U.S. v. Norris, 04-2073.

• Decision Date: 23 April 2007
• Docket Number: No. 04-2073.,04-2073.
• Parties: UNITED STATES of America, Appellant, v. Jamal T. NORRIS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

486 F.3d 1045

UNITED STATES of America, Appellant, v. Jamal T. NORRIS, Appellee.

No. 04-2073.

United States Court of Appeals, Eighth Circuit.

Submitted: September 27, 2006.

Filed: April 23, 2007.

Bradley J. Schlozman, U.S. Atty., argued, Kansas City, MO (Philip M. Koppe, Charles E. Ambrose, Jr., Asst. U.S. Attys., on the brief), for appellant.

Bruce C. Houdek, argued, Kansas City, MO, for appellee.

Before LOKEN, Chief Judge, BRIGHT, WOLLMAN, ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, GRUENDER and BENTON, Circuit Judges, en banc.

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.¹ 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. Ambrose 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.² 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 Thournout, 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.³

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.⁴

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...