U.S. v. Ataya, 87-2858

• Citation: 864 F.2d 1324
• Decision Date: 14 December 1988
• Docket Number: No. 87-2858,87-2858
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Amin ATAYA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1324

864 F.2d 1324

UNITED STATES of America, Plaintiff-Appellant, v. Amin ATAYA, Defendant-Appellee.

No. 87-2858.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 7, 1988.

Decided Dec. 14, 1988.

David J. Stetler, Asst. U.S. Atty., Anton R. Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellant.

Kenneth L. Cunniff, Chicago, Ill., for defendant-appellee.

Before WOOD, Jr. and COFFEY, Circuit Judges, and GRANT, Senior District Judge. ^*

GRANT, Senior District Judge.

In this appeal we are presented with the task of interpreting the terms of a plea agreement; namely, whether the defendant, Amin Ataya, breached the cooperation clause in his plea agreement and is therefore subject to reindictment on a charge previously dismissed pursuant to that agreement. We find that the defendant breached his plea agreement and accordingly vacate the order of the district court dismissing the superseding indictment.

I.

The defendant, Amin Ataya, and a co-defendant, Mustafa Syammach, were arrested on June 11, 1986, and subsequently indicted by the United States in three counts. Count One of the indictment charged the defendant with conspiring to make and deliver counterfeit obligations in violation of 18 U.S.C. Sec. 371; Count Two charged the defendant with making counterfeit obligations in violation of 18 U.S.C. Sec. 471; and Count Three charged the defendant with delivering counterfeit obligations in violation of 18 U.S.C. Sec. 473. ¹

Prior to trial, the defendant entered into a plea agreement in which he agreed to plead guilty to Counts One and Three of the indictment (the conspiracy and delivery charges) in return for one-year of imprisonment on Count One and a five-year unsupervised probation on Count Three. The defendant also agreed to admit his alien status and to submit to deportation proceedings. The government, in turn, promised that it would move to dismiss the remaining count of the indictment (Count Two) after the defendant had been sentenced. The instant dispute surrounds the defendant's obligations under the plea agreement as set forth in the following provisions:

11. The defendant agrees he will cooperate fully with the government in any investigation in which he is called upon to cooperate that is related to or results from the charges in this case. Defendant agrees to provide complete and truthful information to government investigators, including truthful testimony, if called upon to testify, before any federal grand jury and United States District Court proceeding.

12. Specifically, defendant agrees to testify on behalf of the government in the case of United States v. Mustafa Syammach, 86 CR 462, currently pending before Judge Paul E. Plunkett.

On September 25, 1986, the defendant entered a plea of guilty to Counts One and Three of the indictment pursuant to the plea agreement. Judge Plunkett questioned the defendant as required by Rule 11 of the Federal Rules of Criminal Procedure, ² including the following exchange with regard to paragraphs 11 and 12:

THE COURT: You [the defendant] said in paragraph 11, the next paragraph, that you will agree and you have agreed to cooperate fully with the government in any investigation in which they call upon you to cooperate that is related to or results from the charges contained in this case, is that right?

THE DEFENDANT: Yes, Your Honor.

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THE COURT: So you basically have agreed that if there is a trial here, either Monday or some day thereafter, to come in and testify against Mr. Syammach and tell the jury and me all about what happened in this case, and do so truthfully, is that right?

THE DEFENDANT: Yes, Your Honor.

In accepting the defendant's plea of guilty to Counts One and Three of the indictment, the district court determined that the plea was made knowingly and voluntarily, United States v. Ellison, 835 F.2d 687, 693 (7th Cir.1987), ³ and set November 13, 1986, as the sentencing date.

The defendant initially complied with the terms of the plea agreement by cooperating with the government in the prosecution of his co-defendant, Mustafa Syammach. The defendant met with Assistant United States Attorney (AUSA) Patrick Foley prior to trial to prepare his testimony and, at trial, served as the principal witness for the prosecution. Mr. Syammach was convicted of conspiracy in violation of 18 U.S.C Sec. 371, but was acquitted on the substantive counts of making and delivering counterfeit obligations. 18 U.S.C. Secs. 471, 473.

On November 13, 1986, the district court sentenced the defendant in accordance with the plea agreement and dismissed Count Two of the indictment upon oral motion by the United States pursuant to its obligations under the agreement.

