U.S. v. Irvine

• Decision Date: 27 March 1985
• Docket Number: No. 83-3099,83-3099
• Citation: 756 F.2d 708
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mark IRVINE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 708

756 F.2d 708

UNITED STATES of America, Plaintiff-Appellee, v. Mark IRVINE, Defendant-Appellant.

No. 83-3099.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 4, 1984.

Decided March 27, 1985.

Jerry Diskin, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.

William J. Genego, Marc L. Sherman, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington.

Before BROWNING, Chief Judge, GOODWIN and SKOPIL, Circuit Judges.

PER CURIAM:

Mark Irvine appeals his convictions for soliciting a bribe and various narcotics offenses. We affirm.

I.

Irvine, a former drug courier, approached the Phoenix police offering information in exchange for money, protection, and immunity from prosecution. He was flown to Seattle in connection with an investigation of Terry Read, a suspected cocaine trafficer. In Seattle, Irvine met with an Assistant United States Attorney who informed him that he would not be given immunity and would have to plead guilty to at least one drug charge, but the court would be informed of his coopertion. He was told not to contact the subjects of the investigation. He continued to provide information.

Later Irvine contacted Read and informed him of the ongoing investigation. The Assistant United States Attorney learned of Irvine's communication with Read and warned Irvine that he would be liable to a charge of obstruction of justice if he had any further contact with any of the subjects of the investigation.

Irvine, his attorney, and the Assistant United States Attorney signed a letter agreement including the following terms:

(1) Irvine "will not be charged with any Federal or State drug offenses based upon the statements which [he] made to" government officers;

(2) Irvine agreed to be interviewed by state and federal prosecutors regarding his involvement in cocaine trafficking, and to testify fully and truthfully before the grand jury and at any criminal trials that result from his cooperation;

(3) Irvine would take a polygraph exam if asked;

(4) Irvine would assist in the collection of evidence in this and any other investigation in Western Washington;

(5) the government "will [not] tolerate any deception from you. If your information and testimony prove to be untruthful ... you will be liable to prosecution for all matters about which we have knowledge, including the use of any statements which you have made.... [Y]ou may additionally be charged with ... obstruction of justice."

(6) Irvine would receive $100 per week for his assistance;

(7) the "use immunity conferred by this letter shall be transformed into transactional immunity at the completion of the trials of this case provided you comply in good faith with the four conditions." (Emphasis added.)

Irvine then testified before the grand jury about his activities with Read and Luis Betancourt, another alleged cocaine dealer. Both were indicted. Later, however, Irvine met with Betancourt and offered to leave the country to avoid testifying against Betancourt at trial in return for cocaine worth over $100,000. After Betancourt was arrested, he informed the government of this attempted "shakedown." Irvine was indicted, tried, and convicted of solicitation of a bribe and several drug offenses.

II.

The statements Irvine made to the government agents and the testimony he gave before the grand jury that indicted Read and Betancourt were offered by the government at Irvine's trial to establish Irvine's guilt of the drug offenses. Irvine objected on the ground that the immunity agreement barred the use of his statements and testimony for this purpose. He moved to dismiss the drug charges on the same ground. The government responded that the agreement did not bar the indictment on the drug charges or the use of the testimony because Irvine had breached the agreement by attempting to bribe Betancourt. The evidence was admitted and the motion to dismiss was denied.

Irvine argues admission of the evidence and the failure to dismiss the drug charges were error for two reasons.

Irvine argues that the agreement, properly interpreted, did not condition immunity upon non-occurrence of improper conduct, such as the bribery attempt.

This argument has two branches. The first is that the letter agreement granted Irvine immediate and unconditional use immunity, as evidenced by the references in paragraph "(1)" that Irvine "will not be charged" and in paragraph "(7)" to the "use immunity conferred by this letter." This interpretation is inconsistent with the provision of paragraph "(5)" that Irvine could be prosecuted and that any statements he made could be used against him if the information he gave under the agreement proved to be untruthful.

The second and somewhat inconsistent branch of this argument assumes the letter agreement granted only conditional immunity, but contends the only condition imposed by the government was that Irvine's testimony be truthful. Irvine argues that any other improper conduct by Irvine, including the solicitation of a bribe from Betancourt, was extraneous to the agreement--perhaps independently punishable, but not, under the agreement, a precondition to the grant of immunity from use of his testimony.

The district court rejected this interpretation of the agreement as "illogical" asserting it would produce "a travesty of justice." The court pointed out that the government would hardly have bargained for an agreement that Irvine would testify against Betancourt before the grand jury to obtain an indictment, but could solicit a bribe from Betancourt to absent himself from the trial. The court considered it "the heart of the agreement" that Irvine would so conduct himself as to facilitate the conviction of Betancourt, not frustrate it.

Generally speaking, a cooperation-immunity agreement is contractual in nature and subject to contract law standards. United States v. Carrillo, 709 F.2d 35, 36-37 (9th Cir.1983); cf. United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979) (plea bargaining agreement). The language of the contract is to be read as a whole and given a reasonable interpretation, Shakey's, Inc. v. Covalt, 704 F.2d 426, 434 (9th Cir.1983), not an interpretation that would produce absurd results. Valley View Shopping Center Ltd. v. United States, 535 F.2d 42, 46, 210 Ct.Cl. 89 (1976). "[I]t is our task to construe the words used to try, if possible, to carry out the intention of the parties in light of all the facts and surrounding circumstances...." Matter of Wellins, 627 F.2d 969, 971 (9th Cir.1980).

The district court correctly interpreted the language of the agreement. The agreement provides that if Irvine's "information"--a term broader than mere testimony--is untruthful, he may be prosecuted and his statements may be used against him. This warning is given in conjunction with a broad prohibition of "deception." In light of the overriding purpose of the agreement and the repeated warnings to Irvine that he was not to make contact with any person subject to the investigation, these words are insufficient to convey the condition that the grant of immunity would survive an agreement by Irvine to flee the jurisdiction to avoid testifying against Betancourt in return for a bribe.

Irvine's second argument is that even if the bribery attempt did breach the agreement, the government may use Irvine's testimony only in a prosecution for perjury or obstruction of justice and not to convict him of the narcotics offenses in which his statements implicated him.

Irvine relies upon United States v. Kurzer, 534 F.2d 511, 518 (2d Cir.1976), but that case is clearly inapplicable here. Kurzer, an accountant, agreed to be interviewed by government agents regarding possible tax violations by Steinman. If the agents were satisfied Kurzer was being truthful and cooperative he would receive immunity under 18 U.S.C. Sec. 6003, and would testify before the grand jury. "In any event, Kurzer was promised that what he told investigators would not be used against him." Id. at 513. Kurzer did appear before the grand jury under a formal order to testify and immunity issued under section 6003. The grand jury indicted Steinman. As part of a plea bargain, Steinman agreed to supply information...