Petitioners Brief — United States v. Ruiz

Supreme Court, US.

„ FILED

No. 01-595 FEB 19 2002

In the Supreme Court of the United States

— cnand

UNITED STATES OF AMERICA, PETITIONER

2.

ANGELA RUIZ

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

THEODORE B. OLSON

Solicitor General

Counsel of Record

MICHAEL CHERTOFF

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

JONATHAN L. MARCUS

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTIONS PRESENTED

1. Whether before pleading guilty, a criminal defen-

dant has a constitutional right to obtain material excul-

patory information, including impeachment information,

from the prosecution.

2. Ifso, whether that right may be waived through a

plea agreement.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Constitutional provision involved

Statement

Summary of argument

Argument:

Respondent’s rights were not violated by the govern-

ment’s refusal to recommend a downward departure

after her rejection of the plea agreement 9

I. A criminal defendant does not have a constitutional

right to obtain material exculpatory information

from the prosecution before pleading guilty ............. 10

A. A defendant does not have a constitutional

right under Brady v. Maryland to obtain

material exculpatory information from the

prosecution before pleading guilty 10

B. A defendant may enter an intelligent and

voluntary plea without receiving material

exculpatory information from the prosecution .. 14

C. Requiring the prosecution to disclose material

exculpatory information to all defendants

before they plead guilty would impose serious

costs on the criminal justice system 24

II. A criminal defendant may validly waive any right

he n. have to obtain material exculpatory

Conclusion

Appendix

PT

7 N B

(IIT)

IV *

— —

TABLE OF AUTHORITIES

Cases—Continued: Page

— page United States v. Hyde, 520 U.S. 670 (1997 7, 15,21

United States v. Jackson, 390 U.S. 570 (1988 16, 18

Ake v. Oklahoma, 470 U.S. 68 (1985) ue , United States v. Mezzanatto, 513 U.S. 196 (1995) 9,

Blackledge v. Allison, 431 U.S. 63 (1977) 13, 31 | 32, 38, 34

Bordenkircher v. Hayes, 484 U.S. 357 (1978) ..... —ẽ— 13 United States v. O'Keefe, 128 F.3d 885 (5th Cir.

Bousley v. United State 523 US. 614 (1998) —— 18, 19, 31 1997) cert. denied, 523 U.S. 1078 (1998) 29

Boykin v. Alabama, 395 U.S. 238 (1969) 20, 38, 34 We Presser, 844 F.2d 1275 (6th Cir.

Brady v. Maryland, 373 U.S. 83 (1963) 4, 7, 10 8 1988) 2

Brady v. United States, 397 U.S. 742 (1970) . 7, 16, United 5 4 US. 667 (1980) —

17, 18, 19, 30, 31 ed States — ow

Giglio v. United States, 405 U.S. 150 (1972) 4,10, 11 | — States 1 pee — 1297 (10th Cir.), 1

nnn 22, United States v. Smith Grading & Paving, Inc.,

Johnson v. Zerbst, 304 U.S. 458 (1938) 33 760 F 2d 257 (4th Cir.), cert. denied, 474 U.S. 1005

Kyles v. Whitley, 514 U.S. 419 (1996) ...... 12, 30 asses) -

Matthew v. Johnson, 201 F.3d 358 (Sth Cir.), United States v. Timmreck, 441 U.S. 780 (1979). 31

cert. denied, 531 U.S. 830 (2000) 1 United States v. Valencia-Lucena, 925 F 2d 506

McCarthy v. United States, 394 U.S. 459 (1989) 20 (1st Cir. 1991) 29

McMann v. Richardson, 397 U.S. 759 (1970) ...... 8, 18, 20, 23 Van Moltke v. Gillies, 332 U.S. 708 (1948) 23

Menna v. New York, 423 U.S. 61 (1975) 7, 13, 34

— . —— 008 Weatherford v. Bursey, 429 U.S. 545 (1977)... 14, 21, 28, 29

Orman v. Cain, 228 F.3d 616 (5th Cir. 2000) 13 Constitution, statutes and rules:

Ricketts v. Adamson, 483 U.S. 1 (1987) 33 US. Const.:

Roviaro v. United States, 353 U.S. 53 (1957) 28 Amend. V (Due Process Clause) . I, 14, 21, 24, 25, 28, 33

Sanchez v. United States, 50 F.3d 1448 (9th Cir. Amend. VI 22, 23

1995) 5 Jencks Act, 18 U.S.C. 3500 1, 26, 6a

Santobello v. New York, 404 U.S. 257 (1971) 24 18 U.S.C. 1508 25

Strickland v. Washington, 466 U.S. 668 (1984) 22 18 USC. 1512 25

Strickler v Greene, 527 U.S. 263 (1999) 12 18 U.S.C. 1513 25

Tollett v. Henderson, 411 U.S. 258 (1973) 19, 23 18 U.S.C. 3482 26

United States v. Agurs, 427 U.S. 97 (1976) . 11, 21, 22, 29 18 U.S.C. 3553(e) 32

United States v. Bagley, 473 U.S. 667 (1985) 11, 12,24 21 U.S.C. 841(a\1) 3

United States v. Broce, 488 U.S. 563 (1989) . 12,19 21 US.C. 952 2,3

United States v. Gordon, 844 F 2d 1397 (9th Cir. 21 U.S.C. 960 2,3

1988) 29 Fed. R. Crim. P.

United States v. Higgs, 713 F.2d 39 (3d Cir. 1983), Rule 11 1, 20, 21, la

cert. denied, 464 U.S. 1048 (1984) 29 Rule 11(c) 20, la

Rules—Continued: Page

Rule 11(d) 20, 2a

Rule 11(f) 16, 20, 3a

Rule 16 1, 14, 26, 27, 28, 3a

Rule 16(a)(2) 26, 5a

United States Sentencing Guidelines § 5K1.1 (2001) ..... 32

Miscellaneous:

Amendments to Federal Rules of Criminal Procedure:

Hearings Before the Subcomm. on Criminal Justice of

the House Judiciary Comm., 94th Cong., Ist Sess.

(1975) 27

Amendments to Rule $2 of the Federdl Rules of

Criminal Procedures:

156 F.R.D. 460 (1994) 27

167 F.R.D. 221 (1996) 27

Edward S. G. Dennis, Jr., The Discovery in Criminal

Prosecutions: Toward Fir Fights and Just Verdicts,

68 Wash. U.L.Q. 63 (1990) 26, 27

H.R. Conf. Rep. No. 414, 94th Cong., Ist Sess. (1975) 27

H.R. Rep. No. 247, 94th Cong., Ist Sess. (1975) 28

Judicial Business of the United States Courts, Annual

Report of the Director (2001) (<http://www.uscourts.

gov/judbus2000/contents.html>) 24

In the Supreme Court of the United States

No. 01-595

UNITED STATES OF AMERICA, PETITIONER

Vv.

ANGELA RUIZ

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-39a)

is reported at 241 F.3d 1157.

JURISDICTION |

The judgment of the court of appeals was entered on

March 5, 2001. A petition for rehearing was denied on

June 11, 2001 (Pet. App. 40a). The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

CONSTITUTIONAL PROVISION, RULES, AND

STATUTE INVOLVED

The Due Process Clause of the Fifth Amendment

provides in pertinent part that Injo person shall be

* * * deprived of life, liberty, or property, without due

process of law.” The relevant portions of Rules 11 and

16 of the Federal Rules of Criminal Procedure and of

the Jencks Act, 18 U.S.C. 3500, are set forth in an

appendix to this brief. App., infra, la-6a.

(1)

2

STATEMENT

Following a plea of guilty, respondent was convicted

in the United States District Court for the Southern

District of California on one count of importing mari-

juana, in violation of 21 U.S.C. 952 and 960. J.A. 7.

Respondent was sentenced to 18 months’ imprison-

ment, to be followed by three years of supervised

release. J.A. 2. The court of appeals vacated respon-

dent’s sentence and remanded for resentencing. Pet.

App. 21a.

1. On August 13, 1999, respondent entered the

United States from Mexico through the port of entry at

Tecate, California. J.A. 25. A search of respondent’s

car uncovered approximately 30.1 kilograms of mari-

juana concealed within it. Jbid. Respondent was

arrested and transported to the Metropolitan Correc-

tional Center. Pet. App. la.

