United States v. Ahn, Yong Ho

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 6, 2000 Decided November 14, 2000

No. 99-3149

United States of America,

Appellee

v.

Yong Ho Ahn,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 98cr00060-01)

Jonathan Shapiro argued the cause and filed the briefs for

appellant.

Elizabeth H. Danello, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Wilma A.

Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish,

Jr., and Robert R. Chapman, Assistant U.S. Attorneys.

Before: Williams, Sentelle and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Sentelle.

Sentelle, Circuit Judge: Appellant Yong Ho Ahn, a Met-

ropolitan Police officer, pleaded guilty to violating 18 U.S.C.

s 201(c)(1)(B) by receiving illegal gratuities from massage

parlors that were flagrantly violating local law. Ahn appeals

from a district court judgment accepting his guilty plea and

sentencing him to four months incarceration and two years

supervised release. Appellant contends that in light of Unit-

ed States v. Sun-Diamond Growers, 526 U.S. 398 (1999), the

district court erred in finding that his plea had a sufficient

factual basis and that he understood the nature of the charges

against him. Ahn also argues that the Government breached

its duty of good faith and an implied promise of secrecy by

leaking information to news media about his arrest, and

submits that the district court erred in quashing a subpoena

he sought in order to obtain the confidential sources of the

reporters who broadcast the story. Finally, Ahn contends

that the Government violated the plea agreement by making

a witness available at the sentencing hearing and then ques-

tioning the witness, when it had expressly promised not to

take a position on whether Ahn had obstructed justice.

For reasons more fully set out below, we hold that the

district court did not err, and affirm Ahn's conviction and

sentence.

I. BACKGROUND

In early September 1997, Lieutenant Yong Ho Ahn, a

fifteen-year veteran of the Metropolitan Police Department of

Washington, D.C., entered a massage parlor and informed a

person associated with the parlor, a witness cooperating with

the Metropolitan Police Department ("CW-1"), that it "was

not properly licensed." As Ahn knew, the parlor violated

local law by allowing its female employees to provide massag-

es to male customers, see D.C. Code s 47-2811, and by

serving as a brothel, where male customers could purchase

sexual acts from female employees, see id. s 22-2722. On

September 3, 1997, CW-1 gave Lieutenant Ahn a controlled

payment of $1,000. Within the following three months, CW-1

gave Ahn two additional payments--one for $500 and another

for $1,500.

In early December 1997, Ahn visited a second massage

parlor, which also allowed female employees to provide mas-

sages and sexual acts to male customers. At that parlor,

Lieutenant Ahn informed another cooperating witness ("CW-

2") that the massage parlor "was not properly licensed." On

December 23, 1997, CW-2 made a controlled payment of

$3,000 to Ahn. The following month, Ahn received another

controlled payment of $2,000 from CW-2.

On February 10, 1998, Lieutenant Ahn was arrested on a

warrant charging him with receiving a bribe in violation of 18

U.S.C. s 201(b)(2)(C). After a failed plea attempt and a

series of negotiations, he agreed to plead guilty to receiving

an illegal gratuity under 18 U.S.C. s 201(c)(1)(B). As part of

his plea agreement, Ahn agreed to cooperate with the Gov-

ernment "whenever, wherever, and in whatever form" it

deemed appropriate. In exchange, the Government agreed to

inform the court of Ahn's cooperation and to abstain from

taking a position at sentencing concerning whether Ahn ob-

structed justice.

On April 28, 1998, while the case was under seal and Ahn

was secretly assisting the Government in a sting operation

attempting to catch then-Mayor Marion Barry accepting a

bribe, two televised news reports described Ahn's arrest.

The sting, set for the following day, was quickly aborted. In

light of the publicity surrounding his case, Ahn filed a motion

to withdraw his plea, contending that by leaking information

about his case the Government had breached its implied

promise to maintain the secrecy of his cooperation. The

district court denied Ahn's motion, finding that the plea

agreement contained no enforceable promise of secrecy and

that, even if there had been such a promise, Ahn failed to

carry his burden of proving that the Government breached it.

After the plea hearing, but before sentencing, the Supreme

Court decided United States v. Sun-Diamond Growers, 526

U.S. 398 (1999), which interpreted the illegal gratuity statute.

