Guilty pleas and plea bargaining are an integral part of the federal criminal justice system.  In 2003, approximately 95 percent of federal criminal charges were resolved through guilty pleas.  That number has not significantly gone down over the years, and our own experience aligns with those numbers. Even the Supreme Court has recognized the importance of the plea bargaining process in its recent decisions, most particularly by holding that a criminal defendant has the right to effective assistance of counsel during the plea bargaining phase.

Although we fight for every client, the reality is that in the vast majority of cases, the evidence and the odds are so heavily stacked against the criminal defendant that a guilty plea is the best option.  Yet many defendants go into the plea bargaining process with only a minimal or incorrect understanding of how federal plea bargaining works.  With that said, in this article we will explain some of the basic elements of federal plea bargaining, and what happens during a guilty plea.

• When does the plea bargaining process start and how long does it last?
• Should I consider a guilty plea if I am innocent?
• What is the plea process in federal courts?
• What are the different kinds of guilty pleas?
• Can I withdraw a guilty plea?
• What happens after I enter a guilty plea?

When does the plea bargaining process start? How long does it last?

The plea bargaining process can start at any time in a criminal case.

Before any charges have been filed, an individual who is under federal criminal investigation may decide that cooperation is the best course of action. In that case, the individual may have his or her attorney negotiate with the government, and sign a sealed plea agreement months or years before any formal charges are brought.  This is a fairly common occurrence in white collar cases.

If a case is not resolved during the investigation stage, and assuming that an indictment is brought, the plea bargaining process will continue during the discovery and pretrial motions stage.  During this stage, there may be frequent offers and counteroffers as the parties dig into the evidence and explore the legal and factual issues in the case.  Although prosecutors will frequently set deadlines on sequential plea offers, it is not uncommon for there to be three or four separate plea offers over the course of trial preparation.

A defendant can agree to plead guilty after trial begins.  Typically, this can happen for a number of reasons.  For example, the judge may have made certain pretrial rulings that strongly tilts the case towards one side or the other; the prosecution may have disclosed extremely important evidence shortly before trial; or the defendant may have simply had a last minute change of heart.  Finally, a defendant can even enter into a plea agreement after the jury has returned a guilty verdict.  Of course, such plea offers are extremely rare and occur only in the most unusual circumstances.  Whatever the reason, however, there is no general prohibition under the federal rules that governs when a guilty plea must be entered.

If I am innocent, why should I think about plea offers?

Even if you believe you are innocent, you should discuss the possibility of plea offers with your attorney to explore the pros and cons of pursuing plea negotiations. Prosecutors and investigating agents will continue to amass and gather evidence against the defendant over time, and potentially add new charges via superseding indictment.  Frequently, defendants change their mind over the course of time as they see new evidence emerge. Additionally, even if the defendant is set to go to trial, engaging in plea discussions with the government can often result in the defense attorney learning valuable information about the government’s case: such as key documents or witnesses that will be used against the defendant at trial. Whether or not you should explore a plea offer is a strategic decision that you should make only after close consultation with an experienced attorney.

What is the process for pleading guilty in a federal criminal case?

Generally, a guilty plea begins with a plea agreement (although a defendant can also plead guilty without any agreement, also called an “open plea”).  The plea agreement is often described as a contract between the defendant and the government.

(Example of a Plea Agreement used in a case in the Eastern District of Virginia)

Following that description, a plea agreement can sometimes be drafted as a formal contract, such as the example above.  More often, plea agreements are simply in the form of written letters from the prosecutor to the defendant’s attorney.

Although the terms of a plea agreement will vary from case to case, federal plea agreements will generally contain at least the following provisions:

• A list of the charges that the defendant will plead guilty to, and, if applicable, the charges that will be dismissed by the prosecution;
• A statement about the factual basis for the plea, which typically incorporates a separate “Statement of Facts” signed by the defendant. The “Statement of Facts” constitutes a written admission by the defendant about key facts that prove his or her guilt;
• One or more paragraphs setting forth the defendant’s Sentencing Guidelines calculations, including the applicability of specific enhancements or departure provisions;
• A statement that the Court is not bound by the parties’ guidelines calculations, and can sentence the defendant above, below, or within the guidelines;
• A list of trial rights that the defendant will waive by pleading guilty (including, for example, the right to confront witnesses, have an attorney, etc.); and
• An appeal waiver provision that provides that the defendant will lose the right to appeal his or her sentence except under specific circumstances.

