William H. Rehnquist: We'll hear argument now in Number 96-667, United States v. Hyde. In this case, Justice Kennedy is unable to participate in the oral argument. He will, however, hear the tapes of oral argument and participate in the disposition of the case. Mr. Feldman.
James A. Feldman: Mr. Chief Justice, and may it please the Court: This case arises from respondent's attempt to withdraw from his guilty plea. Pursuant to a plea agreement in which the Government agreed to drop certain charges against him, respondent plead guilty... pleaded guilty to mail fraud and the receipt of stolen property in four counts. When... at the Rule 11 plea proceeding, the district court ascertained that respondent knew the nature of the charges that were brought against him, that he knew of the rights that he would be waiving by pleading guilty, that he knew the maximum sentence that he could face, that the court also ascertained that his guilty plea was entirely voluntary and uncoerced, and the court ascertained the facts of the crime as narrated both by respondent and as narrated by the prosecutor, and then he found out... he ascertained that the respondent agreed with the prosecutor's account. The court stated at that point, after having gone through that proceeding, that it would... that it accepted the guilty plea and that it would defer the decision about whether to accept or reject the plea agreement. One month later, respondent attempted to withdraw from his guilty plea. The court, the district court refused, finding that respondent had advanced no fair and just reason for doing so. The court of appeals reversed that decision, holding that the respondent could withdraw from his guilty plea at will for any reason or for no reason, as the court stated, and reversed the district court. Now, our position is that respondent could withdraw from his guilty plea only if he had a fair and just reason for doing so under Rule 32(e) of the Federal Rules of Criminal Procedure. Because he had no fair and just reason in this case, the district court properly declined to permit him to withdraw. Permitting the withdrawal of an accepted guilty plea at the free option of the defendant is inconsistent with the Federal Rules of Criminal Procedure. Rule 32(e) provides that before sentence a district court may permit a defendant to withdraw from a guilty plea if he shows a fair and just reason. Now, the courts... courts that in... the courts that have to determine whether to accept a plea agreement ordinarily will do just what the district court did here, which is postpone a decision on the plea agreement until at or near the time of sentencing, when they've had a chance to review the presentence report. Under the... and accept the guilty plea at the time of the Rule 11 hearing. Under the Ninth Circuit's rule in this case, the Rule 32(e) standard, the fair and just reason standard, would have virtually no application at all. It would apply only for the minutes or hours or maybe days from the time that the district court has reviewed the presentence report and can make a decision about whether to accept or reject the plea agreement and the time of sentencing, which is really no time at all.
Sandra Day O'Connor: Mr. Feldman, there seems to be a certain amount of interchangeability of these terms in appellate opinions, acceptance of a plea, or acceptance of a plea agreement. In fact, until this case came along I don't think I had ever focused on the fact that there might be a difference in the two. We tend to think of a plea as a plea agreement, and vice versa. How often is it that these two are separated, the entry of a plea and a subsequent plea agreement, if you will?
James A. Feldman: I think... Your Honor, I haven't been able to get... let me put it this way. They are always separate in cases... virtually always separate in cases where a district court has to make a decision on a plea agreement, which is not in all guilty plea cases but is in a great many of them.
Sandra Day O'Connor: Well, and how often is it that the district court has to separate the decision?
James A. Feldman: As I said, I think it's in every case in which the Government agrees to drop certain charges in response for the defendant's... in exchange for the defendant's guilty plea, and when you have that kind of a plea agreement, under the Sentencing Guideline... under the Federal Rules of Procedure the district court is permitted to defer a decision on whether to accept that plea agreement, and under the guidelines it says that the district court is required to do so. In virtually all of those cases, and I'll tell you in a minute why I say virtually... in virtually all of those cases the district court will do just what the district court did here, which is accept the guilty plea in accordance with the rules for accepting a guilty plea in Rule 11, and defer a decision on a plea agreement. The only reason I say virtually all and not all is, there are two circumstances under which that won't happen in those charge-bargaining types of cases. One circumstance is where the district court defers decision on whether to accept the plea itself. This is a very rare occurrence, but we cited a couple of cases in our brief where it happened. The district court sees the... listens to the guilty plea, thinks there may be something wrong... I'm not sure... it doesn't really explain why the district court chose to do that, but there's nothing in the Federal Rules of Procedure that requires a district court to accept a guilty plea at the time it's tendered, and so if the guilty... if the court defers decision on whether to accept it, then everything may happen at once, usually at around the time of sentencing, both the acceptance of the plea and of the plea agreement. The other category of cases, which is also rare but not quite as rare as those, is cases where for some reason there was a preplea presentence report prepared. In those case the district court already has the presentence report at the time the plea is... the plea colloquy occurs under Rule 11 and therefore once again the district court can take care of everything at once, and there's no period of time during... between the time of accepting the plea and a decision on whether to accept or reject the plea agreement. But aside from those cases, this procedure that happened here I think is exactly by the book. It's exactly what's envisioned by the Rules of Procedure, and it will happen in the majority of guilty plea cases.
Sandra Day O'Connor: And if at the end of the day the judge decides not to accept the plea agreement by virtue of what the judge reads in the presentence report, the rules permit the defendant to withdraw from the plea.
James A. Feldman: That's right. The judge must at that point, under Rule... I think 11(e)(4), I believe. The rule... once the judge rejects the plea agreement, at that point what... the goal is to put the parties in the same position they would have been in if nothing had happened, if none of this had happened, because the agreement can't be carried out. A condition subsequent to the agreement is... has now failed. And so what you would do is the same thing as you would do in ordinary contract cases when that kind of situation occurs. You give the defendant the option of withdrawing his guilty plea, and the Government, of course, at that point is no longer bound to carry out any commitments it has under the plea agreement, and--
Sandra Day O'Connor: Do we take this case on the assumption that there was no fair and just reason for the withdrawal within the meaning of the rule?