In light of the Court's interpretation, Ahn filed a second

motion to withdraw his plea, this time arguing that the

Government's factual proffer was insufficient to establish his

guilt. Again, the district court denied his motion.

At Ahn's sentencing hearing, the district court considered

allegations included in the presentence report that Ahn asked

CW-1 to tell the FBI that the money he had taken had been

returned. This allegation raised questions about whether

Ahn's sentence should be enhanced for obstructing justice.

At the hearing, the Government made a witness available to

testify about the facts underlying the allegation. Then, at the

court's direction, the Government questioned the witness.

Ahn objected based on the Government's promise not to take

a position on whether he had obstructed justice, but the court

overruled him. Ultimately, after finding that Ahn had ob-

structed justice and granting Ahn a downward departure for

his substantial assistance, the court sentenced Ahn to four

months incarceration and two years of supervised release and

imposed a special assessment of $100.

On appeal, Ahn contends that: (1) his guilty plea was taken

in violation of Rule 11 of the Federal Rules of Criminal

Procedure; (2) the district court erred in finding that his plea

agreement did not contain an implicit promise of secrecy and

that the Government did not breach its duty of good faith; (3)

the district court improperly granted the two television re-

porters' motion to quash Ahn's subpoena; and (4) the Govern-

ment breached the plea agreement by taking a position in

favor of a sentence enhancement for Ahn's obstructing jus-

tice. We address each of these issues in turn.

II. ANALYSIS

A. The Sun-Diamond Decision

A district court "may" grant a defendant's motion to with-

draw a guilty plea "if the defendant shows any fair and just

reason." Fed. R. Crim. P. 32(e). Although presentence

withdrawal motions should be "liberally granted," they are

"not granted as a matter of right." United States v. Ford,

993 F.2d 249, 251 (D.C. Cir. 1993); United States v. Lough-

ery, 908 F.2d 1014, 1017 (D.C. Cir. 1990).

On appeal, a district court's denial of a motion to withdraw

will be vacated only if "the defendant can show an abuse of

discretion." Ford, 993 F.2d at 251. In determining whether

the trial court abused its discretion, this Court considers

three factors: (1) whether the defendant "asserted a viable

claim of innocence"; (2) whether the delay between the plea

and the motion to withdraw "substantially prejudiced the

Government's ability to prosecute the case"; and (3) "whether

the guilty plea was somehow tainted." Id. (internal quotes

omitted). Because Ahn does not claim to be innocent and the

Government has not argued that the delay would prejudice its

ability to prosecute Ahn, we focus our attention on the third

factor.

If a guilty plea is tainted--that is, if it is " 'entered uncon-

stitutionally or contrary to Rule 11 procedures' "--a court's

assessment of a motion to withdraw the plea is " 'very le-

nient.' " Id. (quoting United States v. Barker, 514 F.2d 208,

221 (D.C. Cir. 1975) (en banc)). If the plea colloquy was not

conducted in "substantial compliance" with Rule 11, then the

defendant should " 'almost always' be permitted to withdraw

his plea." Id. (quoting United States v. Abreu, 964 F.2d 16,

18 (D.C. Cir. 1992) (per curiam)).

Ahn claims that his plea was tainted in two respects.

First, he argues that the Government's proffer provided an

insufficient factual basis for the illegal gratuity charge. Sec-

ond, he contends that his plea was involuntary because he

lacked an understanding of the nature of the charge against

him. We reject both claims.

Each of Ahn's claims hinges on the meaning of the illegal

gratuity statute. The statute makes it a crime for a public

official to receive or accept "anything of value personally for

or because of any official act performed or to be performed

by such official...." 18 U.S.C. s 201(c)(1)(B). An official

act is defined as "any decision or action on any ... matter

... which may at any time be pending ... in such official's

official capacity, or in such official's place of trust...." Id.

s 201(a)(3).