The United States Attorney for the Southern Dis-

trict of California offered respondent an opportunity to

enter into a “fast-track” plea agreement. Pet. App. la-

2a. Under the Southern District of California’s stan-

dard fast-track agreement, a defendant agrees to waive

indictment, plead guilty to an information, and waive

appellate rights. J.A. 9-10, 17-18. In addition, the

standard fast-track agreement contains a provision in

which the government represents that it has provided

the defendant with any information in its possession

that establishes the defendant’s factual innocence, and

the defendant waives the right to receive any infor-

mation that would impeach government witnesses or

support an affirmative defense. J.A. 12; Pet. App. 45a-

46a. The waiver provision of the agreement specifically

states that:

The Government represents that any information

establishing the factual innocence of the defendant

known to the undersigned prosecutor in this case

has been turned over to the defendant. The Gov-

ernment understands it has a continuing duty to

provide such information establishing the factual

innocence of the defendant.

The defendant understands that if this case pro-

ceeded to trial, the Government would be required

to provide impeachment information relating to any

informants or other witnesses. In addition, if the

defendant raised an affirmative defense, the

Government would be required to provide informa-

tion in its possession that supports such a defense.

In return for the Government’s promises set forth in

this agreement, the defendant waives the right to

this information, and agrees not to attempt to

withdraw the guilty plea or to file a collateral attack

based on the existence of this information.

Ibid. In return for the defendant’s commitments, the

government agrees to recommend a two-level down-

ward departure from the offense level specified by the

Sentencing Guidelines. Ibid.

Respondent declined the U.S. Attorney’s offer to

enter into a plea agreement. Pet. App. 2a.

2. A federal grand jury subsequently returned a

two-count indictment charging respondent with import-

ing marijuana, in violation of 21 U.S.C. 952 and 960, and

possessing marijuana with intent to distribute it, in

violation of 21 U.S.C. 841(a)(1). J. A. 7-8. Respondent

pleaded guilty to the count charging her with importing

marijuana. J.A. 25. At the hearing on her guilty plea,

4

respondent stated that she understood the charge to

which she was pleading guilty and the maximum pen-

alty she faced. J.A. 24. She further stated that she was

satisfied with her attorney’s services. J.A. 25. After

her attorney described her criminal conduct, respon-

dent admitted that she knowingly drove a car con-

taining approximately 30.1 kilograms of marijuana

across the border. J.A. 25-26.

The Presentence Investigation Report determined

that respondent’s total offense level was 13 and that her

criminal history category was III, yielding a Guidelines

sentencing range of 18-24 months’ imprisonment. See

Pet. App. 48a. Respondent sought a “fast-track” down-

ward departure, asserting that she had done every-

thing to qualify for such a departure except waive the

right to receive information that would impeach gov-

ernment witnesses and support an affirmative defense.

Id. at 41a-43a. She further argued that she had a

constitutional right to receive such information under

Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v.

United States, 405 U.S. 150 (1972), and that the

government had acted unconstitutionally in attempting

to secure a waiver of that right. Pet. App. 42a-43a. The

government opposed a fast-track departure, on the

ground that it had not received the benefits that accom-

pany fast-track agreements. Id. at 42a. The district

court refused to grant a downward departure and

sentenced respondent to 18 months’ imprisonment. Id.

at 43a-44a.

3. A divided panel of the Ninth Circuit reversed and

remanded for resentencing. Pet. App. la-39a. As

relevant here, the court held that a criminal defendant

has a constitutional right to obtain material exculpatory

information before pleading guilty and that a defendant

OO... ae

5

may not validly waive that right through a plea

agreement. Id. at 8a-16a.

The court of appeals first reaffirmed its holding in

Sanchez v. United States, 50 F.3d 1448, 1453 (1995),

that “guilty pleas cannot be deemed intelligent and

voluntary if entered without knowledge of material

[exculpatory] information withheld by the prosecution.”

Pet. App. 9a. The court also reaffirmed Sanchez’s

rationale—that “a defendant’s decision whether or not

to plead guilty is often heavily influenced by his ap-

praisal of the prosecution’s case.” Id. at 9a-10a.

The court of appeals next concluded that “(t]he ra-

tionale of Sanchez applies with equal force to plea

agreements.” Pet. App. 10a. The court reasoned that

“(t]he disclosure of Brady evidence is just as important

in ensuring the voluntary and intelligent nature of a

plea bargain as it is in ensuring the voluntary and

intelligent nature of a guilty plea.” Ibid. The court

therefore concluded that “plea agreements, and any

waiver of Brady rights contained therein, ‘cannot be

deemed intelligent and voluntary if entered without

knowledge of material information withheld by the

prosecution.“ Jbid. The court rejected the govern-

ment’s argument that a waiver is valid if limited to

impeachment material bearing on the credibility of

government witnesses. Id. at 13a-15a. Noting that this

Court had rejected any distinction between impeach-

ment material and other exculpatory material under

Brady, id. at 14a-15a, the court held that information

favorable to the defense must be disclosed whenever it

would create “a reasonable probability that but for the

failure to disclose the Brady material the defendant

would have refused to plead and would have gone to

trial.” Id. at 15a.

6

Based on its holding that a waiver of Brady rights is

invalid, the court of appeals further held that “it is

unconstitutional for prosecutors to withhold a depar-

ture recommendation based on a defendant’s refusal to

accept such a waiver.” Pet. App. 18a. The court also

concluded that respondent had made a sufficient

showing to warrant an evidentiary hearing on whether

“the Government declined to recommend a ‘fast track’

departure because [respondent] refused to waive her

Brady rights.” Id. at 19a. The court remanded with

directions to the district court to conduct such a

hearing, and to determine in its discretion whether to

remedy any violation it found. Jd. at 20a-21a.

Judge Tallman dissented. Pet. App. 25a-39a. He con-

cluded that the majority’s rule “forces the government

to turn over information to a defendant immediately

upon beginning plea bargain negotiations, when that

information will generally be of little use to the defen-

dant unless she goes to trial.” Id. at 38a. Judge Tall-

man also concluded that the majority’s rule interferes

with the government’s substantial interest in “main-

taining the confidentiality of government witnesses and

protecting ongoing investigations.” Ibid. Judge Tall-

man emphasized that the majority’s rule prevents the

expeditious resolution of drug courier cases because it

requires prosecutors to engage in “the often time-

consuming process of determining which witnesses it

may call at trial, what potential impeachment informa-

tion on each witness is in its possession, and whether it

must disclose that information to the defendant.” Id. at

39a. :

SUMMARY OF ARGUMENT

I. A criminal defendant does not have a constitu-

tional right to obtain material exculpatory information

7

from the government before pleading guilty. The rule

announced in Brady v. Maryland, 373 U.S. 83 (1963),

establishes that a prosecutor has a duty to disclose

material exculpatory information to a defendant in

order to protect the fairness of a verdict at trial, and to

guard against the risk that an innocent person might be

found guilty because the government withheld evi-

dence. Those purposes are not implicated when a

defendant pleads guilty and waives his right to a trial.

Except in the most unusual circumstances, a defendant

who is assisted by competent counsel knows whether he

has committed the charged offense. If such a defendant

pleads guilty, there is no reason to question the

reliability of the plea. As this Court has explained, “a

counseled plea of guilty is an admission of factual guilt

so reliable that, where voluntary and intelligent, it

quite validly removes the issue of factual guilt from the

case.” Menna v. New York, 423 U.S. 61, 62 n.2 (1975)

(per curiam) (emphasis deleted).

Nor must a defendant have access to the prosecu-

tion’s files in order to enter a voluntary and intelligent

plea. When a defendant pleads guilty, he is not

admitting that the government’s evidence establishes

his guilt beyond a reasonable doubt. He admits that

“he actually committed the crimes,” and that “he is

pleading guilty because he is guilty” (emphasis added).

United States v. Hyde, 520 U.S. 670, 676 (1997). A

defendant does not need to know the strength of the

government’s case in order to make those admissions

intelligently and voluntarily.

In Brady v. United States, 397 U.S. 742, 757 (1970),

the Court specifically explained that there is “no

requirement in the Constitution that a defendant must

be permitted to disown his solemn admissions in open

8

court that he committed the act with which he is

charged simply because it later develops that the State

would have had a weaker case than the defendant had

thought.” Similarly, in McMann v. Richardson, 397

U.S. 759, 769 (1970), the Court emphasized that “the

decision to plead guilty before the evidence is in

frequently involves the making of difficult judgments,”

and that “[{iJn the face of unavoidable uncertainty, the

defendant and his counsel must make their best judg-

ment as to the weight of the State’s case.”

