United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 04-2073
                                 ________________

United States of America,                  *
                                           *
             Appellant,                    *
                                           *      Appeal from the United States
      v.                                   *      District Court for the
                                           *      Western District of Missouri.
Jamal T. Norris,                           *
                                           *
             Appellee.                     *

                                 ________________

                            Submitted: September 27, 2006
                                Filed: April 23, 2007
                                 ________________

Before LOKEN, Chief Judge, BRIGHT, WOLLMAN, ARNOLD, MURPHY, BYE,
RILEY, MELLOY, SMITH, COLLOTON, GRUENDER and BENTON, Circuit
Judges, en banc.
                            ________________

GRUENDER, Circuit Judge, with whom LOKEN, Chief Judge, WOLLMAN,
ARNOLD, RILEY and SMITH, Circuit Judges, join.

      The Government withdrew from a signed plea agreement with defendant Jamal
T. Norris. Although the district court had not yet accepted Norris’s plea of guilty, it
granted Norris’s motion for specific performance of the plea agreement. The
Government appeals, arguing that because Norris’s guilty plea was never accepted,
Norris has no grounds upon which to enforce the plea agreement. For the reasons
discussed below, we agree with the Government and reverse.
I.    BACKGROUND

       The Government’s prosecution of Norris arose from an extensive investigation
into the activities of the 51st Street Crips street gang in Kansas City, Missouri. The
investigation produced more than fifty suspects, and the potential prosecutions were
distributed among several Assistant United States Attorneys (“AUSAs”) in the
Western District of Missouri. Norris originally was charged in an eight-count
indictment with conspiracy to distribute more than 50 grams of cocaine base and other
related offenses. The actions listed in the indictment were alleged to have occurred
between April 1 and April 24, 2002. Norris initially pled guilty to one count but was
allowed to withdraw his guilty plea in March 2003.

       The Government, represented by AUSA Candace Cole, and Norris concluded
negotiations on the plea agreement at issue in this appeal on September 8, 2003. The
plea agreement called for Norris to plead guilty to Count One (conspiracy) and Count
Eight (forfeiture) in return for the Government’s promise “not to file any additional
charges or pursue additional forfeiture action against defendant arising out of the
present offenses or investigation in the Western District of Missouri.” Under the
agreement, Norris was expected to receive the mandatory minimum ten-year
sentence.1 A change-of-plea hearing was scheduled for September 12.

       On the afternoon before the plea hearing, AUSA Charles Ambrose, who was
assigned to review all cases associated with the Crips investigation, received an e-mail
noting Norris’s scheduled plea hearing the following day. Ambrose reviewed the plea
agreement and compared it to a recently prepared comprehensive overview of gang
activities uncovered during the investigation. He noted evidence that Norris was
involved in a more significant criminal conspiracy in the two years prior to the April


      1
      The plea agreement was made in accordance with Fed. R. Crim. P. 11(c)(1)(B),
under which a sentencing “recommendation or request does not bind the court.”

                                          -2-
2002 conduct listed in his indictment. Ambrose instructed AUSA Kate Mahoney,
who was to represent the Government at the plea hearing the following morning in
Cole’s absence, to make clear on the record before the court accepted Norris’s plea
that the Government construed its agreement “not to file any additional charges . . .
arising out of the present offenses or investigation” to mean only that no additional
charges would be filed for conduct occurring between April 1 and April 24, 2002, the
time period of the actions alleged in the indictment. According to Mahoney, she
decided not to discuss this interpretation with Norris’s counsel prior to the next
morning’s plea hearing due to the lateness of the hour.

        The plea agreement was executed by the parties on the morning of the change-
of-plea hearing. At the hearing, the district court placed Norris under oath and began
the standard inquiry into Norris’s competence to plead guilty. Norris stated that, at
the time of the charged conduct, marijuana use had rendered him unable to understand
that his actions violated the law. The district court voiced concern to Norris’s counsel
as to whether Norris would admit guilt to the offense. Norris stated “Yeah, I did it .
. .” and equivocated briefly before stating that at the time he “knew it was against the
law.” The plea hearing continued. After the district court had stepped through most
of the requirements of Fed. R. Crim. P. 11(b)(1) and was preparing to discuss the
provisions of the plea agreement with Norris, Mahoney interjected to state the
Government’s position that Norris could still be charged for actions occurring prior
to April 2002. Norris’s counsel immediately disagreed with that interpretation, and
the district court recessed the hearing to allow the parties to discuss the matter. The
parties could not reach a resolution. It is undisputed that the district court never
accepted a guilty plea.

       Norris was charged in a 20-count superseding indictment on October 9, 2003
with conspiracy to distribute marijuana, ecstasy and more than 50 grams of cocaine
base, possession with intent to distribute these controlled substances and possession
of firearms during and in furtherance of drug trafficking offenses. Norris moved to

                                          -3-
compel specific performance of the previous plea agreement. The district court denied
the motion on November 20, 2003, but, upon Norris’s motion for reconsideration,
granted the motion for specific performance on May 3, 2004. The district court, citing
United States v. DeWitt, 

(8th Cir. 2004), held that the Government was
bound by the terms of the signed plea agreement. Consequently, the district court
dismissed the superseding indictment because it was based upon conduct covered by
the Government’s promise in the plea agreement not to file any additional charges.2
The Government appeals, arguing that because Norris’s guilty plea was never
accepted by the district court, Norris has no grounds upon which to enforce the plea
agreement.

II.   DISCUSSION

       We have jurisdiction over an appeal by the Government from an order
dismissing an indictment under 18 U.S.C. § 3731. We review the enforceability of a
plea agreement de novo. United States v. Van Thournout, 

, 594 (8th Cir.
1996). “Contract principles often provide a useful means by which to analyze the
enforceability of plea agreements and ensure the defendant what is reasonably due
him in the circumstances.” United States v. McGovern, 

, 743 (8th Cir.
1987). “A plea agreement, however, is not simply a contract between two parties. It
necessarily implicates the integrity of the criminal justice system and requires the
courts to exercise judicial authority in considering the plea agreement and in accepting
or rejecting the plea.” 

appeal, the Government has abandoned its argument that the plea
agreement’s terms, even if enforced, did not foreclose additional charges against
Norris for conduct that occurred prior to April 1, 2002.

