Anticipatory Repudiation of Cooperative Plea Agreements:

Is it Good Contract Law? Is Contract Law the Correct Model?

Professor Keith A. Rowley

William S. Boyd School of Law, UNLV

Feb. 25, 2008

Part One

A Brief Review of Relevant Contract Principles

Unilateral vs. Bilateral Contract

• Unilateral Contract: A contract in which X makes a promise to which she will be bound when Y accepts by performance.

• Bilateral Contract: A contract in which X makes a promise to which she will be bound when Y accepts by making a promise in return.

Contractual Duties

A valid bilateral contract between X and Y

obligates X to:

• perform as and when promised; and

• refrain from repudiating prior to the time

his performance is due

Anticipatory Repudiation

Elements:

• a definite and unconditional

• manifestation

• of X’s intent not to perform, or inability to perform, as promised

• communicated to Y

• before X’s performance is due

Exceptions

As a general rule, X may not anticipatorily repudiate:

• a unilateral contract obligating only X to perform in the future, or

• a bilateral contract that has been fully performed by Y (effectively transforming it into a unilateral contract)

Y’s Options

Faced with X’s repudiation, Y may suspend her own performance and:

• do nothing until X’s performance is due (subject to Y’s duty to mitigate);

• seek assurances from X that he will perform when and as required;

• cancel the contract; or

• sue X immediately for breach

Risk Analysis

Y’s Options

• do nothing

• seek assurances

• cancel

• sue

Possible Consequences

• allows X to retract

• allows X to bind Y by giving assurances

• allows X to sue Y for breach if Y’s acts were unwarranted

Part Two

Are Plea Agreements Contracts?

Plea Agreements as Contracts

Courts routinely treat plea agreements as enforceable contracts, obligating both the defendant and the state to perform as promised.

“Bargained For” Consideration

Courts treat the state’s promise of a reduced sentence or immunity as consideration to support the defendant’s promise to testify or otherwise assist the prosecution, and vice versa.

Remedies for Breach

If the state breaches, the defendant may

• withdraw his plea;

• insist on the agreed penalty; or

• ask the judge (or appellate court) to modify the agreed penalty

If the defendant breaches, the state may

• withdraw the plea agreement and

• seek a stiffer penalty than agreed, often based on more serious charges (subject to limitations)

Part Three

Anticipatory Repudiation of Plea Agreements

Principal Cases

• Ricketts v. Adamson, 483 U.S. 1 (1987)

• U.S. v. Ataya, 864 F.2d 1324 (7th Cir. 1988)

• U.S. v. Hon, 17 F.3d 21 (2d Cir. 1994)

• Hentz v. Hargett, 71 F.3d 1169 (5th Cir. 1996) But see U.S. v. Casteneda, 162 F.3d 832

(5th Cir. 1998)

Ricketts v. Adamson (1987)

Adamson was one of three persons tried for the first-degree murder of journalist Donald Bolles. Shortly after his trial began, Adamson agreed to plead guilty to second-degree murder and testify against his co-defendants, both of whom were convicted. After the Arizona SCT reversed, the prosecutor asked Adamson to testify again. Adamson told the prosecutor that he thought he had already fulfilled his bargain. Without asking the TC to rule, the prosecutor rescinded the plea agreement and charged, tried, and convicted Adamson of first-degree murder.

U.S. v. Ataya (7th Cir. 1988)

Ataya and Syammach were arrested for counterfeiting. Prior to trial, Ataya agreed to plead guilty to the least serious charges in exchange for his testimony against Syammach, who was convicted. While sentencing was pending the possibility arose that the government would have to retry Syammach. Ataya refused, then agreed, then refused, then agreed, then refused to testify against Syammach in the retrial. The prosecutor reindicted Ataya on the previously-dismissed charge, but the TC granted Ataya’s motion to dismiss the indictment. The government appealed and the 7th Circuit affirmed.

U.S. v. Hon (2d Cir. 1994)

Hon and Tse were arrested for drug trafficking. Hon agreed to plead guilty to the lesser of the two charges and “cooperate fully” with the government, including testifying at trial. At Tse’s trial, Hon testified outside the jury’s presence that he was coerced into making the plea agreement. Hon equivocated whether he would testify against Tse. After the TJ ordered Hon to testify under immunity, Hon’s attorney told the government Hon would testify; however, the prosecutor said that Hon had breached and that the government would not honor its promise to recommend a downward departure.

