UNITED STATES COURT OF APPEALS
for the Fifth Circuit
NO. 92-3700
UNITED STATES OF AMERICA
Plaintiff-Appellee,
VERSUS
MELBA ASSET, DECEASED, GARLAND JARVIS, EXECUTOR
OF THE ESTATE OF DECEASED DEFENDANT MELBA ASSET,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(April 27, 1993)
Before JOLLY and DAVIS, Circuit Judges; and LEE,* District Judge
LEE, District Judge:
I.
FACTS AND PROCEEDINGS
On January 28, 1992, pursuant to a plea agreement of the same
date, Melba Asset pled guilty to one count of a nine-count indict-
ment charging her with uttering altered government checks in
*District Judge of the Southern District of Mississippi,
sitting by designation.
violation of 28 U.S.C. § 495.1 The plea agreement provided that
the government would recommend dismissal of the remaining eight
counts at the time of sentencing and that Asset would tender to the
government, at the time of her guilty plea, the sum of $50,000,
representing restitution to the United States Railroad Retirement
Board, the victim of Asset's crime.2 In accordance with the terms
of the plea agreement, Asset paid the government the sum of $50,000
at the time of her plea. Thereafter, on April 26, 1992, following
the entry of her guilty plea but just prior to the date scheduled
for sentencing, Asset died.
Pursuant to a joint motion by the government and the executor
of Asset's estate, the district court abated the criminal proceed-
ing against Asset and dismissed the indictment pending against her.
1
Specifically, Asset was charged with forgery of her de-
ceased mother's signature on nine checks which had been mistakenly
issued by the United States Railroad Retirement Board. Asset's
mother was a beneficiary of her deceased husband's Railroad Retire-
ment Board benefits and the indictment charged that following her
mother's death, Asset received and forged her mother's signature on
the benefits checks which the Railroad Retirement Board had mistak-
enly issued and sent to her mother.
2
The agreement set forth the maximum penalties for a
violation of 18 U.S.C. § 495, as well as an acknowledgment that
the court could order restitution under the Victim and Witness
Protection Act (VWPA), 18 U.S.C. § 3663, and provided:
The defendant acknowledges that for a thirty-year period
following the death of her mother, Aline Ford, the Railroad
Retirement Board continued to pay widow's benefits on a
monthly basis to her mother. The defendant further acknowl-
edges that the benefits wrongfully paid total $99,643.12.
The defendant agrees to tender to the government, at the time
of her guilty plea, FIFTY THOUSAND AND 00/100 ($50,000)
DOLLARS. This amount represents restitution paid to the
Railroad Retirement Board for the overpayment of widow's
benefits which may have benefited the defendant and other
family members.
2
The court, however, refused a request by the executor for a return
of the $50,000 paid by Asset as restitution under the terms of the
plea agreement. Relying on United States v. Dudley, 739 F.2d 175
(4th Cir. 1984), and United States v. Cloud, 921 F.2d 225 (9th Cir.
1990), the district court reasoned that restitution paid to the
victim of a crime is predominately compensatory in nature rather
than penal and, thus, should not abate upon the death of the
defendant. According to the court, "[s]ince [Asset] had not been
sentenced, the defendant was not being punished, as only the Court
can impose punishment by way of sentencing, but was agreeing to
compensate her victim." The district court concluded, therefore,
that the rule of abatement did not require a return of the $50,000
payment. Asset's executor appeals.
The issue presented on this appeal is whether the trial judge,
whom the parties agree properly abated the criminal proceeding
against Asset following her death, erred in denying appellant's
request for return of the $50,000 paid by Asset under the plea
agreement. Finding no error, we affirm.
II.
ANALYSIS
It is well established in this circuit that the death of a
criminal defendant pending an appeal of his or her case abates, ab
initio, the entire criminal proceeding. See United States v.
Schuster, 778 F.2d 1132, 1133 (5th Cir. 1985); United States v.