                                          -4-
       As an initial matter, if the court accepts a defendant’s guilty plea entered in
reliance on a plea agreement or other promise that is then not honored by the
Government, the defendant’s due process rights are violated. Mabry v. Johnson, 

, 507 (1984); see also Santobello v. New York, 

, 261-62 (1971).
No detriment, and thus no due process violation, occurs until the guilty plea is
accepted by the district court. 

(“A plea bargain standing
alone is without constitutional significance; in itself it is a mere executory agreement
which, until embodied in the judgment of a court, does not deprive an accused of
liberty or any other constitutionally protected interest.”). In the instant case, the
district court did not accept Norris’s guilty plea. Therefore, specific performance of
Norris’s plea agreement is not available on due process grounds under Mabry.3

       Absent the district court’s formal acceptance of the defendant’s guilty plea or
an express provision in the plea agreement requiring certain pre-plea performance, we
have consistently declined to recognize any bases for detrimental reliance by the
defendant that would warrant specific performance of the plea agreement on due
process or any other grounds. We reaffirm the reasoning we originally adopted from
the Fifth Circuit:

      [T]he realization of whatever expectations the prosecutor and defendant
      have as a result of their bargain depends entirely on the approval of the
      trial court. Surely neither party contemplates any benefit from the
      agreement unless and until the trial judge approves the bargain and
      accepts the guilty plea. Neither party is justified in relying substantially


      3
        We note that an order for specific performance of the plea agreement by the
Government is just one possible remedy for a due process violation. See 

n.11 (“[E]ven if respondent’s plea were invalid, Santobello expressly
declined to hold that the Constitution compels specific performance of a broken
prosecutorial promise as the remedy for such a plea; the Court made it clear that
permitting Santobello to replead was within the range of constitutionally appropriate
remedies.”).

                                          -5-
      on the bargain until the trial court approves it. We are therefore reluctant
      to bind them to the agreement until that time. As a general rule, then, we
      think that either party should be entitled to modify its position and even
      withdraw its consent to the bargain until the plea is tendered and the
      bargain as it then exists is accepted by the court.

(quoting United States v. Ocanas, 

, 358 (5th
Cir. 1980)); see also United States v. Wessels, 

, 753 (8th Cir. 1993);
United States v. Walker, 

, 390 (8th Cir. 1991) (“Whatever benefits the
parties intend to reap as a result of this [plea] agreement are contingent entirely upon
the approval of the trial court.”). We continue to recognize that this reasoning does
not apply in “cases [that] either: (1) do not deal with plea agreements that required the
court’s acceptance under Rule 11,” such as agreements that promise immunity from
prosecution in return for testimony or cooperation, “or (2) involve the breach of an
agreement after the court has accepted the defendant’s guilty plea.” 

. Therefore, before the guilty plea is accepted, either party may withdraw
from the plea agreement.4

       The Government’s right to withdraw from a plea agreement before it is
accepted by the district court is qualified by the requirement that the Government gain
no unfair advantage from the withdrawal in future proceedings against the defendant.

. For example, the Government may not make use at the
defendant’s subsequent trial of statements the defendant made during plea
negotiations or in the course of cooperating with the Government under the terms of
the plea agreement. 

also stated that “[i]n an agreement that contemplates
the defendant’s pre-plea cooperation as well as his plea of guilty, the government



      4
       Although McGovern referred to the district court’s approval of the plea
bargain as well as its acceptance of a guilty plea, we emphasize today that the district
court’s acceptance of the defendant’s guilty plea is the point at which detrimental
reliance becomes possible.

                                          -6-
must, unless and until the court rejects the plea, honor in good faith its obligations
under the agreement.” 

(emphasis added).5

      In the instant case, Norris argues that the Government may take unfair
advantage of his sworn admission of guilt made during his uncompleted plea
colloquy. Norris’s admission would not be admissible in a subsequent proceeding
against Norris in the Government’s case-in-chief. Fed. R. Evid. 410(3). However,
Norris contends that if he testifies at trial in a manner inconsistent with his admission
during the plea colloquy, the Government is not precluded from using his admission
against him for impeachment purposes or in a subsequent prosecution for perjury. See
Fed. R. Evid. 410 (establishing that a statement made by the defendant “under oath,
on the record and in the presence of counsel” during plea proceedings under Fed. R.
Crim. P. 11 is admissible in a criminal proceeding for perjury).




      5
       While pre-plea cooperation is not at issue in Norris’s case, a review of our
previous statements on the subject will prove useful in distinguishing United States
v. Young, 

(8th Cir. 2000), relied upon by Judge Melloy in his dissenting
opinion. A plea agreement that specifically requires pre-plea cooperation can be
binding because it is obviously not one in which “neither party contemplates any
benefit from the agreement unless and until the trial judge approves the bargain and
accepts the guilty plea.” 

(quoting 

). On the other hand, if a plea agreement contemplates the defendant’s
cooperation generally, without specifically requiring that the cooperation is to occur
before the district court accepts the defendant’s guilty plea, then the defendant cannot
obtain specific performance of the plea agreement (absent the district court’s
acceptance of a guilty plea) unless the defendant shows that the Government has
gained an unfair advantage over the defendant. See 

(declining to enforce a plea agreement contemplating cooperation by the defendant
where the Government withdrew from the agreement prior to the district court’s
acceptance of the defendant’s guilty plea and the defendant could not show that the
Government gained an unfair advantage over him in subsequent proceedings).

