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December 2, 2014

"United States v. Erwin and the Folly of Intertwined Cooperation and Plea Agreements"

The title of this post is the title of this new article authored by Kevin Bennardo and published in the online complement to the Washington and Lee Law Review. (The Erwin case referenced in the title is a recent Third Circuit ruling discussed in this blog post titled "Significant Third Circuit ruling on the consequences of a defendant's appeal despite an appeal waiver.")  Here is the abstract of this new article:

Cooperation agreements and plea agreements are separate and independent promises by criminal defendants to: (1) assist the Government in the prosecution of another person and (2) plead guilty.  A defendant’s breach of one should not affect the Government’s obligation to perform under the other.  All too often, however, these agreements are inappropriately intertwined so that a minor breach of the plea agreement relieves the Government of its obligation to move for a downward sentencing departure in recognition of the defendant’s substantial assistance.  This intertwining undermines sentencing policy as set forth in the federal sentencing statute.  Thus, a district court should continue to consider a defendant’s substantial assistance when imposing a criminal sentence even if a breach of the plea agreement alleviates the Government of its duty to move for a sentence reduction under an intertwined cooperation agreement.

December 2, 2014 at 06:07 PM | Permalink


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Are severability clauses standard in these agreements?

Posted by: Supremacy Claus | Dec 2, 2014 6:57:30 PM

I agree with the premise in certian cases. As a DOJ Trial Attorney there were two occasions where I still moved for a 5K reduction but also opposed the 3 points for acceptance because the Ds breached the plea.

Posted by: AUSA12 | Dec 3, 2014 12:14:07 PM

I think in federal sentencing, this makes sense because they have points to take both into account. However, while it makes sense stated like that (minor breach of the plea agreement shouldn't affect the cooperation), is the opposite true? I would imagine that many plea agreements are in consideration for the cooperation given. And it's very rare to agree to reduce a sentence without a guilty plea regardless of the level of cooperation.

Posted by: Erik M | Dec 3, 2014 1:42:49 PM

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