United States v. Payan ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-41372
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDUARDO PAYAN,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-97-CR-221-S1
- - - - - - - - - -
May 28, 1999
Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Eduardo Payan appeals his convictions of seven counts of
theft by a government employee of property in the care and
custody of the United States. Payan contends that the instant
prosecution is precluded by the terms of a plea agreement he
entered in 1994. This prior agreement, he contends, could
reasonably be understood as proscribing his prosecution for all
acts of embezzlement occurring between September 1992 and July
1993.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 97-41372
-2-
“‘Plea bargain agreements are contractual in nature, and are
to be construed accordingly.’" Hentz v. Hargett, 71 F.3d 1169,
1173 (5th Cir. 1996) (citation omitted). Whether the
Government’s actions have breached the terms of a plea agreement
is a question of law that is reviewed de novo. See United States
v. Wittie, 25 F.3d 250, 262 (5th Cir. 1994), aff’d, 515 U.S. 389
(1995). In making this determination, the court considers
“‘whether the government’s conduct is consistent with the
defendant’s reasonable understanding of the agreement.’" United
States v. Moulder, 141 F.3d 568, 571 (5th Cir. 1998) (citation
omitted).
Payan’s understanding of the 1994 plea agreement finds no
purchase in the agreement’s unambiguous terms. The Government’s
promise not to prosecute him for other offenses arising from the
conduct charged in the 1994 indictment was merely an assurance
that the Government would not reindict him for the three counts
of the 1994 indictment that were dismissed pursuant to the plea
agreement. Because jeopardy never attached with respect to these
charges, such an assurance was appropriate. See United States v.
Mann, 61 F.3d 326, 330 (5th Cir. 1995).
This conclusion is not undermined by the stipulations
contained in the plea agreement that the Government had no
evidence linking Payan to other monies which may have been stolen
from the detention center where he was a supervisor. These
stipulations addressed the possibility that the district court
might rely on the dismissed charges in calculating Payan’s
sentence. See United States v. Levario-Quiroz, 161 F.3d 903, 906
No. 97-41372
-3-
(5th Cir. 1998); U.S.S.G. § 1B1.3. Moreover, the Government’s
stipulations concerning the lack of evidence did not preclude it
from further investigation, which could reveal provable criminal
conduct.
Equally unavailing is Payan’s argument that to read the
plea agreement as permitting the instant prosecution would be to
frustrate the very purpose of that agreement. A broad grant of
immunity for all of Payan’s acts of embezzlement was not a
principal purpose of the plea agreement the absence of which
would render the agreement meaningless. See Moulder, 141 F.3d at
571. Accordingly, Payan’s convictions are
AFFIRMED.