Shortly after Ahn pleaded guilty, the Supreme Court decid-

ed United States v. Sun-Diamond Growers, 526 U.S. 398

(1999), which interpreted the illegal gratuity statute's "for or

because of any official act" language. The Sun-Diamond

Court held that an illegal gratuity could not be proved by

merely demonstrating that a thing of value "was given be-

cause of the recipient's official position." Id. at 400. Rather,

the Government must establish a link between the gratuity

and "a specific 'official act' for or because of which it was

given." Id. at 414; accord United States v. Schaffer, 183

F.3d 833, 844 (D.C. Cir. 1999). In other words, a violation

requires that "some particular official act be identified and

proved." Sun-Diamond, 526 U.S. at 406. Following Sun-

Diamond, this Court held that an illegal gratuity "can take

one of three forms": (1) a reward for past action, (2) an

enticement to maintain a position already taken, or (3) an

inducement to take or refrain from some future official action.

Schaffer, 183 F.3d at 841-42.

1. Sufficiency of the Factual Proffer

Ahn argues that the Government failed to proffer any facts

that would demonstrate a link between the payments he

received and any official act. He suggests that, instead, the

Government's proffer only establishes that the massage par-

lors paid him solely because of his position as a police

lieutenant.

According to Rule 11, when considering a plea, the trial

court must "mak[e] such inquiry as shall satisfy it that there

is a factual basis for the plea." Fed. R. Crim. P. 11(f). To

establish a satisfactory factual basis, the Government must

proffer " 'evidence from which a reasonable juror could con-

clude that the defendant was guilty as charged.' " In re

Sealed Case, 153 F.3d 759, 771 (D.C. Cir. 1998) (quoting Ford,

993 F.2d at 253). Accordingly, the trial court may draw

reasonable inferences from the facts proffered by the Govern-

ment. See United States v. Graves, 106 F.3d 342, 345 (10th

Cir. 1997).

The Government's factual proffer established that Ahn

went to the massage parlors to tell the cooperating witnesses

that their parlors were not properly licensed. As a police

officer, Lieutenant Ahn had a duty to report the licensing

violations and to take "such immediate and proper police

action as the circumstances may demand." Metropolitan

Police Dep't Gen. Order 401.4, Part I, s D(2). The proffer

explicitly described how Ahn accepted payments from two

cooperating witnesses "associated with The Spa[s]" rather

than reporting the violations. The proffer expressly defined

"The Spa[s]" as "business[es] whereby male customers pur-

chase massages from female spa workers ... [and] may also

purchase sexual acts." In the proffer, the Government identi-

fied five different payments from the cooperating witnesses,

who were, as the proffer makes clear, associated with "The

Spa[s]," which by the proffer's own unambiguous definition

were engaged in illegal activity. Consequently, the only

conclusion that can be drawn from the proffer is that while

Lieutenant Ahn received payments from the cooperating wit-

nesses, the massage parlors continued to engage in illegal

conduct and Ahn failed to take any "immediate and proper

police action."

Although Appellant is correct that the proffer does not

explicitly state a link between the payments and an official

act, it does provide sufficient " 'evidence from which a reason-

able juror could conclude that the defendant was guilty as

charged.' " In re Sealed Case, 153 F.3d at 771 (emphasis

added) (quoting Ford, 993 F.2d at 253). A reasonable juror

could interpret the facts proffered by the Government as

demonstrating that the cooperating witnesses paid Ahn as a

reward for his not reporting the parlors' violations when he

first notified them that they were not properly licensed, as an

enticement to continue failing to report them, and as an

inducement for not reporting them in the future. Under all

of these reasonable inferences, the Government has proffered

a sufficient factual basis to establish the link between the

payments and an identified official act, or in Lieutenant Ahn's

case, an official failure to act. See Sun-Diamond, 526 U.S. at

414; Schaffer, 183 F.3d at 841-42.

We find instructive our recent decision in In re Sealed

Case, 153 F.3d 759 (D.C. Cir. 1998). In that case, the

defendant pleaded guilty to violating 18 U.S.C. s 924(c)(1),

which establishes minimum sentences for anyone who "uses

or carries a firearm" during or in relation to a drug traffick-

ing crime. Before the defendant was sentenced, however, the

Supreme Court held that to establish the "use" of a firearm

the Government must prove that it was actively employed.

See Bailey v. United States, 516 U.S. 137, 144 (1995). The

Sealed Case defendant sought to withdraw his plea based on

this holding, arguing that the Government's proffer had not

established that he had used or carried a weapon. Neverthe-

less, the proffer did demonstrate that when police officers

told the defendant to show his hands, he moved them "away

from his body and toward the corner," where the police found

a gun moments later. In re Sealed Case, 153 F.3d at 772.

