Email Promise by Prosecutor Not Part of Plea Agreement, So No Breach

United States v. Long, No. 11-20726 (July 2, 2013) (Stewart, Smith, Wiener)

Double-check, no, triple-check those plea agreements to make sure any negotiated terms are documented therein. If the plea agreement has a merger clause, which most do, then any outside communications with the prosecutor will not be incorporated into the plea agreement.

Here, Long appealed his sentence, arguing the Government breached its plea agreement with him by supporting the leader/organizer sentencing enhancement recommended in the presentence investigation report ("PSR"). The prosecutor indicated to Long’s attorney via email that he would not argue for a role enhancement, but the plea agreement did not mention a role enhancement and contained a merger clause that the written plea agreement constitutes the complete plea agreement. Before accepting Long’s plea, the district court even asked Long if there were any other promises or assurances not documented in the plea agreement, and he responded no.

The panel affirmed that the email was not part of the plea agreement, that Long did not rely on the email exchange in pleading guilty, and that, even if he had, such a reliance would have been unreasonable in light of the plea agreement’s merger clause. The panel affirmed the sentence, which was based on the district court’s ruling that the Government did not breach the plea agreement.