United States v. Dailey
In United States v. Dailey, 759 F.2d 192 (1st Cir. 1985), the Court examined plea agreements in which the government's promise to recommend leniency depended on the "value" or "benefit" of cooperation to the government. 759 F.2d at 194-97.
The Court held that "established safeguards" - informing the jury of the precise nature of the arrangement, cross-examination, and specific instructions to weigh the cooperating witness's testimony with care - would adequately protect the defendant's due process rights against any potential prejudice arising from the government's promise. Id. at 196-97, 200.
Dailey is not directly applicable to this case because we took pains to distinguish the agreements at issue there from those in which a "promised benefit is made contingent upon a resulting indictment or conviction." Id. at 197.
However, the decision acknowledged in dictum that we could "think of no instance in which the government would be justified in making a promised benefit contingent upon the return of an indictment or a guilty verdict." Id. at 201.
The Court added "that benefits made contingent upon subsequent indictments or convictions skate very close to, if indeed they do not cross, the limits imposed by the due process clause." Id. at 201 n.9.