US v. Ailsworth, 94-40017-01-SAC

• Decision Date: 20 July 1995
• Docket Number: 94-40017-06-SAC and 94-40017-07-SAC.,No. 94-40017-01-SAC,94-40017-02-SAC,94-40017-01-SAC
• Citation: 899 F. Supp. 511
• Parties: UNITED STATES of America, Plaintiff, v. Jessie AILSWORTH, Jr., a/k/a "J.C.", Undra P. Mock, George Stewart, Jr., a/k/a "Pigg," and Calvin Conway, Defendants.
• Court: U.S. District Court — District of Kansas

899 F. Supp. 511

UNITED STATES of America, Plaintiff, v. Jessie AILSWORTH, Jr., a/k/a "J.C.", Undra P. Mock, George Stewart, Jr., a/k/a "Pigg," and Calvin Conway, Defendants.

Nos. 94-40017-01-SAC, 94-40017-02-SAC, 94-40017-06-SAC and 94-40017-07-SAC.

United States District Court, D. Kansas.

July 20, 1995.

Joseph D. Johnson, Joseph D. Johnson, Chtd., Topeka, KS, Charles D. Dedmon, Office of Federal Public Defender, Topeka, KS, for Jessie Ailsworth, Jr.

F.G. Manzanares, Jerold E. Berger, Topeka, KS, for Undra P. Mock.

Stephen W. Kessler, Topeka, KS, for George Stewart, Jr.

Jeannine D. Herron, Topeka, KS, William K. Rork, Rork Law Office, Topeka, KS, for Calvin Lee Conway.

MEMORANDUM AND ORDER

CROW, District Judge.

On November 28, 1994, the court commenced jury selection for the trial of Jessie Ailsworth, Jr., Undra P. Mock, George Stewart, Jr., Calvin Conway, Terrance J. Douglas and Kenneth Torain. Arnett Rice, the seventh codefendant, had previously been severed from the other codefendants. See United States v. Ailsworth, 873 F.Supp. 1450 (D.Kan.1994) (explaining reasons for granting Rice's motion for severance). If convicted of all charges, each defendant faced substantial mandatory minimum sentences. During voir dire, each of the defendants except for Torain entered plea agreements with the government.¹

In pertinent part, each of the plea agreements provides:

4. Defendant will provide the United States Attorney's Office for the District of Kansas with a full and truthful accounting and statement of all knowledge he has concerning his involvement and the involvement of all other people known to defendant in the matters charged in the Second Superseding Indictment of this case. This will be done in the form of a complete oral debriefing by defendant, to law enforcement officials, and will be subject to Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11, except that it could and would be used to impeach defendant in the event that he decided to testify in this matter, for the government or the defense.

5. Further, defendant agrees to submit to a polygraph examination and pass same for truthfulness, regarding all representations made by defendant during said oral debriefing regarding his knowledge concerning his involvement and the involvement of all other people known to defendant in the matters charged in the Second Superseding Indictment of this case.

6. Further, if called upon to do so, defendant agrees to testify truthfully and completely in the trials of other individuals involved in the offenses charged in the Second Superseding Indictment of this case.

7. In exchange for defendant's plea of guilty and his full, complete and truthful cooperation, and if necessary his testimony in this investigation, pending case, and any future cases, the United States Attorney's Office for the District of Kansas agrees to the following:

a. Dismiss the remaining counts of the Second Superseding Indictment at the time of his sentencing, and to bring no further criminal charges against defendant resulting from the activities which form the basis of the Second Superseding Indictment in these matters¹;

b. To immediately separate defendant from his codefendants and make arrangements that he will remain on separate status from all codefendants and those associated with them for the duration of this incarceration;

c. If appropriate, prior to sentencing, to file a motion pursuant to U.S.S.G. § 5K1.1, to reduce his sentence to reflect his substantial assistance, if any, in the investigation and/or prosecution of another person(s) involved in this offense or other offenses; and

d. If appropriate, after sentencing, to file a motion pursuant to Fed.R.Crim.P. 35, to reduce his sentence to reflect his substantial assistance, if any, in the investigation and/or prosecution of another person(s) involved in this offense or other offenses.

8. The defendant acknowledges and understands that the decision, whether to file this motion and whether he has provided substantial assistance, is a matter that resides in the sole and exclusive discretion of the United States Attorney for the District of Kansas.

. . . . .

13. Should defendant, in the sole opinion of the United States Attorney's Office for the District of Kansas, not comply fully, truthfully and honestly with the terms of this agreement, the United States Attorney's Office for the District of Kansas shall be immediately released from its obligations hereunder and may reinstate prosecution as if no agreement had been reached.

