to alienate the prosecutor because the sentencing court's ability to depart from a mandatory minimum sentence or a Sentencing Guideline depends on the Government's willingness to make a motion for departure under 18 U.S.C. § 3553(e) or § 5K1.1 of the Guidelines. This defendant, for whatever reason, was apparently worrying less about pleasing the prosecutor and more about protecting his flank from exposure to further prosecution by the Antitrust Division and potential civil liabilities. The Government, apparently believing that the Agreement and the defendant's earlier cooperation gave it an entitlement to a cooperative defendant, regarded his confrontational attitude and his abrasive making of motions and arguments as repudiation of the Agreement. As noted above, there was no basis for this position. There was nothing in the Agreement that precluded the defendant from making such motions. When the defendant challenged the language of the information, however, the Government, fed up with this independence, repeatedly asserted to Judge Patterson at the January 11 conference that the Agreement was illusory and repudiated. When so threatened, the defendant restated several times his readiness to plead to the information as drafted. The issue became critical, however, when the judge undertook to explore what would happen in the event of a prosecution by the Antitrust Division. When Mr. Arkin revealed his intention to call former and current members of the SDNY Office as witnesses in an effort to establish that they had carried messages from the Antitrust Division constituting an agreement, the Government inappropriately told the judge that Mr. Arkin's position showed there was no agreement. Judge Patterson, having had little opportunity to familiarize himself with this unusual agreement -- in which the defendant expressly preserved the right to contend in the future that he had made an immunity agreement with another prosecuting authority -- was led by the Government's unjustified arguments to doubt the existence of a binding agreement. As a result, the judge declined to accept at that time the plea that the defendant was proffering. This was not appropriate conduct by the Government. The positions asserted by the Government had no justification whatsoever under the Agreement.
Having thus convinced the judge that he should decline to accept the plea, the Government cannot be heard now to claim that the defendant's failure to plead by January 11 resulted in his loss of the rights he had negotiated under the Agreement. The Government does not contend it has been prejudiced in any way by the passage of the January 11 date. All the delay since January 11 has been attributable to the schedules of Judge Patterson and this judge; I do not believe this delay should prevent Mozer from obtaining the benefits of the bargain that he had contracted for with the Government.
3. The Government's third argument is that, having made the defendant an offer of unilateral contract which he could accept only by pleading guilty, it was free to withdraw the offer at any time prior to its acceptance. The Government points out that the defendant neither accepted the offer, nor relied on it to his detriment, nor furnished consideration. The defendant's cooperation was rendered to the Government before the Agreement was made; it was therefore not rendered in reliance on the Agreement. If the Government was free to withdraw the offer, it argues, it cannot be held to specific performance.
The Government cites a number of authorities that generally support its right to withdraw from a plea agreement prior to the entry of a guilty plea. See, e.g., United States v. Gonzalez, 918 F.2d 1129, 1133-34 (3d Cir. 1990), cert. denied, 498 U.S. 1107 (1991); United States v. Papaleo, 853 F.2d 16, 17-20 (1st Cir. 1988); United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980), cert. denied, 451 U.S. 984, 68 L. Ed. 2d 840, 101 S. Ct. 2316 (1981); Government of Virgin Islands v. Scotland, 614 F.2d 360, 361-62 (3d Cir. 1980); United States v. McGovern, 822 F.2d 739, 744 (8th Cir.), cert. denied, 484 U.S. 956, 98 L. Ed. 2d 377, 108 S. Ct. 352 (1987); United States v. Alvarado-Arriola, 742 F.2d 1143, 1145 (9th Cir. 1984); see also United States v. Carbone, 739 F.2d 45, 46 (2d Cir. 1984) (dictum). But see United States v. Smith, 648 F. Supp. 495, 498 (S.D. Tex. 1986) (enforcing plea agreement before plea entered); United States v. Lieber, 473 F. Supp. 884 (E.D.N.Y. 1979) (same). I do not dispute the authority of those cases for the proposition that the