Get it in writing. That's what Judge Newman says, speaking of plea agreements, in United States v. Graves. Graves was indicted for narcotics offenses. He agreed to plead guilty to one firearms violation count for which he would receive a sentence of 15 years. The plea agreement provided a cooperation section, which required that Graves cooperate with the Government by providing complete and truthful information about his criminal activity and testifying where necessary. The cooperation section did not say anything about acquiring new information about criminal activity by acting as an informant, nor did it require the Government to move or consider moving for a 5K1.1 departure for rendering substantial assistance.

The District Court approved the plea agreement. During the plea allocution, the prosecutor stated that there was a 5K aspect to the plea agreement because the Government might make a 5K motion. The Court explained the plea agreement to Graves, stating that if he provided substantial assistance to the Government, "then the government will move for a downward departure under Rule 5K of the sentencing guidelines and ask that I impose a lower sentence." The Court, however, warned Graves that "the government is not obligated under this agreement to do that, but will do so only if you have given substantial assistance and cooperation to the government."

Graves sought to withdraw his plea. He complained that, although he was cooperating with the Government, the Government claimed his assistance was not substantial. While the prosecutor admitted that the information provided by Graves was "good, fruitful information," it did not make a 5K motion. The Government decided that the evidence provided, in light of his criminal background, was not substantial enough to warrant making the motion and certainly not worth releasing him to act as an outside informant.

Graves' attorney claimed that despite the language of the plea agreement, there was an understanding with the prosecutor that the actual sentence would be substantially less than 15 years. The prosecutor did not deny that such had been discussed, but claimed that he had told Graves that it was a long shot that he would be released.

The District Court denied the motion to withdraw Graves's plea.

The Second Circuit remanded the case to the District Court. In light of the fact that there clearly had been discussions about a 5K motion, the Court held that there were issues of fact for a factual inquiry as to exactly what was said aobut proactive cooperation, what understanding was reasonably conveyed to Graves concerning the cooperation that would be required for him to have a chance for a reduced sentence and whether he would be released in order to render such cooperation.

Judge Newman noted: "Of course, all of the uncertainties surrounding this plea could have been avoided if the Government had heeded our prior admonition to include all representations in the written plea agreement."

The decision can be found here.