U.S. v. Sparks, 93-3021
| Decision Date | 08 April 1994 |
| Docket Number | No. 93-3021,93-3021 |
| Citation | 20 F.3d 476 |
| Parties | UNITED STATES of America v. Alphonso SPARKS, III, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia Circuit (91cr00607-01).
Allen E. Burns, Asst. Federal Public Defender, argued the cause for appellant. With him on the brief was A.J. Kramer, Federal Public Defender.
Barbara A. Grewe, Asst. U.S. Atty., argued the cause for appellee. With her on the brief were Eric H. Holder, Jr., U.S. Atty., and John R. Fisher and Elizabeth Trosman, Asst. U.S. Attys.
Before: WILLIAMS, GINSBURG and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILLIAMS.
Alphonso Sparks and the government dispute the meaning of an agreement pursuant to which Sparks pleaded guilty to various drug offenses (violations of 21 U.S.C. Sec. 841(a)(1) and 18 U.S.C. Sec. 924(c)). The agreement took the form of a letter from the United States Attorney to Sparks's counsel, which Sparks formally accepted. Sparks agreed to cooperate with the government--to testify fully and truthfully before grand juries and at any trials to which his testimony might be relevant, and also to participate in covert law enforcement activities at the request of the government. Agreement, Sec. 3. The government agreed that "if the Departure Guideline Committee of the United States Attorney's Office ... determines that [defendant] has provided substantial assistance ..., then this Office will file a motion pursuant to 18 U.S.C. Sec. 3553(e), and 5K1.1 of the federal sentencing guidelines" to support a lesser sentence than otherwise required by the guidelines or by any statutory minimum. Agreement, Sec. 9(c). ("Substantial assistance" is precisely what those provisions identify as the predicate for a government motion to impose a lower sentence.) At the sentencing 13 months later, the government reported that, because the departure committee had determined that the defendant had not provided substantial assistance, it would not make any such motion, and at the court's request sketched its view of the defects in Sparks's cooperation.
Sparks requested a hearing before the court on the scope of his assistance, pointing to Sec. 8(b) of the Agreement, which says that the issue of whether Sparks "performed all of the obligations under this agreement shall be determined by the Court in an appropriate proceeding." The government pointed to Sec. 9(c), the section that governs the making of a motion under Sec. 3553(e) or Sec. 5K1.1. Section 9(c) provides that "determination of whether [defendant] has provided 'substantial assistance' is within the sole discretion of the United States Attorney for the District of Columbia and is not reviewable by the Court." (The full text of Secs. 8 and 9 is included as an Appendix to this opinion.) The court denied the hearing and proceeded to sentence the defendant to 120 months of incarceration and three years of supervised release.
Because we believe the government's construction of the Agreement is correct, we affirm. Moreover, because we find the Agreement clear on this point, we need not consider defendant's contention, advanced in reliance on United States v. Rewis, 969 F.2d 985, 988 (11th Cir.1992), that any ambiguity in a plea agreement must be resolved in his favor.
Sections 8(b) and 9(c) overlap in the sense that both relate to the defendant's cooperation. But intersection is not identity. The two sections differ importantly in (1) the range of activities covered, (2) the party specified as making the determination and the exact matter to be determined, and (3) the consequences of the determination.
First, while Sec. 9(c) is concerned only with whether defendant's cooperation amounted to substantial assistance, Sec. 8(b) is designed to cover a breach of any of the duties that defendant undertook. These included his agreement to plead guilty and to admit his guilt (Sec. 1); not to withdraw his plea of guilty "solely because of the harshness of the sentence imposed" (Sec. 5(a)); and to a number of relatively minor matters such as a waiver of witness fees (Sec. 6).
Second, the only determination referred to in Sec. 9(c) is to be made by the Departure Guideline Committee, a determination of whether the defendant has "provided substantial assistance". Under Sec. 8(b), by contrast, the court is to decide whether the defendant "has specifically performed all of [his] obligations under this agreement". That Sec. 8(b) relates solely to the issue of the defendant's performance or non-performance is confirmed by the clause supplying the governing standard of proof, which says that the government shall (with certain exceptions) "be required to prove a breach of the agreement by a preponderance of the evidence." Breach of course would encompass the defendant's duties other than cooperation. But even in that domain, the issues under Sec. 8(b) and Sec. 9(c) would not be identical: the defendant might be in compliance with his duty to cooperate but nonetheless have failed--because of inadequate opportunities, for example--to have supplied "substantial assistance". The structure of Sec. 9 itself underscores the difference: while Secs. 9(a) & (b) provide that if the defendant specifically performs all his obligations the U.S. Attorney's Office will bring that fact to the attention of the court and to the Departure Guideline Committee, Sec. 9(c) adds a bonus--the possibility of a "substantial assistance" motion.
Third, the consequences of the two determinations are altogether different. If the government establishes a breach under Sec. 8(b), then it is freed from its promises under the agreement. These included its agreement not to charge Sparks with any offense (other than a crime of violence) committed in the District of Columbia prior to entering the plea agreement of which it had knowledge before the execution of the agreement (Agreement, Sec. 14); not to use against Sparks information provided by him pursuant to his cooperation (subject to certain exceptions) (id.); and to take suitable measures to assure the defendant's safety (id., Sec. 15). The agreement spells out that once a defendant's breach is shown the government will be "released from its commitment to honor all of its obligations to [defendant]", and explains, as examples, that it could then prosecute him for non-charged or dismissed offenses and use against him all statements that he had made in the course of his cooperation. Id., Sec. 17.
Section 9(c) is far narrower, though obviously it...
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