*1 for review is GRANTED petition returns to to his torture he acquiesce Part, REMAND- DENIED in Part and country. his ED Instructions. With standard applied legal BIA the correct eligi- determining that Mr. Afridi is Against ble for relief under the Convention
Torture.
V that the
Finally, argues Mr. Afridi process due
denial of relief violated his legal authority no rights. Mr. Afridi cites America, UNITED STATES He argument. for this asserts Plaintiff-Appellant, him BIA denied relief without “due consid v. However, BIA did address eration.” Lynda TRANSFIGURACION, L. claim Mr. Afridi his each raised Defendant-Appellee. that in deter appeal. He also contends ineligible for discre mining that he was America, United States relief, BIA tionary failed to consider Plaintiff-Appellant, shows, how his rehabilitation. The record ever, BIA consider his did rehabil light that in of his
itation. It concluded Thuy Dao, Defendant-Appellee. convictions, other Mr. Afridi’s rehabilita 04-10457, Nos. 04-10458. justify allowing him enough tion was not to remain in the States. of Appeals, United States Court Ninth Circuit.
CONCLUSION Argued Sept. and Submitted 2005. petition DENY Mr. Afridi’s for re- We April Filed finding that he is remov- view of the BIA’s having aggravated committed an able for
felony. Mr. Afridi’s for petition
We GRANT of the BIA’s determination that he
review particularly
committed a serious offense. REMAND with instructions that the
We analysis
agency engage case-specific
determining whether Mr. Afridi’s offense crime, particularly rendering
is a serious ineligible withholding
him for of removal. petition DENY Mr. Afridi’s
We of the BIA’s denial of his claim for
view Against
relief under the Convention Tor- petition
ture. We DENY Mr. Afridi’s alleges BIA
review insofar as process rights by failing
violated his due
exercise due consideration. *2 M. Rapadas, conspiracy smuggle
Leonardo United States ated with narcot- David, Attorney, P. & Marivic Assistant early from ics California Guam between GU, Attorney, Hagátña, United States 1997 and late plaintiff-appellant of Amer- United States charged Dao were both ica. *3 import grams methamphet- over 500 Gavras, Gavras, P.C., &
William Gorman hydrochloride amine “into the United GU, Hagátña, defendant-appellee Lyn- place from a States outside thereof’ da Transfiguración. 952(a), 960, §§ of 21 violation U.S.C. and Arriola,
Joaquin 963 and to distribute over 500 Jacqueline C. Jr. & Tai- Arriola, Arriola, Terlaje, tano Cowan & grams methamphetamine hydrochloride GU, Hagátña, defendant-appellee Thuy 841(a)(1) §§ violation of 21 U.S.C. and Dao. charged 846. Dao with conspira- was also
cy monetary to launder instruments in vio- 1956(a)(i)(B)(i), §§ lation of 18 U.S.C. 1956(h). and Following negotiations with govern- ment, agreed, pursuant both defendants plea agreements, to waive indictment and FLETCHER, Before B. JOHN R. plead guilty an charging information GIBSON,* BERZON, Judges. and Circuit importing them with grams of meth- BERZON, Judge. Circuit amphetamine hydrochloride “into the Unit- In this consolidated proceeding, we are place ed from a outside thereof’ in interpret give called on to and effect to a § violation of 18 U.S.C. and 21 U.S.C. less-than-precise plea agreement between 952(a) §§ Transfiguración and 960. and the United States and two criminal defen- agreed cooperate Dao also with the dants. The appeals United States from government fully and truthfully its in- court, two decisions of the district which vestigation drug trafficking conspir- dismissed an indictment both de- acy and of their co- grounds fendants the terms conspirators. exchange for their plea agreements prohibited gov- pleas cooperation, prosecuting ernment from them for the agreed not to the defendants for by offenses covered the indictment. We “any other non-violent offenses.” The affirm. agreement also provided govern- ment would conspiracy charges I. dismiss the contained in the multi-count On October 2001 a grand federal “upon sentencing.” Because the exact lan- jury sitting in the District of Guam re- guage of the defendants’ turned a criminal multi-count indictment in case, is significant to the resolution of 01-00099, case No. charging defendants Lynda Dao, reproduce provisions the relevant Thuy others, among with various offenses associ- those here:1 * Gibson, stantially Honorable John R. Senior quote directly identical. We from Circuit, Judge Eighth States Circuit agreement; language appears Dao's the same sitting designation. Transfiguracion’s agreement, unless noted Although Transfiguración 1. and Dao executed otherwise. separate plea agreements, the texts are sub- in- known to the fenses now agrees to waive 1. The defendant 7(b) she reveals to federal authorities. which to Rule pursuant dictment Procedure, Rules of Criminal Federal to an Information
and enter
truthful,
full,
provides
If defendant
importation of
her with
charging
investigat-
assistance to
substantial
methamphetamine
weight
net
grams
ing
agencies,
federal
“ice,” in
of 21
violation
Court,
also known as
provided
will move the
952(a)
5K1.1,
Sentencing
§§
and 960. The
U.S.C.
