THE USE OF PAROL EVIDENCE IN INTERPRETATION OF PLEA

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THE USE OF PAROL EVIDENCE IN INTERPRETATION OF

PLEA AGREEMENTS

Tina M. Woehr

I

NTRODUCTION

Sami Amin Al-Arian, exhausted by his ongoing and lengthy criminal case, decided to strike a plea deal with prosecutors. Later, faced with a subpoena to testify before a grand jury, Mr. Al-Arian refused to cooperate. He claimed that in exchange for his plea, the government had agreed not to require further testimony on other matters. Thus, he argued, the subpoena violated the terms of his plea agreement.

1 In United

States v. Al-Arian , Mr. Al-Arian, the prisoner-petitioner, filed a postconviction motion seeking not rescission of his guilty plea, but instead specific enforcement of what he claimed to be the terms.

2 Ultimately, the appellate court sided with the government, finding that the terms of the agreement were “clear” and “unambiguous.” 3 The Eleventh Circuit’s per curiam opinion rejected Al-Arian’s claims, which were based on agreements and statements made by the government during the course of his plea negotiations.

4 The court noted that the government might have misled Al-Arian, but stated that the government’s behavior could not change the written terms of the plea agreement, 5 which carried an integration clause 6 disavowing any other agreements.

7

1. United States v. Al-Arian, 514 F.3d 1184 (11th Cir. 2008) (per curiam), cert.

denied, 129 S. Ct. 288 (2008). Specifically, Al-Arian was seeking judicial enforcement of the plea agreement. He claimed that the during negotiations, the government agreed not to seek his testimony on other matters, “whether offered voluntarily or compelled by a subpoena.” Id. at 1187.

2. Id. at 1188.

3. Id. at 1194.

4. Id. at 1188.

5. Id. at 1193.

6. While students of contracts might also be familiar with the term “merger clause,” courts in the plea context tend to use the blanket term “integration clause.” Regardless, both terms refer to the “clause [in a writing that] recites that the written agreement is the parties’ final expression of their intentions,” often disavowing other agreements. Alan

Schwartz & Robert E. Scott, Contract Theory and the Limits of Contract Law, 113 Yale L.J.

541, 589 n.93 (2003). These clauses declare to the reader and judge “that the parties intended their writing to be interpreted as if it were complete,” and can serve as persuasive evidence of a complete and integrated agreement. Id. at 547. In this case, Mr. Al-Arian’s plea agreement carried a clause stating that it “constitute[d] the entire agreement between

[the parties] with respect to the aforementioned guilty plea and no other promises, agreements, or representations exist or have been made to the defendant or defendant’s attorney with regard to such guilty plea.” Plea Agreement at 14, Al-Arian, 514 F.3d 1184

(No. 8:03-CR-77-T30TBM), available at http://www.flmd.uscourts.gov/Al-Arian/8-03-cr-

00077-JSM-TBM/docs/2929176/0.pdf (on file with the Columbia Law Review ); see also Al-

Arian , 514 F.3d at 1187 (per curiam) (quoting integration clause). An integration clause can be found in most contracts. It essentially locks in the terms of the agreement to those expressed in the instrument. “An integrated agreement is a writing or writings constituting

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 841

While the outcome might offend some readers’ sense of fairness, the

Al-Arian court simply applied standard contract law principles. Because the court found the agreement to be an integrated and complete document, it would not permit Al-Arian to alter the terms later based on alleged prior oral insinuations or agreements.

8

Courts employ contracting principles when establishing and interpreting plea agreement terms, explicitly using language, doctrine, and remedies from commercial contracts law to solve disagreements over the meaning of disputed terms.

9 The contractual aspects of plea agreements have been thoroughly parsed by legal scholars.

10 This comparison has limits, however, as Judge Easterbrook explained: “Courts use contract as an analogy when addressing claims for the enforcement of plea bargains, excuses for nonperformance, or remedies for their breach. But plea bargains do not fit comfortably all aspects of either the legal or the economic model.” 11 The unique bargaining positions of the parties and the high stakes create special due process concerns even though contract law, a final expression of one or more terms of an agreement.” Restatement (Second) of

Contracts § 209(1) (1981). For another example of typical integration clause language, see infra note 110 and accompanying text.

7. See infra notes 159–163 and accompanying text (discussing court’s analysis of Al-

Arian’s plea agreement).

8. See Restatement (Second) of Contracts § 209(3) (“Where the parties reduce an agreement to a writing which in view of its completeness and specificity reasonably appears to be a complete agreement, it is taken to be an integrated agreement unless it is established by other evidence that the writing did not constitute a final expression.”).

9. See Santobello v. New York, 404 U.S. 257, 260 (1971) (granting defendant relief when government failed to fulfill bargain that induced him to plead guilty). A seminal case, Santobello laid the foundation for the use of contract law principles in the interpretation of plea bargain terms. See United States v. Alexander, 869 F.2d 91, 94–95

(2d Cir. 1989) (noting Santobello ’s adoption of “traditional contact remedies” for breach of plea agreement terms).

Santobello is also widely cited as the case that established the legitimacy of plea bargaining itself. For a discussion of the case, see infra notes 34–42 and accompanying text. For a more explicit use of contract language, see infra note 13 and accompanying text.

10. In the early 1990s, some prominent legal minds—Robert Scott, William Stuntz,

Frank Easterbrook, and Stephen Schulhofer—engaged in a debate published in a special symposium issue on punishment in the Yale Law Journal over the merits of these very special contracts. Scott and Stuntz explicitly framed their piece using a contract law framework of analysis, but contract language and principles permeated all three pieces.

See Frank H. Easterbrook, Plea Bargaining as Compromise, 101 Yale L.J. 1969, 1978 (1992)

(“Autonomy and efficiency support [plea bargains]. ‘Imperfections’ in bargaining reflect the imperfections of an anticipated trial.”); Stephen J. Schulhofer, Plea Bargaining as

Disaster, 101 Yale L.J. 1979, 2009 (1992) (arguing plea bargaining hurts both parties thanks to “pervasive structural impediments to efficient, welfare-enhancing transactions”);

Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909,

1910–11 (1992) (arguing that “classical contract theory supports the freedom to bargain over criminal punishment[,] . . . [but] fundamental structural impediments in the plea bargaining context . . . may underlie the widespread antipathy to the practice” by creating risk of unjust convictions of some innocent defendants).

11. Easterbrook, supra note 10, at 1974 (citing Ricketts v. Adamson, 483 U.S. 1

(1987); Mabry v. Johnson, 467 U.S. 504 (1984); Santobello , 404 U.S. 257).

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842 COLUMBIA LAW REVIEW [Vol. 110:840 born in a commercial context, governs the interpretation of a plea agreement.

12 In United States v. Harvey , another case of contested plea agreement terms, the Fourth Circuit pointed to two characteristics of plea bargaining that might call for a modified application of private contract law principles:

First, the defendant’s underlying “contract” right is constitutionally based and therefore reflects concerns that differ fundamentally from and run wider than those of commercial contract law.

Second, with respect to federal prosecutions, the courts’ concerns run even wider than protection of the defendant’s individual constitutional rights—to concerns for the “honor of the government, public confidence in the fair administration of justice, and the effective administration of justice in a federal scheme of government.” 13

Professor Daniel Richman pointed to Harvey as an example of the use of the “ ‘fairness-based’ conception of contract” in the resolution of a plea dispute.

14 This conception of the plea bargain leads a court to “expansive rules that generally construe contractual ambiguities against the government and impose a broad duty of good faith dealing on prosecutors.” 15 This duty guards “defendants against many contingencies not explicitly addressed by their plea agreements.” 16

Despite the general consensus that contract principles play a strong role in plea agreement interpretation, federal circuit courts lack a unified doctrinal approach for deciding cases such as Mr. Al-Arian’s, thanks in part to the special concerns described above. To decide whether to admit evidence of agreements or promises that did not find their way into the text of the document, courts will turn to a contract law doctrine of

12. See United States v. Hamdi, 432 F.3d 115, 122–23 (2d Cir. 2005) (“Plea agreements, however, are ‘unique contracts, and we temper the application of ordinary contract principles with special due process concerns for fairness and the adequacy of procedural safeguards.’ ” (quoting United States v. Granik, 386 F.3d 404, 413 (2d Cir.

2004))).

13. 791 F.2d 294, 300 (4th Cir. 1986) (citation omitted) (quoting United States v.

Carter, 454 F.2d 426, 428 (4th Cir. 1972)).

14. Daniel C. Richman, Bargaining About Future Jeopardy, 49 Vand. L. Rev. 1181,

1213 (1996) [hereinafter Richman, Future Jeopardy]. Professor Richman adopts David

Charny’s “fairness-based” conception of contract for use in plea disputes. See David

Charny, Nonlegal Sanctions in Commercial Relationships, 104 Harv. L. Rev. 375, 386

(1990) (describing more “communitarian approach” that goes “beyond conceptions of contract based on free choice,” and offering employment contract as example). Richman compares this “fairness” framework with a very different line of Fourth Circuit plea interpretation cases involving unambiguous plea agreements, where the court views both parties as autonomous players, allowing the adjudicator to embrace a much stricter interpretation of the agreement text. Richman, Future Jeopardy, supra, at 1213–14. The

Fourth Circuit later distinguished the facts of Harvey from cases like these where “the plea agreement is unambiguous, and there is no evidence of governmental overreaching.” Id.

at 1214 n.125.

15. Richman, Future Jeopardy, supra note 14, at 1213.

16. Id.

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 843 interpretation called the parol evidence rule.

17 If the court finds an agreement to be a complete, or “integrated,” 18 contract, the parol evidence rule prevents parties to the agreement from pointing to “evidence of prior or contemporaneous agreements or negotiations” that contradict the contract terms.

19 Different circuits, however, differ in their application of the rule, especially when the contract at issue is a plea agreement.

Some hold that an integrated agreement precludes a party from presenting evidence of extratextual agreements. Other circuit courts follow suit, but are quick to find ways to let defendants challenging their guilty pleas triumph in opinions laced with language emphasizing special concerns intrinsic to plea agreements—implying the need for a more lenient application of the rule. Still other circuits, such as the Fourth Circuit, in the line of cases stemming from Harvey , will likewise eschew strict prohibitions if extrinsic evidence indicates any significant government “overreaching” during the course of negotiations.

20

This Note argues that courts should adopt the Fourth Circuit’s approach and allow extrinsic evidence into the picture only where the text of the plea agreement proves ambiguous or where the accused can present strong evidence of government overreaching, such as a prosecutor’s written promise made close in time to the plea agreement, but omitted from the text.

21 Part I of this Note paints the backdrop, explaining the goals and mechanics of both the plea bargain process and the parol evidence rule. Part II then examines the different approaches taken across circuits, and the resulting doctrinal confusion. Ultimately, Part III argues this confusion should be resolved by the uniform adoption of an approach modeled upon that of the Fourth Circuit.

I. B

ARGAINING FOR

G

UILTY

: C

ONTRACT

P

RINCIPLES AND

P

LEA

B

ARGAINS

The parties in a criminal case may opt to bypass the trial process by reaching an agreement, or plea bargain, through a negotiation process.

In other words, plea bargains are contracts, albeit very special contracts.

Plea bargains have proved crucial to the criminal justice system.

22 The parol evidence rule, on the other hand, is a fundamental doctrine of contractual interpretation studied by law students in first-year contracts courses and by transactional lawyers alike. This fundamental rule pre-

17. For more on the rule, see infra Part I.B.

18. For a discussion on completely integrated and partially integrated agreements, see infra notes 50–62 and accompanying text.

19. Restatement (Second) of Contracts § 215 (1981).

20. United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986); see also infra Part II.B

(describing overreaching approach). For elaboration on the doctrinal mess, see infra Part

II.

21. Restatement (Second) of Contracts § 215. For a fuller explanation of the rule, see infra Part I.B. For an example of such a promise in a cover letter but not in the plea agreement, see infra notes 141–146 and accompanying text.

22. See infra notes 24–25 and accompanying text (providing statistics about frequency of plea bargains).

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844 COLUMBIA LAW REVIEW [Vol. 110:840 vents any prior or contemporaneous agreements (oral or written) from modifying an integrated agreement.

23 More than mere commercial or monetary concerns, however, are at stake in the plea bargaining context.

A discussion of the interaction between the parol evidence rule and the plea agreement will first require an explanation of each.

Part I.A discusses the plea bargaining process, followed by Part I.B, which summarizes the history, purpose, and substance of the parol evidence rule. The relationship between the two doctrines creates the question that this Note seeks to answer: To what extent should a commercial contracting rule such as the parol evidence rule apply in plea bargain interpretation?

A.

Plea Bargains

Convictions obtained through guilty pleas play a major and indispensable role in the United States criminal justice system; a vast majority of criminal defendants convicted and sentenced never actually go to trial, entering a guilty plea instead.

24 In the 2008 fiscal year, of the 82,451 defendants whose cases resulted in a conviction and sentence in federal district courts, 79,842, or over 96.8%, entered a plea of guilty.

25

Under Rule 11 of the Federal Rules of Criminal Procedure, a criminal defendant may enter a guilty plea provided the plea is voluntary and has a factual basis.

26 Before accepting the plea, the court must advise and question the defendant in open court to ensure she understands the rights being waived and the consequences.

27 A plea of guilty or nolo con-

23. Restatement (Second) of Contracts § 215. An integrated contract is designed to be the final formulation of the agreement, to the exclusion of all others. Often contracts will use an integration clause, disavowing all other agreements. For a discussion on integration clauses, see supra note 6.

24. James C. Duff, Admin. Office of the U.S. Courts, Judicial Business of the United

States Courts: 2008 Annual Report of the Director 244–47 tbl.D-4 (2009), available at http://www.uscourts.gov/judbus2008/JudicialBusinespdfversion.pdf (on file with the

Columbia Law Review ).

25. Id.

26. Fed. R. Crim. P. 11(b)(2)–(3). The Rule specifically classifies plea agreements as meeting the voluntariness requirement by noting that the court is to “determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).” Id. at 11(b)(2); see also infra note 39 (describing requirement that pleas must be entered into intelligently and voluntarily).

27. Fed. R. Crim. P. 11(b)(1). The court must advise and question the defendant about her rights regarding trial—such as the government’s right to use statements defendant makes under oath, her right not to plead guilty, the right to jury trial, the right to counsel, the rights of confrontation and cross-examination at trial—and the waiver of these trial rights through a plea. The court must also discuss the nature of the charges, maximum and mandatory minimum penalties, forfeitures, restitution, and terms in a plea agreement waiving the right to appeal or to collaterally attack the sentence, among other things. Id. In theory, the substantial amount of mandatory discussion of consequences should deter the accused from rushing into an agreement without being informed as to all the terms, but defendants often have other motivations driving a guilty plea, such as a desire for a lesser sentence. For a discussion of the benefits of plea bargains for

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 845 tendere may not be withdrawn by the defendant, and “may be set aside only on direct appeal or collateral attack.” 28 Rule 11(c) lays out “Plea

Agreement Procedure,” listing the government’s bargaining chips and requiring the agreement reached to be disclosed in open court, unless good cause can be shown to disclose it in camera.

29 A plea agreement is typically entered as a signed written document stating the agreed-upon terms, which waive some of the defendant’s rights at trial.

30

Guilty pleas conserve judicial resources, allowing prosecutors to prosecute more cases in a shorter period of time.

31 Moreover, defendants often find that entering a plea of guilty can shorten their sentences; 32 defendants (as well as for prosecutors), see infra notes 31–33, 42–43, and accompanying text.

28. Fed. R. Crim. P. 11(e). A plea of nolo contendere is taken as “indisputably tantamount to a conviction” for the purposes of sentencing, though “it is not necessarily tantamount to an admission of factual guilt.” United States v. Poellnitz, 372 F.3d 562, 566

(3d Cir. 2004) (citation omitted). Unlike a guilty plea, however, “a plea of nolo contendere may not be used against the defendant in a civil action based on same acts.” 21

Am. Jur. 2d Criminal Law § 685 (2008) (footnote omitted). Rule 410 of the Federal Rules of Evidence codified the principle that “evidence of [a nolo plea] is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions.” Fed. R. Evid. 410(2). This rests in part on the tenuous concept that a nolo plea “does not constitute a conviction nor hence a determination of guilt. It is only a confession of the well-pleaded facts in the charge. It does not dispose the case.” Lott v. United States, 367 U.S. 421, 426 (1961) (internal quotation marks omitted).