Requiring the prosecution to provide material

exculpatory information to a defendant pleading guilty

would impose serious costs on the criminal justice sys-

tem. It would endanger prospective government wit-

nesses and the conduct of ongoing investigations;

transform Brady v. Maryland from a fair trial right

into a trial preparation right; hamper the expeditious

resolution of criminal cases through guilty pleas;

intrude on the strong interest in the finality of criminal

convictions; and deter the government from offering

plea bargains that would benefit both the defendant

and the government. The existence of those serious

costs to the administration of justice further under-

mines the claimed due process right at issue here.

II. Even if Brady v. Maryland’s due process rule

were extended to the guilty plea stage of a criminal

proceeding, a defendant pleading guilty could validly

waive the right to obtain material exculpatory informa-

tion in a plea agreement. This Court’s decisions estab-

lish that a criminal defendant may waive many of the

most fundamental constitutional protections, including

the privilege against compulsory self-incrimination, the

9

right to a jury trial, the right to confront one’s accusers,

and the right to counsel. United States v. Mezzanatto,

513 U.S. 196, 201 (1995). If there were a due process

right to obtain material exculpatory information before

pleading guilty, that right should be equally waivable.

If a defendant assisted by competent counsel decides to

plead guilty and is willing to waive his right to obtain

whatever material exculpatory information there hap-

pens to be in exchange for the possibility of a reduced

sentence or other considerations, no sound constitu-

tional basis exists to prevent him from doing so.

ARGUMENT

RESPONDENT'S RIGHTS WERE NOT VIOLATED BY

THE GOVERNMENT’S REFUSAL TO RECOMMEND

A DOWNWARD DEPARTURE AFTER HER REJEC-

TION OF THE PLEA AGREEMENT

The court of appeals held that respondent had a

constitutional claim that the government may have

impermissibly withheld a recommendation for a down-

ward departure at sentencing because of respondent’s

refusal “to waive her Brady rights” in a proposed plea

agreement. Pet. App. 21a. That holding is incorrect.

The court of appeals recognized that “to prevail on her

downward departure claim, [respondent] must show

that the Brady waiver contained in the rejected plea

agreement is unconstitutional.” Jd. at 7a. No such

showing can be made. Respondent had no right to

Brady material in the first place before pleading guilty.

In any event, any such right could validly be waived.

10

I. A CRIMINAL DEFENDANT DOES NOT HAVE

A CONSTITUTIONAL RIGHT TO OBTAIN MATE-

RIAL EXCULPATORY INFORMATION FROM

THE PROSECUTION BEFORE PLEADING

GUILTY

A. A Defendant Does Not Have A Constitutional

Right Under Brady v. Maryland To Obtain Mate-

rial Exculpatory Information From The Prosecu-

tion Before Pleading Guilty

The Ninth Circuit’s holding that a criminal defendant

has a constitutional right to obtain material exculpatory

information from the prosecution before pleading guilty

is unsupported by Brady v. Maryland, 373 U.S. 83

(1963), and the decisions applying it. Under those

decisions, a prosecutor’s duty to disclose exculpatory

information arises only where disclosure is necessary to

ensure a fair trial on the issues of guilt or punishment.

Brady does not require the prosecution to disclose

information in its files in order to help a criminal

defendant make a strategic decision about whether to

plead guilty.

In Brady, this Court granted a criminal defendant a

new sentencing hearing because the prosecutor had

withheld evidence of a co-defendant’s confession. The

Court held that “suppression by the prosecution of

evidence favorable to an accused upon request violates

due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” 373 U.S. at 87. The

principle supporting that holding, the Court explained,

is “avoidance of an unfair trial to the accused.” Ibid.

In Giglio v. United States, 405 U.S. 150 (1972), the

Court extended Brady to impeachment evidence, hold-

ing that the prosecution violated due process when it

11

failed to disclose that it had promised its key witness

that he would not be prosecuted if he testified at the

defendant’s trial. The Court reasoned that “[wJhen the

reliability of a given witness may well be determinative

of guilt or innocence, nondisclosure of evidence affect-

ing credibility falls within [the Brady] rule.“ Id. at 154.

In subsequent cases, the Court has consistently lim-

ited Brady to the nondisclosure of exculpatory infor-

mation that results in the denial of a fair trial by

undermining confidence in the reliability of the jury’s

finding of guilt (or of the resulting sentence). In United

States v. Agurs, 427 U.S. 97 (1976), the Court empha-

sized as “a critical point” that “the prosecutor will not

have violated his constitutional duty of disclosure [un-

der Brady] unless his omission is of sufficient signifi-

cance to result in the denial of the defendant’s right to a

fair trial.” Jd. at 108. The Court further explained that,

because “(t]he proper standard of materiality must

reflect our overriding concern with the justice of the

finding of guilt,” a prosecutor’s failure to disclose excul-

patory evidence violates the Constitution only “if the

omitted evidence creates a reasonable doubt that did

not otherwise exist.” Jd. at 112. The Court rejected as

inconsistent with Brady a standard that would instead

“focus on the impact of the undisclosed evidence on the

defendant’s ability to prepare for trial.” Id. at 112 n.20.

Similarly, in United States v. Bagley, 473 U.S. 667,

675 (1985), the Court explained that the purpose of the

Brady rule “is not to displace the adversary system,”

but to “ensure that a miscarriage of justice does not

occur.” For that reason, “the prosecutor is not required

to deliver his entire file to defense counsel, but only to

disclose evidence favorable to the accused that, if

suppressed, would deprive the defendant of a fair trial.”

Ibid. (footnote omitted). Any broader right, the Court

12

observed, “would entirely alter the character and

balance of our present systems of criminal justice.” Id.

at 675 n.7. The Court reiterated that “[cjonsistent with

our overriding concern with the justice of the finding of

guilt, a constitutional error occurs, and the conviction

must be reversed, only if the evidence is material in the

sense that its suppression undermines confidence in the

outcome of the trial.” Jd. at 678 (citation and internal

quotation marks omitted).

More recently, in Kyles v. Whitley, 514 U.S. 419, 436-

437 (1995), the Court explained that “the Constitution is

not violated every time the government fails or chooses

not to disclose evidence that might prove helpful to the

defense.” A constitutional violation occurs only “when

the government’s evidentiary suppression undermines

confidence in the outcome of the trial.” Jd. at 434. And

in Strickler v. Greene, 527 U.S. 263, 281 (1999), the

Court observed that, while the phrase “Brady viola-

tion” is sometimes used loosely to refer to the breach of

a broad obligation to disclose exculpatory evidence,

“there is never a real ‘Brady violation’ unless the non-

disclosure was so serious that there is a reasonable

probability that the suppressed evidence would have

produced a different verdict.”

The purpose of the Court’s Brady decisions is there-

fore to protect the fairness of the trial and to guard

against the risk that an innocent person might be found

guilty because the government withheld evidence.

That purpose is not implicated when a defendant enters

a plea in open court, thereby “admitting guilt of a sub-

stantive crime.” United States v. Broce, 488 U.S. 563,

570 (1989). As the Fifth Circuit has explained, “Brady

requires a prosecutor to disclose exculpatory evidence

for purposes of ensuring a fair trial, a concern that is

absent when a defendant waives trial and pleads

13

guilty.” Orman v. Cain, 228 F.3d 616, 617 (5th Cir.

2000) (per curiam); see also Matthew v. Johnson, 201

F.3d 353, 360, 361-362 (5th Cir.), cert. denied, 531 U.S.

830 (2000).

When a defendant pleads guilty, there is no serious

risk that an innocent person will be convicted because

the prosecution did not disclose exculpatory evidence.

Barring unusual circumstances, a defendant who has

the assistance of competent counsel will know whether

he is guilty of the charged offense. Once such a defen-

dant solemnly swears in open court that he has com-

mitted the offense, there is no reason to question the

accuracy of the resulting entry of a finding of guilt. As

this Court has explained, “a counseled plea of guilty is

an admission of factual guilt so reliable that, where

voluntary and intelligent, it quite validly removes the

issue of factual guilt from the case.” Menna v. New

York, 423 U.S. 61, 62 n.2 (1975) (per curiam) (emphasis

deleted); see also Blackledge v. Allison, 431 U.S. 63, 74

(1977) (“Solemn declarations in open court carry a

strong presumption of verity.”); Bordenkircher v.

Hayes, 434 U.S. 357, 363 (1978) (“Defendants advised

by competent counsel and protected by other proce-

dural safeguards are * * * unlikely to be driven to

false self-condemnation.”).

Neither Brady nor its underlying rationale supports

the creation of a new constitutional rule that would

require the prosecution to disclose to every criminal

defendant contemplating a plea of guilty all material

exculpatory information in the prosecution’s possession.

