U.S. v. Kettering, 88-3047
| Decision Date | 08 December 1988 |
| Docket Number | No. 88-3047,88-3047 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Donald Jay KETTERING, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Clyde Taylor, Tallahassee, Fla., for defendant-appellant.
Lyndia P. Barrett, Asst. U.S. Atty., Tallahassee, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before HILL and FAY, Circuit Judges, and DUBINA *, District Judge.
Donald Jay Kettering appeals the district court's order denying his motion to enforce a plea agreement. Kettering asserts that the district court erred in refusing to enforce the agreement because: 1) the plea agreement the defendant entered into pursuant to the representations of a Drug Enforcement Administration (DEA) Agent bound both the government and the defendant; 2) the DEA agent possessed authority to bind the prosecution to the statements made to the defendant; and 3) the defendant relied to his detriment upon the agent's assertions by cooperating with the government in its investigation of the case. The prosecution argues however, that the proposed agreement is unenforceable because Kettering has failed to show that the DEA agent had authority to enter into it or that he detrimentally relied on the agent's representations. We hold that there was no enforceable plea agreement in this case. The DEA agent had no authority to bind the prosecution through his statements. Moreover, Kettering has shown no detrimental reliance on the agent's assertions. Accordingly, the district court's order denying the motion to enforce the plea agreement is affirmed.
Donald Jay Kettering was arrested on June 23, 1987 after landing an aircraft containing 41 bales of marijuana at the Williston Airport in Levy County, Florida. He was charged in the Northern District of Florida on June 30, 1987 in a three count indictment with possession of marijuana with intent to distribute, importation of marijuana, and possession of marijuana to be introduced into the United States. Shortly after his indictment, Kettering's attorney, Stephen Johnson, began negotiating a plea agreement with the government. On July 6 and 7, 1987, Mr. Johnson communicated with Agent Ed Dickey of the DEA regarding plea negotiations. The Assistant United States Attorney (AUSA) assigned to the case did not participate in these negotiation discussions.
On July 8, 1987, Agent Dickey met with Kettering to gather information relevant to the agent's investigation of the case. Although the agent made rough notes of the meeting, the information was never recorded in a DEA report. At the meeting, defense counsel Johnson proposed a plea agreement to Agent Dickey which provided that Kettering would plead guilty to a single count information carrying a maximum penalty of five years incarceration with no mandatory minimum provisions. Johnson drafted a letter outlining the terms of the agreement and delivered it to Agent Dickey at the meeting. However, the letter was never sent to the AUSA handling the case. It included the handwritten notation "all discussions and debriefings pursuant to Rule 11 of the Federal Rules of Criminal Procedure." The letter was signed solely by Mr. Johnson.
On July 13, 1987 Agent Dickey discussed the events of the Kettering meeting, including the proposed plea agreement terms, with the AUSA in charge of the case. Upon learning of the proposed terms the AUSA informed the agent that the United States would not approve a plea agreement with Kettering providing for a maximum penalty of five years incarceration. Subsequently, the AUSA informed defense counsel that the proposed plea agreement was unacceptable.
On July 15, 1987, Kettering filed a motion to enforce the plea agreement. The district court heard the motion on July 16, 1987 at which time Kettering was arraigned and pleaded not guilty to all three counts of the indictment. On August 11, 1987, the district court denied Kettering's motion to enforce the plea agreement, finding that he failed to establish Agent Dickey's authority to enter into it. Subsequently, on November 16, 1987, Kettering withdrew his plea of not guilty and pleaded guilty to count one of the indictment reserving his right to appeal the district court's refusal to enforce the plea agreement. The government then dismissed counts two and three of the indictment. Kettering was sentenced to ten years imprisonment, four years of supervised release, a $10,000 fine and a $50 special monetary assessment on January 15, 1988.
