                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-27-2005

USA v. Hodge
Precedential or Non-Precedential: Precedential

Docket No. 02-1817




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                                            PRECEDENTIAL


    IN THE UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                     Case No. 02-1817

            UNITED STATES OF AMERICA


                             v.

                    DEVIN HODGE,
                              Appellant
                    ______________

  On Appeal from the District Court of the Virgin Islands,
            Division of St. Thomas and St. John
     District Judge: The Honorable Thomas K. Moore
            District Court No. 99-CR-00006-03
                     ________________

                  Argued April 20, 2005
                   ________________

Before: NYGAARD, RENDELL, and SMITH, Circuit Judges

                   (Filed: June 27, 2005)



                             1
Jorge E. Rivera-Ortiz
P.O. Box 1845
Manati, Puerto Rico 00674-1845
             Attorney for Appellant

Nelson L. Jones
Office of the United States Attorney
United States Courthouse
5500 Veterans Building, Ste. 260
Charlotte Amalie, St. Thomas
              USVI, 00802-6924
              Attorney for Appellee

                    _________________

                OPINION OF THE COURT
                  __________________


SMITH, Circuit Judge.

        Devin Hodge pleaded guilty to murdering the owner of
a St. Thomas jewelry store. Devin’s brother, Irvine, pleaded
guilty to the same crime as part of a “package deal.” The
brothers were sentenced at the same proceeding to life in
prison by the District Court of the Virgin Islands. Devin
argues on appeal that the government breached its plea
agreement, and that the District Court conducted a deficient
plea colloquy in part because it was unaware that his plea was
linked to his brother’s. We hold that the government

                              2
breached its plea agreement, and we will vacate Devin’s
sentence and remand for re-sentencing or withdrawal of his
plea. We further hold that the District Court did not plainly
err in conducting Devin’s plea colloquy. We write to provide
guidance for the District Court should a new plea colloquy be
required on remand, and for other district courts faced with
the sensitive task of testing voluntariness in package deal plea
situations.1

                                 I.

      In May 1999, a federal grand jury indicted Devin
Hodge, Irvine Hodge, and a third defendant for murder of the
owner of the Emerald Lady Jewelry Store in Charlotte




       1
         Devin also argues on appeal that the District Court
erroneously adjusted his sentence upward under Blakely v.
Washington, 524 U.S. 296 (2004). In the wake of Booker v.
United States, 125 S. Ct. 738 (2005), normally we would remand
his case to the District Court for re-sentencing. See United States
v. Davis, 407 F.3d 162 (3d Cir. 2005). As we have explained,
however, we remand for re-sentencing or plea withdrawal because
we hold that the government breached its plea agreement with
Devin in its allocution at his sentencing. To foreclose the
government from repeating the infirm language at a possible re-
sentencing, we will dispose of Devin’s breach-of-plea argument
now on the merits rather than remanding solely under Booker.

                                 3
Amalie, St. Thomas, and the theft of jewelry from the store.2
Devin pleaded not guilty to that indictment, which was styled
as a second superseding indictment.3 In March 2000, Devin
pleaded not guilty to a third, superseding indictment.4

      As early as mid-1999, however, at Devin’s initiation,
Devin and the government were engaged in intense



       2
         These crimes may be related to earlier proceedings in this
Court against Irvine for robbery of the same store three years
earlier. At Devin’s sentencing, the government stated that the
murder at the Emerald Lady was prompted by Devin’s “fantasy”
that “he could make a difference in his brother’s case by killing
another human being.” We affirmed the conviction and sentence
of Irvine for armed robbery at the Emerald Lady in United States v.
Hodge, 211 F.3d 74, 75 (3d Cir. 2000).
       3
         The original indictment and first superseding indictment
are not in the record. In the Second Superseding Indictment, the
Hodge brothers and their co-defendant were charged with (1)
interfering with commerce under 18 U.S.C. § 1951, (2) possession
of a firearm during a crime of violence under 18 U.S.C. §
924(c)(1), and (3) first degree murder under 18 U.S.C. § 924(j)(1).
Each count of the indictment also alleged aiding and abetting under
18 U.S.C. § 2.
       4
        The Third Superseding Indictment charged the Hodge
brothers and their co-defendant with (1) interfering with commerce
under 18 U.S.C. § 1951, (2) first degree murder under 18 U.S.C. §
924(j)(1), and (3) tampering with a witness by killing under 18
U.S.C. § 1512(a)(1)(A), (2)(A).

                                 4
discussions about a plea bargain. The United States Attorney
wrote in July 1999 that the government was “seriously
considering” asking that Devin plead guilty to first degree
murder and possession of a firearm in relation to a crime of
violence. In return, the government would recommend that
Devin be sentenced at the lower end of the guideline range
and that he receive the maximum, three-point credit for
extraordinary acceptance of responsibility under the United
States Sentencing Guidelines.

        In late-April 2000, the government sent Devin’s
attorney a draft plea agreement. The body of the cover letter
stated:

              I am enclosing herewith a copy of a
      proposed plea agreement in the above captioned
      matter. The proposed agreement is the entire
      integrated agreement of the parties.
      Additionally, the plea offer from the
      government is a lock plea. That is, each of your
      clients must accept the plea as a condition of the
      government’s acceptance of the plea.