Disclosure of such material at the guilty plea stage is

14

not necessary to protect a defendant’s right to a fair

trial or to ensure the reliability of a finding of guilt.’

B. A Defendant May Enter An Intelligent And Volun-

tary Plea Without Receiving Material Exculpatory

Information From The Prosecution

The Ninth Circuit made no attempt to justify its

disclosure rule by reference to Brady v. Maryland or

its underlying rationale. Instead, it attempted to link

its holding to a separate constitutional principle—that

the Due Process Clause requires that a defendant’s

decision to plead guilty be intelligent and voluntary.

The court reasoned that “guilty pleas cannot be deemed

intelligent and voluntary if entered without knowledge

of material [exculpatory] information withheld by the

prosecution.” Pet. App. 9a. The court did not suggest

that knowledge of material exculpatory information is

In rare cases, a defendant may be unable to determine

whether he is guilty of the charged offense because a fact that is

crucial to guilt is outside his knowledge (i.e., the insurance element

in a federal bank robbery case) and the defendant, even with the

assistance of competent counsel and discovery under Federal Rule

of Criminal Procedure 16, cannot discover it through reasonable

investigation. Such a defendant, of course, is free to go to trial to

compel the government to prove its case. Cf. Weatherford v.

Bursey, 429 U.S. 545, 559 (1977) (There is no constitutional right

to plea bargain * * * . It is a novel argument that constitutional

rights are infringed by trying the defendant rather than accepting

his plea of guilty.”). Alternatively, the defendant may tender a

plea in order to obtain any advantages flowing from that course of

action. Cf. North Carolina v. Alford, 400 U.S. 25 (1970) (discussed

at note 2, infra). The existence of those rare cases thus cannot

justify a constitutional rule requiring disclosure of material

exculpatory information to all defendants contemplating a guilty

plea; normally, a defendant can readily determine his guilt. In any

event, this is not one of those rare cases: respondent could readily

determine from her own knowledge that she was guilty of the

charged offense of importing marijuana.

— — —

15

necessary for a defendant to know whether he has

committed the charged offense. Instead, the court

viewed receipt of exculpatory infol mation as a compo-

nent of an intelligent and voluntary plea only because

such information could assist a defendant in making a

strategic decision whether to plead guilty or go to trial.

The court explained the rationale for its rule as follows:

“a defendant’s decision whether or not to plead guilty is

often heavily influenced by his appraisal of the prosecu-

tion’s case.” Pet. App. 9a-10a. That test led the court

to define materiality by reference to whether the infor-

mation is reasonably likely to lead a defendant to reject

a plea and go to trial. Id. at 15a.

But knowledge of the government’s evidence (or its

weaknesses) has never been a prerequisite to a volun-

tary and intelligent plea. The inquiry into whether a

plea is voluntary and intelligent turns on whether the

defendant is competent, acts without coercion, and is

aware of the charges and the direct consequences of the

plea. When the defendant has not waived the right to

counsel, the intelligence of the plea also turns on

whether the defendant received effective assistance of

counsel. Nothing more is required. Thus, even if the

receipt of information from the government might

improve the defendant’s calculations of the odds of

acquittal at trial, it does not mean that a guilty plea

entered without such information is involuntary or

unintelligent. —

1. When a defendant admits that he is guilty in open

court, he does not admit that the government will be

able to prove his guilt to a jury beyond a reasonable

doubt. He admits that “he actually committed the

crimes,” and that “he is pleading guilty because he is

guilty” (emphasis added). United States v. Hyde, 520

U.S. 670, 677 (1997). A defendant does not need to

16

know of potential weaknesses in the government’s case

in order to make those admissions voluntarily and

intelligently.’

In Brady v. United States, 397 U.S. 742 (1970), the

Court upheld a guilty plea against the claim that, but

for an unconstitutional death penalty scheme under

which a defendant was exposed to the death penalty

only if a jury so recommended, the defendant would not

have pleaded guilty. Jd. at 745-746, 747; see United

States v. Jackson, 390 U.S. 570 (1968). Even assuming

that the penalty provision was a “cause” of the plea, 397

U.S. at 750, the Court upheld the plea under the

traditional test that a guilty plea is valid if it is “both

‘voluntary’ and intelligent.“ Jd. at 747. The Court

held that a plea is voluntary if it is not “induced by

threats (or promises to discontinue improper harass-

ment), misrepresentation (including unfulfilled or

2 Normally, a defendant’s plea entails an acknowledgment of

factual guilt whether or not the defendant explicitly admits com-

mitting the charged acts. North Carolina v. Alford, 400 U.S. 25, 32

(1970) (a guilty plea “subsumes” such an admission “even though

there is no separate, express admission by the defendant that he

committed the particular acts claimed to constitute the crime

charged in the indictment”). In an unusual case, a defendant may

enter a plea of guilty while maintaining his innocence, as occurred

in Alford. But Alford upheld the trial court’s acceptance of such a

plea because the “record before the judge contain[ed] strong evi-

dence of actual guilt.” Id. at 37; ibid. (noting “overwhelming evi-

dence” of guilt); id. at 38 (noting the “strong factual basis for the

plea demonstrated by the State”). Alford thus protected against

the plea-based conviction of an actually innocent defendant by

requiring a strong showing of factual guilt. There is no general

constitutional requirement of such a showing as a prerequisite to a

plea, because the plea itself represents an admission that the

defendant committed the acts charged in the indictment. Cf. Fed.

R. Crim. P. 11(f).

17

unfulfillable promises), or perhaps by promises that are

by their nature improper as having no proper relation-

ship to the prosecutor’s business (e.g. bribes).” Id. at

755 (internal quotation marks omitted). The Court held

that a plea is intelligent when a defendant is “advised

by competent counsel,” is “aware of the nature of the

charge against him” and the “likely consequences” of

the plea, and is not “incompetent or otherwise not in

control of his mental faculties.” Jd. at 776; id. at 748; id.

at 756. The Court did not include awareness of excul-

patory information possessed by the prosecution as an

element of a voluntary and intelligent plea.

While the Court recognized in Brady v. United States

that a defendant’s entry of a guilty plea often is influ-

enced by the defendant’s view of the strength of the

prosecution’s case, 397 U.S. at 756, the Court went on

to reject the contention that a defendant must be able to

assess accurately the strength of the prosecution’s case

in order to make a voluntary and intelligent plea. The

Court stated that “[t]he rule that a plea must be

intelligently made to be valid does not require that a

plea be vulnerable to later attack if the defendant did

not correctly assess every relevant factor entering into

his decision.” Jd. at 757. In particular, the Court

explained, Ja] defendant is not entitled to withdraw his

plea merely because he discovers long after the plea has

been accepted that his calculus misapprehended the

quality of the State’s case.” Ibid. “We find no require-

ment in the Constitution,” the Court stated, “that a

defendant must be permitted to disown his solemn

admissions in open court that he committed the act with

which he is charged simply because it later develops

that the State would have had a weaker case than the

defendant had thought.” Ibid.

18

The facts of Brady underscore that accurate infor-

mation about weaknesses in “the prosecution’s case” is

not a prerequisite to an intelligent plea. 397 U.S. at

757. The defendant in Brady pleaded guilty believing

that he would face the death penalty if he went to trial,

but this Court later invalidated the applicable death

penalty provision in United States v. Jackson, supra.

397 U.S. at 756. Even though the defendant had an

incorrect understanding of his penalty exposure when

he decided to plead guilty, this Court found that his

plea was still an “intelligent” one under the constitu-

tional test. Id. at 756-757.

Likewise, in McMann v. Richardson, 397 U.S. 759,

769-770 (1970), the Court upheld the validity of a plea

against a claim that it was induced by a defendant’s

mistaken belief that a confession he made could have

been introduced into evidence against him. The Court

explained that “a defendant’s plea of guilty based on

reasonably competent advice is an intelligent plea not

open to attack on the ground that counsel may have

misjudged the admissibility of the defendant’s confes-

sion.” Id. at 770. Instead, “[wJhether a plea of guilty is

unintelligent and therefore vulnerable when motivated

by a confession erroneously thought admissible in evi-

dence depends on whether that advice was

within the range of competence demanded of attorneys

in criminal cases.” Id. at 770-771. The Court empha-

sized that “the decision to plead guilty before the

evidence is in frequently involves the making of diffi-

cult judgments,” and that Jiln the face of unavoidable

uncertainty, the defendant and his counsel must make

their best judgment as to the weight of the Srate’s

case.” Id. at 769.

