UNITED STATES of America, Plaintiff-Appellee, v. Thomas Lee MYERS, Defendant-Appellant.
No. 94-30102
United States Court of Appeals, Ninth Circuit
Decided Aug. 2, 1994.
28 F.3d 111
Submitted July 14, 1994 *.
Evidence has been introduced in this case on the subject of Occupational Safety and Health Administration (OSHA) standards, Environmental Protection Agency (EPA) standards, and National Institute of Safety and Health (NIOSH) standards, for the limited purpose of suggesting noise level guidelines. These standards are binding on certain industries in the United States. In those industries as to which the standards are binding, a violation of the stan- dards, standing alone, constitutes negligence as a matter of law. These standards are not binding on defendant Burlington Northern in this lawsuit. The issue of negligence in this case must be determined by you based upon all the evidence submitted to you, and by applying the law as I have instructed you.
We hold this instruction was proper and the district court did not err in admitting the OSHA noise-level regulation into evidence.
II
Burlington Northern next challenges the district court‘s ruling limiting cross-examination.
On direct examination, one of Robertson‘s former coworkers testified that he was exposed to loud noise during his employment with Burlington Northern and was never provided with ear protection. Robertson‘s counsel brought out the fact that the coworker had asserted a hearing loss claim against Burlington Northern. The claim had been settled and a release had been signed.
The district court limited cross-examination to the paragraph of the release that stated Burlington Northern had not admitted liability in settling the claim. Burlington Northern argues the district court abused its discretion by prohibiting it from establishing on cross-examination that the coworker had accepted $17,000 in settlement of his hearing loss claim. We reject this argument.
Burlington Northern was permitted to introduce other evidence of the coworker‘s bias by establishing that he resented some of the people at the railroad. Knowledge of the amount of the coworker‘s settlement would not have assisted the jury in evaluating his credibility, bias, or motivation. See Lewy v. Southern Pac. Transportation Co., 799 F.2d 1281, 1298 (9th Cir.1986) (“as long as a jury is provided ‘sufficient information [overall] to appraise the bias and motives of [a] witness,’ we have generally not found the trial court to have abused its discretion.“) (citing United States v. Ray, 731 F.2d 1361, 1364-65 (9th Cir.1984); United States v. Jackson, 756 F.2d 703, 707 (9th Cir.1985); Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir.1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978)). Moreover, telling the jury the coworker had accepted $17,000 to settle his claim would have injected into the case nondispositive collateral issues pertaining to the relative degrees of negligence and contributory negligence in the two cases, as well as the relative severity of Robertson‘s hearing loss compared to that of his coworker.
III
We reject Robertson‘s request for an award of attorney fees and double costs under
AFFIRMED.
* The panel unanimously found this case suitable for decision without oral argument.
Stephen R. Sady, Chief Deputy Fed. Public Defender, Portland, OR, for defendant-appellant.
Before: TANG, FERGUSON, and WIGGINS, Circuit Judges.
PER CURIAM:
On February 1, 1994, pursuant to a plea agreement, Thomas Lee Myers pleaded guilty to a single count of mail theft in violation of
The presentence report noted that the guideline range was between six and twelve months. The report also noted that the “government will recommend a sentence at the low end of the applicable guideline range.”
At the sentencing, the district court judge asked the prosecutor if she had any comments. She replied: “No, your honor. I would just direct the court‘s attention to paragraph eight of the presentence report that sets out the facts. This wasn‘t just simply a matter of driving the mail truck away, but he did injure two security guards when they were wrestling with him to restrain [him].” Myers was sentenced to twelve months. After the judge imposed the sentence, the defense counsel objected to the government‘s failure to recommend a sentence at the low end of the range. The following exchange then took place.
The Court: I did understand that the government was recommending the low end. Is that correct, Miss Dealy-Browning?
Ms. Dealy-Browning: That‘s correct. And I assumed that the court had read the PSR and the plea letter, and that‘s why I—
The Court: I did, and I assumed that. I do not believe, as I‘ve indicated, that the—that the penalty should be less in light of the serious past problems, and I cannot
This exchange took place after sentencing and the horse was out of the barn. Myers now appeals his sentence arguing that the government breached the plea agreement by not recommending a sentence at the low end of the guideline range. In fact, instead of recommending a light sentence, the government exercised its right of allocution by seeking a more severe sentence.
This court reviews de novo whether the government violated the terms of a plea agreement. United States v. Fisch, 863 F.2d 690 (9th Cir.1988). We reverse and remand for resentencing.
“Plea agreements are contractual in nature and are measured by contract law standards. In construing an agreement, the court must determine what the defendant reasonably understood to be the terms of the agreement when he pleaded guilty.” United States v. De La Fuente, 8 F.3d 1333, 1337 (9th Cir.1993) (quotations and footnotes omitted). The government must be held to “the literal terms of the agreement.” United States v. Escamilla, 975 F.2d 568, 571 (9th Cir.1992) (internal citations omitted). The bargain that the defendant agreed to was not a promise by the government to recommend, but the actual fact of recommendation.
Despite the terms of the plea agreement, the government made no recommendation to the court concerning Myers’ sentence. It was insufficient that the court, by reading the presentence report and the plea agreement, was aware that the government had agreed to recommend a sentence at the low end of the guideline range. The harmless error rule does not apply to the law of contractual plea agreements. The government agreed to make a recommendation at the low end of the range and was required to fulfill its part of the contract. It could have easily complied with the plea agreement and gives no reason why it failed to do so. This failure violated the terms of the plea agreement.
The public also has a right to know the concessions that the government is making in its plea agreements. “Airing plea agreements in open court enhances public confidence in the administration of justice.” Jones v. United States, 423 F.2d 252, 255 (9th Cir.), cert. denied, 400 U.S. 839, 91 S.Ct. 79, 27 L.Ed.2d 73 (1970). Myers’ sentence is reversed and the case remanded for resentencing.
TANG, Senior Circuit Judge, dissenting:
I respectfully dissent. I do not dissent from the proposition that plea agreements are contractual in nature and subject to strict enforcement. In this case, however, the government in fact recommended the low end of the guideline range by explicitly confirming the court‘s understanding that this was indeed the government‘s recommendation as stated in the presentence report and the defendant‘s sentencing memorandum. In Myers’ request for reconsideration of the sentence, he stated that both the prosecution and defense joined in this recommendation.
The defendant‘s real objection is that the government‘s recommendation was not made with “at least some minimal advocacy.” The plea agreement did not require “minimal advocacy” in the government‘s recommendation. In United States v. Benchimol, 471 U.S. 453, 455, 105 S.Ct. 2103, 2104-05, 85 L.Ed.2d 462 (1985), the Supreme Court rejected a similar attempt to imply a requirement that a prosecutor “enthusiastically” recommend a certain sentence, when the plea agreement simply required a recommendation.
I would affirm the sentence.