USA v. Clark

• Decision Date: 07 June 2000
• Docket Number: No. 99-30200,99-30200
• Citation: 218 F.3d 1092
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNIS GUY CLARK, Defendant-Appellant. Office of the Circuit Executive
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1092

218 F.3d 1092 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENNIS GUY CLARK, Defendant-Appellant.

No. 99-30200

Office of the Circuit Executive

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 7, 2000--Seattle, Washington

Filed July 17, 2000

Eric J. Wildman, Arkoosh Law Offices, Gooding, Idaho, for the defendant-appellant.

Kim R. Lindquist, Assistant United States Attorney, Boise, Idaho, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, District Judge, Presiding; D.C. No. CR 98-000-076-BLW

Before: Procter Hug, Jr., Chief Judge, Melvin Brunetti, and Ronald M. Gould, Circuit Judges.

GOULD, Circuit Judge:

Following a jury trial in the United States District Court for the District of Idaho, Dennis Guy Clark ("Clark") was convicted of the following federal offenses arising from his involvement in the burglary of a pawn shop in Salmon, Idaho: distribution of marijuana in violation of 21 U.S.C. S 841(a)(1); theft of firearms moved in interstate commerce in violation of 18 U.S.C. S 924(l); theft of firearms from a federally licensed firearms dealer in violation of 18 U.S.C. S 924(m); possession of a stolen firearm which has moved in interstate commerce in violation of 18 U.S.C. S 922(j); and being a felon in possession of a firearm in violation of 18 U.S.C. S 922(g)(1). The district court sentenced Clark to 293 months in prison. Clark appeals the district court's judgment of conviction arguing that the district court erred by denying Clark's motion to dismiss the indictment because (1) a prior plea agreement immunized Clark from prosecution, and (2) the government had a duty to disclose its investigation of the Salmon burglary when it negotiated a prior plea agreement. We have jurisdiction pursuant to 28 U.S.C. S 1291. We affirm, holding that the district court did not err by denying Clark's motion to dismiss the indictment.

FACTUAL AND PROCEDURAL BACKGROUND

On January 14, 1997, the government indicted Clark in the District of Oregon for a series of post office robberies in Oregon, Idaho and Nevada ("postal robberies"). On March 14, 1997, after Clark admitted his involvement in the postal robberies, Assistant United States Attorney ("AUSA") for the District of Oregon, Fred Weinhouse ("Weinhouse"), sent Clark's attorney Arron Guevara ("Guevara"), an offer of a plea agreement. The plea agreement provided that Clark plead guilty to his involvement in the postal robberies. The plea agreement also provided: "The government agrees that no other charges will be filed against defendant in connection with this investigation." On May 21, 1997, Clark and Guevara executed the plea agreement as offered.

More than a year later, on July 7, 1998, the government indicted Clark and other co-defendants for a burglary of Ack's Auction and Pawn Shop in Salmon, Idaho ("Salmon burglary") that had taken place on October 10, 1996, and that had been under investigation by local and federal law enforcement agents since that time. On November 20, 1998, Clark moved to dismiss the indictment, arguing that the Salmon burglary charges were part of the investigation referred to as "this investigation" in the 1997 plea agreement covering the postal robberies. The district court held an evidentiary hearing on Clark's motion to dismiss.

During the hearing Clark's attorney put forth evidence demonstrating that the investigations of the Salmon burglary and the postal robberies were somewhat intertwined. The district court noted that evidence of the intermingling of the investigations of the different crimes was relevant to the meaning of "this investigation" only so far as the parties to the plea agreement were aware of the intermingling.

In denying the motion to dismiss the indictment, the district court considered evidence of the understanding of the persons who negotiated the plea agreement, AUSA Weinhouse and Guevara, and of Clark. The court found that AUSA Weinhouse was not thinking of the Salmon burglary investigation when he made his plea offer because he did not know of it at the time. Further, when AUSA Weinhouse learned of the Salmon burglary investigation before executing the plea agreement, he reviewed the agreement and concluded (and documented) that the Salmon burglary was not part of "this investigation" as referenced in the plea agreement.

The court found that Clark's defense counsel Guevara did not know about the Salmon burglary investigation when he negotiated the plea agreement, and that he did not understand it to be included in the plea agreement. Further, the court found that, had Guevara known of the Salmon investigation, he would have negotiated further to reach agreement also regarding that burglary.