James A. Feldman: --That's right. That's... that was what... the court of appeals specifically held that the defendant was permitted to withdraw for any reason or for no reason. The district court held that the reasons that were advanced by the respondent were not fair and just reasons, and that hasn't been challenged in this Court, so I think that we definitely... the case definitely comes before the Court in that posture.
John Paul Stevens: Mr. Feldman, there's one difference. Your opponent argues... I don't know how significant it is... that in the scenario you give, the difference is the judge will have seen the presentence report before the trial, which normally is not desirable.
James A. Feldman: Right. I mean, that actually will happen also in any case in which he rejects the plea agreement.
John Paul Stevens: That's right.
James A. Feldman: I mean, that's contemplated by the rules that that's going to happen. If it looks as if there's likely to be some prejudice that might result from that, the judge could... can recuse himself if the case ends up going to trial. In fact, it is rare that judges reject the agreements. Usually those are the agreements of the parties. They're subject to a number of constraints and just don't ordinarily reject them, but that is something that could happen, and that would have to be taken care of that way.
Stephen G. Breyer: How does it work with the Government? That is... I understand... let's... in the case of a (B) agreement this is irrelevant really. I see that. Let's imagine it's a (C), which is pretty rare, but it's clearer conceptually. All right, you say judge, the defendant and I have agreed that it's going to be 5 years. The defendant says I like that. I plead guilty. I'm the judge. I say, I'm going to get the presentence report. So I go read it, and I then, having read it, I say it's okay with me. Everybody's bound. Or I might say, no, I want to give him 10 years, in which case the defendant can go and withdraw and go... I understand that. Between those two times of him having pled, I'm guilty, and me, the judge, having read the report, suppose the Government says, we don't want to go through with this deal. Nobody's told us in the briefs that obvious question, and you would think what's sauce for the goose is sauce for the gander. What you're saying is that during those periods of time the defendant, if he wants to get out of this deal before I can say I accept it, the defendant has to show some cause. Well, I assume absolutely the same is true of the Government, isn't it?
James A. Feldman: I would agree, and actually I think respondent in his brief agrees that the Government would be free to withdraw during that period of time.
Stephen G. Breyer: Oh, wait... the opposite.
James A. Feldman: I beg your pardon?
Stephen G. Breyer: Oh, I... yes, but your position--
James A. Feldman: And we also--
Stephen G. Breyer: --is the Government is not free to withdraw during that time.
James A. Feldman: --Our position is that neither party is free to withdraw--
Stephen G. Breyer: Okay. I just want to be sure... I just want to be sure it works both ways. What is it in the rules that prevents the Government from withdrawing during that period of time?
James A. Feldman: --I don't think there's any thing in the rules... there certainly is nothing in the rules that addresses the Government's attempt to with--
William H. Rehnquist: So why shouldn't the Government be free to withdraw if there's nothing in the rules that addresses it?
James A. Feldman: --I think it's really just based on the contract analogy of plea-bargaining that the Court has referred to a number of times and the rule in Santabello that the Government does have to--
William H. Rehnquist: Santabello wasn't a Federal case.
James A. Feldman: --That's correct, but generally the Government does have to fulfill the undertakings that it assumes in connection with a plea agreement.
Antonin Scalia: Why is it a contract analogy? Why isn't it just a contract? There's consideration on both sides, it seems to me. The Government's made a promise. The defendant's made a promise. And if you're right about the fact that this guilty plea is not withdrawable, it's detriment that can't be undone.
James A. Feldman: I think... yes, and I think in fact even aside from whether there's detriment or not there's been an exchange of promises on both sides, and I think it's just as binding on both sides but--
John Paul Stevens: It seems to me you're overlooking one thing. The defendant can withdraw with fair and just reason to do so. Why couldn't the Government come in and say, we have a fair and just reason. We found out this guy's much worse than we thought he was.
James A. Feldman: --I think generally the Government's... I tell you, things work out... I think things work out a little bit differently. That's a possible position, and of course that's not raised by this case and the Government rarely does attempt to withdraw from plea agreements, but--
John Paul Stevens: But all I'm suggesting is if it's an equal balance, both rights are the same, the Government does have some right to withdraw, then.
James A. Feldman: --The Government may be able to withdraw under those circumstances. I think a better way to look at that kind of a case, though, is where there's been a charge-bargain plea agreement the district court, at the time when it's called upon to accept the agreement or not, is supposed to look and see whether the charges that remain are commensurate with what the defendant did, whether this agreement is in the public interest. So a better way to look at I think what happens in those kinds of cases would be that the district court would reject the plea agreement and, indeed, the Government might point out to the district court reasons why it should reject the plea agreement, but if the district court doesn't... and it's really up to the district court. If the district court disagrees and says, you know, this seems like a perfectly... there's nothing that contravenes public policy, or the interests of the public, or the application of the guidelines in this plea agreement, then the district court will hold both parties to it--
John Paul Stevens: I'm a little puzzled as to your position. Are you saying that at the time when the judge makes his ruling on whether to accept it or not the Government is... open to the Government to argue you should reject this agreement?
James A. Feldman: --No. No.
John Paul Stevens: Because I thought you suggested--
James A. Feldman: I think what the Government is... I think the Government has always an obligation to the court to be frank, and to bring to the court any facts that may have come to its attention that maybe it didn't even know before. Now, plea agreements come in many different shapes, and some of them do limit the kinds of things... the Government makes commitments about the kinds of things it will say to the district court. It won't oppose a certain sentence, or it won't comment on this or that, and whether the Government's comments at that point might be a breach of the agreement is really another question. It depends on what the agreement says. There may be an agreement where it's not at all, where the Government says, we will bring to the court, and we're not committing ourselves to telling the court anything in particular. But in any event, whatever the Government agreed to I think it always has an obligation to the court to inform it of the relevant facts that the court should know in order to pass its judgment.