Section
United States
I,
Guidelines,
USSG,
hereinafter
and 18
VI
move to dismiss Counts
ment will
3553(e), for a downward
U.S.C. Section
against her
of an indictment
and VIII
from the Guidelines and the
departure
sentencing.[2]
upon
01-00099
CR#
*4
statutory minimum sentence....
agrees
...
further
to
The defendant
2.
to
7. The defendant understands
truthfully cooperate with fed-
fully and
of
establish a violation
agents
law enforcement
eral and local
grams
methamphetamine,
of the im-
concerning
investigation
of the fol-
prove
must
each
distribution of
possession, and
portation,
beyond a reasonable
lowing elements
substances,
money
and
laun-
controlled
knowingly[3]
defendant
doubt: First:
activities,
unlawful
dering, and related
brought
grams
weight
net
of meth-
profits
from
including
disposition
amphetamine
“Ice” into the United
a/k/a
relating to such activities.
and assets
thereof; and
place
from a
outside
States
truthfully
testify fully
to
and
agrees
She
metham-
defendant knew was
Second:
any trials
any grand juries and at
before
phetamine
“Ice.”
a/k/a
the United
for
The United States
further understands
conspirators
defendant’s
ation
or
proceedings against
perjury
known to the Court
States, subject
for not
sentencing.
called
will make this
testifying
upon
any other co-
The defendant
to
she
prior to the
to
prosecution
truthfully.
do so for
remains
cooper-
Therefore,
plea agreement
9.
and truthfulness
completely each
agrees that
obligations under
The defendant understands that this
defendant understands
if she should
[*]
depends on the fullness
[*]
of her
[*]
every
plea agreement,
fail to fulfill
cooperation.
one of
her
any
subject
to
liable and
intention-
or make material omissions or
of-
Federal or Territorial
non-violent
engage
or
criminal
al misstatements
fully
not
advise the
fenses that she does
entry
of her
conduct after
States,
any
omis-
or for
material
sentencing,
agreement and before
In return for this
regard.
sions in this
be free from its obli-
government will
agrees
cooperation, the United States
plea agreement.
under
gations
defendant,
Dis-
Thus,
standing
defendant
not to
addition to
Mariana
matters to which she has
trict of
or the Northern
Guam
agreement,
to this
shall
pled pursuant
of-
any
other non-violent
Islands
import
conspiracy to dis-
conspiracy
laun-
VIII refers to the
2. Count
offenses, respectively.
tribute
monetary
charge,
for which
der
instruments
Dao,
Transfiguración, was indicted.
but not
Transfiguracion’s
plea agreement
contains
Transfiguracion's
states
"knowing-
"intentionally”
to dismiss
word
instead
will move
VI,
correspond
ly-”
which
Counts
I and
subject
fully
prosecu-
guracion
also be
to criminal
and Dao were
on certain
released
crimes,
tion for other
and for the counts
permitted
conditions and
return
Cali-
any
which were to be
dismissed.
during
By
fornia
the interim.4
all ac-
prosecution,
au-
prosecuting
counts,
fully cooperated,
thorities,
Federal, State,
whether
Lo-
or
required.
cal,
her,
shall
be free
use
Then this court threw a
wrench
limitation, any
without
and all informa-
6, 2003,
works: On June
we decided Unit-
tion,
form,
in whatever
that she has
Cabaccang,
ed States v.
which it then has and against They tions filed them. did not charges that have been dismissed will be seek withdraw their pleas automatically may rep- reinstated or be charges. those The defendants also grand jurisdic- resented to a jury with moved to dismiss the indictment in crimi- event, tion over the matter. such nal case No. 01-00099. any objections, defendant waives mo- tions, or upon defenses based the Stat- At the hearing district court on Dao’s Limitations, Act, ute of Speedy Trial dismiss, motions to government agreed the constitutional restrictions as to the time that this in Cabaccang court’s decision bringing charges. quired importation the information to be dismissed, as there longer was no a factual defendants, agreed, June, As both to support charges. basis the 2002, waived pleaded guilty indictment and ment, however, maintained that could importation the charges. Their cases continue to Dao conspira- were set hearings. for status Sentencing cy charges both cases covered the in- postponed was multi-count allow the defendants dictment. provide required time to The district court dismissed the information, and to importation allow the holding time to evaluate the charge assistance. Transfi- in light could not stand of Cabac- Transfiguración 4. After subsequently missed several of her arrest. She was arrested and required drug appear tests and failed to for a returned to Guam. hearing, a bench warrant was issued for her pre- government, with the proceed could not that the case cang and conspiracy court then or- prosecution The district cluded their sentencing. motion briefing on the supplemental charges. dered outstanding indictment
