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United States v. Vergara - 62 F. Supp. 2d 1108 (S.D.N.Y. 1999)

Rule:

Recent Second Circuit cases considering plea agreements establish two propositions. First, plea agreements are interpreted under principles of contract law. Second, because prosecutors draft these agreements and enjoy advantages in bargaining power over defendants, courts will construe plea agreements strictly against the government. These propositions apply whether the plea agreement in question is with a non-cooperating or a cooperating defendant.

Facts:

Defendant Emiro Vergara was arrested and charged with conspiring with others to sell approximately one kilogram of cocaine to a confidential informant. Subsequently, defendant entered into a plea agreement with the government, pursuant to which he pleaded guilty to the indictment and agreed to cooperate with the government in the investigation and prosecution of his co-conspirators. Defendant was then released from custody after executing a $50,000 personal recognizance bond co-signed by one financially responsible person, and an Advice of Penalties and Sanctions form that, inter alia, informed defendant that it was unlawful to knowingly fail to appear for sentencing. The court, in releasing defendant, furthermore advised that failure to keep the promise to appear in court would subject him to additional crime charges and would be regarded as a violation of his plea agreement with the government. Defendant’s sentencing date ultimately was set for October 9, 1990. In April 1990, pursuant to the plea agreement, defendant testified as a government witness during the trial of two co-conspirators, both of whom were convicted. Subsequent to that trial, defendant failed to maintain contact with the government, and a warrant for his arrest was issued; he was consequently taken into federal custody. As he was awaiting sentence, defendant moved the court for an order compelling the government to make a motion on his behalf pursuant to the United States Sentencing Guidelines Manual (USSG) § 5K1.1 and 18 U.S.C.S. § 3553(e), empowering the court to make a downward departure from the USSG range and to disregard a mandatory minimum in fashioning defendant's sentence. Defendant asserted that the government's making of such a motion was mandated by the terms of his plea agreement with the government and the substantial assistance the government conceded that he rendered to it, pursuant to that agreement. The government resisted defendant's motion, arguing that he violated the terms of the plea agreement by failing to appear at his sentencing, and that therefore, the government was justified in declining to make a motion on his behalf. Vergara conceded that his failure to appear for sentencing constituted a further crime that violated his plea agreement. However, Vergara contended that this conduct did not justify the government's refusal to make a motion on his behalf based upon his substantial assistance to the government. Specifically, he asserted that his plea agreement did not contain the language necessary to justify that refusal.

Issue:

Was the government’s refusal to make a motion recommending downward departure from the Sentencing Guidelines, pursuant to the parties' plea agreement, on defendant’s behalf justified?

Answer:

No.

Conclusion:

In examining the language of the plea agreement and the undisputed facts, the Court held  that the defendant’s motion should be granted. According to the Court, if a plea agreement, construed strictly against the government, did not specifically justify subsequent governmental conduct adverse to the defendant, that conduct constituted a breach of the government's contract with him that the courts will not tolerate.

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