Stephen G. Breyer: --Can you go back for a second to Justice O'Connor's question, because this is another point I'm not certain about from the briefs, and from having read this. Imagine we're in an (A) type bargain. That's a charge bargain. Initially there weren't supposed to be very many of those, because it wasn't supposed to make a difference to the sentence, but I guess for it to make a difference to the sentence you have to be in a drug case, what, where there's a mandatory minimum, or where you're going to a telephone count from a possession, so there are some where it makes a difference.
James A. Feldman: That's correct.
Stephen G. Breyer: Okay. So we're in one of those circumstances. Now, you, the Government, say the defendant is pleading to a telephone count. Do you do that, defendant? Yes. Now time passes, and I'm the judge, and I've read the presentence report. I say, I don't accept it. What does that mean? What does that mean, I don't accept it. He's pleaded guilty. Does it mean you're free to reinstate the indictment?
James A. Feldman: I think it contemplates--
Stephen G. Breyer: Now, if you decide we're not going to reinstate the indictment, that's your decision. Is that right?
James A. Feldman: --The... actually, the one--
Stephen G. Breyer: So you can make me take the telephone count by changing the indictment and going... can't you?
James A. Feldman: --I guess ordinarily the--
Speaker: Yes.
James A. Feldman: --dismissal of the indict... of the charges doesn't occur until after sentencing.
Speaker: Yes.
James A. Feldman: So ordinarily the charges are still there at the time the judge may reject the plea agreement.
Stephen G. Breyer: Right. So Cordova's wrong. That Ninth Circuit case is wrong.
James A. Feldman: No. Cordova is... I don't think Cordova is wrong.
Speaker: Right.
James A. Feldman: Cordova's reasoning, I think, is wrong, but the result--
Stephen G. Breyer: The reasoning is wrong because it said they could force the defendant to change. They can't force the defendant to change. The correct thing to say is, defendant, if you want to plead guilty to the telephone count, fine. That's your business. But the Government's free to go ahead and indict you to the possession with intent.
James A. Feldman: --That's exactly our position.
Stephen G. Breyer: That's the position. Okay. Thank you... thank you.
James A. Feldman: Not to indict, but to continue to trial on the charges that were already--
Speaker: Well--
James A. Feldman: --Under which you're already indicated.
William H. Rehnquist: --Well, what happens, Mr. Feldman, if the Government decides under a type (A) move for dismissal of other charges that it no longer wants to go through with that? The defendant has pleaded guilty but the trial court hasn't accepted the plea, and so it simply either refuses to dismiss or recharges. What can the court do about that?
James A. Feldman: Our position is the Government under... the court under appropriate circumstances I think could order specific performance of that promise. It would really depend--
William H. Rehnquist: And what... do you have any judicial authority for that?
James A. Feldman: --Well, the authority I would have is just the cases where some problem has arisen after a plea bargain where the Government has breached a plea agreement, and where the Government does that, generally... in fact, I think this was true in Santabello itself, but it's also been true in the way the courts of appeals have dealt with Federal cases, that the case goes back for a determination of what the appropriate remedy might be. It might be permitting the defendant to withdraw from his end of the bargain, and withdraw the plea.
William H. Rehnquist: Yes. That would presumably be a just reason under the rule.
James A. Feldman: Right, or--
William H. Rehnquist: But you're arguing for so much here that the rules simply don't address.
James A. Feldman: --It's true the rules don't address it, and I think you fill in the background of--
Ruth Bader Ginsburg: Will they, Mr. Feldman? The Rules Advisory Committee in October instructed the Reporter to propose amendments to Rule 11 in response to this very case and another one. Has there been any proposal, proposed revision of Rule 11?
James A. Feldman: --Not yet, and I really don't know... actually that was going to happen this month.
Ruth Bader Ginsburg: It was supposed to happen in--
James A. Feldman: He was supposed to report back this month. I don't know--
Ruth Bader Ginsburg: --I think it was earlier in this... I think it was around April 8 the Reporter was--
James A. Feldman: --I honestly am not aware of what's actually become of that. It's possible that after this Court granted cert that... whether he continued to work on that or not, I don't know.