We held that those facts were sufficient for a reasonable juror

to find that the defendant had tossed away the gun and

therefore was guilty of "carrying." See id. Likewise, in

Ahn's case, the Government did not explicitly state that Ahn

received the payments for or because of an official act, but

the facts it proffered were sufficient for a reasonable juror to

infer such a link.

In contrast, in cases in which courts have held that there

was an insufficient factual basis for a defendant's plea, the

government has offered no evidence to support an element of

the charge. For example, the defendant in United States v.

Ford pleaded guilty to possessing a weapon while under

indictment for a felony, see 18 U.S.C. s 922(n), and the

government "omitted the fact that a gun was recovered from

[the defendant's] bedroom"--the key fact necessary to estab-

lish that he possessed a gun. Ford, 993 F.2d at 253.

Similarly, in United States v. Sawyer, 74 F. Supp. 2d 88 (D.

Mass. 1999), on which Appellant relies, the government's

proffer was insufficient to establish a factual basis for a

violation of a Massachusetts illegal gratuity statute similar to

the one at issue here.1 In Sawyer, the government only

demonstrated that the defendant gave "free golf and other

entertainment to Massachusetts legislators." Id. at 93 n.6.

The court properly ruled that the government failed to allege

any link between the entertainment and an "identifiable,

specific, official act." Id. at 103. More significantly, howev-

er, the government failed to identify any official act, instead

wholly relying on the fact that gifts were given to state

legislators.

Ahn argues that in his case, as in Sawyer, the Government

believed that it could prosecute him based solely on his status

as a police officer. Even if Ahn is correct, this belief is not

fatal because the Government here, unlike the prosecution in

Sawyer, proffered sufficient evidence linking the payments

Ahn received to an official act. The record reveals that the

district court substantially complied with the dictates of Rule

11(f), that the factual proffer provided sufficient evidence to

establish a violation of the illegal gratuity statute, and, there-

fore, that the court did not abuse its discretion in denying

Ahn's motion to withdraw his guilty plea.

2. Voluntariness of the Plea

Ahn next contends that his plea was involuntary because he

did not understand the nature of the charge against him. He

suggests that, at the time of his plea, he understood that he

was being charged with accepting payments because of his

position as a police officer, not, as Sun-Diamond later re-

quired, because of any official act.

__________

1 In Sawyer, the defendant pleaded to guilty to mail fraud in

violation of 18 U.S.C. ss 1341, 1346. See Sawyer, 74 F. Supp. 2d at

92 & n.5. To establish federal mail fraud as alleged in that case,

the prosecution was required to prove that the defendant used the

postal system to violate Massachusetts law. The prosecution stated

that the defendant had violated the state's illegal gratuity statute,

which, like the federal statute, prohibits people from giving a public

official--and a public official from receiving--anything of substan-

tial value "for or because of any official act performed or to be

performed." Mass. Gen. Laws ch. 268A, s 3.

Before accepting a guilty plea, the trial court must engage

in a colloquy with the defendant to determine that he under-

stands "the nature of the charge to which the plea is offered,"

Fed. R. Crim. P. 11(c)(1), and, therefore, that it is voluntary,

see id. 11(d). For a plea to be voluntary under the Constitu-

tion, a defendant must receive " 'real notice of the true nature

of the charge against him.' " United States v. Dewalt, 92

F.3d 1209, 1211 (D.C. Cir. 1996) (quoting Henderson v. Mor-

gan, 426 U.S. 637, 645 (1976) (internal quotes omitted)). Real

notice is that which is "sufficient to give the defendant 'an

understanding of the law in relation to the facts' of his case."

Id. at 1212 (quoting McCarthy v. United States, 394 U.S. 459,

466 (1969)). In assessing whether the defendant has such an

understanding, the record of the plea colloquy must, based on

the totality of the circumstances, " 'lead a reasonable person

to believe that the defendant understood the nature of the

charge.' " Id. (quoting United States v. Frye, 738 F.2d 196,

201 (7th Cir. 1984), and citing United States v. Musa, 946 F.2d

1297, 1304 (7th Cir. 1991)); see also Roberson v. United

States, 901 F.2d 1475, 1477 (8th Cir. 1990) (explaining that a

defendant is "entitled to relief if the totality of the circum-

stances indicates that he did not understand the nature of the

charges to which he entered a plea of guilty").