In Bousley v. United States, 523 U.S. 614, 617 (1998),

the Court reaffirmed the principles established in

a

19

Brady v. United States and McMann. In that case, the

Court held that a guilty plea is not intelligent if a

defendant is incorrectly informed about the essential

nature of the charges against him. Id. at 619. The

Court specifically distinguished Brady v. United States

and McMann, on the ground that the defendants in

those cases had been correctly informed about the

nature of the charges against them, and had attacked

their pleas solely on the ground that they had “mis-

judged the strength of the Government’s case or the

penalties to which they were subject.” Ibid.

Other decisions of this Court establish that guilty

pleas may be intelligent and voluntary even when the

defendant lacks knowledge at the time of the plea that

he might have a valid defense to the charges against

him. In Tollett v. Henderson, 411 U.S. 258, 267 (1973),

the Court held that a defendant who received effective

assistance from counsel could not attack his guilty plea

on the ground that he was unaware at the time of the

plea that his grand jury had been unconstitutionally

selected. Similarly in United States v. Broce, 488 U.S.

563, 573 (1989), the Court held that because “conscious

waiver” is not required “with respect to each potential

defense relinquished by a plea of guilty,” a defendant

who received effective assistance from counsel could

not challenge his guilty plea on the ground that he was

unaware when he pleaded guilty that he might have a

valid double jeopardy defense.

Thus, under this Court’s cases, a plea is intelligent

and voluntary as long as the defendant (1) has been ad-

vised by competent counsel, (2) is aware of the essential

nature of the charge and likely consequences of the

plea, (3) is in control of his mental faculties, and (4) is

not induced to plead guilty by threats, misrepresenta-

tion, or improper promises. Brady, 397 U.S. at 749-757;

20

McMann, 397 U.S. at 770. A defendant does not need

to know the strengths or weaknesses of the prosecu-

tion’s case or how he might attack it in order to make a

voluntary and intelligent plea.

2. The criminal justice system has sufficient protec-

tions in place to prevent the entry of constitutionally

invalid pleas without a rule requiring the government

to disclose exculpatory evidence. In order to accept a

guilty plea, a trial court must make an adequate record

that the plea is made voluntarily and intelligently.

Boykin v. Alabama, 395 U.S. 238, 244 (1969). The

defendant’s right to the effective assistance of counsel

in felony cases stands as a further central protection

against unintelligent pleas.

In the federal system, Federal Rule of Criminal Pro-

cedure 11 establishes additional procedures to ensure

that a guilty plea is intelligent and voluntary. See

McCarthy v. United States, 394 U.S. 459, 465 (1969).

Rule 11 requires a district court to inform the defen-

dant, and determine that the defendant understands.

inter alia, (1) the nature of the charge and the minimun

and maximum penalties he faces, (2) his right to the

assistance of counsel, (3) his right to be tried by a jury,

(4) his right at that trial to confront and cross-examine

witnesses, and (5) his right against compelled self-

incrimination. Fed. R. Crim. P. 11(c). Rule 11 also

requires the court to address the defendant personally

in open court and to determine that the plea is not the

result of force or threats, or of promises other than

those contained in a plea agreement. Fed. R. Crim. P.

11(d). Finally, Rule 11 requires the court to find that

there is a factual basis for the plea. Fed. R. Crim. P.

11(f). After a defendant who has been advised in

accordance with Rule 11 “has sworn in open court that

he actually committed the crimes, after he has stated

21

that he is pleading guilty because he is guilty, [and]

after the court has found a factual basis for the plea,”

Hyde, 520 U.S. at 676, there is sufficient assurance that

a plea is intelligent and voluntary. At that point, the

district court “may, in its discretion, accept a defen-

dant’s guilty plea.” Id. at 674. There is no constitu-

tional basis for supplementing Rule 11’s carefully

crafted procedures for accepting a plea with a new rule

that a plea may not be accepted unless the prosecution

has first disclosed to the defendant all material

exculpatory information in its possession.

3. The Ninth Circuit’s reliance on a defendant’s

interest in-knowing the strength of the prosecution’s

case before pleading guilty is subject to a further fatal

objection. If an understanding of the strength of the

government’s case were truly necessary in order to

permit a defendant to make a voluntary and intelligent

plea, disclosure of exculpatory information alone could

not achieve that objective. A full understanding of the

strength of the government’s case can only be achieved

through a disclosure of evidence that inculpates the

defendant as well. The logic of the Ninth Circuit’s

ruling would therefore require the government to dis-

close inculpatory as well as exculpatory evidence.

This Court, however, has emphatically rejected the

proposition that the Due Process Clause requires the

prosecution to disclose inculpatory evidence to the

defendant. See Weatherford v. Bursey, 429 U.S. 545,

559 (1977); Agurs, 427 U.S. at 111 (“we have rejected

the suggestion that the prosecutor has a constitutional

duty routinely to deliver his entire file to defense

counsel”). Indeed, for precisely that reason, the Court

in Agurs rejected the contention that materiality

should be defined by the impact of undisclosed evidence

on a defendant’s ability to prepare for trial. The Court

22

explained that a trial preparation standard “would nec-

essarily encompass incriminating evidence as well as

exculpatory evidence, since knowledge of the prosecu-

tor's tire case would always be useful in planning the

defense.” Id. at 112 n.20. The Ninth Circuit’s decision

in this case suffers from the same flaw.

4. Nothing in Hill v. Lockhart, 474 U.S. 52 (1985),

supports the conclusion that the government’s dis-

closure of material exculpatory information is n

to ensure an intelligent and voluntary plea. In Hill, the

Court held that a defendant may attack the validity of a

guilty plea based on the ineffectiveness of counsel if he

can show that counsel’s performance was not “within

the range of competence demanded of attorneys in

criminal cases,” id. at 56, and that there is a “reasonable

probability that, but for counsel’s errors, he would not

have pleaded guilty and would have insisted on going to

trial,” id. at 59. While Hill permits a defendant to

attack a guilty plea as unintelligent and involuntary if a

defendant can show that defense counsel failed to

uncover exculpatory evidence that would have caused

him to go to trial, that does not imply that the gov-

ernment has an obligation to disclose such evidence.

Hill is based on the Sixth Amendment’s specific com-

mand that “(ijn all criminal prosecutions, the accused

shall * * * have the assistance of counsel for his

defence.” The Court has interpreted that specific guar-

antee to encompass “effective” assistance from counsel,

because effective assistance from counsel is “critical to

the ability of the adversarial system to produce just

results.” Strickland v. Washington, 466 U.S. 668, 685

(1984). In an adversarial system, counsel’s duty to

provide effective assistance necessarily includes a duty

to assist the defendant in making strategic decisions,

including whether it is in the defendant’s interest to

23

plead guilty or to go to trial instead. Hill, 474 U.S. at

56-57; Tollett, 411 U.S. at 267-268; McMann, 397 U. S. at

771.

In contrast, neither the Sixth Amendment nor any

other constitutional provision commands that a defen-

dant shall have a right to effective assistance from the

prosecution. Nor does any provision of the Constitution

require the prosecution to assist a defendant in making

strategic choices. That function falls to defense counsel.

Hill itself demonstrates that the prosecution’s consti-

tutional obligations to a defendant contemplating a

guilty plea do not parallel those of defense counsel. In

that case, the Court held that a plea could not be

deemed unintelligent or involuntary simply because the

prosecution did not furnish to the defendant informa-

tion about his parole eligibility date. 474 U.S. at 56. In

contrast, the Court held that a criminal defendant

would be entitled to relief from his plea if he could show

that defense counsel’s failure to inform him accurately

about his parole eligibility fell below an objective stan-

dard of reasonableness and that it is reasonably likely

that, but for counsel’s error, he would not have pleaded

guilty and would have insisted on going to trial. Id. at

56-59. That contrast illustrates the unique responsibil-

ity of defense counsel in the adversary system, a duty

that the prosecutor does not share. See Von Moltke v.

Gillies, 332 U.S. 708, 721 (1948) (plurality opinion)

(AA accused is entitled to rely upon his counsel to

make an independent examination of the facts, cireum-

stances, pleadings and laws involved and then to offer

his informed opinion as to what plea should be entered.

* * * The Constitution does not contemplate that

prisoners shall be dependent upon government agents

for legal counsel and aid, however conscientious and

able those agents may be.”).

24

There is, in sum, no duty arising from the Due

Process Clause for the prosecution to assist the accused

in making strategic choices, by providing the accused

with a flow of information about the evidentiary

strengths and weakness of the prosecution’s case. The

imposition of any such duty would effectively “displace

the adversary system,” and “would entirely alter the

character and balance of our present systems of crimi-

nal justice.” United States v. Bagley, 473 U.S. 667, 675

& n.7 (1985).