Ruth Bader Ginsburg: --So you don't know whether any of the--
James A. Feldman: But it's our position--
Ruth Bader Ginsburg: --questions that the Chief has raised have been addressed in the proposed--
James A. Feldman: --I don't know, but I'd like to say I may be mentioning a number of things that aren't in the rules, because you do use contract, the law of contract to kind of fill in the gaps in plea bargaining. But the basic result in this case, I think, is determined by the rules, because if I said under the Ninth Circuit's rule... first of all under Rule 32(e) the fair and just reason business would have been really entirely illusory. It would apply for a matter of a few minutes. And it's obvious if you look at that rule itself and the purposes behind it and what the advisory committee said when it added that in 1983, that was a rule... that was an important step. It was intended to bolster the respect and the dignity of plea proceedings. Plea proceedings are governed by Rule 11, which has in (A), (B), (C), and (D) of that rule has extensive provisions about exactly how a plea has to be taken, all the steps the judge has to take, which, in fact, the judge took here, and that once the defendant has gone through all of that, nobody should have the illusion that they're just free to walk away from it with no consequences at all, especially if they don't have a fair and just reason to do so. It's also our position that Rule 11 itself dictates this result in the circumstances of this case. Rule 11 in (A), (B), (C), and (D), talks about the plea and about accepting the plea. It doesn't, I don't think, mention the plea agreement, or if it does it talks about plea agreements. It's quite clear it's talking about pleas. It gets to (E), which is entitled Plea Agreement Procedure, and (E) was the provision that was added to deal with plea agreements, and the rule makes perfect sense and is perfectly consistent in its very precise differentiation between those provisions that have to do with acceptance of a guilty plea, which has to do with the defendant's confession in open court as to what he did, and those provisions that have to do with the plea agreement, which is an entirely different question, which has to do with the nature of the bargain and is treated in the (E) provision. And indeed, in Rule 11(e)(4), the provision that we... that was mentioned earlier, where it says that the court... that if the court rejects the plea agreement the defendant shall be permitted to withdraw his plea, the whole notion there that the defendant can withdraw the plea I think has as its underlying assumption that there's been a valid, binding plea entered at that point, and there has been. So I think the result that we're urging here is dictated by the Federal rules. I also think the result we're urging here is dictated by the law of contracts. I think this is a fairly straightforward situation of a contract involving an exchange of a performance by the defendant for a promise by the Government to do something later, subject to a later condition, and everybody's bound to that unless the condition... once the plea is accepted... once the plea is accepted by the district court, unless the later condition doesn't occur. I think that if there... under the Ninth Circuit's rule there would be a great deal of instability ejected into the plea-bargaining process. A defendant at any time during the several months that it takes to prepare the presentence report can just say, I changed my mind. I don't want to go ahead and do this. At that point, everything stops. Well, that is a process that's at the unilateral whim of the defendant that's open to manipulation. It's open to a defendant who wants to obtain severance from codefendants to plead guilty and then just change his mind later. It's open to the possibility that a defendant who's just trying to delay an inevitable imprisonment could do that. It's even open to a defendant who sees that the Government... in this case, for example, the guilty plea was taken at the morning of trial, which is not at all uncommon. Once... you see that the Government has assembled all of its witnesses once. A couple of months later there may be some witnesses who are unavailable. There may be witnesses who are no longer in the jurisdiction, or even, in a sufficiently extreme case, a defendant might take steps to see to it that those things happen. All of those things can happen if you give the defendant this free window of several months after the plea to just change his mind, and I think if the advisory committee had proposed that kind of a rule, I think it clearly would have been rejected because of the instability it lends to the process. Another consequence it can have is that the preparation of the presentence report itself ordinarily requires the cooperation of both the defendant and the Government. Now, presumably if both parties are free to just withdraw at whim during this period between the guilty plea proceedings and the... basically and sentencing, it would be... it's very hard for the parties to lend the kind of cooperation to the probation officer that they would have to do, since neither is sure that the information that they're providing wouldn't ultimately be... they're now revealing it to a party who could easily, at that party's own whim, become the opposing party at a trial, and I think it would make preparation of those reports very difficult. And again, in this case, in fact, the preparation of the presentence report was delayed while all of this... proceedings were going on in the district court, because respondent wasn't cooperating with the probation officer during that period. Finally, I think that it's inconsistent with the dignity and respect that judicial proceedings should have that a formal Rule 11 proceeding in open court should have... should basically be able to be rendered a nullity by the defendant's unilateral action. A defendant... if you read... I think it's worth looking at the plea proceeding here, which is in the joint appendix, and it was all gone through very carefully with the defendant. He knew what he was doing. He knew the nature of the charges and the possible sentence, and all... he shouldn't be able to walk out of the courtroom and then say, well, I haven't decided yet whether I'm going to plead guilty. It's true I just, under oath, told the court about the facts of the case. I confessed, I went through all this, but I may change my mind and I'll make up my mind in a couple of months.
John Paul Stevens: --Mr. Feldman, do you happen to know off the top of your head what percentage of convictions in the Federal system are on guilty pleas and how many after trial?
James A. Feldman: It's in the 90-percent range.
John Paul Stevens: It's over 90 percent still, isn't it?
James A. Feldman: It's in that range.
Speaker: Yes.
James A. Feldman: If there are no further questions, I'd like to reserve the balance of my time.
William H. Rehnquist: Very well, Mr. Feldman. Mr. Soglin.
Jonathan D. Soglin: Mr. Chief Justice, and may it please the Court: The determinative question in this case is whether the district court can accept a guilty plea before it approves the plea agreement upon which it depends. In this case and in its earlier suit in Cordova-Perez, the court of appeals correctly recognized that a plea and a plea agreement are so inextricably bound up together that deferral of acceptance of one carries with it the deferral of acceptance of the other.
David H. Souter: Well, do you have to go against the text of Rule 11(e) to do that, to take your position, and the reason I ask the question is this. I'm reading... I'm actually reading from the rule as it's set out on 4a of the back of the Government's brief. Whereabouts, Justice Souter? The first paragraph, right at... it's the carryover paragraph at the beginning. If the agreement is of the charge-bargaining or the definite sentence type, the court may accept or reject the agreement, or may defer its decision until there's been an opportunity to accept the presentence report. It's clear from that that the court does accept the agreement, may, and effectively may under the rule, without waiting. Isn't that correct?
Jonathan D. Soglin: That's correct.
David H. Souter: Okay, and under the... in the following sentence, if the agreement is of the type specified in subdivision (B), the court may advise... shall advise the defendant that if the court does not accept the recommendation... i.e., that which is part of the agreement... the defendant nevertheless has no right to withdraw. So in each of those instances, the (A), the (B), and the (C) instance, the rule provides explicitly, as I read it, for acceptance of the plea without regard to what may ultimately happen to the terms of the agreement. There are, of course, further provisions in the (A) and (B) type, and there's a further provision, just cause, for the... (A) and (C) type and just cause provision for the (B) type, but the text seems to me very clear that the court may operatively accept the agreement right then and there, and isn't that inconsistent with your argument?
