U.S. v. Sertich, 94-50597
Citation | 69 F.3d 545 |
Decision Date | 24 October 1995 |
Docket Number | No. 94-50597,94-50597 |
Parties | NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Mark G. SERTICH, aka Mark Sertich, Defendant-Appellant, |
Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Before: BROWNING and PREGERSON, Circuit Judges and TANNER, * District Judge.
Mark Sertich appeals from the denial of his motion to enforce the nonprosecution paragraph of his plea agreement entered into in the Central District of California to bar a subsequent prosecution in the Northern District of Indiana. We have jurisdiction over this timely appeal and AFFIRM.
The parties are aware of the facts and procedural background leading up to this appeal so we will not repeat them here.
This court reviews de novo whether or not a provision of a plea agreement is ambiguous. United States v. Anderson, 970 F.2d 602, 606 (1992), amended, 990 F.2d 1163 (9th Cir.1993). "Plea agreements are contractual in nature and are measured by contract law standards." United States v. Keller, 902 F.2d 1391, 1393 (9th Cir.1990). "In construing an agreement, the court must determine what the defendant reasonably understood to be the terms of the agreement when he pleaded guilty." United States v. De La Fuente, 8 F.3d 1333, 1337 (9th Cir.1993) (footnotes omitted). Because the understanding of the parties is a factual question, the district court determines this question and this court reviews that determination only for clear error. Anderson, 970 F.2d at 607; United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985), cert. denied, 479 U.S. 835 (1986).
Paragraph VI of the plea agreement entitled "Nonprosecution for Other Related Offenses" provides:
This office agrees not to criminally prosecute you for other related offenses connected with the activities charged in the indictment, specifically, with respect to activities involving Richard Allen from approximately August 24, 1990 through October 11, 1991 within the jurisdiction of the Central District of California.
Additionally, "[t]his office" is defined in paragraph I of the agreement as the "United States Attorney's Office for the Central District of California."
The California indictment charges that: "Beginning on a date unknown to the Grand Jury and continuing to on or about October 11, 1991 within the Central District of California and elsewhere ...," the named defendants and others conspired to evade excise taxes on diesel fuel. The Indiana indictment charged: "From on or about October, 1986, through on or about November 17, 1987 in the Northern District of Indiana, and elsewhere ..." Sertich, along with others, conspired to evade excise taxes on diesel fuel.
Sertich's argument that the nonprosecution paragraph bound not only the United States Attorney's Office in the Central District of California, but bound the government as a whole is based on two Fourth Circuit cases, United States v. Carter, 454 F.2d 426, 428 (4th Cir.1972) ( ) and United States v. Harvey, 791 F.2d 294, 303 (4th Cir.1986) ( ). 1
Carter and Harvey are not controlling. In this case, Sertich and the government had a written plea agreement. Sertich's argument that he was promised by the Assistant United States Attorney of the Central District of California that he would not be prosecuted in Indiana is not supported by the record. The district court's implicit finding on this point is not clearly erroneous. Thus Carter is not on point.
In Harvey the Fourth Circuit found that the plea agreement was ambiguous as a matter of law. Harvey, 791 F.2d at 301. The plea agreement in that case was ambiguous in that it used the terms "Government" and "Eastern District of Virginia" interchangeably. Id. at 302. The plea agreement at issue here alleviates the ambiguity in the language that concerned the Harvey court. In Sertich's agreement the agency--"this Office"--was clearly defined as the United States Attorney's Office for the Central District of California. Consistently throughout the agreement the term "this Office" is used. The only instance the term "the government" appears in Sertich's plea agreement is in the final paragraph regarding no other agreements. This single usage does not create an ambiguity. See United States v. Ingram, 979 F.2d 1179, 1185 n. 7 (7th Cir.1992).
Furthermore, the Harvey court was concerned that...
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U.S. v. Sertich, 95-1471
...Court of Appeals for the Ninth Circuit affirmed the Central District's denial of his California motion. United States v. Sertich, 69 F.3d 545 (table), 1995 WL 623745 (9th Cir.1995). We review the Northern District's denial of his Indiana motion. This is a legal question which we review de n......