to dismiss timely appealed The United States hearing. matter for a status set the preclude district court’s decisions court held briefing, the district After Dao Transfiguración Transfiguracion’s address joint hearing to conspiracy indictment.7 This court informa- importation to dismiss the motion subsequently granted conspiracy tion as well as appeals. motion to consolidate motion to dismiss outstanding and Dao’s it had done indictment. As conspiracy II. case, agreed in Dao’s previously, see As we have noted against information filed importation Franeo-Lopez, 312 F.3d States v. dismissed. The had to be Transfiguración (9th Cir.2002), is a in our there conflict however, par- argued, concerning proper case law standard as to the factu- mutual mistake of law ties’ interpreta applied to a district court’s charge justified al basis of the plea agreement. Compare tion of a Unit plea agree- of the defendants’ rescission Floyd, 1 F.3d ed States also contended ments. The Cir.1993) (“The interpreta court’s district plea agree- under the terms finding is a of fact tion of a ments, charges remained for clear error but its and is reviewed both viable legal principles ques is a application of countered that be- Dao.5 The defendants (citations de novo.” tion of law reviewed fully complied had cause Salerno, omitted)), States v. with United plea agreements, obligations under their *6 Cir.1996) (“We (9th 1453, review F.3d 1460 including providing substantial interpretation of the court’s district States was government, to the United agreement de novo. We terms of a them on the prosecuting from prohibited the facts demonstrate consider whether in the indict- charges contained plea agree was a breach of that there ment. clearly the more deferential ment under orders, the dis- separate In two written (citations standard of review.” erroneous mo- granted both defendants’ trict court omitted)). not, however, need resolve We conspiracy indictment.6 tions to dismiss the case. Even under this conflict claim rejected government’s The court of re de novo standard less deferential could be rescinded agreements view, court’s that the district we conclude mutual mistake and the doctrine of under at of the interpretation had com- held that because Franco-Lopez, 312 correct.8 See by cooperating issue was plied with sought has not review "conspiracy charges” 7. The United States phrase 5. We use the rulings dismissing the im- charged against district court’s generally to the counts refer portation informations. Transfiguración and Dao in the offenses the case No. 01-00099 —the criminal dissenting colleague may appears that our continue to It government maintains it review in applying a de novo standard of prosecute. interpreta- concluding the district court’s reversed, as agreement should be impor- of the tion court also dismissed 6. The district declaring district Transfigura- provides no basis he filed tation information clearly ción, interpretation erroneous. regard court's to Dao. as it had done 1228 Fuente, (noting, declining
F.3d at 988
but
to re-
also United States v. De la
8 F.3d
(9th Cir.1993)
1333,
solve,
(“Construing
inconsistency
1338
am-
the standard of review
biguities in favor of the defendant makes
regarding interpretation
plea agree-
light
parties’ respective
sense in
ments because
standard we
“[w]hichever
conclusion”).
bargaining power
expertise.”).
As a
reach the same
apply, we
stake,
liberty
is at
defendant’s
interpret
Once a district court has
ordinarily
ment is
held to the literal terms
plea agreement,
compel
ed a
its decision to
made,
plea agreement
government’s specific performance
Packwood,
1009,
v.
848 F.2d
an agreement
is what the de
—which
(9th Cir.1988),
so that “[t]he
sought in
fendants
the district court—is
gets
it bargains
nothing
what
for but
reviewed for abuse of discretion. United more,”
Pruitt,
United States v.
32 F.3d
Anthony,
States v.
F.3d
(9th Cir.1994).
431, 433
Cir.1996).
B.
III.
mind,
principles
With these
we
contention,
A.
first
address the
based on the
doctrine mutual mistake of
turning
specific question
Before
to the
law,
that it is entitled to rescind the
case,
presented in this
we review some of
agreement. The claim is that because
governing principles
apply
both the
and the defendants
interpretation
plea agreement.
of a
Be
reasonably believed that
the defendants’
is,
bottom,
cause a
conduct
importa
constituted the crime of
contract
between the
and a
tion,
party
neither
was bound
defendant,
part
criminal
for the most
“we
Cabaccang
after our decision in
plea agreement using
construe
or
[a]
proved
understanding
incorrect.
dinary
interpretation.”
rules of contract
argument
ap-
While
has some initial
Poole,
Brown
See
337 F.3d
peal,
rejected substantially
the same
(9th Cir.2003).
analogy
to contract
argument
mutual mistake
in Barron. 172
is, however,
law
in certain circumstances
pleaded
F.3d at 1158-59. Barron
guilty to
imperfect,
always
and we do not
follow it.
possession
the offense of
a firearm
Barron,
See United States v.
172 F.3d
crime,
drug trafficking
relation to a
(9th Cir.1999)
1153, 1158
(en banc).
*7
924(c)(1).
§
violation of 18 U.S.C.
Id. at
One tenet of contract
law we
years
1155. Three
after Barron was sen-
steadfastly applied
agree
have
to plea
tenced,
Supreme
Court handed down
ments,
particular
importance
of
in this
States,
opinion Bailey
its
v. United
516
case,
that
proferentem,
is
of contra
137,
501,
U.S.