                                          -7-
       While such use of Norris’s admission would almost certainly constitute an
unfair advantage, the Government has averred before the district court, and again at
oral argument before this Court, that it will not use Norris’s plea colloquy statements
against him in any proceeding for any purpose whatsoever. Moreover, because Norris
has argued only that the Government may use its withdrawal at some point in the
future to gain an unfair advantage, the proper time for this Court to rule on the issue
is after the Government’s proceedings against Norris are complete. In any future
proceedings against Norris, the district court will be able, upon objection, to exclude
any evidence that represents an attempt to take unfair advantage of the withdrawn plea
agreement. If the Government obtains a conviction against Norris through the use of
such evidence, Norris may present the issue of unfair advantage on direct appeal of
that conviction. See 

(examining the Government’s conduct
in the defendant’s subsequent trial to determine if the Government gained an unfair
advantage over the defendant in withdrawing its consent to a plea agreement).6




      6
       Judge Melloy’s dissenting opinion argues that Norris suffered a deprivation of
due process because, although the Government will never be able to use Norris’s
admissions in court, the Government will now be cognizant of Norris’s admissions as
it proceeds with the prosecution, purportedly affecting both parties’ strategy.
However, Norris took the risk that the Government would become cognizant of his
willingness to admit guilt, and a factual basis for it, to at least some charges when he
agreed to participate in plea negotiations. Indeed, he already had entered and
withdrawn one guilty plea before the events central to this case occurred. It is not
clear how the Government would gain a strategic advantage in the instant case that it
does not gain in any case involving plea negotiations that do not result in a guilty plea.
In those cases, as in the instant case, the fact that the admissions are unusable in court
if the defendant’s guilty plea is not accepted by the district court prevents the
Government from gaining an unfair advantage.

                                           -8-
Judge Melloy’s dissenting opinion would hold that the plea agreement in this case is
enforceable under general contract principles because Norris “fully performed” his
duties under the plea agreement.7 Judge Melloy’s dissent reads our decisions in

, and United States v. Young, 

(8th Cir. 2000),
to imply that plea agreements should be enforced as simple contracts between the
defendant and the Government.8 This approach ignores the presence of a
“contractual” condition completely independent of the defendant and the
Government—the district court’s independent power under Fed. R. Crim. P. 11 to
accept or reject the defendant’s associated plea. Cf. 

(“The
danger in a pure contractual approach to plea bargaining is that it may seduce one into
thinking that the plea bargain involves only two parties, the prosecutor and the
defendant, when in fact the trial court plays a critical role in the process.”). Rule 11
serves notice to both parties to the plea agreement that the defendant’s promise to
forego his right to a jury trial and the Government’s promise not to prosecute further
any other covered acts of the defendant are merely executory until the district court
accepts the defendant’s associated guilty plea. As a result, Norris’s performance at

      7
        Although it would not affect the outcome of the case, we do not agree with the
position taken in the dissenting opinions by Judge Melloy, post at 25, and Judge Bye,
post at 20, that Norris had fully performed his duties under the plea agreement at the
change-of-plea hearing. When the hearing ended, the district court had not yet
addressed the factual basis for Norris’s plea, see Fed. R. Crim. P. 11(b)(3), and Norris
had not yet entered a guilty plea. (Norris’s statement, “I did it . . . I knew it was
against the law,” arose during questioning from the district court about his mental
competency at the beginning of the hearing after Norris equivocated about his mental
state; the “it” had no antecedent other than the title of the charge.) Given Norris’s
equivocation early in the proceeding, one cannot say with certainty that he would have
completed the proceeding by agreeing in open court with the recital of the underlying
facts in the plea agreement and entering a guilty plea based upon them. This is all the
more reason to draw a bright line at the district court’s formal acceptance of the guilty
plea.
      8
       We note that Norris argues only that the plea agreement was enforceable under
due process principles, not under general contract principles.

                                          -9-
the change-of-plea hearing could not render the plea agreement enforceable absent the
district court’s acceptance of his plea.

       DeWitt and Young are not inconsistent with the general rule that the court must
have accepted a guilty plea before the parties may be bound to an associated plea
agreement. DeWitt applied general contract principles to interpret and enforce a plea
agreement that had been accepted by the district 

. Because
DeWitt “involve[d] the breach of an agreement after the court ha[d] accepted the
defendant’s guilty plea,” 

, it is not relevant to our decision
in the instant case.

       The plea agreement in Young was enforced only to the extent that it specifically
provided for pre-plea performance. In Young, the Government and defendant Young
signed a plea agreement in which Young agreed to plead guilty in exchange for the
Government’s promise not to seek a particular sentencing enhancement and to enter
into drug-quantity stipulations beneficial to 

. As part of the
plea agreement, the Government also agreed to support Young’s release on bond
pending his change-of-plea hearing in exchange for an affidavit from Young admitting
the elements of the charged crime for use against him if he absconded before the
hearing. 

agreement stated that if Young breached the plea agreement,
“all testimony and other information he has provided at any time to attorneys,
employees or law enforcement officers of the government, to the court, or to the
federal grand jury, may and will be used against him in any prosecution or
proceeding.” 

Young indeed absconded from pre-trial supervision the day
before his scheduled plea hearing. After Young was re-captured, the Government
gave notice that it intended to introduce the affidavit at his trial, and Young moved to
suppress the affidavit. We held that Young knowingly and voluntarily waived his
right to exclude the affidavit as a statement made in the course of plea discussions.




                                         -10-


We also stated in conclusion that “the government is entitled to the benefit
of its bargain and may use the affidavit in its case against Young.” 

was decided on the basis of the defendant’s waiver of his
rights under Fed. R. Evid. 410, the defendant’s waiver was contained in the plea
agreement and operative only if the defendant breached the agreement. Therefore,
Young implicitly found that the defendant was capable of breaching, and did breach,
the plea agreement before the district court accepted his guilty plea. Importantly,
however, the provision breached was not one in which “neither party contemplates
any benefit from the agreement unless and until the trial judge approves the bargain
and accepts the guilty plea.” 