Ahn's contention rests solely on the following statements

made by the Government during the plea hearing:

I would further proffer to the Court that [defense coun-

sel] and I have had a number of discussions about the

illegal gratuity and bribery statute. And we have dis-

cussed that under certain interpretations, it is unneces-

sary to show the payments were earmarked for a partic-

ular purpose, but rather payments can be made to an

individual because of his capacity or his particular status

within the Government.... Certainly in this case the

Government has discussed with counsel is not charging

Mr. Ahn with a quid pro quo, but rather more of a theory

of his job.

Transcript of Plea Hearing, Mar. 11, 1998, at 26. Appellant

argues that these statements suggest that Ahn understood

that the Government only needed to prove that he accepted

payments as a public official. When viewed in isolation, his

argument seems colorable. But when considered in light of

the record of the plea hearing as a whole, it falls short.

Initially, in considering the Government's statement itself,

it appears possible that the prosecutor and defense counsel

agreed that the Government only needed to establish that

Ahn received payments as a police officer. Yet, even the

Government's statement is inconclusive. In the first part of

its statement, the prosecution only said that "under certain

interpretations" the Government did not need "to show the

payments were earmarked for a particular purpose." It

never said that in this case the Government need not show

such a purpose. In fact, as explained above, the Government

proffered sufficient facts to reasonably demonstrate a particu-

lar purpose--that Ahn did nothing about the massage parlors'

flagrant violations of the law.

The second half of the prosecution's statement is equally

inconclusive. The Government correctly points out that it

was "not charging Mr. Ahn with a quid pro quo"--if it had

been, then it would have been charging him under the bribery

statute, a charge to which Ahn already refused to plea guilty.

Cf. Sun-Diamond, 526 U.S. at 405 (explaining that, in con-

trast with an illegal gratuity, "only a bribe requires proof of a

quid pro quo"); Schaffer, 183 F.3d at 841 (noting that the

bribery and illegal gratuity statutes differ because "bribery

requires a quid pro quo"); United States v. Tomblin, 46 F.3d

1369, 1379 (5th Cir. 1995) ("Under the bribery statutes, the

government must prove a quid pro quo."). Although it is

plausible to read the "theory of the job" statement to mean

that the Government was charging Ahn with receiving a

payment because of his position, such a reading ignores the

contrast the prosecution seemed to be drawing between "the

illegal gratuity and bribe statute." In context, a reasonable

person could have understood that the prosecution's reference

to a "theory of the job" meant that the Government was

charging Ahn for receiving payments that were linked to his

failure to uphold the duties of his job--that is, his failure to

report the licensing violations.

The critical inquiry is whether Ahn understood the nature

of the charges against him. The record of the plea hearing

reveals that a reasonable person would have believed that he

did. Throughout the hearing, the court asked Ahn a series of

questions focused on the nature of the crime. Significantly,

at no point during this colloquy did the court or Ahn state

that he was being charged merely for receiving payments

because he was a police officer.

First, the district court asked whether Ahn "did either

seek, or receive, or accept, or agree to receive something of

value from two witnesses, who are cooperating with the

Government ... because of formal official acts performed by

you." Transcript of Plea Hearing, Mar. 11, 1998, at 14

(emphasis added). Moments later, after giving Ahn a chance

to compose himself, the Judge again asked if he "understood

the nature of the charge against [him], ... the receipt of

illegal gratuities, something of value to perform an official

act or not." Id. at 15 (emphasis added). Ahn responded, "I

understand, Judge." Id.

Later in the colloquy, the Judge asked Ahn, "[Y]ou are

charged ... with receipt of illegal gratuities in that either you

received directly or indirectly or demanded and/or agreed to

receive, accept cash from two individuals because of official

acts to be performed or not performed by you; is that true,

sir?" Id. at 23 (emphasis added). Ahn answered, "Yes, Your

Honor." Id. at 24.

In each of these exchanges, the court spoke about Ahn's

receiving payments for performing official acts, not for being

a public actor, and in each exchange, Ahn replied that he

understood. Based on this colloquy, a reasonable person

could believe that Ahn understood the relationship between

the law and the facts.

