holding that a prosecutor’s “formal recitation of a possible sentence” does not satisfy the obligation to “make a recommendation” of a particular sentence; the recommendation must be “expressed with some degree of advocacy”
How later courts described this case
- holding that a prosecutor’s “formal recitation of a possible sentence” does not satisfy the obligation to “make a recommendation” of a particular sentence; the recommendation must be “expressed with some degree of advocacy”
- holding that a plea agreement had been breached when the prosecutor only “halfheartedly” made the agreed-upon recommendation, stating to the court that he had “some problems” with the recommendation
- concluding government breached obligation to make a specific sentence recommendation when prosecutor followed recommendation by remarking that he had “some problems” with the agreement
- holding that where the prosecutor promised to recommend a particular sentence, the mere half-hearted recitation of a suggested sentence would not satisfy the plea agreement
Written by the judges who cited it.
Later courts went against this
Overruled by United States v. Benchimol, 471 U.S. 453 (1985)
Brown has since been repudiated by the United States Supreme Court. See United States v. Ben-chimol, 471 U.S. 453, 85 L. Ed. 2d 462, 105 S. Ct. 2103 (1985).
The opinion
HAYNSWORTH, Chief Judge
(dissenting) :
Until oral argument, the principal point in this case was whether, the sentence having been greater than the recommendation, the defendant was entitled *379 to withdraw his guilty plea and go to a trial on a plea of not guilty as provided in the proposed amendment to Rule 11. See, e. g., United States ex rel. Cul-breath v. Rundle, 3 Cir., 466 F.2d 730 -735; United States v. Gallington, 8 Cir., 488 F.2d 637 . The point was aborted, •however, when defense counsel announced at the oral hearing that he had received positive instructions from the defendant not to seek the right to withdraw his plea. All that remains, then, is an appraisal of the sentencing hearing to determine whether the Government recommended that a sentence of no more than three years be imposed to be served at Lorton in accordance with the plea bargain. Though no principle of law divides us, I am prompted to note my disagreement with the majority out of a sense of fairness to the trial judge and to the prosecutor.
At the hearing when the guilty plea was tendered, the Assistant United States Attorney who negotiated the bargain clearly, correctly, and without reservation stated what the bargain was. If, at the sentencing hearing, a different Assistant United States Attorney may be said to have been halfhearted in making the recommendation because of his inability to answer the judge’s question as to why confinement should be in a facility of the District of Columbia, and his expression of some personal reservation about it, he was not required to stultify himself. If that were all, however, I would agree with the majority because the judge’s question probably should have been anticipated and the Assistant present at the sentencing hearing should have been informed why the Assistant who negotiated the bargain agreed to recommend confinement at Lorton. All of this was fully developed at the sentencing hearing, however, after the colloquy quoted by the majority.
After the prosecutor’s recommendation, the Court was reminded that the bargain had been negotiated by another Assistant United States Attorney, and it was informed in detail why confinement at Lorton had been included as a part of the bargain. First, Lorton was not too far removed from the defendant’s home in the District of Columbia. However, this thirty-seven-year-old man had no family, though it was said that if he were put on probation and the District of Columbia Parole Board did not revoke his parole, he would consider marriage. Second, he wished the District of Columbia Parole Board, alone, to have authority to release him conditionally, and, third, he wished a training program which was available at Lorton. The question which the Court first directed to the prosecutor, who was unable to answer it, was fully answered by defense counsel and the defendant, and the reasons for the bargain fully developed. They were considered by the District Judge and rejected because he was of the opinion that Lorton’s training program was not superior to those available at federal institutions, and he was of the decided opinion that the general rehabilitation services of federal institutions were superior to those available at Lor-ton. It is true that the prosecutor never again spoke up. He did not say, “for the reasons now disclosed, I unreservedly recommend confinement at Lorton for no more than three years,” but the reasons for the recommendations had been developed in a colloquy, largely with defense counsel, and rejected. Any such additional statement by the prosecutor would only have been argumentative.
In light of what transpired after-wards, I think the prosecutor’s initial inability to answer the Court’s inquiry about the recommendation of confinement at Lorton was not a failure of performance of the plea bargain. He knew what the bargain was; he stated the Government recommended its acceptance, and his inability to answer the Court’s inquiry was cured when the reasons supporting the recommendation were fully developed later in the course of the sentencing hearing. Under the circumstances, I cannot conclude that there was a failure of performance of the Government’s agreement.