San Pedro v. U.S.

• Decision Date: 09 April 1996
• Docket Number: No. 94-4979,94-4979
• Citation: 79 F.3d 1065
• Parties: Alberto SAN PEDRO, Plaintiff-Appellant, v. UNITED STATES of America; Kendall Coffey, United States Attorney; United States Department of Justice, Immigration and Naturalization Service, District Director, Robert M. Moschorak; United States Department of Justice, Executive Office for Immigration Review, Director, David L. Milhollan; and United States Department of Justice, Executive Office for Immigration Review, Office of The Immigration Judge, Honorable Bruce W. Solow, and other individuals similarly situated, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1065

79 F.3d 1065

64 USLW 2645

Alberto SAN PEDRO, Plaintiff-Appellant, v. UNITED STATES of America; Kendall Coffey, United States

Attorney; United States Department of Justice, Immigration

and Naturalization Service, District Director, Robert M.

Moschorak; United States Department of Justice, Executive

Office for Immigration Review, Director, David L. Milhollan;

and United States Department of Justice, Executive Office

for Immigration Review, Office of The Immigration Judge,

Honorable Bruce W. Solow, and other individuals similarly

situated, Defendants-Appellees.

No. 94-4979.

United States Court of Appeals, Eleventh Circuit.

April 9, 1996.

Arthur Joel Berger, Miami, FL, for appellant.

Kendall Coffey, U.S. Attorney, Dexter A. Lee, Linda Collins, Jeanne M. Mullenhoff, Asst. U.S. Attys., Miami, FL, for appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before COX, Circuit Judge, DYER, Senior Circuit Judge, and GOETTEL ^*, Senior District Judge.

DYER, Senior Circuit Judge:

This case arises out of a dispute concerning the scope of a plea agreement between the United States government and Alberto San Pedro ("San Pedro") and representations made by the government during plea negotiations. The district court granted summary judgment for the government holding that the United States Attorney and the Assistant United States Attorneys ("AUSAs") did not have authority to promise, as part of a plea bargain, that San Pedro would not be deported. The Immigration and Naturalization Service ("INS") was thus free to initiate deportation proceedings against San Pedro. We affirm.

I. BACKGROUND

San Pedro is a citizen of Cuba and has been a lawful permanent resident of the United States since May 2, 1956. Following a federal grand jury indictment for bribery of a federal public official and conspiracy to commit bribery, he pled guilty to the conspiracy charge. The government concedes that the plea agreement expressly affords San Pedro transactional immunity. The written plea agreement contains an integration clause and does not mention the subject of deportation, but, according to San Pedro, the United States Attorney and AUSAs who negotiated on behalf of the government represented, as part of the agreement, that the government would not institute deportation proceedings against him. Nevertheless, INS filed an Order to Show Cause why he should not be deported. San Pedro responded by filing the instant Petition for Writ of Mandamus or Prohibition and Temporary Restraining Order, seeking a declaration that the instigation of deportation proceedings violated the plea agreement because the government had represented that his transactional immunity ¹ included a promise of non-deportation.

The government filed a motion to dismiss, which the court converted to a motion for summary judgment. In contesting San Pedro's claim for breach of the plea agreement, the government contended that San Pedro was never promised non-deportation, and even if he was, the promise did not bind the INS because the United States Attorney and AUSAs had no authority to make such promise. The district court found that the United States Attorney's Manual ("USAM") required that the United States Attorney obtain approval from the Department of Justice before conducting negotiations involving deportation. Because the government had produced no evidence concerning whether the prosecutor sought authorization from the Department of Justice, the court denied the government's first summary judgment motion.

To correct the deficiency, the government filed two more motions for summary judgment, again raising the question of whether the United States Attorney and the AUSAs had the authority to promise San Pedro he would not be deported. The district court determined there was a dispute as to whether the government made the promise but that the decisive legal issue was whether the United States Attorney had the authority to promise not to deport a criminal defendant as a condition of a plea bargain. The court concluded that nothing in the USAM or the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., ("INA") vested the United States Attorney with that authority. Thus, any promise regarding deportation did not bind the INS and the court entered summary judgment for the government. This appeal ensued.