29. Fed. R. Crim. P. 11(c)(1)–(2). The prosecutor has a wide array of discretionary tools at her disposal that can have a major impact on the outcome for the defendant. See id. at 11(c)(1). Federal Rule of Criminal Procedure 11(c)(1) specifies that, in reaching the agreement, the government may (A) move to dismiss or choose not to bring other charges, (B) “recommend[ ] or agree not to oppose defendant’s request[ ] that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply,” or (C) commit to a binding version of (B) by agreeing “that a specific sentence or sentencing range is the appropriate disposition of the case.” In scenario (C), this term of the plea agreement would bind the court once accepted. Id.

30. A copy of Mr. Al-Arian’s plea agreement, discussed in the Introduction, is available online. Plea Agreement, United States v. Al-Arian, 308 F. Supp. 2d 1322 (M.D.

Fla. 2004) (No. 8:03-CR-77-T-30TBM), available at http://www.flmd.uscourts.gov/Al-

Arian/8-03-cr-00077-JSM-TBM/docs/2929176/0.pdf (on file with the Columbia Law

Review ). For another example of the format of a plea agreement entered in a federal district court, see Plea Agreement, United States v. Pfeil, No. 08-cr-227-JDB, (D.D.C. Aug.

29, 2008), available at http://www.usdoj.gov/atr/cases/f236700/236710.pdf (on file with the Columbia Law Review ).

31. Brady v. United States, 397 U.S. 742, 752 (1970) (discussing prosecutorial advantages such as faster imposition of “punishment after an admission of guilt” and how bypassing trial conserves “scarce judicial and prosecutorial resources”); see also Santobello v. New York, 404 U.S. 257, 261 (1971) (discussing desirability of plea agreements in terms of judicial efficiency, finality of disposition, and principles underlying punishment).

32.

Brady , 397 U.S. at 752 (“For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious—his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated.”); see also Am. Bar Ass’n, Crim. Justice Standards Comm., ABA

Standards for Criminal Justice: Pleas of Guilty, 73–74 (3d. ed. 1999), available at http://

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846 COLUMBIA LAW REVIEW [Vol. 110:840 frequently a plea is entered after the two parties—the government and the defendant—reach an agreement, where a defendant might receive a shorter sentence, dismissal of a second or third count, or a charge of a less serious crime in exchange for her guilty plea.

33 This process of negotiation between prosecutor and defendant is commonly called plea bargaining, since the parties are out to make a deal.

Only in 1971 did the Supreme Court confirm the legitimacy of plea bargaining in the case of Santobello v. New York .

34 Prior to Santobello , plea bargaining, as the Court explained, “was a sub rosa process shrouded in secrecy and deliberately concealed by participating defendants, defense lawyers, prosecutors, and even judges.” 35 Santobello involved a conviction following a plea to a lesser-included offense entered by the defendant after the government promised to make no recommendation as to his sentencing.

36 Chief Justice Burger, writing for the Court, vacated the conviction in light of the government’s breach of the agreement, 37 holding 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 promise must be fulfilled.” 38 Once the knowing, intelligent, and voluntary 39 nature of a defendant’s plea enwww.abanet.org/crimjust/standards/pleasofguilty.pdf (on file with the Columbia Law

Review ) (listing guilty plea, in conjunction with other factors, as mitigating factor to consider in final disposition or sentencing).

33. See Brady, 397 U.S. at 751 (refusing to hold that plea induced by hope of lesser penalty violates Fifth Amendment).

34.

Santobello , 404 U.S. 257.

35. See Blackledge v. Allison, 431 U.S. 63, 76 (1977) (explaining how plea bargaining became “visible” and “accepted” element in criminal adjudication after Santobello ).

36.

Santobello , 404 U.S. at 258–60.

37. Id. at 263. Unlike examples of overreaching, here the prosecutor who had originally negotiated Santobello’s plea was replaced with a new prosecutor who,

“apparently ignorant of his colleague’s commitment,” recommended the maximum sentence of one-year imprisonment, which was imposed. Id. at 259–60. In vacating the judgment, the Court explained that the inadvertent nature of the breach did not “lessen its impact,” and that the “prosecutor’s office [had] the burden of ‘letting the left hand know what the right hand is doing’ or has done.” Id. at 262. This holding—that ignorance is no excuse—mirrors the idea that unilateral misunderstanding by a defendant of the terms of his guilty plea cannot serve as grounds for rescission. See infra note 193 and accompanying text.

38.

Santobello , 404 U.S. at 262. By simply vacating the conviction on the grounds of a government failure to keep its promise, as opposed to a vacatur based on the existence of a plea bargain itself, the Court would have implicitly acknowledged the practice of plea bargaining. Burger’s opinion, however, went even further by explaining the requirements for the process: The plea must “be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.” Id. at 261–62.

39. A valid plea must be entered into intelligently and voluntarily, as opposed to a plea “induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e.g. bribes).” Mabry v. Johnson, 467 U.S. 504, 509 (1984) (internal quotation marks omitted) (quoting Brady v. United States, 397 U.S. 742, 755 (1970)); see

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 847 tered with the assistance of counsel has been established, collateral attacks seeking withdrawal are prohibited unless “the consensual character of the plea is called into question.” 40 Chief Justice Burger described pleas and plea negotiations as not only “essential” but also “highly desirable” since they promote judicial economy, lead to quick and final dispositions of cases, avoid problems related to pretrial confinement and release, and cut down on the time between charge and disposition.

41

The opinion declared that the ideal plea bargain process meets the voluntariness and intelligence requirements because, at least in theory, both parties will benefit when defense counsel offers a guilty plea in exchange for sentencing concessions.

42 Many academics share this view of plea bargaining as a mutually beneficial process:

The parties to these settlements trade various risks and entitlements: the defendant relinquishes the right to go to trial (along with any chance of acquittal), while the prosecutor gives up the entitlement to seek the highest sentence or pursue the most serious charges possible. The resulting bargains differ predictably from what would have happened had the same cases been taken to trial. Defendants who bargain for a plea serve lower sentences than those who do not. On the other hand, everyone who pleads guilty is, by definition, convicted, while a substantial minority of those who go to trial are acquitted.

43 also Boykin v. Alabama, 395 U.S. 238, 242 (1969) (finding trial judge failed to require affirmative showing that guilty plea was “intelligent and voluntary”).

Boykin stressed the importance of not only the stakes for defendants, but also the need for trial judges to develop a record establishing the defendant’s “full understanding of what the plea connotes and of its consequence.” Boykin , 395 U.S. at 243–44. This record can be used to defeat later challenges and “forestalls the spin-off of collateral proceedings that seek to probe murky memories.” Id. at 244 (citations omitted).

40.

Mabry , 467 U.S. at 508–09 (citing Tollett v. Henderson, 411 U.S. 258, 266–67

(1973)). Federal prisoners may file for postconviction habeas relief under 28 U.S.C.

§ 2255 (2006). A federal habeas court can vacate the judgment, upon a finding that either the “judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack.” 28 U.S.C. § 2255. Any claims involving technical violations of Rule 11, however, are not suitable for collateral attacks, and must be raised on direct appeal. United States v. Timmreck, 441 U.S. 780, 784–85 (1979).

41.

Santobello , 404 U.S. at 260–61 (“If every criminal charge were subjected to a fullscale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.”). Chief Justice Burger also claimed that shortening the time period between charge and disposition would enhance the

“rehabilitative prospects of the guilty.” Id. at 261.

42. Id.; see also Mabry , 467 U.S. at 508 (describing how requirements can be met since

“each side may obtain advantages when a guilty plea is exchanged for sentencing concessions[;] the agreement is no less voluntary than any other bargained-for exchange”).

43. Scott & Stuntz, supra note 10, at 1909 (footnote omitted). Even though he agreed with Scott and Stuntz’s defense of plea bargaining on autonomy and efficiency grounds,

Easterbrook noted that “[t]he analogy between plea bargains and contracts is far from perfect,” and pointed out the inefficiencies in the transaction costs of plea agreements that

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848 COLUMBIA LAW REVIEW [Vol. 110:840

B.

Contract Principles: The Parol Evidence Rule

Courts normally invoke the parol evidence rule when contracting parties have put their agreement on paper, but later a dispute arises and one party attempts to use evidence of other agreements to bolster her interpretation of the contract’s terms.

44 The parol evidence rule assists a court dealing with such disputes by “help[ing] to determine the scope of what is to be interpreted.” 45 After the parol evidence rule establishes the terms of the agreement, the court will then go on to divine the meaning of those terms.

46 On the interpretation side, courts allow extrinsic evidence in to shed light on ambiguous terms. The parol evidence rule, however, focuses on scope by establishing the terms eligible for interpretation.

47

1.

Background. — Despite its name, the parol evidence rule acts as far more than just a mere evidentiary rule; it operates as a substantive rule of contractual interpretation.

48 Invoking the rule can determine the outcome of the case, as exclusion of extrinsic evidence can effectively defeat the underlying claim of the party who aims to use that “evidence to contradict [or] perhaps even to supplement the writing.” 49 If a court cannot consider the evidence of prior or contemporaneous agreements or understandings, the text alone will continue to govern the agreement.

keep them from becoming “Pareto improvements.” Easterbrook, supra note 10, at

1974–75.

44. E. Allan Farnsworth, Contracts § 7.1, at 414 (4th ed. 2004).

45. Id.

46. See id. § 7.7, at 439 (describing process of interpretation); see also Robert E. Scott

& Jody S. Kraus, Contract Law and Theory 542–45 (4th ed. 2007) (differentiating process of identifying contract terms using parol evidence rule from actual interpretation of terms and urging students to keep questions separate even if cases do not always do so). Courts often conflate these two inquiries, and do so often in plea agreement cases. This does not come as much of a shock, given the similarities between the tasks of identifying and interpreting the terms, as both involve a general prohibition on extrinsic evidence. For example, a court might confusingly cite the rule in support of declaring a ban on the use of extrinsic evidence to shed light on the meaning of terms in a writing. For further description of cases illustrating confusion over proper use of the rule, see infra note 90. A court might simply invoke the term “parol evidence rule” to signal that it is wrestling with the role of extrinsic evidence in the case in general.

47. Scott & Kraus, supra note 46, at 543–45.

48. Farnsworth, supra note 44, § 7.2, at 416–17 (pointing to “courts and scholars, specialists in the field of evidence” to support understanding of rule as substantive). As

Professor Farnsworth concedes, courts usually prefer the decision on integration of the writing to be made by “the trial judge before the evidence goes to the jury,” like decisions involving evidentiary rules. Id. § 7.3, at 425–26. But the parol evidence rule differs from the rules of evidence, which bar “methods of proof to show a fact,” whereas “the parol evidence rule bars a showing of the fact itself.” Id. § 7.2, at 416. That is not the only misleading aspect of its name—the rule covers not only oral, or parol, negotiations, but also written agreements. Id. In modern day courts, the rule’s exclusionary function does not primarily act as an evidentiary rule, but instead aims to “affirm[ ] the primacy of a subsequent agreement over prior negotiations and even over prior agreements.” Id. at

418.

49. Id. at 415.

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Where one party wants to introduce evidence of a prior oral or written agreement that failed to appear in the newer written document, the parol evidence rule will apply because integration of the new document essentially “seals the deal.” 50 But before a court can apply the rule to determine the scope of an agreement, it must answer two questions about integration.

First, the court must determine whether the writing is integrated, 51 by looking to whether the parties “intended the writing [to act] as a final expression of the terms it contains, even if the writing was not intended as a complete and exclusive statement of all terms” of the agreement.

52

No bright-line rule governs the determination of integration, which will be ascertained based on the parties’ actions and the writing itself.

53 Parties often include an integration clause in the document as a signal of integration.

54 Of course, mere insertion of the clause does not ensure

50. See Restatement (Second) of Contracts § 213 (1981) (describing application of rule). Integration renders the contract exclusive; no new terms may be added.

Subsequent agreements, however, do not fall under the rule’s prohibition. Scott & Kraus, supra note 46, at 561; see also John E. Murray, Jr., The Parol Evidence Rule: A

Clarification, 4 Duq. L. Rev. 337, 337 (1966) (declaring article dedicated to “clarification” of “fog” surrounding the Parol Evidence Rule). Murray explains that in situations where both agreements were oral, or a written agreement preceded the later oral agreement, the court would follow the “usual fashion” of trying to determine the “total agreement” of the parties. Id. at 338. The parol evidence rule only comes into play where the written agreement is latest in time: “When the parties to a contract embody the terms of their agreement in a writing, intending that writing to be the final expression of their agreement, the terms of the writing may not be contradicted by evidence of any prior agreement.” Id. at 337; see also Farnsworth, supra note 44, § 7.3, at 418–20 (discussing

Restatement provisions that forbid extrinsic evidence from modifying completely integrated agreement’s terms).

51. See Restatement (Second) of Contracts § 209(3) (defining integrated agreements); see also Farnsworth, supra note 44, § 7.3, at 419 (describing first question as

“is the agreement integrated?”).

52. Farnsworth, supra note 44, § 7.3, at 419.

53. Id. at 418–19. At common law, the “four corners” rule carried a presumption of full integration if the agreement appeared complete on its face. Scott & Kraus, supra note

46, at 542. The common law “natural omission” doctrine complemented this presumption by deeming a written contract integrated, and the alleged additional promise unenforceable, if the additional promise were so related to the subject covered by the writing that the “most natural” place for the alleged additional agreement to be found would have been “in the contract.” Mitchill v. Lath, 160 N.E. 646, 647 (N.Y. 1928). The court explained that oral agreements are admissible only if they are collateral in nature, do not contradict express or implied provisions of the written agreement, and comprise an agreement ordinarily not expected to be embodied in writing. Id. The court in Mitchill found the alleged unwritten promise unenforceable, since it would naturally have been found in the integrated purchase agreement. Id. While most courts have moved away from a strict adherence to the four corners rule, many common law courts still turn to the natural omission test to determine integration. Scott & Kraus, supra note 46, at 542–43.

54. Farnsworth, supra note 44, § 7.3, at 423; see supra note 6 (providing example of integration clause in Mr. Al-Arian’s plea agreement, proclaiming itself to be the “entire agreement”); see also infra note 110 (providing example of clause that goes even further by disavowing any other prior agreements).

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850 COLUMBIA LAW REVIEW [Vol. 110:840 that a court will automatically find integration.

55 Since, however, the doctrine places strong emphasis on the intentions of parties, an integration clause gives a court a strong intent-based justification for determining the writing to be final.

56 While an integration clause might be useful, the court may look at other factors. In fact, the Restatement approach permits the use of extrinsic evidence to help a court determine whether an agreement is partially, completely, or not integrated at all.

57 If an agreement “appears in view of its thoroughness and specificity to embody a final agreement on the terms that it contains,” then it will be considered integrated with respect to those terms.

58

If a court declares the writing integrated, it must next determine whether it is completely or only partially integrated. The level of integration in a writing will depend on whether the parties intended the writing to cement all the terms of the final agreement (complete integration), 59 or whether some of the agreement terms failed to appear in the writing

(partial integration).

60 The distinction between the levels of integration might seem trivial, but it has a substantial effect on the role of extrinsic evidence in interpretation of the writing. If a court deems a contract to be integrated, whether completely or partially, “evidence of prior or contemporaneous agreements or negotiations is not admissible in evidence to contradict a term of the writing.” 61 In a partially integrated writing, however, such evidence may be used to supplement —but not to contradict—the agreement terms.

62 Complete integration means that a court

55. Farnsworth, supra note 44, § 7.3, at 423–24.

56. Id.

57. Restatement (Second) of Contracts § 209(3) & cmt. c, § 214 cmt. a (1981)

(determination of integration will be made “in accordance with all relevant evidence”). Of course, courts are not bound to follow the Restatement, and different, more restrictive approaches to determining integration exist (such as that used by a court employing the

“four corners” rule discussed supra note 53, which directs a court to look to the face of the writing alone to determine integration). On the other hand, the Uniform Commercial

Code offers a permissive approach that avoids a presumption of integration. See U.C.C.

§ 2-202 cmt. 1 (2004) (“Unless there is a final record, these alleged terms are provable as part of the agreement by relevant evidence from any credible source.”).

58. Farnsworth, supra note 44, § 7.3, at 420 (citing Intershoe v. Bankers Trust Co., 571

N.E.2d 641 (N.Y. 1991)). In fact, it does not necessarily have to be signed by the parties at all to be integrated. Id. (citing Tow v. Miners Mem’l Hosp. Ass’n, 305 F.2d 73 (4th Cir.

1962)).

