United States v. Heiden

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-10417
No. 97-10436
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LONNIE RAY MOULDER; WALTER STEVEN HEIDEN,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Texas
May 18, 1998
Before KING, BARKSDALE, and PARKER, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Primarily at issue is whether, after a defendant’s plea-
agreement-based-conviction is vacated on the basis that the conduct
supporting the plea is no longer considered criminal, the
Government may reinstate charges dismissed previously, pursuant to
that plea agreement, when those putative charges pertain to
criminal conduct linked with that which supported the agreement.
In holding that the Government may do so, we AFFIRM.
I.
Lonnie Ray Moulder and Walter Stephen Heiden were arrested in
1994 when methamphetamine was found in their vehicle. A suitcase
in the trunk contained a loaded pistol. Each was charged with
possession with intent to distribute 100 grams or more of
methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and using
and carrying a firearm in connection with a drug offense, in
violation of 18 U.S.C. § 924(c).
Later in 1994, both men signed identical plea agreements:
each pleaded guilty to the § 924(c) firearm offense; the Government
agreed “not [to] pursue any other charges ... arising directly out
of the facts and circumstances surrounding this offense or any
other offense of which the United States is currently aware”; and
neither defendant waived the right to appeal, or to collaterally
challenge, his conviction. Each was sentenced in January 1995 to,
inter alia, five years in prison.
In March 1996, Moulder and Heiden claimed in 28 U.S.C. § 2255
motions that their convictions were invalid because their conduct
did not violate § 924(c)(1), pursuant to Bailey v. United States,
___ U.S. ___, 116 S. Ct. 501 (1995) (to support conviction under
“use” prong of § 924(c), Government must show defendant actively
employed a gun during predicate drug offense). The magistrate
judge determined that neither defendant had “used” a firearm within
the meaning of § 924(c); and that, in addition, their conduct
probably did not violate the § 924(c) “carry” prong. Accordingly,
he recommended that the convictions be vacated, but concluded that
this would not bar prosecution on other charges arising out of the
bases for the arrests in 1994.
Agreeing with the recommendation, the district court on 16
October 1996 vacated the § 924(c) convictions. But, that same day,
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Moulder and Heiden were indicted on the drug charges that, under
the plea agreement, had not been pursued earlier.
In January 1997, the district court denied motions by Moulder
and Heiden to dismiss the reinstated charges. It ruled that the
Government had not breached the plea agreements; that Moulder and
Heiden had “in effect repudiated” those agreements; and that no
prosecutorial vindictiveness or double jeopardy violation had been
shown.
Moulder and Heiden conditionally pleaded guilty to the drug
charges, reserving the right to appeal the denial of their motions
to dismiss. The district court sentenced Moulder to 135 months
imprisonment; Heiden, to 121 months.
II.
In short, the new sentences greatly exceeded the vacated 60-
month sentences. The principal issue is whether the drug charge
reinstatement violates the plea agreements, by which the Government
agreed not to pursue additional charges in return for the § 924(c)
plea/convictions. In addition, Heiden claims that the
reinstatement constituted prosecutorial vindictiveness.
A.
“Plea bargain agreements are contractual in nature, and are to
be construed accordingly.” Hentz v. Hargett, 71 F.3d 1169, 1173
(5th Cir.), cert. denied, 517 U.S. 1225 (1996); United States v.
Ballis, 28 F.3d 1399, 1409 (5th Cir. 1994). We review de novo a
breach-of-plea-agreement-claim. See United States v. Wittie, 25
F.3d 250, 262 (5th Cir. 1994), aff’d, 515 U.S. 389 (1995). In so
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doing, we “determine whether the government’s conduct is consistent
with the defendant’s reasonable understanding of the agreement”.
United States v. Valencia, 985 F.2d 758, 761 (5th Cir. 1993).
“[W]hen [a] defendant repudiates the plea bargain, either by
withdrawing the plea or by successfully challenging his conviction
on appeal, there is no double jeopardy (or other) obstacle to
restoring the relationship between defendant and state as it
existed prior to the defunct bargain.” Fransaw v. Lynaugh, 810
F.2d 518, 524-25 (5th Cir.), cert. denied, 483 U.S. 1008 (1987);
see also Hardwick v. Doolittle, 558 F.2d 292, 301 (5th Cir. 1977),
cert. denied, 434 U.S. 1049 (1978); Harrington v. United States,
444 F.2d 1190, 1194 (5th Cir. 1971). Accordingly, Moulder and
Heiden assert that they did not “repudiate” their plea agreements
by their successful § 2255 motions.
For starters, it is well to remember that, in their plea
agreements, Moulder and Heiden did not waive their right to appeal,
or collaterally attack, their convictions. Nor did they repudiate
any express terms of the agreement.
In United States v. Sandoval-Lopez, 122 F.3d 797 (9th Cir.
1997), as in this case, the defendants were charged with both drug
trafficking and violating § 924(c)(1); they pleaded guilty to the
latter, with the Government dropping the drug charges. Post-
Bailey, the defendants’ § 2255 motions contended that the conduct
supporting their convictions no longer constituted a crime.
