U.S.A. v. Alegria

• Decision Date: 06 August 1999
• Docket Number: No. 98-1976,98-1976
• Citation: 192 F.3d 179
• Parties: (1st Cir. 1999) UNITED STATES OF AMERICA, Appellee, v. JOSE E. ALEGRIA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 179

192 F.3d 179 (1st Cir. 1999)

UNITED STATES OF AMERICA, Appellee, v. JOSE E. ALEGRIA, Defendant, Appellant.

No. 98-1976.

United States Court of Appeals for the First Circuit.

Heard Aug. 6, 1999.

Decided Sept. 30, 1999.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Copyrighted Material Omitted] Alan M. Dershowitz, with whom Nathan Z. Dershowitz, Amy Adelson, and Dershowitz & Eiger, P.C. were on brief, for appellant.

Jorge E. Vega-Pacheco, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, and Nelson Perez-Sosa, Assistant United States Attorney, were on brief, for appellee.

Before Selya, Boudin and Lipez, Circuit Judges.

SELYA, Circuit Judge.

This appeal requires us, inter alia, to explore the circumstances in which the government may be compelled to move for a downward departure under USSG §5K1.1. We conclude that the district court did not err either in refusing to force the government to take such action or in any other material respect. Consequently, we affirm.

I

A federal grand jury indicted defendant-appellant Jose E. Alegra on sixteen counts of filing false statements with financial institutions, 18 U.S.C. § 1014, and bank fraud, 18 U.S.C. § 1344. He entered into a plea agreement with the government (the Agreement), pled guilty to all charges, and met twice with government agents pursuant to a promise to cooperate. We have no detailed account of these debriefing sessions, but the appellant states in a declaration (filed below in connection with his motion for an evidentiary hearing) that he furnished the government with whatever information he possessed concerning wrongdoing at the financial institutions with which he was associated.

Despite the appellant's cooperation, the prosecutor elected not to file a downward departure motion. The appellant asserted that the prosecutor's decision contravened the Agreement and, in the bargain, violated due process. The sentencing court rejected these animadversions, see United States v. Alegra, 3 F. Supp. 2d 151 (D.P.R. 1998), denied the appellant's motion for an evidentiary hearing, and proceeded to impose a 30-month incarcerative sentence. In this forum, the appellant continues to press his claim that the government wrongly refused to file a downward departure motion and embellishes it with a challenge to the lower court's calculation of his guideline sentencing range.

II

We start with the appellant's major premise: that the government obligated itself to file a downward departure motion by virtue of promises it made during the negotiations that led up to the execution of the Agreement and in the Agreement itself. For argument's sake, we take the facts from the appellant's declaration.¹

After the indictment was returned and the appellant entered a "not guilty" plea, the parties began discussing the possibility of a plea bargain. In his declaration, the appellant states that he had misgivings about whether the United States Attorney's office would reward cooperation with a favorable sentencing recommendation (he traces these misgivings to a previous case in which the United States Attorney allegedly made similar overtures to another bank executive, but subsequently reneged), and therefore arranged to meet personally with Guillermo Gil, the United States Attorney for the District of Puerto Rico, prior to settling upon a course of action. According to the appellant, Gil assured him (in the presence of his then-counsel) that if he would "tell the truth, be available, and cooperate," the government would move for a departure under USSG §5K1.1 (permitting a sentencing court to depart downward on the prosecution's motion, based on a defendant's "substantial assistance"). The appellant asserts that this specific representation persuaded him to sign the Agreement and change his plea. Hence, he asks that we hold the government to Gil's word.

As a general rule, nothing precludes a prosecutor from bargaining away something over which he has discretion in return for promises extracted from a criminal defendant. See United States v. Doe, 170 F.3d 223, 226 (1st Cir. 1999); United States v. Hernandez, 17 F.3d 78, 82 (5th Cir. 1994). Relatedly, a binding prosecutorial representation that is accepted by a defendant and becomes the basis for a change of plea must be performed. See Santobello v. New York, 404 U.S. 257, 262 (1971) (holding that "when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, [the] promise must be fulfilled"). In the appellant's view, these uncontroversial axioms carry the day.