59. See Restatement (Second) of Contracts § 209(1) (explaining that an integrated writing constitutes “final expression of one or more terms of an agreement”).

60. Farnsworth, supra note 44, § 7.3, at 418–19.

61. Restatement (Second) of Contracts § 215. While it cannot contradict the terms, however, evidence of the parties’ “course of performance, course of dealing, or usage of trade” can usually supplement or explain the terms in an integrated agreement. U.C.C. § 2-

202(1)(a).

62. Restatement (Second) of Contracts § 216(1) (“Evidence of consistent additional terms is admissible to supplement an integrated agreement unless the court finds that the agreement was completely integrated.”); see also id. § 216 cmt. b (“Terms of prior agreements are superseded to the extent that they are inconsistent with an integrated agreement, and evidence of them is not admissible to contradict a term of the

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 851 will not admit any extrinsic evidence of additional terms, even if those terms could be enforced in harmony with the written terms.

2.

The Rule in Action. — While these rules sound straightforward enough, not all courts follow the same path in determining the level of integration. Indeed, the outcome of a case can turn on the court’s determination of whether the agreement is fully or partially integrated, as illustrated by a comparison of two canonical parol evidence rule cases:

Mitchill v. Lath 63 and Masterson v. Sine .

64 In Mitchill v. Lath , the New York

Court of Appeals refused to enforce an oral promise made by the Laths in a sale of their farm to the Mitchills.

65 The purchase contract failed to mention the Laths’s oral promise to remove an icehouse from the land— in fact it failed to mention the offending icehouse at all.

66 An agreement to remove the icehouse would not necessarily have conflicted with the agreement to purchase, but it would not necessarily have fallen within the ambit of the original purchase either, since the buyers could have contracted for the removal of the icehouse in a separate agreement.

67

Therefore, the court refused to tack the additional terms on to those contained in the writing.

In Masterson , the California Supreme Court refused to follow New

York’s lead in looking solely at the face of the writing to determine integration. Instead, Justice Traynor adopted an intent-centric approach that found the agreement only partially integrated, since the alleged oral agreement could have been made apart from the writing.

68 Even though the Masterson court invoked the same rule as that in Mitchill , their divergent methods of determining the level of integration led to very different results.

Eric Posner has employed the labels “hard” and “soft” to differentiate the approaches courts can take in applying the parol evidence rule, or in their interpretation of terms.

69 Whereas the “hard” courts, such as integration.”). Furthermore, integration will not prevent a party from introducing evidence of a collateral agreement, which must be separate from the main agreement’s terms although the collateral agreement does not necessarily have to involve

“consideration distinct” from that in the main agreement. Farnsworth, supra note 44,

§ 7.3, at 424; see also Mitchill v. Lath, 160 N.E. 646, 647 (N.Y. 1928) (finding collateral oral agreement inadmissible because it was too “closely related to the subject dealt with in the written agreement” to be admissible).

63.

Mitchill , 160 N.E. 646.

64. 436 P.2d 561 (Cal. 1968).

65.

Mitchill , 160 N.E. at 647.

66. Id. at 646.

67. Marvin A. Chirelstein, Concepts and Case Analysis in the Law of Contracts 99 (5th ed. 2006).

68.

Masterson, 436 P.2d at 563–64 (listing “many cases where parol evidence was admitted ‘to prove the existence of a separate oral agreement as to any matter on which the document is silent and which is not inconsistent with its terms’—even though the instrument appeared to state a complete agreement”).

69. Eric A. Posner, The Parol Evidence Rule, the Plain Meaning Rule, and the

Principles of Contractual Interpretation, 146 U. Pa. L. Rev. 533, 535 (1998). Posner

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852 COLUMBIA LAW REVIEW [Vol. 110:840 that in Mitchill , look to the face of the agreement itself to establish completeness, “softer courts [like the one in Masterson ] declare a writing complete only if the extrinsic evidence supports that determination,” meaning that they will “generally admit all relevant extrinsic evidence, because any inconsistent extrinsic evidence suggests (however indirectly) that the contract is incomplete.” 70 Regardless of whether a court uses a hard or soft approach, extrinsic evidence may come in under certain circumstances. As we have seen, the rule does not ban agreements that are “collateral,” or outside the scope of the integrated agreement.

71 Additionally, since the rule focuses on prior or contemporaneous agreements that did not make the final cut, it will not prevent a party from using extrinsic evidence to prove that there was no agreement, or that it was invalid in the first place.

72 For example, to show that the “writing was a forgery, joke, or sham,” a party may rely on written or oral representations or statements from prior negotiations.

73 Thus, the rule does not block the introduction of such evidence in the face of claims of unilateral or mutual misunderstanding, mistake, duress, misrepresentation, or fraud.

74

3.

The Purpose of the Rule. — Even though the practical applications and outcomes might vary among courts, the rationale behind the rule remains the same: to ensure that “[i]f the parties to a transaction express agreement and subsequently express another agreement, intending the subsequent agreement to prevail over their antecedent expression, their final expression will prevail.” 75 It might have started out as a rule of evidence, but the rule’s purpose has evolved since it was first established in

1604.

76 While modern day courts today still give “special protection” to pointed to Samuel Williston as the “chief defender” of the hard approach, and identified

Arthur Corbin as a champion of the soft approach. Id. at 568–71.

70. Id. at 535.

71. The rule ultimately aims to ascertain whether “the parties intend[ed] the subsequent written agreement to be their final and complete or ‘integrated’ expression, or . . . [if] they intend[ed] any prior agreements (oral or written) to be part of their total agreement.” Murray, supra note 50, at 338–40. A prior agreement on a collateral issue could be viewed as supplementing a partially integrated agreement. Since it would not contradict the terms of the agreement, it would not run afoul of the rule. See discussion supra notes 61–62 (noting terms that do not contradict may supplement terms of integrated agreement).

72. Farnsworth, supra note 44, § 7.3, at 426 (“[I]t does not exclude evidence to show that there was no agreement or that the agreement was invalid.”).

73. Id. § 7.4, at 427.

74. Id. § 7.4, at 429 (citing Restatement (Second) of Contracts § 214 (1981))

(explaining that the rule “does not exclude evidence to show mistake, misrepresentation, or duress as a ground for avoidance”).

75. Murray, supra note 50, at 338.

76. Countess of Rutland’s Case, (1604) 77 Eng. Rep. 89, 90 (K.B.) (holding contract

“made by writing, or by other matter as high or higher” would be controlled by final written agreement and refusing to consider oral “averments”). In refusing to consider prior oral or written agreements in the construction of the terms of deed, Chief Justice

Popham noted the fallibility of memory and the impropriety of allowing an oral statement

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 853 writings, 77 oral agreements engender less judicial suspicion today, and the rule’s more important purpose serves to assure the primacy of subsequent agreements over all prior promises or agreements, whether written or oral.

78 Like many other principles guiding contract interpretation, this function of the rule aims to provide predictability in enforcement.

79

The rule does not merely prevent a party from adding invisible or nonexistent terms to the agreement at a later date, 80 but also serves to promote trust in contracting, since the parties know at the outset what terms constitute the final agreement.

81 In addition, it serves to decrease plea agreement negotiation costs, and by promoting clarity the rule serves to decrease costs and time spent on litigation.

82 These goals, although born out of commerce, remain important when the parties bargain for a criminal conviction.

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Although courts generally use tenets of private contract law to interpret their terms 83 and to fashion remedies, 84 plea agreements stand in a to trump a written contract—a “higher” form of agreement—holding that the most recent written document should control and negate any prior agreements. Id.

77. See Murray, supra note 50, at 338 (“When the prior expression is oral and the second is in writing, courts have traditionally followed a policy of affording special protection to the writing.”).

78. Farnsworth, supra note 44, § 7.2, at 416–18 (quoting Arthur L. Corbin, The Parol

Evidence Rule, 53 Yale L.J. 603, 607–08 (1944)). Farnsworth describes the purpose of the rule as giving parties the flexibility to make new agreements without worry that prior negotiations will hamper the enforceability.

79. Id.

80. See Arthur L. Corbin, The Interpretation of Words and the Parol Evidence Rule,

50 Cornell L.Q. 161, 189 (1965) (noting parol evidence rule renders prior oral or written agreements “inoperative by having been discharged by a subsequent agreement that has been duly proved and interpreted”).

81. See Scott & Kraus, supra note 46, at 541.

82. Id. Decreasing negotiation costs seems especially useful in a high stakes plea bargain, where negotiation costs and distrust could otherwise thwart an agreement.

83. See United States v. Barnes, 83 F.3d 934, 938 (7th Cir. 1996) (“Plea agreements are governed by ordinary contract principles.”); United States v. Kelly, 18 F.3d 612, 616

(8th Cir. 1994) (“When a dispute later arises over whether the parties performed pursuant to the agreed-upon terms, the court looks to familiar contract principles and gives effect to the intent of the parties as expressed in the plain language of the agreement when viewed as a whole.”); United States v. Ingram, 979 F.2d 1179, 1184 (7th Cir. 1992) (“Plea agreements are contracts, and their content and meaning are determined according to ordinary contract principles.”); United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986)

(declaring courts generally draw on body of law “pertaining to the formation and interpretation of commercial contracts” in construction of plea agreement terms); see also

United States v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989) (“Although a plea agreement occurs in a criminal context, it remains contractual in nature and is to be analyzed under contract-law standards.”); Henry v. Gov’t of V.I., 340 F. Supp. 2d 583, 586

(D.V.I. 2004) (citing Santobello v. New York, 404 U.S. 257 (1971), for proposition that

“court must resort to contract law in interpreting the agreement or in determining whether a breach occurred”); Scott & Stuntz, supra note 10, at 1910 (“[C]ourts . . . have

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854 COLUMBIA LAW REVIEW [Vol. 110:840 class apart from commercial contracts for obvious reasons.

85 The liberty interests at stake infuse interpretation of plea bargains with concerns for fundamental rights and fairness; courts should not only consider contract principles, but also ensure that the plea bargaining process is “attended by safeguards to insure the defendant [receives] what is reasonably due in the circumstances.” 86 In light of these concerns, should courts cabin the terms in an integrated plea agreement within the four corners of the document? Or should courts allow additional or external evidence when a defendant 87 alleges that an additional or prior agreement was made that does not appear in the terms of the agreement itself?

88

The federal circuit courts of appeals lack a consensus as to the proper role of the parol evidence rule and extrinsic evidence in the interpretation of plea agreement terms. While some improperly construe the doctrinal confusion as a circuit split, 89 a more fitting label might be a mess. The parol evidence rule, which delineates the terms, officially operates apart from rules of interpretation, which give meaning to those terms. Nonetheless, courts often add to the popular conflation of the two by invoking parol evidence rule precedent to support exclusion of extrinsic evidence in interpretation of terms.

90 And courts never mention the proceeded to construct a body of contract-based law to regulate the plea bargaining process . . . .”).

84. See United States v. Alexander, 869 F.2d 91, 95 (2d Cir. 1989) (“Although

Santobello does not use the term ‘contract’ when referring to a plea agreement, the remedies that it adopts for the government’s breach of a plea agreement are rescission and specific performance—both traditional contract remedies.”).

85. United States v. Herrera, 928 F.2d 769, 773 (6th Cir. 1991) (“Although the plea agreement is contractual in nature, it is by no means an ordinary contract.”); see

Moscahlaidis , 868 F.2d at 1361 (“Courts should consider not only ordinary contract principles but also ensure that the plea bargaining process is ‘attended by safeguards . . . .’ ” (quoting Santobello , 404 U.S. at 262)).

86.

Santobello , 404 U.S. at 262. As the Court pointed out in Boykin v. Alabama, 395

U.S. 238, 242 (1969), a guilty plea “is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.”

87. The government will likely never have reason to bring such a claim to a court.

88. Some defendants raise this issue as part of a pro se habeas petition requesting withdrawal of a plea because of an alleged breach of the agreement. Kingsley v. United

States, 968 F.2d 109, 115 (1st Cir. 1992); United States v. Garcia, 956 F.2d 41, 42–44 (4th

Cir. 1992). Alternatively, it might be raised as part of an appeal after sentencing. See, e.g.,

United States v. Swinehart , 614 F.2d 853, 856–57 (3d Cir. 1980). In Swinehart , under a discretionary “fairness and justice” standard, the trial court could withdraw a plea and order a trial if it seemed “fair and just.” Id. at 857 (internal quotation marks omitted).

Normally, “[w]hether the government has violated a plea, or by analogy, a cooperation agreement, is a question of law subject to de novo review.” United States v. Baird, 218 F.3d

221, 229 (3d Cir. 2000).

89. Petition for Writ of Certiorari at 10, Al-Arian v. United States, No. 08-137 (U.S.

July 30, 2008), cert. denied, 129 S. Ct. 288 (2008).

90. It is confusing enough that parol evidence is generally banned (by the parol evidence rule) in determining the scope of an agreement’s terms, as well as in determining the meaning of the terms (by interpretation principles), but courts often go further. Take,



2010] PAROL EVIDENCE AND PLEA AGREEMENTS 855 level of integration, if they do mention integration of a writing at all.

91

Finally, the line between scope and interpretation does not always remain clear in decisions. For example, the doctrinal lines might blur when a defendant claims that the agreement’s ambiguous language should be read in light of a claimed prior oral agreement.

92 For purposes of case for example, a case where the meaning of terms were in dispute and the defendant sought to introduce evidence of statements made in negotiations.

Swinehart, 614 F.2d at 856–57.

The question is better understood as one of interpretation, not scope (which is what the parol evidence operates to define). But right before the court allowed extrinsic evidence from negotiations to “shed light on the meaning of a pertinent word or phrase,” it declared that the “parol evidence rule should not be rigidly applied to bar evidence . . . [from assisting in] properly construing the plea agreement.” Id. at 858 (emphasis added)

(quoting Wilson Arlington Co. v. Prudential Ins. Co. of Am., 912 F.2d 366, 370 (9th Cir.

1990)). In addition, a court dealing with an interpretation issue might also cite the parol evidence rule to support its decision. United States v. Nunez, 223 F.3d 956, 958 (9th Cir.

2000) (responding to defendant’s argument that terms were ambiguous by citing parol evidence rule, which it confusingly construed as preventing use of “ ‘extrinsic evidence . . .

to interpret . . . the terms of an unambiguous written instrument’ ”). For example, in

Raulerson v. United States , the court found that “even the most liberal reading of the supplemental plea agreement fails to support the interpretation that Mr. Raulerson urge[d].” 901 F.2d 1009, 1012 (11th Cir. 1990). The “interpretation” Raulerson urged was actually a verbal agreement not included in the text of his plea. Id.

91. Moreover, the determination of integration here is usually far simpler than the complex two-step process discussed supra Part I.B. Without referring to the Restatement’s nuanced, contextual approach, courts here point to the integration clause and declare it integrated. See, e.g., United States v. Alegria, 192 F.3d 179, 186 (1st Cir. 1999) (declaring that “the integration clause . . . withstands the appellant’s bombardment” and thus Alegria could not “seek the benefit of a prior oral representation by the government after he signed a fully integrated writing that did not contain the claimed representation”); cf.

United States v. Rockwell Int’l Corp., 124 F.3d 1194, 1200 (10th Cir. 1997) (specifically finding complete integration). More often, however, courts will skip the inquiry into integration status, simply using the presence of the integration clause itself as a proxy for complete integration. See United States v. Al-Arian, 514 F.3d 1184, 1192 (11th Cir. 2008)

(per curiam) (finding that integration clause proves that “plea agreement reflects all of the promises and agreements between Al-Arian and the government”). “Notwithstanding the integration clause, Al–Arian argue[d]” that evidence from negotiations should be allowed to inform a reading of the agreement. Id. The court rejected this argument. Id. (citing

United States v. Altro (In re Altro), 180 F.3d 372 (2d Cir. 1999)). The importance of the integration or merger clause here seems to lie in its disavowal of prior or other agreements. Id. However, a court might also dismiss such “boilerplate language” in the face of strong evidence of an agreement.

Baird , 218 F.3d at 230 (“This obvious boilerplate does not contain language purporting to supersede the December 9 letter.”); United States v. Melton 930 F.2d 1096, 1098–99 (5th Cir. 1991) (similar result). Additionally, while neither of those cases mentions partial integration, it would seem to explain their dismissal of the effects of the integration clause, as the proposed additional terms did not directly conflict with anything in the agreement.

