in a 20-count superseding indictment on October 9, 2003 with conspiracy to distribute marijuana, ecstasy and more than 50 grams of cocaine base, possession with intent to distribute these controlled substances and possession of firearms during and in furtherance of drug trafficking offenses. Norris moved to compel specific performance of the previous plea agreement.

The district court denied the motion on November 20, 2003, but, upon Norris’s motion for reconsideration, granted the motion for specific performance on May 3, 2004. The district court, citing United States v. DeWitt, 366 F.3d 667 (8th Cir.2004), held that the Government was bound by the terms of the signed plea agreement. Consequently, the district court dismissed the superseding indictment because it was based upon conduct covered by the Government’s promise in the plea agreement not to file any additional charges.

The Government appeals, arguing that because Norris’s guilty plea was never accepted by the district court, Norris has no grounds upon which to enforce the plea agreement. II. DISCUSSION We have jurisdiction over an appeal by the Government from an order dismissing an indictment under 18 U.S.C. § 3731. We review the enforceability of a plea agreement de novo. United States v.

Van Thoumout, 100 F.3d 590, 594 (8th Cir. 1996). “Contract principles often provide a useful means by which to analyze the enforceability of plea agreements and ensure the defendant what is reasonably due him in the circumstances.” United States v. McGovern, 822 F.2d 739, 743 (8th Cir. 1987). “A plea agreement, however, is not simply a contract between two parties. It necessarily implicates the integrity of the criminal justice system and requires the courts to exercise judicial authority in considering the plea agreement and in accepting or rejecting the plea.” Id.

As an initial matter, if the court accepts a defendant’s guilty plea entered in reliance on a plea agreement or other promise that is then not honored by the Government, the defendant’s due process rights are violated. Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984); see also Santobello v. New York, 404 U.S. 257, 261-62, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). No detriment, and thus no due process violation, occurs until the guilty plea is accepted by the district court.

Mabry, 467 U.S. at 507, 104 S.Ct. 2543 (“A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest.”). In the instant case, the district court did not accept Norris’s guilty plea. Therefore, specific performance of Norris’s plea agreement is not available on due process grounds under Mabry.

Absent the district court’s formal acceptance of the defendant’s guilty plea or an express provision in the plea agreement requiring certain pre-plea performance, we have consistently declined to recognize any bases for detrimental reliance by the defendant that would warrant specific performance of the plea agreement on due process or any other grounds. We reaffirm the reasoning we originally adopted from the Fifth Circuit: [T]he realization of whatever expectations the prosecutor and defendant have as a result of their bargain depends entirely on the approval of the trial court.

Surely neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea. Neither party is justified in relying substantially on the bargain until the trial court approves it. We are therefore reluctant to bind them to the agreement until that time. As a general rule, then, we think that either party should be entitled to modify its position and even withdraw its consent to the bargain until the plea is tendered and the bargain as it then exists is accepted by the court. McGovern, 822 F.2d at 744 (quoting United States v.

Ocanas, 628 F.2d 353, 358 (5th Cir.1980)); see also United States v. Wessels, 12 F.3d 746, 753 (8th Cir.1993); United States v. Walker, 927 F.2d 389, 390 (8th Cir.1991) (“Whatever benefits the parties intend to reap as a result of this [plea] agreement are contingent entirely upon the approval of the trial court.”).

We continue to recognize that this reasoning does not apply in “cases [that] either: (1) do not deal with plea agreements that required the court’s acceptance under Rule 11,” such as agreements that promise immunity from prosecution in return for testimony or cooperation, “or (2) involve the breach of an agreement after the court has accepted the defendant’s guilty plea.” McGovern, 822 F.2d at 745. Therefore, before the guilty plea is accepted, either party may withdraw from the plea agreement.

