EPSTEIN
page 5 / 51 . OCR, unverified
150, 154 (1972).
Yet despite this binding precedent, the Second
Circuit refuses to hold its United States prosecutors to
the promises that other United States prosecutors
have made on behalf of the United States, instead
clinging to the position that a plea agreement binds
only the district in which it was entered unless it
expressly states otherwise, even if the promise is made
on behalf of the “United States.” (App.8-12). The
Seventh Circuit similarly applies a narrow interpreta-
tion of who is bound by a pledge on behalf of the
“United States” or the “Government.” This policy jeop-
ardizes the integrity of the plea negotiation process
nationwide, which is “an essential component of the
administration of justice” that “presuppose[s] fairness
in securing agreement between an accused and a
prosecutor.” Santobello, 404 U.S. at 261.
The Second and Seventh Circuit’s policy is squarely
in conflict with that of the Third, Fourth, Eighth and
Ninth Circuits, creating a circuit split with nationwide
ramifications pursuant to which the same plea agree-
ment can receive a different interpretation throughout
the country on one of its most fundamental aspects
(a defendant’s potential future criminal liability). This
case provides an ideal opportunity to resolve this
circuit split regarding an important issue of federal
criminal law.
A. The Third, Fourth, Eighth and Ninth Cir-
cuits have faithfully applied Santobello’s
instruction that promises in plea agree-
ments must be binding on the government,
applying basic principles of contract law to
find that obligations entered into on behalf
of the “United States” or the “Government”
apply to the federal government through-
out the nation.
Third Circuit. In United States v. Gebbie, 294 F.3d
540 (3d Cir. 2002), the Third Circuit squarely
addressed the question of “whether promises made on
behalf of ‘the Government’ or ‘the United States’ by
a United States Attorney to a defendant bind other
United States Attorneys with respect to the same
defendant.” Id. at 546-47. After recognizing that the
Second and Fourth Circuits “employ opposite default
rules” from one another, id. at 547, the Third Circuit
agreed with the Fourth Circuit and held that “when a
United States Attorney negotiates and contracts on
behalf of ‘the United States’ or ‘the Government’ in
a plea agreement for specific crimes, that attorney
speaks for and binds all of his or her fellow United
States Attorneys with respect to those same crimes
and those same defendants.” Id. at 550. It went on
to note that “United States Attorneys should not be
viewed as sovereigns of autonomous fiefdoms. They
represent the United States, and their promises on
behalf of the Government must bind each other absent
express contractual limitations or disavowals to the
contrary.” Id.
Fourth Circuit. The Fourth Circuit, in United
States v. Carter, 454 F.2d 426 (4th Cir. 1972), was the
first to hold that a promise on behalf of the United
States in one district not to prosecute a defendant is
binding upon U.S. Attorney’s offices in other districts.
Id. at 428. As that court noted, “[t]he United States
government is the United States government through-
out all of the states and districts. . . . A contrary result
would constitute a strong deterrent to the willingness
of defendants accused of multistate crimes to cooperat-
ing in speedy disposition of their cases and in appre-
hending and processing codefendants” Id. The Fourth
Circuit concluded, “[a]t stake is the honor of the
government[,] public confidence in the fair admin-
istration of justice, and the efficient administration of
justice in a federal scheme of government.” Id.
Eighth Circuit. The Eighth Circuit similarly found
in United States v. Van Thournout, 100 F.3d 590
(8th Cir. 1996), that “absent an express limitation,
any promises made by an Assistant United States
Attorney in one district will bind an Assistant United
States Attorney in another district.” Id. at 594. Inter-
preting a plea agreement which provided that the
“United States” would make certain recommendations
regarding the defendant’s sentence, the court held
that this provision was binding on the U.S. Attorney’s
office in another district and that the terms of the
agreement should be enforced. See also Margalli-
Olvera v. Immigration and Naturalization Service,
F.3d 345, 352 (8th Cir. 1994) (finding that “the term
‘United States’ is a reference to the entire United
States government and all the agencies hereof” in the
context of determining that the INS is bound by
promises made by the U.S. Attorney’s office).
Ninth Circuit. In Thomas v. Immigration and
Naturalization Service, 35 F.3d 1332 (9th Cir. 1994),
the Ninth Circuit held that a promise made by the
U.S. Attorney’s Office on behalf of the “Government”
(defined in that agreement to include its “depart-