C. Requiring The Prosecution To Disclose Material

Exculpatory Information To All Defendants Before

They Plead Guilty Would Impose Serious Costs On

the Criminal Justice System

This Court has observed that plea bargaining is “an

essential component of the administration of justice.”

Santobello v. New York, 404 U.S. 257, 260 (1971). The

Court has also observed that “{i]f every criminal charge

were subjected to a full-scale trial, the States and the

Federal Government would need to multiply by many

times the number of judges and court facilities.” Ibid.

Those observations remain true today. Approximately

95% of federal convictions are obtained by guilty plea,

and approximately 85% of all criminal defendants in the

federal system have their cases resolved through guilty

pleas. Judicial Business of the United States Courts,

Annual Report of the Director, Table D-4 (2000)

(available at:http://;www.uscourts.gov/judbus2000/con-

tents.html).

The Ninth Circuit’s rule would fundamentally alter

the plea bargaining process and impose a number of

serious costs on the criminal justice system. Those

serious costs further undermine the court of appeals’

due process holding. Ake v. Oklahoma, 470 U.S. 68, 77

25

(1985) (Due Process Clause requires a consideration of

the extent to which a new requirement would impose

costs on the government); United States v. Raddatz,

447 U.S. 667, 677 (1980) (same). .

1. Apart from a duty to comply with discovery

orders, the general practice of federal prosecutors is

not to disclose to a defendant pleading guilty informa-

tion that would reveal the identities of cooperating

informants, undercover investigators, or other prospec-

tive witnesses. Consistent with that practice, govern-

ment prosecutors ordinarily do not disclose to a defen-

dant pleading guilty information that could be used to

impeach potential government witnesses. The govern-

ment’s desire to protect the identities of cooperating

informants, undercover investigators, and other pro-

spective witnesses is based on a well grounded fear that

disclosure of such information could disrupt ongoing

investigations, and expose prospective witnesses to

harassment, intimidation, serious injury, or even death.

Experience demonstrates the validity of that

concern. Between 1994 and 2000, the government

obtained convictions of at least 467 persons for

tampering with, or retaliating against, government

witnesses, victims, or informants.’ Such obstructions of

justice are a particular problem in the federal system,

because, as the then-Assistant Attorney General for the

$ That information is drawn from data provided by the

Administrative Office of the U.S. Courts. The figure in the text

reflects convictions under 18 U.S.C. 1512 (witness tampering) and

1513 (retaliation), in which those statues represent the lead

offense. The total number of convictions under those provisions is

likely greater. In addition, witness tampering may be prosecuted

under other provisions, such as the omnibus obstruction of justice

statute, 18 U.S.C. 1503, or may be taken into account by an

increase in a defendant’s Sentencing Guidelines range.

26

Criminal Division explained, federal prosecutors often

pursue crimes “in which witness tampering is part of

the criminal culture, such as narcotics trafficking,

political corruption and large-scale organized crime.”

See Edward S.G. Dennis, Jr., The Discovery Process In

Criminal Prosecutions: Toward Fair Trials and Just

Verdicts, 68 Wash. U.L.Q. 63, 68 (1990). Under the

Ninth Circuit’s rule, however, a defendant has the right

to obtain, well before trial, impeachment information

that in many circumstances could reveal the identities

of prospective government witnesses and thereby

expose them to tampering efforts, intimidation, or

worse.

Federal law and this Court’s decisions provide com-

pelling support for the government’s standard practice

of protecting the identities of prospective witnesses

until trial. Congress has required the government to

disclose its list of witnesses before trial only in capital

cases. See 18 U.S.C: 3432. Moreover, the Jencks Act

protects the government’s right to withhold statements

made by confidential sources and other prospective

government witnesses “until said witness has testified

on direct examination in the trial of the case.” 18

U.S.C. 3500. See also Fed. R. Crim. P. 16(a)(2) (Rules

of Criminal Procedure do not authorize discovery or

inspection of statements of government witnesses ex-

cept as provided in 18 U.S.C. 3500). The Jencks Act

enables the government to protect the identities of

confidential sources and other prospective government

witnesses until they become actual witnesses at trial.

On at least two prior occasions, proposals to amend

Rule 16 of the Federal Rules of Criminal Procedure to

require disclosure of witness lists have been rejected

after the Justice Department voiced concerns about the

danger to the safety of witnesses. In 1975, Congress

27

rejected a proposal to amend Rule 16 to provide the

defense with the names and addresses of all witnesses

that the government intended to call at trial. See

Dennis, supra, 68 Wash.U.L.Q. at 65. In opposing the

provision, “Depaitment of Justice Representatives sub-

mitted the results of a survey detailing over 700 in-

stances of witness intimidation, assault or assassina-

tion.” Ibid. (citing Amendments to Federal Rules of

Criminal Procedure: Hearings Before the Subcomm. on

Criminal Justice of the House Judiciary Comm., 94th

Cong., Ist Sess. 92 (1975) (statement of John C. Keeney,

Acting Assistant Attorney General, Criminal Division,

Department of Justice)). Congress explained the rejec-

tion of the provision as follows:

A majority of the Conferees believe it is not in the

interest of the effective administration of criminal

justice to require that the government or the defen-

dant be forced to reveal the names and addresses of

its witnesses before trial. Discouragement of wit-

nesses and improper contacts directed at influencing

their testimony, were deemed paramount concerns

in the formulation of this policy.

H.R. Conf. Rep. No. 414, 94th Cong., Ist Sess. 12 (1975).

More recently, the Advisory Committee on Federal

Rules of Criminal Procedure again submitted a pro-

posal to require the government to produce the names

and statements of its witnesses before trial. The

Justice Department was opposed to the provision. The

Judicial Conference of the United States ultimately

rejected it. Compare 156 F.R.D. 460, 460-482 (1994)

(proposed amendment) with 167 F.R.D. 221, 221-227

(1996) (Court-approved amendment); id. at 223 n* (“At

its September 19-20, 1995 session the Judicial Confer-

28

ence did not approve the proposed amendments to

Criminal Rule 16.”).*

This Court’s cases have recognized the legitimacy of

the government’s interest in protecting, until the time

of trial, the identity of confidential informants and other

prospective witnesses. In Weatherford, the Court held

that neither Brady nor the Due Process Clause re-

quires the government to disclose a list of its witnesses

in advance of trial. 429 U.S. at 559. The Court also

recognized in Weatherford the “necessity of undercover

work and the value it often is to effective law enforce-

ment,” as well as “the desirability and legality of con-

tinued secrecy even after arrest.” Jd. at 557. In

Roviaro v. United States, 353 U.S. 53, 59, 62 (1957), the

Court recognized a qualified privilege to withhold the

identify of informants even at trial. The Ninth Circuit’s

ruling fails to accommodate those important law

enforcement interests.

2. The Ninth Circuit’s rule also permits a criminal

defendant to use the guilty plea process as a discovery

device to assist in his preparation for trial, in conflict

with the principles established in this Court’s Brady

decisions. Under this Court’s Brady decisions, defen-

dants have a right to use Brady information at trial;

they do not have a right to use Brady as a discovery

* The problem of witness intimidation does not mean that the

government never provides witness lists before trial. In appropri-

ate cases, the government has done so. See H.R. Rep. No. 247,

94th Cong., Ist. Sess. 13-14 (1975) (discussing practices followed by

some U.S. Attorneys in disclosing witness lists, in considering

later-rejected proposal to amend Rule 16 to require such dis-

closure). But a constitutional rule that would mandate such disclo-

sure as a prerequisite to a valid guilty plea would eliminate the

government’s power to protect witnesses when there is a reason to

do so.

29

device to assist in their trial preparation. Agurs, 427

U.S. at 112 n.20; see Weatherford, 429 U.S. at 557.

Accordingly, as the courts of appeals have uniformly

held, Brady does not require the government to

provide a defendant with immediate access to Brady

material. Instead, the government satisfies its Brady

obligations as long as it provides Brady information to

the defendant in time for its effective use at trial.

United States v. O’Keefe, 128 F.3d 885, 989-899 (5th Cir.

1997), cert. denied, 523 U.S. 1078 (1998); United States

v. Valencia-Lucena, 925 F.2d 506, 514 (Ist Cir. 1991);

United States v. Gordon, 844 F. 2d 1397, 1403 (9th Cir.

1988); United States v. Presser, 844 F.2d 1275, 1285 (6th

Cir. 1988); United States v. Smith Grading & Paving,

Inc., 760 F.2d 527, 532 & n.6 (4th Cir.), cert. denied, 474

U.S. 1005 (1985) ; United States v. Higgs, 713 F.2d 39,

44 (3d Cir. 1983), cert. denied, 464 U.S. 1048 (1984).