Jonathan D. Soglin: I don't think so. I think the rule permits the judge to accept the agreement at the time of the plea hearing, Rule 11 hearing, or may defer its decision until later.
Speaker: Yes.
Jonathan D. Soglin: Whether it's going to do that is going to depend on the information available at that time, and the petitioner has argued that deferral is required in these cases, type (A) charge-bargain, or type (C) sentence stipulation agreements, such that where there's deferral in all of these cases, that in none of those cases can the judge accept the agreement earlier and thus Rule 32(e)'s fair and just standard disappears for that period of time. That's not necessarily required. The rules, particularly Rule 32, permits the judge in fact to sentence a defendant without a presentence report, and there's certainly authority the judge can accept the plea agreement. The rules permit it without the presentence report, and at that time, if the presentence report is not needed the judge can say, I accept your plea agreement, and at that time the defendant is bound.
David H. Souter: Well, is it your point that the court has got to use the magic word, accept? Is that what you think the case turns on, as distinct from the rule that the Ninth Circuit employed?
Jonathan D. Soglin: I think what it turns on is when the judge can accept the plea, as opposed to the plea agreement.
David H. Souter: Well, let me ask a different question. Do you defend the rule that the Ninth Circuit applied?
Jonathan D. Soglin: Yes.
David H. Souter: Well, the rule, as I understand it, applied by the Ninth Circuit was that until the final determination is made as to whether or not the terms of the plea agreement will be honored, there is, in fact, nothing binding upon the defendant, and the defendant can simply either withdraw or say, oh, well, it doesn't mean anything. Are you defending that position?
Jonathan D. Soglin: Yes.
David H. Souter: How is that position consistent with the text that we just went over from (e), which seems to me to say quite clearly that the plea can be accepted by the court even though the terms of the plea agreement may or may not be honored, and there being various consequences that follow if they are not, but the text of the rule seems very clear that the court may accept the plea, even though we don't yet know what's going to happen to the terms of the plea agreement.
Jonathan D. Soglin: Justice Souter, I think I would disagree that the rule says that the court could accept the plea in that section.
David H. Souter: It says, may accept or reject, in the one sentence and in the other it says, the court shall advise the defendant that if the court does not accept the recommendation or request of the defendant, the defendant nevertheless has no right to withdraw the plea. Aren't those pretty clear indications that the court may accept the plea regardless of what happens later to the terms of the plea agreement?
Jonathan D. Soglin: Only with the type (B) agreements. In the first sentence that you referred to it refers to, the court may accept or reject the agreement. With type (A) and type (C) agreements... those are the charge-bargain agreements and sentencing stipulation agreements... those are the types the court may defer acceptance to the agreement. With the type (B) agreements that are referred to in the second sentence, there is no moment for the judge to approve of the agreement. Approval of the plea carries with it approval of the agreement in a case of the type (B) sentencing recommendation agreement.
David H. Souter: So you would say in the (A) and (C) cases, even if the judge says in open court I accept the plea, but I will determine later on whether I will accept the agreement, and I will wait until after the sentence report, the judge's statement in that case simply is not effective.
Jonathan D. Soglin: It's not effective to the extent the judge purports to bind the defendant to that plea. It may be effective to the extent the judge has made findings that the plea has been entered knowingly and voluntarily. The judge has gone through the litany of determining whether it's knowing and voluntary.
Sandra Day O'Connor: Mr. Soglin, I thought Rule 32 had some bearing on the case, that says if a motion to withdraw a plea of guilty is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason. Why doesn't that govern what happens here?
Jonathan D. Soglin: For a couple of reasons. First of all, the petitioner has agreed... and this is referred to in their reply brief on page 9... that that rule, that standard in Rule 32(e) only applies, or applies where there is a tendered and accepted plea. We've argued that there has been no accepted plea, although the judge purported to do so. Her label--
Sandra Day O'Connor: Well, the judge said he'd accepted the plea but he hasn't made a decision on the plea agreement, and the Government says there's a difference between the two. You say there's no difference between the two.
Jonathan D. Soglin: --There's certainly a difference between a plea and an agreement. You can have plea without an agreement, but my argument is that you can't accept one without the other, and this is based on the structure of Rule 11. That rule was amended in 1974. For the first time that rule provided that the court could do what we've just described, which is defer approval of the agreement pending review of the presentence report. To make that review possible, Rule 32 was also amended to permit review of the presentence report prior to a conviction. Rule 32 had already allowed the review of the presentence report submitted to the judge, reviewed by the judge, where there had been a finding of guilt, whether by a guilty plea or a conviction before a trial, jury trial. If the judge could accept the plea but not the agreement, there would have been no need to amend Rule 32 to permit that early review of the presentence report.
David H. Souter: I mean, but you can square it a little bit with the language, but my goodness, I've never seen anything like this before, where the... I've never seen this, what the Ninth Circuit has done before. I thought that the basic idea of this whole procedure is that the defendant pleads guilty, the judge then calls for the presentence report, everybody gets a chance to look at it, you know, and then of course the defendant's bound if the judge accepts it. Imagine the contrary. The contrary would be the defendant would sit there, he'd say, I plead guilty, but it wouldn't mean anything. Now I'm going to get a really good chance to see the evidence against me. I'm going to, moreover, get a perfect chance to know what every witness has said. This is a fabulous discovery, and I know what the prosecution will have said, and I know what my... I know everything. Maybe that's as it should be, but this is still something of a change, wouldn't it be, to have the total presentence report available to everybody prior to the defendant actually being bound?