92. In re Arnett, 804 F.2d 1200, 1203 (11th Cir. 1986). In a few other cases, courts have confusingly discussed whether or not they should “interpret” an agreement’s terms or silences in light of a claimed prior agreement or negotiations. See United States v. Cantu,

225 F. App’x 301, 301 (5th Cir. 2007) (rejecting defendant’s claims of “oral promises outside of the plea agreement” while citing Ballis for proposition that “parol evidence is inadmissible to prove the meaning of an unambiguous plea agreement” (internal quotation marks omitted) (quoting United States v. Ballis, 28 F.3d 1399, 1410 (5th Cir.



856 COLUMBIA LAW REVIEW [Vol. 110:840 analysis, this Note follows the courts in lumping together the questions and doctrine concerning an agreement’s scope and meaning (both of which carry a ban on outside evidence) under the umbrella of a general parol evidence ban on “modification” of contract terms by extrinsic evidence.

Most courts tend to uphold enforcement of the terms of plea agreements with integration clauses, ignoring or disallowing external evidence of other agreements. However, these cases—especially those that find for the defendant—often contain language suggesting that the special constitutional concerns at issue in plea bargaining give room for leeway in allowing the use of parol evidence to aid in interpretation of terms, resulting in a certain unpredictability of outcomes based on doctrine alone.

93

The Fourth, Eleventh, and Seventh Circuits, however, follow a different path, allowing parol evidence only under exceptions, and placing more focus on whether evidence of government overreaching exists.

94

Part II.A discusses the “classic” doctrinal approach, the more traditional ban on parol evidence imposed by the majority of the circuits. Although decided using similar rules, these cases do not always turn out the same, 95 bringing to mind the earlier discussion of commercial cases, which often turn on whether the court uses a hard or soft application of the parol evidence rule.

96 Part II.B goes on to discuss what this Note terms the “overreaching approach” used by the Fourth, Seventh, and

Eleventh Circuits, which departs from the traditional parol evidence ban by allowing extrinsic evidence only when there is evidence of government overreaching or ambiguity in the writing.

A.

The Majority of the Circuits Follow the “Classic Approach” to Parol Evidence

When a plea agreement contains an integration clause declaring the agreement to be the final and controlling declaration of the parties’ intentions, the Second, Fifth, Sixth, and Tenth Circuits have all declined to admit evidence of competing or omitted terms. As any hornbook will tell you, this is the standard procedure in the interpretation of all contracts.

97

Even in circuits with a proclaimed allegiance to the black letter law ap-

1994)); Swinehart , 614 F.2d at 858 (“[E]vidence of a prior draft plea agreement, or of statements made by the prosecution during the plea bargaining which sheds light on the meaning of a pertinent word or phrase in an ‘integrated’ plea agreement would be admissible.”).

93. See infra part II.A (discussing doctrinal approaches and their results).

94. See infra part II.B (discussing overreaching approach).

95. The difference in outcomes does not always depend on sympathetic facts. In the

Third Circuit, for example, defendants have won on mere claims of oral agreements, even without affidavits from attorneys or written documentation to support their claim. See infra notes 117, 122 (discussing such cases).

96. See supra notes 69–70 and accompanying text (differentiating between hard and soft application of parol evidence rule).

97. Farnsworth, supra note 44, § 7.2, at 415.

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 857 proach, the special plea agreement context concerns interact with the court’s decision to employ a hard or soft parol evidence ban, and can result in different outcomes despite the similarity in doctrine. Part II.A.1

describes standard applications of contract principles blocking introduction of parol evidence, while Part II.A.2 explores opinions that use the same doctrinal rule peppered with special concerns for defendants in this context.

1.

No Extrinsic Evidence Allowed. — The Fifth Circuit has held that parol evidence of a defendant’s understanding of his obligations under a plea agreement during negotiations to be irrelevant, as “parol evidence is inadmissible to prove the meaning of an unambiguous plea agreement.” 98 Ballis claimed that the parties had reached an agreement as to the repercussions if he failed to cooperate, but nothing in the plea itself spoke to remedies, and the court felt that a “lack of comprehensive provisions specifying remedies in the case of breach does not render the agreement ambiguous, as Ballis claimed.

99 This case, although cited often in the Fifth Circuit thanks to its quotable summary of the doctrine, almost does not qualify as a parol evidence case, since the defendant did not present any evidence of a prior or conflicting agreement.

100 In fact, the court seemed to use the parol evidence rule as a shorthand way of concluding that in fact no prior agreements existed, but that if they did, it would not matter because Ballis’s actions in violating the agreement smacked of unfair play, contrary to regular contracting principles.

101

United States v. Rockwell International Corp.

involved allegations of a prior additional agreement much more explicitly than Ballis . In Rockwell , the corporate defendant pleaded guilty to several environmental crimes in exchange for assurances that the government would refrain from “fur-

98. United States v. Ballis, 28 F.3d 1399, 1410 (5th Cir. 1994) (“Although circumstances surrounding the agreement’s negotiations might indicate that such was

Ballis’ intent, parol evidence is inadmissible to prove the meaning of an unambiguous plea agreement.”).

99. Id. (“There is nothing in the agreement suggesting . . . that the government had agreed that prosecuting Ballis for perjury was its exclusive remedy for a breach of the agreement.”).

100. In a later unpublished case, the Fifth Circuit cited Ballis for the proposition that despite what evidence about agreements from negotiations might show, it could not be admitted to aid in interpretation of an unambiguous plea agreement. United States v.

Cantu, 225 F. App’x 301, 301 (5th Cir. 2007) (citing Ballis , 28 F.3d at 1410). But then, perhaps just to assure readers, the court noted that parol evidence rule aside, “nothing in the record [supported Cantu’s] assertion that the Government made oral promises outside of the plea agreement and later breached those promises.” Id.

101. The court finally held that in failing to meet the conditions of the plea, Ballis had “fraudulently induced his original plea agreement,” and therefore lost his right to enforcement of the terms.

Ballis , 28 F.3d at 1411. In reality, the court might not have even reached the parol evidence issue, and still would have been able to uphold rescission of the agreement on those grounds. Indeed, the paragraph dealing with the parol evidence rule begins as a hypothetical, since the court felt that Ballis’s fraudulent inducement of the agreement renders it void anyway. Id. at 1410 (“Moreover, even were the agreement enforceable, Ballis’ obligations under it were not ambiguous.”).



858 COLUMBIA LAW REVIEW [Vol. 110:840 ther criminal and, to a lesser extent, civil proceedings,” and later advocated an interpretation of the agreement that would prevent the government from intervening in a qui tam action against the defendant.

102 In construing a plea agreement the court “applie[d] a two-step process in interpreting the terms of a plea bargain: first, the court examine[d] the nature of the government’s promise; second, the court investigate[d] this promise based upon the defendant’s reasonable understanding at the time the guilty plea was entered.” 103 In support of its position, the defendant attempted to present correspondence with the government and transcripts of testimony to support its proposed interpretation of the plea agreement.

104 The court, however, held that the proposed parol evidence was not admissible as evidence of an additional term modifying what it found to be a completely integrated plea agreement.

105 The integration clause in the agreement “severely limited” inquiry into the defendant’s “reasonable understanding at the time it entered its guilty plea.” 106

The court rejected the defendant’s “interpretation,” noting that “[w]hat

Rockwell really seeks is to add a term to the agreement,” 107 which it found to be blocked by the parol evidence rule.

108

The Second Circuit has followed a similar course, holding in United

States v. Altro ( In re Altro ) that, particularly where “the Government incorporates into the plea agreement an integration clause expressly disavowing the existence of any understandings other than those set forth in the plea agreement, a defendant may not rely on a purported implicit understanding in order to demonstrate that the Government is in breach.” 109

There, the defendant argued that a subsequent subpoena breached the implicit pact underlying his plea agreement, despite an integration clause.

110 The defendant claimed that he was under the impression he

102. United States v. Rockwell Int’l Corp., 124 F.3d 1194, 1196 (10th Cir. 1997).

103. Id. at 1199 (citing Cunningham v. Diesslin, 92 F.3d 1054, 1059 (10th Cir. 1996)).

104. Id. at 1198.

105. Id at 1199–200. The Rockwell court did one of the most thorough integration analyses out of all the cases discussed. It found complete integration after looking to the integration clause, noting that the parties did not dispute its integration, citing the

Restatement (Second) of Contracts for the proposition that “a writing that appears integrated will be considered as such.” Id. (citing Restatement (Second) of Contracts

§ 209(3) (1981)).

106. Id. at 1199.

107. Id. at 1200 (“Regardless of whether Rockwell’s extrinsic evidence vindicates its assertion that the government agreed to be so limited in intervening in the Stone Suit, the parol evidence rule forbids Rockwell from asserting this additional term.”). This opinion does a nice job of highlighting the overlap between scope and the interpretation of an agreement’s terms.

108. The court both laid out a summary of the parol evidence rule and cited the

Restatement (Second) of Contracts in its exposition of the rule. Id. at 1199 (citing

Restatement (Second) of Contracts §§ 215–216).

109. United States v. Altro (In re Altro), 180 F.3d 372, 376 (2d Cir. 1999).

110. Id. at 375. The integration clause stated in relevant part, “this Agreement supersedes any prior understandings, promises, or conditions between this Office and

Ralph Altro. No additional understandings, promises, or conditions have been entered



2010] PAROL EVIDENCE AND PLEA AGREEMENTS 859 would not be forced to testify again later because of the nature of the plea negotiations, and because the government had not informed him that he could be forced to do so.

111

Like the Tenth Circuit in Rockwell , the Second Circuit read the plea’s silence on the matter as foreclosing any arguments of an additional agreement.

112 Similarly, the Altro court also rejected the defendant’s argument for a more lax application of the parol evidence rule, noting that the record held no written evidence of a statement by the government.

113

Altro offers an example of the inherent contradiction built into the soft approach to the parol evidence rule: a court declares the importance of the parol evidence rule while simultaneously appearing to weigh the evidence in the record to support its decision to exclude such evidence.

114

The above cases all disallow using parol evidence of outside or prior agreements during plea negotiations to augment or interpret plea terms.

Some courts, however, tend to employ the same doctrine, only to reach different results through a softer application.

2.

No Extrinsic Evidence Allowed, Unless . . . . — Sometimes, cases will cite the same basic doctrine as the courts above, but hold that given the special nature of a plea agreement, the parol evidence may be allowed, despite the integration of an agreement. One might expect that compelling facts or ambiguity in the interpretation of a contract would prompt judges to search outside the four corners for meaning, but some cases appear to take a softer approach, frequently looking to the extrinsic evidence to determine integration in the first place, and more often coming into other than those set forth in this Agreement, and none will be entered into unless in writing and signed by all parties.” Id. at 373.

111. Id. at 375.

112. Id. at 376 (“We decline to require the Government to anticipate and expressly disavow every potential term that a defendant might believe to be implicit in such an agreement.”).

113. Id. The court distinguished these facts from United States v. Garcia, 956 F.2d 41

(4th Cir. 1992). See infra notes 141–148 and accompanying text (discussing Garcia ). The

Altro court, like the Fifth Circuit in United States v. Cantu, 225 F. App’x 301 (5th Cir.

2007), also turned to the record to reinforce its decision declaring the importance of the parol evidence rule, illustrating one of the classic contradictions within this doctrine. See supra note 100 (discussing Cantu ). It concluded that “in appropriate circumstances we might consider relaxing the parol evidence rule in order to hold the Government” to its promise, but “there was, in this instance, no promise for us to enforce.” Altro , 180 F.3d at

376; cf. United States v. Aleman, 286 F.3d 86, 91 (2d Cir. 2002) (holding that, in dispute over immunity agreement terms, while “a district court need not conduct a hearing every time a defendant summarily accuses the government of failing to live up to an alleged bargain, . . . here [defendant] submitted an affirmation from his attorney and appeared to offer other corroborating evidence in the form of other attorneys’ affidavits”).

114. See supra notes 69–74 and accompanying text (discussing seeming paradox in soft approaches that look to extrinsic evidence before declaring whether or not contract is integrated); see also infra notes 141–150 and accompanying text (discussing “fraud in the inducement”). Although the core of Altro depends on the hard approach, it appears that the court simply offered the soft approach (pointing to the lack of evidence of an agreement) as a backup argument.

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860 COLUMBIA LAW REVIEW [Vol. 110:840 out in favor of the defendant.

115 Additionally, the language in these opinions evokes more sympathy for defendants, often stressing the special liberty concerns. This section discusses the few cases, all from the

First and Third Circuits, in which a defendant won simply by claiming an additional oral agreement, 116 as opposed to producing documentary evidence of a government promise. These cases hint that something inherent in the nature of a plea agreement—something beyond a mere ambiguity in the terms—prompts courts to tread softly when banning such evidence and to construe the doctrine to allow extrinsic evidence.

The Third Circuit has not been afraid to uphold an alleged prior agreement, especially when it exists in written form, by reading it in tandem with later agreements that remain silent on the matter:

Reading the formal plea agreement against the government as the drafter, and in light of its acceptance of the plea to obstruction of justice as an apparent cure of the initial breach, [the court found] that the government treated the [prior] agreement as remaining in effect. That conclusion is not altered by the plea agreement’s integration clause, which states that “no additional promises, agreements or conditions have been entered into other than those set forth in this document . . . .”

This obvious boilerplate does not contain language purporting to supersede the [previous] letter. Further, the two documents may be read consistently with one another. In light of these

115. In particular, the First and Third Circuits alone saw the only two parol evidence cases in which a defendant won with claims of a mere oral agreement that did not make its way into the text, without backing from affidavits from attorneys. This is not to say, however, that defendants routinely triumph in First Circuit cases. See United States v.

Alegria, 192 F.3d 179, 186 (1st Cir. 1999) (holding alleged oral representation inadmissible); see also United States v. Bigler, 278 F. App’x 193, 197 (3d Cir. 2008)

(blocking defendant’s attempt to correct error arising out of claimed “oversight or omission” of an alleged separate agreement that defendant claimed was missing from integrated plea agreement (quoting Fed. R. Crim. P. 36)). The Bigler court noted that the defendant could not seek the benefit of any additional oral agreements, as he produced insufficient evidence to “demonstrate an understanding between the two sides.” Id.

116. Of course, other Third and First Circuit cases might exist beyond those included in this piece. However, defendants claiming breaches of oral representations in other circuits certainly have not been as fortunate. See United States v. Pineda, 995 F.2d 222,

1993 WL 209937 (5th Cir. 1993) (unpublished table decision), an unpublished Fifth

Circuit case in which a defendant claimed to have made an oral agreement about downward departure. The court noted the lack of written evidence, and held that “[i]n the absence of such evidence, we appropriately accord greater weight to the language of the written agreement.” Id. at *3; see United States v. Gamble, 917 F.2d 1280, 1282–83

(10th Cir. 1990) (holding clear and unambiguous plea could not be modified by parol evidence of sentencing promise but also looking to transcript of court proceedings to negate defendant’s claim of promise). But see In re Grand Jury Witness ( Perdue ), 819 F.2d

984, 986–87 (11th Cir. 1987) (refusing to read terms of alleged oral representation into agreement even though it “seem[ed] quite possible Perdue was at least unintentionally misled by the government”). Arguably, the weight and strength of the defendant’s evidence of a prior promise matter significantly. For an example of particularly compelling evidence, see Garcia , 956 F.2d at 44 (describing government promise in cover letter of plea agreement); infra notes 141–148 (discussing Garcia ).

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 861 considerations and the special due process concerns in the criminal arena, the integration clause has no effect in this context.

117

Nor has the court been opposed to defendants claiming that the text should be read in light of a previous oral agreement or understanding.

In United States v. Swinehart, the parties disputed whether an agreement required a defendant to pass, or merely to take, a polygraph test.

118 The decision in favor of the defendant echoed the themes of Santobello , declaring that a “plea agreement is not an appropriate context for the

Government to resort to a rigidly literal approach in the construction of language.” 119 Again, while this question actually seems to be more an issue of the meaning of the contract terms as opposed to a parol evidence question per se, the Swinehart court also seemed to imply that in addition to the ambiguous contract terms, the special nature of a plea bargain mattered too. The court found “evidence of a prior draft plea agreement, or of statements made by the prosecution during the plea bargaining which sheds light on the meaning of a pertinent word or phrase in an

‘integrated’ plea agreement [to] be admissible.” 120 Remanding the case for further investigation, the court based its decision upon evidence of prior modification of a contested term in the plea agreement during negotiations.