1 The original indictment and the superseding indictment will also be dismissed.

a. Defendant is aware and understands that his willful failure to provide truthful information and testimony pursuant to this plea agreement could subject him to additional prosecution, including but not limited to charges of perjury and obstruction of justice.

14. This written Plea Agreement supersedes any and all other agreements or negotiations which the parties may have previously reached or discussed, and this written plea agreement embodies each and every term of the agreement among the parties.

On March 31, 1995, Terrance Douglas was sentenced. Based upon Douglas' substantial assistance, the United States filed a motion pursuant to United States Sentencing Commission, Guidelines Manual, § 5K1.1 (Substantial Assistance To Authorities). After considering the government's § 5K1.1 motion and all of the other relevant facts and circumstances, the court sentenced Terrance J. Douglas to a primary term of incarceration of sixty months, a sentence substantially below the guideline range.

This case comes before the court upon the defendants' "Motion to enforce plea agreements or in the alternative set aside pleas" (Dk.495). In that motion, Ailsworth, Mock, Stewart and Conway argue that while they have performed their part of the bargain, the government has not. The defendants contend that United States, and in particular, the Assistant United States Attorney (AUSA), Greg Hough, has not abided by the express terms of the plea agreements each defendant has entered. The defendants essentially allege bad faith by the government. Absent a motion pursuant to § 5K1.1 by the government, the defendants face substantial sentences of incarceration.²

Specifically, the defendants contend that during their respective polygraphs, they were asked questions which were not related to their debriefing. The defendants contend that such questions violated the terms of the plea agreements. The defendants also question the validity of the polygraph examination and the propriety of the questions which were asked during the examination. The defendants apparently contend that the substance or phrasing of the questions rendered the polygraph results unreliable. The defendants seek an order compelling the government to abide by the terms of the plea agreement, or in the alternative to withdraw their pleas.

The government responds, arguing that each of the defendants has "breached" the plea agreements, and therefore its failure to file a § 5K1.1 motion is not a breach of the plea agreements.³ The government contends that in no way did the questions that were asked deviate from the terms of the plea agreement. The government essentially contends that because each of the defendants failed a polygraph, it was not obligated to file a § 5K1.1 motion. The government also notes that the defendant's failure to provide information or cooperation warranting a § 5K1.1 motion does not foreclose the possibility of a motion pursuant to Fed.R.Crim.P. 35. The government emphatically denies that it has acted in bad faith in this case.

On May 3, 1995, and May 22, 1995, the court conducted hearings on the defendants' motion. Following the hearings, Conway, Stewart and Mock filed briefs in support their respective positions in this case. The government filed a consolidated response. Based upon the court's conclusion that additional oral argument would not materially assist in deciding the pending motion, the matter is deemed submitted on the briefs and on the oral arguments advanced by counsel in both the May 3, 1995, and May 22, 1995, hearings.

Enforcement of the Plea Agreement

Legal Standards:

The government must fulfill any promise that it expressly or impliedly makes in exchange for a defendant's guilty plea. United States v. Ingram, 979 F.2d 1179, 1184 (7th Cir.1992) (citing Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971)), cert. denied, ___ U.S. ___, 113 S.Ct. 1616, 123 L.Ed.2d 176 (1993). "In determining the rights of a defendant, or the government, under a plea agreement in a criminal proceeding the `courts have frequently looked to contract law analogies.'" United States v. Gamble, 917 F.2d 1280, 1282 (10th Cir.1990) (quoting United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir.), cert. denied, 451 U.S. 1018, 101 S.Ct. 3008, 69 L.Ed.2d 390 (1981)); United States v. Wagner, 994 F.2d 1467, 1476 (10th Cir.1993).⁴ Plea agreements are contracts, and their content and meaning are determined according to ordinary contract principles. Ingram, 979 F.2d at 1184 (citations omitted); see United States v. Mesa-Rincon, 911 F.2d 1433, 1446 (10th Cir.1990) ("Plea bargains are governed by contract principles.").

"`Plea bargains, like contracts, cannot normally be unilaterally broken with impunity or without consequence.'" United States v. Stemm, 847 F.2d 636, 637 (10th Cir.1988) (quoting United States v. Reardon, 787 F.2d 512, 516 (10th Cir.1986) (citation omitted).

The Supreme Court has stated that the Government may not breach any term of a plea agreement which induced a defendant to plead guilty. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971). Accordingly, when a defendant has entered into a plea agreement with the Government, the court must ensure that he/she receives what is reasonably due him/her under the

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