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Case 1:20-cr-00330-PAE Document 310-1 Filed 07/02/21 Page 61 of 80 An entirely different situation arises when the decision not to prosecute is unconditional, is presented as absolute and final, or is announced in such a way that it induces the defendant to act in reliance thereupon. When a non-prosecution decision is conveyed in such a way, and when a defendant, having no indication to the contrary, detrimentally relies upon that decision, due process may warrant preclusion of the prosecution. Numerous state and federal courts have found that a defendant's detrimental reliance upon the government's assurances during the plea bargaining phase both implicates his due process rights and entitles him to enforcement even of unconsummated agreements. The cases are legion.?° ae See, e.g., State v. Francis, 424 P.3d 156, 160 (Utah 2017) (holding that, “[W]hen a defendant has reasonably and detrimentally relied on a plea agreement, the State should not be able to withdraw a plea agreement just because it has not yet been presented to the district court”); State v. Johnson, 360 S.W.3d 104, 115 (Ark. 2010) (holding that, “when the State has entered into an agreement not to prosecute with a prospective defendant and the defendant has performed and acted to his detriment or prejudice in reliance upon that agreement, the government must be required to honor such an agreement.”); People v. Rhoden, 89 Cal. Rptr.2d 819, 824 (Cal. App. 4th Dist. 1999) (explaining “unexecuted plea bargains generally do not involve constitutional rights absent detrimental reliance on the bargain”); United States v. Streebing, 987 F.2d 368, 372-73 (6th Cir. 1993) (holding that the defendant had to demonstrate, inter alia, that he had relied upon the government’s promise to his detriment before the promise would be enforceable); United States v. Savage, 978 F.2d 1136, 1138 (9th Cir. 1992) (explaining that a defendant’s detrimental reliance is an exception to the general rule that defendants are not entitled to enforcement of unconsummated plea agreements); State v. Parkey, 471 N.W.2d 896, 898 (lowa App. 1991) (finding that, in the absence of a showing that the defendant detrimentally relied upon an agreement with the prosecutor, dismissal was not warranted); Rowe v. Griffin, 676 F.2d 524, 528 (11th Cir. 1982) (stating that, when a promise induces a defendant to waive his Fifth Amendment rights by testifying or otherwise cooperating with the government to his detriment, due process requires that the prosecutor's promise be fulfilled); People v. Reagan, 235 N.W.2d 581, 587 (Mich. 1975) (noting that, where the defendant was prejudiced by submitting to a polygraph in exchange for an agreement that his prosecution would be dismissed, trial court erred in refusing to enforce the agreement). [J-100-2020] - 60 DOJ-OGR-00004873