# Moyer Reed Plaster v. United States > Court of Appeals for the Fourth Circuit · April 29, 1986 · 789 F.2d 289 URL: https://www.frixlaw.com/law-library/cases/9474770 ## Case - **Full name:** Moyer Reed PLASTER, Appellee, v. UNITED STATES of America, Appellant - **Court:** Court of Appeals for the Fourth Circuit - **Decided:** April 29, 1986 - **Citations:** 789 F.2d 289; 1986 U.S. App. LEXIS 24716 - **Precedential status:** Published - **Opinion:** Concurrence by Wilkinson - **Judges:** Winter, Wilkinson, Butzner - **Cited by:** 24 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474770 ## How later opinions describe it (automated extraction) - acknowledging that Cooper was overruled by Mabry but distinguishing Plaster from Mabry and Cooper - recognizing the impact of Mabry on Cooper - applying Santobello to non-prosecution agreements ## Opinion text *294 WILKINSON, Circuit Judge, concurring separately: I join in the majority’s decision to affirm the judgment, but I cannot agree with the majority’s decision to rely in part on “the enforceability of immunity agreements generally when the person granted immunity is not called upon to incriminate himself.” Ante at 293. This position is both unnecessary and unsound. Unnecessary, because the court recognizes that the extraordinary aspects of Plaster’s case independently require issuance of the writ. And unsound, because pledges of immunity — like other prosecutorial contracts — are generally not enforceable unless the recipient has performed his obligation and suffered actual prejudice by some self-incriminating act. Only the extraordinary delay between the offer and withdrawal of immunity justifies a contrary result in this case, and I restrict my concurrence to that narrower ground. If a defendant has not made inculpatory statements on the basis of an offer of immunity, withdrawal of the offer ordinarily will not interfere with the defendant’s right to a fair trial. The majority implies that appellate courts may ignore this absence of prejudice and arrest the criminal process simply because government attorneys have repudiated their offer. The Supreme Court has cautioned against this impulse to place the prosecution on trial, Ma-bry v. Johnson, 467 U.S. 504, 511 , 104 S.Ct. 2543, 2548 , 81 L.Ed.2d 437 (1984) (“The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty.”). So long as the accused has not been prejudiced, the government’s etiquette is not dispositive. Irregularities that do not ■affect substantial rights are to be disregarded. See United States v. Mechanik, — U.S.-,-, 106 S.Ct. 938, 942 , 89 L.Ed.2d 50 (1986) (and cases cited therein). The correct approach may be found in this court’s leading general statement about the enforcement of immunity agreements: “if the promise was made to defendant as alleged and the defendant relied upon it in incriminating himself and others, the government should be held to abide by its terms.” United States v. Carter, 454 F.2d 426, 427 (4th Cir.1972) (en banc) (emphasis added); see also Johnson v. Lumpkin, 769 F.2d 630, 633 (9th Cir. 1985); Rowe v. Griffin, 676 F.2d 524, 527-28 (11th Cir.1982). Subject to exceptions like the one presented here, the converse of the Carter formulation is equally accurate: if the defendant has not relied upon the promise in incriminating himself, the government should not be held to abide by its terms. United States v. Calimano, 576 F.2d 637, 640 (5th Cir.1978); see also Roe v. United States Attorney, 618 F.2d 980 (2d Cir.), cert. denied, 449 U.S. 856 , 101 S.Ct. 152 , 66 L.Ed.2d 70 (1980). These principles have been most clearly articulated in the closely related context of prosecutorial agreements involving guilty pleas. The Supreme Court has refused to enforce such arrangements after the government has repudiated but before the defendant has been prejudiced: A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of the court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution. Mabry v. Johnson, 467 U.S. at 507-08 , 104 S.Ct. at 2546 , overruling Cooper v. United States, 594 F.2d 12 (4th Cir.1979). The same analysis applies to a promise to forbear prosecution in order to secure testimony. A grant of immunity standing alone is also “a mere executory agreement” that is “without constitutional significance;” it is the ensuing privileged statement that implicates the Constitution. The majority tries to avoid Mabry v. Johnson by suggesting several purported differences between a plea bargain and a grant of immunity. Ante at 293. As purely descriptive propositions, these contrasts suffer from a tantalizing imprecision. Immunity may be “formalized” by an incriminating statement just as a plea agreement is “formalized” by a capitulating statement. Both arrangements might *295 commit the government to “do nothing” in some sense: to refrain from prosecution, for example, or to abstain from recommendation at sentencing. And the participation of the court will in each situation depend on the nature of the agreement. More important, the majority advances no reason that these proposed distinctions between an immunity offer and a plea agreement should create any difference in enforcement where the defendant has not prejudiced himself. Nor could the majority bridge this analytic gap, for the principle behind Mabry v. Johnson applies equally to the two cases. A grant of immunity, like a plea bargain, sacrifices constitutional protection from self-incrimination in exchange for prosecutorial protection from judicial process. The exchange is in either instance sealed only by the disadvantageous acts of the defendant. Not surprisingly, courts usually see immunity agreements and plea bargains as a single legal category. In many cases, the two covenants are integrated in one deal. See, e.g., United States v. Cooper; United States v. Carter; United States v. I.H. Hammerman, II, 528 F.2d 326 (4th Cir. 1975). In other cases, courts rely explicitly on a single set of interchangeable principles to resolve enforcement issues. See, e.g., United States v. Brimberry, 744 F.2d 580, 587 (7th Cir.1984); United States v. Carrillo, 709 F.2d 35, 36 (9th Cir.1983); Rowe v. Griffin, 676 F.2d at 528 . Indeed, this court adopted the same analogy in the earlier appeal in this very case. Plaster v. United States, 720 F.2d 340, 351-54 (4th Cir.1983). The Court’s earlier reasoning remains correct today. If we must address “the enforceability of immunity agreements generally where the person granted immunity is not called upon to incriminate himself,” ante at 293, we should acknowledge that the plea bargain authority is relevant, that Mabry v. Johnson will control most cases, and that, without prejudicial reliance, the defendant usually will not be able to hold the government to its offer. But we need not speak so broadly; we need only decide this case. See Plaster v. United States, 720 F.2d at 353 (“we of course do not decide whether executory immunity agreements generally are enforceable by the defendant”). And this case presents special circumstances that independently justify issuance of the writ. The government promised Plaster immunity approximately fifteen years ago. During that time he has established a home and pursued a career — he has relied on the immunity in making a new life. Fundamental fairness requires that we recognize the long duration of that reliance. For that reason, I concur in the affirmance of the district court’s judgment. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474770. Public record. Not legal advice.