Thursday, November 24, 2016

Plea Agreements Are Contracts That Set the Scope of the Bargain (11/24/16)

In United States v. Penn, 2016 U.S. Dist. LEXIS 160146 (SD AL 2016), here, the defendant had entered a plea agreement to two counts of aggravated identity theft related to tax fraud.  (Alabama appears to be a hotbed for this type of identity theft fraud.)  The plea agreement stated that the Government would "not bring any additional charges against the defendant related to the facts underlying the Indictment" which was the basis for the plea agreement.
Just days before Defendant entered his guilty plea, the government learned that Defendant allegedly tampered with a material witness in the tax fraud case. (Doc. 29, p. 4). On August 25, 2016, Defendant was indicted for witness tampering pursuant to 18 U.S.C. § 1512(c)(2) and 2. (Doc. 1). 
The issue presented was whether the plea agreement foreclosed the prosecution for witness tampering.  The Court held that the witness tampering charge was not within the scope of the bargain the defendant obtained in the plea agreement.

The key reasoning is:
The issue of whether the government breached the plea agreement turns on the scope of the "Additional Charges" provision contained within paragraph 21 of the agreement. (Doc. 25, p. 3). Specifically, what is meant by additional charges against Defendant related to the facts underlying the Indictment? Defendant concedes this phrase is unambiguous. (Doc. 25, p. 4). If so, this would mean that the unambiguous meaning of the "related to" language within the plea agreement decides this matter. 
In an unpublished opinion, the Eleventh Circuit found a materially similar phrase, "related to the conduct giving rise to this plea agreement," to be unambiguous. United States v. Beeks, 167 F. App'x 777, 779 (11th Cir. 2006). In this context, "[t]he term 'related to' is used in its ordinary sense to mean connected to or associated with." Id. The Court finds this conclusion controlling. Therefore, "the plain meaning of the ['Additional Charges'] provision is that the government agrees not to bring any other charges in connection with [Defendant's] participation in the [tax] fraud scheme." Id. The government's position is that tax fraud is not "connected to or associated with" witness tampering. (Doc. 29, p. 2). In support, the government relies on United States v. Grap, 368 F.3d 824 (8th Cir. 2004). The Court finds the government's position persuasive. 
A subsequent offense does not "relate to" the offense contained within an indictment when (1) there is a temporal distinction between the two offenses and (2) the two offenses constitute qualitatively distinct misconduct. Grap, 368 F.3d at 829-30; see also Beeks, 167 F. App'x at 780 (finding a subsequent offense of identify theft did not relate to an offense of bank fraud contained within a plea agreement when (1) the two offenses were temporally distinct, (2) the two offenses constituted "qualitatively distinct misconduct," and (3) the two offenses involved different individuals). In the particularly analogous case of Grap, the Eighth Circuit held that a subsequent indictment for tampering with a witness in a sexual abuse case fell outside the purview of a plea agreement which prohibited further prosecution based on the information and evidence then available to the government concerning the defendant's involvement with regard to the facts underlying the two counts to which he plead guilty. 368 F.3d at 828-29. The court reasoned that the witness tampering offense was "a third 'factual scenario' occurring several months after the second incident of sexual abuse" that was "temporally distinct from the abuse itself." Id. Therefore, the government did not breach the plea agreement. Id. 
Here, Defendant's conduct relating to the tax fraud offenses occurred between January 20, 2012 and April 15, 2015. Crim. No. 16-00020, Doc. 164, pp. 12-13. Defendant's conduct relating to the witness tampering offense occurred in August 2016, which is temporally distinct from the tax fraud offenses. Also, Defendant's conduct relating to the tax fraud offenses dealt with the unlawful use of another's social security number to transmit fraudulent tax returns to the Internal Revenue Service. Id. Defendant's conduct relating to the instant indictment concerns obstruction of justice through witness tampering, which is qualitatively distinct from tax fraud. The fact that the government knew of and began investigating Defendant's witness tampering before entry of the plea agreement has no bearing on this determination. See Grap, 368 F.3d at 829-30. Indeed, "to be barred by the plea agreement, the charges must relate to [Defendant]'s conduct in the [tax] fraud scheme, not just to [Defendant] himself." Beeks, 167 F. App'x at 780.

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