Pauline, 625 F.2d 684, 684-85 (5th Cir. 1980); see also United
States v. Moehlenkamp, 557 F.2d 126, 127-28 (7th Cir. 1977) (death
3
of defendant during pendency of appeal of right from final judgment
of conviction deprives accused of right to appellate decision and
requires vacating of conviction and dismissal of indictment);
Crooker v. United States, 325 F.2d 318, 320 (1963) ("[T]he death of
a defendant produces an abatement of the `cause,' the `action,' the
`judgment,' and the `penalty', and not simply of the status or
stage which has been reached at the time of death."). This princi-
ple of abatement derives, in part, from the premise that
when an appeal has been taken from a criminal conviction
to the court of appeals and death has deprived the ac-
cused of his right to [an appellate] decision, the inter-
ests of justice ordinarily require that he not stand
convicted without resolution of the merits of his appeal,
which is an "integral part of [our] system for finally
adjudicating [his] guilt or innocence." Griffin v.
Illinois, 351 U.S. 12, 18, 76 S. Ct. 585, 590, 100
L.Ed. 891 (1956).
Moehlenkamp, 557 F.2d at 128. See also United States v. Oberlin,
718 F.2d 894, 896 (9th Cir. 1983) (death of criminal defendant
pending appeal of right will abate prosecution); Dudley, 739 F.2d
at 176 n.1 ("The total, permanent and unalterable absence of the
defendant prevents prosecution of the appeal which in the interests
of justice an accused must be allowed to follow through to conclu-
sion.").
A further premise of the abatement principle is that the
purposes of criminal proceedings are primarily penal -- the indict-
ment, conviction and sentence are charges against and punishment of
the defendant -- such that the death of the defendant eliminates
that purpose. United States v. Morton, 635 F.2d 723, 725 (8th Cir.
1980). This court has explained the rule of abatement as follows:
4
When a defendant dies pending direct appeal of his crimi-
nal conviction it for many years has been the unanimous
view of the lower federal courts and the vast majority of
state courts that not only the appeal but also all pro-
ceedings had in the prosecution from its inception are
abated. In years past, we followed that rule of abate-
ment ab initio: we dismissed the appeal and remanded to
the District Court with directions to vacate the judgment
and dismiss the indictment. Abatement of the entire
course of the proceedings has several significant ef-
fects: if the sentence included a fine, abatement ab
initio prevents recovery against the estate and, ulti-
mately, the heirs; the abated conviction cannot be used
in any related civil litigation against the estate; and
arguably the family is comforted by restoration of the
decedent's "good name."
Pauline, 625 F.2d at 684-85.
Though Pauline, as well as most abatement cases, addresses
abatement of criminal proceedings in the event of a criminal
defendant's death during the pendency of an appeal, the rule of
abatement applies equally to cases in which a defendant, such as
Asset, dies prior to the entry of judgment. Cf. Oberlin, 718 F.2d
at 896 (abatement applied where death occurred after conviction,
but before appeal was perfected). The question here, though, is
whether this rule of abatement extends to voluntary restitutionary
payments by a criminal defendant prior to the entry of judgment
and, if not, whether some other principle of law, contract or
otherwise, operates to require the return of such payment.
While the oft-repeated statement in these cases that the death
of a criminal defendant abates ab initio the entire criminal
proceeding might be read to dictate an unconditional and complete
return to the status quo ante-indictment, the principle of abate-
ment has not been so applied. Rather, the courts have consistently
interpreted the abatement principle to apply only to penal aspects
5
of the criminal proceeding. Obviously, the death of the defendant
abates any unserved portion of a prison term, as well as any parole
terms or terms of supervised release. See, e.g., Dudley, 739 F.2d
at 176 n.2 ("That abatement of a sentence to the penitentiary would
occur is too obvious to require more than the barest mention.").