121 The court observed that, because of “the unique nature of a plea bargain . . . involving as it does the waiver of constitutional rights . . . the parol evidence rule should not be rigidly applied to bar evidence which would aid the trial court in properly construing the plea agreement.” 122

The cases above mesh with a First Circuit declaration that “the use of parol evidence to supplement the terms of an unambiguous written plea agreement is ordinarily frowned upon . . . [but] these rules [are] subject to exception in unusual cases.” 123 In Kingsley v. United States , the defendant was convicted based on a guilty plea to several narcotics and tax evasion charges; in interpreting the terms of the plea agreement, the ap-

117. United States v. Baird, 218 F.3d 221, 230 (3d Cir. 2000).

118. United States v. Swinehart, 614 F.2d 853, 856–58 (3d Cir. 1980) (admitting evidence of prior draft plea agreement to inform “meaning of a pertinent word or phrase in an ‘integrated’ plea agreement”).

119. Id. at 858 (quoting United States v. Bowler, 585 F.2d 851, 854 (7th Cir. 1978)).

120. Id.

121. Id. at 856. The defendants claimed that a prior version of the agreement had required them to “pass” a polygraph test, but was subsequently changed to require them to

“take” the test after defendants objected during negotiations.

122. Id. at 858 (emphasis added).

123. Bemis v. United States, 30 F.3d 220, 222 (1st Cir. 1994) (remanding for further investigation defendant’s claim of existence of additional promises not within integrated agreement nor mentioned at Rule 11 hearing).

Bemis , however, was an easier case, as the alleged promise (that the petitioner would be enrolled in the Federal Witness Protection

Program upon release from prison) seemed less self-serving, and other factors combined with circumstantial evidence supporting the existence of such a promise, made it easier for the court to find in his favor. Id. Of course, defendants do not always win in the First

Circuit. See discussion supra note 115.

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862 COLUMBIA LAW REVIEW [Vol. 110:840 pellate court used evidence of the government’s oral representations to the court 124 and defendant during the plea hearing and negotiations to modify the terms of the resulting formal letter agreement.

125 During negotiations, the prosecution made oral assurances that the government would “take all reasonable steps to collect all outstanding debts” owed to the defendant, to be used as a credit against his civil tax liability.

126 However, this language was omitted from the terms of the letter agreement, which simply gave the government “complete discretion in the collection” of debts, including “making the practical determination to forgo collection.” 127 The appellate court remanded the case for a finding of the actual efforts made by the government to collect the debts, finding an

“implicit understanding” in the plea that the government made “assurances that it intended to take all reasonable steps to collect” despite the absence from the plea agreement itself.

128 Even though these “oral representations were not expressly incorporated into the letter agreement,” the court saw them as “implicit and . . . read the agreement in that light.” 129

Notably, the Kingsley court distinguished between the subject matter of the oral agreements (that the government would take all reasonable efforts towards collection) and the subject matter of the letter (“merely” giving the government discretion to forgo collection upon a “good faith” determination).

130 The court felt that the plea agreement “did not obviate the implicit understanding [created during negotiations] that the government would ‘take all reasonable steps’ to collect the debts,” especially since this understanding induced the defendant to sign it.

131

124. Representations made to the court, such as a written promise in a letter, would probably meet the “strong” evidence requirement posited infra note 178 and accompanying text.

125. Kingsley v. United States, 968 F.2d 109, 115 (1st Cir. 1992). Specifically, the court decided to read the agreement in light of prior oral representations and statements to the defendant. This interpretation question skates into parol evidence rule territory.

126. Id. (emphasis omitted).

127. Id. at 112.

128. Id. at 115.

129. Id. The court could have gone the Altro route and rejected such evidence as insufficient since it was oral and undocumented in a writing, such as a cover letter. Two later First Circuit decisions from Puerto Rico did not look as fondly upon defendants trying to add oral agreement terms. See United States v. De-La-Cruz Castro, 299 F.3d 5, 13

(1st Cir. 2002) (rejecting defendant’s claims of oral agreement made by prosecutors regarding reduction in his base level offense when plea agreement denied existence of any oral agreements); United States v. Alegria, 192 F.3d 179, 186 (1st Cir. 1999) (focusing on lack of ambiguity in plea language and holding evidence of prior oral representation inadmissible after defendant “signed a fully integrated writing that did not contain the claimed representation, and expressly affirmed to the district court in the change-of-plea colloquy that he had not been influenced by extrinsic representations of any kind”).

130.

Kingsley , 968 F.2d at 115.

131. Id. This reasoning harks back to the parol evidence rule’s exception for collateral agreements described in Mitchill v. Lath . See supra notes 65–67 and accompanying text. Since this agreement was collateral in nature, it would not obstruct or

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Again, this highlights the mixed nature of the issues in these cases; while the court’s line of inquiry purported to explore a question of meaning

(of the contract terms) rather than one of parol evidence, the defendant alleged prior representations, and the court cited Fourth Circuit cases, noting the constitutional and fairness concerns implicated as support for why the “parol evidence rule [should not be] rigidly applied in construing plea agreements.” 132

In Kingsley , rather unusually, the defendant triumphed with a claim of an oral agreement. The opinion focused on the special liberty interests at stake for the defendant that counseled against an overly inflexible application of the parol evidence rule, implying that these concerns, not contract interpretation doctrine, trump the parol evidence rule. In other words, the reader wonders whether the court would have found any ambiguity at all if the disputed terms had been found in an agreement to deliver widgets. Morever, in some cases, even while claiming to use the standard formulation of the rule to exclude extrinsic evidence, courts will bolster their arguments by using the record of negotiations (which should not be admissible) to demonstrate a lack of viable or convincing evidence of conflicting oral or written agreements.

133

B.

The Overreaching Approach

Some circuits will invoke the parol evidence rule to dismiss any disputed additional agreements or promises in a plea agreement with an integration clause—but only in the absence of evidence of “government overreaching,” a vaguely defined term.

134 By concentrating on government overreaching, this approach isolates the major factor distinguishing commercial from criminal contracting. The focus on whether or not the government played fair during negotiations adds a subtle twist to the approach used by other circuits, explicitly linking the use of the parol evidence rule with fairness and a rule against fraudulent inducement to enter into the agreement.

impede the purpose of the agreement made in the plea document. However, explaining this leniency by pointing to partial integration of the writing or labeling the prior agreement collateral proves unsatisfactory. After all, the prior agreement might not have necessarily conflicted with the new agreement, but one would expect an agreement about the government’s promise to collect debts to be included in the section of the plea agreement that discussed debt collection. Furthermore, in the cases discussed supra Part

II.A, integration clauses were seen as dispositive, blocking prior agreements, whether or not they conflicted.

132. Id. (citing United States v. Garcia, 956 F.2d 41, 43–44 (4th Cir. 1992) (citing

United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986))).

133. For further discussion of this seeming contradiction common to parol evidence cases, see supra notes 69–74, 114 and accompanying text.

134. This approach might appear stricter than the original parol evidence rule in that it removes the focus from the integration of the document. However, cases in this area tend to gloss over the integration analysis or ignore it altogether, and they certainly never get into “partial” integration. Besides, a court would normally only resort to this exception if it found the document to be integrated.

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1.

The Fourth Circuit: Harvey and Garcia . — The Fourth Circuit held first in United States v. Harvey , and later in United States v. Garcia , that contract principles might require modification in the plea agreement context, despite an integration clause.

135 Harvey did not deal explicitly with the parol evidence rule; the plea agreement at issue there was found by the court to be “ambiguous as a matter of law.” 136 In accordance with another fundamental contract law principle adapted for this context, the contra proferentem rule, 137 the Harvey court construed terms that it found to be “ambiguous in context” based on extrinsic evidence against the government.

138 The court recognized that in the unique plea agreement circumstances it was “particularly appropriate” that the government should be held responsible for ambiguous drafting, since the government would most often be the drafter.

139 The influential test it then laid out stated:

For example, whether a written agreement is ambiguous or unambiguous on its face should ordinarily be decided by the courts as a matter of law. If it proves unambiguous as a matter of law, and there is no suggestion of government overreaching of any kind , the agreement should be interpreted and enforced accordingly. Neither side should be able, any more than would be private contracting parties, unilaterally to renege or seek modification simply because of uninduced mistake or change of mind.

140

135.

Garcia , 956 F.2d at 44. The Garcia court relied on an earlier Fourth Circuit case with similar facts, Harvey, 791 F.2d 294, which laid down the relevant precedent. The

Harvey court focused on the special constitutional concerns at stake. See supra notes

13–15 and accompanying text.

136.

Harvey , 791 F.2d at 301. Harvey’s plea agreement was silent on whether he could be prosecuted in a different district again for prior activities connected to his drug-related plea. The government attempted to bring more charges in a different district after Harvey served his original sentence and Harvey appealed, arguing that the parties mutually understood the nonprosecution agreement to extend to other federal jurisdictions. Id. at

298–300.

137. The rule instructs courts to construe all ambiguities in a writing against the drafter. Most courts will construe ambiguities against the government—drafter of plea agreements. For a summary of this practice across the circuits see United States v. Gebbie,

294 F.3d 540, 552 (3d Cir. 2002) (“Because of the Government’s advantage in bargaining power, we, and numerous other courts of appeals, construe ambiguities in plea agreements against the Government.”).

138.

Harvey , 791 F.2d at 302.

139. Id. at 300–01. The test stems from the court’s view that private commercial law principles might not be appropriate in every case. It viewed its approach as “conformable not only to the policies reflected in private contract law from which it is directly borrowed, but also to constitutional concerns of fundamental fairness in ‘bargaining’ for guilty pleas, and to the wider concerns expressed in the exercise of supervisory jurisdiction over the administration of federal criminal justice.” Id. at 300 (citation omitted). The Harvey court also invoked Santobello v. New York , 404 U.S. 257 (1971) for the requirement of a contracts-style duty of fair bargaining, and found that the government had failed to meet it.

Harvey , 791 F.2d at 301.

140.

Harvey , 791 F.2d at 300. (emphasis added).

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Later in United States v. Garcia , the court, using Harvey ’s test, found that a “no cooperation” term was enforceable where it had been memorialized in the government’s cover letter to the defendant but not in the attached plea agreement itself.

141 The court reasoned that the government should not benefit from a rigid contract rule that would allow it to avoid fulfilling a written promise it admittedly had made.

142 In the words of the Fourth Circuit: “[B]oth constitutional and supervisory concerns require holding the Government to a greater degree of responsibility than the defendant (or possibly than would be either of the parties to commercial contracts) for imprecisions or ambiguities in plea agreements.” 143 As in Harvey, the determination of whether the agreement was facially ambiguous or not was for the court to make as a matter of law, and the government would triumph as long as the court found the text unambiguous, and found no government overreaching.

144 Finding first ambiguity in the text, 145 and then evidence of overreaching, the court held in Garcia’s favor.

146

While neither Harvey nor Garcia explicitly defines “government overreaching,” it seems fair to infer that it can be equated with unsportsmanlike behavior, deceitful intentions, or purposefully trying to play a game of “gotcha” using legal technicalities.

147 The Garcia court employed the

141. 956 F.2d 41, 44 (4th Cir. 1992).

142. Id. The relation to other contract law principles emerges in dicta. In a footnote, the court acknowledged, but declined to reach, the defendant’s argument that the omitted promise was a sort of “fraud in the inducement,” which would be grounds for rescission in private contract law. Id. at 44 n.4.

143. Id. at 44.

144. Id. (citing Harvey , 791 F.2d at 300). For the Harvey court’s formulation of the rule, see supra text accompanying note 140.

145. In the dispute over whether “cooperation” meant simply voluntary cooperation, as the government argued, the court chastised the government for its role as drafter:

“[T]here is no general rule that, as a matter of law, ‘cooperate’ in a plea agreement means only ‘voluntary’ cooperation. The government knows the word ‘voluntary,’ and could have avoided any ambiguity by using it.” Garcia , 956 F.2d at 45.

146. Id. at 44. The opinion also mentioned the fact that Garcia spoke “almost no

English,” and explicitly warned that plea agreements where a language barrier might arise merit “special precision,” as a defendant might not be familiar with English idioms. Id. at

45. The Garcia court, however, cited Harvey extensively, which involved an Englishspeaking defendant.

147. Id. at 44. In light of the government’s special responsibility as the plea drafter the court noted:

The government prepared the letter and the agreement; the omission of the “no cooperation” promise in the formal agreement could only be due to governmental overreaching, inadvertent omission, the dereliction of defense counsel, or some combination of those factors. None of these reasons would justify relieving the government of its promise. . . . The government does not dispute that it made the promise—it just wants to take advantage of a rule of contract law to profit from an omission in a contract it prepared. We cannot countenance such unfair dealing.

Id. (emphasis added). Listing overreaching in the disjunctive along with more innocent or negligent mistakes seems to emphasize the bad faith component of overreaching.

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866 COLUMBIA LAW REVIEW [Vol. 110:840 contracts language of “unfair dealing” to disapprovingly describe government tactics.

148 In United States v. White, a more recent case following in the footsteps of Garcia , the Fourth Circuit remanded the case for an evidentiary hearing, stating that “if a Government representative orally promised White that he could conditionally plead,” he would be entitled to relief.

149 “Proof of the Government’s refusal to abide by such an oral promise would clearly constitute evidence of ‘government overreaching’ or ‘fraud in the inducement,’ admissible without running afoul of the parol evidence rule.” 150 A fervent dissent by Judge Williams argued that the plea agreement was “unambiguous. It clearly state[d] that it [was] the complete understanding among the parties,” and that the defendant’s claim “varie[d] the terms of the written plea agreement, and, accordingly, it [was] inadmissible parol evidence.

151 While White might seem like a defendant-friendly outcome, perhaps Judge Williams would find some comfort in the fact that defendants do not regularly triumph under this approach, especially those in courts outside the Fourth Circuit.

2.

Beyond the Fourth Circuit. — Arnett involved a defendant who claimed that, by seeking the forfeiture of his house and farm, the government had breached an oral agreement the prosecution made with Mr.

However, Judge Williams’s dissent in United States v. White offers a valid concern: He worried that the holding could undermine the efficiency goals of plea bargaining by resulting in the proverbial flood of evidentiary hearings in every case where a defendant alleges an additional unkept promise. 366 F.3d 291, 311–12 & n.14 (4th Cir. 2004)

(Williams, J., dissenting). The majority did acknowledge and address this concern— making sure to first label it “alarmist rhetoric”—by arguing that the extraordinary and rare circumstances of the fact pattern would prevent a deluge of similar outcomes. Id. at 300

(majority opinion).

148.

Garcia , 956 F.2d at 44.

149. 366 F.3d at 295 & n.3 (remanding for evidentiary hearing “to determine if a prosecutor made an oral promise . . . [that was] not expressly contradicted by anything in the written plea agreement”).

150. Id. (citing Garcia , 956 F.2d at 44 & n.4). This statement specifically links the overreaching exception to the concept of fraud, but White is not presented as a fraud case.

The defendant-petitioner in Garcia argued that “even under ordinary commercial contract law, ‘fraud in the inducement’ is a ground for rescission of a contract, and the fraud may be proved by extrinsic evidence,” but the court felt that it had no reason to resolve the fraud issue.

Garcia , 956 F.2d at 44 n.4. Instead the court decided that “[s]trict application of the parol evidence rule might bar consideration of the cover-letter promise,” but that it could not “countenance such unfair dealing.” Id. at 44.

151.

White , 366 F.3d at 310–11. (Williams, J., dissenting). “Although we should not allow the Government to profit from its own omission, if the parol evidence rule ever applies, it must apply when the only evidence of the alleged omission is a self-serving allegation in a sworn habeas petition.” Id. Williams offered a slippery slope argument pointing to the disastrous implications of allowing all defendants to have an evidentiary hearing after sentencing upon mere allegations of an additional or contradictory promise.

Rhetoric aside, his basic point is sound—the parol evidence rule does serve to guard finality and predictability in contracting.




Arnett and his counsel.

152 The Eleventh Circuit refused to “accept [the] hyper-technical reading of the written agreement” urged by the government.

153 But in this case, one might suppose that the defendant’s claim received a credibility boost in the eyes of the court, as the Assistant

United States Attorney had made the oral promise to defense counsel, not just to Mr. Arnett.

154

Later, in Raulerson v. United States , the Eleventh Circuit offered a more solid formulation of its take on the parol evidence rule: “Only where the language of the agreement is ambiguous, 155 or where government overreaching is alleged [can] the court consider parole [sic] evidence, such as the plea hearing transcript in this case.” 156 The court examined whether the government had breached the agreement by opposing his sentence reduction, or failing to speak for him in other proceedings, as the defendant claimed.