The Ninth Circuit’s rule provides a ready mechanism

for defendants to advance the time for disclosure, trans-

forming Brady from a fair trial right to a trial prepara-

tion right. In particular, defendants can be expected to

demand immediate access to information on the ground

that they are considering whether to plead guilty, and

then use the information for trial preparation instead.

3. The Ninth Circuit’s ruling also significantly ham-

pers the expeditious resolution of criminal cases

through guilty pleas. If the prosecution must roytinely

disclose Brady information (including witness impeach-

ment information under Giglio) to every defendant

before he pleads guilty, the time and resources devoted

to guilty pleas would have to be substantially increased.

Under existing federal practice, the trial preparation

that is required to uncover such information, particu-

larly information that might impeach government

witnesses, does not even begin until it is clear that a

30

defendant intends to contest his guilt at trial. The

problem that is posed by the Ninth Circuit’s rule is

especially acute because Brady requires prosecutors to

search the files of all members of the prosecution team

—including allied investigative entities—for potentially

exculpatory information. Kyles, 514 U.S. at 437.

In order to comply with the Ninth Circuit’s decision,

prosecutors would be required at the guilty plea stage

to engage in “the often time-consuming process of

determining which witnesses [they] may call at trial,

what potential impeachment information on each wit-

ness is in [their] possession, and whether [they] must

disclose that information to the defendant.” Pet. App.

39a (Tallman, J., dissenting). Moreover, in order to

decide what information to disclose, prosecutors would

have to engage in a highly speculative inquiry into

whether particular information would be reasonably

likely to lead the defendant to go to trial rather than to

plead guilty. That time-consuming and resource-inten-

sive process would destroy a significant part of the

value to the government that plea bargaining now

affords. See Brady v. United States, 397 U.S. at 752 (a

government interest supporting plea bargaining is that

scarce judicial and prosecutorial resources are con-

served for other cases).

4. The court of appeals’ decision also intrudes on the

interest in the finality of guilty pleas. It enables a

defendant to attack his plea long after he has solemnly

admitted his crime in open court. The essence of a

defendant’s due process claim at that point is not that

his solemn admissions of guilt were false. Instead, the

claim is that, if the government had disclosed a particu-

lar piece of evidence, the defendant would have recalcu-

lated the risks and benefits of his options and insisted

— —

2

—

— —

—

31

on going to trial rather than pleading guilty. Pet. App.

15a.

As this Court has recognized, “{e]very inroad on the

concept of finality undermines confidence in the integ-

rity of our procedures; and, by increasing the volume of

judicial work, inevitably delays and impairs the orderly

administration of justice.” United States v. Timmreck,

441 U.S. 780, 784 (1979). “The impact is greatest,” the

Court has emphasized, “when new grounds for setting

aside guilty pleas are approved because the vast

majority of criminal convictions result from such pleas.”

Ibid.; Bousley, 523 U.S. at 621 (“the concern with

finality served by the limitation on collateral attack has

special force with respect to convictions based on guilty

pleas”) (internal quotation marks omitted). An intru-

sion on finality is particularly problematic when there is

no claim that “unfair procedures may have resulted in

the conviction of an innocent defendant” (Timmreck,

441 U.S. at 784)—the situation that exists when a

defendant has admitted his guilt in open court.

5. The Ninth Circuit’s rule also deters the govern-

ment from offering plea bargains that could benefit

both the defendant and the government. Blackledge,

431 U.S. at 71 (noting that plea bargains can “benefit all

concerned“); Brady, 397 U.S. at 752 (noting the “mutu-

ality of advantage” that characterizes guilty pleas).

When the government uses confidential informants or

undercover agents to conduct an investigation into a

large-scale conspiracy, it will be reluctant to disclose

information that would jeopardize the investigation or

the safety of those involved in it. If entering into a plea

agreement with a defendant would require the govern-

ment to disclose such information, the government will

likely refrain from entering into the agreement. Simi-

larly, if the government must essentially complete its

32

trial preparation to comply with its disclosure obliga-

tions at the plea agreement stage, the government may

decide that it is no longer advantageous to the

government to offer such an agreement rather than

proceed to trial. Because most defendants benefit from

plea bargains, the Ninth Circuit’s rule has the perverse

consequence of harming the very class of persons its

rule seeks to protect.

Broader harms to law enforcement are also threat-

ened by the Ninth Circuit’s rule, because the rule would

impair the government’s flexibility in seeking coopera-

tion from defendants. The government depends on the

concessions it gives in plea agreements to induce less

culpable defendants to cooperate in investigations and

prosecutions so that it can obtain convictions of more

culpable defendants. See United States v. Mezzanatto,

513 U.S. 196, 207-208 (1995) (prosecutors extend “leni-

ency in sentencing” for suspects with information to

offer, because “prosecutors often need help from the

small fish in a conspiracy in order to catch the big

ones”); United States v. Singleton, 165 F.3d 1297, 1301

(10th Cir.) (en banc) (“(nJo practice is more ingrained in

our criminal justice system than the practice of the gov-

ernment calling a witness who is an accessory to the

crime for which the defendant is charged and having

that witness testify under a plea bargain that promises

him a reduced sentence”), cert. denied, 527 U.S. 1024

(1999). See 18 U.S.C. 3553(e); Sentencing Guidelines

§ 5K1.1. Where the Ninth Circuit’s disclosure rule

would deter the government from entering into plea

agreements because of the need to protect ongoing

investigations, it would preclude negotiations for coop-

eration. That result will hamper the government in

prosecuting violators who are most culpable.

—

—

33

In sum, the Ninth Cireuit's disclosure rule is not only

unnecessary to ensure the fairness or accuracy of a

guilty plea; it also imposes serious costs on the criminal

justice system and threatens to disadvantage defen-

dants who are denied favorable plea agreements. The

Due Process Clause does not require the imposition of

that rule.

II. A CRIMINAL DEFENDANT MAY VALIDLY

WAIVE ANY RIGHT HE MAY HAVE TO OBTAIN

MATERIAL EXCULPATORY INFORMATION

BEFORE PLEADING GUILTY

Even assuming that the principles of Brady v.

Maryland were extended to confer on a defendant the

right to obtain material exculpatory information from

the government before pleading guilty—and no such

extension is warranted—there is no reason why a

defendant could not validly waive that right in a plea

agreement. Under this Court’s decisions, that right,

like most other constitutional rights, would be subject

to waiver. As this Court explained in United States v.

Mezzanatto, 513 U.S. 196, 201 (1995), a] criminal

defendant may knowingly and voluntarily waive many

of the most fundamental protections afforded by the

Constitution.” In particular, under this Court’s cases, a

defendant may waive the right to a double jeopardy

defense, Ricketts v. Adamson, 483 U.S. 1, 10 (1987), the

privilege against compulsory self-incrimination, Boykin

v. Alabama, 395 U.S. 238, 243 (1969), the right to a jury

trial, ibid., the right to confront one’s accusers, ibid, and

the right to counsel, Johnson v. Zerbst, 304 U.S. 458,

465 (1938). .

There is nothing inherent in the right to obtain

Brady information that would distinguish it from those

other rights. If a defendant assisted by competent

34

counsel decides to plead guilty and is willing to waive

his right to obtain whatever material exculpatory

information there happens to be in exchange for the

possibility of a reduced sentence or other considera-

tions, no sound basis exists to prevent him from doing

so.

That is particularly true with respect to the subset of

information relating not to substantive evidence of

guilt, but to the impeachment of government witnesses.

The entire point of receiving impeachment evidence is

to assist in the eross- examination of witnesses. If a

defendant may validly waive his right to cross-examine

witnesses altogether, which the plea of guilty itself

accomplishes, Boykin, 395 U.S. at 243, he should also be

able to waive access to one category of information that

may have been useful in conducting such cross-

examinations.

This Court in Mezzanatto noted that “(tJhere may be

some evidentiary provisions that are so fundamental to

the reliability of the factfinding process that they may

never be waived without irreparably discrediting the

federal courts.” 513 U.S. at 203-204 (internal quotation

marks omitted). But the receipt of Brady information

at the guilty plea stage does not fall within that narrow

category. To the contrary, “a counseled plea of guilty is

an admission of factual guilt so reliable that, where

voluntary and intelligent, it quite validly removes the

issue of factual guilt from the case.” Menna, 423 U.S. at

62 n.2 (emphasis deleted).