              As you know, while the government will
      recommend three points off for extraordinary
      acceptance of responsibility if your clients each
      accept the plea, the government is not the final
      arbiter of what United States Sentencing

                              5
      Guidelines range the United States Probation
      Office may calculate. As such, the government
      makes no representation as to what probation’s
      [sic] calculations, or the Court’s position on
      those calculations, may be.

Four days after receiving this letter, Devin pleaded guilty.
The written plea agreement provided that Devin would plead
guilty to first degree murder, the second count of the Third
Superseding Indictment. In return, the government agreed to
“seek dismissal” at sentencing of the remaining counts, and to
“recommend that [Devin] receive credit for acceptance of
responsibility, assuming [Devin] does in fact clearly
demonstrate acceptance of responsibility.” While the
government reserved its right to allocute at sentencing, it
agreed “to make no specific sentencing recommendation other
than to request that the sentence be within the guideline
range.”

       The final paragraph of the written plea agreement
provided that “[t]he parties agree that no other promises have
been made in connection with this matter, and that this Plea
Agreement constitutes the entire agreement between the
United States Attorney for the District of the Virgin Islands
and the defendant in the above-referenced case.” The
agreement did not mention that Devin’s plea was “locked,” or
otherwise conditioned upon, Irvine’s identical plea.



                              6
       Later that month, the District Court held a joint
change-of-plea hearing for Devin and Irvine. Devin’s and
Irvine’s attorneys indicated that the pleas were identical and
agreed to a “dual inquiry.” District Judge Moore stated:

       Even though you’ve gone over and completed
       an application to plead guilty, each of you, and a
       separate plea agreement which it appears to me
       has – when I looked at it before – has been
       signed, I want to make sure that I have – that the
       file reflects what you and your attorneys have
       gone over individually.

Devin and Irvine reviewed their individual applications and
their plea agreements, and they and their attorneys initialed
each page of those documents.

        Judge Moore explained separately to Devin and Irvine
that the maximum penalty for pleading guilty to first degree
murder was death. Devin’s attorney objected, noting that his
client was a minor at the time of the offense. When the
government conceded that the death penalty would not apply
to Devin, Judge Moore responded, “[a]nd the government
agrees for both Mr. Irvine Hodge and Mr. Devin Hodge, that
death is not an option[?]” The government agreed. Judge
Moore summarized that, “[s]o for all legal and practical
purposes, insofar as these two defendants, Mr. Irvine Hodge,
Jr. and Mr. Devin Hodge, the maximum possible sentence is

                               7
life imprisonment[?]” Both Devin’s and Irvine’s counsel
agreed.

        Judge Moore asked Devin whether he understood what
the government had promised to do in return for his guilty
plea. Devin answered, “Yes, your Honor.” Prompted by
Judge Moore, Devin elaborated: “Well, I understand it would
be in a guideline range. Also I understand – well, the charges
I’m being charged with, what would be dropped.” Judge
Moore summarized: “So the government, once we arrive at a
guideline range, the government will recommend that the
sentence be within that, and they’re not going to ask for any
particular sentence, except that it be within that range.”
Devin answered in the affirmative. “Is there anything else
about the agreement you don’t understand that we need to go
over?” Judge Moore asked. “No, I understand everything
fully,” Devin answered.

        Devin and Irvine were questioned separately regarding
rights they were waiving by pleading guilty. Judge Moore
asked: “Do you understand our system, and that you don’t
have to give [your rights] up, nobody can force you to give
them up, but if you do waive those rights, what you’ll do if
you plead guilty, then they’ll be waived and the next thing
will be the sentencing?” The brothers each answered
affirmatively. Judge Moore added, “you understand also that
you have the privilege against self-incrimination, which
means that you have the right to stand on your plea of not

                              8
guilty and to remain silent. No one can force you to testify
against yourself or to give other incriminating testimonial
evidence, indicating that you’re guilty as charged?” Again,
the brothers answered affirmatively.

       Judge Moore then homed in on voluntariness:

       The Court:    Now, you are the only ones who
                     can plead – change your plea to a
                     charge, this Count 2, and it’s –
                     your plea [is] valid only if it’s
                     your free and voluntary act. So,
                     Mr. Irvine Hodge, has anyone
                     forced you in any way to enter a
                     plea to this charge?

       Irvine:       No, Your Honor.

       The Court:    Anybody threatened you or
                     promised you something?

       Irvine:       No, Your Honor.

       The Court:    When I say “promised,” I’m
                     talking about something other
                     than what we went over in the
                     plea agreement.

       Irvine:       No, Your Honor.

       The Court:    How about you, Mr. Devin
                     Hodge; anyone forced you,


                              9
                    forcing you now or bring any kind
                    of pressure on you to coerce you
                    in changing your plea?

      Hodge:        No, Your Honor. I’m doing it of
                    my own.

      The Court:    I’m sorry?

      Hodge:        I did it on my own will.

      The Court:    All right. Thank you. So Mr.
                    Irvine Hodge, if you were to enter
                    a plea of guilty, it would be your
                    own free and voluntary act?

      Irvine:       Yes, Your Honor.