Hentz v. Hargett (5th Cir. 1996)

Hentz agreed to arrange the murder of his girlfriend’s husband. When he, his girlfriend (Williamson), and the gunman (Harden) were arrested and indicted for capital murder, Hentz agreed to plead guilty to reduced charges and to testify at Harden’s and Williamson’s trials. Hentz testified against Harden, but Harden was acquitted. When faced with the prospect of sending his girlfriend to prison or the death chamber, Hentz told the prosecutor that he would not testify against Williamson in a manner consistent with his promised testimony.

Key Questions

• What kind of contract is a plea agreement?• How definite and unconditional must the

defendant’s words or deeds be?• What if the defendant acts in good faith

based on his understanding of his obligations under the agreement?

• When is the defendant’s performance due?• Who gets to decide whether the defendant

has repudiated?

Are Plea Agreements Bilateral?

• Only bilateral contracts may be anticipatorily repudiated.

• Alper (NYU ‘97) posits that plea agreements are unilateral contracts because the state is bargaining for the defendant’s plea, not the defendant’s promise to plea. Alper’s analysis overlooks the testimonial

component -- the state is also bargaining for the defendant’s promise to testify.

Manifesting Intent

• Examples of conduct that courts have found sufficient to constitute a repudiation: refusing to testify at retrial, based on a

good faith belief that the defendant had satisfied his duty to testify (Ricketts and Ataya)

Manifesting Intent

• Examples of conduct that courts have found sufficient to constitute a repudiation: equivocating whether the defendant would

testify after learning that he had been “tricked” or coerced into a plea (Hon)

informing the prosecutor that the defendant would testify differently than previously discussed (Hentz)

“Good Faith” Disagreement

• Early SCT anticipatory repudiation cases (Viglas and Mobley) say “no”

• Subsequent non-SCT cases and many commentators say good faith is irrelevant

• Ricketts v. Adamson (1987) Dissent (Blackmun): no repudiation Majority (White): good faith is irrelevant

to the question of breach

Who Shall Judge?

• Most courts rely on prosecutorial discretion Risk of prosecutorial

bias vs. cost of judicial determination

• 7th Cir.: the defendant is entitled to a ruling before the state may void the agreement (Ataya)

Time Performance is Due

• Has a defendant fully performed after he has testified, pleaded guilty, been sentenced, and begun to serve his term?

• Has the state fully performed at that point? If so, no anticipatory repudiation in

retrial cases like Ricketts

Attempted Retraction

• Suppose the defendant decides to testify as promised prior to the time he is obligated to do so.

• At what point does the defendant lose the right to retract?

• What constitutes a material change in position by the prosecution?

Working Within the Construct

• “Repudiations”in Ricketts and Ataya do not appear to be “definite and unconditional”

• If plea agreements are unilateral, they can’t be anticipatorily repudiated

• In retrial cases, hasn’t the State fully performed? If so, the defendant can’t anticipatorily repudiate

• Why not obligate the State to seek adequate assurances or judicial interpretation?

Part Four

Is Contract Law the Correct Model?

While plea bargain law is “heavily freighted with ... contract law analogies, ... The

existence of a constitutional right in the defendant to be treated with ‘fairness’ throughout the process ... presage[s]

inevitably the question of the extent to which contract law may be drawn upon to define the

limits of this constitutional right.”

Cooper v. U.S., 594 F.2d 12, 16 (4th Cir. 1979).

Commercial Contractsvs. Plea Agreements

• Relatively equal (or, at least, not institu-tionally unequal) bargaining power

• Institutionally unequal bargaining power

• Superior investigative resources

• Criminal sanctions

• Defendant’s own counsel is effectively an agent of the State

Commercial Contractsvs. Plea Agreements

• “Good faith” performance and enforcement

• Adversarial discovery

• Monetary damages

• Duty to mitigate

• Due Process

• State allowed to use information given by Defendant

• Penal sanctions

• ???