The Government’s right to withdraw from a plea agreement before it is accepted by the district court is qualified by the requirement that the Government gain no unfair advantage from the withdrawal in future proceedings against the defendant. Wessels, 12 F.3d at 753. For example, the Government may not make use at the defendant’s subsequent trial of statements the defendant made during plea negotiations or in the course of cooperating with the Government under the terms of the plea agreement. Id.

We have also stated that “[i]n an agreement that contemplates the defendant’s pre-plea cooperation as well as his plea of guilty, the government must, unless and until the court rejects the plea, honor in good faith its obligations under the agreement.” McGovern, 822 F.2d at 744 (emphasis added). In the instant case, Norris argues that the Government may take unfair advantage of his sworn admission of guilt made during his uncompleted plea colloquy. Norris’s admission would not be admissible in a subsequent proceeding against Norris in the Government’s case-in-chief. Fed. R.Evid. 410(3).

However, Norris contends that if he testifies at trial in a manner inconsistent with his admission during the plea colloquy, the Government is not precluded from using his admission against him for impeachment purposes or in a subsequent prosecution for perjury. See Fed.R.Evid. 410 (establishing that a statement made by the defendant “under oath, on the record and in the presence of counsel” during plea proceedings under Fed. R.Crim.P. 11 is admissible in a criminal proceeding for perjury).

While such use of Norris’s admission would almost certainly constitute an unfair advantage, the Government has averred before the district court, and again at oral argument before this Court, that it will not use Norris’s plea colloquy statements against him in any proceeding for any purpose whatsoever. Moreover, because Norris has argued only that the Government may use its withdrawal at some point in the future to gain an unfair advantage, the proper time for this Court to rule on the issue is after the Government’s proceedings against Norris are complete.

In any future proceedings against Norris, the district court will be able, upon objection, to exclude any evidence that represents an attempt to take unfair advantage of the withdrawn plea agreement. If the Government obtains a conviction against Norris through the use of such evidence, Norris may present the issue of unfair advantage on direct appeal of that conviction. See Wessels, 12 F.3d at 753 (examining the Government’s conduct in the defendant’s subsequent trial to determine if the Government gained an unfair advantage over the defendant in withdrawing its consent to a plea agreement).

Judge Melloy’s dissenting opinion would hold that the plea agreement in this case is enforceable under general contract principles because Norris “fully performed” his duties under the plea agreement. Judge Melloy’s dissent reads our decisions in DeWitt, 366 F.3d at 667, and United States v. Young, 223 F.3d 905 (8th Cir.2000), to imply that plea agreements should be enforced as simple contracts between the defendant and the Government. This approach ignores the presence of a “contractual” condition completely independent of the defendant and the Government — the district court’s independent power under Fed.

R.Crim.P. 11 to accept or reject the defendant’s associated plea. Cf. Ocanas, 628 F.2d at 358 (“The danger in a pure contractual approach to plea bargaining is that it may seduce one into thinking that the plea bargain involves only two parties, the prosecutor and the defendant, when in fact the trial court plays a critical role in the process.”).

Rule 11 serves notice to both parties to the plea agreement that the defendant’s promise to forego his right to a jury trial and the Government’s promise not to prosecute further any other covered acts of the defendant are merely ex-ecutory until the district court accepts the defendant’s associated guilty plea. As a result, Norris’s performance at the change-of-plea hearing could not render the plea agreement enforceable absent the district court’s acceptance of his plea.

DeWitt and Young are not inconsistent with the general rule that the court must have accepted a guilty plea before the parties may be bound to an associated plea agreement. DeWitt applied general contract principles to interpret and enforce a plea agreement that had been accepted by the district court. 366 F.3d at 669-70. Because DeWitt “involve[d] the breach of an agreement after the court ha[d] accepted the defendant’s guilty plea,” McGovern, 822 F.2d at 745, it is not relevant to our decision in the instant case.

The plea agreement in Young was enforced only to the extent that it specifically provided for pre-plea performance. In Young, the Government and defendant Young signed a plea agreement in which Young agreed to plead guilty in exchange for the Government’s promise not to seek a particular sentencing enhancement and to enter into drug-quantity stipulations beneficial to Young. 223 F.3d at 907.

