Plea Agreement
Drafts an enforceable plea agreement formalizing the negotiated resolution of criminal charges between defendant and prosecution, compliant with Fed. R. Crim. P. 11 or state equivalents.
Prerequisites
Gather before drafting:
- Case info — case number, court, presiding judge, full caption
- Charge sheet — all original charges with statute citations and max penalties
- Negotiated terms — plea charges, dismissed charges, sentencing concessions
- Factual basis — agreed facts establishing each element of plea offense(s)
- Defendant info — full legal name, aliases, DOB
- Cooperation terms (if any) — debriefing, testimony, ongoing obligations
Quick Start
- Collect all prerequisites above
- Identify agreement type (Rule 11(c)(1)(A), (B), or (C); or state equivalent)
- Draft sections in order below
- Run through the pitfalls checklist before finalizing
Document Sections
Draft these sections in order:
1. Parties & Jurisdiction
| Field | Content |
|---|
| Defendant | Full name, aliases/AKAs, DOB, case number |
| Prosecution | Office (USAO / DA), assigned prosecutor |
| Court | Name, district/division, presiding judge |
| Jurisdictional basis | Statutory authority |
2. Charges & Plea Specification
- Table all original charges: count number, statute, offense, max penalty
- Table plea charges: counts defendant pleads to (guilty or nolo contendere)
- List dismissed/not-pursued charges
- If charge reduction: state both original and reduced charge explicitly
- Include voluntariness statement
3. Factual Basis
Stipulated facts establishing every element of each plea offense. Must cover:
- Date, time, location of offense
- Defendant's conduct constituting the crime
- Victims, co-conspirators, relevant parties
- Mental state / intent as required by statute
- Aggravating or mitigating circumstances relevant to sentencing
Write so defendant can acknowledge as true. This stipulation binds defendant and may be used in subsequent proceedings.
4. Sentencing Recommendations
Identify the agreement type:
| Type | Effect |
|---|
| Rule 11(c)(1)(A) | Charge dismissal / non-prosecution agreement |
| Rule 11(c)(1)(B) | Non-binding recommendation — court may reject |
| Rule 11(c)(1)(C) | Binding sentence — defendant may withdraw if court rejects |
For state cases, cite the equivalent rule.
Include as applicable: incarceration/probation recommendation, fines, restitution and payment schedule, supervised release conditions, forfeiture terms, guideline calculations, departure/variance positions, government sentencing posture, defendant's right to request different sentence.
5. Rights Waived & Retained
Waived:
- Jury trial and confrontation of witnesses
- Privilege against self-incrimination
- Compulsory process for defense witnesses
- Appeal (specify scope: sentence, conviction, or both)
- Post-conviction relief (specify exceptions: ineffective assistance, prosecutorial misconduct)
- Speedy Trial Act rights
Retained:
- Challenge illegal sentence
- Challenge voluntariness of plea
- Any other negotiated retained rights
Include confirmation defendant discussed waivers with counsel.
6. Additional Terms
Address as applicable:
- Cooperation obligations (testimony, debriefings, law enforcement cooperation)
- Related civil/administrative proceeding agreements
- Media contact restrictions
- Breach provisions — consequences for each party's breach
- Government's right to reinstate dismissed charges upon defendant's breach
7. Acknowledgments
Defendant affirms:
- Plea is voluntary — no force, threats, or undisclosed promises
- Reviewed agreement with counsel; understands all terms
- Satisfied with counsel's representation
- Understands charges and potential penalties
- Mentally competent; not under influence of substances
- Agreement constitutes entire understanding (integration clause)
8. Signature Blocks
Include signature lines with date fields for:
- Defendant — full name
- Defense counsel — name, bar number, certification that agreement was explained and plea is voluntary and knowing
- Prosecutor — name, title, office
- Judge — if required by local rules
Pitfalls & Checks
