Plea Agreement

Drafts an enforceable plea agreement formalizing the negotiated resolution of criminal charges between defendant and prosecution, compliant with Fed. R. Crim. P. 11 or state equivalents.

Prerequisites

Gather before drafting:

Case info — case number, court, presiding judge, full caption
Charge sheet — all original charges with statute citations and max penalties
Negotiated terms — plea charges, dismissed charges, sentencing concessions
Factual basis — agreed facts establishing each element of plea offense(s)
Defendant info — full legal name, aliases, DOB
Cooperation terms (if any) — debriefing, testimony, ongoing obligations

Quick Start

Collect all prerequisites above
Identify agreement type (Rule 11(c)(1)(A), (B), or (C); or state equivalent)
Draft sections in order below
Run through the pitfalls checklist before finalizing

Document Sections

Draft these sections in order:

1. Parties & Jurisdiction

| Field | Content | |-------|---------| | Defendant | Full name, aliases/AKAs, DOB, case number | | Prosecution | Office (USAO / DA), assigned prosecutor | | Court | Name, district/division, presiding judge | | Jurisdictional basis | Statutory authority |

2. Charges & Plea Specification

Table all original charges: count number, statute, offense, max penalty
Table plea charges: counts defendant pleads to (guilty or nolo contendere)
List dismissed/not-pursued charges
If charge reduction: state both original and reduced charge explicitly
Include voluntariness statement

3. Factual Basis

Stipulated facts establishing every element of each plea offense. Must cover:

Date, time, location of offense
Defendant's conduct constituting the crime
Victims, co-conspirators, relevant parties
Mental state / intent as required by statute
Aggravating or mitigating circumstances relevant to sentencing

Write so defendant can acknowledge as true. This stipulation binds defendant and may be used in subsequent proceedings.

4. Sentencing Recommendations

Identify the agreement type:

| Type | Effect | |------|--------| | Rule 11(c)(1)(A) | Charge dismissal / non-prosecution agreement | | Rule 11(c)(1)(B) | Non-binding recommendation — court may reject | | Rule 11(c)(1)(C) | Binding sentence — defendant may withdraw if court rejects |

For state cases, cite the equivalent rule.

Include as applicable: incarceration/probation recommendation, fines, restitution and payment schedule, supervised release conditions, forfeiture terms, guideline calculations, departure/variance positions, government sentencing posture, defendant's right to request different sentence.

5. Rights Waived & Retained

Waived:

Jury trial and confrontation of witnesses
Privilege against self-incrimination
Compulsory process for defense witnesses
Appeal (specify scope: sentence, conviction, or both)
Post-conviction relief (specify exceptions: ineffective assistance, prosecutorial misconduct)
Speedy Trial Act rights

Retained:

Challenge illegal sentence
Challenge voluntariness of plea
Any other negotiated retained rights

Include confirmation defendant discussed waivers with counsel.

6. Additional Terms

Address as applicable:

Cooperation obligations (testimony, debriefings, law enforcement cooperation)
Related civil/administrative proceeding agreements
Media contact restrictions
Breach provisions — consequences for each party's breach
Government's right to reinstate dismissed charges upon defendant's breach

7. Acknowledgments

Defendant affirms:

Plea is voluntary — no force, threats, or undisclosed promises
Reviewed agreement with counsel; understands all terms
Satisfied with counsel's representation
Understands charges and potential penalties
Mentally competent; not under influence of substances
Agreement constitutes entire understanding (integration clause)

8. Signature Blocks

Include signature lines with date fields for:

Defendant — full name
Defense counsel — name, bar number, certification that agreement was explained and plea is voluntary and knowing
Prosecutor — name, title, office
Judge — if required by local rules

Pitfalls & Checks

[ ] Use plain language; retain terms of art only where legally necessary
[ ] Number all paragraphs for cross-reference at plea colloquy
[ ] Verify internal consistency — dismissed charges, retained rights, and breach provisions must align
[ ] Confirm compliance with Fed. R. Crim. P. 11 (federal) or state equivalent plus local rules
[ ] For state cases, adapt all Rule 11 references to applicable state rule
[ ] Never include terms beyond what the parties actually negotiated
[ ] Flag ambiguous sentencing terms — courts scrutinize vagueness at plea hearings
[ ] For cooperation agreements, ensure defendant protections (use immunity, safe harbor provisions)