Cases in this Circuit that have held that a defendant did

not understand the nature of the charges to which he pleaded

guilty were based on substantially more compelling circum-

stances than the instant case. In Ford, the district court did

not "elaborate the charges beyond" asking the defendant

whether he had seen and read the indictment, discussed it

with his attorney, and understood it. Ford, 993 F.2d at 253.

In addition, the court referred to the wrong charge twice and

neglected to "inform[ ] the defendant of the material details of

the charges against him." Id. at 254. In United States v.

Dewalt, 92 F.3d 1209, 1212 (D.C. Cir. 1996), the court never

mentioned that the defendant was pleading guilty to a charge

concerning possession of a weapon. Furthermore, the court

only asked whether the defendant had received a copy of and

understood the indictment, not even asking whether he had

read it. See id.; see also Henderson v. Morgan, 426 U.S.

637, 642-43, 647 (1976) (holding that defendant's plea to

second degree murder charges was involuntary when he was

a nineteen-year-old man with "substantially below average

intelligence," the trial court had not discussed the elements of

the crime, and the trial court had made no reference to the

requirement that the defendant must have intended to cause

the victim's death).

In light of the record before us, it reasonably appears that

Ahn understood the nature of the charges against him and

therefore that his plea was voluntary. Accordingly, we hold

that the trial court did not abuse its discretion in denying

Ahn's motion to withdraw his plea.

B. The Publicity of Ahn's Case

After two television stations broadcast reports detailing

Ahn's arrest, Ahn moved to withdraw his plea, claiming that

the Government had breached the plea agreement by leaking

information to the reporters. The district court denied this

motion, ruling that Ahn had not proved the Government

expressly or impliedly had promised to keep Ahn's coopera-

tion secret, that Ahn failed to establish that the Government

had leaked the information, and that any harm to Ahn was

speculative. Ahn appeals from this denial.

We review a district court's factual determinations concern-

ing a plea agreement, including its determination of whether

a breach occurred, for clear error. See United States v.

Pollard, 959 F.2d 1011, 1023-24 (D.C. Cir. 1992). In consid-

ering whether a plea agreement has been breached, we look

to principles of contract law. See United States v. Jones, 58

F.3d 688, 691 (D.C. Cir. 1995). "Although reducing an agree-

ment to a writing which in view of its completeness and

specificity reasonably appears to be a complete agreement

creates a presumption that the agreement is integrated, the

ultimate determination of integration is a question of fact to

be determined in accordance with all relevant evidence."

Bowden v. United States, 106 F.3d 433, 439-40 (D.C. Cir.

1997) (cites and internal quotes omitted). Likewise, as in all

contracts, plea agreements are accompanied by "an implied

obligation of good faith and fair dealing." Jones, 58 F.3d at

692. In the context of plea agreements, the defendant main-

tains the burden of proving that the agreement has been

breached. See United States v. Kilroy, 27 F.3d 679, 684

(D.C. Cir. 1994).

On appeal, Ahn argues that his plea agreement included an

implied promise by the Government that it would maintain

the secrecy of his arrest. According to Ahn, the Government

breached this promise by leaking the circumstances of his

arrest and plea to two television reporters. Ahn also alleges

that the Government violated its duty of good faith through

the leak.

It is clear from the record that Ahn desired to keep his

plea and cooperation secret in order to shield himself, his

family, and the Korean community. The Government's desire

for secrecy is equally clear--secrecy was imperative for suc-

cessfully executing the sting on then-Mayor Marion Barry.

Nevertheless, as the district court found, these desires do not

constitute implied promises.

Ahn acknowledges that a promise of secrecy was not

expressed in the plea agreement. The agreement did, howev-

er, include an integration clause, which specifically stated that

no other agreements or promises existed between the parties.