      The Court:    Mr. Devin Hodge, you’ve already
                    agreed that that’s the case?

      Hodge:        Yes, Your Honor.

Both Irvine and Devin pleaded guilty to the second count of
the Third Superseding Indictment.

       In March 2002, Devin, Irvine and their co-defendant
were sentenced at the same hearing. At the hearing, Judge
Moore announced that he would hear allocutions from both
Devin and Irvine. Devin’s attorney responded: “Your Honor,
I hope by your hearing both allocutions, that the Court is not
fixed on a predisposition to sentence these brothers equally.”


                              10
Judge Moore replied: “Not necessarily. That’s why I want to
hear both of them.”

        Devin’s attorney argued that, pursuant to a provision of
the plea agreement, Devin had shown such extraordinary
acceptance of responsibility that the District Court should
depart downward five points from the Guidelines. The
attorney argued that Devin had been a “totally ignorant boy”
at the time of the Emerald Lady robbery and “fastidiously”
had turned his life around. Government counsel countered
that it was unlikely that Devin had turned his life around, as
the pre-sentencing report noted that Devin also was charged
with a murder that occurred five months after the murder at
the Emerald Lady. He concluded:

       [T]he point is, Your Honor, that someone that
       evil, to have complete transformation in a four-
       year period, it begs the question, is it genuine or
       isn’t it?

              And does the community at large have to
       wonder, once his sentence is completed and he’s
       released back into the community, whether it’s a
       genuine change or not.

                               ...

               We ask the Court to fashion a sentence
       that is fair, that is just, but that is also fair and
       just to [the victims of the shooting] and their
       families. Because Devin Hodge had his chance
       to be a positive influence in the community.


                                11
             Larry Davis [the owner of the Emerald
       Lady] was a positive influence in this
       community. He doesn’t get a second chance.
       His family doesn’t get a second chance.
       Gwendolyn Rawlins’ life has been completely
       traumatized. She doesn’t have a second chance.
       ...

              Once again, Mrs. Rawlins has asked to
       speak to the Court, but I ask the Court to
       fashion a sentence that is fair and just to the
       victims in this case.5

       After hearing a victim impact statement from Mrs.
Rawlins, who asked that Devin “bear the full penalty of the
law,” Judge Moore concluded that, in light of his knowledge
of the case, what he had heard at the change-of-plea hearing,
and the terms of the plea agreement, he had no alternative but
to sentence both of the Hodge brothers to life in prison. The
District Court entered its judgment, noting Devin’s guilty plea
and his life sentence, on March 6, 2002. Devin filed a notice
of appeal on March 26, 2002, arguing solely that the District
Court ignored Third Circuit law on “exceptional post[-
]offense rehabilitation.” 6


       5
        Gwendolyn Rawlins, a security guard at the Emerald Lady,
was injured during the robbery.
       6
         The District Court exercised jurisdiction over this case
under 48 U.S.C. § 1612 (providing the District Court of the Virgin
Islands the jurisdiction of a District Court of the United States) and
4 V.I.C. § 32 (providing the District Court of the Virgin Islands
original jurisdiction in all causes arising under the Constitution,

                                 12
                                 II.

                                 A.

       Devin argues on appeal that at his sentencing the
government reneged on its promise in the plea agreement to
recommend no specific sentence. He contends the
government implicitly requested a life sentence by rhetorically
asking, “does the community at large have to wonder once his
sentence is completed and he’s released back into the
community, whether it’s a genuine change or not?” He also
maintains that the government impliedly sought a life
sentence by asking for a sentence that was “fair and just” to
the victims of his alleged crime, including the wife of the
deceased owner of the Emerald Lady. Even if such breaches
were inadvertent, Devin contends, vacatur of his sentence
would be required because under Santobello v. New York, 404
U.S. 257 (1971), prosecutors must carefully be held to plea
agreements.7

       While Devin does not claim to have raised his breach-
of-plea argument at sentencing, we may consider that
argument under United States v. Moscahlaidis, 868 F.2d 1357



treaties, and laws of the United States). We have appellate
jurisdiction under 28 U.S.C. § 1291 over this timely appeal from a
final order. See Hodge, 211 F.3d at 75.
       7
        Devin adds other breach-of-plea arguments on appeal,
including that the government failed to advise the District Court of
the nature and extent of his cooperation. We do not reach these
arguments, as we conclude on other grounds that the government
breached its agreement.

                                 13
(3d Cir. 1989). There, the government argued that the
defendant-appellant waived his breach-of-plea argument by
failing properly to object at his sentencing hearing. 868 F.2d
at 1360. “Even if we agree that appellant did not properly
object to the plea agreement violation at the sentencing
hearing,” we stated, “such failure does not constitute a
waiver.” Id. We rejected the notion that breach-of-plea
arguments should be reviewed for plain error, and instead
held that we must exercise plenary review. Id. See also
United States v. Queensborough, 227 F.3d 149, 156 (3d Cir.
2000) (“whether the government violated the terms of a plea
agreement is a question of law subject to plenary review”).

