United States v. Payan

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 8, 1999
• Docket: 97-41372
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-41372 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO PAYAN,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. B-97-CR-221-S1 - - - - - - - - - - May 28, 1999

Before POLITZ, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Eduardo Payan appeals his convictions of seven counts of

theft by a government employee of property in the care and

custody of the United States. Payan contends that the instant

prosecution is precluded by the terms of a plea agreement he

entered in 1994. This prior agreement, he contends, could

reasonably be understood as proscribing his prosecution for all

acts of embezzlement occurring between September 1992 and July

1993.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 97-41372 -2-

“‘Plea bargain agreements are contractual in nature, and are

to be construed accordingly.’" Hentz v. Hargett, 71 F.3d 1169,

1173 (5th Cir. 1996) (citation omitted). Whether the

Government’s actions have breached the terms of a plea agreement

is a question of law that is reviewed de novo. See United States

v. Wittie, 25 F.3d 250, 262 (5th Cir. 1994), aff’d, 515 U.S. 389

(1995). In making this determination, the court considers

“‘whether the government’s conduct is consistent with the

defendant’s reasonable understanding of the agreement.’" United

States v. Moulder, 141 F.3d 568, 571 (5th Cir. 1998) (citation

omitted).

Payan’s understanding of the 1994 plea agreement finds no

purchase in the agreement’s unambiguous terms. The Government’s

promise not to prosecute him for other offenses arising from the

conduct charged in the 1994 indictment was merely an assurance

that the Government would not reindict him for the three counts

of the 1994 indictment that were dismissed pursuant to the plea

agreement. Because jeopardy never attached with respect to these

charges, such an assurance was appropriate. See United States v.

Mann, 61 F.3d 326, 330 (5th Cir. 1995).

This conclusion is not undermined by the stipulations

contained in the plea agreement that the Government had no

evidence linking Payan to other monies which may have been stolen

from the detention center where he was a supervisor. These

stipulations addressed the possibility that the district court

might rely on the dismissed charges in calculating Payan’s

sentence. See United States v. Levario-Quiroz, 161 F.3d 903, 906 No. 97-41372 -3-

(5th Cir. 1998); U.S.S.G. § 1B1.3. Moreover, the Government’s

stipulations concerning the lack of evidence did not preclude it

from further investigation, which could reveal provable criminal

conduct.

Equally unavailing is Payan’s argument that to read the

plea agreement as permitting the instant prosecution would be to

frustrate the very purpose of that agreement. A broad grant of

immunity for all of Payan’s acts of embezzlement was not a

principal purpose of the plea agreement the absence of which

would render the agreement meaningless. See Moulder, 141 F.3d at

571. Accordingly, Payan’s convictions are

AFFIRMED.