USA v. Avery

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
MARK J. AVERY,
Defendant.
Case No. 3:07-cr-00028-RRB
ORDER REGARDING
MOTION AT DOCKET 196
I. PENDING MOTIONS
At Docket 196 Defendant Mark J. Avery filed a Motion to Dismiss (Specific
Performance of Agreement), which the Government has opposed.1 Neither party has
requested oral argument, and the Court has determined that oral argument would not
materially assist in resolving the issues presented. Accordingly, the matter is submitted for
decision on the moving and opposing papers.2
II. BACKGROUND
The history of this case is well known to the parties and is repeated here only to the
extent necessary to an understanding of this decision. In April 2008, this Court sentenced
Avery to 102 months imprisonment on his guilty plea to fifteen counts: five counts of wire
1 Docket 204.
2 D.Ak. LCrR 47.1; D.Ak. LR 7.2(a)(3).
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fraud (18 U.S.C. §§ 1343, 1346); nine counts of money laundering (18 U.S.C. § 1957(a);
and one count of criminal forfeiture (18 U.S.C. § 982(a). Avery waived his right to appeal,
and no appeal was filed. In February 2011 Avery sought relief under 28 U.S.C. § 2255,
claiming his conviction and sentence were invalidated by the Supreme Court decision in
Skilling.3 This Court denied Avery relief. Upon appeal, the Ninth Circuit, finding that the
crime to which Avery pleaded guilty at his plea allocution (honest services fraud) was no
longer a criminal offense, reversed and remanded.4
As relevant to the motion sub judice, the Ninth Circuit noted:
We note that while Avery is innocent of honest services fraud, as that
theory has been defined by the Supreme Court in Skilling, Avery's conduct
may still constitute money-or-property based wire fraud. See, e.g., United
States v. Pelisamen, 641 F.3d 399, 406 (9th Cir.2011). If this is the case,
under the terms of the plea agreement the government may be able to
reinitiate criminal proceedings against Avery under the broader money-or-
property based wire fraud prosecution theory alleged in the original
Information. If criminal proceedings are reinstituted, we leave it to the district
court on remand to determine whether Avery's misconduct could trigger
liability under core mail and wire fraud jurisprudence.5
It further noted:
Because our certificate of appealability is limited to evaluating whether
Avery's habeas claim attacking the basis for his honest services fraud
conviction was procedurally defaulted, we leave it to the district court on
remand to determine what consequences might follow issuance of the writ
granting relief under the honest services fraud theory, should the government
3 Skilling v. United States, 561 U.S. 358 (2010).
4 United States v. Avery, 719 F.3d 1080 (9th Cir. 2013).
5 Id. at 1085 n.3.
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elect to continue prosecuting this case rather than dismissing the
Information.6
Consistent with the Ninth Circuit’s notes, upon remand the Government sought and
the Grand Jury re-indicted Avery on fifteen counts: five counts of wire fraud (18 U.S.C.
§§ 2, 1343); and ten counts of money laundering (18 U.S.C. §§ 2, 1957(a)).7 It is this re-
indictment that Avery seeks be dismissed.
III. ISSUE PRESENTED.
In light of the reversal on the basis that the conduct admitted by Avery during the
plea colloquy did not constitute a crime, whether, under the terms of the plea agreement,
the Government is precluded from re-indicting him.
IV. DISCUSSION
Avery advances two arguments: (1) that in bringing his § 2255 motion, he did not
breach the plea agreement; and (2) he is entitled to specific enforcement of the plea
agreement, specifically that the government would not initiate or reinstate charges related
to the investigation that led to the information to which he pleaded guilty. The Court will
address these arguments in seriatim.
1. Breach of Plea Agreement
Avery argues that it is established law that a conviction based upon conduct not
prohibited by law “‘inherently results in a miscarriage of justice’ and ‘present(s) exceptional
6 Id. at 1086 n.5.
7 Docket 172.
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circumstances’ that justify collateral relief under § 2255,”8 and such a conviction is void.9
Avery contends that in raising these principles he did not breach the plea agreement.10
The relevant provision of the plea agreement provides:
By pleading guilty pursuant to this agreement, I understand and agree
I am waiving all of these applicable rights including my right to appeal my
conviction(s). I further agree that if the district court imposes a sentence in
accordance with this agreement, I am waiving without exception my right to
appeal on all grounds contained in 18 U.S.C. § 3742 the sentence the district
court imposes upon me - including forfeiture (if applicable), terms and
conditions of probation (if applicable), supervised release, any fines and
restitution. Additionally, I also knowingly and voluntarily agree to waive all
right to collaterally attack my conviction(s) and/or sentence - including
forfeiture (if applicable) or terms or conditions of probation (if applicable) or
supervised release, and any fines or restitution the district court imposes.
