US v. Ahn
| Decision Date | 14 November 2000 |
| Docket Number | No. 99-3149,99-3149 |
| Citation | 343 U.S. App. D.C. 392,231 F.3d 26 |
| Parties | (D.C. Cir. 2000) UNITED STATES OF AMERICA, APPELLEE v. YONG HO AHN, APPELLANT |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] 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.
Appellant Yong Ho Ahn, a Metropolitan Police officer, pleaded guilty to violating 18 U.S.C. 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 United States v. Sun-Diamond Growers, 526 U.S. 398, 143 L. Ed. 2d 576, 119 S. Ct. 1402 (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 questioning 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.
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 massages to male customers, see D.C. CODE 47-2811, and by serving as a brothel, where male customers could purchase sexual acts from female employees, see id. 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 massages 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. 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. 201(c)(1)(B). As part of his plea agreement, Ahn agreed to cooperate with the Government "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 obstructed 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, 143 L. Ed. 2d 576, 119 S. Ct. 1402 (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 obstructed 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 reporters' motion to quash Ahn's subpoena; and (4) the Government breached the plea agreement by taking a position in favor of a sentence enhancement for Ahn's obstructing justice. We address each of these issues in turn.
A district court "may" grant a defendant's motion to withdraw 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, 301 U.S. App. D.C. 210, 993 F.2d 249, 251 (D.C. Cir. 1993); United States v. Loughery, 285 U.S. App. D.C. 255, 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 unconstitutionally or contrary to Rule 11 procedures' "--a court's assessment of a motion to withdraw the plea is " 'very lenient.' " Id. (quoting United States v. Barker, 168 U.S. App. D.C. 312, 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, 296 U.S. App. D.C. 16, 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. Second, 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. 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. 201(a)(3).
Shortly after Ahn pleaded guilty, the Supreme Court decided United States v. Sun-Diamond Growers, 526 U.S. 398, 143 L. Ed. 2d 576, 119 S. Ct. 1402 (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 because 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, 337 U.S. App. D.C. 214, 183 F.3d 833, 844 (D.C. Cir. 1999). In other words, a violation requires that "some particular official...
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