157 The decision held that the text of the plea did not obligate the government to remain silent at other proceedings, since the defendant had failed to specifically negotiate and obtain a promise of government silence at the sentencing hearings. In explaining its rationale, the court invoked the traditional concerns underlying the parol evidence rule’s preference for finalized written agreements.

Even the most liberal reading of the supplemental plea agreement fails to support the interpretation that Raulerson urges.

Plea negotiations involve the same give and take involved in any contractual agreement. The final memorialization of those negotiations best informs the court of the agreements the parties have reached, especially when it contains an exclusionary clause like the one in paragraph ten of the supplemental plea agreement.

158

152. 804 F.2d 1200, 1203 (11th Cir. 1986) (“The government urges an interpretation of the plea agreement which directly contradicts the oral understanding .” (emphasis added)).

153. Id.

154. Id. at 1202.

155. Again, ambiguities in any contract will always permit a court to look to extrinsic evidence for clarification; this part is nothing new. See supra text accompanying notes

46–47.

156. 901 F.2d 1009, 1012 (11th Cir. 1990) (citing In re Grand Jury Witness ( Perdue ),

819 F.2d 984, 985 (11th Cir. 1987)).

157. Id. at 1011. The court began its investigation of whether the government had breached the alleged promise by determining the scope of the agreement, first examining

“what the defendant reasonably understood when he entered his guilty plea.” Id. (citing

Arnett , 804 F.2d at 1202–03). The defendant urged the court to consider statements between his counsel and the government during the plea hearing to shed light on what he argued was the “full scope” of the agreement, but the court looked instead to the plea agreement itself, dismissing Raulerson’s allegations that the government breached an alleged promise to remain mute during his sentencing hearing because Raulerson “failed to negotiate for or failed to obtain the government’s silence at his sentencing hearings.”

Id. at 1012.

158. Id.

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Returning to Al-Arian , the Eleventh Circuit reaffirmed its position on the use of parol evidence by holding that, in the presence of an integration clause, parol evidence was properly prohibited in interpretation of a plea agreement.

159 Al-Arian tried to submit evidence of a different interpretation, bolstering his argument by pointing to the lack of a cooperation provision in his plea agreement to prove that the “government agreed to omit the ‘standard cooperation provision’ from the plea agreement because Al-Arian conditioned his guilty plea on his refusal to cooperate.” 160 The court decisively rejected this argument, pointing to the plea’s integration clause, and viewing the lack of textual prohibition on issuing subpoenas for grand jury testimony as permitting the government to do so.

161

The Al-Arian court restated the law in line with Raulerson : “Parol evidence may be considered only where the language of the agreement is ambiguous or government overreaching is alleged.” 162 The court explained that the possibility that the defendant was misled could not justify admission of an agreement not finalized in the text.

163 Given the Garcia court’s reproachful language equating poor government drafting with

“unfair dealing,” perhaps the Eleventh Circuit has a different, more stringent conception of what sort of behavior counts as government overreaching.

164 One is left to wonder what does constitute government over-

159. United States v. Al-Arian, 514 F.3d 1184 (11th Cir. 2008) (per curiam).

Specifically, the court framed the question decided as “whether a plea agreement that contains no provisions exempting a defendant from cooperating with the government or providing future testimony can be interpreted to prohibit the government from issuing a grand jury subpoena to the defendant.” Id. at 1187.

160. Id. at 1192. “Al-Arian argues that the plea agreement’s lack of any provision related to future testimony is actually affirmative evidence that the government agreed, as part of the plea agreement, not to seek future testimony from him.” Id. The facts of

Garcia are similar to those in Al-Arian . There, the defendant argued that the government’s

“omission of the ‘no cooperation’ promise in the formal agreement could only be due to governmental overreaching, omission, the dereliction of defense counsel, or some combination of those factors,” none of which would permit the government to fail to keep its promise. United States v. Garcia, 956 F.2d 41, 44 (4th Cir. 1992); see also supra notes

124–127 and accompanying text (discussing factors courts may use in determining whether contract is integrated and controls).

161.

Al-Arian , 514 F.3d at 1192–93.

162. Id. at 1191 (citing Raulerson , 901 F.2d at 1012). This blanket statement should probably not be construed as covering partially integrated agreements, since the Eleventh

Circuit, and other courts, do not speak to partial integration in this context.

163. Id. at 1193 (“[E]ven where the government arguably misled [Al-Arian], and where [Al-Arian] plausibly misunderstood the plea agreement, we cannot enforce an agreement that was never agreed on with specificity.” (internal quotation marks omitted)

(citing In re Grand Jury Witness ( Perdue ) 819 F.2d 984 (11th Cir. 1987)).

164. See supra notes 147–148 and accompanying text for details on the Garcia court’s opinion. Perhaps the less credible evidence in these opinions—such as a mere claim of an oral understanding, instead of a writing—helps to explain why none of these courts found overreaching. But recall Arnett, which involved a defendant alleging a breach of an oral agreement made both to him and his attorney. Although his case predated the Fourth

Circuit’s overreaching test, Arnett triumphed in his case, which featured an opinion that

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165

Regardless, there is no mention in the rest of the case of overreaching; the matter is never discussed with respect to Al-Arian’s plea. The terms of the integrated agreement found to be unambiguous were locked in by the parol evidence rule and the plain meaning of the text. Since the plea agreement did not explicitly prevent the government from forcing him to testify in front of a grand jury, the court held the government could do so.

In United States v. Ingram , the Seventh Circuit used similar reasoning to disallow modification of a plea agreement that it found to be unambiguous on its face.

166 The court declared that extrinsic evidence could illuminate the meaning of ambiguous terms, and that “even if a plea agreement is unambiguous on its face, courts may refuse to enforce it if the government is found guilty of overreaching.” 167 Unfortunately for the defendant, however, it found neither textual ambiguity 168 nor overreaching by the government.

169

Reciting familiar contract principles, the opinion affirmed the requirement to construe ambiguities against the government as the drafter and the undesirability of allowing the government to avoid its obligations in the agreement by following an overly literal and rigid interpretation.

170 The court cited Harvey for the long-accepted proposition that if a court determines a plea agreement to be unambiguous as a matter of law, the terms of the agreement will be enforced in accordance with their plain meaning, without the aid of contextual parol evidence as to the terms’ meaning.

171 After finding no ambiguity, the court moved on to the overreaching inquiry.

172 It concluded that Ingram’s understanding, based on a slight change of wording in the agreement, failed to show that stresses how the prosecutor misled both defendant and his counsel. Such conduct appears a likely candidate for the title of overreaching. See discussion of Arnett supra notes

152–154 and accompanying text.

165. Indeed, if the deception or behavior had to escalate to the level of fraud to qualify as government overreaching, the rule might be useless, since a contract based on fraud can be rescinded on other grounds.

166. 979 F.2d 1179 (7th Cir. 1992).

167. Id. at 1185.

168. Id. The inquiry into textual ambiguity is a matter of law and is reviewed de novo.

Id. at 1184 (citing United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986)). Although it did not find ambiguity here, the Ingram court did nod to an earlier decision that allowed a non-literal reading of a plea agreement in light of what the court saw as an implicit promise contained in ambiguous language. Id. at 1184 n.6 (citing United States v. Bowler,

585 F.2d 851, 854 (7th Cir. 1978)).

169. Id. at 1185.

170. Id. at 1184.

171. Id. (citing Harvey , 791 F.2d at 300).

172. It might be useful for courts to engage in the overreaching inquiry first, since textual ambiguity will not matter if the government did not play fair.

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870 COLUMBIA LAW REVIEW [Vol. 110:840 he had been “muscled into executing the plea agreement,” 173 and thus the plea agreement was enforceable.

3.

Summary of the Overreaching Approach. — The overreaching approach uses reasoning very similar to that of the classic parol evidence ban, with the addition of language focusing on the importance of government overreaching. The courts do not offer a definition of “overreaching,” a very vague term (although the White court hints at one 174 ), but the decisions imply that it relates to bad faith behavior in dealing. If a defendant can show evidence of government conduct smacking of foul play, such as in Garcia or White , then he can overcome an integrated agreement.

175 Otherwise, as Al-Arian illustrates, the courts will uphold the terms of the agreement, invoking the parol evidence rule.

176

III. C

LEANING UP THE

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ODELED ON

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This Note proposes that courts should uniformly implement an approach modeled on the rule of Garcia used in the Fourth Circuit: A court may only allow extrinsic evidence into consideration if the text of the writing proves ambiguous or the defendant produces evidence of government overreaching.

177 Normally, the terms of an integrated agreement should be controlling and exclusive. However, under the overreaching approach, regardless of whether the agreement carries an integration clause, the court will avoid rigid bans on parol evidence on two occasions:

(1) as usual, when it decides that plea terms are ambiguous; and (2) when the defendant can show government overreaching during negotiations, such as when very strong evidence exists that an important additional term or promise served as inducement for her to enter into the plea, but never made it into the actual writing.

178 A cover letter accompa-

173.

Ingram , 979 F.2d at 1185. “[E]ven if a plea agreement is unambiguous on its face, courts may refuse to enforce it if the government is found guilty of overreaching.” Id.

at 1184. Again, the court failed to define overreaching, but did find that there was none, deciding that Ingram was “not induced to enter into the plea agreement by an understanding that it would insulate him from all further liability for his criminal activity.”

Id. at 1185–86. The opinion noted that, in fact, he had other incentives to take the plea deal—such as avoiding automatic sentencing enhancements by pleading guilty to the one charge against him that predated the sentencing guidelines. Id. at 1186.

174. See supra notes 149–150 and accompanying text.

175. See supra notes 147, 151 and accompanying text.

176. See supra text accompanying notes 159–161.

177. United States v. Garcia, 956 F.2d 41, 42–44 (4th Cir. 1992). For further discussion of the approach, see supra Part II.B.

178. Some cases, such as Baird , discussed supra note 117 and accompanying text, involve a situation with a defendant attempting to add in an additional agreement that either does not contradict or may be read together with the terms of the agreement. In the plea agreement context, however, this scenario would likely fall within the overreaching exception, since the court will hold the government-drafter to a higher standard of accountability. See Garcia , 956 F.2d at 41 (“The government prepared the letter and the agreement; the omission of the ‘no cooperation’ promise . . . could only be

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 871 nying the agreement containing a promise not appearing in the agreement itself, such as that in Garcia , 179 offers a prime example of such strong evidence. This approach can be formulated as a two-step inquiry.

First, the court will examine the text of the agreement for ambiguity or uncertainty in the meaning of terms.

180 If it finds terms of the agreement ambiguous, the court can then examine the weight of the defendant’s extrinsic contextual evidence to shed light on the meaning of disputed terms. The court then has discretion to decide whether or not to interpret the terms in accordance with the defendant’s claimed meaning, keeping in mind that ambiguities should be construed against the government as drafter.

181 However, if the text of the agreement seems unambiguous on its face, the written terms of the agreement should control.

Next, the court should search for evidence of government overreaching; to do so, the court will need to examine the defendant’s proffered evidence of an additional contemporaneous or prior agreement.

182 If the defendant can show by clear and convincing evidence that an unkept promise or representation to her—or to an officer of the court—enticed her to enter into the agreement, then the court should find that overreaching occurred. The evidence of the alleged agreement must be very compelling, and will almost always need to come in the form of a written letter, or affidavits from one or more officers of the court involved in the entry of the plea attesting to an oral agreement.

183 Overreaching, or government conduct in enticing a defendant into a plea agreement, can due to governmental overreaching, inadvertent omission, the dereliction of defense counsel, or some combination of those factors. None of these reasons would justify relieving the government of its promise.”).

179. See supra notes 135–146 and accompanying text.

180. Before beginning, a court need not determine whether the plea agreement document alone is an integrated agreement. This step would likely be very perfunctory, as nearly any plea agreement will carry a boilerplate clause disavowing prior agreements, and even if it does not, an integration clause is not required to find the document integrated.

In addition, taking the focus off of integration will streamline the process and guide the court away from overly technical rules better suited for private parties who can bargain at arm’s length.

181. The government normally drafts the plea agreement, and so should bear the loss of ambiguities in the text. See supra notes 137, 139 and accompanying text.

182. As a threshold matter, the parol evidence rule will only come into play when a party attempts to graft a prior or contemporaneous oral or written promise on to the written terms of the plea agreement. If the party argues that a subsequent agreement should be considered, the parol evidence rule is inappropriate. While at first it might seem incongruous to begin by examining evidence of an agreement that might end up excluded by the parol evidence rule, as overreaching alone could be grounds for rescission or vacation of the conviction, a court should tackle this step first. The ambiguity inquiry follows, since textual ambiguity does not automatically render the contract suspect.

183. Claims of an implied understanding or oral agreement unsubstantiated by sworn accounts from other parties should almost never suffice. Setting a more stringent evidentiary standard should ensure that not every defendant raising such a claim will receive an evidentiary hearing, which would drain judicial resources, prolong proceedings, and undermine a major purpose of plea bargaining.

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872 COLUMBIA LAW REVIEW [Vol. 110:840 arise from a knowing deception or a convenient omission.

184 Furthermore, the documentary evidence should show that the defendant or defendant’s attorney relied on the prior agreement at the time the plea agreement was made; 185 showing that an agreement was made earlier in negotiations, but later neglected, will not suffice. A finding of government overreaching 186 will allow a court to examine the defendant’s extrinsic evidence. If the court finds the evidence convincing enough to modify the agreement terms, it may then adopt the appropriate remedy.

187

Applying this approach to the facts of Al-Arian would likely result in a different outcome. As in Garcia , the record tends to indicate that

Al-Arian was led to believe that he would not have to cooperate if he agreed to the terms of the plea agreement. A statement by an Assistant

U.S. Attorney in the record tended to confirm Al-Arian’s claim that the government agreed not to include a noncooperation clause in the plea agreement as a gesture acknowledging his refusal to cooperate.

188 Of course, in the actual case, the absence of such a clause was seen as trivial, 189 but under the proposed test the court would likely give weight to

184. The Garcia case presents the perfect example, where the government took advantage of the technicalities of the situation to entice a defendant into an agreement, then later denied having made any promises. United States v. Garcia, 956 F.2d 41 (4th Cir.

1992); see also supra notes 141–146 and accompanying text.

185. For example, in Arnett, the U.S. Attorney “led Arnett’s counsel to believe that their oral understanding . . . prohibited further action against Arnett’s property. . . . At no time did the United States Attorney’s Office indicate to Arnett or his representatives that the written agreement changed their previous oral understanding.” 804 F.2d 1200, 1203

(11th Cir. 1986). Thus, the court found it “reasonable for Arnett to rely on the original oral understanding” upon entering his plea. Id.; see also United States v. Hogan, 862 F.2d

386, 388 (1st Cir. 1988) (“[T]o be availing, a party’s expectation must be objectively reasonable.” (citing Arnett , 804 F.2d at 1164)).

186. While theoretically possible that the defendant might be the “overreaching” party, the possibility is extremely remote, since the government, as the drafter, would almost certainly include all the concessions it wanted from the defendant in the agreement, and if the defendant failed to cooperate or fulfill all his duties, the defendant would likely be held in contempt. For examples of defendants held in contempt, see

Garcia , 956 F.2d at 42–43 (involving defendant held in contempt and confinement until he agreed to testify for grand jury); In re Grand Jury Witness ( Perdue ) 819 F.2d 984 (11th Cir.

1987) (similar). Alternatively, the defendant’s misconduct or breach could release the government from the agreement altogether. See United States v. Ballis, 28 F.3d 1399, 1411

(5th Cir. 1994) (holding that in failing to meet plea conditions, Ballis had “fraudulently induced his original plea agreement,” thereby rendering it unenforceable).

187.

Santobello v. New York held that no single remedy would prove appropriate for a breach of a plea agreement, and left the decision of remedy to be made on a case-by-case basis by lower courts. 404 U.S. 257, 261–62 (1971); see also supra note 9 and accompanying text.

188. Petition for Writ of Certiorari, supra note 89, at 4.

189. For the details of the opinion, see supra notes 159–163 and accompanying text.

This approach permits a finding of overreaching without a finding of outright fraud, unlike the apparent working definition used by the Eleventh Circuit, under which a defendant’s potentially having been misled does not rise to the level of overreaching. See

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 873 the prosecutor’s statement, find that the government misled Al-Arian by taking advantage of technicalities, and would likely permit him to present his evidence of statements made during negotiations.

On the other hand, a case like Rockwell, where the integration clause alone blocked the defendant’s efforts to show that prior agreements had been left out of the written agreement, might not turn out differently under this approach, since no overreaching was alleged.

