United States v. Ivory Crow , 651 F. App'x 686 ( 2016 )

FILED
NOT FOR PUBLICATION
JUN 09 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10505
Plaintiff - Appellee, D.C. No. 2:11-cr-00285-RJB-1
v.
MEMORANDUM*
IVORY CROW,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 15-10165
Plaintiff - Appellee, D.C. No. 2:11-cr-00285-RJB-1
v.
IVORY CROW,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Robert J. Bryan, Senior District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted May 5, 2016**
Pasadena, California
Before: BYBEE and N.R. SMITH, Circuit Judges and STEIN,*** District Judge.
Appellant Ivory Crow was sentenced after pleading guilty to multiple counts
of bank fraud and theft of government funds. On appeal, he raises two arguments:
(1) the government promised him transactional immunity for his crimes, and (2) he
is entitled to the return of money the government took from certain bank accounts.
We affirm.1
Crow’s counsel never raised the issue of transactional immunity below, so
we review that issue for plain error. Hemmings v. Tidyman's Inc., 285 F.3d 1174,
1193 (9th Cir. 2002). A denial of a motion to return property is reviewed de novo.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
1
The government filed a separate motion to dismiss the appeal in part,
arguing that Crow waived his right to appeal the transactional immunity issue by
unconditionally pleading guilty in the district court. We need not reach this issue
because, even assuming Crow did not waive his right to appeal this issue, there is
no merit to his argument. See United States v. Jacobo Castillo, 496 F.3d 947, 957
(9th Cir. 2007) (en banc) (holding that federal appellate courts maintain
jurisdiction even where a defendant unconditionally waives the right to appeal).
The government’s motion is denied as moot.
2
United States v. Harrell, 530 F.3d 1051, 1057 (9th Cir. 2008). The district court’s
related factual findings are reviewed for clear error. Id
1. Crow argues that, as part of a plea agreement in an unrelated case, he was
promised transactional immunity for the crimes he is charged with in this case.
Plea agreements are governed by everyday contract principles and given their
objective meaning: What would a reasonable defendant understand from the plea
agreement’s written terms and the surrounding circumstances? United States v. De
La Fuente, 8 F.3d 1333, 1337 (9th Cir.1993); see also United States v. Spear, 753
F.3d 964, 969 (9th Cir. 2014) (“[W]e look to ‘what the defendant reasonably
understood to be the terms of the agreement when he pleaded guilty.’”).
Crow has produced no evidence indicating he was promised transactional
immunity; indeed the evidence shows just the opposite. The plea agreement and
proffer agreement that Crow signed expressly state he was promised use immunity,
not transactional immunity. Crow could not reasonably believe he was being
promised blanket transactional immunity where he was expressly promised the
narrower use immunity. See United States v. Plummer, 941 F.2d 799, 803 (9th Cir.
1991) (holding that defendant was not promised transactional immunity where plea
agreement expressly promised only use immunity). Further, the plea agreement
dispelled any doubt that Crow was promised anything more because it stated that
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all of the government’s promises were contained in the written agreement. The
U.S. inspector who took Crow’s proffer specifically told him that he was not being
promised anything with respect to a possible future prosecution for his fraud
crimes. Nor does anything else in the record indicate Crow reasonably believed he
was promised transactional immunity.
Crow argues no reasonable defendant would have helped the government for
so little in return. But a defendant cannot challenge a plea agreement because in
retrospect he believes it was a bad deal. And in any event, the government gave
Crow much more than just use immunity: It also recommended a significant
downward sentencing departure in another case.
Crow provided no evidence showing that he was promised transactional
immunity, much less establishing the district court plainly erred in not raising the
issue on its own. We must therefore affirm the district court’s sentence.
2. Crow argues the government wrongfully took $70,000 from his bank
accounts and that he is entitled to have this money returned to him. To prevail on a
motion for return of property, Crow must demonstrate that (1) he is entitled to
lawful possession of the seized property; (2) the property is not contraband; and (3)
either the seizure was illegal or the government’s need for the property as evidence
4
has ended. United States v. Van Cauwenberghe, 827 F.2d 424, 433 (9th Cir.
1987).
Crow has not established he is entitled to possess the funds from these
accounts or that the funds are not contraband. Crow admits he deposited stolen
checks into these accounts, and there is no indication in the record that Crow
partitioned any lawful funds from the illicit funds. Moreover, these accounts are
not even owned by Crow, so he does not have any claim to them even if they did
contain untainted funds.
AFFIRMED.
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