930 F.2d 1246 (7th Cir. 1991), 89-1603, Marx v. United States

Docket Nº:89-1603.
Citation:930 F.2d 1246
Party Name:Dennis Purtell MARX, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Case Date:April 26, 1991
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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930 F.2d 1246 (7th Cir. 1991)

Dennis Purtell MARX, Petitioner-Appellant,


UNITED STATES of America, Respondent-Appellee.

No. 89-1603.

United States Court of Appeals, Seventh Circuit

April 26, 1991

        Argued Dec. 15, 1989.

        Cudahy, Circuit Judge, filed dissenting opinion.

        Dennis P. Marx, pro se.

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        Francis L. Goodwin, Baron, Sar, Goodwin, Gill, Lohr & Jarman, Sioux City, Iowa, for petitioner-appellant.

        Melvin K. Washington, Asst. U.S. Atty., Office of U.S. Atty., Milwaukee, Wis., for respondent-appellee.

        Before CUDAHY, EASTERBROOK, and KANNE, Circuit Judges.

        KANNE, Circuit Judge.

        The U.S. Marshal was late in delivering two cows--and therefore Dennis Purtell Marx claims that his guilty plea to drug distribution, firearms and tax charges should be thrown out. This claimed late delivery of the cows to his daughters--cows encumbered by bank liens--was, Marx asserts, a breach of his plea agreement. Marx also says that, in any event, he really didn't understand what he was pleading guilty to and therefore his plea was constitutionally infirm.

        For a number of years Dennis Purtell Marx operated a wide-spread and profitable illegal drug distribution operation from two of his Wisconsin businesses, Accurate Brass and Aluminum Foundry, Inc., and Maple Tree Farms. Both the foundry and the farm served to hide money from drug sales. As to Maple Tree Farms, cattle were purchased and improvements were made to the farming operation from drug sale proceeds. The farm was also used by Marx for other activities such as the beating administered to a drug debtor to encourage him to pay his bills. All this came to an end, however, on August 7, 1985, when Marx was charged in an indictment with twenty-six counts of criminal offenses related to his drug distribution operation.

        Thirteen months after the indictment was returned, Marx entered into an extensive and detailed plea agreement with the government. The basic plea agreement document consisted of forty-nine pages to which were added seven pages of addenda. In return for Marx's agreement to plead guilty to three of the counts in the indictment and to cooperate in ongoing investigations, the government agreed to dismiss the remaining twenty-three counts, recommend a sentence of fifteen years, and raise no opposition to Marx's continued release on bail pending sentencing. The plea agreement also provided in detail for the forfeiture, sale and disposition of Marx's business and farm assets--including delivery of twenty-one head of forfeited cattle to Marx's daughters.

        On September 8, 1986, pursuant to the plea agreement, Marx pleaded guilty to (1) operating a continuing criminal enterprise involving drug distribution, (2) possessing an unregistered AR-15 automatic rifle, and (3) filing a false federal income tax return for the year of 1983. Marx was sentenced on October 21, 1986, to twenty-five years imprisonment (later reduced by the district court to sixteen years imprisonment). No direct appeal was taken.

        Thereafter, Marx filed a request for habeas corpus relief in which he sought to vacate his sentence and withdraw his guilty plea. The district court found no merit in Marx's habeas corpus claims and refused to vacate his guilty plea. We affirm the denial of relief.


        According to Marx, the seven-month delay in placing two forfeited cows in the possession of his daughters was a government breach of the cattle-delivery requirement of the plea agreement and thus constitutes a sufficient basis to vacate his guilty plea. Marx also asserts that the government breached the plea agreement by not delivering the twenty-one head of forfeited cattle to his daughters free of encumbrances.

        To resolve these contractual claims we must interpret several relevant provisions of the plea agreement and apply these provisions to facts which are not in dispute. 1 As we held in United States v. Mooney, 654 F.2d 482, 486 (7th Cir.1981), "[a] plea

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bargain is a contract, terms of which necessarily must be interpreted in light of the parties' reasonable expectations. The resolution of each case depends upon the essence of the particular agreement and the Government's conduct relating to its obligations in that case." See also United States v. Fields, 766 F.2d 1161, 1168 (7th Cir.1985); Brooks v. United States, 708 F.2d 1280, 1281 (7th Cir.1983).

