United States v. Mergen
764 F.3d 199
| 2d Cir. | 2014Background
- Mergen was a paid FBI informant inside Gambino/Bonanno families; he helped with recordings and investigations.
- In June 2006 he pled guilty to a Travel Act offense, under a cooperation agreement with a § 5K1.1 request for substantial assistance.
- The agreement tolled the statute of limitations for prosecutions resulting from Mergen’s breach, “premised on” his statements, testimony, or leads derived therefrom.
- Mergen later breached by denying knowledge of a theft, leading to superseding indictments for additional crimes based on his cooperation.
- At trial, the government used recordings and testimony from witnesses whom Mergen had aided; the district court later vacated the Travel Act conviction due to evidentiary errors, and the other counts were reversed for tolling issues; the case was remanded for retrial on the Travel Act count.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Travel Act: sufficiency of intent to commit arson | Mergen lacked the requisite intent; ambiguous role as informant | Evidence showed active participation and intent to facilitate the arson | Travel Act conviction vacated on appeal due to evidentiary/exclusion issues (insufficient for final judgment) |
| Public authority and related defenses | Mergen acted under government authorization | No express authorization; entrapment by estoppel not established | Public authority and entrapment defenses rejected; no implicit authorization found |
| Impeachment evidence: admissibility of recording | Recording shows Wright’s view on Mergen’s culpability; impeachment should be allowed | Recording excluded as hearsay/authentication issue | Recording should have been admitted for impeachment purposes; failure to admit was reversible error; Travel Act conviction vacated and remanded |
| Statute of limitations tolling under cooperation agreement | Paragraph 9 tolls for prosecutions based on statements, testimony, or derived leads | Tolling narrowly limited to sources within paragraph; cannot include leads from witnesses convicted through cooperation | Tolling not applicable to pre-2004 offenses; remaining convictions reversed |
| Withdrawal of guilty plea and scope of tolling | Guilty plea withdrawal affects the agreement | No rescission; waiver valid | Guilty plea withdrawal did not rescind the agreement, but tolling language must be read narrowly; remaining convictions reversed |
Key Cases Cited
- United States v. Morrison, 153 F.3d 34 (2d Cir. 1998) (defers to jury credibility and weight of evidence)
- United States v. Aleskerova, 300 F.3d 286 (2d Cir. 2002) (heavy burden of sufficiency review)
- United States v. Geibel, 369 F.3d 682 (2d Cir. 2004) (evidence viewed in light most favorable to the government)
- United States v. Giffen, 473 F.3d 30 (2d Cir. 2006) (public authority/entrapment principles; caution in defense)
- United States v. Corso, 20 F.3d 521 (2d Cir. 1994) (entrapment-by-estoppel framework; open-ended license prohibited)
- United States v. Abcasis, 45 F.3d 39 (2d Cir. 1995) (limits on defense of implicit authorization)
- United States v. Ready, 82 F.3d 551 (2d Cir. 1996) (strict construction against government in plea agreements)
- United States v. Cimino, 381 F.3d 124 (2d Cir. 2004) (plea agreement interpretation; tolling considerations)
- United States v. Aleman, 286 F.3d 86 (2d Cir. 2002) (interpretation of cooperation agreements)
- United States v. Carmichael, 216 F.3d 224 (2d Cir. 2000) (strict construction of plea agreements against government)
- Can. Life Assurance Co. v. Converium Ruckversicherung (Deutschland) AG, 335 F.3d 52 (2d Cir. 2003) (interpretation of enumeration language in contracts)