        We have considered in numerous precedential opinions
whether the government breached a plea agreement by what it
said at sentencing. While our inquiry in such cases tends to
be fact-specific, the basic rules are clear. The government
must “adhere strictly to the terms of the bargains it strikes
with defendants.” Queensborough, 227 F.3d at 156.8


          8
              This doctrine frequently is traced to Santobello, which
states:

          This phase of the process of criminal justice, and
          the adjudicative element inherent in accepting a plea
          of guilty, must be attended by safeguards to insure
          the defendant what is reasonably due in the
          circumstances. Those circumstances will vary, but
          a constant factor is that when a plea rests in any
          significant degree on a promise or agreement of the
          prosecutor, so that it can be said to be part of the
          inducement or consideration, such a promise must
          be fulfilled.


                                      14
Because defendants entering pleas forfeit a number of
constitutional rights, “courts are compelled to scrutinize
closely the promise made by the government in order to
determine whether it has been performed.” Id. The question
for a reviewing court is “whether the government’s conduct is
consistent with the parties’ reasonable understanding of the
agreement.” Id. In other words, we apply contract law
standards to plea agreements; a “rigidly literal” interpretive
approach is not allowed. United States v. Nolan-Cooper, 155
F.3d 221, 236 (3d Cir. 1998).

        The logical thread running through our relevant cases
is most easily traced chronologically. In United States v.
Crusco, 536 F.2d 21 (3d Cir. 1976), the government promised
to take no position on sentencing. Id. at 23. Yet, at the
sentencing hearing, the prosecutor stated that, “[a]s to
defendant’s status, elevation in organized crime hierarchy. . . .
I think this shows the type of individual he is. I think it shows
the importance in organized crime that he has and also shows
the danger to the community that this man has by being out on
the street.” Id. at 25. We held that the government’s
characterization was “a transparent effort to influence the
severity of [appellant’s] sentence.” Id. at 26. We reasoned
that “[o]nly a stubbornly literal mind would refuse to regard
the Government’s commentary as communicating a position
on sentencing[,]” and concluded that “[t]he government’s
final argument that it would have breached the plea bargain
only if it had actually recommended the terms of a sentence is
thus answered. We believe that such a strict and narrow
interpretation of its commitment is untenable and we must


404 U.S. at 262-63.

                               15
reject it.” Id. at 26. On remand, the appellant was allowed to
withdraw his guilty plea. Id. at 27.

        In contrast, the prosecutor in United States v. Miller,
565 F.2d 1273 (3d Cir. 1977) (per curiam), pledged to make
no recommendation regarding the sentence to be imposed. Id.
at 1274. At the sentencing hearing, the government argued
that the appellant’s crime could not be excused by inducement
because the alleged inducement occurred a year-and-a-half
before the crime. Id. at 1274. The appellant maintained that
this statement amounted to a sentencing recommendation.
We explained that, under Crusco, the promise to take no
position as to sentencing was different than the promise to
make no recommendation as to the terms of the sentence. Id.
at 1275. We concluded that Miller presented the latter
situation:

       Here, the Government has specifically promised
       only not to make recommendation as to the
       sentence. The difference between the terms is
       elementary, for the promise not to recommend is
       narrow, speaking only to the sentence to be
       imposed, whereas a promise to take no position
       speaks to no attempt at all to influence the
       defendant’s sentence.

Id. Accordingly, we held that the government did not breach
its agreement not to recommend a sentence by arguing that the
appellant’s excuse for his criminal activity was invalid, and
we affirmed the District Court’s judgment. Id.

       We further elaborated on the distinction between


                              16
taking no position as to a sentence and not recommending a
sentence in Moscahlaidis. In that case, the government
vowed that it would “not take a position relative to whether or
not a custodial sentence shall be imposed on [appellant] but . .
. will recommend to the sentencing Judge that if a custodial
sentence is imposed on [appellant], it will not exceed one
year.” Id. at 1358. In its sentencing memorandum, the
government referred to the appellant’s “moral bankruptcy,”
denounced his “demonic” efforts to preserve his “fetid
empire,” and stated that he was “not just a white-collar
criminal.” Id. at 1359. The memorandum concluded that, per
its plea agreement, the United States would not recommend a
sentence; “however, should the court elect to impose a
custodial sentence on [appellant], the United States is bound
to recommend that the custodial term not exceed one year
imprisonment.” Id. The memorandum added that “[t]his
recommendation is part of the plea agreement between the
defendant and the United States. It is not binding upon the
court.” Id.

        We rejected the government’s argument that it kept its
agreement. “If the government wanted to be limited only to
not recommending a sentence,” we declared, “it should have
promised not to recommend a sentence. Instead, the
prosecutor promised to take no position as to whether a
custodial sentence should be imposed. The government must
strictly comply with the terms of the agreement it made with
appellant.” Id. at 1362-63. We held “that the statements
made by the prosecutor which offered opinions and drew
conclusions about appellant’s character violated the terms of
the plea agreement.” Id. Further, we held that the
government’s “comment about [appellant] not being ‘just a


                               17
white collar criminal’ was taking [a] position relative to
whether a custodial sentence be imposed and thus violated the
plea agreement.” Id. We explained that in this Circuit “the
rule is to remand the case to the district court for it to
determine whether to grant specific performance or allow
withdrawal of the plea.” Id.