The only exceptions to this collateral attack waiver are as follows: 1) any
challenge to the conviction or sentence alleging ineffective assistance of
counsel based on information not now known to me and which, in the
exercise of reasonable diligence, could not be known by me at the time the
court imposes sentence; and 2) a challenge to the voluntariness of my guilty
plea(s). I understand a collateral attack is an additional means separate from
an appeal by which I could challenge my conviction or sentence. I also agree
that if my guilty pleas are rejected, withdrawn, vacated, reversed, or set
aside, or if my sentence is vacated, reversed, set aside, or modified, at any
time, in any proceeding, for any reason, the United States will be free to
prosecute me on all charges arising out of the investigation of this case for
which there is probable cause.11
8 Davis v. United States, 417 U.S. 333, 346–47 (1974).
9 United States v. Transfiguracion, 442 F.3d 1222 (9th Cir. 2006).
10 United States v. Barron, 172 F.3d 1153. 1158 (9th Cir. 1998) (en banc) (“To seek
to set aside a conviction for conduct that is innocent is neither to breach nor to repudiate
the agreement.”) (citing United States v. Sandoval-Lopez, 122 F.3d 797, 802 (9th Cir.
1997)).
11 Docket 4, pp. 15–16.
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The problem Avery faces is that the authorities he relies upon, while unquestionably
legally correct and binding, are factually inapposite to his case. What Avery overlooks is
that he has unequivocally waived the right to collaterally attack his conviction and sentence
except on two grounds: (1) ineffective assistance of counsel; and (2) the voluntariness of
his plea. While Avery’s § 2255 also raised those two points, had he raised only them and
relief granted on that basis Avery would likely prevail, that is not the case before this Court.
Avery was granted relief upon an entirely different ground: actual innocence.
As the Ninth Circuit held in Sandoval-Lopez: “A plea agreement does not waive the
right to bring a § 2255 motion unless it does so expressly. The government gets what it
bargained for but nothing more.”12 In recent cases, the Ninth Circuit has enforced waivers
of rights to seek collateral review except as specifically reserved in the plea agreement.13
In this case, Avery unequivocally waived the right to collaterally attack his conviction on
other than the two grounds specified. Having waived the right to collaterally attack his
conviction on other, unpreserved grounds, Avery cannot claim that in so doing he did not
breach the plea agreement.
12 Sandoval-Lopez, 122 F.3d at 800; see United States v. Sar-Avi, 255 F.3d 1163,
1166–67 (9th Cir. 2001) (same citing Sandoval-Lopez); United States v. Pruitt, 32 F.3d
431, 433 (9th Cir. 1994) (same).
13 See, e.g., United States v. McTiernan, 552 Fed. Appx. 749 (9th Cir. 2014), United
States v. Landa, 223 Fed. Appx. 604 (9th Cir. 2007).
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2. Specific Performance
Although Avery may not avoid the waiver bar, his specific performance argument
stands on an entirely different footing. This Court agrees with the general principle that a
criminal defendant may in appropriate cases specifically enforce a plea agreement.14
Avery principally bases his motion on two Ninth Circuit decisions: Barron and
Transfiguracion. For the reasons that follow, to the extent he seeks to specifically enforce
the terms of the plea agreement, this Court finds Avery’s argument persuasive.
