U.S. v. Gary, 01-3086.

• Decision Date: 24 May 2002
• Docket Number: No. 01-3086.,01-3086.
• Citation: 291 F.3d 30
• Parties: UNITED STATES OF AMERICA, Appellee, v. Blen A. GARY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 30

291 F.3d 30

UNITED STATES OF AMERICA, Appellee, v. Blen A. GARY, Appellant.

No. 01-3086.

United States Court of Appeals, District of Columbia Circuit.

Decided May 24, 2002.

Appeal from the United States District Court for the District of Columbia (No. 99cr00189-01).

Richard Seligman, appointed by the court, was on the briefs for appellant.

Roscoe C. Howard, Jr., U.S. Attorney, Susan A. Nellor, John R. Fisher, and Roy W. McLeese III, Assistant U.S. Attorneys, were on the brief for appellee.

Before: EDWARDS and RANDOLPH, Circuit Judges, and WILLIAMS, Senior Circuit Judge. (The decision in this matter was reached upon consideration of the record and the parties' briefs, but without oral argument, pursuant to D.C. Circuit Rule 34(j).)

Opinion for the Court filed by Circuit Judge EDWARDS.

EDWARDS, Circuit Judge:

Appellant Blen Gary pled guilty to one count of bank fraud in violation of 13 U.S.C. § 1344, conditioned on her right to appeal the District Court's denial of her motion to dismiss the indictment against her. On appeal, Gary claims that the District Court erred in denying her motion to dismiss, because the underlying indictment was obtained in violation of a plea agreement in another case and the Government was guilty of prosecutorial vindictiveness. Gary also claims that the District Court erred in calculating her sentence. Finding no merit in these claims, we affirm the judgment of the District Court.

I. BACKGROUND

In August 1993, through a fraudulent deed application, Gary obtained a conveyance of real estate property owned by a woman who lived in the property on Jefferson Street, Washington, D.C. ("the Jefferson Street property"). After obtaining this property, Gary submitted a fraudulent loan application to the Health, Education and Welfare Federal Credit Union and obtained a $60,000 line of credit secured by the Jefferson Street property. In June 1995, Gary extended the line of credit to $96,000, again submitting an application with fraudulent representations. Gary withdrew funds from the line of credit until May 1996. See Indictment, United States v. Gary, Crim. No. 99-189 (D.D.C. June 3, 1999), reprinted in Appendix to Br. for Blen Gary ("App.") Ex. 9.

Subsequently, in August 1996, Gary and Josephine Jenkins, a co-conspirator, used a forged signature to obtain the conveyance of a home owned by another woman on 21st Street ("the 21st Street property"). The property was purportedly conveyed to Jenkins. Gary and Jenkins then submitted loan applications with fraudulent representations, obtained mortgage loans, and took funds in excess of $50,000 on the collateral of the 21st Street property. See Tr. of Plea Hr'g at 7-11 (July 28, 1997), reprinted in App. Ex. 5.

In April 1997, a detective from the Metropolitan Police Department questioned Gary about her dealings in connection with the 21st Street property. See Tr. of Mots. Hr'g at 6 (Sept. 21, 1999), reprinted in App. Ex. 10. On May 20, 1997, the United States Attorney notified Gary that she "may have violated" the wire fraud statute and offered her "an opportunity to discuss this matter before formal criminal charges are brought." Letter from Eric H. Holder, United States Attorney, to Blen Gary (May 20, 1997), reprinted in App. Ex. 1.

Meanwhile, on May 15 and 27, 1997, an FBI agent interviewed Gary about the Jefferson Street property. The agent then sought a subpoena on June 25, 1997. See Tr. of Mots. Hr'g at 6, 38-39 (Sept. 21, 1999), reprinted in App. Ex. 10. The subpoena included a form documenting the May 15 meeting between Gary and the FBI agent. The U.S. Attorney working on the 21st Street property case saw the subpoena request, so she was aware that Gary was the subject of a second criminal investigation in connection with the Jefferson Street property. However, the U.S. Attorney did not notify Gary's attorney until September 9, 1997, that Gary was under investigation in a second case. Id. at 41.