Moreover, uncollected fines imposed against the criminal defendant
likewise abate upon death. See, e.g., Schuster, 778 F.2d at 1133
(death of defendant pending appeal abated criminal proceedings;
"[w]ith abatement of the criminal proceedings, that fine is no
longer collectible and the security for its payment must be re-
leased"); Pauline, 625 F.2d at 684 ("[I]f the sentence included a
fine, abatement ab initio prevents recovery against the estate and,
ultimately, the heirs."); cf. Oberlin, 718 F.2d at 896 (forfeiture
aspect of defendant's conviction, being essentially penal, abated
along with remainder of defendant's criminal conviction). Indeed,
the Eighth Circuit, in Morton, supra, extended the principle of
abatement to a case in which death occurred following conviction
and appeal, but prior to the government's collection of the fine
imposed againt the defendant as part of his sentence. Morton, 635
F.2d at 725. The court there, noting first that "death of a
defendant abates the penalty," id., reasoned that because "the
death of the defendant forestalls further punishment, [and because]
an uncollected fine in a criminal case is comparable to the balance
of the defendant's prison sentence[,] the uncollected fine, like
the remaining sentence, abates with death," id.
6
Though the Morton court "refused to speculate on the outcome
of cases involving partially enforced fines," id. at 725 n.2, the
district court in United States v. Bowler, 537 F. Supp. 933 (N.D.
Ill. 1982), resolved that while the uncollected portion of a fine
imposed against the defendant was abated upon his death following
his conviction and appeal, that portion of the fine which defendant
had paid prior to his death did not abate. The court explained:
[T]he rationale for the principle of abatement is that an
indictment, conviction and sentence are charges against
and punishment of the defendant and if the defendant is
dead, there no longer is a justification for them. Thus,
where a criminal defendant dies pending appeal of his
conviction or dies before a fine is collected, the prin-
ciple of abatement applies.
Id. at 936 (emphasis supplied). The principle of abatement,
however, "does not apply to fines already paid, since the purposes
of the fines were served insofar as they denied defendant some of
his resources before his death." Id. at 936 n.5. While a number
of courts have addressed the applicability of abatement principles
to fines, only one court has directly addressed the effect of a
defendant's death on an order of restitution. In Dudley, supra, a
defendant, convicted of unlawful use of food stamp coupons, was
sentenced to a term of imprisonment, with a special parole term,
and ordered to pay a fine. Additionally, the court's sentence
included an order that the defendant pay restitution to the Depart-
ment of Agriculture pursuant to the Victim and Witness Protection
Act (VWPA), 18 U.S.C. § 3663. Dudley, 739 F.2d at 176. Upon the
death of the defendant during the pendency of his appeal, his
attorney moved for abatement of the criminal proceeding. The
7
Dudley court extinguished the imposition of the prison term, the
levy of the fine and the special parole term because these sanc-
tions were "purely penal." Id. The court held, though, that the
restitution order did not abate by reason of the defendant's death.
"Restitution," being a payment to compensate the victim of the
crime, was in that court's view distinguishable from "forfeiture"
or other penalties, which are intended solely to punish the of-
fender. Id. at 177. The court reasoned:
In [this] case . . . we are talking about restitution of
property owned by or owing to another which normally
would be recoverable in civil litigation. The argument
that impositions of penalties in criminal cases have
heretofore always been abated on death of the accused,
even a fully convicted accused who has not yet paid a
fine or forfeiture, grows out of the consideration that
punishment, incarceration, or rehabilitation have hereto-
fore largely been the exclusive purposes of sentences and
so ordinarily should be abated upon death for shuffling
off the mortal coil completely forecloses punishment,
incarceration, or rehabilitation, this side of the grave
at any rate.
It is an old and respected doctrine of the common law
that a rule ceases to apply when the reason for it[]
dissipates.
Id.
In a somewhat different context, the Ninth Circuit in Cloud,
supra, rejected a defendant's challenge to a part of his sentence
which stated that the unpaid balance of restitution payments
ordered by the court under the VWPA would become due upon death.
The defendant objected that this provision violated former 18
U.S.C. § 3565(h) (repealed) which provided that an "obligation to
pay a fine or penalty ceases upon the death of the defendant."