As part of the plea agreement, the Government also agreed to support Young’s release on bond pending his change-of-plea hearing in exchange for an affidavit from Young admitting the elements of the charged crime for use against him if he absconded before the hearing. Id. The plea agreement stated that if Young breached the plea agreement, “all testimony and other information he has provided at any time to attorneys, employees or law enforcement officers of the government, to the court, or to the federal grand jury, may and will be used against him in any prosecution or proceeding.” Id. at 910.

Young indeed absconded from pre-trial supervision the day before his scheduled plea hearing. After Young was re-captured, the Government gave notice that it intended to introduce the affidavit at his trial, and Young moved to suppress the affidavit. We held that Young knowingly and voluntarily waived his right to exclude the affidavit as a statement made in the course of plea discussions. Id. at 911. We also stated in conclusion that “the government is entitled to the benefit of its bargain and may use the affidavit in its case against Young.” Id.

Although Young was decided on the basis of the defendant’s waiver of his rights under Fed.R.Evid. 410, the defendant’s waiver was contained in the plea agreement and operative only if the defendant breached the agreement. Therefore, Young implicitly found that the defendant was capable of breaching, and did breach, the plea agreement before the district court accepted his guilty plea.

Importantly, however, the provision breached was not one in which “neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea.” McGovern, 822 F.2d at 744 (quoting Ocanas, 628 F.2d at 358). Instead, the provision expressly contemplated performance that could only occur before the district court’s acceptance of a guilty plea — the Government had to support the defendant’s release on bond before his change-of-plea hearing, and the defendant had to provide the affidavit to be used if he absconded.

Because this provision of the plea agreement expressly contemplated performance that could only occur prior to the district court’s acceptance of a guilty plea, it was binding on Young, just as a defendant’s required pre-plea cooperation under a plea agreement renders the agreement binding on the Government. Id. (“In an agreement that contemplates the defendant’s pre-plea cooperation as well as his plea of guilty, the government must, unless and until the court rejects the plea, honor in good faith its obligations under the agreement.”). III.

CONCLUSION We hold that a defendant generally has no right to specific performance of a plea agreement where the Government withdraws from the agreement before the defendant’s associated guilty plea is accepted by the district court. We recognize exceptions to the general rule to the extent that the plea agreement specifically contemplates pre-plea performance or if the defendant shows that the Government has taken unfair advantage of its withdrawal from the agreement.

Because Norris meets neither exception, we vacate the district court’s order granting Norris’s motion for specific performance of the plea agreement and dismissing the superseding indictment. We remand for further proceedings consistent with this judgment. . The plea agreement was made in accordance with Fed.R.Crim.P. 11(c)(1)(B), under which a sentencing “recommendation or request does not bind the court.” . On appeal, the Government has abandoned its argument that the plea agreement's terms, even if enforced, did not foreclose additional charges against Norris for conduct that occurred prior to April 1, 2002. .

We note that an order for specific performance of the plea agreement by the Government is just one possible remedy for a due process violation. See Mabry, 467 U.S. at 510-11, 104 S.Ct. 2543 n. 11 ("[E]ven if respondent's plea were invalid, Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea; the Court made it clear that permitting Santobello to replead was within the range of constitutionally appropriate remedies.”). .

Although McGovern referred to the district court’s approval of the plea bargain as well as its acceptance of a guilty plea, we emphasize today that the district court’s acceptance of the defendant's guilty plea is the point at which detrimental reliance becomes possible. . While pre-plea cooperation is not at issue in Norris's case, a review of our previous statements on the subject will prove useful in distinguishing United States v. Young, 223 F.3d 905 (8th Cir.2000), relied upon by Judge Melloy in his dissenting opinion.