(quoting 

). Instead, the provision expressly contemplated performance that could only
occur before the district court’s acceptance of a guilty plea—the Government had to
support the defendant’s release on bond before his change-of-plea hearing, and the
defendant had to provide the affidavit to be used if he absconded. Because this
provision of the plea agreement expressly contemplated performance that could only
occur prior to the district court’s acceptance of a guilty plea, it was binding on Young,
just as a defendant’s required pre-plea cooperation under a plea agreement renders the
agreement binding on the Government. 

agreement that contemplates the
defendant’s pre-plea cooperation as well as his plea of guilty, the government must,
unless and until the court rejects the plea, honor in good faith its obligations under the
agreement.”).9

      9
        Judge Colloton’s opinion concurring in the judgment, post at 14-15, would
characterize Young purely as a waiver case, rather than as the enforcement of a
bargain between the defendant and the Government, because the court’s only authority
to enforce the affidavit-for-release-on-bond bargain would have been an implicit use
of federal common law. Because the waiver was operative only if the defendant
breached the agreement, however, the result in Young was not possible without a
finding that the court could enforce the affidavit-for-release-on-bond bargain. We see
no reason to disavow the apparent use of federal common law to enforce the affidavit-
for-release-on-bond bargain in Young, as there is no law expressly addressing

                                          -11-
III.   CONCLUSION

       We hold that a defendant generally has no right to specific performance of a
plea agreement where the Government withdraws from the agreement before the
defendant’s associated guilty plea is accepted by the district court. We recognize
exceptions to the general rule to the extent that the plea agreement specifically
contemplates pre-plea performance or if the defendant shows that the Government has
taken unfair advantage of its withdrawal from the agreement. Because Norris meets
neither exception, we vacate the district court’s order granting Norris’s motion for
specific performance of the plea agreement and dismissing the superseding
indictment. We remand for further proceedings consistent with this judgment.

COLLOTON, Circuit Judge, with whom MURPHY, Circuit Judge, joins, concurring
in the judgment.

     In his response to the petition for rehearing in this case, Jamal Norris stated that
he “agrees with the Government that the issue in this case was whether the
Government’s withdrawal from what it terms an ‘executory’ plea agreement, prior to



agreements ancillary to the entry of a guilty plea and no reason to treat such
agreements as a nullity. As Judge Colloton also recognizes, post at 13, such federal
common law could never contravene the strictures of Fed. R. Crim. P. 11 regarding
agreements to plead guilty.

       Moreover, Young does not suggest that the presence of one provision
contemplating pre-plea performance necessarily renders the entire plea agreement
enforceable absent the district court’s acceptance of the defendant’s guilty plea.
Courts must carefully consider the ancillary nature of any pre-plea exchanges relative
to the core exchange of the defendant’s promise to forego his right to a jury trial (and
other associated rights) for the Government’s promise not to prosecute further any
other covered acts of the defendant, to make certain sentencing recommendations, or
otherwise perform.

                                          -12-
Norris’ entry of a guilty plea or its actual acceptance by the district court, violated the
Due Process Clause.” I agree with Judge Gruender’s opinion that the Due Process
Clause provides no authority for ordering specific performance of the plea agreement
signed by the parties on September 5, 2003. Because Norris’s guilty plea was never
accepted by the district court, the plea agreement standing alone was “a mere
executory agreement,” which did not deprive Norris of “liberty or any other
constitutionally protected interest.” Mabry v. Johnson, 

, 507-08 (1984).

        Accepting that Santobello v. New York, 

, 262 (1971), extends to
“cover the situation where the defendant has not yet entered the plea, but has relied
on the bargain in such a way that a fair trial would no longer be possible,” Gov’t of the
Virgin Islands v. Scotland, 

, 365 (3d Cir. 1980), I also concur with the
plurality that the government has gained no unfair advantage, “such as by the use at
trial of statements made during the course of the plea negotiations.” United States v.
Wessels, 

, 753 (8th Cir. 1993). The district court may protect Norris’s
constitutional rights by prohibiting any evidentiary use of statements made in the plea
agreement or at the aborted plea hearing. Ante, at 7-8; United States v. Coon, 

, 825 (8th Cir. 1986); United States v. Kettering, 

, 678-80 (11th
Cir. 1988).

        While Norris’s constitutional claim fails for these reasons, the several opinions
filed today raise the question whether there exists a non-constitutional rule of federal
common law that creates for Norris a right to specific performance of the plea
agreement. None of the opinions explains the potential source or scope of the court’s
authority to fashion common-law rules in this context. Whatever that authority may
be, it may not be exercised to circumvent or conflict with the Federal Rules of
Criminal Procedure, see Carlisle v. United States, 

, 426 (1996), and the
suggestion of a common-law right to specific performance in this case must fail in
light of Rule 11(d)(1).



                                           -13-
        Rule 11(d)(1) provides that a defendant “may withdraw a plea of guilty before
the court accepts the plea, for any reason or no reason.” This rule necessarily implies
that a defendant may withdraw from a plea agreement, as well as from a plea of guilty,
at any time before the court accepts the plea. The rule further seems to imply that
neither party is bound by a plea agreement until the guilty plea is accepted by the
court, for the defendant’s promise at any earlier stage is illusory. Even if the rule
leaves a gap that may legitimately be filled by the courts in defining the ability of the
government to withdraw from an executory plea agreement, we should not formulate
an unbalanced common-law rule that binds the government to a plea agreement from
which the defendant may withdraw for any reason or no reason.

       Cases like United States v. DeWitt, 

, 669 (8th Cir. 2004), do apply
an interstitial federal common law to provide for uniform federal interpretation of plea
agreements that have been accepted by a district court. See United States v. Herrera,

, 773 (6th Cir. 1991). They do so, however, for the purpose of
determining the meaning of those agreements in order to enforce the substantive rule
of law established by the Constitution and Santobello. These decisions do not support
the wholesale adoption of general contract principles to govern plea agreements in
criminal cases.

       The decision in United States v. Young, 

(8th Cir. 2000), likewise
does not support such a broad proposition. The issue presented in Young was whether
the defendant knowingly and voluntarily waived his rights to exclude evidence under
Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6). 

The district court had ruled that Young was not aware of the nature of his
rights under those rules when he executed a written waiver (which was included in a
plea agreement). 

Waiver is a unilateral act, and our court held that
“Young’s waiver of his plea-statement rights was knowing and voluntary.” 