Cloud, 921 F.2d at 226. The court, however, found that this "cease
8
upon death" provision applied only to fines or penalties imposed by
the government and retained by the government and did not apply to
cancel restitution payments outstanding at death. Id. at 227. The
court reasoned that since "a significant objective of the VWPA is
providing full compensation to victims," id. at 226, then applying
this "cease upon death" provision would create the possibility of
frustating the compensatory goals of the VWPA: "A person such as
Cloud might die with a wealthy estate leaving the victims of his
crime uncompensated, and his heirs the recipients of wrongly
obtained funds." Id. at 227.
The government contends that the district court properly
applied the rationale of Dudley and Cloud to the facts of the case
at bar and correctly concluded that Asset's payment of restitution
was compensatory and thus was not subject to the rule of abatement.
Appellant insists, however, that the district court's reliance on
these cases, and in particular on Dudley, was misplaced. First,
according to appellant, Dudley was wrongly decided since that
court's decision to require the payment of restitution despite the
abatement of the underlying criminal prosecution was obviously
penal and not compensatory. Secondly, appellant maintains, the
rationale of Dudley has been undermined by subsequent decisions of
both the Fourth Circuit and the United States Supreme Court which,
although not abatement decisions, have characterized restitution as
being primarily penal in nature.3 Appellant thus reasons that
3
The basis for this argument is the Supreme Court's deci-
sion in Kelly v. Robinson, 479 U.S. 36, 107 S. Ct. 353, 93
L.Ed.2d 216 (1986), which was cited by the Fourth Circuit in
9
since restitution is penal in nature, then restitution should be
accorded no different treatment than other types of criminal
penalties, which are abated upon the death of the offender. The
court, however, disagrees.
There is little doubt that, regardless of its form or primary
purpose, any form of restitution will have both compensatory and
penal aspects. See Cloud, 921 F.2d at 226 (restitution payments
authorized under VWPA have both penal and compensatory aspects).
However, if the principal objective of the restitution payment is
"to restore the victim to his or her prior state of well-being," as
is the case with restitution authorized under the VWPA, then the
payment may be appropriately categorized as "compensatory," rather
United States v. Bruchey, 810 F.2d 456 (4th Cir. 1987), as
holding that "because criminal restitution orders serve predomi-
nately `penal' objectives, the obligation is not dischargeable in
bankruptcy." Id. at 460 n.*. Although appellant is correct in
his statement that Kelly speaks in terms of criminal restitution
as having penal aspects, appellant apparently ignores the fact
that Kelly, in contrast to the instant case, dealt with court-
ordered restitution which formed part of the defendant's sen-
tence. Moreover, the Supreme Court noted specifically that the
reasoning behind its decision was its conclusion that the resti-
tution order at issue in that case, which was not ordered pursu-
ant to the VWPA but rather pursuant to a Connecticut statute, was
not "for the benefit of the victim," since the Connecticut
statute under which the obligation was imposed "[did] not require
imposition of restitution in the amount of the harm caused [but]
[i]nstead, . . . provide[d] for a flexible remedy tailored to the
defendant's situation." Kelly, 107 S. Ct. at 362. Here, how-
ever, the restitution paid by Asset was specifically acknowledged
by her in the plea agreement as representing "the overpayment of
widow's beneifits which may have benefited the defendant and
other family members." In contrast to Kelly, the obligation to
pay restitution in this case was obviously intended to benefit
the victim of the defendant's crime -- i.e., the Railroad Retire-
ment Board. Thus, aside from the fact that Kelly was not an
abatement case, the facts of that case render it inapposite with
respect to this court's resolution of the issues presently before
it.
10
than penal. See Dudley, 739 F.2d at 177 (order of restitution
under VWPA, even if in some respects penal, has predominately
compensatory purpose of reducing adverse impact on victim). In
United States v. Rochester, 898 F.2d 971 (5th Cir. 1990), this
court explained that restitution may be compensatory, or it may be
more in the nature of a penalty or fine, depending on the purpose
for which the obligation is imposed.