II. DISCUSSION

We review the district court's grant of summary judgment de novo. Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th Cir.1994). A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is appropriate "if a jury, viewing all facts and any reasonable inferences therefrom in the light most favorable to [the non-moving party], could not reasonably return a verdict in [that party's] favor." Hale v. Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir.1995) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court stated: "[W]hen a plea rests in any significant degree on a promise or agreement of a prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Id. at 262, 92 S.Ct. at 499. "When a prosecutor breaks the bargain, he undercuts the basis for the waiver of constitutional rights implicit in the plea." Id. at 268, 92 S.Ct. at 502 (Marshall, J. concurring in part and dissenting in part). Furthermore, a guilty plea " 'must stand unless induced by ... misrepresentation (including unfulfilled or unfulfillable promises)....' " Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984) (quoting Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).

We are mindful of the due process considerations underlying these principles, and note that San Pedro does not question the voluntary character of his guilty plea. He does not seek to have the plea vacated; rather, he seeks to enforce a promise allegedly made during plea negotiations. "[T]he general rule requiring governmental adherence to promises made during plea negotiations is subject to two conditions. First, the agent making the promise must be authorized to do so, and second, the defendant must detrimentally rely on the promise. If either condition is lacking, then the agreement is unenforceable and the government may withdraw its offer." United States v. Kettering, 861 F.2d 675, 677 (11th Cir.1988) (citing Johnson v. Lumpkin, 769 F.2d 630 (9th Cir.1985)). In other words, to enforce a promise made during plea negotiations, there must have been a valid, binding agreement in the first instance upon which the defendant relied in deciding to forego his constitutional rights and plead guilty. For an agreement to be valid and binding, the agent must possess actual authority to make the promise--either express authority or authority implied in or incidental to a grant of express authority. Thomas v. INS, 35 F.3d 1332, 1338 (9th Cir.1994). "Estoppel and apparent authority normally will not substitute for actual authority to bind the United States government." Id. (citing Utah Power & Light Co. v. United States, 243 U.S. 389, 408-09, 37 S.Ct. 387, 391-92, 61 L.Ed. 791 (1917); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 2-3, 92 L.Ed. 10 (1947)). But see Houck ex rel. United States v. Folding Carton Administration Comm., 881 F.2d 494, 501 (7th Cir.1989). Therefore, assuming San Pedro was promised non-deportation, ² the INS is not bound unless the United States Attorney and the AUSAs had either express or implied actual authority to make that representation.

Subsequent to the district court's order, the Ninth Circuit held in Thomas v. INS that the INS was bound by a cooperation agreement not to seek deportation of a convicted felon. 35 F.3d at 1335. In Thomas the defendant and an AUSA entered into a letter agreement where the defendant was to provide the government with information about narcotics trafficking and work as a cooperating witness for two years. In return, the government agreed not to oppose Thomas' motions for reduction of sentence or relief from deportation. Nonetheless, after his conviction, the INS initiated deportation proceedings. Id. at 1335-36. The court reasoned that, despite the AUSA's lack of express authority to bind the INS to the agreement, Congress, through its grant of power "to prosecute for all offenses against the United States," 28 U.S.C. § 547(1) (1988), had given the United States Attorney implied actual authority to bind the "government," and thus the INS, not to oppose motions for relief from deportation. Id. at 1339-41. The court found that a United States attorney's authority to obligate the government "as part of a plea bargain is incidental to his statutory authority to prosecute crimes." Id. at 1340. According to the Thomas court, the United States attorneys need not receive authority from the attorney general to bind the INS to their agreements with defendants because they have already received such authority from Congress. Id. at 1338-40. Absent any express limitation on that authority by the attorney general, therefore, United States attorneys are free to bind the INS (and presumably other government agencies) to agreements with defendants so long as the agreements fall within the scope of the broad language of § 547(1). Id. at 1338-41.

In Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir.1994), the Eighth Circuit adopted the reasoning of Thomas. There the AUSA agreed that the government would recommend against deportation if the defendant participated in a debriefing; otherwise, the government would remain silent regarding deportation. Id. at 348. In upholding the authority of the AUSA to bind the INS to...