R * KX X *

The Ninth Circuit accordingly erred in holding that

respondent may challenge the government’s refusal to

recommend a downward departure at sentencing.

Respondent’s challenge is premised on the theory that

35

the government was retaliating against her rejection of

a plea agreement containing an “unconstitutional

waiver of her Brady rights.” Pet. App. 3a. Because

respondent had no Brady rights to waive at the plea-

agreement stage and because such a waiver would in

any event be valid, the proposed plea agreement was

constitutional. The government’s opposition to a “fast

track” departure therefore provides no basis for

vacating respondent’s sentence.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

MICHAEL CHERTOFF

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

IRVING L. GORNSTEIN

Assistant to the Solicitor

General

JONATHAN L. MARCUS

v Attorney

FEBRUARY 2002

— —— —ñ—ͤ—ä

APPENDIX

1. Rule 11 of the Federal Rules of Criminal Proce-

dure provides in relevant part:

Rule 11. Pleas

(a) Alternatives.

(1) In General. A defendant may plead guilty, not

guilty, or nolo contendere. If a defendant refuses to

plead, or if a defendant organization, as defined in 18

U.S.C. § 18, fails to appear, the court shall enter a plea

of not guilty.

(2) Conditional Pleas. With the approval of the

court and the consent of the government, a defendant

may enter a conditional plea of guilty or nolo conten-

dere, reserving in writing the right, on appeal from the

judgment, to review of the adverse determination of

any specified pretrial motion. A defendant who prevails

on appeal shall be allowed to withdraw the plea.

(b) Nolo Contendere. A defendant may plead nolo

contendere only with the consent of the court. Such a

plea shall be accepted by the court only after due con-

sideration of the views of the parties and the interest of

the public in the effective administration of justice.

(c) Advice to Defendant. Before accepting a plea of

guilty or nolo contendere, the court must address the

defendant personally in open court and inform the

defendant of, and determine that the defendant under-

stands, the following:

(1) the nature of the charge to which the plea is

offered, the mandatory minimum penalty provided by

law, if any, and the maximum possible penalty provided

by law, including the effect of any special parole or

(la)

2a

supervised release term, the fact that the court is

required to consider any applicable sentencing guide-

lines but may depart from those guidelines under some

circumstances, and, when applicable, that the court may

also order the defendant to make restitution to any

victim of the offense; and

(2) if the defendant is not represented by an

attorney, that the defendant has the right to be repre-

sented by an attorney at every stage of the proceeding

and, if necessary, one will be appointed to represent the

defendant; and

(3) that the defendant has the right to plead not

guilty or to persist in that plea if it has already been

made, the right to be tried by a jury and at that trial

the right to the assistance of counsel, the right to con-

front and cross-examine adverse witnesses, and the

right against compelled self- incrimination; and

(4) that if a plea of guilty or nolo contendere is

accepted by the court there will not be a further trial of

any kind, so that by pleading guilty or nolo contendere

the defendant waives the right to a trial; and

(5) if the court intends to question the defendant

under oath, on the record, and in the presence of

counsel about the offense to which the defendant has

pleaded, that the defendant’s answers may later be

used against the defendant in a prosecution for perjury

or false statement; and

(6) the terms of any provision in a plea agreement

waiving the right to appeal or to collaterally attack the

sentence.

(d) Insuring That the Plea is Voluntary. The court

shall not accept a plea of guilty or nolo contendere

without first, by addressing the defendant personally in

3a

open court, determining that the plea is voluntary and

not the result of force or threats or of promises apart

from a plea agreement. The court shall also inquire as

to whether the defendant’s willingness to plead guilty

or nolo contendere results from prior discussions

between the attorney for the government and the

defendant or the defendant’s attorney.

** * * *

(f) Determining Accuracy of Plea. Notwithstanding

the acceptance of a plea of guilty, the court should not

enter a judgment upon such plea without making such

inquiry as shall satisfy it that there is a factual basis for

the plea.

* * * *

2. Rule 16 of the Federal Rules of Criminal

Procedure provides in relevant part:

Rule 16. Discovery and Inspection

(a) Governmental Disclosure of Evidence.

(1) Information Subject to Disclosure.

(A) Statement of Defendant. Upon request of a

defendant the government must disclose to the defen-

dant and make available for inspection, copying, or

photographing: any relevant written or recorded state-

ments made by the defendant, or copies thereof, within

the possession, custody, or control of the government,

the existence of which is known, or by the exercise of

due diligence may become known, to the attorney for

the government; that portion of any written record

containing the substance of any relevant oral statement

made by the defendant whether before or after arrest

in response to interrogation by any person then known

to the defendant to be a government agent; and re-

4a

corded testimony of the defendant before a grand jury

which relates to the offense charged. The government

must also disclose to the defendant the substance of any

other relevant oral statement made by the defendant

whether before or after arrest in response to interro-

gation by any person then known by the defendant to

be a government agent if the government intends to

use that statement at trial. Upon request of a defen-

dant which is an organization such as a corporation,

partnership, association or labor union, the government

must disclose to the defendant any of the foregoing

statements made by a person who the government

contends (1) was, at the time of making the statement,

so situated as a director, officer, employee, or agent as

to have been able legally to bind the defendant in

respect to the subject of the statement, or (2) was, at

the time of the offense, personally involved in the

alleged conduct constituting the offense and so situated

as a director, officer, employee, or agent as to have

been able legally to bind the defendant in respect to

that alleged conduct in which the person was involved.

(B) Defendant’s Prior Record. Upon request of the

defendant, the government shall furnish to the

defendant such copy of the defendant’s prior criminal

record, if any, as is within the possession, custody, or

control of the government, the existence of which is

known, or by the exercise of due diligence may become

known, to the attorney for the government.

(C) Documents and Tangible Objects. Upon

request of the defendant the government shall permit

the defendant to inspect and copy or photograph books,

papers, documents, photographs, tangible objects,

buildings or places, or copies or portions thereof, which

are within the possession, custody or control of the

5a

government, and which are material to the preparation

of the defendant’s defense or are intended for use by

the government as evidence in chief at the trial, or were

obtained from or belong to the defendant.

(D) Reports of Examinations and Tests. Upon

request of a defendant the government shall permit the

defendant to inspect and copy or photograph any

results or reports of physical or mental examinations,

and of scientific tests or experiments, or copies thereof,

which are within the possession, custody, or control of

the government, the existence of which is known, or by

the exercise of due diligence may become known, to the

attorney for the government, and which are material to

the preparation of the defense or are intended for use

by the government as evidence in chief at the trial.

(E) Expert Witnesses. At the defendant’s request,

the government shall disclose to the defendant a

written summary of testimony that the government

intends to use under Rules 702, 703, or 705 of the

Federal Rules of Evidence during its case-in-chief at

trial. If the government requests discovery under

subdivision (b)(1)(C)(ii) of this rule and the defendant

complies, the government shall, at the defendant’s

request, disclose to the defendant a written summary of

testimony the government intends to use under Rules

702, 703, or 705 as evidence at trial on the issue of the

defendant’s mental condition. The summary provided

under this subdivision shall describe the witnesses’

opinions, the bases and the reasons for those opinions,

and the witnesses’ qualifications.

(2) Information Not Subject to Disclosure. Except

as provided in paragraphs (A), (B), (D), and (E) of

subdivision (a)(1), this rule does not authorize the

discovery or inspection of reports, memoranda, or other

6a

internal government documents made by the attorney

for the government or any other government agent

investigating or prosecuting the case. Nor does the

rule authorize the discovery or inspection of statements

made by government witnesses or prospective govern-

ment witnesses except as provided in 18 U.S.C. § 3500.

(3) Grand Jury Transcripts. Except as provided in

Rules 6, 12(i) and 26.2, and subdivision (a)(1)(A) of this

rule, these rules do not relate to discovery or inspection

of recorded proceedings of a grand jury.

R X „ „ „*

3. The Jencks Act, 18 U.S.C. 3500, provides in

relevant part:

(a) In any criminal prosecution brought by the

United States, no statement or report in the possession

of the United States which was made by a Government

witness or prospective Government witness (other than

the defendant) shall be the subject of subpena, dis-

covery, or inspection until said witness has testified on

direct examination in the trial of the case.

(b) After a witness called by the United States has

testified on direct examination, the court shall, on

motion of the defendant, order the United States to

produce any statement (as hereinafter defined) of the

witness in the possession of the United States which

relates to the subject matter as to which the witness

has testified. If the entire contents of any such

statement relate to the subject matter of the testimony

of the witness, the court shall order it to be delivered

directly to the defendant for his examination and use.

E * & & *