Standing alone, such a clause would be strong evidence that

no implied promises existed--after all, integration clauses

"establish that the written plea bargain was 'adopted by the

parties as a complete and exclusive statement of the terms of

the agreement.' " United States v. Fentress, 792 F.2d 461,

464 (4th Cir. 1986) (quoting Restatement (Second) of Con-

tracts s 210 (1981)); accord United States v. Hunt, 205 F.3d

931, 935 (6th Cir. 2000) (holding that a merger clause "normal-

ly prevents a criminal defendant, who has entered into a plea

agreement, from asserting that the government made oral

promises to him not contained in the plea agreement itself");

United States v. Alegria, 192 F.3d 179, 185 (1st Cir. 1999)

("Where, as here, an unambiguous plea agreement contains

an unqualified integration clause, it normally should be en-

forced according to its tenor."); United States v. Doyle, 981

F.2d 591, 594 n.3 (1st Cir. 1992) (explaining that this rule "has

particular applicability when, as in this case, the plea agree-

ment itself specifically states that 'there are no further or

other agreements, either express or implied,' other than those

explicitly set forth in the document").

But the integration clause does not stand alone; there is

substantial evidence that the agreement did not contain an

implied promise of secrecy, the most damning of which comes

from the Appellant himself. In accepting the agreement, Ahn

"reaffirm[ed] that absolutely no promises ... have been made

or entered into in connection with my decision to plead guilty

except those set forth in this plea agreement." At the plea

hearing, Ahn again recognized that no promise had induced

him to plead guilty other than those promises made in the

plea agreement. See Transcript of Plea, Mar. 11, 1998, at 22.

As a veteran of the police force represented by experienced

defense counsel, Appellant was aware that he could have

bargained for specific terms in the plea agreement. Yet he

knew that secrecy was not an explicit term. In fact, he

agreed to a merger clause stating that there were no other

promises made. During the hearing on the withdrawal mo-

tion, there was no testimony from the law enforcement offi-

cers who investigated Ahn's crime that the Government

would--or could--guarantee secrecy to him. See, e.g., Tran-

script of Proceedings on Defendant's Motion to Withdraw

Guilty Plea, Oct. 6, 1998, at 110. Likewise, the FBI transla-

tor who spoke to Ahn when he was arrested did not know of

any such promise. See Transcript of Proceedings on Defen-

dant's Motion to Withdraw Guilty Plea, Oct. 8, 1998, at 164.

Based on this record, the district court found that the

Government had not impliedly promised Ahn that it would

guarantee his cooperation would be kept secret. Because the

defendant failed to carry his burden of proof, these findings

were not in clear error. Certainly, "when a plea rests in any

significant degree on a promise or agreement of the prosecu-

tor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled." Santobello v.

New York, 404 U.S. 257, 262 (1971). Yet, "[w]hile the govern-

ment must be held to the promises it made, it will not be

bound to those it did not make. To do otherwise is to strip

the bargaining process itself of meaning and content." Fen-

tress, 792 F.2d at 464-65.

The district court likewise did not plainly err in finding that

Ahn failed to carry his burden of proving that the Govern-

ment caused the leak and consequently breached its obli-

gation of good faith. All of the agents who had access to the

information testified under oath or by affidavit that they did

not divulge anything about Ahn's case to the media. Ahn

failed to present a single witness or any evidence to contra-

dict the agents' sworn statements. As the district court

noted, numerous people outside the prosecution team could

have given the information to the television reporters, from

police officers in Ahn's district who knew about the massage

parlor investigation, to massage parlor operators who "knew

about Mr. Ahn," Transcript of Proceedings on Defendant's

Motion to Withdraw Guilty Plea, Oct. 6, 1998, at 124, to court

personnel who had access to information about Ahn's case.

Ahn contends that only one way exists for him to prove

that the Government caused the leak and thereby breached

its duty of good faith: by subpoenaing the reporters to reveal

their sources. When Ahn sought to subpoena the reporters,

they filed a motion to quash arguing that reporters possess a

qualified privilege not to disclose confidential sources. Cf.

Branzburg v. Hayes, 408 U.S. 665 (1972) (addressing whether

requiring reporters to testify before grand juries concerning

their confidential sources' criminal conduct violates the First

Amendment). The district court found that the reporters'

testimony was not "essential and crucial" to Ahn's case and

was not relevant to determining Ahn's guilt or innocence.

Therefore, the court concluded that Ahn had not demonstrat-

ed that the reporters' qualified privilege should be overcome.

In granting the motion to quash, the district court did not

focus on the government's duty of good faith, yet it was

plainly aware of that duty. Because we agree that Ahn failed

to carry his burden, we hold that the district court did not

make an error of law or abuse its discretion in granting the

reporters' motion.