116 S.Ct.
vacated, conditioned the vacatur but inability to rescind a plea agreement. of his Barron’s withdrawal on a mutual agreement based mistake reversed, although holding that Id. We criminal defendants as applies law to well aside, his to be set had Barron’s conviction In government. as to the United States v. “to nothing § had done 2255 motion Zweber, rejected the of two argument agreement,” repudiate to breach nor they who claimed criminal defendants remained accordingly, agreement and were to withdraw entitled “plea Because the Id. at 1158. force. they govern and the pleas because both issue,” also not at and [was] entering agree ment believed when “can never be re- defendant because the sentencing reduction would be ment that ” position,’ we ‘original his turned to 705, 711 913 F.2d legally appropriate. argument that jected amendment, (9th Cir.1990), superseded by be rescinded because agreement should C, recognized app. amend. as U.S.S.G. of law.9 a mutual mistake there been had Webster, F.2d States v. Id. (9th Cir.1993). Zweber, defen typical prac- that our recognizes drug charges Barron pleaded guilty pur dants accord- construing plea agreements tice of agreement with the gov suant to a law principles of contract ing to part traditional 707. As of that ernment. Id. at mutual that a mistake suggest would government agreed rec agreement, the bargain struck invalidate the play law could sentencing ommend a reduction in a offense, the defendant in the as the de ing a minor role Nevertheless, we con- agreement. players to be minor alleged fendants were be inappropriate cluded that would distribution in a massive cocaine network. ordinary contract application extend the the defen charge which Id. Because the permit gov- far so as principles law was a distribution pleaded guilty dants mutual claim the defense of predomi ernment were the offense which actors, however, We observed: mistake. the district court nate inappropriate it would ex- ruled that be bargain is not a commercial pleaA reduction, reduction grant for the It is an instrument change. roles in the on their offense must be based of the criminal law. What enforcement conviction, otherwise extraneous liber- for the defendant is his is at stake Id. We affirmed conspiracy conduct. ty.... stake What view, mutual concluded that the securing pun- also just its interest ment is as to the misunderstanding parties its for violation law ishment did such a reduction appropriateness of pun- act that an innocent interest *8 to withdraw permit at all. The interests stake ished at 708-09, 711. Id. at they pleas.10 in are their judicial context which later, Sentencing Commission Transfiguración 10. The United States and Dao 9. As discussed clarify Sentencing Guidelines original positions amended the to their cannot restored in of the defendant’s role cooperated government that determination with the because con- be based on all relevant provid- an offense is to plea agreements, on their in reliance duct, simply acts those associated prosecution and not ing pertinent to their information conviction. See U.S.S.G. charges conspiracy con- with the crime additional on the ch.3, B, 345; C, pt. app. U.S.S.G. amend. tained the indictment. in agreements. provision is unfortunate that That states that “[i]t We observed guilty plea rejected, “[i]f defendant’s is and defense counsel both withdrawn, vacated, or reversed at erred, but defense counsel are not entitled time, the States will be free to rely faith government’s good on the prosecute defendant for all misunderstanding of the law as basis it knowledge.” which then has We dis Analogies relief. to contract law in this agree. paragraph That allows setting perfect.” are not Id. at 711. proceed only on the offenses reaching see no basis for a different We in one four circumstances: Where de conclusion on the mutual mistake issue withdrawn, “rejected, fendant’s is va here than we did in Barron Zweber. cated, An or reversed.” examination of plea agreement simply The nature of a is prior our case law leads us to the conclu complex support too the doctrine of sion that no such circumstance obtained liberty mutual mistake.11 With the of here.12 and Dao stake and their Barron held that a claim that a convic occurred, cooperation having already we tion underlying is invalid because the acts cannot allow the to rescind do not constitute a crime “did not attack premise plea agreement any way,” including parties mistakenly thought all the the de- by invalidating guilty plea pur entered pleading guilty
fendants were
to the crime
Barron,
agreement.
suant to
F.3d
Zweber,
importation.
As we
stated
Barron,
at 1158. As we observed in
“[a]s
matter,
“[i]t
unfortunate
practical
to criminal
erred,” id.,
and defense counsel both
acts can remain
force
as the sen
but
even
imposed upon
tence
an innocent act is set
that error cannot
an
void
otherwise valid
just quoted
aside.” Id. As the sentence
plea agreement.
indicates,
Barron did not view the
vacated,
“set aside” or
but
the sen
C.
tence
upon
entered
it. See also id. at 1159
next contends that
(characterizing the defendant’s motion as
may
Transfigura
continue
one to
(emphasis
“vacate his conviction”
”
underlying
ción and Dao on the
added));
(referring
id.
to the “conviction
by
added)).13
virtue of
eleven of the
(emphasis
as “void”
introductory
ruling
tencing
mandatory.
cmt.
substantive
Guidelines were
weAs
law,
Cardenas,
longer good
Zweber is thus no
explained
but the
that mistake does not
ruling concerning
binding
the continued
ef-
justify invalidating
right
the waiver of a
plea agreement
fect of the
appeal
is.
change
because "a
in the law does not
plea involuntary
unknowing.”
make a
11.This conclusion is buttressed
our recent
that absent a clause
the defen-
D.
moving
dants from
to vacate their convic-
tions, “the
that a
prosecution bore the risk
That
task is easier said than done.