190 No defendant, however, would be completely barred from using extrinsic evidence simply due to a lack of overreaching, as a court could include extrinsic evidence in its review if the text were found to be ambiguous.

191

Thus, although many cases seem to use similar reasoning or reach similar results, a clear and uniform doctrine articulated across the circuit courts has undeniable advantages for both courts and potential litigants.

Part III.A elaborates on the logistics of the proposed approach, in particular by establishing a working definition of “overreaching.” Part III.B

outlines the several advantages of this approach. Part III.C then goes on to weigh its disadvantages and consider, and ultimately reject, the alternatives.

A.

Defining Overreaching

The Fourth Circuit in United States v. White explained that failure by the government to abide by an oral promise that it made to the defendant would “clearly constitute evidence of ‘government overreaching’ or

‘fraud in the inducement.’ ” This evidence could then enter the court’s calculus for interpreting or modifying the meaning of the plea agreement.

192 What exactly is overreaching? It is something less than outright also supra notes 164–165 and accompanying text (questioning what might constitute overreaching after Al-Arian ).

190. United States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199–201 (10th Cir. 1997)

(“Rockwell’s attorneys simply could not have understood the plea agreement to include a term not within the completely integrated written instrument . . . .”). Furthermore,

Rockwell involved a corporate defendant, presumably with more resources and bargaining power than the typical individual criminal defendant. Id. at 1201; see also discussion of

Rockwell at supra notes 102–108 and accompanying text.

191. Of course, the Rockwell court found no ambiguity. In fact, it even distinguished

Garcia, noting that Garcia permitted extrinsic evidence to “prove that an additional term existed, notwithstanding the apparently unambiguous nature of the written plea agreement itself. In that case, however, it was clear that there was no dispute as to the government’s contemporaneous additional promise and no evidence that the additional agreement was extinguished by an integration clause.” Rockwell , 124 F.3d at 1200. Note that a determination of integration would not matter in the proposed overreaching approach, but that a combined finding of no overreaching and no ambiguity would act almost as a substitute for such a finding.

192. United States v. White, 366 F.3d 291, 295 (4th Cir. 2004) (citing United States v.

Garcia, 956 F.2d 41, 44 & n.4 (4th Cir. 1992)); see also supra notes 150, 155–156

(discussing overreaching).

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874 COLUMBIA LAW REVIEW [Vol. 110:840 fraud, but more than a simple unilateral misunderstanding.

193 Overreaching, as the name suggests, means that the government did not play fair, or somehow failed to meet the standard of professional conduct required of public prosecutors. If a merger clause in a commercial contract claims to nullify all prior agreements, a promise made to one party to induce the other party to agree to a contract that does not actually contain that promise might not be enough to overcome a completely integrated agreement.

194 However, the idea of “the merger clause [as something] that the parties freely chose to include in their contract” 195 loses traction in the plea bargain context thanks to the boilerplate nature of many integration clauses, the high stakes constitutional concerns, and the discrepancy in bargaining power between unevenly situated parties.

Overreaching skates along the ideological border with fraud, but despite the similarities, the two can be distinguished. Overreaching implies faulty dealing on the government’s part, and a defendant does not necessarily have to prove that the government did so knowingly or through

“artifice or concealment,” like she would in an attempt to prove fraud.

196

Instead of focusing on the subjective motivations and actions of the government by asking whether the government knowingly misled the defendant, the overreaching inquiry asks an objective question, focusing on the outcome and events. It examines whether the parties made a prior agreement that the defendant relied upon in entering into the contract, and whether that agreement made it into the writing. As the Garcia court found, failure to incorporate a promise or representation relied on by the defendant while entering her plea should prove unacceptable, regardless of whether it was due to “governmental overreaching, inadvertent omission, the dereliction of defense counsel, or some combination of those factors.” 197 Claims of government overreaching here are less drastic than

193. “Neither side should be able . . . unilaterally to renege or seek modification simply because of uninduced mistake or change of mind.” United States v. Harvey, 791

F.2d 294, 300 (4th Cir. 1986). Such an approach conforms not only to “policies reflected in private contract law from which it is directly borrowed, but also to constitutional concerns of fundamental fairness in ‘bargaining’ for guilty pleas . . . .” Id.; see also United

States v. Altro (In re Altro), 180 F.3d 372, 373–76 (2d Cir. 1999) (rejecting defendant’s argument that text should be read in light of implicit understanding he perceived “because the affirmation of Altro’s attorney does not indicate that the Government here made any statement—oral or written” to that effect).

194. See UAW-GM Human Res. Ctr. v. KSL Recreation Corp., 579 N.W.2d 411, 418

(Mich. Ct. App. 1998) (“[A] merger clause nullifies all antecedent claims . . . includ[ing] any collateral agreements that were allegedly an inducement for entering into the contract. . . . [P]arol evidence regarding false representations in a collateral agreement that induced the plaintiff to enter into the contract would vary the terms of the contract.”).

195. Id.

196. Id. at 419 (internal quotation marks omitted) (quoting 3 Arthur Linton Corbin,

Corbin on Contracts § 578, at 411 (1960)).

197.

Garcia , 956 F.2d at 44. Note that if defense counsel egregiously fails to include an agreed-upon term in the agreement, the defendant has other options to challenge her conviction, such as bringing a claim of ineffective assistance of counsel in a collateral



2010] PAROL EVIDENCE AND PLEA AGREEMENTS 875 fraud, and thus allow the defendant to present her evidence without having to show intent to deceive on the government’s part. Given the difference in bargaining power between the parties, the difficulty for the defendant in proving a prosecutor’s state of mind, and constitutional concerns discussed in Part I.A, it seems misguided to place the burden on the defendant to show the prosecutor’s intent.

198

Additionally, a showing of overreaching merely permits the defendant to present her extrinsic evidence to assist the court in modifying or interpreting the plea agreement terms. And if it finds a breach of those terms, the court determines the remedy, which might be a reduction in sentence or contract reformation, 199 whereas proving governmental fraud “makes a contract voidable at the instance of the innocent party,” 200 allowing the defendant to set aside the entire agreement. As a fraud claim carries the serious implications of voiding the entire contract, it can, and probably should be, much more difficult for a defendant to win.

Normally, courts will admit extrinsic evidence to establish fraud.

201

However, some courts actually employ the parol evidence rule to proceeding. Massaro v. United States, 538 U.S. 500, 504–05, 509 (2003); see also infra note

212 (discussing derelictions in plea agreements).

198. After all, not every case where the government takes advantage of the parties’ failure to anticipate a consequence of the agreements arises out of bad faith. See Altro , 180

F.3d. at 380 (Shadur, J., dissenting) (arguing prosecution should not be able to take advantage of omission, regardless of whether it was made in bad faith or by accident). The

Restatement contemplates scenarios in which the nondisclosure of fact acts as the functional equivalent of making an assertion, including situations when disclosure of the omitted fact would prevent a prior assertion from becoming fraudulent, when it would correct “a mistake of the other party as to a basic assumption on which that party is making the contract,” and would flunk the requirements of good faith and fair dealing, or where it

“would correct a mistake of the other party as to the contents or effect of a writing.

” Restatement

(Second) of Contracts § 161 (1981) (emphasis added). My overreaching scenario does not necessarily describe outright misrepresentation by omission or failure to correct fundamental assumptions about the contract, but one might suppose that the prosecutor, as a public officer, operates under a heightened duty of good faith and fair dealing when making a contract that affects such fundamental liberties as a plea bargain does.

199.

Garcia , 956 F.2d 41, 46 (“In this case, the only consequence of the breach of the plea agreement has been an increase in Garcia’s bargained-for sentence. Accordingly, we believe that resentencing is the proper § 2255 relief.”). Would the court have opted for a different form of relief had Mr. Garcia raised this issue as a direct appeal? Perhaps, but perhaps not. Cf. United States v. White, 366 F.3d 291, 303 (4th Cir. 2004) (remanding case for evidentiary hearing when defendant brought § 2255 petition for relief based upon facts similar to those in Garcia ). The use of contract remedies here allows courts the flexibility to tailor the remedy to the situation at hand.

200. UAW-GM Human Resource Ctr., 579 N.W.2d 411, 418 (Mich. Ct. App. 1998)

(quoting 3 Arthur Linton Corbin, Corbin on Contracts § 580 (1960)).

201. Restatement (Second) of Contracts § 214(d) (stating parol evidence admissible to show “illegality, fraud, duress, mistake, lack of consideration, or other invalidating cause”). There are other ways to get extrinsic evidence in for consideration. As discussed earlier, courts will also admit extrinsic evidence as a guide in determining the degree of integration or ambiguous language in a contract. See supra notes 47, 57 and accompanying text.

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“bar[ ] . . . extrinsic evidence of promissory fraud” if faced with an integration clause repudiating all prior agreements or inducements.

202 Since the integration clause is seen as “merging” all prior agreements into the final agreement, it can be seen as wiping away any other representations made during negotiations. Thus, fraud that relates solely to an oral agreement [later] nullified by a valid merger clause would have no effect on the validity of the contract. . . . [T]he only fraud that could vitiate the contract is fraud that would invalidate the merger clause itself, i.e., fraud relating to the merger clause or fraud that invalidates the entire contract including the merger clause.

203

This sort of fraud would presumably entail misrepresentations about the writing itself, such as the contents of the merger clause or the substantive terms in the agreement.

204 Thus, a party seeking to void a contract based on claims of fraud or misrepresentations made by the other party to induce agreement to the contract might run into problems if the writing has an integration clause.

B.

Advantages

1.

Clarity. — The overreaching approach promotes clarity and provides courts with discretion on a case-by-case basis without forcing them into acrobatic reasoning has to manipulate or selectively invoke doctrine to reach a desired result. The plea agreement context might not be the best place for a court to delve into contract law intricacies. A rigid rule in this context—allowing an integration clause to seal the agreement definitively—would likely create unsatisfying results in sympathetic cases. It would either let the government win at a game of “gotcha,” or else force courts to selectively ignore integration clauses and the parol evidence

202. Lewelling v. Farmers Ins. of Columbus, Inc., 879 F.2d 212, 216 (6th Cir. 1989).

203.

UAW-GM Human Res. Ctr.

, 579 N.W.2d at 418 (“If by artifice or concealment, one party induces the other to suppose that the antecedent agreement is included in the writing, or to forget that agreement and to execute an incomplete writing, while describing it as complete, the written provision may be voidable on the ground of fraud.” (quoting 3

Arthur Linton Corbin, Corbin on Contracts § 578 (1960)). The court reaffirmed Corbin’s venerable pronouncement of the rules, explaining that “[i]n other words, while parol evidence is generally admissible to prove fraud, fraud that relates solely to an oral agreement that was nullified by a valid merger clause would have no effect on the validity of the contract.” Id.

204. See id. at 420 (refusing to admit extrinsic evidence to support promissory fraud claim, as there was “no allegation that [the litigant] was defrauded regarding the integration clause or defrauded into believing that the written contract included a provision requiring the hotel to use union-represented employees when it did not”). Many courts, however, do not take such a harsh stance, and in general, to “the extent that evidence of misrepresentation is admissible even if the agreement is completely integrated, it is [also] admissible in the face of the usual merger clause.” Farnsworth, supra note 44,

§ 7.4, at 430. For a defendant like Mr. Al-Arian, whose claims skirt the boundaries between fraud and additional claimed agreements, judicial attitudes toward parol evidence exclusion can matter greatly.

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 877 rule in compelling cases, despite case law supporting these doctrines in factually similar cases.

205 Finally, beginning the inquiry with the issue of overreaching by examining the record of the plea negotiations allows courts to do away with the charade that they can completely ignore all extrinsic evidence about the negotiation process.

206

Additionally, this approach streamlines and simplifies the inquiry.

Instead of spending time citing parol evidence case law that might or might not be relevant, 207 the court can focus on a simple two-pronged inquiry: If the defendant cannot show (1) overreaching or (2) that the writing is ambiguous on its face, she will lose. While this approach acts as a default rule favoring the finalized text of the agreement, it remains flexible enough to prevent either party from gaming the system by taking advantage of technicalities.

208 A focus on inducement and fair play is

205. See United States v. Melton, 930 F.2d 1096, 1098 (5th Cir. 1991) (asserting that plea agreement terms can be augmented by promise to recommend departure made in government’s cover letter). In Melton , the court neither explicitly stated that the agreement included an integration clause nor even mentioned integration, despite the presence of a paragraph that described the writing as the “final agreement,” which could not be subject to modification except through a writing signed by both parties. Id. But see

United States v. Ballis, 28 F.3d 1399, 1410 (5th Cir. 1994) (discussing parol evidence rule as banning extrinsic evidence from construction of unambiguous plea terms). Since the promise in Melton’s cover letter did not exactly conflict with the plea agreement, one might write the case off as permitting collateral agreement, especially since a promise on sentencing might be expected to be included in a guilty plea. The promise, however, would likely fail the commonly used “natural omission” test for collateral agreements. For discussion of the test, see supra note 53.

206. See United States v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988) (pointing to integration clause disavowing outside or prior agreements to support enforcement of terms as written, but also noting no extrinsic evidence of negotiation supported defendant’s construction of plea terms). In Hogan, the court first noted that “the pertinent terms of the Agreement militate[d] strongly against” the defendant’s construction, pointing to the integration clause disavowing other agreements. Id.

However, the opinion then turned to the transcript from the change-of-plea hearing, emphasizing that the defendant agreed with the Assistant U.S. Attorney’s characterization of the terms, and also disavowed other agreements in open court at that time. See also supra note 114 and accompanying text (discussing paradox of soft approach). Note that in the typical contractual interpretation case, the parol evidence rule serves to keep potentially influential extrinsic evidence away from the jury. However, in a challenge to a plea agreement, there is no jury. Even if the decision to ignore evidence is made based on the integration of the agreement, the judge will still be aware of the alleged outside evidence.

207. Such case law may not be entirely appropriate if the case revolves around a question of interpretation rather than a question of whether an additional agreement can be read into the terms. See supra notes 90–92 (describing use of parol evidence in interpreting meaning of terms).

208. See United States v. Garcia, 956 F.2d 41, 44 (4th Cir. 1992) (refusing to let government “take advantage of a rule of contract law to profit from an omission in a contract it prepared”).

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878 COLUMBIA LAW REVIEW [Vol. 110:840 consistent with general contract principles, which value good faith and fair dealing.

209

2.

Harmony with Contract and Criminal Procedure Principles. — The overreaching approach upholds the aims of the parol evidence rule.

210

Disallowing prior or contemporaneous agreements to modify an agreement, subject to two specific exceptions, reinforces the primacy of the final writing. The ambiguity exception is standard, and can be seen in every court’s approach to contract interpretation. It avoids the pitfalls of memory loss and the falsification of alleged oral agreements or statements, while ensuring dependability of contract enforcement, reducing uncertainty and needless litigation. But the crucial addition of the overreaching exception will bolster confidence in contracting, especially for the accused, who often stand at a disadvantage in terms of information and legal resources. Furthermore, the government can rest assured knowing that unless the defendant can muster strong evidence of inappropriate prosecutorial conduct—or failure to meet standards of professional responsibility—during negotiations, the agreement will stand.

While the rule serves to check the superior bargaining power of government representatives and to protect constitutional interests, it can also prove useful for the government. After all, the rule essentially tells prosecutors what not to do: If you make oral or written promises or representations to a defendant (or defense counsel) during negotiations that the defendant relies upon in her decision to enter the plea, 211 you must give warning if your intention changes and make it clear that the prior understanding no longer applies.

212 Additionally, the government should explicitly spell out what the agreement owes to and requires from the defendant in order to avoid ambiguity.

213

209. For an analysis of the Fourth Circuit’s discussion of unfair dealing, see supra notes 147–150.

210. See supra Part I.B.3 (discussing rule’s purpose).

211. As discussed supra notes 183–185 and accompanying text, to challenge the plea agreement, defendants must first produce strong evidence that proves they reasonably relied on the agreement.

212. Although the defendant will have a lawyer to study the agreement’s terms,

“derelictions on the part of defense counsel that contribute to ambiguities and imprecisions in plea agreements may not be allowed to relieve the Government of its primary responsibility for insuring precision in the agreement.” United States v. Harvey,

791 F.2d 294, 301 (4th Cir. 1986). The Harvey court explained that although private parties would be responsible for their attorneys’ “derelictions in negotiating commercial contracts, different concerns apply to bargained plea agreements. Unlike the private contract situation, the validity of a bargained guilty plea depends finally upon the voluntariness and intelligence with which the defendant—and not his counsel—enters the bargained plea.” Id. (citing Mabry v. Johnson, 467 U.S. 504, 509 (1984)). Plus, it takes two to make a deal; an oversight by only one party, such as the defense attorney, does not create these mistakes, since the government must first make the mistake. Additionally, failure of defendant’s attorney to ensure that all terms make it into the agreement must be challenged in an ineffective assistance of counsel claim.

