In Re SEALED CASE

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 7, 2012 Decided July 3, 2012
No. 08-3027
IN RE: SEALED CASE
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Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00053-1)
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Before: GARLAND and GRIFFITH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Appellant pled guilty to RICO
conspiracy and was sentenced to a term of imprisonment. He
appeals, arguing that his conviction was obtained in violation
of Kastigar v. United States, 406 U.S. 441 (1972), that he
received ineffective assistance of counsel, and that the
government breached his plea agreement. For the reasons
below, we remand for the district court to consider certain of
his claims of ineffective assistance, but deny his appeal in all
other respects.
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I
In 2006, appellant was arrested and charged with two
felonies. During questioning, law enforcement officials
learned that appellant was a member of a gang. Thinking he
could help in their investigation of a rival gang, prosecutors
from the U.S. Attorney’s Office interviewed appellant as well.
The interview was conducted subject to the terms of a
debriefing agreement, signed by appellant, that provided, “No
statements made by [appellant] during the interview(s) will be
used against him in the government’s case-in-chief in any
criminal prosecution, other than a prosecution for perjury,
giving a false statement, or obstruction of justice.” The
agreement also provided, “The government may use against
[appellant] information directly or indirectly derived from
statements he makes or other information he provides during
the interview(s), and may pursue and use against him the
fruits of any investigative leads suggested by such statements
or other information.” The purpose of this provision was “to
eliminate the necessity for a Kastigar hearing, at which the
government would have to prove that the evidence it would
introduce at trial is not tainted by any statements or other
information given by [appellant].”
Following the interview, appellant continued to cooperate
in the investigation of the rival gang. He pled guilty to one
count of conspiracy to participate in a racketeer influenced
corrupt organization (RICO), which carries a Sentencing
Guidelines range of thirty years to life in prison. In support of
that plea, appellant admitted that he was a member of a gang
and that he conspired with other members of the gang to
traffic in narcotics and to commit acts of violence, including
attempted murder, to protect and enrich the gang. In return,
the government dropped the charges for which appellant had
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been arrested and agreed to release him pending sentencing so
that he could continue to help with the investigation from the
street.
The plea agreement allowed that the prosecution could
ask the court to revoke appellant’s release at any time and that
it would do so if he violated the conditions of his release,
engaged in misconduct, or failed to continue to cooperate.
The agreement also provided that the government would file a
motion for a downward departure from the Sentencing
Guidelines if appellant provided substantial assistance in the
investigation of the rival gang. The plea agreement also
included an integration clause prohibiting any modification
not made on the record in open court or in a writing signed by
all the parties.
After appellant was released, the police received
information that he had attempted to commit an assault. The
government deemed this a violation of the plea agreement and
asked the court to issue a warrant for his arrest. The court
issued the warrant, and the police arrested appellant. At the
bond hearing, appellant denied any wrongdoing. The district
court responded that the plea agreement allowed the
government to request an arrest warrant for any reason. At
subsequent hearings, appellant claimed that the government
had broken its promise to seek his release following his grand
jury testimony. The district court rejected the claim, relying
on the government’s argument that the prosecutor who had
made this promise lacked authority to do so.
Despite its troubles with appellant, as promised, the
prosecution filed a motion for a downward departure from the
Sentencing Guidelines. Appellant had given the government
substantial help, including grand jury testimony and
information about multiple homicides. The district court
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granted the government’s motion and sentenced appellant. He
now appeals, and we exercise jurisdiction under 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
II
Appellant first argues that the government obtained the
information underlying his RICO conviction in violation of
Kastigar v. United States, 406 U.S. 441 (1972), and that the
district court committed plain error in failing to hold a
Kastigar hearing before accepting his plea.
In Kastigar, the Supreme Court held that the Fifth
Amendment bars the compelled disclosure of self-
incriminating information unless the government first grants
the witness “[i]mmunity from the use of compelled testimony,
as well as evidence derived directly and indirectly therefrom.”