The opinion includes no discussion of a federal common law of general contract
principles, and I would not read the opinion implicitly to make a definitive statement

                                          -14-
on an issue that was not raised. See Brecht v. Abrahamson, 

, 630-31
(1993) (holding that stare decisis not applicable unless issue was “squarely addressed”
in prior decision); Webster v. Fall, 

, 511 (1925) (“Questions which
merely lurk in the record, neither brought to the attention of the court nor ruled upon,
are not to be considered as having been so decided as to constitute precedents”);
Union Elec. Co. v. United States, 

, 1297 (Fed. Cir. 2004) (holding that
implicit rejection of argument by prior panel is not binding circuit precedent); Indian
Oasis-Baboquivari Unified School District No. 40 v. Kirk, 

, 1244 (9th
Cir. 1996) (“We have . . . declined to give controlling weight to our own implicit
holdings.”); Grant v. Shalala, 

, 1341 (3d Cir. 1993); Getty Petroleum
Corp. v. Bartco Petroleum Corp., 

, 113 (2d Cir. 1988) (“a sub silentio
holding is not binding precedent”) (internal citation and quotation omitted); Sakamoto
v. Duty Free Shoppers, Ltd., 

, 1288 (9th Cir. 1985) (“[U]nstated
assumptions on non-litigated issues are not precedential holdings binding future
decisions.”); cf. ante, at 11 & n.9 (basing analysis of circuit precedent on what prior
panel “implicitly found”); post at 22-23 (Melloy, J., dissenting).10

      The parties in this case have not briefed whether there is a rule of federal
common law (or constitutional law) that provides for specific enforcement of all
agreements between a United States Attorney and a defendant that contemplate “pre-
plea performance” or that do not require acceptance by the district court. Cf. ante, at
6-7, 11-12. Such agreements, and withdrawals from such agreements by the

      10
        I do not “characterize Young purely as a waiver case . . . because the court’s
only authority to enforce the affidavit-for-release-on-bond bargain would have been
an implicit use of federal common law.” Ante, at 11 n.9. I characterize Young as a
waiver case because the only issue raised and decided was whether Young’s waiver
of rights under the plea-statement rules was knowing and voluntary. I do not
“disavow” anything in Young; I simply focus on the court’s express holding, which
said nothing about an “apparent use” of federal common law. 

consideration of the dicta set forth in Judge Gruender’s opinion to future cases in
which the issues are presented and argued.

                                         -15-
defendant or the government, may arise in a variety of circumstances, e.g., 

, none of which is presented by Norris. Because a decision about such
matters is unnecessary to resolution of this case, see ante, at 7 n.5, 12 n.9, I would
refrain from broad pronouncements in those areas.

         For these reasons, I concur in the judgment reversing the order of the district
court.

BRIGHT, Circuit Judge, dissenting.

         I join Judge Bye and Judge Melloy in dissent.

      I focus on the precise facts in this case, which, as Judge Bye states, raise a
unique and troubling situation that has not previously come before this court. See
Slip. Op. at 19. Norris had performed his part of the plea agreement when the
government voiced its reinterpretation of an essential term, effectively abandoning its
promise to perform. See Slip Op. at 24-25. As Judge Melloy states, the Government
gained an unfair advantage from Norris’s admission of guilt during the Federal Rule
of Criminal Procedure 11 colloquy and has thus violated Norris’s right to due process.
See Slip Op. at 26-28.

       Accordingly, I agree with Judge Bye and Judge Melloy that, on the facts of this
case, the government should be bound by its word and not allowed—without any good
reason—to abandon its prior promise during the change-of-plea hearing.

       Justice Oliver Wendell Holmes wrote, “Men must turn square corners when
they deal with the Government.” Rock Island, A. & L.R. Co. v. United States, 

, 143 (1920). I agree. But the government, particularly in criminal cases that
threaten to deprive a defendant of his liberty, must also turn square corners when
dealing with its citizens. In this case, the government’s conduct was inexplicable and

                                           -16-
fell short of the fair treatment that is expected from a representative of the United
States.

       The government reneged on its word. That omission is chargeable to the United
States Attorney’s Office for the Western District of Missouri and threatens to make
the word of that office not worth the paper on which it is written. Fortunately for the
country, I do not believe that federal prosecutors in other districts are in the mold of
the Western District of Missouri.

      Whether in criminal or civil litigation, or otherwise in the practice of law, a
lawyer’s word ought to be his or her bond.

BYE, Circuit Judge, with whom BENTON, Circuit Judge, joins, dissenting.

       I join in the result proposed by Judge Melloy’s dissent. Norris’s signed and
nearly accepted plea agreement should be enforced. I write separately because I
believe we should reach this result for a different reason, and I disagree with the size
of the step Judge Melloy would have us take.

       Judge Gruender’s plurality opinion starts with Mabry v. Johnson, 

(1984), and notes Norris has not triggered a due process right to enforce his plea
agreement, as it was not yet accepted by the district court. In Mabry, the Supreme
Court established a bright line rule when it held: “A plea bargain standing alone is
without constitutional significance; in itself it is a mere executory agreement which,
until embodied in the judgment of a court, does not deprive an accused of liberty or
any other constitutionally protected interest.” 

What the plurality does not
consider, is that Mabry was a habeas corpus case. The petitioner needed to implicate
the Constitution in order to sustain his claim. Such is not the case here. The question




                                         -17-
thus becomes: Can we enforce Norris’s plea agreement in the face of Mabry? I
believe we can.

        It is true we have previously used language which seemingly precludes a
departure from the Mabry bright line rule, even outside of the habeas corpus context.
See United States v. McGovern, 

, 746 (8th Cir. 1987) (“[A] defendant
is not justified in relying on the terms of the plea agreement until the judge approves
it and accepts the guilty plea.”); United States v. Walker, 

, 390 (8th Cir.
1991) (“Surely neither party contemplates any benefit from the agreement unless and
until the trial judge approves the bargain and accepts the guilty plea. Neither party is
justified in relying substantially on the bargain until the trial court approves it.”). As
Judge Melloy makes clear, however, both McGovern and Walker are factually
distinguishable from the present case. The district court in McGovern rejected the
plea agreement. 

. In contrast, in the instant case, there
was absolutely no indication the district court would have rejected the plea. In fact,
as the district court had already fulfilled most of its Rule 11 requirements before the
government interrupted with its “clarification,” there is every indication the court
would have accepted the plea agreement. In Walker, the plea agreement had already
been accepted by the district court, and the issue was whether the government had
breached the agreement because the probation office acted contrary to its terms at the
district court’s direction. 