Jonathan D. Soglin: If--
David H. Souter: Maybe that's a good idea. I don't know. Or maybe it's not. But it would represent a considerable change, wouldn't it, in most places?
Jonathan D. Soglin: --If that were the response, if the response to the decision were to produce a presentence report prior to the Rule 11 hearing, prior to the defendant being bound, that would be a change.
David H. Souter: And then why isn't that your... why doesn't your--
Jonathan D. Soglin: That's not necessarily the response.
David H. Souter: --Why isn't that the interpretation? Why isn't that what would happen if we accepted your view of the law?
Jonathan D. Soglin: That's one possibility. Another possibility is that the district court could make its decision on whether to accept the plea without a presentence report.
David H. Souter: Oh, well, the guidelines are very much against that, aren't they? I mean, it's very hard to ask a judge to do that without knowing the underlying circumstances, isn't it?
Jonathan D. Soglin: That's correct. I think at the time the Rule 11 hearing is held, though, a great deal of information is known. Presumably the Government has investigated their case--
Speaker: Yes, that's true.
Jonathan D. Soglin: --and produced discovery, and there's a great deal known about the seriousness of the offense. In this case, Mr. Hyde is charged with eight counts of fraud. He pled guilty to four counts of fraud.
David H. Souter: How do you feel about the opposite, because I guess if the defendant is free to withdraw, so could the Government, and now what the Government's going to do is get a really nice look not only at its own evidence but get quite a nice look at what the defendant's going to go and present to the probation officer, you know, by way of excuse, mitigation, and everything. Then the Government reads all that and says, oh, by the way, we changed our mind. I take it that would not be something you'd particularly like, but again, sauce for the goose, sauce for the gander. You'd have to--
Jonathan D. Soglin: I would not like it. I'm not sure that that's the required result. If you look at it purely as two equally bargaining parties, that would be the logical result of the argument, but it's not necessarily really what you have. Defendants are not your true, equally or fully capably negotiating parties. They're--
William H. Rehnquist: --Well, how would you reason through the result you want, that if the defendant is not bound by the plea, as you say, that the Government nonetheless is.
Jonathan D. Soglin: --There are... first of all, there is no parallel provision to Rule 32(e)... or, I'm sorry, to... yes, to Rule 32(e), which allows defendant to withdraw without a fair and just reason. There's no parallel provision for that for the Government. There's a recognition in that that there's a little more freedom available to a defendant withdrawing than there is for the Government. The Government's going to need to show some sort of breach or fraud.
William H. Rehnquist: Well, unless you say that since it says... the rule says nothing about the Government being bound, that perhaps the Government should be able to withdraw regardless of a just reason. The rules simply don't address that.
Jonathan D. Soglin: Rule 32 doesn't address that squarely. I think there are some lower court decisions that--
William H. Rehnquist: Well, but those aren't rules, are they?
Jonathan D. Soglin: --That's correct. When a defendant is offered the plea, there's been some sort of partial performance whether that's accepted by the court or not. The defendant has come into court and said, I'm willing to waive some very important constitutional rights. And on top of that, defendant admits the conduct that's alleged. To that extent, defendant has to some degree relied on the agreement. There may not be the same sort of reliance by the Government at that stage. The Government very often does not have to perform what it's promised until sentencing.
David H. Souter: Well, how has he relied, on your view? It seems to me his reliance is absolutely free on your view, because he can withdraw, and I presume you're not conceding that anything he had said in the plea colloquy can be used against him.
Jonathan D. Soglin: It could be used in limited circumstances in a trial under perjury, but that's not the primary concern. The petitioner has recognized--
David H. Souter: Well then, he hasn't given up much.
Jonathan D. Soglin: --Well, petitioner recognizes... this is in the reply brief in footnote 8... that such information could be used in other ways. Even if it can't be used at a trial, it could be used to have... let the Government think about other investigations, open the door to other avenues.
William H. Rehnquist: Deny him Government employment, perhaps.
Jonathan D. Soglin: Perhaps. [Laughter]
David H. Souter: Mr.-- --So your... is it your argument that what the defendant has partially performed is sort of the equivalent of what the Government would be disclosing in the presentence report, so that therefore it's perfectly fair for the defendant to be able to wait until the presentence report is in to decide whether or not he wants to withdraw his plea? Is that your argument?
Jonathan D. Soglin: Well, the reason the defendant's free to withdraw is--
David H. Souter: No, but is that your argument? I just want to know if I'm understanding your point.
Jonathan D. Soglin: --That's right. If you could rephrase it--
David H. Souter: Well, the question that Justice Breyer raised was, if the defendant may withdraw at will under a rule like the Ninth Circuit rule, then the defendant can sit back and wait for a presentence report, which is in fact going to be there before the judge sentences in almost every case, and if the deal is not final by the time he reads the report, he could simply withdraw his plea. And I thought that you... and the implication being that would be a very strange system for the rules to provide, because that would give the defendant a terrific advantage in discovery, and I thought your argument was, well, the defendant is partially performing simply by standing up and going through the plea colloquy. The defendant is giving the Government something which it might use as a lead to further investigation and so on, and so therefore it's perfectly fair for the defendant to get the benefit of the plea agreement if the Government gets the benefit of this partial performance, and I thought that was the ultimate point that you were making. Is... do I understand you correctly?
Jonathan D. Soglin: --That was the point I was making. I don't think that's the most fair situation. Truly, that is not what is presented by the facts of this case. This is not something that the Court necessarily has to reach in deciding this case, whether the Government would be free to withdraw if there's been some sort of reliance by the defendant.