        In the present case, the government promised to “make
no specific sentencing recommendation other than to request
that the sentence be within the guideline range.” We first
must determine what Devin “reasonably understood [he]
would be receiving from the government in return for [his]
plea of guilty.” Nolan-Cooper, 155 F.3d at 239. Though
“reasonably understood” suggests a partially subjective
inquiry, in practice the inquiry is purely objective. See id.
(stressing the plain language of the agreement and eschewing
a “rigidly literal” interpretive approach). We conclude that a
reasonable person would have understood the plain language
of Devin’s plea agreement to mean that the government
would not make any specific sentencing recommendation.
The government apparently agrees, as it argues that nothing it
said at sentencing “explicitly, indirectly, or tacitly
recommended a life sentence.”

       The government broke its promise. The prosecutor
asked “whether the community at large [had] to wonder, once
[Devin’s] sentence is completed and he’s released back into
the community, whether [he made] a genuine change or not.”
The plain implication of that statement was that Devin should
not be released back into the community. The prosecutor
added that Devin “had his chance to be a positive influence in
the community.” The plain implication of that statement was


                              18
that Devin should not be given another chance to be a positive
influence in the community. The prosecutor stated that the
murder victim did not get a second chance to be a positive
influence in the community and urged the Court to “fashion a
sentence that is fair and just to the victims in this case.” The
plain implication of that statement was that a fair and just
sentence for Devin would deny him a second chance.9 In
short, “[o]nly a stubbornly literal mind would refuse to regard
the Government’s commentary as communicating a [specific
recommendation] on sentencing.” Crusco, 536 F.2d at 26.
By recommending a “life sentence in all but name,” United
States v. Pollard, 959 F.2d 1011, 1024 (D.C. Cir. 1992), the
government breached its agreement with Devin.

        This holding accords with Moscahlaidis, Miller, and
Crusco. In Moscahlaidis, we warned that “[i]f the
government wanted to be limited only to not recommending a
sentence, it should have promised not to recommend a
sentence. Instead, the prosecutor promised to take no position
. . . . The government must strictly comply with the terms of
the agreement it made with appellant.” 868 F.2d at 1358.
Here, evidently seeking to leave its allocution options open,
the government not only promised not to recommend a
sentence, it promised not to recommend a “specific” sentence.
Fairly construing its allocution, however, the government
breached even that narrow promise. While Moscahlaidis and
Miller encourage the government to use “no
recommendation” language to preserve linguistic leeway at


       9
       We think this is especially true given that Mrs. Gwendolyn
Rawlins, one of Devin’s alleged victims, asked at sentencing that
Devin “bear the full penalty of the law.”

                               19
sentencing, that leeway is not infinitely elastic. Indeed,
Moscahlaidis declares that the government will be “limited”
to its promise not to recommend a sentence. Id. As the
government here exceeded those broad limits, this case aligns
with Moscahlaidis or Miller, and fundamentally fits with
Crusco. As in Crusco, we will remand for the District Court
to determine whether to grant specific performance or allow
withdrawal of the guilty plea. See Moscahlaidis, 868 F.2d at
1358.10

                                B.

       Devin further argues on appeal that the District Court’s
plea colloquy was deficient because the District Judge did not
know Devin’s plea was contingent on Irvine’s identical plea,


       10
          We believe our decision today also accords with the
holding in Pollard, which somewhat resembles this case. In
Pollard, the government “stated it would seek a ‘substantial period
of incarceration,’ but agreed not to ask for a life sentence.” 959
F.2d at 1022. Pollard maintained that the government’s forceful
allocution implied to the district judge that a life sentence was
appropriate. Id. at 1024; see also id. at 1035 (“the repeated use of
superlatives implied an appeal for the maximum.”) (Williams, J.,
dissenting). The majority held that the district court avoided clear
error in concluding otherwise, explaining that “[t]he government
did not ask for a ‘life sentence in all but name,’ because it never
introduced explicitly or implicitly the notion or concept of a
maximum sentence; nor did it ever use words that could be thought
synonymous with a life term.” Id. at 1024 (Silberman, J., joined by
Ginsburg, R. B., J.). In contrast to Pollard, here the government
introduced, implicitly, the notion of a maximum sentence; indeed,
it did so clearly and repeatedly. Consequently, even if we were to
apply Pollard’s deferential standard of review, we have no doubt
that the government violated its plea agreement.

                                20
and vice versa. Had the District Court been properly
informed about the package deal and had Devin been properly
questioned, he contends that he would have been dissuaded
from pleading guilty. He adds that the District Court also
erred by failing to ask whether his willingness to plead guilty
“result[ed] from prior discussions between the attorney for the
government and the defendant or the defendant’s attorney.”
Fed. R. Crim. P. 11(d) (repealed in relevant part); United
States v. Mustafa, 238 F.3d 485, 491 (3d Cir. 2001).

        United States v. Vonn, 535 U.S. 55 (2002), held that a
defendant who fails to object to Rule 11 error must carry the
burden of showing on appeal that the error was “plain,
prejudicial, and disreputable to the judicial system.” Id. at 65.
In other words, a defendant must show that: “(1) an error was
committed; (2) the error was plain, that is, clear and obvious;
and (3) the error affected the defendant’s substantial rights.”
United States v. Dixon, 308 F.3d 229, 234 (3d Cir. 2002)
(quoting United States v. Syme, 276 F.3d 131, 143 (3d Cir.
2002)). When those elements are satisfied, an appellate court
in its discretion may order a correction if the error “seriously
affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (citing United States v. Stevens, 223 F.3d
239, 242 (3d Cir. 2000)).