. We found the district court had
essentially rejected the plea agreement when it directed the probation office to act
contrary to its terms. 

Again, in the instant case, the facts strongly suggest
the district court would have accepted rather than rejected the plea agreement. More
importantly, in Walker we held: “As a general rule, then, we think that either party
should be entitled to modify its position and even withdraw its consent to the bargain
until the plea is tendered and the bargain as it then exists is accepted by the court.”

(emphasis added). This language does not present the bright line rule of
Mabry. Our use of the phrase “general rule” leaves open the possibility of an



                                          -18-
exception. The instant case presents a prime situation in which to invoke such an
exception.

      We have never before been confronted by a situation like the one presented
here—where the defendant and government have signed a plea agreement; the
defendant has literally reached the last point in the proceedings before the court
accepts his plea; the defendant has relied on the agreement such that he testified under
oath about his guilt; and the court has shown every indication it will accept the plea.
These facts, combined with the improper behavior of the government, justify a
deviation from the general rule.

       Judge Melloy’s dissent circumvents Mabry by presenting another way to look
at plea agreements—as simple contracts which become enforceable upon signing.
Even in the face of United States v. Young, 

(2000), this presents an
extension of our law. I am not prepared to take such a large step. Utilizing this
analysis would undoubtedly broaden the enforcement of plea agreements. As soon
as there is a signed plea agreement between the government and a defendant, this
contract could be enforced and there would be no need for detrimental reliance.
Drawing the line this early in the process creates an imbalance of power. While the
government would be bound at the time of signing, the defendant could not be
similarly bound with regard to his plea. See Fed. R. Crim. P. 11(d) (“A defendant
may withdraw a plea of guilty . . . before the court accepts the plea, for any reason or
no reason.”). In addition, the government raises the legitimate question of whether,
under this analysis, an agreement might be enforced even in the face of new
evidence.11


      11
        In his first footnote, Judge Melloy claims we do not have to decide what will
happen should the government obtain new information about a defendant after the
plea agreement has been signed, because in the instant case the government did not
obtain new information about Norris. I respectfully disagree. By not deciding, we
would be further muddying the waters of this already unclear area of the law, and

                                         -19-
        I agree with the plurality insofar as it reaffirms that a plea agreement is more
than simply a contract. We have adopted language from the Fourth Circuit explicitly
accepting that not only do federal plea agreements implicate individual constitutional
rights, they actually implicate much more: “[W]ith 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.” United States v. Thompson, 

, 1039 (8th
Cir. 2005) (quoting United States v. Harvey, 

, 300 (4th Cir. 1986))
(internal citation and quotation marks omitted). In addition, as Judge Melloy reminds
us, guilty pleas also carry great significance—significance which triggers protection
from the Due Process Clause of the Constitution. In this case and on these facts, we
should keep these concerns about honor, justice, and fundamental fairness paramount
in our minds and enforce the plea agreement. We should do so because Norris
fulfilled his end of the bargain.

        Rule 11 implies that the plea agreement’s terms are fixed when the hearing
begins. “The parties must disclose the plea agreement in open court when the plea is
offered, unless the court for good cause allows the parties to disclose the plea
agreement in camera.” Fed. R. Crim. P. 11(c)(2). “The requirement of the Rule for
full disclosure was intended, not only to permit the court to pass on the validity of the
plea, but also to insure that all the terms of the agreement will be fully understood and
agreed to by both parties.” United States v. Roberts, 

, 1006 (D.C. Cir.
1977). The plea agreement is reached and signed prior to the Rule 11 proceedings.
Rule 11 proceedings begin:

      If it has not previously been established, determine whether the plea is
      being made pursuant to a plea agreement of any kind. If so, require

would provide virtually no guidance to AUSAs and district courts regarding what they
should do in the face of new evidence after a plea agreement has been signed.

                                          -20-
      disclosure of the terms of the agreement (or if the agreement is in
      writing, require that a copy be produced for your inspection and filing).
      See Fed. R. Crim. P. 11(e)(2).

Benchbook for U.S. District Court Judges § 2.01(B) (4th ed. 2000). This is done even
before the oath is administered to the defendant. 

2.01(C). Here, the agreement
was not fully disclosed until after Norris completed most of the Rule 11 inquiry.
Fixing the agreement’s terms at the hearing’s outset also implements the Rule’s
mandate that “[t]he court must not participate in these [plea agreement] discussions.”
Fed. R. Crim. P. 11(c)(1). See United States v. Gallington, 

, 640 (8th
Cir. 1973) (“Judges are not to participate in the bargaining; their role is to be limited
to acceptance or rejection of agreements after a thorough review of all relevant
factors.”).

       In light of the foregoing, we must consider the timing of AUSA Mahoney’s
interjection. Here, the government, in attempting to “clarify” a provision in the plea
agreement during the colloquy, impermissibly involved the district court in the
negotiation process. Whether AUSA Mahoney was seeking the court’s support in her
interpretation of the provision is uncertain. Nevertheless, this court should not reward
her behavior.

        I am not accepting Judge Melloy’s complete departure from the Mabry line of
cases. Instead, I am advocating a narrow exception to this court’s “general rule.” The
line should be drawn, not at a defendant’s signing of his plea agreement, but at his
standing in court under oath and doing everything he promised to do under that
agreement. My opinion would be very different had AUSA Ambrose or AUSA
Mahoney chosen any time prior to the Rule 11 proceedings to inform Norris and his
counsel of the government’s new interpretation of the plea agreement. Because they
waited until the end of the process during the Rule 11 proceedings and after Norris
fulfilled his duties under the agreement, Norris deserves the benefit of his bargain. As
such, I heartily agree with Judge Melloy’s proposed result.

For the above reasons, I dissent.

                                          -21-
MELLOY, Circuit Judge, with whom BRIGHT, Circuit Judge, joins, dissenting.

      I believe that the Government has gained an unfair advantage by withdrawing
from its plea agreement with Norris after he pleaded guilty under oath. Therefore, I
respectfully dissent.