change
the relevant
law
substantive
plea agreements
Three
in the
paragraphs
would afford the defendants the
to be
something
say
have
about the fate of the
provision
released.”
withdraw[ing], vacating], revers[ing]” directly refers to the in crimi- pleas the defendants’ does not address that nal provides case No. 01-00099 and risk. “will move to dismiss” the
It is the an government, not individual “upon counts the indictment defendant, criminal repeat play- who is the sentencing” of im- the defendants for the plea bargaining in the process. er Be- portation Paragraph offense. two states negotiated cause all are that in return for the tendered against backdrop the law can defendants, by the United States will change by way judicial interpretation, not prosecute them “for other non- “knew or should have violent known offenses now comparable changes known that in the law [they] ment or which to federal reveal[] occur from time to time.” Id. The failure Finally, paragraph pro- authorities.” nine to specify the United States that it could vides that if the defendants fail “fulfill continue to completely every each and one of [their] event obligations,” they may informations prosecuted crimes, development were dismissed due to a in “other and for the counts which appar possibility 15. We note that the has that in the event there is a ently language designed guard devised change in law and the defendant cannot subsequent a similar result in cases. proceed sentencing agreed upon judicial The district court took notice of the agree plead offense the defendant will fact that: charge encompassing to another Attorney the U.S. drafted has since same or similar conduct. agreements including language addressing *11 government proceed to permit pros- The hiatus is the dismissed.”16 were be con- ecute the defendants under it. expressly does not agreement that the here, that occurred the situation template First, plea agreements the remain bind the provided defendants have where the ing, as the defendants did breach them yet will never be required cooperation any way. Aguilar- v. See United States charges. importation on the sentenced (9th Cir.1998) Muniz, 156 F.3d together and Reading provisions the three (“After plea agreement accept has been proferentem, principle, the contra applying court, by may ed and entered the the court however, agreements conclude that the not rescind the on the preclude prosecution must be construed government’s motion the unless defendant those circumstances. under agreement.”); has breached the Partida-Parra, above, 859 F.2d mentioned as result of our States As (9th Cir.1988) (“We “sentencing” the conclude that the dis Cabaccang, decision by freeing govern trict court the contemplated paragraph one of the de- erred obligation occurred ment from its under the fendants’ never government’s argu- bargain will. The of a breach and never absence defendant.”). although ment is that dismissal required informations was Second, although paragraph under one was, Cabaccang, no because there after may of be charges, the underlying factual basis of obligation absolved its to move to dis- dismissed, need not be be- conspiracy charges upon miss the sentenc- government’s obligation under cause the ing, paragraph speaks only the in- plea agreements to dismiss according timetable to which the indict- sentencing of the de- upon dictment proceed matters ment is to be dismissed if importation charges will fendants planned.18 Paragraph as one does not ad- never arise.17 prosecution of those dress whether reasoning charges sentencing remains viable never may assume that the
We That is answered oth- question and the dissent is occurs. both the is, agreement, er terms of the which the up point correct to this —that terms, arise, bound. Those never so remains sentencing condition will explain, forbid the dismissing the indictment as we shall that basis reasons, conspiracy the defendants on the does not exist. For several how- ever, charges long they fully cooperate sentencing failure of the condi- as government.19 dismissing the indictment does not with tion for charges proceeding con- Paragraph directly implicated possibility of nine is not undisput- if the defendants it is tained in the indictment in these circumstances because required fully complied with failed to tender the ed that both defendants Nonetheless, agreements. interpreta- The agreements. our otherwise violated their proceed language tion takes into consideration the reserved this paragraph provision, upon reach a coherent un- the terms of so as to breach under derstanding ability plea agreements. as whole. nine of the however, according provision, proceed to that (1) above, two the indict- is conditioned on government did not 17. As noted events— (2) the defen- ment had to remain viable rulings appeal the of the district court dis- renege promise. dants had to on their missing importation charges. reason, the dissent is incorrect point providing 19.For 18. The agree- paragraph reliance on one. at the time of its were to dismissed one, earlier, begin but do sentencing, was to hold out the ments to re- phrase “other non-violent offenses” potatoes The meat and offenses, we uncharged fer would para- agreement is contained the second qualified expect phrase to find the accord- that, “in re- graph. provides That section *12 of not ingly e.g., the addition “but cooperation, the defendants’] turn for [the — charged.” language Such is absent.20 agrees prosecute not to de- States in the District of Guam or the The to dismiss the agreement fendants] sentencing take charges upon does Mariana for other Northern Islands assuring against of of problem care the gov- known to the non-violent offenses now charges be- prosecution dismissed [they] ernment or which to feder- reveal[ ] cause, paragraph standing under one Despite al authorities.” the alone, government proceed the could with argument contrary, meaning to the of the prosecution going such lieu forward phrase “other non-violent offenses” is charges with the the information— not difficult to ascertain: Provided which would then never reach