147 So. 3d 231
La. Ct. App.2014Background
- Herman Franklin, an NOPD officer, was investigated for overlapping public-payroll and private-duty (Walgreens) work in 2007; initial internal report identified specific overlapping dates.
- DA Eddie Jordan allowed Franklin into a pre-trial diversion program; Franklin paid fees/restitution and the DA’s office sent an unconditional letter stating: “You have successfully completed the Diversionary Program ... The Office will now dismiss the case,” referencing La. R.S. 14:138 (public payroll fraud).
- After a successor DA reopened the investigation, additional overlapping payroll entries (same year, same employers) were discovered; a bill of information was filed charging payroll fraud covering a broader date range in 2007.
- Franklin moved to quash, arguing the diversion agreement barred prosecution; the trial judge found a binding agreement and quashed the bill, stating “a deal is a deal.”
- The appellate court reviewed for abuse of discretion, examined whether an agreement not to prosecute existed, its scope, whether it was breached, and whether quashal was the proper remedy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a binding agreement not to prosecute existed | Franklin: DA made an offer; he completed diversion; mutual consent created a binding agreement | DA: No rescission shown; any claimed error vitiating consent not raised/proven | Held: Binding agreement existed; trial judge’s factual findings supported on review |
| Scope of the agreement (dates/offenses covered) | Franklin: Letter referenced La. R.S. 14:138 and contained no date limits; covers all pre-diversion payroll fraud | DA: Agreement limited to dates alleged in initial IA report; later overlaps are new offenses | Held: Agreement construed against drafter (DA office); ambiguous scope favors Franklin; included prior undisclosed overlaps |
| Whether DA breached the agreement by instituting prosecution | Franklin: Having fulfilled condition (completion), DA was bound not to prosecute | DA: Reopened investigation revealed additional conduct outside initial scope | Held: DA breached by filing charge within the agreement’s scope after Franklin’s performance |
| Proper remedy for breach | Franklin: Quash bill of information to enforce agreement and bar prosecution | DA: (argued procedural/merits points and preserved other defenses including double jeopardy) | Held: Quash and dismissal is appropriate remedy to enforce an agreement not to prosecute; trial judge did not abuse discretion |
Key Cases Cited
- Santobello v. New York, 404 U.S. 257 (U.S. 1971) (prosecutorial promises must be honored; plea agreement fairness)
- Bordenkircher v. Hayes, 434 U.S. 357 (U.S. 1978) (prosecutorial selectivity and plea bargaining are constitutionally permissible)
- Ricketts v. Adamson, 483 U.S. 1 (U.S. 1987) (plea agreements analyzed with contract-law analogy, but constrained by constitutional rights)
- Cooter & Gell v. Hartmax Corp., 496 U.S. 384 (U.S. 1990) (abuse of discretion occurs when a court misapplies the law)
- United States v. Taylor, 487 U.S. 326 (U.S. 1988) (discretion guided by legal principles)
- State v. Cardon, 946 So.2d 171 (La. 2007) (agreement not to prosecute via diversion may be enforced; ambiguity construed against DA)
- State v. Louis, 645 So.2d 1144 (La. 1994) (remedies and enforcement principles for diversion agreements)
- State v. Givens, 776 So.2d 443 (La. 2000) (contract principles guide analysis of prosecutorial agreements)