       We conclude that the District Court did not commit
plain error during the Rule 11 colloquy. Though the terms of
the packaging agreement have not been disclosed to us, the
government does not dispute that Devin’s and Irvine’s pleas
were locked. And, indeed, the government’s cover letter to
the final draft plea agreement states that the pleas were
“lock[ed].” As we explain below, other Courts of Appeals


                               21
require disclosure of such arrangements to the district court,
which must exercise special care at the Rule 11 colloquy to
ensure that each participant pleads voluntarily. Until today,
however, that was not the law in this Circuit. Heretofore, we
have discussed package deal plea bargains only in dicta, and
there stated simply that such bargains are “permissible
provided that the defendant’s decision to forego trial is
otherwise voluntary.” United States v. Seligsohn, 981 F.2d
1418, 1426 (3d Cir. 1992) (noting that voluntariness of
appellant’s plea was “not properly before” the Court).
Consequently, even if the District Court had been informed
that Devin’s plea was packaged, we cannot say that failure to
conduct Devin’s colloquy with special care would have been
“clear and obvious” error. Dixon, 308 F.3d at 233-34. Cf.
United States v. Abbott, 241 F.3d 29, 34 (2d Cir. 2001)
(“[T]he disclosure of the existence of a package deal is crucial
at the Rule 11 hearing so that the district court may probe as
deeply as needed into the possibility that one defendant is
pleading guilty against his will . . . .”) (emphasis added). It
follows a fortiori that failure to provide special care was not
clear and obvious error where, as here, the District Court was
not informed of the package deal.11

        Nor can we say that the District Court plainly erred in
failing to ask Devin about prior discussions with the
government under Rule 11(d). Since Devin’s colloquy in
2000, Rule 11(d) has been moved and changed. Now, Rule



       11
          Absent clear error, we need not consider whether the
District Court’s Rule 11 colloquy affected Devin’s substantial
rights or jeopardized the fairness, integrity, or public reputation of
judicial proceedings. See Dixon, 308 F.3d at 233-34.

                                  22
11(b)(2), rather than Rule 11(d), addresses voluntariness, and
the reference to prior discussions has been deleted. The
Supreme Court has instructed that, “in the absence of a clear
legislative mandate, the Advisory Committee Notes provide
insight into the meaning of a rule, especially when, as here,
the rule was enacted precisely as the Advisory Committee
proposed.” Vonn, 535 U.S. at 63 n.6. We think the omission
of references in the new Rule 11 to prior discussions
establishes a “clear legislative mandate” that such references
are unnecessary to conduct an adequate Rule 11 colloquy. If
there were any doubt on that issue, the Advisory Committee
explains that the old requirement, “often a source of
confusion to defendants who were clearly pleading guilty as
part of a plea agreement with the government, was considered
unnecessary.” Advisory Committee’s Notes on 2002
Amendments to Fed. R. Crim. P. 11. Whether or not the
District Court committed a “clear and obvious” error that
affected Devin’s substantial rights, it is thus clear that the
District Court’s omission did not “seriously affect the
fairness, integrity, or public reputation” of the District Court’s
proceedings. See Dixon, 308 F.3d at 233-34.

        While we hold that the District Court committed no
plain error, we believe that determining voluntariness in
package deal situations is an especially delicate matter. We
therefore write to provide guidance to the District Court
should a new plea colloquy be necessary on remand, and to
assist future district courts considering such pleas.

       As their name suggests, package deal plea bargains
exist where the government accepts a defendant’s guilty plea
on the condition that his co-defendant(s) also plead guilty.


                               23
The incentive to join such arrangements is straightforward:
the government offers defendants a “volume discount - a
better deal than each could have gotten separately.” United
States v. Caro, 997 F.2d 657, 658 (9th Cir. 1993). Of course,
the benefits of such deals are seldom distributed evenly, and
every defendant may not be equally interested in bargain
shopping. Familial or fraternal coercion of putative
confederates in package plea deals is a serious concern, see
United States v. Mescual-Cruz, 387 F.3d 1, 7 (1st Cir 2004),
as to some extent is self-imposed pressure. See id.; United
States v. Marquez, 909 F.2d 738, 742 (2d Cir. 1990). Though
reserving judgment on the question, the Supreme Court has
warned that “offers of leniency or adverse treatment for some
person other than the accused . . . might pose a greater danger
of inducing a false guilty plea by skewing the assessment of
the risks a defendant must consider.” Bordenkircher v.
Hayes, 434 U.S. 357, 365 n.8 (1977). Mindful of these
considerations, other Courts of Appeals widely require that
(1) package plea deals be disclosed to the court12 and (2)


