United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit March 14, 2007
Charles R. Fulbruge III
Clerk
No. 06-10482
UNITED STATES OF AMERICA
Plaintiff - Appellee
VERSUS
JERRY M. GIVENS
Defendant - Appellant
Appeal from the United States District Court
For the Northern District of Texas, Lubbock Division
5:05-CV-00242
Before DAVIS, DENNIS and PRADO, Circuit Judges.
PER CURIAM:*
Appellant, Jerry M. Givens (“Givens”) pleaded guilty to
making a false statement to a government agency and aiding and
abetting following the execution of a plea agreement with the
United States. As part of his sentence and pursuant to the plea
agreement, Givens was ordered to pay, inter alia, prosecution
*
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should not be published and is not precedent except under the limited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.
costs in the amount of $200,000. The plea agreement states in
relevant part that:
Givens further agrees that he will pay costs of
prosecution in the amount of Two Hundred Thousand
($200,000.00) Dollars. Givens agrees to assign to the
United States Department of Justice as costs of
prosecution in this matter, the first $200,000 of the
amount payable to him by the Escrow Agent . . . .
Givens further agrees to execute any and all documents
necessary to assign the funds to be paid to the United
States Department of Justice to insure payment by the
Escrow Agent of this cost of prosecution assignment.
Consistent with the plea agreement, Givens and the United
States executed the Assignment and Notice to Escrow Agent (the
“Assignment Agreement”), in which Givens and other sellers
assigned to the United States all of their “right, title and
interest in and to the first $200,000 of the Escrowed Funds . . .
in satisfaction of Givens’ obligation under the Plea Agreement to
pay certain agreed costs of prosecution.” At the time the
Assignment Agreement was executed, $255,988 was in the Escrow
Account. However, the funds were not immediately available to
the United States, and on the date the funds were to be released
to the United States, charge-offs against the Escrow Account had
reduced the account to a negative balance of -$50,397.00.
To enforce its recovery of the costs of prosecution,1 the
government sought a writ of garnishment seeking to garnish
Givens’s property. Givens argued that the garnishment should be
1
The government was also seeking the balance due on the $4,000 fine
assessed pursuant to the plea agreement.
2
terminated because the Assignment Agreement operated as an accord
and satisfaction of the $200,000 costs of prosecution. The
district court overruled Givens’s objection, determining that the
doctrine of accord and satisfaction was inapplicable in the
context of criminal judgments, and, even if applicable, Givens
failed to satisfy the requisite elements of an accord and
satisfaction.
We need not decide whether the district court erred in
concluding as a matter of law that the doctrine of accord and
satisfaction is inapplicable in the context of criminal judgments
because there is a clearer ground for affirmance. We conclude
that the unambiguous language of the Assignment Agreement fails
to satisfy the elements of an accord and satisfaction under Texas
law2 because Givens unambiguously agreed to “pay costs of
prosecution in the amount of $200,000.” Thus, there was no
dispute about an existing obligation between Givens and the
government at the time the Assignment Agreement was executed.3
2
For an agreement to operate as an accord and satisfaction under Texas
law, there must be (1) a dispute about an existing obligation; (2) a new
contract, express or implied, in which the parties agree to the discharge of
the existing obligation by means of the lesser payment tendered and accepted;
(3) an assent of the parties to an agreement that the amount paid by the
debtor to the creditor was in full satisfaction of the entire claim; and (4)
an unmistakable communication to the creditor that tender of the lesser sum is
upon the condition that acceptance will constitute satisfaction of the
underlying obligation. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W. 3d
857, 863 (Tex. 2000).
3
Because we find that the Assignment Agreement does not satisfy the
first element of an accord and satisfaction, we do not consider whether the
other elements are satisfied.
3
For the foregoing reasons, we affirm.
AFFIRMED.
4