In Barron the defendant pleaded guilty to three offenses including the use of a
firearm in relation to drug trafficking and, in addition to sentencing on the first two counts,
was sentenced to a five-year consecutive sentence on the use of a firearm count. Three
years later the Supreme Court held in Bailey that the use of a firearm required “active
employment” of the firearm.15 Barron moved to vacate his sentence on the basis that he
had not actively used the firearm as required by Bailey. The district court granted Barron
relief conditioned upon his timely withdrawal of this plea. On rehearing en banc the Ninth
Circuit held that: (1) where a sentence is not authorized by law the district court did not
14 See Santobello v. New York, 404 U.S. 257, 262–63 (1971) (where state failed
to keep a commitment concerning a sentence recommendation, remanding to the state
court to decide under all the circumstances whether the agreement should be specifically
enforced, or the defendant be permitted to withdraw his guilty plea). Avery’s reliance on
and citation to Puckett v. United States, 556 U.S. 129, 137–38 (2009) is perplexing.
Although citing with apparent approval Santobello to the extent it sanctioned withdrawal
of the plea, the Court in Puckett, applying Federal Rule of Criminal Procedure 52 (“plain
error”), found that the violation of the plea agreement in that case did not warrant
permitting withdrawal of the plea. Id. at 143.
15 Bailey v. United States, 516 U.S. 137, 143 (1995).
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have the option of granting the motion conditioned on Barron’s withdrawal of his plea;
(2) the proper remedy was to vacate the judgment and resentence Barron on the
remaining two counts rather than order a new trial; and (3) bringing the § 2255 motion was
neither a breach nor a repudiation of his plea agreement.
Avery overlooks a significant factual difference between this case and Barron. In
Barron only one count of a multiple count conviction was invalidated. Here, unlike Barron,
Avery was convicted on his guilty plea to all fifteen counts, and his conviction was vacated
in toto. The en banc court in Barron carefully differentiated between the two situations.
The dissent argues that “the unitary nature of the entry of a plea of
guilty to multiple counts” forecloses such a remedy in the instant case.
However, the argument that plea bargains must be treated as a package
logically applies only in cases in which a petitioner challenges the entire plea
as unknowing or involuntary. The dissent relies not on the statutory language
of § 2255 but rather on United States v. Gerard, which held that a defendant
who successfully withdraws from a plea agreement may not object to revival
of counts previously dismissed. 491 F.2d 1300, 1305-06 (9th Cir.1974). The
dissent ignores that our subsequent decision in United States v. Sandoval-
Lopez, limited Gerard in holding that, unlike a claim that the plea agreement
itself was unknowing or involuntary, a collateral challenge to the legality of
a particular count of conviction does not constitute a breach of or withdrawal
from a plea agreement, and that the remainder of the plea agreement
remains in effect. 122 F.3d at 801-02. Moreover, the dissent offers no
statutory authority for vacating counts of conviction that have not been
challenged by a § 2255 petitioner.16
Thus, because in this case Avery is challenging his entire plea and all counts of conviction,
by its express limiting language and holding Barron clearly does not apply.
16 Barron, 172 F.3d at 1160–61.
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Transfiguracion presents a somewhat different picture. In that case the defendants
were indicted on charges of conspiracy to import methamphetamine hydrochloride into the
United States from a place outside thereof, i.e., from California to Guam in violation of 21
U.S.C. §§ 952(a), 960, and 973, and conspiracy to distribute same in violation of 21 U.S.C.
§§ 841(a) and 846. Defendants agreed to plead guilty to the charges and to cooperate with
the government fully and truthfully in its investigation of the drug trafficking conspiracy and
in the prosecution of their co-conspirators. In exchange, the government agreed to dismiss
the charges upon sentencing. The defendants waived indictment and pleaded guilty to the
importation charges. Sentencing was postponed to allow the defendants to provide the
cooperation required by the plea agreement and the government to evaluate it.
Subsequently the Ninth Circuit, sitting en banc, held that smuggling drugs from California
to Guam did not constitute a violation of § 952(a).17 In light of that decision, the defendants
moved to dismiss the importation information as well as the distribution indictment. The
government did not contest dismissal of the importation charge. It did, however, argue that
the mutual mistake of law as to the factual basis for the importation charge justified
rescission of the plea agreement and reinstatement of the conspiracy counts of the
indictment. Defendants countered that, because they had fully complied with their
obligations under the plea agreements, including providing substantial cooperation, the
17 United States v. Cabaccang, 332 F.3d 622 (9th Cir. 2003) (en banc).
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government was prohibited from prosecuting them on the conspiracy charges contained
in the indictment.
