United States District Court, W.D. New York
June 13, 2005.
JONATHAN MUSIC, Petitioner,
UNITED STATES OF AMERICA, Respondent.
The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
DECISION AND ORDER
1. On August 20, 2004, Petitioner Jonathan Music, acting pro
se, filed a motion requesting specific performance of alleged
Government promises.*fn1 Petitioner contends that after his
arrest, in exchange for certain promises, he agreed to cooperate
with the Government by acting as an undercover operative and
providing testimony against others. Specifically, Petitioner
alleges that two agents of the Federal Bureau of Investigation
("FBI") and an Assistant United States Attorney ("AUSA") promised
him that the Government would grant him immunity from
prosecution, place him in the Federal Witness Protection Program,
and provide him with a job, a new identity and starting out
money. (Pet.'s Mot., p. 3). Petitioner requests an evidentiary
hearing, or in the alternative, specific performance of the
Government's alleged promises. (Pet.'s Mot., p. 17).
2. The following facts are undisputed. On September 20, 1999,
FBI agents arrested Petitioner after he attempted to sell cocaine
to an undercover FBI agent. Petitioner waived his rights and provided the arresting agents a
written statement describing his participation in and knowledge
of narcotics distribution activities. Subsequent to giving this
statement, Petitioner agreed to cooperate with the Government by
testifying and working in an undercover capacity. Thereafter,
this Court appointed an attorney for Petitioner and released him
from custody on bond.
On September 28, 1999, a meeting occurred at a Sheraton Hotel
between Petitioner, his attorney, AUSA Anthony M. Bruce, and two
FBI agents. At this meeting, referred to as a "debriefing" by the
Government, Petitioner provided additional information regarding
narcotics trafficking and other criminal activities. AUSA Bruce
informed Petitioner's attorney that nothing that Petitioner said
during the meeting would be used against him.
On January 6, 2000, Petitioner entered into a Plea Agreement
with the Government. Pursuant to this Agreement, Petitioner plead
guilty to Count I of an Indictment charging him with conspiring
to possess cocaine hydrochloride with intent to distribute and
conspiring to distribute cocaine hydrochloride in violation of
Title 21, United States Code, Section 846 ("conspiracy count").
In addition, Petitioner waived indictment and pled guilty to a
one-count Information charging him with theft and conversion of
government property with a value in excess of $1,000 in violation
of Title 18, United States Code, Section 641 ("conversion
count"). The Plea Agreement set forth the parties' understanding
that Petitioner's sentencing range would be a term of
incarceration between 188 and 235 months. Further, the Plea
Agreement stated that Petitioner would cooperate with the
Government by providing information regarding the unlawful
possession, manufacture, or distribution of controlled
substances. If Petitioner fully complied with the Plea Agreement and provided substantial assistance to the Government in
investigating and prosecuting others for criminal offenses, the
Government would, at its discretion, move for a downward
departure at sentencing.
On November 20, 2000, this Court sentenced Petitioner to a 188
month term of imprisonment on the conspiracy count and a 120
month term of imprisonment on the conversion count. Both
sentences were ordered to run concurrently. On November 14, 2001,
the Government filed a motion to reduce the Petitioner's sentence
pursuant to Rule 35(b) of the Federal Rules of Criminal
Procedure. On January 28, 2002, this Court granted the
Government's Motion for Downward Departure and re-sentenced
Petitioner to a 108 month term of imprisonment on each count to
run concurrently. This Court directed the Clerk of Court to seal
all pleadings related to Petitioner's re-sentencing.
3. Petitioner first alleges that when he provided a written
statement immediately following his arrest, two FBI agents
advised him that he would be granted immunity, placed in the
Witness Protection Program, and thereafter provided with a new
identity, a job and starting out money. (Pet. Mot., p. 3).
Petitioner further alleges that AUSA Bruce "reiterated and
endorsed" these promises at the September 28, 1999 debriefing.
(Pet.'s Mot., p. 3).
4. The Government contends that neither the FBI agents nor the
AUSA promised Petitioner that he would be enrolled in the Witness
Protection Program in exchange for his cooperation. The
Government alleges that Petitioner inquired about his eligibility
for the Witness Protection Program at the September 28, 1999
debriefing. In response, AUSA Bruce explicitly stated that he
would not sponsor Petitioner for the program. (Bruce Aff., p.
4). The Government further contends that Petitioner was promised "use immunity" for information he disclosed during the
September 28, 1999 debriefing. However, Petitioner was offered no
immunity with respect to the prior written statement that he
provided immediately following his arrest on September 20, 1999.
