Friday, August 21, 2009
Not What He Bargained For: Eighth Circuit Enforces Questionable Clause In Plea Agreement After Defendant's Breach
Al and Bob enter into a contract under which Al agrees to paint Bob's house for $500. Al breaches the contract by not painting Bob's house. Bob thereafter sues Al for breach of contract. Finding that Al breached, the judge orders Al to paint Bob's house and finds that Bob does not have to pay him a cent in exchange. The reason? The contract contained a clause stating that, in the event of a breach, Bob would be released from his obligations, but Al would "remain bound by the terms of the agreement."
I think that we can all agree that this would never happen. The judge might award Bob damages and could possibly award specific performance of the contract, but not without compensation to Al. And yet, in its recent opinion in United States v. Sisco, 2009 WL 2477235 (8th Cir. 2009), the Eighth Circuit enforced just such a clause in a plea agreement against a criminal defendant, a result which was far from anomalous. I would also argue that the opinion was far from convincing.
In Sisco, Anthony Sisco pleaded guilty to possession with intent to distribute five grams or more of cocaine base as part of a written plea agreement. This plea agreement contained a waiver of Sisco's appellate rights and contained a clause stating,
If the defendant commits any crimes, violates any conditions of release, or violates any term of this plea agreement between the signing of this plea agreement and the date of sentencing, or fails to appear for sentencing, or if the defendant provides information to the Probation Office or the Court that is intentionally misleading, incomplete, or untruthful, or otherwise breaches this plea agreement, the United States will be released from its obligations under this agreement. The defendant, however, will remain bound by the terms of the agreement, and will not be allowed to withdraw his plea of guilty.
Thereafter, "[b]efore sentencing and while on pre-trial release, Sisco was charged with first degree murder, first degree assault, and two counts of armed criminal action in connection with a shooting that occurred in Kansas City, Missouri." Based upon Sisco's conduct, the government filed a motion to withdraw from the plea agreement based upon Sisco's breach, and Sisco did not oppose the government's motion to withdraw."
Thereafter, the government sought entry of a sentence against Sisco that was higher than the sentence in the plea agreement, and the court agreed, sentencing him to the statutory maximum of 480-months incarceration. Sisco thereafter appealed, claiming, inter alia, "that because the plea agreement did not outline his appellate rights in the event of a breach, the agreement should be construed against the government." The Eighth Circuit agreed with Sisco that “ambiguities [in the plea agreement] are construed against the government," but found that the above clause was "not ambiguous."
According to the court, the clause clearly stated that
Sisco "will remain bound by the terms of the agreement" even if he breaches the agreement. The agreement is unambiguous. Sisco's breach of the agreement did not absolve him of his duties thereunder.
Sisco's breach of his plea agreement released the government from its duty to not seek an enhanced sentence, but it did not restore to Sisco the appeal rights he expressly waived. Sisco's actions did not render the entire plea agreement a legal nullity.
How is this fair? If the government breaches a plea agreement, the criminal defendant is limited to typical contract remedies: specific performance or the opportunity to withdraw from the plea agreement. See, e.g., United States v. Lovelace, 565 F.3d 1080, 1085-86 (8th Cir. 2009). So, why should the government get a one-sided remedy not available to parties to other contracts? While courts have not fully accepted Justice Brennan's contention in Ricketts v. Adamson, 483 U.S. 1, 16 (1987) (Brennan, J., dissenting), that "plea agreements are constitutional contracts," the Eighth Circuit itself made clear that it gives criminal defendants every benefit of the doubt under plea agreements. Given this, how can such clauses be enforced?