the sentenc- cooperate, government ing stage. Alternatively, government prosecute cannot them for known could move to the indictment with- dismiss crimes other than those crimes for which prejudice, wholly out an action consistent agreed plead guilty, the defendants have to one, paragraph with and then reindict the namely, importation charges. conspiracy charges, on defendants re- government’s reading paragraph The gardless they of whether had tendered the two—that “other non-violent offenses now required cooperation. perverse These only government” known to the refers because, possible sults would be as the government “other crimes known to the government para- and the dissent read charged” but not is not tenable. There two, graph the defendants could have been been would have little reason for the de- prosecuted conspiracy charges, agree plead guilty they fully fendants to to the if cooperated. even cooperate crime of phrase We conclude that the “other non- government exchange agree- for an govern- violent known to offenses now prosecute ment not them on other ment” should be read to refer to all non- immunity their for “other non- government violent offenses known to the violent offenses” did not include the plead to which the defendants did charges that were to be dismissed. Fur- guilty, including conspiracy charges ther, government if the had intended contained the indictment.21 And, assertion, agreements phrase not end there. while the the dissent’s does not speak "language paragraph state that the indictment must be dismissed used in two,” sentencing, upon they dissenting op. do not state that the because the upon paragraph indictment is to be dismissed sen- words used nine—"other
tencing entirely and not As we other circumstances. crimes”-—is distinct from "other non- below, show an contain addi- violent offenses now known to the promise part government [they] tional reveal[] ment or which to federal au- Also, they coop- not to the defendants if thorities.” the context in which the two phrases quite erate. are used is different. government's Although reading 20. The dissent contends that the we do not find the suggested reading paragraph paragraph proffered by two two is con- provision paragraph persuasive, firmed nine and the dissent to the extent that that states that if the defendants do not fulfill "other non-violent offenses” is viewed as ca- obligations pable interpretations, all their under the of different such a char- fully subject prose- shall "be to criminal acterization cuts in favor of the defendants. crimes, government, cution for other and for the counts as the drafter of the defen- Contrary agreements, responsibility which were to be dismissed.” dants’ bears the inequitable. If argues that this re- were The United could, proceed, of the bene- under deprives the sult bargain, “bargaining as it was fit of its the last sentence of nine of the out But that account leaves a conviction.” agreements, use the defendants’ bar- story: was bar- half the gained-for cooperation help convict con- particular conviction—a gaining for separate them of crimes.22 not on importation, on the crime of viction nature, By very “importation” of contained in the conspiracy charges and “distribution” offenses require fenses Cabaccang no Our decision indictment. entirely justify different factual bases in a for the defen- resulted windfall doubt *13 Charging conviction. the offense of con who, dants, by change virtue of favorable spiracy adds other factual elements as law, the incarceration in the will avoid Jackson, well. See United States v. change, That they expected to serve. (9th Cir.1999) (“The 1280, 1285 F.3d evi however, permit government not the does necessary prove conspiracy dence to is escape obligation plea its under the to clearly distinct from that needed to sustain prosecute not to the defen- agreements underlying for a conviction the substantive “any for other non-violent offenses dants offense.”). agreed The defendants to government” long known to the as as now plead guilty required to a crime that the obligation. they cooperation fulfilled their government prove only they “im It that both they undisputed This did: narcotics; is, illegal that the ported” cooperation to the provided defendants drugs country. into the defendants flew investigation, in as re- government its Jury § See 9TH Cm. Crim. 9.27 Instr. quired the terms the agreement. (2000). prove “conspiracy To the to dis their end of upheld Once the defendants offense, contrast, govern tribute” in the government the did obtain agreement, required prove would be that the ment bargained-for consideration and was there- participated defendants a scheme to dis precluded prosecuting fore from defen- 8.16, §§ methamphetamine. tribute Id. charges contained conspiracy dants on the Further, 9.15. to sustain a conviction on language indictment. indictment, govern VIII of the Count by provid- recognizes, so prove have to that Dao con ment would two that the ing money spired engage with others to prosecute is return for “[i]n [the not to of 18 laundering violation U.S.C. cooperation.” defendants’] 1956(a)(1)(B)(i). § Even if considerations of fairness to the evidentiary The relevance of these dis- government pertinent they were —which part tinctions is that effort on not, agreements are as the terms of the with the con- government proceed are position favor the defendants’ —we involve the spiracy charges would use allowing convinced that conspiracy cooperation on the offenses would the defendants’ own proceed and, result, charges grams. clarity distribution of over 500 At lack of as would ambiguity argument government represented be forced to construe the in the oral Franco-Lopez, only prosecute F.3d at the defendants defendants’ favor. that it would grams. conspiracy to distribute the limited fac- concession that plea agreements has continu- problem well that the de- tual basis in the 22. There is the not, however, responsive agreements only acknowledged ing to the force is fendants' may they not be importation grams methamphet- defendants' contention that of 100 