United States v. Lynda L. Transfiguracion, United States of America v. Thuy Dao

GIBSON, Circuit Judge,

dissenting:

In United States v. Barron, 172 F.3d 1153 (9th Cir.1999) (en banc), this Court held the government to the terms of a plea-bargain that failed to provide for the event that the conduct pleaded to would later turn out to be legal. The government learned its lesson and drafted a plea agreement providing that in such an event, the government could prosecute the defendant on the remaining counts. Transfigu-ración and Dao signed on to such an agreement, but today the Court has moved the goal-post and the government loses once again.

The Court asserts that the cooperation clause 1 is the “meat and potatoes of the plea agreement,” supra at 1234, and holds that once the defendant has cooperated, the punishment aspect of the agreement can go by the board. My study of the plea agreement leads me to believe that its principal object was to obtain a conviction for participation in a drug ring, and the defendant’s cooperation did not extinguish the government’s right to keep trying for a conviction and sentence.

This case is about the government’s obligation to dismiss the counts not pleaded to. That obligation is set forth in paragraph one, in which Dao agrees to plead guilty to importation of methamphetamine. The second sentence of the paragraph contains the agreement to dismiss Counts I, VI, and VIII of the indictment “upon sentencing.” (emphasis added). This language shows that obtaining a conviction and punishment is the government’s primary object in agreeing to dismiss the other counts. The government’s obligation to dismiss does not ripen until the defendant is meted out her punishment. Since that will never happen in this case, the government is not obliged to dismiss. However, the Court reads this important language out of the agreement, stating that “upon sentencing” refers only to the “timetable” of sentencing, supra at 1233. A timetable that specifies “never” negates the promise itself.

The second paragraph contains the cooperation agreement, in which Dao agrees to cooperate in investigation of the drug *1238 ring and to testify in proceedings against her co-conspirators. In return, the United States agrees to make her cooperation known to the district court before sentencing. This quid pro quo shows that the cooperation clause is integrally connected to the principal object of the agreement— punishment of Dao.

However, the Court today reads the second part of the cooperation agreement as somehow able to stand alone from the rest of the agreement. In this part of the cooperation paragraph, the government reserves the right to prosecute Dao for any non-violent crime of which “she does not fully advise the United States, or for any material omissions in this regard,” but it also agrees “not to prosecute defendant in the District of Guam or the Northern Mariana Islands for any other non-violent offenses now known to the government or which she reveals to federal authorities.” The Court today reads the words “other non-violent offenses” as pertaining to the already-indicted conduct, which puts those words at war with paragraph one. Such a reading would mean that if Dao cooperated, the government could not prosecute her for the conduct indicted but not pleaded to, regardless of whether the government obtained a conviction and sentence for the importation count pleaded to. A far more sensible reading of the cooperation clause is that “other non-violent offenses” refers to conduct “other” than that in the indictment, rather than to indicted conduct that has already been specifically dealt with in paragraph one.

This reading is confirmed elsewhere in the agreement. In paragraph nine, the agreement discusses the consequences if Dao commits one of several kinds of missteps. It says that “in addition to standing guilty of the matters to which she has pled pursuant to this agreement, [Dao] shall also be fully subject to criminal prosecution for other crimes, and for the counts which were to be dismissed.” Thus, the agreement distinguishes between “other” crimes (“other” being the same language used in paragraph two), and the indicted counts which the government agreed in paragraph one to dismiss upon sentencing.

Moreover, paragraph nine further refutes the idea that the cooperation agreement stands alone so that cooperation releases Dao without regard to the rest of the agreement. Paragraph nine states that if Dao engages in criminal conduct after the entry of the plea agreement but before sentencing, she will lose all the benefit of the plea agreement (presumably including the benefits conferred in paragraph two) notwithstanding her cooperation. Cooperation was not intended to trump the government’s other objectives in entering the plea agreement.

Finally, and most importantly, the government tried to protect itself in the event that it failed to obtain a conviction on the pleaded count, which is what has happened here. Paragraph eleven provides: “If defendant’s guilty plea is rejected, withdrawn, vacated, or reversed at any time, the United States will be free to prosecute defendant for all charges of which it then has knowledge, and any charges that have been dismissed will be automatically reinstated. ...” The Court today holds that the guilty plea was not rejected or vacated, but what else was the dismissal of the importation count to which Dao had pleaded?

By focusing on the continuing validity of the plea agreement, the Court avoids recognizing that the plea itself has been rejected. The Court relies on Barron , a habeas case, to say that Dao has not repudiated her plea agreement. Supra at 1230. That is not the point. Barron did hold that engaging in a collateral attack on a conviction obtained pursuant to a plea agreement did not amount to a repudiation *1239 of the plea agreement, which meant that the plea agreement was still enforceable. That holding is irrelevant here, since the government is trying to enforce the plea agreement in this case. 2 The plea agreement before us says that the deal to dismiss remaining counts is off if the plea, not the plea agreement, is rejected or vacated. Here, the district court correctly refused to convict on the plea, so the plea was either rejected or vacated. The plea agreement anticipated such a situation and the parties agreed that if it happened, Dao could be prosecuted on the remaining counts.

The Court stretches Barron further than it will go, by contending that Barron holds that the guilty plea was not set aside when the conviction was vacated in response to Barron’s habeas petition. Both Barron and United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir.1997), considered whether a defendant’s habeas petition to vacate a conviction breached a plea agreement, not whether vacatur of the conviction amounted to vacatur or rejection of the guilty plea. 3 Neither Barron nor Sandovalr-Lopez reached the latter question because the plea agreements in those cases did not give the government a remedy in the event of vacatur or rejection of the plea or conviction. See Barron, 172 F.3d at 1161 ; Sandoval-Lopez, 122 F.3d at 802 . The agreement in this case does.

The plain language of the plea agreement permits the government to prosecute Dao and Transfiguración on the counts not pleaded to. Contra proferentem does not simply mean, “The government loses.” I therefore must respectfully dissent.

. I, too, will discuss only Dao’s agreement, since the two are identical in material respects.

. The government’s attempt to enforce paragraph nine of the agreement is, of course, an alternative argument in case the government lost its bid to rescind the agreement, which I agree it must.

. Language in the Court's opinion that seems to say the plea is "in force” even though the district court has rejected it was taken out of context from Barron : “[T]he guilty plea to criminal acts can remain in force even as the sentence imposed upon an innocent act is set aside." Supra at 1233 (quoting Barron, 172 F.3d at 1158 ). Barron was making the point that all the counts of conviction based on a guilty plea need not be vacated simply because one of the counts of conviction has to be set aside. Barron had pleaded to three counts, one of which was set aside on habeas, but he did not want to disturb the disposition of the other two counts because he would have received a longer sentence the second time around. Here, the plea to the only count of conviction was rejected. No guilty plea was left "in force.”