Antonin Scalia: Mr. Soglin, can I take you back to Rule 32(e)? Was it your assertion that the Government concedes that that only applies when... after the plea has been accepted?
Jonathan D. Soglin: That's correct. The Government is--
Sandra Day O'Connor: As opposed to the plea agreement.
Jonathan D. Soglin: --Correct.
Sandra Day O'Connor: We're talking... now we're dealing with two separate things, a plea of guilty, and a separate plea agreement.
Jonathan D. Soglin: Yes. I think there are actually three things that could be meant by the term, plea of guilty. It could be a defendant tendering a plea... as petitioner has stated there are circumstances that are rare where a defendant tenders a plea and the judge--
Antonin Scalia: Well, when you say tenders a plea, does it talk about tendering a plea here? I mean, you plead guilty. You either plead guilty or you don't plead guilty. I don't know whether you tender it.
Jonathan D. Soglin: --Where a defendant says I plead guilty is what I've been referring to as a tendered plea. An accepted plea, which is what petitioner has stated is required before Rule 32(e) applies, is where the judge says I accept the plea. Our argument--
Sandra Day O'Connor: And the judge said that here.
Jonathan D. Soglin: --The judge said that here. Our argument is simply that the judge did not have legal authority to do that. Looking at the structure--
Sandra Day O'Connor: But you say somehow the rules don't permit a separation of a plea of guilty and a plea agreement.
Jonathan D. Soglin: --That's right.
David H. Souter: But textually it clearly does in the one instance. I mean, there's an express provision that says the judge will tell him that if I don't ultimately follow the recommendation... i.e., in a (B) situation... you still can't withdraw the plea, so clearly there is an irrefutable textual basis for saying that he can accept the plea leaving the plea agreement in limbo in that circumstance, right?
Jonathan D. Soglin: Precisely. I think that's not the case here. This case involved charge dismissal concessions by the Government as determining the plea, such that there was a requirement the judge accept the agreement. With a type (B) agreement, there's no reason for the judge to accept the agreement. The judge has ultimately no... there's no limitation on the judge's sentencing discretion under a purely type (B) agreement, where the prosecution only has to make a recommendation as to the ultimate sentence.
David H. Souter: But in an (A) and (C) situation the defendant has an absolute right to withdraw his plea if, in fact, the charge part of the agreement or the absolute sentence part of the agreement is not kept, right?
Jonathan D. Soglin: If the promise is not kept.
David H. Souter: That's right.
Jonathan D. Soglin: Defendant can withdraw it, correct.
David H. Souter: And so doesn't that imply that in those situations, too, the plea can operatively be accepted? Otherwise there would be no need for those provisions, I suppose.
Jonathan D. Soglin: The provision for acceptance of the agreement?
David H. Souter: The provisions for withdrawal of the pleas if, in fact, the agreements are not accepted and kept.
Jonathan D. Soglin: Well, the provision for withdrawal of the plea in Rule 32(e) doesn't describe whether it's talking about a tendered plea, an accepted plea, a plea where both the plea and the agreement have been accepted.
David H. Souter: And the answer to that may be, just as Justice Scalia said, a plea is a plea, and once it's there, it's operative unless, in fact, it is subject to one of these withdrawal or reexamination provisions.
Jonathan D. Soglin: Well, again, the petitioner has conceded that that's not the case, and I think the answer may be in the Mabry case of this Court, where the Court held that the agreement is not binding until accepted by the court, and in that case it was a situation where the Government had made an offer which defendant accepted. The Government then attempted to withdraw. The defendants sought enforcement of that offer, the withdrawn offer, and the Court said no, you hadn't... that offer had not been approved by the court.
Ruth Bader Ginsburg: Mr. Soglin, if you look at the... or... you've witnessed Rule 11 pleas, and it was with all due solemnity, and the district judge is telling the defendant all of his rights, and the defendant pleads guilty. Now, one wouldn't perceive of that procedure in court as something that's tentative, so there's something that doesn't quite fit, and the rules are meticulous in instructing the judge about advising the defendant of his rights, and anyone who comes into a courtroom and sees that that's how we do justice in the United States, and... but then you say that this is just an ephemeral thing, that it's not real, that when the judge says now, knowing all that, do you plead guilty, and the defendant says yes, and the judge says I accept it, that all that is kind of make-believe.
Jonathan D. Soglin: It's not ephemeral if the judge accepts the plea agreement, which the judge has discretion to do.
Ruth Bader Ginsburg: But there is no agreement at that point that the judge... the judge hasn't been presented with the agreement.
Jonathan D. Soglin: No, the rules do require that the parties, when they come into the Rule 11 proceeding to advise the court--
Ruth Bader Ginsburg: But he hasn't accepted it, because he's waiting for the presentence report.
Jonathan D. Soglin: --The rules permit the judge to accept it earlier. With some types of agreements that's very possible. In this case, the judge's sentencing authority was... could hardly be said to have been limited by the agreement. There was agreement to plead to four counts of an eight-count indictment on a fraud case. The maximum sentence under the charged offenses was 50 years. The maximum sentence under the plea agreement was 30 years. Under the rules, the guidelines which this Court recognized in Watt as recently as this year, the Court can consider nonconvicted conduct, relevant conduct, so all of that conduct that was part of this... these counts can be considered at sentencing. The judge's sentencing authority was not limited in any respect by the plea agreement, so the judge could accept that agreement without at all limiting his or her sentencing authority without waiting for the presentence report, and that may be the case in many, many cases. If there are cases where there is reason to think that his sentencing discretion is going to be limited in some way, where there is a mandatory minimum sentence that might be eliminated, or where there's a very low maximum sentence in the charged or the pleaded-to agreement or count, that there would be significant limits on the judge's sentencing authority. In those cases the judge would want to see... may want to see the presentence report. It's possible to have that presentence report prepared earlier. The rules specifically provide for that. And as Judge Stafford, the chief judge of the Northern District of Florida stated in an article, most of the information needed is available at that time, at the time of the plea hearing, even without a presentence report, so there are many instances when that could be accepted.