Id. at 453. Even with such immunity, in any later prosecution
of the witness, the government must prove at a so-called
Kastigar hearing that “all of the evidence it proposes to use
was derived from legitimate independent sources” and not
from the compelled disclosure. Id. at 461-62. There is nothing
in this recitation of fundamental principles that benefits
appellant for the simple reason that the government did not
compel him to provide any incriminating information; he did
so voluntarily pursuant to the debriefing agreement. Not only
is the record free of any suggestion of compulsion, the
debriefing agreement itself contains an acknowledgment that
appellant “fully under[stood]” the agreement and “voluntarily
agree[d]” to enter into the conversations with the government
that in due course, according to appellant, led to his disclosure
of the information used to establish his guilt. Kastigar simply
does not apply. United States v. Hemphill, 514 F.3d 1350,
1355 (D.C. Cir. 2008) (“[W]hen . . . a witness provides
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information voluntarily, the government is not obligated to
agree to any particular scope of immunity.”).
The debriefing agreement alone determines the scope of
appellant’s immunity, id., and its terms are clear. The
agreement expressly allowed the government to use against
him the information he provided in order to eliminate the need
for a Kastigar hearing. The government promised only that no
use would be made of appellant’s statements in its case-in-
chief, yet appellant’s decision to plead guilty meant there was
no case-in-chief. Therefore, the government did not need an
independent source for the information it used to draft the
charges against appellant, and the district court did not err
when it failed to convene a hearing on the matter.
III
Appellant argues that he received ineffective assistance
from his counsel, who he alleges failed to request a Kastigar
hearing or to adequately explain the scope of immunity
appellant was promised under the debriefing agreement, and
recommended that appellant plead guilty to the more serious
RICO charge instead of negotiating a plea bargain to the
original charges he faced.
With respect to the Kastigar hearing, there was nothing
deficient about counsel’s failure to seek something to which
appellant was not entitled. There can be no claim of
ineffective assistance in the absence of deficient conduct by
counsel. See Strickland v. Washington, 466 U.S. 668, 687
(1984). As to the other claims of ineffective assistance, we
agree with appellant and the government that we should
remand those claims to the district court for factual
development. Appellee’s Br. 24. Appellant raised the claims
for the first time on appeal, and we cannot tell from the record
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whether he is entitled to relief. See United States v. Mouling,
557 F.3d 658, 668-69 (D.C. Cir. 2009).
IV
Appellant argues that the government breached its
obligations under the plea agreement by revoking his release.
A “plea agreement is a contract,” and “courts will look to
principles of contract law to determine whether a plea
agreement has been breached.” United States v. Jones, 58
F.3d 688, 691 (D.C. Cir. 1995). The plea agreement gives the
government discretion to ask the court to return appellant to
detention pending sentencing at any time for any reason. The
agreement provides, “Your client understands and agrees that
at any time the Government can ask that your client be
detained pending sentencing.” Bound to use that discretion in
good faith, see id. at 692, the record makes clear the
government did. The government sought appellant’s detention
only after receiving information that he had attempted an
assault. Although appellant disputed this allegation, the
question for this court is not whether the attempt occurred, but
whether the government acted in good faith on the
information it possessed.
Appellant also claims that the government reneged on a
promise by one of the prosecutors to release him again if he
testified before a grand jury. The government concedes that
the promise was made but argues that the prosecutor had no
authority to do so. We need not resolve the question of the
prosecutor’s authority because the government obtained
nothing from the promise to which it was not already entitled;
the plea agreement already required appellant to testify upon
the government’s request. Moreover, the integration clause
barred all modifications to the plea agreement except those
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made on the record in open court or in a writing signed by all
parties. The prosecutor’s oral promise was neither.
Lastly, appellant suggests that the government was
obligated to release him a second time because the
prosecutor’s promise induced him to enter his plea. See
Santobello v. New York, 404 U.S. 257, 262 (1971) (explaining
that “when a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be
fulfilled”). But appellant’s timing is off. He entered the plea
agreement months before the prosecutor made this promise.
V
For the foregoing reasons, we remand this matter to the
district court to assess the merits of three of appellant’s four
ineffective assistance claims. We deny his appeal in all other
respects.
So ordered.