On June 18, in a plea agreement offer, the Government set forth a detailed description of the forged deed transfer, loan applications, and receipt of funds from the loans relating to the 21st Street property. See Letter from Eric H. Holder, United States Attorney, to L. Barrett Boss, counsel for Blen Gary, and Cheryl D. Stein (June 18, 1997), reprinted in App. Ex. 2. After plea negotiations, Gary agreed to plead guilty to a D.C.Code offense. The Government then sent a letter outlining the agreement. See Letter from Eric H. Holder, United States Attorney, to L. Barrett Boss, counsel for Blen Gary (June 23, 1997), reprinted in Record Material for Appellee ("R.M.") tab A. This letter included a promise by the Government that "the United States will not bring any additional criminal charges against Ms. Gary... for offenses outlined in the Information and which were committed before the date of this agreement." Id. On July 9, 1997, the Government filed an Information with the District Court that described the scheme of fraudulently obtaining loans secured by the 21st Street property. See Information, United States v. Gary, Crim. No. 97-280 (July 9, 1997), reprinted in App. Ex. 4. On July 25, 1997, the Government filed a more detailed, written factual proffer with the District Court relating solely to the 21st Street property. See Letter from Mary Lou Leary, United States Attorney, to the Honorable James Robertson, United States District Judge (July 25, 1997), reprinted in R.M. tab B. Gary pled guilty at a plea hearing on July 28, 1997.

At sentencing on the 21st Street property scheme, the Government sought to enhance Gary's sentence by introducing the Jefferson Street property case. The District Court disallowed the enhancement absent a commitment by the Government to forgo any subsequent criminal charges against Gary in connection with the Jefferson Street property. See Tr. of Sentencing Hr'g at 7-8 (Oct. 24, 1997), reprinted in App. Ex. 6. The Government was unwilling to make such a pledge, deciding instead to present the case to the grand jury for indictment. See Tr. of Sentencing Hr'g at 2 (Nov. 5, 1997), reprinted in App. Ex. 8. The District Court sentenced Gary to six to 18 months in prison. Id. at 14. Gary served three months in prison and six months in a halfway house, and then was released from parole on April 4, 1999.

On October 28, 1997, the Government sent Gary a plea offer relating to the Jefferson Street property. This offer did not refer to the 21st Street property or the criminal charges related to that property. See Letter from Eric H. Holder, United States Attorney, to L. Barrett Boss, counsel for Blen Gary (Oct. 28, 1997), reprinted in App. Ex. 7. Gary rejected the offer. On June 3, 1999, less than a month after Gary was released from parole, the Government obtained an indictment for one count of bank fraud in violation of 13 U.S.C. § 1344 for conduct relating to loans obtained using the Jefferson Street property as security. See Indictment, United States v. Gary, Crim. No. 99-189 (D.D.C. June 3, 1999), reprinted in App. Ex. 9.

Gary filed a motion to dismiss the Indictment, claiming that the Indictment breached the plea agreement in the 21st Street property case, the Indictment was vindictive, and that the delay between the alleged criminal conduct from 1993 to 1995 and the prosecution in 1999 violated her Fifth Amendment right to due process. The District Court denied the motion on all counts. See Tr. of Mots. Hr'g at 70-81 (Sept. 21, 1999), reprinted in App. Ex. 10.

Gary pled guilty, conditioned on her right to appeal the District Court's denial of the motion to dismiss. At sentencing, the District Court enhanced Gary's total offense level by two levels under § 3A1.1(b)(1) of the Sentencing Guidelines, the "vulnerable victim" enhancement, and used Gary's sentence in the 21st Street property case in calculating her criminal history score. Under the Sentencing Guidelines, Gary's sentencing range was 18 to 24 months. The District Court departed downward significantly and sentenced Gary to only one month of imprisonment and five years of supervised release, of which 10 months were to be spent in a halfway house. The District Court found that the downward departure was warranted because of the "substantial and unusual burden placed upon [Gary] by successive federal prosecution stemming from simultaneous investigations by the government... where the government chose, for no compelling reason, to wait almost 2 years after the first charges were filed to file these charges." J. & Commitment Order at 7, reprinted in App. Ex. 16.

II. ANALYSIS

In her appeal, Gary challenges the District Court's denial of her motion to dismiss the Indictment and the sentence imposed. Her challenges are meritless.

A. Motion to Dismiss the Indictment

Gary appeals the denial of her motion to dismiss the Indictment on two of the grounds argued below. Gary first claims that the Indictment relating to the Jefferson Street property breached the plea agreement in the 21st Street property case in which the Government allegedly promised not to prosecute Gary for certain crimes. This court interprets the terms of the plea agreement de novo, see United States v. Jones, 58 F.3d 688, 691 (D.C.Cir. 1995); and we review the District Court's factual findings regarding alleged breaches of the plea agreement for clear error, see United States v. Ahn, 231 F.3d 26, 35 (D.C.Cir.2000).

Here, Gary argues that the plea agreement was ambiguous and that this ambiguity should be construed against the drafter. So interpreted, Gary contends that the plea agreement related to the 21st Street property precluded the Government's second prosecution related to the Jefferson Street property. In particular, Gary claims that the Indictment in this case involves criminal conduct of the sort that the Government promised not to prosecute pursuant to the disputed plea agreement. Gary's argument on this point is clearly wrong.

The plea agreement relating to the 21st Street...