       12
          United States v. Daniels, 821 F.2d 76, 78-79 (1st Cir.
1987) (Breyer, J.) (holding that government failure to tell court at
Rule 11 hearing that plea was packaged violated Rule 11); United
States v. Clements, 992 F.2d 417, 419 (2d Cir. 1993) (per curiam)
(stating that disclosure of plea packaging is the “preferred practice”
and the “more prudent course,” and that packaging “should be
stated to the court.”); United States v. Bennett, 332 F.3d 1094,
1101 (7th Cir. 2003); United States v. Caro, 997 F.2d 657, 659-60
(9th Cir. 1993); United States v. Holland, 117 F.3d 589, 594 (D.C.
Cir. 1997) (district court “should be informed” about plea
packaging). See United States v. Morrow, 914 F.2d 608, 613 (4th
Cir. 1990) (stating that failure to inform court of packaged pleas
“raise[d] eyebrows” of Court of Appeals). Cf. United States v.
Usher, 703 F.2d 956, 958-59 (6th Cir. 1983) (holding that District

                                 24
colloquies with package plea participants be conducted with
special care.13 We agree, and adopt these requirements for
district courts in this Circuit considering packaged pleas.

       There is no question that package deal plea bargains
are constitutional. See Pollard, 959 F.2d at 1021-22 (citations
omitted). That conclusion is nearly axiomatic given the
nature of our criminal justice system, of which plea bargains
are an “essential part.” Santobello, 404 U.S. at 261; see also



Court did not err in not “raising sua sponte the possibility of
conditions [on defendant’s plea] even though appellant and his co-
defendant were husband and wife and even though both pleaded
guilty at the same time”).
       13
          United States v. Tursi, 576 F.2d 396, 398 (1st Cir. 1978)
(holding that “special care must be taken to ascertain the
voluntariness of the [packaged] guilty plea”); Harman v. Mohn,
683 F.2d 834, 837-38 (4th Cir. 1982); Usher, 703 F.2d at 958;
Politte v. United States, 852 F.2d 924 (7th Cir. 1988); United
States v. Castello, 724 F.2d 813, 815 (9th Cir. 1984). See United
States v. Nuckols, 606 F.2d 566, 570 (5th Cir. 1979) (holding that
special care must be taken to determine voluntariness where plea
agreement is “made in consideration of lenient treatment as against
third persons”); United States v. Wright, 43 F.3d 491 (10th Cir.
1994) (same). See also Martin v. Kemp, 760 F.2d 1244, 1247
(11th Cir. 1985) (holding that evidence as to voluntariness of guilty
plea, allegedly entered in exchange for leniency toward defendant’s
pregnant wife, was not sufficiently developed on collateral review)
(citing Nuckols, 606 F.2d at 569). But see United States v.
Gamble, 327 F.3d 662 (8th Cir. 2003) (requiring, implicitly, no
special care where pleas are packaged); LoConte v. Dugger, 847
F.2d 745, 753 (11th Cir. 1988) (same; collateral review); United
States v. Farley, 72 F.3d 158, 164 (D.C. Cir. 1995) (requiring
“more searching inquiry” at Rule 11 colloquy only if defendant
expresses reluctance when asked about threats or coercion).

                                 25
Blackledge v. Allison, 431 U.S. 63, 71 (1977). “While
confronting a defendant with the risk of more severe
punishment clearly may have a discouraging effect on the
defendant’s assertion of his trial rights,” the Supreme Court
has explained, “the imposition of these difficult choices [is]
an inevitable – and permissible – attribute of any legitimate
system which tolerates and encourages the negotiation of
pleas.” Bordenkircher, 434 U.S. at 364. In turn, the Second
Circuit has noted that, “[s]ince a defendant’s plea is not
rendered involuntary because he enters it to save himself
many years in prison, it is difficult to see why the law should
not permit a defendant to negotiate a plea that confers a
similar benefit on others.” Marquez, 909 F.2d at 742. We
agree and hold that package deal plea bargains are
constitutionally permissible. See Seligsohn, 981 F.2d at 1426.

        Though allowed, package deal pleas pose special risks,
particularly when a trial court is unaware that defendants’
pleas are tied together. The First Circuit, which has an
extensive jurisprudence in this area, most often has reversed
package deal pleas when the district court was not informed
of the packaging. Mescual-Cruz, 387 F.3d at 8. According to
the First Circuit’s sound reasoning, when a defendant’s plea
rests on a promise by the government that another defendant
will benefit, that promise is a material term of the agreement.
Abbott, 241 F.3d at 33. See also United States v. Hernandez,
79 F.3d 1193, 1194 (D.C. Cir. 1996). And, of course, “[f]ull
disclosure to the district court of the material terms of plea
agreements is necessary to insure that the Rule 11 colloquy is
thorough and searching as to defendant’s knowing, intelligent,
and voluntary waiver of the right, among others, to a jury
trial.” Abbott, 241 F.3d at 33. We therefore hold that the


                              26
parties must notify the district court that a package deal exists
and state to the court on the record the specific terms of that
deal. See Fed. R. Crim. P. 11(c)(2) (“The parties must
disclose the plea agreement in open court . . . .”); Hernandez,
79 F.3d at 1194 (citing United States v. Roberts, 570 F.2d
999, 1007 n.25 (D.C. Cir. 1977)).14

