United States v. Cheung ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 95-5977
SUI PING CHEUNG; CHING CHAN
CHEUNG,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CR-95-245-PJM)
Argued: April 5, 1996
Decided: May 28, 1996
Before MURNAGHAN and LUTTIG, Circuit Judges, and
MICHAEL, Senior United States District Judge for the Western
District of Virginia, sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Gerard Patrick Martin, MARTIN, JUNGHANS, SNY-
DER & BERNSTEIN, P.A., Baltimore, Maryland, for Appellants.
Brent Jefferson Gurney, Assistant United States Attorney, Greenbelt,
Maryland, for Appellee. ON BRIEF: Paul M. Junghans, William S.
Heyman, MARTIN, JUNGHANS, SNYDER & BERNSTEIN, P.A.,
Baltimore, Maryland, for Appellant Sui Pin Cheung; Fred R. Joseph,
JOSEPH, GREENWALD & LAAKE, Greenbelt, Maryland, for
Appellant Ching Chan Cheung. Lynne A. Battaglia, United States
Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellants challenge the district court's denial of their motion to
dismiss the conspiracy and currency structuring counts of the indict-
ment against them as contrary to the Double Jeopardy Clause because
the same offenses had already served as the basis of a civil forfeiture
settlement. We agree with the district court that appellants essentially
waived any Double Jeopardy claim through the express terms of their
prior settlement agreement, and therefore affirm the judgment of the
district court without reaching the merits of the Double Jeopardy
claim.
I.
Appellants, Sui Ping Cheung and Ching Chan Cheung, own several
restaurants and other small businesses in Maryland and the District of
Columbia. After Mrs. Cheung was observed by a special IRS agent
on a number of occasions depositing $9,000 cash in various branches
of the banks at which the Cheungs maintained accounts, allegedly
structured to avoid currency reporting requirements, law enforcement
officials seized the accounts and other cash in the Cheungs' posses-
sion and initiated civil forfeiture proceedings. The Cheungs and the
government ultimately entered into a settlement agreement, whereby
some of the Cheungs' cash was returned, but whereby the Cheungs
disavowed any claim to nearly $65,000, which was forfeited to the
government. The agreement also included the following clause:
2
The parties agree that neither party will attempt to use this
agreement and/or the fact of settlement in any future civil or
criminal proceedings.
J.A. at 65.
Subsequently, the government obtained a three-count criminal
indictment charging the Cheungs with conspiracy to defraud by struc-
turing, structuring in excess of $6 million, and criminal forfeiture.
Because of the criminal forfeiture count, the government also filed an
ex parte motion, which the district court granted, for an order restrain-
ing all of the Cheungs' assets, including the cash that had previously
been returned to the Cheungs pursuant to the civil forfeiture settle-
ment. The Cheungs moved to dismiss the conspiracy and structuring
counts on Double Jeopardy grounds. The government then obtained
a superseding six-count indictment: conspiracy to defraud the United
States (by structuring), 18 U.S.C. § 371; causing a bank to fail to file
Currency Transaction Reports, 31 U.S.C. §§ 5313, 5322, &
5324(a)(1); and four counts of filing false tax returns. The first two
counts were based on the same allegedly structured transactions at
issue in the civil forfeiture proceedings, and the Cheungs renewed
their Double Jeopardy motion as to those counts. The district court
denied the Double Jeopardy motion, holding that the Cheungs had
waived any such claim by virtue of the settlement agreement.
II.
Settlement agreements, like plea agreements, are ordinarily gov-
erned by general contract principles. See, e.g., Byrum v. Bear Invest-
ment Co., 936 F.2d 173, 175 (4th Cir. 1991); cf. United States v.
Burns, 990 F.2d 1426, 1433 (4th Cir.), cert . denied, 508 U.S. 967(1993); United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).
By the plain language of the agreement between the Cheungs and the
government, "neither party" could "use th[e] agreement and/or the
fact of settlement in any future civil or criminal proceedings." J.A. at
65. The Cheungs' use of the agreement to establish prior jeopardy is
therefore foreclosed, and their Double Jeopardy claim necessarily
fails.
The Cheungs' several arguments to avoid the clear import of the
agreement's language are altogether unavailing. First, the Cheungs
3
assert that the language was intended only to mean that neither party
could use the agreement as evidence in future proceedings either of
an admission of structuring or as a denial of structuring. The plain
language of the agreement contains no such limitation, however, and
as we held in Burns, if an agreement "``is unambiguous as a matter of
law, and there is no suggestion of government overreaching of any
kind, the agreement should be interpreted and enforced accordingly.'"
Burns, 990 F.2d at 1433 (quoting Harvey, 791 F.2d at 300); see also
United States v. United Medical and Surgical Supply Corp., 989 F.2d
1390, 1400-01 (4th Cir. 1993).
Second, the Cheungs claim that they did not "use" the settlement
agreement, but only the order implementing the settlement agreement,
in their assertion of Double Jeopardy. This is a semantic distinction
bordering on the frivolous, especially given that the agreement by its
express terms bars use both of "the agreement" and of "the fact of set-
tlement."
Third, the Cheungs argue that a waiver is only valid if it expressly
refers to the Double Jeopardy Clause. The cases from the Second and
Tenth Circuits on which they rely, however, involved settlement pro-
visions materially different from the provision at issue here. In United
States v. Morgan, 51 F.3d 1105, 1109 (2d Cir.), cert. denied, 116 S.
Ct. 171 (1995), the settlement contained the following stipulation:
This STIPULATION and CONSENT, the ORDER, and
RESPONDENT'S compliance with the ORDER, do not
compromise, settle, dismiss, resolve, or in any way affect:
...
b. any civil or criminal claims, actions, or charges against
or liability of RESPONDENT or any other individual or
entity asserted by any governmental entity other than the
OTS. [Office of Thrift Supervision].
Similarly, the settlement at issue in United States v. Hudson, 14 F.3d
536, 538-39 (10th Cir. 1994), provided:
4
[N]othing herein constitutes, nor shall Respondent contend
that it constitutes, a waiver of any right, power, or authority
of any other representatives of the United States, or agencies
thereof, to bring other actions deemed appropriate.
In contrast, the provision at issue in the instant case is the only one
of the three that bars the use of the settlement agreement by either
party in any future proceeding. The Second Circuit's statement in
Morgan that a valid waiver must contain an explicit renunciation "of
a double jeopardy defense against future criminal proceedings," 51
F.3d at 1110, dictum in any event, is contrary to Ricketts v. Adamson,
483 U.S. 1, 9 (1987), in which the Supreme Court held that a Double
Jeopardy claim had been waived by a plea agreement that did not
mention the Double Jeopardy Clause.
Finally, the Cheungs argue that, even if there was a waiver, the set-
tlement agreement is null and void because the government materially
breached it by obtaining an indictment seeking criminal forfeiture of
the very same assets that had been returned to the Cheungs pursuant
to the civil forfeiture settlement agreement, and when it sought, and
obtained, a restraining order on those assets.
The superseding indictment does not, of course, retain the criminal
forfeiture count, but there is nothing in the settlement agreement that
even arguably would prohibit the government from bringing such a
charge. Indeed, future criminal proceedings were expressly contem-
plated by the settlement agreement. The government did not, there-
fore, breach the civil forfeiture settlement agreement by initiating a
separate criminal prosecution, even one that included a criminal for-
feiture count.
The judgment of the district court is affirmed.
AFFIRMED
5