213. Regardless of whether the textual ambiguity stemmed from lack of foresight or an attempt to take advantage of vague wording, it cost the government Mr. Garcia’s

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Moreover, the proposed overreaching exception complements the traditional acceptance of extrinsic evidence to prove fraud. Courts invalidate agreements for fraud to preserve the integrity of contracts. Likewise, the parol evidence rule should not be used to block evidence of overreaching, which shares many similarities with fraud. Since all “an integration clause does is limit the evidence available to the parties should a dispute arise over the meaning of the contract[, i]t has nothing to do with whether the contract was induced . . . by fraud,” 214 or by overreaching for that matter.

Finally, the suggested approach upholds the policies underlying plea bargaining, as courts have a strong interest in maintaining the finality of a conviction.

215 Ensuring that pleas are not entered only to be modified later promotes stability and preserves judicial resources. Operating as a rule of exclusion with only two exceptions, this Note’s proposed solution will adequately protect the finality of plea agreements. Unlike a blanket prohibition, this approach still gives judges the discretion to take the fairness and constitutional liberty interests at stake in the plea process into account.

By policing government misconduct and allowing evidence of a prior agreement into the picture when needed to either shed light on ambiguous terms or prove the existence of an additional term, this approach is in harmony with the Supreme Court’s decision in Blackledge v. Allison , which indicated that rigid per se rules of interpretation have no place in the plea bargain context.

216 An established rule that punishes ambiguity and misconduct could also help to minimize the risk of poor drafting or testimony in another proceeding. The Garcia court reasoned, “there is no general rule that, as a matter of law, ‘cooperate’ in a plea agreement means only ‘voluntary’ cooperation. The government knows the word ‘voluntary,’ and could have avoided any ambiguity by using it.” Garcia , 956 F.2d at 45; see also supra notes 141–148 (discussing

Garcia ).

214. Vigortone AG Prods., Inc. v. PM AG Prods., Inc., 316 F.3d 641, 644 (7th Cir.

2002).

215. See Santobello v. New York, 404 U.S. 257, 261 (1971) (mentioning finality of plea-based convictions as desirable).

216. 431 U.S. 63, 64 (1977) (“[F]ederal courts cannot fairly adopt a per se rule excluding all possibility that a defendant’s representations at the time of his guilty plea were so much the product of such factors as misunderstanding, duress, or misrepresentation as to make that plea a constitutionally inadequate basis for imprisonment.”).

Blackledge was not a parol evidence rule case, but the court did draw an analogy in a footnote:

The parol evidence rule has as its very purpose the exclusion of evidence designed to repudiate provisions in a written integration of contractual terms.

Yet even . . . [an integration clause disclaiming additional agreements] does not conclusively bar subsequent proof that such additional agreements exist and should be given force.

The court reasoned they could “be set aside by a court on the grounds of fraud, mistake, duress, ‘or on some ground that is sufficient for setting aside other contracts.’ ” Id. at 75 n.6 (quoting 3 Arthur Linton Corbin, Corbin on Contracts § 578, at 403, 405–07, & nn.41,

43 (1960)).

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880 COLUMBIA LAW REVIEW [Vol. 110:840 unsportsmanlike tactics by the government. Since ambiguities normally would be construed against it as the drafter, the government will have greater motivation to produce agreements with clearly and coherently enumerated terms. Clarity in drafting proves essential when spelling out a defendant’s obligations under a plea agreement, especially given that the government may seek to obtain the defendant’s testimony in a subsequent proceeding through a cooperation agreement as part of the plea deal.

217 The risk of losing the power to compel a defendant such as Mr.

Garcia or Mr. Al-Arian to testify before a grand jury in another proceeding thanks to textual ambiguity or misleading conduct during negotiations would promote transparency in bargaining.

C.

Considering Possible Pitfalls and Alternative Approaches

1.

Disadvantages. — Critics might argue that this approach operates too expansively by allowing evidence of oral agreements, even those supported by attorney testimony, to constitute a showing of overreaching.

For example, in United States v. White , Judge Williams offered a vigorous and lengthy dissent criticizing the majority’s decision to remand the case for an evidentiary hearing on whether the government made an oral agreement allowing White to take a conditional plea, as White claimed it had.

218 Judge Williams argued that White’s testimony at his plea colloquy—in which he stated that no other agreements or promises had induced him to enter his plea 219 —should bar his claims of reliance on an oral agreement and prevent an evidentiary hearing.

220 As discussed in

Part I, defendants normally give such answers during the plea colloquy in order for the court to approve a plea.

221 According to Williams, however,

217. See Daniel Richman, Cooperating Clients, 56 Ohio St. L.J. 69, 72–74 (1995)

(discussing risks for defendants involved in cooperation agreements used in plea bargaining and pressures on defense counsel to urge clients to take pleas).

218. 366 F.3d 291, 300–02, 303–12 (4th Cir. 2004) (Williams, J., dissenting). For discussion of the case, see supra notes 149–151 and accompanying text.

219. 366 F.3d at 303.

220. Id. at 306.

221. See supra notes 26–29 and accompanying text (discussing Rule 11 proceedings).

Williams distinguished United States v. Garcia, 956 F.2d 41, 41–42 (4th Cir. 1992), where the defendant also had a full Rule 11 hearing—in which the court approved the plea terms he would go on to challenge later—by noting how White presented unsworn allegations of an oral agreement in his habeas petition, whereas Garcia “presented contemporaneous documentary evidence.” White , 366 F.3d at 311 (Williams, J., dissenting). However, in addition to White’s allegation, his defense counsel submitted an affidavit swearing to his ineffective assistance in regards to entering his conditional plea, and the majority appeared to value it:

White has also offered as evidence an affidavit from his counsel during plea negotiations. [White’s counsel,] does not directly attest to entering into an oral agreement with the Government, but he does swear that he provided ineffective assistance of counsel by “not invoking the technical requirements of Rule

11(a)(2) [governing conditional pleas].” Drawing “all permissible inferences” from his affidavit in White’s favor, a court could reasonably infer that the

“technical requirements of Rule 11(a)(2),” which Heilberg failed to “invok[e],”

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2010] PAROL EVIDENCE AND PLEA AGREEMENTS 881 the only potential reason to hold an evidentiary hearing would be due to the the “unquestionabl[e]” ineffectiveness of Mr. White’s counsel, 222 which he argued was unrelated to White’s failure to mention the oral agreement during his Rule 11 hearing.

223

In addition, Williams’s floodgates concerns permeated his dissent, which began with his prediction as to the decision’s impact, which he felt would now “require an evidentiary hearing nearly every time a prisoner files a § 2255 petition 224 alleging that he was induced to plead guilty by an oral promise from the prosecutor.” 225 But as the majority in White responded, cases like these “present[ ] the type of ‘extraordinary circumstances’ that warrant an evidentiary hearing. Despite the dissent’s alarmist rhetoric, this holding does not invite a deluge of evidentiary hearings.” 226 Cases like White “must by any definition be considered rare, and

[they] simply do[ ] not encompass” nearly all defendants with habeas petitions alleging inducements to pleas, as the dissent claimed.

227 Additionally, the proposed test itself protects against floodgates concerns through its high threshold requirement that defendants must produce compelling evidence, such as a writing or affidavit from an attorney.

228 Finally, the refer to his failure to incorporate the Government’s oral promise into the final written plea agreement.”

Id. at 301 (majority opinion). Additionally, the court pointed to the Government’s

“steadfast[ ] refus[al] to introduce any affidavit or other direct evidence attesting that no

Government agent promised White he could appeal his suppression motion.” Id. at 297.

222. One might also argue that the overreaching approach might end up punishing the government too harshly for mistakes made by defense counsel. However, disparities in bargaining power, the liberty interests at stake, and the difficulty for defendants to prevail on ineffective assistance of counsel claims all support the idea that the government is better situated to prevent, and bear the costs of, sloppy drafting or misconduct during negotiations.

223.

White , 366 F.3d at 308 (Williams, J., dissenting) (“Unquestionably, Heilberg was constitutionally ineffective, and his ineffectiveness resulted in an unknowing and involuntary plea. But, as explained below, Heilberg’s ineffectiveness is immaterial to the reliability of the specific representations made by White . . . .”) (emphasis omitted).

224. See supra note 40. Federal prisoners may petition for postconviction habeas relief under 28 U.S.C. § 2255 (2006), the federal habeas statute.

225.

White , 366 F.3d at 303. Judge Williams does capture a valid point—Rule 11 hearings serve to inform the court of the plea agreement, which the judge must first approve (unlike a contract between private parties, which requires no judicial pre-approval safeguard to go into effect). “One of the major purposes of Rule 11 is to permit quick disposition of baseless collateral attacks.” Id. at 307 n.9 (internal quotation marks omitted)

(quoting Blackledge v. Allison, 431 U.S. 63, 79 n.19 (1977)). “If district courts are forced to hold an evidentiary hearing every time a habeas petitioner makes an assertion that is not patently frivolous that the prosecutor made an oral promise not contained in the plea agreement, this aim of Rule 11 is frustrated.” Id. Some might share his fear that such loosened standards might undermine the finality of plea agreements on a large scale.

Giving relief to too many defendants after sentencing runs the risk of legally sanctioning agreements neither preserved in writing nor mentioned during the plea colloquy.

226. Id. at 300.

227. Id.

228. For a discussion of the gatekeeping function of this requirement, see supra note

183.

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882 COLUMBIA LAW REVIEW [Vol. 110:840 class of evidence allowed in under this rule is not any broader than that in the classic ban on parol evidence—if anything it is narrower. Under the traditional parol evidence rule, a non-conflicting agreement can supplement a partially integrated agreement, but this approach forbids any additional terms unless overreaching or ambiguity can be shown.

229

B.

Alternatives (and Their Shortcomings)

1.

The Traditional Parol Evidence Rule. — One might question the wisdom of replacing the traditional parol evidence and interpretation rules, as they can usually operate to give relief to defendants in situations similar to that of Garcia or in cases with sympathetic facts.

230 Across the Fifth,

Tenth, and Second Circuit cases, this approach forbids the use of parol evidence altogether in the face of an integrated agreement.

231 However, given the liberty concerns at stake and the differential bargaining positions, 232 it seems rather callous to foreclose all relief based on a boilerplate integration clause disavowing other agreements. The Supreme

Court in Blackledge v. Allison warned against the dangers of a per se exclusionary rule in the plea bargain context.

233 A blanket exclusion on all evidence of prior or conflicting agreements could tempt the

“Government to resort to a rigidly literal approach in the construction of language,” 234 which is inappropriate in the plea context. The government should not be able to make a promise to a defendant and then be relieved “by claiming [later] that the language literally promises nothing to the defendant.” 235

As first-year contracts students learn, the caricature of a contract as setting an agreement in stone—“You’ve signed it, it’s in the contract so now you are bound forever”—is not only very harsh, but also quite false, since courts rescind and reform contracts for a variety of reasons.

236

229. For a discussion of partial integration, see supra notes 58–62 and accompanying text. While one might argue that non-conflicting agreements might grow out of government overreaching, the defendant still has to offer up very strong proof of such an agreement—mere claims of an oral promise will not suffice, even if they do not contradict the writing.

230. See United States v. Melton 930 F.2d 1096, 1098 (5th Cir. 1991) (allowing promise in transmittal letter to modify terms of plea agreement despite clause declaring itself parties’ “final agreement”).

231. See supra Part II.A (discussing traditional ban on parol evidence imposed by majority of circuits).

232. For a review of the constitutional and liberty interests involved, see supra notes

85–88.

233. See supra note 216 and accompanying text (discussing inappropriateness of rigid rules of interpretation for plea agreements).

234. United States v. Swinehart, 614 F.2d 853, 858 (3d Cir. 1980) (quoting United

States v. Bowler, 585 F.2d 851, 854 (7th Cir. 1978)).

235. Id.

236. Such reasons include mistake, fraud, duress, and misrepresentation. See

Farnsworth, supra note 44, §§ 7.4–7.5, at 428–35 (discussing exceptions to the parol evidence rule along with reasons for reformation).

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Moreover, a rigidly literalistic approach could potentially create absurd and inequitable results, which would ignore the concerns of fundamental fairness and constitutional rights waived by the defendant in a plea agreement. And although the outcome of cases might show that courts might be willing to manipulate the doctrine for sympathetic defendants, a straightforward and unified approach can sidestep this problem and increase predictability.

2.

The “Soft” Application of the Parol Evidence Rule. — Some cases have acknowledged the need for flexibility in the plea bargain context, 237 eschewing a rigidly literal interpretation of an integrated agreement.

238 Although a less onerous alternative, this approach can be criticized as circular, since courts will first examine the extrinsic evidence before deciding whether or not to admit it.

239 This looser approach tends to confuse doctrine, as courts will say in one breath that integration bans all extrinsic evidence of additional agreements, and note in the next that according to the record there weren’t any agreements, anyway.

240 In a case like

Garcia , a court attempting to find for the sympathetic plaintiff might have to stretch the text to find “ambiguity” in silence, whereas the overreaching proposal would allow for a straightforward decision.

241

Additionally one might argue that a decisionmaker could reach the same result by relying on other principles of contract law allowing for reformation or rescission, such as fraud or misrepresentation.

242 Alternatively, as argued in Garcia , one might contend that attaching a cover letter with an enticing promise, which was not actually included in the plea agreement terms, constitutes fraud in the inducement.

243 However, as discussed earlier, overreaching might not always be the result of a nefarious scheme by the government, and requiring proof of outright fraud or

237. Cases from the Third Circuit in particular have acknowledged the need for flexibility. See supra Part II.A.2.

238. See supra Part II.A.

239. See supra notes 69–74, 114 and accompanying text (discussing this apparent circularity in parol evidence rule).

240. See supra notes 113–114 (discussing similar reasoning in United States v. Altro

(In re Altro), 180 F.3d 372 (2d Cir. 1999)).

241. Additionally, a rule of decision that simply makes unacknowledged exceptions for sympathetic defendants might not actively discourage government overreaching or sloppy drafting as well as the overreaching approach, which simultaneously retains a sharp focus on the importance of the text and targets situations in which the government’s conduct seems less than sportsmanlike.

242. Restatement (Second) of Contracts §§ 162–164 (1981).

243. The court in Garcia noted, but declined to address, this argument. See supra note 142. The Garcia opinion’s tone implies a suspicion of intentional government conduct. As such intentional conduct was not proven, the court simply listed overreaching as one of many insufficient excuses for relieving the government of the duty to keep its promise. See supra note 147 and accompanying text.

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884 COLUMBIA LAW REVIEW [Vol. 110:840 intent to deceive on the government’s part might become too difficult for the defendant to prove.

244

C

ONCLUSION

Given the sheer number of plea agreements in the court system and the vast amount of habeas self-petitions and appeals of conviction submitted to courts every year, courts will undoubtedly come across disputes over plea terms. The cases discussed reflect a use of both contract principles and common sense by courts in interpreting the agreement terms.

Unfortunately, the current state of the doctrine involving the use of the parol evidence rule and interpretation principles is confused, unpredictable, and lacks coherence across the circuits. While the traditional ban on extrinsic evidence certainly has a place in the interpretation of plea agreements, courts should tread cautiously. The ideal uniform approach across the circuits would favor enforceability of final agreements, promote finality of pleas, and ensure fairness in special cases by making exceptions for ambiguities and overreaching that allow the defendant to present evidence of additional agreements from negotiations. In sum, the proposed approach modeled on Garcia does the best job of balancing finality concerns with the constitutional due process concerns involved with plea agreements.

245 It offers defendants protection against wrongful convictions while preserving the integrity of contracts by selectively targeting undesirable instances of misconduct in the process of plea negotiations, overreaching, and opportunistic drafting in particular.

244. For discussion of the difference between allegations of fraud and overreaching, see supra notes 196–204 and accompanying text.

245. In particular these concerns arise from the disparate bargaining power between the parties and the waiver of important constitutional rights stemming from the

“adjudicative element” inherent in the plea bargaining process. United States v. Bowler,

585 F.2d 851, 853 (7th Cir. 1978) (citing Santobello v. New York, 404 U.S. 257, 262

(1971)).

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