The restitution imposed pursuant to the VWPA . . . is not
in the nature of a fine. Rather, the purpose of the VWPA
is "to ensure that wrongdoers, to the degree possible,
make their victims whole." [United States v.]Hughey, 877
F.2d [1256,] 1261 [(5th Cir. 1989)]. This purpose is
effectuated by the payment of the fine to the victim
rather than the Government.
Rochester, 898 F.2d at 983.4
It seems reasonably clear in the case at bar that the predomi-
nate purpose for Asset's payment of $50,000 pursuant to the plea
agreement was to compensate the Railroad Retirement Board, at least
in part, for losses sustained as a result of her conduct. Indeed,
as noted previously, the plea agreement specifically recited that
the $50,000 was payable to the Railroad Retirement Board "for the
overpayment of widow's benefits which may have benefited the
defendant and other family members."5 As such, the restitution
4
At issue in Rochester was whether prejudgment interest
was properly included in an award of restitution under the VWPA.
Rochester, 898 F.2d at 982.
5
The district court found that although Asset's $50,000
check was made out to the United States Department of Justice and
was given by Asset to a United States Attorney, the funds were
actually turned over to the Railroad Retirement Board. Appellant
maintains that since the check was made payable to the Department
of Justice, and since there is no evidence that it was submitted
to the Board, it must be presumed that the government, and not
11
obligation assumed by Asset under the plea agreement is, in pur-
pose, no different than restitution authorized under the Victim and
Witness Protection Act.
This court is in accord with the view espoused in Dudley,
which involved VWPA-ordered restitution, that unless the goal of
restitution is to punish the defendant, then principles of abate-
ment simply do not apply. To reiterate, death of a criminal
defendant abates any penalty because "death forestalls further
punishment." Morton, 635 F.2d at 725. And, the estate should not
be made to suffer the punishment meted out to the defendant. In
sum, "once the defendant is dead, there is no longer a justifica-
tion for the [punishment]." Bowler, 537 F. Supp. at 935 (relying
on Morton, 635 F.2d at 727). Where restitution is intended to
compensate the victim, rather than being imposed solely to penalize
the defendant, the defendant's death does not affect that purpose;
the justification for such restitution survives the defendant's
death. And, in the court's view, requiring that restitution be
the victim, actually received the money. It follows, according
to appellant, that the payment was penal in nature, i.e., akin to
a criminal fine.
This court reviews for clear error the district court's finding
that Asset's restitution payment was disbursed to her victim. "A
finding of fact is not clearly erroneous if it is plausible in
light of the record viewed in its entirety." United States v.
Sherrod, 964 F.2d 1501, 1506 (5th Cir. 1992), cert. denied, 61
U.S.L.W. 3620, 122 L.Ed.2d 791 (1993) (citing Anderson v. Besse-
mer City, 470 U.S. 563, 573-76, 105 S. Ct. 1504, 1511-12, 84
L.Ed.2d 518 (1985)). Here, though Asset's check was made out to
the government, her plea agreement provided that the $50,000 was
to be paid to the Railroad Retirement Board for its overpayment
of widow's benefits. Viewing the record in its entirety, the
district court's conclusion that the money was disbursed to the
Board is plausible and, therefore, will not be upset on appeal.
12
paid in that circumstance would not undermine the purposes of
abatement since the goal of the payment is not to punish the
defendant, or his estate, but to restore the victim's losses.
Ultimately, however, given the facts of this case, classifica-
tion of Asset's payment as penal or compensatory is not even
necessary, for even an obligation construed as a penalty would not,
if paid by the defendant prior to her death, be subject to being
returned to the defendant's estate. The rule of abatement has
never been applied to require the return of money paid by a defen-
dant prior to his death and has, in fact, been held inapplicable to
fines -- obviously penal -- paid by a defendant before his death.
