United States of America v. Walter Pierre Rausini

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WALTER PIERRE RAUSINI,
Defendant - Appellant.
No. 11-10601
D.C. No. 3:95-cr-00319-MHP-7
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted April 15, 2013
San Francisco, California
Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.
Walter Pierre Rausini appeals the district court’s imposition of sentence
following the government’s motion for sentence reduction pursuant to Federal
Rule of Criminal Procedure 35. We vacate and remand.
FILED
APR 26 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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The government breached its post-conviction agreement with the defendant
by submitting to the district court a letter from a co-defendant’s family member
that argued for no sentence reduction. The letter did not fall under the Crime
Victims’ Rights Act, as asserted by the government before the district court,
because the author of the letter was not a family member of one of the victims. See
18 U.S.C. § 3771(e) (defining crime victims as “legal guardians of the crime victim
or the representatives of the crime victim’s estate, family members, or any other
persons appointed as suitable by the court”). Nor did the letter fall within the
government’s promise in the agreement to elicit the views of the victims’ families
because the author was not part of either family.
The government does not contest that precedent regarding the breach of plea
agreements applies to Rausini’s claim that the government breached his
cooperation agreement. When the defendant’s 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.” Santobello v. New
York, 404 U.S. 257, 262 (1971). “The integrity of our judicial system requires that
the government strictly comply with its obligations under a plea agreement.”
United States v. Mondragon, 228 F.3d 978, 981 (9th Cir. 2000). When the
government obligated itself to file a Rule 35 motion, it was precluded from

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submitting evidence effectively opposing its own compelled motion by proxy. See
United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999) (holding that
prosecutor’s introduction of statement from victim of defendant’s prior crime was
attempt to influence court to impose sentence longer than prosecutor’s
recommendation). As we held in United States v. Franco-Lopez, 312 F.3d 984
(9th Cir. 2002), the literal terms of an agreement may be followed, and yet a breach
will still occur if the government acts in such a way as to render its promise
“illusory.” Id. at 988-91. That the government electronically filed the letter with a
statement that “the United States Attorney’s Office hereby submits this letter” in
anticipation of Rausini’s sentencing hearing increased the risk that the district court
could view the letter as a proxy recommendation against reducing Rausini’s
sentence.
The district court properly excluded the letter from its consideration.
However, harmless error analysis does not apply to a governmental breach of a
plea agreement, so the court’s statement that it would not consider the letter is
insufficient to cure the breach. See Mondragon, 228 F.3d at 981 (“It is of no
consequence that the district judge did not construe the prosecutor’s statements as a
‘comment on the sentence’ or a ‘recommendation with respect to sentencing,’ or
that the statements may have had no effect upon the sentence. The harmless error

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rule does not apply when the government breaches a plea agreement.”).
Moreover, “[i]t does not matter that a breach is inadvertent, or that the statements
or arguments the prosecutor makes in breach of the agreement do not influence the
sentencing judge.” United States v. Alcala-Sanchez, 666 F.3d 571, 575 (9th Cir.
2012) (internal quotation marks and citations omitted). In addition, the transcript
of the hearing reflects that the contents of the letter, including the recommendation
that the sentence not be reduced, were discussed, at least in part.
Thus, because of the government’s breach, we must vacate the sentence and
remand for a new hearing on the Rule 35 motion. We need not, and do not, reach
any other issue raised by the parties on appeal.
VACATED AND REMANDED.

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United States v. Rausini, No. 11-10601
SILVERMAN, Circuit Judge, dissenting:
I respectfully dissent.
I agree with the district court that there was no breach of the November 8,
2000 agreement. The government did nothing more than forward to the judge a
letter specifically addressed to the judge that should have been sent to the judge
directly but was sent to the U.S. Attorney’s Office instead. The government did
not solicit the letter, argue that the letter was relevant, should be taken into
account, or had any significance whatsoever. It simply acted as a conduit.
Nothing in the agreement prohibited this, and government counsel can hardly be
faulted for failing to hide from the judge a communiqué intended for her but
misdirected to them.
FILED
APR 26 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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