But this conclusion depends entirely on the assumption that what Gil allegedly said has legal force -- and that assumption stands on shaky ground because the Agreement, which purports to encompass the sum and substance of the arrangement between the parties, was signed after Gil allegedly made the crucial representation and contains no reference to it. The essential and logically prior question, then, is whether the representation, even if made, survives execution of the Agreement.

A

Courts customarily treat plea agreements, for purposes of construction, more or less in the same manner as they do contracts. See United States v. Atwood, 963 F.2d 476, 479 (1st Cir. 1992); United States v. Anderson, 921 F.2d 335, 337-38 (1st Cir. 1990). We say "more or less" because this analogy has its limitations. See United States v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988) (observing that plea agreements are similar to commercial contracts, but only "in certain respects"). Thus, although contract law supplies a useful reference point for construing plea agreements in federal criminal cases, such agreements are not governed by the law of contracts. See United States v. Kelly, 18 F.3d 612, 616 (8th Cir. 1994).

If a plea agreement unambiguously resolves an issue, that usually ends the judicial inquiry. See id.; Anderson, 921 F.2d at 338. If, however, a plea agreement lacks clarity or is manifestly incomplete, the need to disambiguate may justify resort to supplementary evidence or other interpretive aids.² See Anderson, 921 F.2d at 338. We examine the text of the Agreement in light of this dichotomy.

The appellant calls our attention to paragraph 8 of the Agreement, which embodies his pledge to "cooperate fully and truthfully with the United States." After spelling out the elements of this cooperation -- which include the typical assurances that the appellant will remain available for debriefing, appear as a witness, speak truthfully, provide documents, and so forth -- the paragraph explains that he is not expected to "make a case" against anyone. This is a shorthand way of saying that the government's obligations under the Agreement are not conditioned upon the achievement of any particular objective (e.g., the conviction of some other person), but, in the language of the Agreement, "only upon [Alegra] providing full, complete and truthful cooperation." The appellant maintains that this phraseology imports the United States Attorney's oral representation into the Agreement. We think that this is a more ambitious reading of the passage than either the text or the surrounding circumstances allow.

USSG §5K1.1 provides the background understanding against which the parties signed the Agreement and through which their arguments must be filtered. See United States v. Huang, 178 F.3d 184, 187-89 (3d Cir. 1999). The appellant's construction contemplates an equivalency between "full, complete and truthful cooperation," on the one hand, and "substantial assistance," on the other. But the language and structure of section 5K1.1 belie the idea that "full, complete and truthful cooperation" necessarily constitutes "substantial assistance." The guideline suggests five non-exclusive factors that a court should consider when deciding whether it will grant a prosecutor's motion for a downward departure predicated on a defendant's substantial assistance. See USSG §5K1.1(a)(1)-(5). Full, complete and truthful cooperation corresponds to only one of these five factors. See id. §5K1.1(a)(2). The others include things well beyond the purview of cooperation per se, such as the significance and utility of the information provided, id. §5K1.1(a)(1), the nature and extent of the defendant's assistance, id. §5K1.1(a)(3), and the timeliness of the proffer, id. §5K1.1(a)(5). In short, full, complete and truthful cooperation, in and of itself, is not coextensive with the substantial assistance of which the sentencing guidelines speak.

In the case at bar, the Agreement, read as a whole, plainly was meant to be understood in terms of the general approach limned in section 5K1.1. Although conditioned on the appellant's conformance with paragraph 8, nothing in the text of the Agreement suggests that the parties agreed either to collapsing the substantial assistance determination into the relatively narrow confines of paragraph 8 or to some other special definition of substantial assistance. This point is made pellucid by paragraph 11, which memorializes the appellant's express agreement that "the United States' decision whether to file a motion based on 'substantial assistance' as that phrase is used in Rule 35(b) of the Federal Rules of Criminal Procedure and Section 5K1.1 of the Sentencing Guidelines and Policy Statements . . . rests in the sole discretion of the United States," and further provides that disputes about that decision will not be referred to the district court.

The obvious implication of this explicit reference to section 5K1.1 is that the prosecutor will take into account all the factors delineated in that guideline when determining whether to move for a downward departure -- and those factors, as we have noted, go well beyond full, complete and truthful cooperation. In this way, the Agreement makes it quite clear that...