Finally, the court found that, although Clark testified that he believed that the plea agreement gave him immunity from any federal prosecution for crimes for which the government had knowledge at the time of the agreement, his testimony was inconsistent with the agreement because the language of the agreement limited immunity to crimes that were part of "this investigation," not all federal crimes known to the government. The court further found that the defendant's purported belief that "this investigation" covered the Salmon burglary was objectively unreasonable because there was very little evidence of a link between investigations of the two different crimes.

Accordingly, finding that Clark had failed to carry his burden of proving that the parties reasonably understood the term "this investigation" to cover the Salmon burglary, the district court denied the motion to dismiss the indictment. Clark then proceeded to a jury trial, was convicted as charged and was sentenced to 293 months to be served concurrently with the time he was serving for the postal robberies. Clark appeals the judgment of conviction, arguing that the district court erred in denying his motion to dismiss the indictment.

DISCUSSION

A. Plea agreement

Clark argues that the district court erred by denying his motion to dismiss the indictment because he was immunized from prosecution of the Salmon burglary by the term "this investigation" in the plea agreement regarding the postal robberies. We disagree.

The district court's interpretation and construction of a plea agreement is reviewed for clear error. See United States v. Ajugwo, 82 F.3d 925, 928 (9th Cir. 1996). Factual findings regarding the terms of the plea agreement are also reviewed for clear error. See id. Whether the government breached a plea agreement is reviewed de novo. See United States v. Fisch, 863 F.2d 690, 690 (9th Cir. 1988). Whether language in a plea agreement is ambiguous is subject to a de novo review. See United States v. Anderson, 970 F.2d 602, 606 (9th Cir. 1992), amended 990 F.2d 1163 (9th Cir. 1993).

Our analysis begins with the fundamental rule that "[p]lea agreements are contractual in nature and are measured by contract law standards." United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993) (quoting United States v. Keller, 902 F.2d 1391, 1393 (9th Cir. 1990)). "In construing the terms of an agreement and the parties' obligations under it, the courts generally employ traditional contract principles." G. Nicholas Herman, Plea Bargaining,S 10:04, at 190 (1997). A leading criminal procedure treatise illuminates the relationship between these contract law principles and broader issues of criminal procedure.

[Contract rules] have to be applied to plea agree ments with two things in mind which may require their tempering in particular cases. First, the defen dant's underlying "contract" right is constitutionally based and therefore reflects concerns that differ fun damentally from and run wider than those of com mercial contract law . . . . Second, with respect to federal prosecutions, the courts' concerns run even wider than protection of the defendant's individual constitutional rights-to concerns for the "honor of the government, public confidence in the fair admin istration of justice, and the effective administration of justice in a federal scheme of government."[This means that] both constitutional and supervisory con cerns require holding the Government to a greater degree of responsibility than the defendant (or possi bly than would be either of the parties to commercial contracts) for imprecisions or ambiguities in plea agreements . . . . This is particularly appropriate where, as would usually be the case, the Government has proffered the terms or prepared a written agreement-for the same reason that dictate that approach in interpreting private contracts.

5 Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure, S 21.2(d), at 57 (2d ed. 1999) (quoting United States v. Harvey, 791 F.2d 294 (4th Cir. 1986).

In our precedents, we have made clear that several wellestablished rules of interpretation govern our consideration of the plea agreement in dispute. If the terms of the plea agreement on their face have a clear and unambiguous meaning, then this court will not look to extrinsic evidence to determine their meaning. See United States v. Ajugwo, 82 F.3d 925, 928 (9th Cir. 1996). If, however, a term of a plea agreement is not clear on its face, we look to the facts of the case to determine what the parties reasonably understood to be the terms of the agreement. See United States v. Gerace, 997 F.2d 1293, 1294 (9th Cir. 1993). If, after we have examined the extrinsic evidence, we still find ambiguity regarding what the parties reasonably understood to be the terms of the agreement, then the government "ordinarily must bear responsibility for any lack of clarity." De la Fuente, 9 F.3d at 1337 (quoting United States v. Packwood, 848 F.2d 1009, 1011 (9th Cir. 1988)). "Construing ambiguities in favor of the defendant makes sense in light of the parties respective bargaining power and expertise." Id.

Here, the...