dissenting:
I regret that I am constrained to dissent from the holding of the Court in this case. In my reading of the record a plea bargain was reached, it was well understood by both parties, the accused agreed in person to it, no objection was made to it, and the agreement was binding.
As I read the critical words in the transcript reported in the majority opinion, the discussion concerning the government’s role at the time of sentencing was no more than a clarification of usual practices which obviously had been discussed between the parties at the time the defendant and his counsel were deciding whether to accept the plea bargain or not. The discussion ended in complete agreement, without the slightest indication that there had actually been a misunderstanding, and no objection was made.
Under these circumstances the objection now raised seems to me to be purely an afterthought. This clarifying informal discussion of the role that the federal prosecutor might play in the sentencing should not be used to destroy a valid plea bargain made by the parties. The fact that the defense counsel did not object is obviously not controlling because objection is not necessary when the error is fundamental. It does show, however, that there was no misunderstanding. It also shows that the institution of the discussion by the defense counsel turned out not to be for the purpose of adding something to the plea bargain but to clarify. What is critical is that at the conclusion of the colloquy nothing had been added to or taken away: the plea bargain remained as before. Under these circumstances it is overly protective of the rights of the accused to require that he again be questioned personally as to his acceptance.
Plea bargains create difficult problems and carry perils for both the accused and the accuser. But it simply stretches things too far to find difficulties and perils in this record. In my view this afterthought search of the record for some possible way to obtain a reversal should not be allowed to bear fruit. I would affirm the judgment of the district court.