UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1155
In Re: GRAND JURY SUBPOENA,
Petitioner.
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UNITED STATES OF AMERICA,
Petitioner - Appellee,
versus
JOHN DOE A01-246,
Respondent - Appellant.
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JOSHUA A. GERSTEIN,
Movant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (1:07-mc-00001)
Submitted: March 5, 2007 Decided: March 23, 2007
Before TRAXLER, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter Erlinder, WILLIAM MITCHELL COLLEGE OF LAW, St. Paul,
Minnesota, for Appellant. Charles Rosenberg, United States
Attorney, Gordon Dean Kromberg, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
After appellant was subpoenaed to testify before the grand
jury in the Eastern District of Virginia and granted immunity
pursuant to 18 U.S.C. § 6002, he refused to testify on the grounds
that he was a party to a plea agreement with government prosecutors
in the Middle District of Florida which bars any attempt by the
government to compel his testimony. He appeals the district
court’s order holding him in contempt for refusing to testify. We
affirm.
Everyone agrees that the written plea agreement in the Middle
District of Florida contains no language which would bar the
government from compelling appellant’s testimony before a grand
jury. It is also undisputed that the plea agreement contains an
“integration clause,” stating that the written agreement contains
all agreements between the parties, and that appellant and his
counsel acknowledged at the plea hearing that, with the sole
exception of a promise to expedite his deportation upon service of
his sentence, the government had made no additional promises to
induce his plea. Appellant’s defense to the subpoena is based upon
the fact that a cooperation clause was discussed during the plea
negotiations, but was not agreed to and not included in the written
plea agreement. Appellant contends that by not requiring the
inclusion of a cooperation clause in the written plea agreement at
the time, and orally acknowledging thereafter that appellant had no
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duty under the written agreement to voluntarily cooperate, the
government should be deemed to have also agreed to a “non-
cooperation” provision which encompasses a ban on involuntary
cooperation in the form of compelled grand jury testimony.
We are unpersuaded. At the request of the district court in
Virginia, appellant filed a motion to enforce the plea agreement in
the Florida district court in which it was entered, for the purpose
of determining whether the government was breaching the agreement
by seeking to compel appellant’s grand jury testimony. After an
evidentiary hearing, the Florida district court ruled that the plea
agreement did not prohibit the government from compelling testimony
before the grand jury. The district court, relying upon In Re:
Grand Jury Proceedings (Perdue), 819 F.2d 984, 987 (11th Cir.
1987), held that “if the words of the agreement are unambiguous,”
as in the instant case, a court “cannot rewrite the agreement to
include a bar on attempts by the Government to compel testimony.”
At the subsequent hearing on the government’s motion to hold
appellant in contempt in this circuit, the Virginia district court
adopted the record from the Florida district court proceedings and
also ruled that the plea agreement in the Middle District of
Florida, which is governed by the law of that circuit and the
proceedings there, was no defense to the subpoena and held
appellant in contempt. We agree. Accordingly, we affirm the
judgment of the district court. We dispense with oral argument
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because the facts and legal conclusions are adequately presented in
the materials before the court and argument would not significantly
aid in the decisional process.
AFFIRMED
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