agreements. hydrochloride, prosecuted at all under the while the indictment amine charges conspiracy agreements, part As of their them. cooper- promise substan- fulfill their agreed provide defendants defendants cooperation tial ate. Id. smuggling and drug of a investigation sum, reading provi- of relevant our laundering conspiracy operating money us to lead sions of they cooperate And the District of Guam. conspiracy prosecutions conclude offenses definition conspiracy did. The Paragraph forward. one does go cannot with other indi- a confederation involved go forward permit con- By providing information viduals. on the prosecutions involved in cerning the actions of others simply sentencing because nec- conspiracies, the same occur; rather, charges did not with a essarily provided circumstance, not the specifies one but liability roadmap to their own on those one, precluding prosecu- additional which, under offenses—crimes Paragraph pros- two bars additional tion. plea agreement, did terms of ecutions once the defendants’ expect prosecuted. to be With Accordingly, the blan- is fulfilled. promise *14 having coopera- this defendants’ tendered paragraph command in two remains ket tion, govern- not the permit the law does not enforceable even the indictment is deal, as the defen- renege ment to on its pursuant paragraph dismissed one.23 that “paid dants have a coin the[United Transfiguración that the and Dao Given Brown, 337 F.3d cannot refund.” States] bargain by of both fulfilled their end at 1161. government, with the cooperating a When confronted with situation prosecuted cannot be “for other non- this, pursuing is as where govern- violent offenses now known to the of tantamount to a a course action is result, prosecution ment.” As a breach, entitled to one the defendants are conspiracy charges cannot continue. two rescis- available remedies —either effectuating promise As a means of agreement specific perform- of the sion conspiracy prosecutions could not pause long need not in con- ance. Id. We forward, go the district court concluded however, question, sideration of this against the indictment that dismissal of
tossing the defendants’ proper Dao Transfiguración was inequitable to an result. aside would lead remedy. Although dismissal was only given up The defendants have not it is evident specified prejudice,” as “with silent, they al- to remain have contemplating court was a the district ready bargaining chip. tendered their best merits, “precludes dismissal on the which court cannot to undo the This fashion relief trial on a reindictment of the same current state of affairs. As the Cejas, F.2d charge.” United States request parties ment’s that we return the (9th Cir.1987). Cejas, we held quo impossible, to the status is ante that a district court’s decision to dismiss only permissible remedy specif- is to order grounds that agreements— an indictment on the performance plea ic of the is, government’s promise of the not to contained therein were barred “principal cooperation,” entirely superfluous. would be 23. The dissent contends that agreement contemplated object” agreements another benefit of the was to obtain crim- The Dissenting op. government in addition to the convic- inal convictions. at 1237. If true, however, two, cooperation investigation and paragraph pro- that were tions: in the viding prosecution co-conspirators. non-prosecution return for ... of the "in goal-post on the and the jeopardy was dismissal loses once double merits, again. was therefore and reindictment Id. We view the district court’s
precluded. cooperation The Court asserts that the to dismiss the decision potatoes clause1 is the “meat and of the Dao, premised plea agreement,” supra at and holds prosecution on those conclusion cooperated, that once the defendant has by the terms of their charges were barred punishment aspect agreement sufficiently plea agreements, as similar My study can go board. Cejas
the dismissal to be considered agreement leads me to believe that its merits, thereby preclud- on the object dismissal principal was to obtain a conviction ing prosecution.24 further participation drug ring, in a and the extinguish defendant’s did
IV. government’s right keep trying for a agreements Transfigu- insulate conviction and sentence. Dao from ración and This case is about the obli- charges contained the indictment. gation pleaded dismiss the counts not bargain struck bars the obligation para- to. That forth in set for the con- prosecution of the defendants one, graph agrees plead in which Dao in- spiracy offenses. The district court’s importation methamphetamine. terpretation was The second sentence of the con- and, therefore, correct its decision dis- I, tains the to dismiss Counts against Transfigura- miss the indictment VI, indictment “upon and VIII sen- Dao, thereby precluding prosecu- ción and added). tencing.” (emphasis *15 This lan- therein, the contained was tion on guage obtaining shows that a conviction not an abuse discretion. punishment government’s pri- is the mary object agreeing in the dismiss AFFIRMED. government’s obligation
other counts. The GIBSON, Judge, dissenting: Circuit ripen until the defen- to dismiss does punishment. dant is meted out her Since Barron, In States v. 172 F.3d case, happen will in this the that never (9th Cir.1999) (en banc), this Court government obliged is not to dismiss. government the the terms of a held However, important this the Court reads plea-bargain provide that failed to language agreement, stating out of the pleaded event that the conduct to would only to “upon sentencing” refers the legal. govern- later turn out to be sentencing, supra at 1233. “timetable” of its lesson and drafted a ment learned negates A “never” specifies timetable event, in an agreement providing that such promise itself. government prosecute could the defen- remaining Transfigu- dant counts. contains the co- paragraph on The second agree- agreement, agrees Dao an in which Dao signed operation ración and on ment, drug in today cooperate investigation has moved the but Court Cir.2005) (per cu- of the district 425 F.3d 24. Even if the