Although the district court vacated their convictions, it held that
the defendants, by successfully challenging them, had breached
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their plea agreements; and that the Government was no longer bound
by them. Therefore, it reinstated the earlier-dismissed drug
charges. Id. at 799. But, the Ninth Circuit reversed, holding
that the defendants did not breach their agreements, because they
were not prohibited from collaterally attacking their sentences;
and that, therefore, the Government could not reinstate the drug
charges. Id. at 802.
Needless to say, Moulder and Heiden contend that the same
analysis applies here. Instead, we agree with the more recent
holding in United States v. Bunner, 134 F.3d 1000 (10th Cir. 1998),
petition for cert. filed, ___ U.S.L.W. ___ (U.S. Apr. 24, 1998)
(No. 97-8828). Bunner, which involved facts similar to those in
the instant case and in Sandoval-Lopez, held that, when a sentence
is vacated under § 2255 in the light of Bailey, the Government may
then reinstate charges it dismissed pursuant to a plea agreement.
The ratio decidendi was that the Government’s contractual
obligations under the agreement were discharged under the
frustration of purpose doctrine. Bunner, 134 F.3d at 1004. That
doctrine provides:
Where, after a contract is made, a party’s
principal purpose is substantially frustrated
without his fault by the occurrence of an
event the non-occurrence of which was a basic
assumption on which the contract was made, his
remaining duties to render performance are
discharged, unless the language of the
circumstances indicate the contrary.
RESTATEMENT (SECOND) OF CONTRACTS § 265 (1981).
The comments to this section provide that “the purpose that is
frustrated must have been a principal purpose of that party in
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making the contract.... The object must be so completely the basis
of the contract that, as both parties understand, without it the
transaction would make little sense.” RESTATEMENT (SECOND) OF CONTRACTS
265 cmt. a (1981) (emphasis added).
“The application of contract law to plea agreements is
premised on ‘the notion that the negotiated guilty plea represents
a bargained-for quid pro quo.’” United States v. Asset, 990 F.2d
208, 215 (5th Cir. 1993) (quoting United States v. Escamilla, 975
F.2d 568, 570 (9th Cir. 1992)). In this regard, the underlying
purpose of the plea agreement in issue was to “avoid the
uncertainty of a jury verdict ... [and] to ensure that the
[defendants] served time for violating § 924(c)”. Bunner, 134 F.3d
at 1004-05. And, needless to say, “[a] basic assumption underlying
the parties’ purposes was their belief that the conduct ... pled
guilty to amounted to a violation of § 924(c)”. Id. at 1005.
But, the parties’ assumptions and obligations were altered by
Bailey and the subsequent successful § 2255 challenges. As a
result of those events “the underlying purpose of the [plea]
agreement [was] frustrated and the basis of the government’s
bargain [was] destroyed. Thus, under the frustration of purpose
doctrine, the government’s plea agreement obligations became
dischargeable”. Bunner, 134 F.3d at 1005. Accordingly, it was
free to reinstate the drug charges.
B.
“[A] prosecutor may, without explanation, refile charges
against a defendant whose bargained-for guilty plea to a lesser
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charge has been withdrawn or overturned on appeal, provided that an
increase in the charges is within the limits set by the original
indictment.” Hardwick, 558 F.2d at 301. Nevertheless, Heiden
maintains that reinstating the more serious drug charges
constituted prosecutorial vindictiveness, violative of due process.
1.
We review a district court’s factual findings concerning
prosecutorial vindictiveness for clear error and its legal
determinations de novo. See United States v. Johnson, 91 F.3d 695,
698 (5th Cir. 1996), cert. denied, 117 S. Ct. 752 (1997). In
reviewing a prosecutorial vindictiveness claim, “the court must
examine the prosecutor’s actions in the context of the entire
proceedings.” United States v. Krezdorn, 718 F.2d 1360, 1365 (5th
Cir. 1983) (en banc), cert. denied, 465 U.S. 1066 (1984). The
defendant must prove the claim by a preponderance of the evidence;
and, “[i]f any objective event or combination of events ... should
indicate to a reasonable minded defendant that the prosecutor’s
decision to increase the severity of charges was motivated by some
purpose other than a vindictive desire to deter or punish appeals,
no presumption of vindictiveness is created.” Id.
The district court held correctly that such vindictiveness was
not shown. As Krezdorn teaches, it should be clear to a reasonable
minded defendant that the dismissal of the § 924(c) conviction in
the light of Bailey was an event that would certainly motivate the
Government to reinstate the dismissed drug charge.
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2.
In claiming prosecutorial vindictiveness, Heiden also
maintains that, because he did not have counsel during his § 2255
challenge to his § 924(c) conviction, he was not aware of what the
consequences might be (reinstatement of the drug charge) should his
challenge be successful. He contends that, “had he been
represented by counsel, he would have been informed of the risk and
could have made an intelligent choice.”
Of course, Heiden was not entitled to counsel in his § 2255
matter. See, e.g., Pennsylvania v. Finley, 481 U.S. 551, 555
(1987). In any event, obviously, the fact that he proceeded pro se
in the § 2255 matter had no bearing on the Government’s subsequent
decision to reinstate the drug charge.
III.
For the foregoing reasons, the judgments are
AFFIRMED.
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