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Case 22-1426, Document 77, 06/29/2023, 3536038, Page157 of 258
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Case 1:20-cr-00330-AJN Document 204-3 Filed 04/16/21 Page 155 of 348

when prosecutors have used third parties as leverage in plea negotiations. Numerous courts have made clear, however, that a plea is not invalid when entered under an agreement that includes a promise of leniency towards a third party or in response to a prosecutor’s threat to prosecute a third party if a plea is not entered. See, e.g., United States v. Marquez, 909 F.2d 738, 741-42 (2d Cir. 1990) (rejecting claim that plea was involuntary because of pressure placed upon a defendant by the government’s insistence that a defendant’s wife would not be offered a plea bargain unless he pled guilty); Martin v. Kemp, 760 F.2d 1244, 1248 (11th Cir. 1985) (in order to satisfy “heavy burden” of establishing that the government had not acted “in good faith,” a defendant challenging voluntariness of his plea on grounds that the prosecutor had threatened to bring charges against the defendant’s pregnant wife had to establish that government lacked probable cause to believe the defendant’s wife had committed a crime at the time it threatened to charge her); Stinson v. State, 839 So. 2d 906, 909 (Fla. App. 2003) (“In cases involving . . . a promise not to prosecute a third party, the government must act in good faith . . . [and] must have probable cause to charge the third party.”).

The second context concerns situations in which courts have enforced prosecutors’ promises of leniency to third parties. For example, in State v. Frazier, 697 So. 2d 944 (Fla. App. 1997), as consideration for the defendant’s guilty plea, the prosecutor agreed and announced in open court that the government would dismiss charges against the defendant’s niece and nephew, who had all been charged as a result of the same incident. When the state reneged and attempted to prosecute the niece and nephew, the trial court dismissed the charges against them, and the state appealed. The appellate court affirmed the dismissal, concluding that under contract law principles, the niece and nephew were third-party beneficiaries of the plea agreement and were therefore entitled to enforce it.

Apart from voluntariness or enforceability concerns, courts have not suggested that a prosecutor’s promise not to prosecute a third party amounts to an inappropriate exercise of prosecutorial discretion.

D. State Bar Rules

During the period relevant to this Report, the five subject attorneys were members of the bar in several different states and were subject to the rules of professional conduct in each state in which they held membership.197 In determining which rules apply, OPR applied the local rules of the U.S. District Court for the Southern District of Florida (Local Rules) and the choice-of-law provisions of each applicable bar. Local Rule 11.1(f) incorporates rules governing the admission, practice, peer review, and discipline of attorneys (Attorney Admission Rules).198 Attorney Admission Rule 4(d) provides that any U.S. Attorney or AUSA employed full-time by the government may appear and participate in particular actions or proceedings on behalf of the United States in the attorney’s official capacity without petition for admission. Any attorney so appearing

197 The subjects’ membership in state bars other than Florida would not affect OPR’s conclusions in this case.
198 These rules have been in effect since December 1994.

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