        Our focus is on those sections of the plea agreement which concern the forfeiture and disposition of the assets of Maple Tree Farms--in particular a herd of cattle. We begin our examination with Paragraph B of Section VIII of the plea agreement which provides that twenty-one specified head of forfeited cattle (and two donkeys not at issue here) be delivered to Marx's daughters by the United States Marshal "upon the imposition of sentence." Absent any qualifying or limiting provisions, this would require delivery of the cattle at or shortly after sentencing.

        We know that delivery of nineteen of the twenty-one head of forfeited cattle was accomplished shortly after sentencing. Marx was sentenced on October 21, 1986. Nineteen cattle were repossessed from Marx's daughters' possession by a lienholder bank in late January of 1987. Thus, at least nineteen of the twenty-one head of cattle were delivered within three months of sentencing--and in fact there is nothing in the record to show that those nineteen were not delivered even earlier. In any event, Marx previously defined his claim by stating that "the government did not abide by the terms of the plea agreement, that is[,] [ ] the government did not return these two cattle upon sentencing." 2 Thus, it is the delivery of the last two cows seven months after sentencing that Marx asserts was contrary to his reasonable expectations.

        To resolve whether Marx's expectations were reasonable we must examine the entire plea agreement to determine if other terms or conditions qualify or limit the provision in Paragraph B of Section VIII for delivery of the cattle "upon sentencing."

        A significant factor which impacted on any expectation of delivery was the requirement that all the cattle be forfeited to the United States. Section VII of the plea agreement provides that after Marx's plea of guilty is accepted, the court, shall enter a forfeiture order "to provide that all right, title, and interest is vested in the United States of America with regard to all of the property and assets described in ... Attachment C of this Plea Agreement...." Attachment C lists as one of the classes of forfeited assets, "any and all livestock including, but not limited to all black angus bulls, cows and calves titled to or otherwise owned by Dennis P. Marx and/or Maple Tree Farms...." There is no provision anywhere in the plea agreement exempting the cattle or any other assets listed in Attachment C from forfeiture. 3

        Both the government and Marx acknowledge in the plea agreement that the United States has the obligation to protect third-party interests and claims with respect to the forfeited assets. Title 21 U.S.C. Sec. 853 is specifically referred to in Paragraph A of Section VII of the plea agreement, and that statute provides a mechanism for the protection of third-party interests in forfeited property. The statute states that when disposing of forfeited property, provision must be made "for the rights of any innocent persons," thus requiring the government to protect third parties by taking into account any conflicting claims. 21 U.S.C. Sec. 853(h). Delivery of forfeited property to third parties could not, under

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the terms of the statute incorporated into the plea agreement, be carried out in a way which would jeopardize lienholders.

        In this case, there were conflicting claims filed with respect to the cattle. The government noted in its "Response in Opposition to Defendant's Motion Pursuant to 28 U.S.C. Sec. 2255," filed in the district court on June 17, 1987, that it delayed delivery of the two cows pending resolution of claims filed under Sec. 853(n). Conflicting claims were made by lienholders with respect to the cattle the government agreed to deliver to Marx's daughters. After the conflicting claims were resolved, the last two cows were delivered. The delay in delivery was a necessary consequence of the statutory duty owed by the government to third parties, and the performance of that duty was contemplated by Marx and the government according to the terms of the plea agreement.

        The government's statutory duty with regard to the forfeited property, acknowledged in the plea agreement, had the effect of qualifying and limiting the timing of delivery of any encumbered cattle. Viewed objectively, the delivery of the last two cows only after conflicting lienholders' claims had been resolved could not be contrary to any reasonable expectations based on the plea agreement. See United States v. Strawser, 739 F.2d 1226, 1230 (7th Cir.), cert. denied, 469 U.S. 1038, 105 S.Ct. 518, 83 L.Ed.2d 407 (1984) (disputes regarding terms of plea agreement are determined by objective standard). The delay in delivery of the two cows was consistent with the parallel obligations placed on the government and recognized in the plea agreement--the obligation to deliver the forfeited cattle "upon sentencing" and the obligation to protect the rights of "innocent persons." The government delivered nineteen of the twenty-one head of cattle "upon sentencing." The government's seven-month delay in delivering two cows, which came only after resolution of disputed claims by lienholders, did not constitute a breach of the plea agreement.

        We next examine Marx's allegation that the government breached...

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