       Initially, I must note that I am not persuaded by Judge Gruender’s plurality
opinion and Judge Colloton’s concurrence in their attempts to circumvent what I find
to be irreconcilable circuit law. Despite the language in United States v. McGovern,

, 744 (8th Cir. 1987), United States v. Walker, 

, 390 (8th
Cir. 1991), and United States v. Wessels, 

, 753 (8th Cir. 1993), we have
repeatedly said that “[p]lea agreements are contractual in nature, and should be
interpreted according to general contract principles.” United States v. DeWitt, 

, 669 (8th Cir. 2004); see United States v. Young, 

, 911 (8th Cir.
2000) (using contract interpretation to determine that “the government is entitled to
the benefit of its bargain”). I recognize that the factual situations in DeWitt and Young
differ from the facts in this case. However, I believe these cases stand for the
proposition that plea agreements are contracts, and therefore should be governed as
such.

       In particular, I do not believe Young is as easily distinguishable as the opinions
of Judge Gruender and Judge Colloton suggest. I read Young for the proposition that
Young’s withdrawal from the plea agreement itself (not any pre-plea agreement) was
the triggering event, or breach, that allowed the Government to reap “the benefit of
its bargain.” 

. The court in Young made no mention of pre-
plea agreements; in fact, the thrust of Young was whether the plea agreement as a
whole was a valid agreement. Once the court determined that the plea agreement was
valid, traditional contract principles applied, and Young’s failure to follow through
on his agreement to plead guilty resulted in a breach. The attempt to reconcile Young

                                          -22-
with the concept that either party may withdraw from a plea agreement prior to its
acceptance by the district court is belied by the penultimate paragraph of Young,
where this Court expressed its holding:

      We are satisfied that, when Young signed the plea agreement, he was
      aware of the benefits he was securing, the rights he was foregoing, and
      the consequences of breaching the agreement. We find no evidence that
      he entered into the agreement involuntarily or unknowingly. Thus, the
      government is entitled to the benefit of its bargain . . . .

the situation in Young with the situation here, it is evident that
Norris should also receive the benefit of his bargain. In the Young case, Young and
the Government entered into a valid plea agreement. Young breached the plea
agreement before the court accepted it. Because the Government was willing to
perform, the court determined that the Government was entitled to the benefit of its
bargain. Here, it was the Government that breached before the court accepted the
agreement, and it was Norris who was willing to perform. If we were willing to abide
by traditional contract principles in Young, we must apply those principles here, as
well.

       We do not have to decide the simple issue of whether Young applies when the
roles are reversed, however, because Norris went further than simply signing a plea
agreement.12 At his change-of-plea hearing, Norris went to the podium, the court


      12
        Nor do we have to decide the respective rights of the parties when the
Government obtains new information about a defendant after the plea agreement is
signed. No such new information was obtained in this case. As the district court
found, and Judge Gruender’s plurality opinion discusses, the decision to not honor the
unexecuted plea agreement resulted from a file review by AUSA Ambrose, not the
receipt of new evidence. Moreover, in this case the Government went ahead and

                                         -23-
swore him in, and the court “address[ed] [him] personally in open court.” Fed. R.
Crim. P. 11(b)(1). The court then led him through the Rule 11(b)(1) requirements: it
made sure Norris understood the nature of the charge he was pleading to and the
maximum possible penalty; it told him that anything he said during the course of the
proceeding that is later determined to be false could subject him to prosecution for
perjury; it determined that Norris knew what he did was against the law; it determined
that Norris knew the pros and cons of pleading guilty to this charge; it determined that
Norris understood he was waiving his right to a jury trial; it explained that counsel
would be appointed for him; it told him that he had the right to subpoena witnesses
on his on behalf at trial, and to confront and cross-examine witnesses that the
Government would call; and it determined that he knew he was giving up the right to
appeal his guilty finding to a higher court. The court then asked Norris’s attorney to
summarize the terms of the plea agreement. The plea agreement required Norris to
plead guilty to Count One of the indictment: conspiracy to distribute more than fifty
grams of crack cocaine. Norris did that, stating, “I did it . . . . I knew it was against
the law.” The court then had Norris confirm that Norris’s signature was on the bottom
of the plea agreement and that he was given sufficient time to read and discuss it with
his attorney. It was at this point, when the court had nearly completed its Rule 11
inquiry, that the Government interjected and withdrew from the

agreement. The plea agreement in this case was no longer executory; Norris had fully
performed under the agreement.

        The plurality opinion makes broad statements based on both Supreme Court
and Eighth Circuit law that plea agreements have no real meaning “unless and until
the trial judge approves the bargain and accepts the guilty plea.” McGovern, 822 F.2d


signed the agreement on the morning of the plea proceeding after the file review and
with full knowledge of all relevant information. Certainly, nothing new was learned
in the few minutes between the execution of the agreement and the plea proceeding
where the contract was repudiated.

                                          -24-
at 744. It points to no cases, however, in which the defendant has actually performed
his part of the bargain. This is what makes the present case fundamentally different
from Mabry v Johnson, 

(1984), and any case we have decided, where
one of the parties to the plea agreement withdrew prior to one party actually
performing all that he promised to do in exchange for the other party’s promise.

       While I believe contract-law principles alone warrant specific performance of
the agreement in this case, the fact that this is a contract between the Government and
a criminal defendant regarding his liberty carries additional significance. We require
more than just contract law protections in plea bargain cases in order to safeguard the
defendant’s constitutional rights. See United States v. Van Thournout, 

,
594 (8th Cir. 1996) (stating that a plea agreement “must be attended by constitutional
safeguards to ensure a defendant receives the performance he [or she] is due”)
(emphasis added). Because plea agreements, “necessarily implicate[] the integrity of
the criminal justice system,” the Government must be held “to a greater degree of
responsibility” during plea negotiations than the defendant. United States v. Wood,

, 348 (4th Cir. 2004) (citing, in part, 

)
(internal marks omitted).13

      13
        Judge Gruender’s plurality opinion also cites McGovern for the proposition
that plea agreements implicate the integrity of the criminal justice system. One can
only wonder how the plurality’s analysis enhances the integrity of the criminal justice
system when it acknowledges that the Government attorneys knew they would not
honor the agreement as-written prior to its signing. As the plurality opinion notes,
AUSA Ambrose decided the evening before the plea proceeding, and before the
signing of the agreement, that he was imposing an interpretation of the agreement that
was clearly at odds with its express language. Yet neither he nor AUSA Mahoney felt
compelled to advise the defendant that the Government would not honor the
agreement as drafted prior to its signing, or to inform the court of its decision prior to
plea proceedings; AUSA Mahoney waited until the defendant had essentially
completed the Rule 11 colloquy to convey this crucial change in interpretation.