Prior to the November 18 sentencing of co-defendant Syammach, defense counsel for Mr. Syammach requested the production of additional notes from government agents. Included in these materials was exculpatory evidence that had not been turned over to the defense as required by 18 U.S.C. Sec. 3500 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). ⁴ Judge Plunkett reviewed the evidence in camera and, at a December 1 hearing, requested that the government reexamine its case against Mr. Syammach.

In light of the misgivings expressed by the district court, the government met with the defendant on December 8, 1986, to reexamine the evidence against Mr. Syammach. Although defense counsel was present at the onset of the interview, the government questioning of the defendant continued thereafter in counsel's absence but with his consent. ⁵ The defendant's responses on December 8 were consistent with his trial testimony, and a second meeting was arranged for the next day to complete the reevaluation of the government's evidence against Mr. Syammach. At the end of the December 8 meeting, AUSA Foley advised the defendant of the possibility of a retrial for Mr. Syammach.

Shortly into the meeting on December 9, the defendant indicated that Mr. Syammach "had not done anything...." ⁶ Foley replied that if Syammach had indeed done nothing in connection with the defendant's counterfeiting operations, the defendant's testimony at trial constituted perjury, to which the defendant responded "So be it." As Foley pursued the matter, the defendant retracted his prior statement that Syammach "had not done anything," contending that his trial testimony had been truthful, but refused to cooperate further with the government.

Foley contacted defense counsel and advised him of the situation. Counsel arrived at the government offices and, after conferring with the defendant, informed Foley that the defendant did not wish to testify at a second trial. At a meeting with AUSA Ferguson, the defendant reiterated his claim that he had testified truthfully at trial, but refused to testify a second time. Ferguson told the defendant that such a refusal would constitute a breach of the plea agreement. The defendant replied "Fine," and the meeting ended.

Later that day, AUSA Foley received a telephone call from defense counsel indicating that the defendant would now testify at a retrial.

Foley met with the defendant on December 11, 1986, but once again, the defendant advised Foley that he would not testify at a retrial. Foley contacted defense counsel, with still another meeting between Foley, Ferguson, the defendant, defense counsel, and the case agent.

As at the meeting on December 9, AUSA Ferguson informed the defendant that his refusal to testify constituted a breach of the plea agreement and that the government would act to remedy its rights under the plea agreement, but the defendant remained adamant in his refusal to testify at the retrial of Mr. Syammach.

The defendant was reindicted in one count for making counterfeit obligations in violation of 18 U.S.C. Sec. 471 on March 20, 1987. After pleading not guilty to the charge contained in the superseding indictment, the defendant filed a motion to dismiss the indictment on May 20, 1987. Judge Plunkett recused himself, and the case was assigned to Judge Duff, who conducted hearings on the matter over four days in July of 1987, and, on November 5, 1987, issued a memorandum opinion granting the defendant's motion to dismiss the indictment. The United States filed a timely notice of appeal pursuant to 18 U.S.C. Sec. 3731.

II.

The defendant contends that the obligations imposed in paragraph 11 are ill-defined, and, insofar as the language in the agreement is ambiguous, the agreement must be construed against the drafting party, i.e., the government. Restatement (Second) of Contracts Secs. 206, 207 comment a (1981). This Court has repeatedly criticized ambiguous provisions in plea agreements, see, e.g., United States v. Fields, 766 F.2d 1161, 1168 (7th Cir.1985); United States v. DeMichael, 692 F.2d 1059, 1062-63 (7th Cir.1982); United States v. Bowler, 585 F.2d 851, 854 (7th Cir.1978), and, in granting the defendant's motion to dismiss the superseding indictment, the district court quoted our language observing that "[t]he Government may not rely on favorable judicial construction to cure significant ambiguities in its plea agreements." United States v. Ataya, 672 F.Supp. 1096, 1098 (N.D.Ill.1987) (quoting United States v. Cook, 668 F.2d 317, 321 (7th Cir.1982)). ⁷

While acknowledging that the interpretation proffered by the government was reasonable, the district court maintained that "another interpretation, adequately supported by the facts of this case and the evidence presented at the Verrusio hearing, is that paragraph twelve contained the only promise made by Ataya with respect to the giving of testimony." Ataya, 672 F.Supp. at 1098. The district court inferred that both parties to the plea agreement anticipated but a single trial for Mr. Syammach, after which the defendant's responsibilities under the agreement would presumably be discharged. As such, the reasonable expectations of the parties upon entering the...