U.S. v. Jones, 94-3107

• Decision Date: 07 July 1995
• Docket Number: No. 94-3107,94-3107
• Citation: 313 U.S. App. D.C. 128,58 F.3d 688
• Parties: UNITED STATES of America, Appellee, v. Otis Mario JONES, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 688

58 F.3d 688

313 U.S.App.D.C. 128

UNITED STATES of America, Appellee, v. Otis Mario JONES, Appellant.

No. 94-3107.

United States Court of Appeals, District of Columbia Circuit.

Argued April 6, 1995.

Decided July 7, 1995.

Appeal from the United States District Court for the District of Columbia (No. 94cr00078-01).

Reita P. Pendry, Chief Asst. Federal Public Defender, with whom A.J. Kramer, Federal Public Defender, Washington, DC, was on the briefs, argued the cause for appellant.

Barbara A. Grewe, Asst. U.S. Atty., with whom Eric H. Holder, Jr., U.S. Atty., John R. Fisher, Elizabeth Trosman, and Shanlon Wu, Asst. U.S. Attys., Washington, DC, were on the brief, argued the cause for appellee.

Before BUCKLEY, HENDERSON, and TATEL, Circuit Judges.

Opinion for the court filed by Circuit Judge BUCKLEY.

BUCKLEY, Circuit Judge:

Appellant Otis Jones agreed to plead guilty to two criminal charges in return for certain promises from the United States Attorney. Believing that the Government had failed to meet its obligations under the plea agreement, Jones filed a motion seeking to compel it to provide him with the benefit of the bargain to which he felt entitled; specifically, to lodge a motion with the district court stating that he had provided the prosecution with "substantial assistance," thus permitting the sentencing judge to depart downward from the range established by the United States Sentencing Guidelines. Finding no breach of the agreement, we affirm the district court's denial of Jones's motion but note two concerns raised by this appeal.

I. BACKGROUND

Appellant Jones, formerly a U.S. Postal Service employee, was indicted on one count of theft of mail by a postal employee, 18 U.S.C. Sec. 1709, and one count of forgery on a United States Treasury check, 18 U.S.C Sec. 510(a)(1). Rather than go to trial, Jones entered into a plea agreement.

For his part, Jones agreed to plead guilty to the two counts, provide restitution of $22,821, and to cooperate fully with the Government's investigation of others who were involved in Jones's scheme. In exchange, the Government made a number of promises. It agreed not to prosecute Jones for any other economic offenses related to his Postal Service employment, to advise the sentencing judge of the full nature and extent of his cooperation with the investigation, and not to oppose Jones's receipt of a two-level downward departure under section 3E1.1 of the Sentencing Guidelines for acceptance of responsibility. In addition, it made promises that concerned Jones's ability to secure a downward departure from the range that would otherwise dictate the length of his imprisonment. The agreement provided that

[i]f Mr. Otis Jones provides information to law enforcement officers or testifies before the grand jury or at the trial of his accomplices following his guilty plea, the undersigned Assistant United States Attorney will inform the Departure Committee of the United States Attorney's Office for the District of Columbia of the nature and extent of Mr. Jones' cooperation. Should the Departure Committee of the United States Attorney's Office for the District of Columbia, after evaluating the nature and extent of Mr. Jones' cooperation, determine that Mr. Jones has provided substantial assistance in the investigation or prosecution of another person who has committed any offense, then the United States Attorney's Office for the District of Columbia will file a motion pursuant to section 5K1.1 of the United States Sentencing Guidelines in order to afford Mr. Jones an opportunity to persuade the Court that he should be sentenced to a lesser period of incarceration and/or fine than mandated by the federal sentencing guidelines.

Plea Agreement p 7. The agreement also affirmed that

Mr. Jones understands that the United States Attorney's Office for the District of Columbia retains its discretion concerning whether to file a motion for a reduction in his sentence pursuant to Section 5K1.1 of the sentencing guidelines. Mr. Jones agrees that the failure of the United States Attorney's Office for the District of Columbia to file a "substantial assistance" departure motion shall not be grounds for Mr. Jones to move to withdraw his plea of guilty in this case.

Plea Agreement p 10.

Section 5K1.1 of the Guidelines provides that "[u]pon motion of the government stating that the defendant has provided substantial assistance" to the prosecution, the sentencing court may depart downward from the Guidelines' punishment range. U.S.S.G. Sec. 5K1.1. If the Government does not file a motion, the court is precluded from departing from the range pursuant to that section of the Guidelines no matter how helpful the defendant may have been to the prosecution. See Wade v. United States, 504 U.S. 181, 183-84, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524 (1992). Therefore, whether the Government files a section 5K1.1 motion is extremely important to a defendant. Jones asserts that the opportunity to earn a "substantial assistance" motion from the Government was the primary inducement that motivated him to accept the Government's plea offer.

The Departure Committee failed to find that Jones had provided "substantial assistance"; as a consequence, the Government did not file a section 5K1.1 motion. Jones moved to compel the Government to do so, arguing that because he had fulfilled his part of the bargain by providing every assistance that the Government had asked of him, the Government was obligated to file the section 5K1.1 "substantial assistance" motion. The Government did not contend that Jones was other than fully cooperative. Nevertheless, it maintained that under the terms of the plea agreement, the Departure Committee retained complete discretion to determine whether Jones's assistance was "substantial."

U.S. District Judge Harold H. Greene determined that the terms of the plea agreement and legal precedent required him to deny Jones's motion. Nevertheless, he clearly felt that the Government had treated Jones unfairly. He referred to its behavior as "lousy" and went so far as to "invite," "encourage," and even "urge" Jones's attorney to appeal his denial of the motion. Judge Greene then sentenced Jones to eighteen months' imprisonment on each count, to run concurrently. This sentence was within the Guidelines range.

II. DISCUSSION

When a prosecutor secures a plea with a promise, the promise must be fulfilled. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). In other words, a plea agreement is a contract. United States v. Pollard, 959 F.2d 1011, 1022 (D.C.Cir.1992). As a consequence, courts will look to principles of contract law to determine whether a plea agreement has been breached. See, e.g., United States v. Papaleo, 853 F.2d 16, 19 (1st Cir.1988); United States v. McGovern, 822 F.2d 739, 743 (8th Cir.1987). As the interpretation of a plea agreement's terms is a pure matter of law, we review the district court's decision de novo. Pollard, 959 F.2d at 1023.

Jones believes that the only reasonable interpretation of his agreement is that if he did what he was asked to do, the Government would file the substantial assistance motion. He contends that he provided all the information the Government requested and, in fact, all the information the Government could reasonably have expected him to possess when it entered into the agreement. The Government does not dispute his claim of complete cooperation. Instead, it construes the contract as vesting in the Departure Committee the sole power to determine whether that cooperation constituted "substantial assistance."

The plain language of the plea agreement clearly supports the Government's interpretation. Paragraph 7 obligated the Assistant U.S. Attorney handling the case to inform the Departure Committee of Jones's assistance, and it required the U.S. Attorney's Office to file a section 5K1.1 motion only if that Committee "[s]hould ... determine that [he] ha[d] provided substantial assistance." The agreement does not obligate the Departure Committee to make a finding of "substantial assistance" if Jones fully cooperates with the prosecution. In fact, paragraph 10 of the agreement...