The district court concluded that Kettering failed to establish the authority of the DEA agent to enter into and bind the prosecution to the proposed plea agreement. Pursuant to the July 16, 1987 hearing, the court found that the DEA agent was mistaken regarding his belief that he was authorized to pursue the agreement. Additionally, the district court credited the AUSA's testimony that Agent Dickey never possessed the authority to accept the plea proposal. The court relied on the standard set forth in Johnson v. Lumpkin, 769 F.2d 630 (9th Cir.1985) regarding enforcement of plea agreements in rendering its order. We agree with the district court's conclusions.
The district court considered the testimony of several witnesses at the July 16, 1987 hearing in making its findings of fact that Agent Dickey possessed no authority to bind the government to the proposed plea agreement. Our review of the district court's factual findings is subject to the clearly erroneous test. See Fed.R.Civ.P. 52(a). Under this standard, we cannot displace the district court's findings with our own. United States v. Minnesota Mining and Mfg. Co., 551 F.2d 1106, 1109 (8th Cir.1977). We must "make allowance for the advantages possessed by the trial court in appraising the significance of conflicting testimony and reverse only 'clearly erroneous' findings." Graver Tank & Mfg. Co. v. Linde Air Prods., 336 U.S. 271, 275, 69 S.Ct. 535, 537, 93 L.Ed. 672 (1949). Moreover, an appellate court should be especially reluctant to disregard a district court's credibility choices. Rowe v. Griffin, 676 F.2d 524, 528 (11th Cir.1982). Mindful of the parameters of our review, we now examine whether the district court clearly erred in finding that Agent Dickey lacked authority to bind the prosecution to the plea proposal.
Rule 11 of the Federal Rules of Criminal Procedure governs the negotiation process between the federal government and a defendant known as "plea bargaining." The United States Supreme Court considers plea bargaining Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). Generally, promises made during plea bargaining must be respected by the government. Id. at 262, 92 S.Ct. at 499. Moreover, "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, such promise must be fulfilled." Id.
Kettering asserts that these principles control the negotiations undertaken with Agent Dickey, and render the agreement enforceable because Dickey had the authority to bind the government to the five year maximum incarceration agreement. We disagree. Although the government must fulfill its promises pursuant to a valid plea agreement, if no binding agreement is ever reached initially, the government is free to fully prosecute the case. We addressed this issue in United States v. Pleasant, 730 F.2d 657 (11th Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216, 83 L.Ed.2d 146 (1984). There we stated that:
[a prosecutor has no duty] either to plea bargain at all or to keep a plea bargain offer, once made, open. A defendant has no right to engage in plea bargaining in the first place. The offer, once made, is still in the discretion of the prosecutor. Like any offeror, he can withdraw his offer at any time, unless, perhaps, the defendant has relied on the offer and the prosecutor should be estopped from withdrawing it.
The Ninth Circuit in Johnson v. Lumpkin, 769 F.2d 630 (9th Cir.1985), expanded this point and stated that the 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. Id. at 633. If either condition is lacking, then the agreement is unenforceable and the government may withdraw its offer. In Lumpkin, the court held that a promise made by federal agents that the defendant would serve no time on state charges if he cooperated in the federal investigation was unauthorized. Id. at 634. Consequently, the court found that the defendant was not denied due process when he was convicted in state court. Id.
Similarly, in United States v. Hudson, 609 F.2d 1326, 1329 (9th Cir.1979) the court held that fundamental fairness concerns did not require the United States Attorney to abide by a secret service agent's promise to a defendant to drop federal counterfeit charges in exchange for his cooperation in the case. The court stated that the United States Attorney never sanctioned the agreement and the promise was clearly outside the agent's authority. Id. In the present case, the district court relied on the testimony of the AUSA and several other witnesses, pursuant to its hearing on the motion to enforce the plea agreement, that Agent Dickey was never authorized to accept the plea proposal. Our review of the record supports the district court's finding that the DEA agent lacked authority.
In her stipulation before the court, the AUSA stated that "I had no recollection of any conversation with Agent Dickey in which I authorized him to...
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