                                          -25-
       As a result of the unique setting for such agreements, the Government’s breach
has constitutional significance. Although I am willing to accept the proposition that
the mere signing of a plea agreement does not carry constitutional import, I believe
that the entry of a guilty plea by a defendant has independent constitutional
ramifications. See Hall v. Luebbers, 

, 716 (8th Cir. 2003) (“If the
defendant has not pled guilty or the trial court has not accepted a plea and entered
judgment, the defendant has not been deprived of his constitutional rights.”)
(emphasis added). The entry of a guilty plea requires a court’s involvement and it
includes the waiver, under oath, of several important constitutional rights. It also
strongly implicates the defendant’s liberty interest. Once the court is involved and has
accepted the defendant’s waiver of his constitutional rights, even if not taking the
formal step of accepting the plea agreement itself, the Government can no longer
withdraw from the agreement. At this point, the advantage the Government gains
from the guilty plea becomes unfair, see 

, and violates the
defendant’s right to fundamental fairness under the Due Process Clause. U.S. Const.
amend. V.

              As the Court stated in Santobello v. New York, 

(1971), all
of the benefits of plea bargaining “presuppose fairness in securing agreement between
an accused and a prosecutor.” 

While there is “no absolute right to have a
guilty plea accepted” by the court, a defendant’s plea “must, of course, be voluntary
and knowing and if it was induced by promises, the essence of those promises must
in some way be made known.” 

According to the Court in Santobello,



The plurality accepts the government’s proposition that it may withdraw from a
written signed plea agreement for any reason, or no reason at all, at any time prior to
its acceptance by the district court. Assuming that to be true, as the plurality opinion
holds, the credibility and good faith of the U.S. Attorney is seriously called into
question when it exercises that discretion. It is hard to envision how such a loss of
credibility by the U.S. Attorney enhances the integrity of the criminal justice system.


                                         -26-
the plea bargaining phase

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

       Norris’s plea, which was tendered to the court, was based on the Government’s
promise that it would not “file any additional charges or pursue additional forfeiture
action against defendant arising out of the present offenses or investigation.” Norris
had seen the evidence the Government had against him for his acts in 2001, and he
agreed to the Government’s offer based on this information. Thus, according to
Santobello and Mabry, the Government must now perform its end of the bargain. This
proposition is particularly true under the facts of this case, where the Government
attorneys knew at the time the agreement was signed that they did not intend to
perform as promised, yet did not disclose that fact to the defendant, his attorney, or
the court until after the Rule 11 proceeding was essentially complete.

      Judge Gruender’s plurality opinion holds that Norris cannot yet prove that the
Government has gained an unfair advantage by its failure to meet its end of the
bargain. It states that “the proper time for this Court to rule on the issue is after the
Government’s proceedings against Norris are complete.” The plurality admits that use
of Norris’s admission of guilt by the Government “would almost certainly constitute
an unfair advantage,” and they are undoubtedly correct.14 However, the Government

      14
        Judge Gruender’s plurality opinion and Judge Colloton’s concurrence both
take the Government at its word when it promised this Court that it will not use
Norris’s plea colloquy statements against him in any proceeding for any purpose.
However, the Government candidly admitted at oral argument that its promise to not

                                          -27-
has already gained an advantage by convincing Norris to admit, in open court, his part
in a conspiracy to distribute more than fifty grams of crack cocaine and provide
factual details of his involvement. This information will inform every decision the
Government and Norris now make: the Government’s decision to offer Norris another
plea agreement, the terms of that agreement, decisions the Government makes
regarding sentencing recommendations, and any decisions the Government and Norris
would make should Norris decide to go to trial. The Government would gain that
advantage, I admit, even if Norris had merely signed the plea agreement. Had Norris
withdrawn from the plea agreement before he pleaded guilty, any advantage gained
by the Government would not have been unfair. Similarly, had new evidence been
discovered relating to Norris’s case, or had the Government withdrawn prior to the
Rule 11 inquiry, any advantage would not have been unfair because Norris would
have known that this was a risk. However, because the Government waited until
Norris had fully performed under the agreement before withdrawing, the advantage
it gained in this case is unfair.

        Further, the plurality opinion’s purported remedy of allowing Norris to appeal
this issue in the future has very little practical effect. By the time Norris is “allowed”
to argue unfair advantage, he will likely have already entered into a new plea
agreement because he is now faced with a twenty-count indictment, far more prison
time, and a significant amount of evidence against him. Not only will his next plea
likely have a clause forbidding him from appealing under most circumstances, it will
likely be held valid and binding by the future appellate court because it will have been
entered into knowingly and voluntarily. See 

(“It is only
when the consensual character of the plea is called into question that the validity of


use Norris’s statements is on no higher legal footing than the promises made in the
written plea agreement, which the Government filed with the court and then
repudiated. Under the analysis of the plurality’s opinion and Judge Colloton’s
concurrence, the Government’s promise not to use the statements against Norris
would be no more enforceable than the breached promise in the plea agreement.

                                          -28-
a guilty plea may be impaired.”). The Court in Santobello did include as a possible
remedy giving the defendant the chance to withdraw his guilty plea and enter into a
new one; however, the Court assumed that the defendant in that case would “plead
anew to the original charge.” 

n.2. Whatever option
Norris now chooses will place him in a worse position than he was before the
Government withdrew its consent to the plea agreement. Because it waited to
withdraw that consent until after Norris had fully performed, I believe the Government
deprived Norris of his constitutional right to due process.

      For the foregoing reasons, I part ways with the majority, and I would grant
Norris’s motion for specific performance of the plea agreement.
                       ______________________________




                                        -29-