(Govt. Resp., p. 5). At no time, the Government insists, did
any Government representative promise Petitioner "transactional
immunity," that is, immunity from prosecution altogether. (Govt.
Resp., p. 5).
5. Plea bargains and cooperation agreements between a defendant
and the government are interpreted according to principles of
contract law. United States v. Rexach, 896 F.2d 710, 713 (2d
Cir. 1990); United States v. Alexander, 869 F.2d 91, 95 (2d
Cir. 1989); see also Santobello v. New York, 404 U.S. 257,
262-63, 92 S. Ct. 495, 499, 30 L. Ed. 2d 427 (1971). Accordingly,
the use of parol evidence to supplement the terms of an
unambiguous written plea agreement is ordinarily frowned upon,
especially where that agreement disclaims the existence of
additional promises. See, e.g., United States v. Ingram,
979 F.2d 1179, 1184 (7th Cir. 1992), cert. denied,
507 U.S. 997, 113 S. Ct. 1616, 123 L. Ed. 2d 176 (1993); United States v.
Gamble, 917 F.2d 1280, 1282 (10th Cir. 1990); Hartman v.
Blankenship, 825 F.2d 26, 29 (4th Cir. 1987); see also
United States v. Hogan, 862 F.2d 386, 388 (1st Cir. 1988) (The
fact that a plea agreement disclaims existence of other promises
"militates strongly" against defendant's assertion to contrary).
Moreover, a defendant is ordinarily bound by his or her
representations in court disclaiming the existence of additional
promises. See, e.g., Baker v. United States, 781 F.2d 85,
90 (6th Cir. 1986) ("Where Rule 11 procedures were fully
adequate, absent extraordinary circumstances, or some explanation
of why defendant did not reveal other terms, at least when
specifically asked to do so by the court, a defendant's plea
agreement consists of the terms revealed in open court"), cert. denied,
479 U.S. 1017, 107 S. Ct. 667, 93 L. Ed. 2d 719 (1986); Barnes
v. United States, 579 F.2d 364, 366 (5th Cir. 1978) ("Where,
from the transcript, the plea-taking procedures are clear and
regular on their face, a petitioner asserting the existence of a
bargain outside the record and contrary to his own statements
under oath bears a heavy burden."); see also United States
v. Pellerito, 878 F.2d 1535, 1539 (1st Cir. 1989) (A defendant
cannot "turn his back on his own representations to the court
merely because it would suit his convenience to do so").
6. In this case, Petitioner has failed to present any evidence
tending to show that he was promised immunity from prosecution,
admittance into the Witness Protection Program, a new identity, a
job or starting out money. Petitioner's claims rest solely on his
own self-serving allegations that promises were made to him by
the arresting FBI agents and the prosecuting AUSA. Moreover, his
allegations contradict the unambiguous terms of the Plea
Agreement and Petitioner's sworn statements before this Court.
Petitioner's written Plea Agreement contains no reference to the
Witness Protection Program or the Government's alleged promises.
The Plea Agreement explicitly states "[n]o promises or
representations have been made other than what is contained in
this agreement." (Plea Agree., p. 18). Furthermore, at
Petitioner's Rule 11 hearing, this Court queried Petitioner about
the Plea Agreement as follows.
THE COURT: Is this the total agreement as you view
[PETITIONER]: Yes, Sir, it is.
THE COURT: Any promises made to you that are not
reduced to writing and that you are relying upon in
connection with this proceeding?
[PETITIONER]: No, Sir. THE COURT: You look like there may be something.
[PETITIONER]: No, Sir, there isn't.
THE COURT: Okay. Any reason why I should not accept
this plea agreement?
[PETITIONER]: No, your honor, there's no reason.
(Tr. Plea Colloquy, p. 35).
This Court finds that Petitioner's Plea Agreement unambiguously
sets forth the Government's obligations and clearly disclaims the
existence of any additional promises. As such, it is unnecessary
to conduct an evidentiary hearing to ascertain the terms of the
parties' agreement. Ingram, 979 F.2d at 1184. Moreover, this
Court finds that Petitioner's assertion that a bargain existed
outside of the record is belied by his own sworn statements in
open court to the contrary. Accordingly, Petitioner's request for
specific performance of the Government's alleged promises will be
IT HEREBY IS ORDERED that Petitioner's Motion for Specific
Performance (Docket No. 140) is DENIED.