The district court, holding that because the defendants had complied with their
agreements to co-operate with the government, the agreement precluded their prosecution
for the conspiracy charges and dismissed the conspiracy indictment. The government
appealed the decision to dismiss the conspiracy indictment.18
The Ninth Circuit looked to the plea agreement, in particular:
The meat and potatoes of the plea agreement is contained in the
second paragraph. That section provides that, “in return for [the defendants']
cooperation, the United States agrees not to prosecute defendant[s] in the
District of Guam or the Northern Mariana Islands for any other nonviolent
offenses now known to the government or which [they] reveal[ ] to federal
authorities.” Despite the government's argument to the contrary, the meaning
of the phrase “other non-violent offenses” is not difficult to ascertain:
Provided that the defendants cooperate, the government cannot prosecute
them for any known crimes other than those crimes for which the defendants
have agreed to plead guilty, namely, the importation charges.19
After rejecting several arguments advanced by the government factually irrelevant
to this case, the Transfiguracion panel held:
In sum, our reading of relevant provisions of the plea agreements lead
us to conclude that the conspiracy prosecutions cannot go forward.
Paragraph one does not permit the government to go forward with
prosecutions on the conspiracy charges simply because sentencing on the
importation charges did not occur; rather, it specifies one circumstance, but
not the only one, precluding additional prosecution. Paragraph two bars
additional prosecutions once the defendants' cooperation promise is fulfilled.
18 As noted by the Ninth Circuit the government did not appeal dismissal of the
importation charges. Transfiguracion, 442 F.3d at 1227 n.7.
19 Id. at 1234.
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Accordingly, the blanket command in paragraph two remains enforceable
even if the indictment is not dismissed pursuant to paragraph one.FN23 Given
that Transfiguracion and Dao both fulfilled their end of the bargain by
cooperating with the government, they cannot be prosecuted “for any other
non-violent offenses now known to the government.” As a result, the
prosecution of the conspiracy charges cannot continue.
FN23. The dissent contends that the “principal object” of the
agreements was to obtain criminal convictions. Dissenting op. at
1237. If that were true, however, paragraph two, providing for non-
prosecution “in return for . . . cooperation,” would be entirely
superfluous. The agreement contemplated another benefit for the
government in addition to the convictions: cooperation in the
investigation and prosecution of the co-conspirators.20
The Ninth Circuit upheld dismissal of the indictment and determined that the dismissal was
“with prejudice,” precluding further prosecution.21
The court in Transfiguracion specifically enforced the agreement, i.e., that the
government would not seek further prosecution on the conspiracy, or any other charge, in
exchange for the cooperation of the defendants. Contrary to Avery’s contentions, nothing
in the plea agreement in this case supports his argument that it “plainly states that if Mr.
Avery performs his end of the bargain, the government will not initiate or reinitiate
charges . . . .”22 In this case, the promise the government made in exchange for Avery’s
cooperation was that it would seek a substantial assistance reduction.23 Based upon the
government’s acknowledgment that Avery had provided substantial assistance that
20 Id. at 1236.
21 Id. at 1236–37 (citing United States v. Cejas, 817 F.2d 595, 600 (9th Cir. 1987)).
22 Docket 196 at 2.
23 Addendum to Plea Agreement, Docket 5 (sealed).
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resulted in sizeable investigative and prosecutorial resources savings to the U. S. Attorney,
the Internal Revenue Service, and the Federal Bureau of Investigation, the government did
in fact move for a four-level downward departure from the presumptive guideline sentence
of 14 to 17 years to a fixed term of ten years.24 Thus, the government has effectively
conceded that Avery is entitled to the four-level reduction provided for in the addendum to
the plea agreement. Under Transfiguracion, Avery is clearly entitled to the benefit of that
bargain. Under the express terms of his plea agreement Avery is not, however, entitled
to immunity from being prosecuted for the crimes set forth in the current indictment.25
V. ORDER
Based upon the foregoing, the Motion to Dismiss (Specific Performance of Plea
Agreement) at Docket 196 is GRANTED IN PART and DENIED IN PART. The Indictment
in this matter will not be dismissed. However, should Defendant Mark J. Avery be convicted
on the Indictment in this matter, whether by plea or trial, the United States of America may
not seek the imposition of a sentence in excess of ten (10) years.
IT IS SO ORDERED this 11th day of September, 2014.
S/ RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
24 Docket 65.
25 Docket 172.
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