A plea agreement that specifically requires pre-plea cooperation can be binding because it is obviously not one in which "neither party contemplates any benefit from the agreement unless and until the trial judge approves the bargain and accepts the guilty plea.” McGovern, 822 F.2d at 744 (quoting Ocanas, 628 F.2d at 358).

On the other hand, if a plea agreement contemplates the defendant's cooperation generally, without specifically requiring that the cooperation is to occur before the district court accepts the defendant’s guilty plea, then the defendant cannot obtain specific performance of the plea agreement (absent the district court’s acceptance of a guilty plea) unless the defendant shows that the Government has gained an unfair advantage over the defendant.

See Wessels, 12 F.3d at 752-53 (declining to enforce a plea agreement contemplating cooperation by the defendant where the Government withdrew from the agreement prior to the district court's acceptance of the defendant's guilty plea and the defendant could not show that the Government gained an unfair advantage over him in subsequent proceedings). .

Judge Melloy's dissenting opinion argues that Norris suffered a deprivation of due process because, although the Government will never be able to use Norris’s admissions in court, the Government will now be cognizant of Norris’s admissions as it proceeds with the prosecution, purportedly affecting both parties’ strategy. However, Norris took the risk that the Government would become cognizant of his willingness to admit guilt, and a factual basis for it, to at least some charges when he agreed to participate in plea negotiations.

Indeed, he already had entered and withdrawn one guilty plea before the events central to this case occurred. It is not clear how the Government would gain a strategic advantage in the instant case that it does not gain in any case involving plea negotiations that do not result in a guilty plea. In those cases, as in the instant case, the fact that the admissions are unusable in court if the defendant’s guilty plea is not accepted by the district court prevents the Government from gaining an unfair advantage. .

Although it would not affect the outcome of the case, we do not agree with the position taken in the dissenting opinions by Judge Melloy, post at 1060, and Judge Bye, post at 1057, that Norris had fully performed his duties under the plea agreement at the change-of-plea hearing. When the hearing ended, the district court had not yet addressed the factual basis for Norris’s plea, see Fed.R.Crim.P. 11(b)(3), and Norris had not yet entered a guilty plea. (Norris's statement, "I did it ...

I knew it was against the law,” arose during questioning from the district court about his mental competency at the beginning of the hearing after Norris equivocated about his mental state; the "it” had no antecedent other than the title of the charge.) Given Norris’s equivocation early in the proceeding, one cannot say with certainty that he would have completed the proceeding by agreeing in open court with the recital of the underlying facts in the plea agreement and entering a guilty plea based upon them.

This is all the more reason to draw a bright line at the district court’s formal acceptance of the guilty plea. . We note that Norris argues only that the plea agreement was enforceable under due process principles, not under general contract principles. . Judge Colloton's opinion concurring in the judgment, post at 1053-54, would characterize Young purely as a waiver case, rather than as the enforcement of a bargain between the defendant and the Government, because the court’s only authority to enforce the affidavit-for-release-on-bond bargain would have been an implicit use of federal common law.

Because the waiver was operative only if the defendant breached the agreement, however, the result in Young was not possible without a finding that the court could enforce the affidavit-for-release-on-bond bargain. We see no reason to disavow the apparent use of federal common law to enforce the affidavit-for-release-on-bond bargain in Young, as there is no law expressly addressing agreements ancillary to the entry of a guilty plea and no reason to treat such agreements as a nullity.

As Judge Colloton also recognizes, post at 1053, such federal common law could never contravene the strictures of Fed.R.Crim.P. 11 regarding agreements to plead guilty. Moreover, Young does not suggest that the presence of one provision contemplating pre-plea performance necessarily renders the entire plea agreement enforceable absent the district court's acceptance of the defendant's guilty plea.

Courts must carefully consider the ancillary nature of any pre-plea exchanges relative to the core exchange of the defendant's promise to forego his right to a jury trial (and other associated rights) for the Government’s promise not to prosecute further any other covered acts of the defendant, to make certain sentencing recommendations, or otherwise perform.