Once the plea agreement has been signed by both sides, it must be filed with the court. Although the court is not a party to the agreement, it plays an integral role in the plea process.  Thus, the court generally needs to approve the plea agreement before it will allow the defendant to plead guilty.  See Fed. R. Crim. P. 11(c)(3).

After the plea agreement is filed, the parties will contact the court and arrange for a plea hearing date, where the defendant will appear before the court for what is called “Rule 11 colloquy” of a plea colloquy.  During this colloquy, the Judge will ask the defendant a series of questions designed to test the defendant’s knowledge of the plea agreement, and to ensure that the defendant is knowingly and voluntarily entering a guilty plea.  If the Court is satisfied with the defendant’s answers, it will accept the plea and set a date for sentencing.

What are the different kinds of guilty pleas?

The Federal Rules of Criminal Procedure specifically mentions three kinds of pleas:  Guilty, Not Guilty, or Nolo Contendere.

Guilty and Not Guilty pleas are self explanatory.  A Nolo Contendere plea is rare in federal criminal cases. In a Nolo Contendere plea, the defendant does not admit his factual guilt, but accepts the punishment on the premise that the government’s evidence is strong enough for a conviction. Generally, in order for there to be nolo contendere plea, both the government and the court must agree to the defendant entering such a plea.

An “open plea,” sometimes also called a “straight plea,” is an informal term used by attorneys to refer to guilty pleas without a plea agreement. Unlike guilty pleas pursuant to plea agreements, open pleas do not carry any protection for the defendant against prosecution for related offenses.  Nevertheless, there are situations where “open pleas” can be the best option for a defendant.

Finally, in federal criminal cases there is a rare type of guilty plea that is informally called a “C” plea, named after Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.  In a “C” plea, the defendant and the prosecutor agree to a specific sentence or sentencing range, and that range is binding on the court once the plea agreement is accepted by the Court.  By contrast, the vast majority of plea agreements in federal criminal cases have sentencing “recommendations” by federal prosecutors that are not binding on the court.  A “C” plea is often beneficial for the defendant, because it allows the defendant to know ahead of time exactly what punishment he will receive, and minimizes the risk of being sentenced to something he or she did not anticipate.

Can I withdraw my guilty plea once I have pleaded guilty?

In the federal criminal system, withdrawing a guilty plea can happen during three distinct stages: (1) before the court accepts the plea; (2) after the court accepts the plea but before it imposes a sentence; or (3) after the court imposes a sentence.

Before the court accepts a plea, a defendant can withdraw his or her guilty plea at anytime and for any reason. However, such withdrawals occur rarely because the guilty plea and the court’s acceptance of that plea generally occur at the same plea hearing.

More commonly, cases involving withdrawal a guilty plea arise after the Court has accepted the plea, or after the Court has imposed a sentence.  In both situations, the federal law governing withdrawal of guilty pleas makes such tasks challenging.

In order to withdraw a guilty plea before sentencing, the defendant has to demonstrate a “fair and just” reason to withdraw the guilty plea.   In order to withdraw a guilty plea after sentencing, the defendant has to challenge his or her conviction on direct appeal or in a collateral action under 18 U.S.C. § 2255.  In both instances, the defendant will generally have to prove some kind of error or misconduct—for example, flawed advice from an attorney, prosecutorial misconduct, actual innocence, or the like.

Because of the difficulty of withdrawing a guilty plea in federal court, it is paramount for a defendant to spend the time necessary to consider this matter in close consultation with his or her attorney before agreeing to enter a plea of guilty.

What happens after I plead guilty?

After a guilty plea is accepted, the Court will set a date for sentencing, generally several months out.   To learn more about the federal sentencing process, please visit our page on federal sentencing.