C. The Sentencing Hearing

Ahn's final contention stems from his sentencing hearing,

during which, he argues, the Government breached its plea

agreement. According to the presentence report, Ahn ap-

proached CW-1 and asked her to tell the FBI that Ahn had

returned the payments he had received. As a result, Ahn

faced the possibility of having his sentence enhanced for

obstructing justice. See United States Sentencing Guide-

lines s 3(c)1.1.

In the plea agreement, the Government had promised Ahn

that it would not take a position on whether he should receive

an obstruction enhancement. At the sentencing hearing,

Appellant's counsel pointed to this provision of the agree-

ment, suggesting that the court would have no evidence on

which to base such an enhancement. The Government re-

sponded by informing the court that it could "make a case

agent available to the Court should the Court want to hear

that agent" testify. The court assented, stating that it want-

ed to "hear from the agent." The Government then asked,

"Does the Court wish the prosecutor to inquire?" The court

did, so the Government questioned the agent about the

allegations in the presentence report.

Appellant now argues that the Government breached the

plea agreement by taking a position on the obstruction en-

hancement. According to Ahn, the Government, while not

explicitly advocating an enhancement, effectively took a posi-

tion by not only questioning the agent, but "rehearsing" that

testimony before the hearing. This argument is unpersua-

sive.

Determining whether a plea agreement was breached

"presents a mixed question of law and fact in which the

factual aspects usually predominate." Pollard, 959 F.2d at

1023. Accordingly, we review the district court's legal conclu-

sions de novo and its factual findings for clear error. See id.

Of course, the district court is "in the best position to

determine whether the government presented an argument

that, perhaps subtly, exceeded the bounds of the agreement."

Id. Therefore, in cases such as the one before us we employ

a more deferential standard of review.

At Ahn's sentencing hearing, the Government had a duty to

provide relevant information about whether Ahn obstructed

justice, even though it had agreed not to take a stand on

whether he should receive a sentence enhancement. See

United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir. 1989)

(per curiam) ("[T]he government must bring all relevant facts

to the judge's attention."); United States v. Perrera, 842 F.2d

73, 75 (4th Cir. 1988) (explaining that the Government has "a

duty to bring all relevant information ... to the court's

attention at the time of sentencing"). Under the circum-

stances, we hold the Government acted appropriately in in-

forming the court that a witness was available to recount the

facts underlying the presentence report. Cf. United States v.

Griffin, 816 F.2d 1 (D.C. Cir. 1987).

Furthermore, the prosecution did not violate the plea

agreement by questioning the witness as instructed by the

court. Cf. United States v. Goodman, 165 F.3d 169, 173 (2d

Cir. 1999). The court specifically directed the Government to

"just ask [the witness] the basic questions." By limiting its

questions to factual material, the Government merely facili-

tated the agent's providing the court with relevant back-

ground on whether Ahn obstructed justice. As the court

explained at the sentencing hearing, the prosecution's ques-

tioning simply allowed the court "to find out what happened."

The court undoubtedly understood the nature and purpose

of this questioning. Throughout the hearing, it repeatedly

recognized that the Government was taking no position on the

obstruction enhancement. See, e.g., Transcript of Sentencing,

Nov. 16, 1999, Record Material for Appellee at 7 (recognizing

that the Government "agreed not to take a position"); id. at

12 ("The Government takes no position."); id. at 13 ("[Y]ou're

[i.e., the Government] not taking a position."). Additionally,

the court unambiguously declared that whether Ahn's sen-

tence would be enhanced was "strictly up to the Court to

decide." Id. at 12; see also id. at 19 (explaining that the

court would "make an independent judgment" on the en-

hancement). Like the trial court in United States v. Griffin,

"the District Court was clearly informed of the terms of the

plea agreement and of what the government's recommenda-

tion on penalty was to be." Griffin, 816 F.2d at 7. Accord-

ingly, the court did not clearly err in allowing the Govern-

ment to make a witness available to recount the facts of Ahn's

obstruction, and the Government did not breach the plea

agreement by questioning that witness.

III. CONCLUSION

For the reasons stated above, the district court's judgment

is

Affirmed.