dismissal orders unclear as to the riam). court could be considered possibility future indictment, charges contained in I, too, agreement, will discuss Dao’s power appellate would exercise our as an identical material re- since the two are in "clarify the to reflect that it court to dismissal spects. Brown, prejudice.” is with United States v. Thus, the dismissed.” against which were to be testify proceedings ring and to return, “other” distinguishes between In the United co-conspirators. her (“other” cooperation being language the same to make her crimes agrees two), court sentenc- the indicted to the district before paragraph known used quid pro quo agreed shows ing. This counts which integrally is connected cooperation clause upon sentencing. paragraph one to dismiss object agreement— principal of the to the Moreover, further re- paragraph nine punishment of Dao. cooperation agree- futes the idea that the However, today reads the sec- the Court so that re- ment stands alone cooperation agreement as part ond of the the rest of regard Dao without leases from the rest able to stand alone somehow nine states agreement. Paragraph part of the agreement. this engages if Dao criminal conduct cooperation paragraph, entry but after the any prosecute Dao for serves the lose all the sentencing, before she will crime of which “she does not non-violent agreement (presumably benefit of the States, any or for fully advise the United including para- the benefits conferred but it regard,” omissions material two) coopera- graph notwithstanding her prosecute defendant in agrees also “not to intended to Cooperation tion. was not or the Mar- the District of Guam Northern objectives in trump other non-violent of- iana Islands for other agreement. entering to the fenses now known Finally, importantly, gov- most to federal authorities.” which she reveals protect tried to itself the event ernment today reads the words “other The Court that it failed to obtain a conviction pertaining offenses” as non-violent count, happened pleaded which is what has conduct, already-indicted puts which those provides: “If de- Paragraph here. eleven words at war with one. Such rejected, with- fendant’s reading cooperat- would mean that Dao drawn, vacated, time, or reversed ed, prosecute could not will be free to United States plead- her for the conduct indicted but not charges of which it then defendant for all to, whether the regardless ed *16 knowledge, has have ment obtained a conviction and sentence automatically will rein- been dismissed pleaded count to. A importation today stated. ...” The Court holds reading coopera- far of the more sensible vacated, rejected not guilty plea was clause is that “other non-violent of- tion the dismissal of the but what else was fenses” refers to conduct “other” than that plead- count to which Dao had indictment, to indicted rather than ed? already specifically conduct has been in paragraph
dealt with one. validity By focusing continuing on the plea agreement, the Court avoids reading This is confirmed elsewhere plea itself has recognizing that been nine, agreement. Barron, rejected. The Court relies agreement consequences discusses the case, say repu- that Dao has not habeas of several kinds of mis- Dao commits one Supra at plea agreement. diated her standing “in steps. says It addition to point. not the Barron did 1230. That is pled has guilty of the matters which she attack on engaging hold that a collateral agreement, shall pursuant [Dao] plea to a pursuant a conviction obtained fully subject prosecu- to criminal also be crimes, repudiation to a agreement other and for the counts did not amount tion for which meant that Dao and on the plea agreement, of the counts not agreement was still enforceable. plea pleaded to. proferentem Contra does not here, holding That is irrelevant since the mean, simply “The I loses.” trying plea to enforce government is therefore respectfully must dissent. plea agree- agreement this case.2 says that the deal to dis-
ment before us is off if the remaining plea,
miss counts rejected or vacated. plea agreement,
Here, correctly court refused the district plea,
to convict on the so the was plea rejected plea
either or vacated. The
agreement such a situation and anticipated parties agreed happened, ENTERPRISES, that if it Dao PARK UNIVERSITY prosecuted remaining INC.,
could be Plaintiff-Appellee, counts. The Court stretches Barron further AMERICAN CASUALTY COMPANY go, contending than will that Barron READING, PA, OF Defendant- holds that the was not set aside Appellant. when the conviction was vacated re sponse petition. to Barron’s habeas Both No. 04-3197. Barron and States v. Sandoval- (9th Cir.1997), Appeals, United States Court of Lopez, F.3d 797 consid petition ered whether defendant’s habeas Tenth Circuit.
to vacate a conviction breached a March agreement, not whether vacatur of the rejec conviction amounted vacatur or guilty plea.3
tion of the Neither Barron Sandovalr-Lopez
nor reached the latter
question because give
those cases did
remedy rejection in the event of vacatur or Barron, or conviction. See 1161; Sandoval-Lopez,
F.3d at F.3d at
802. The this case does. plain language plea agree- permits
ment *17 1158). government’s attempt para- making point 2. The to enforce F.3d at Barron was is, course, graph nine of the an that all the counts of conviction based on argument alternative in case the simply guilty plea need not be vacated be- agreement, lost its bid to rescind the which I cause one of the counts of conviction has to agree it must. pleaded to be set aside. Barron had three counts, habeas, one of which was set aside on opinion Language in the Court's seems disposition want to disturb the but he did not say though is "in force” even would of the other two counts because he rejected district court has it was taken out of longer have received a sentence the second guilty plea “[T]he context from Barron: Here, count time around. even criminal acts can remain force rejected. conviction was No imposed upon sentence an innocent act is set Barron, Supra (quoting "in aside." at 1233 was left force.”