Weasley Prosecutor Winks at Judge: 9th Circuit Voids 15 year Sentence


According to the Government up to 95 % of all criminal cases in the United states are resolved through plea bargaining.  In fact, in one recent study  only 2% of federal criminal defendants went  to trial, and most who did were  found guilty.

Therefore, it not hyperbolic to say that plea bargaining is the cornerstone of the criminal justice system in the United States.

But what is a plea bargain, and what if the prosecutor, who writes the plea bargain plays fast and loose with its terms.

Anatomy of Plea Bargain

A plea bargain is a written contract between a prosecutor and an accused person.  It almost involves a promised reduction for the  defendant in charges or sentencing exposure, in exchange for the substantial savings “in time and resources” for the prosecutor, potentially avoiding a lengthy trial or protracted litigation.  See Generally American Bar Association, Plea Bargaining, November 28, 2021.  

 In the legal world, a plea bargain is treated like a “contract” and subject to contract law. United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002)  Both parties to the plea bargain  —the prosecutor and the accused person—are fully  expected to abide by its terms.  In fact, they are both legally bound.

Deemed both essential to and highly desirable for the criminal justice system, plea-bargaining resulting in the court’s acceptance of a guilty plea “must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.” Santobello v. New York, 404 U.S. 257, 262 (1971).


Last week the Ninth Circuit Court of Appeals, the second highest court in the nation, citing  the United States Supreme Court in Santobello in a split decision voided a 15 year prison sentence, holding that the prosecutor in the case implicitly violated the written plea bargain.  See United States v. Gerarado Farias-Contreras  No. 21-30055 (9th Cir. February 15, 2023

There, Farias-Contraras was initially charged in  with a federal conspiracy to distribute large amounts of methamphetamine. Farias-Contreras at 5.  Farias entered a plea bargain  with the prosecutor where “[i]n exchange for [his] waiver of his constitutional rights attendant to a jury trial, the government agreed not to file any new charges …” and  also to dismiss  other charges and also to dismiss a second indictment related to illegal reentry into the United States by an alien, he agreed to significant prison time . Id. 

Importantly, as part of the bargain, in writing,  the prosecutor “agree[d] not to recommend a sentence in excess of the low end of the guideline range.” Id.  But although the prosecutor technically made that recommendation, he undermined it by filing a vituperative sentencing memorandum, in which he made inflammatory statements such as “Drug trafficking is nothing less than pumping pure poison into our community …”  and then gratuitously argued the same and more aggravating facts and factors  at sentencing,  which implicitly suggested to the  trial judge that a stiffer sentence than the bottom end to was appropriate. 

The Judge sentenced Farias to fifteen years.

Farias appealed, arguing that the prosecutor had “breached” the plea bargain. The Ninth Circuit agreed, emphasizing that  a prosecutor “may not superficially abide by its promise to recommend a particular sentence  while also making statements that serve no practical purpose but to advocate for a harsher one.” Id.  “In other words, the prosecutor may not purport to make a bargained-for recommendation while “winking at the district court” to impliedly request a different outcome.” Id. And because the prosecutor did precisely that, the Ninth Circuit voided the fifteen year sentence.

How Could  Farias Help My Case?

As a criminal defense attorney for a quarter century, I have come across my share of weasley prosecutors.   You’d like to think that  prosecutors can be trusted, and most  can, as honorable attorneys and people,  but there’s always one or two in  almost every  city who have a bad reputation.  Those are the prosecutors to watch out for and who Farias  is aimed at.

Criminal law in general, and plea bargaining in particular, is a game of trust.  And it’s a game where the prosecutor is holding almost all the cards. Therefore, prosecutors have special ethical duty to do justice and be fair.

Farias in my view is helpful, in those  certain and unfortunate  cases  where  a weasely  prosecutor  makes a vague promise of some kind of leniency as part of  and  in order to induce a plea bargain,  but  then  turns around  and tries to stick it to your client at sentencing,  doing  it in a way that violates the spirit of the plea bargain and the plea bargaining system.    

Let’s hope you never need to rely on Farias, but if you do, I think it will turn out to be an important case, and become an arrow in every defense attorney’s quiver. 

I hope this helps.

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Michael Harwin

About Michael Harwin

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