Anthony M. Kennedy: But the guidelines say that the judge really should wait, don't they?
Jonathan D. Soglin: That's correct.
Anthony M. Kennedy: He should get the presentence report.
Jonathan D. Soglin: The guidelines do. The guidelines use mandatory language. The rules use permissive language.
Speaker: Right.
Jonathan D. Soglin: I think that this is something... Rule 32, which talks about use of the presentence report for sentencing as opposed to acceptance of the plea agreement, recognizes you don't always need the presentence report. The judge can rely on the record if the judge states on the record that they find sufficient information on the record to sentence. The same thing would apply with a plea agreement the judge--
Ruth Bader Ginsburg: Mr. Soglin, you mentioned a law review commentary about what is being done, and whether you need a presentence report. Do you know... I'm asking you the question I asked Mr. Feldman... since the Rules Advisory Committee were alerted to the problem by the very case that we're reviewing, and were going to take a look at Rule 11 to see if they should make some proposed alterations, do you know what kinds of alterations, or do you know anything more than Mr. Feldman did about where that sits?
Jonathan D. Soglin: --I do not know whether they're taking any action. I attempted to find out a couple of weeks ago. I learned that the next meeting had not been held yet. That will be coming up, I believe it was April 8. If I'm able to obtain that there is something that the Rules Committee is taking up with that, I will certainly, with the Court's permission, lodge that with the Court after the hearing, but that does raise the question that, can this be dealt with in some other way. If the rule has not addressed the situation, if the guidelines have in some way increased the frequency with which judges defer approval of the agreement by using mandatory language, perhaps the way to resolve the conflict is to have the Sentencing Commission take another look at this, the Sentencing Commission or the Rules Committee through the rules amendment proceedings.
William H. Rehnquist: Oh, but that's not a possible disposition. I mean we can affirm or we will reverse. We can't say the Sentencing Commission should take another look. We have to decide this one way or the other.
Jonathan D. Soglin: Or... well, I mean, the other option would be a dismissal, a finding that certiorari had been improvidently granted on the ground that--
Sandra Day O'Connor: Or a reversal because we don't agree with you.
Jonathan D. Soglin: --That's their losses. [Laughter] I just want to address for a moment some of the floodgates arguments that the Government has made. As I stated, this is not... does not apply to all agreements. There are agreements that don't even fall under the types addressed by the rules. There are cooperation agreements that are not described in the rules. Those do not require a deferral of acceptance of agreements, so there are many agreements where the judge can accept the agreement at the plea hearing. There are also many disincentives for a defendant to back out of an agreement the way the Government has suggested will happen frequently, or to use it for delay. Defendants want speedy trials. There are... of course, of course the Speedy Trial Act reflects that there are... is an interest for defendants to have quick resolution of these cases. If a defendant does seek to withdraw, and the Government thinks this is for delay or it obstructs justice in some way, that defendant upon going to trial will get... will lose acceptance of responsibility reduction, which is a three-level reduction in sentence, a two or three-level reduction in sentence, sentencing levels. They could also face an enhancement for obstruction of justice under the guidelines, or a separate prosecution for obstruction of justice if they are using this somehow to manipulate or to delay the proceedings so that Government witnesses are lost. The reality is--
Antonin Scalia: The reality is that will never happen. They're... you're not even... even perjury prosecutions for obstruction of justice are pretty rare. This won't happen.
Jonathan D. Soglin: --They are rare. It is possible, and I would rely more on the loss of acceptance of responsibility, which is... very often could be what motivates the defendant to plead, is that reduction, which can be significant, up to 20 percent, 30 percent reduction in sentence, which they're not going to get if they go to trial. That's a tremendous deterrent in defendants withdrawing from these pleas. The... finally, the... it's been mentioned earlier that the rate of conviction by plea agreements, by guilty pleas is 90 percent, or has been over 90 percent. It has been that high for quite a bit of time, since... at least since the 1960's, and we cited some reference to statistics like that, so there are... there's a great deal of stability in guilty pleas. There is... if something significant has been offered to defendant they're going to plead guilty and they're going to stick with that plea. It's going to be a rare defendant who's going to want to back out of that. It's... a point of emphasis. The question here is, truly, can the court do what it purported to do in this case, which was accept the guilty plea at the time that it did. The rules, the structure of the rules show that they cannot. In that situation, Rule 32(e) does not apply, and the defendant is free to withdraw. If the Court has no further questions--
William H. Rehnquist: Thank you, Mr. Soglin. Mr. Feldman.
James A. Feldman: I just had one point I wanted to make. For purposes of this case... this is in response to Justice Scalia's question... we have accepted that it's the... that at least at the latest time when the district court accepts the plea the parties are bound. Now, whether at some earlier point the parties may be bound or not is really not something that arises here, because it was done so carefully in this case, and that... we've said that in our brief.
Antonin Scalia: What's the best textual support for your position? What is the provision of the rules that you think is the one--
James A. Feldman: I guess... it's hard for me to answer, because I do think there are several of them, but I think 32(e) would be rendered a nullity in a... most cases if the Ninth Circuit's view were right, and I don't think that rendering... I think that that would be the strongest one in my view. I also think there are provisions of Rule 11, as I mentioned before, that clearly distinguish between pleas and plea agreements.
William H. Rehnquist: Thank you, Mr. Feldman. The case is submitted.