U.S. v. Vogt, 89-2695
| Decision Date | 30 May 1990 |
| Docket Number | No. 89-2695,89-2695 |
| Parties | UNITED STATES of America, Appellant, v. Lonnie Edward VOGT, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Richard L. Murphy, Cedar Rapids, Iowa, for appellant.
Kevin J. Visser, Cedar Rapids, Iowa, for appellee.
Before WOLLMAN, Circuit Judge; GIBSON, FLOYD R., Senior Circuit Judge; and HEANEY, Senior Circuit Judge.
The government appeals from the order of the district court denying its motion to
vacate a plea agreement and guilty plea it negotiated with Lonnie Edward Vogt and dismissing an indictment against Vogt. Vogt moves to dismiss the appeal for lack of jurisdiction. We deny Vogt's motion and, after considering the merits of the appeal, affirm the order of the district court.
On September 20, 1988, Vogt was charged in a four-count indictment with various cocaine offenses, including distribution, possession with intent to distribute, and conspiracy to distribute and to possess with intent to distribute in violation of 21 U.S.C. Secs. 841 and 846 and 18 U.S.C. Sec. 2. The parties entered into a plea agreement which provided that the government would dismiss the original four-count indictment in exchange for Vogt's guilty plea to a reduced charge and his cooperation in an on-going investigation of drug trafficking. The parties signed the plea agreement on November 3, 1988, and Vogt pleaded guilty on the following day to one count of conspiracy to distribute and to possess with intent to distribute. 1
The plea agreement required that Vogt provide the government with complete and truthful information regarding any drug transactions of which he had knowledge. The agreement also contained the following stipulation:
It is understood that, upon request by the government, Lonnie Edward Vogt will voluntarily submit to a polygraph examination. In the event he is called upon by the government to submit to a polygraph examination and his performance in the examination suggests a conscious intent to deceive, mislead or lie, he will be afforded an opportunity to review and explain the deceptive responses to the government. If the totality of circumstances convinces the government that his statement is not complete and truthful, he will be so informed and any and all obligations imposed on the government by this agreement will be rendered null and void. This decision will be in the sole discretion of the United States Attorney for the Northern District of Iowa.
Plea Agreement para. 6.
In discussions with government agents before and after signing the plea agreement, Vogt described cocaine transactions he had engaged in with about thirty people. The drug activities Vogt discussed took place only through the fall of 1987, although the government was aware that Vogt's personal cocaine use extended into 1988. Brad Armstrong, one of the individuals with whom Vogt admitted dealing in cocaine, subsequently entered into a plea agreement with the government and implicated Vogt in two drug transactions taking place in 1988.
On January 25, 1989, Vogt underwent a polygraph test at the government's request. When he was informed that the test indicated he was lying, Vogt acknowledged that he had not been truthful with government agents about the extent of his drug involvement after October 1987. Following the polygraph test, Vogt testified before a federal grand jury pursuant to the plea agreement on January 25 and 26, 1989. Vogt was again summoned before the grand jury in March 1989, but was not called to testify. On April 4, 1989, the government moved the district court to set aside Vogt's plea agreement. Vogt resisted the government's motion and a hearing was held on May 15, 1989.
The district court found that Vogt had materially breached the plea agreement by not providing complete and truthful information about his drug activities after November 1987. The court also found that although the government learned of Vogt's On July 17, 1989, the district court dismissed the original four-count indictment and sentenced Vogt to six years imprisonment to be suspended with five years probation after Vogt served six months. 2 The government twice moved the court to reconsider its motion to vacate the plea agreement and Vogt's guilty plea. The court denied both motions and this appeal ensued.
breach on January 25, 1989, it continued to solicit and accept the benefit of the plea agreement by requiring Vogt to appear three times and to testify twice before the grand jury. The district court concluded that the government waived any right to complain of Vogt's breach by continuing to solicit and accept the benefit of the bargain after it learned of the breach. Accordingly, the court denied the government's motion to vacate the plea agreement.
Vogt moves to dismiss this appeal for lack of jurisdiction. Noting that this Court has jurisdiction over a government appeal in a criminal case only when a statute authorizes such jurisdiction, Vogt claims that no statutory authorization exists in this case. We disagree.
This court has jurisdiction over an appeal by the United States "from a decision, judgment, or order of a district court dismissing an indictment or information * * * as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." 18 U.S.C. Sec. 3731 (1988). Here, the district court's denial of the government's motion to vacate the plea agreement resulted in the dismissal of the original four-count indictment against Vogt. Consequently, section 3731 authorizes jurisdiction over this appeal.
On the merits, the government argues that the district court erred in denying its motion to vacate Vogt's plea agreement once Vogt had breached the agreement. We will overturn a district court's findings of fact only if they are clearly erroneous, see United States v. Dochterman, 630 F.2d 652, 653 (8th Cir.1980), and we will reverse a denial of a motion to vacate a guilty plea only for an abuse of discretion, cf. United States v. Moore, 822 F.2d 35, 37 (8th Cir.1987) ().
The district court found that Vogt had breached the plea agreement by failing to provide the government with complete, truthful information regarding his drug trafficking. The district court also found that the government knew or should have known of Vogt's breach on January 25, 1989. The government did not move to vacate the plea agreement until...
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