00-3002 U.S. v. Hare

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“Hare promised not to appeal, and he broke that promise. Defendants can obtain concessions in exchange for their promises in plea agreements only if those promises are credible. A defendant such as Hare who promises not to appeal, and then appeals anyway (requiring the United States to invest in the appeal the prosecutorial resources it sought to conserve), injures other defendants who plan to keep their promises, but can’t distinguish themselves from those who sign with their fingers crossed behind their backs.

“Dismissing the appeal is an essential but incomplete response, because the prosecutorial resources are down the drain, and dismissal does nothing to make defendants’ promises credible in future cases. But there is another remedy: If the defendant does not keep his promises, the prosecutor is not bound either. This is established for broken agreements to cooperate. A defendant who promises as part of his plea agreement to provide truthful information or testify in some other case, and who does not carry through, forfeits the benefits of the agreement, and the United States is free to reinstate dismissed charges and continue the prosecution. See United States v. Ataya, 864 F.2d 1324 (7th Cir. 1988); United States v. McCarthy, 445 F.2d 587, 591 (7th Cir. 1991) (dictum). Cf. Ricketts v. Adamson, 483 U.S. 1 (1987). So, too, with a defendant who promises not to appeal and then puts the prosecutor through the appellate process anyway. This remedy assists other defendants by enabling them to make believable promises not to appeal.

“This appeal is dismissed on the basis of Hare’s waiver of his entitlement to appeal. Hare’s failure to keep all of the promises he made in the plea agreement has the potential to relieve the United States of its promises. As the United States has not asked for this relief, we give it 14 days to notify us whether it wants to reinstate the two dismissed charges.”

So ordered.

Appeal from the United States District Court for the Northern District of Indiana, Lozano, J., Easterbrook, J.