       Once a court has been told of a package deal, special
care should be exercised during the Rule 11 plea colloquy to
ensure that the defendant is pleading voluntarily. Other
Courts of Appeals have studiously declined to dictate detailed
“special care” marching orders. See, e.g., Mescual-Cruz, 387
F.3d at 8 (“We have not . . . mandated that extra procedures
be followed . . . .”). We share their caution. More than three
decades ago, the Supreme Court warned that the “[t]he nature


       14
          Two Courts of Appeals have suggested that the duty to
disclose plea packaging “falls with particular weight on
prosecutors[,] who have a responsibility not merely to win, but to
win fairly.” Caro, 997 F.2d at 659 n.2; Clements, 992 F.2d at 419
(recommending prosecutorial disclosure as the “preferred
practice”). Other Courts of Appeals expressly require prosecutorial
disclosure yet are silent regarding defense counsel’s commensurate
duty, if any. Mescual-Cruz, 387 F.3d at 9 (requiring prosecutorial
disclosure); Bennett, 332 F.3d at 1101 (same). We of course
recognize that defendants, not prosecutors, face the danger of
skewed assessment of risks when package deal plea bargains are at
stake. See Bordenkircher, 434 U.S. at 365 n.8. Descriptively,
prosecutors thus may be more likely actually to disclose package
deal pleas than their counterparts. But that does not absolve
defense counsel from their express duty under Rule 11 to notify the
court of the material terms of the plea agreement. Prescriptively,
as officers of the court, defense counsel have no less of a duty to
follow the rules of disclosure than prosecutors. That duty includes
disclosing that a plea bargain is a package deal.

                                27
of the inquiry required by Rule 11 must necessarily vary from
case to case,” McCarthy v. United States, 394 U.S. 459, 467
n.20 (1969), and it recently reiterated that “Rule 11 should not
be given such a crabbed interpretation that ceremony was
exalted over substance.” Vonn, 535 U.S. at 70. With Rule 11,
Congress decided to “strip district judges of freedom to
decide what they must explain to a defendant who wishes to
plead guilty, but not to tell them precisely how to perform this
important task in the great variety of cases that would come
before them.” United States v. Saft, 558 F.2d 1073, 1079 (2d
Cir. 1977) (Friendly, J.) (emphasis in original). As Rule 11
does not suggest that its requirements can be met solely by
reading its elements verbatim, id., we think it would be
presumptuous for us to add to the Rule our own miniature
litany.

       What then in general terms is “special care”? At the
threshold, a district court notified of a package deal plea
bargain should question counsel closely to ensure that the
precise terms of the package plea deal are on the record. See
Fed. R. Crim. P. 11(b)(2), 11(c)(2). Once it is clear exactly
how a defendant’s plea benefits his confederate(s), it may be
helpful to ask who first proposed the package deal, see United
States v. Politte, 852 F.2d 924, 930-31 (7th Cir. 1988), how
extensively defense counsel was involved in developing the
deal, see United States v. Usher, 703 F.2d 956, 958 (6th Cir.
1983), and what benefit the defendant expects to gain from
the deal. See United States v. Buckley, 847 F.2d 991, 995 (1st
Cir. 1988). When asking whether a plea is a product of force,
threats, or inducements and the like, a district court should
take care not to ask only whether the prosecutor forced,
threatened, or coerced the defendant, but whether anyone did
so. United States v. Martinez-Molina, 64 F.3d 719, 734 (1st
Cir. 1995). Having so inquired, the court should be
particularly attuned to even mild expressions of reluctance by
a defendant. See United States v. Farley, 72 F.3d 158, 164


                              28
(D.C. Cir. 1995); United States v. Daniels, 821 F.2d 76, 79
(1st Cir. 1987). Such expressions always should trigger a
more searching inquiry. See Farley, 72 F.3d at 164. On the
other hand, as none of the defendants may be particularly
eager to plead guilty, one defendant’s expressions of
reluctance should be compared to those of other defendants
involved in the package deal. See United States v. Morrow,
914 F.2d 608, 613 (4th Cir. 1990) (refusing to grant writ of
habeas corpus where son claimed to have pleaded
involuntarily, but testimony indicated that father claimed at
change-of-plea hearing that he was pleading to help son).

       The foregoing is not a checklist that, if followed,
automatically will prevent a Rule 11 colloquy from going
awry. Rather, it is a summary of lessons drawn from
colloquies evaluated by other Courts of Appeals. The
overarching rule is that a district court considering a package
plea deal should be particularly attentive to a defendant’s
responses to voluntariness questions throughout a plea
colloquy. That being said, district courts of course should
remember that package deal plea bargains are not inherently
coercive, and that the judge’s goal is not to doom the deal but
simply to ensure that the defendant’s plea is voluntary.

       We recognize that Rule 11 colloquies have grown in
length since their formal adoption, Vonn, 535 U.S. at 62, and
we only cautiously augment their manifold considerations.
United States v. Clements, 992 F.2d 417, 420 (2d Cir. 1993).
Nevertheless, when the government risks inducing false guilty
pleas by packaging pleas together, Bordenkircher, 434 U.S. at
365 n.8, justice and prudence require that the district court be
notified and pay special care.

                              III.

       For the foregoing reasons, we will vacate the sentence


                              29
of the District Court and remand Devin Hodge’s case for re-
sentencing or withdrawal of his guilty plea.




                             30