Government may generally withdraw an unaccepted offer of plea bargain, particularly where it does so for some legitimate law enforcement reason. Thus, for example, if the Government learns additional negative information about a defendant which leads it to reassess whether the offer of plea bargain is in the best interests of the Government, and the defendant has not relied on the assurance that the offer will remain available, the Government may retract the unaccepted offer. See, e.g., United States v. Ocanas, 628 F.2d 353, 356-58 (5th Cir. 1980) (government filed superseding indictment charging larger and longer conspiracy), cert. denied, 451 U.S. 984, 68 L. Ed. 2d 840, 101 S. Ct. 2316 (1981), explained in United States v. Smith, 648 F. Supp. 495, 498 (S.D. Tex. 1986) ("The additional information in the superseding indictment [in Ocanas] reasonably changed the Government's position with respect to the plea agreement and formed the basis for the Government's decision to withdraw the plea agreement."); United States v. Papaleo, 853 F.2d at 18 n.1 (defendant intended to commit perjury when testifying pursuant to plea agreement); see also Government of Virgin Islands v. Scotland, 614 F.2d at 361-62 (defendant declined to testify for government in accordance with plea agreement); United States v. Gonzalez, 918 F.2d at 1133-34 (government offer of plea agreement was contingent on all three defendants accepting, and one declined); United States v. Coon, 805 F.2d 822, 825 (8th Cir. 1986) (parties discovered that maximum statutory fine much higher than thought at time of entering plea agreement).
Regardless whether the Government might have been free to revoke the offer of plea bargain for such legitimate law enforcement reasons, that is not what the Government did here. What it did, as noted above, was to wrongly accuse the defendant of having repudiated the Agreement and, thus, to convince the judge not to accept the defendant's proffered plea.
The Government has pointed to absolutely no reason why the plea agreement was any less in the public interest on January 11, 1993, than it was on the November 19, 1992, when it was made. There was no valid reason to withhold from the defendant the opportunity to enter his plea in acceptance of the agreement, thus obtaining the benefits of the limited immunity for which he had successfully negotiated.
Although the Government's briefs treat this motion in the manner of a commercial contract dispute, courts have consistently made clear that a prosecutor entering into a plea bargain agreement is not simply a party to a contract. The Government is required to observe high standards of integrity and honorable conduct, and the supervisory power of the court is designed to insure that such standards are observed. See United States v. Hasting, 461 U.S. 499, 505, 76 L. Ed. 2d 96, 103 S. Ct. 1974 (1983); Santobello v. New York, 404 U.S. 257, 262, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971). As the second Circuit has explained, "Comparing a criminal defendant with a merchant in the marketplace is an inappropriate analogy that we have rejected. The law of commercial contracts plays only a limited role in resolving a plea dispute." Innes v. Dalsheim, 864 F.2d 974, 978 (2d Cir. 1988) (citing United States ex rel. Selikoff v. Commissioner of Correction, 524 F.2d 650, 654 (2d Cir. 1975)), cert. denied, 493 U.S. 809 (1989). "Unlike contracts, Plea Bargains involve a myriad of collateral considerations such as expectations of fundamental fairness by the Defendants, efficient administration of justice, and the integrity of the Government's promises." United States v. Smith, 648 F. Supp. at 498; see, e.g., United States v. McGovern, 822 F.2d at 743 ("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 . . . .") (citation omitted); United States v. Bowler, 585 F.2d 851, 854 (7th Cir. 1978) ("A plea agreement is not an appropriate context for the Government to resort to a rigidly literal approach in the construction of language."). consistent with this view, courts have emphasized that "the most meticulous standards of both promise and performance must be met by prosecutors engaging in plea bargaining." Correale v. United States, 479 F.2d 944, 947 (1st Cir. 1973); accord United States v. Fields, 766 F.2d 1161, 1167 (7th Cir. 1985); United States v. Bowler, 585 F.2d 851, 854 (7th Cir. 1978).
* * *
I conclude that the defendant must be allowed to enter a plea promptly under the terms of the plea Agreement. The motion is granted.
Dated: New York, N.Y.
July 27, 1993
Pierre N. Leval, U.S.D.J.