Criminal procedure: pleas

The cards

1. FRCrP 11Pleas
2. FRCrP 11(a)(1): In GeneralA defendant may plead not guilty, guilty, or (with the court’s consent) nolo contendere.
3. FRCrP 11(a)(2): Conditional PleaWith the consent of the court and the government, a defendant may enter a conditional plea of guilty or nolo contendere, reserving in writing the right to have an appellate court review an adverse determination of a specified pretrial motion. A defendant who prevails on appeal may then withdraw the plea.
4. FRCrP 11(a)(3): Nolo Contendere PleaBefore accepting a plea of nolo contendere, the court must consider the parties’ views and the public interest in the effective administration of justice.
5. FRCrP 11(a)(4): Failure to Enter a PleaIf a defendant refuses to enter a plea or if a defendant organization fails to appear, the court must enter a plea of not guilty.
6. FRCrP 11(b)(1): Advising and Questioning the Defendant
   1. 1the government’s right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath
   2. 2the right to plead not guilty, or having already so pleaded, to persist in that plea
   3. 3the right to a jury trial
   4. 4the right to be represented by counsel—and if necessary have the court appoint counsel—at trial and at every other stage of the proceeding
   5. 5the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses
   6. 6the defendant’s waiver of these trial rights if the court accepts a plea of guilty or nolo contendere
   7. 7the nature of each charge to which the defendant is pleading
   8. 8any maximum possible penalty, including imprisonment, fine, and term of supervised release
   9. 9any mandatory minimum penalty
   10. 10any applicable forfeiture
   11. 11the court’s authority to order restitution
   12. 12the court’s obligation to impose a special assessment
   13. 13in determining a sentence, the court’s obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a)
   14. 14the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence
   15. 15that, if convicted, a defendant who is not a United States citizen may be removed from the United States, denied citizenship, and denied admission to the United States in the future
   Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:
7. FRCrP 11(b)(2): Ensuring That a Plea Is VoluntaryBefore accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).
8. FRCrP 11(b)(3): Determining the Factual Basis for a PleaBefore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.
9. FRCrP 11(c)(1): In General
   1. 1not bring, or will move to dismiss, other charges
   2. 2recommend, or agree not to oppose the defendant’s request, that a particular sentence or sentencing range is appropriate or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request does not bind the court)
   3. 3agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply (such a recommendation or request binds the court once the court accepts the plea agreement)
   An attorney for the government and the defendant’s attorney, or the defendant when proceeding pro se, may discuss and reach a plea agreement. The court must not participate in these discussions. If the defendant pleads guilty or nolo contendere to either a charged offense or a lesser or related offense, the plea agreement may specify that an attorney for the government will:
10. FRCrP 11(c)(2): Disclosing a Plea AgreementThe parties must disclose the plea agreement in open court when the plea is offered, unless the court for good cause allows the parties to disclose the plea agreement in camera.
11. FRCrP 11(c)(3): Judicial Consideration of a Plea Agreement
    1. 1To the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report
    2. 2To the extent the plea agreement is of the type specified in Rule 11(c)(1)(B), the court must advise the defendant that the defendant has no right to withdraw the plea if the court does not follow the recommendation or request
12. FRCrP 11(c)(4): Accepting a Plea AgreementIf the court accepts the plea agreement, it must inform the defendant that to the extent the plea agreement is of the type specified in Rule 11(c)(1)(A) or (C), the agreed disposition will be included in the judgment.

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