See, e.g., Morton, 635 F.2d at 735 (purposes of fines were served
where defendant was denied some of his resources prior to death);
Crooker, 325 F.2d at 321 (same). It is manifest that the purpose
intended to be served by this restitution payment -- compensation
of the Railroad Retirement Board for losses caused by Asset --
would be served by permitting the Board to retain this compensa-
tion. Abatement principles provide no bar to the Board's retention
of the $50,000.
However, resolution of the abatement issue does not end the
court's inquiry as appellant has advanced an alternative basis for
recovery of the $50,000 payment by Asset. Appellant argues that
the parties' rights and obligations under the plea agreement must
be analyzed under principles of contract law, which, appellant
maintains, dictate that the money paid pursuant to the plea agree-
ment be returned to Asset's estate. According to appellant, the
13
plea agreement between Asset and the government is to be viewed as
nothing more than an executory contract which, on account of
Asset's death, was never fully performed by the government. And,
since the government never performed its obligation under the plea
agreement, which was to request that eight counts of the indictment
against Asset be dismissed at sentencing, Asset's estate is enti-
tled to recover any performance rendered by her prior to her death.
Both state and federal courts have consistently recognized the
analogy which private contracts provide in the construction of plea
agreements.6 "The application of contract law to plea agreements
6
See, e.g., United States v. Escamilla, 975 F.2d 568, 570
(9th Cir. 1992) ("Plea bargains are contractual in nature and
must be measured by contract law principles."); United States v.
Robison, 924 F.2d 612, 613 (6th Cir. 1991) ("Plea agreements are
contractual in nature. In interpreting and enforcing them, we
are to use traditional principles of contract law."); United
States v. Sophie, 900 F.2d 1064, 1071 (7th Cir.), cert. denied,
498 U.S. 843, 111 S. Ct. 124, 112 L.Ed.2d 92 (1990) ("Plea
agreements--and, logically, the sentence and immunity agreements
that make up the alleged plea agreement in this case--are con-
tracts, . . . and determining the existence and meaning of such
contracts is governed by ordinary principles of offer and accep-
tance . . . ."); Stokes v. Armontrout, 851 F.2d 1085, 1089 (8th
Cir. 1988), cert. denied, 488 U.S. 1019, 109 S. Ct. 823, 102
L.Ed.2d 812 (1989) (once defendant enters guilty plea, contract
principles often provide useful means by which to analyze the
enforceability of plea agreement); United States v. Gonzalez-
Sanchez, 825 F.2d 572, 578 (1st Cir.), cert. denied, 484 U.S.
989, 108 S. Ct. 510, 98 L.Ed.2d 508 (1987) (when defendant enters
into a plea agreement with the government, contractual principles
apply insofar as they are relevant in determining what the
government owes the defendant); United States v. Harvey, 791 F.2d
294, 300 (4th Cir. 1986) ("In the process of determining whether
disputed plea agreements have been formed or performed, courts
have necessarily drawn on the most relevant body of developed
rules and principles of private law, those pertaining to the
formation and interpretation of commercial contracts."); State
v. Morales, 804 S.W.2d 331, 332 (Tex. Ct. App. 1991) (plea
agreement is essentially a contract); Wright v. McAdory, 536 So.
2d 897, 901 (Miss. 1988) (in context of plea bargaining we rely
upon contract model; where prosecution and defense reach plea-
14
is premised on `the notion that the negotiated guilty plea repre-
sents a bargained-for quid pro quo.'" United States v. Escamilla,
975 F.2d 568, 570 (9th Cir. 1992) (quoting United States v.
Partida-Parra, 859 F.2d 629, 633 (9th Cir. 1988)). See also Mabry
v. Johnson, 467 U.S. 504, 508-09, 104 S. Ct. 2543, 2546-47, 81
L.Ed.2d 437 (1984) (referring to a plea bargain agreement which had
not been embodied in the judgment of a court as "a mere executory
agreement" and noting that because each side may obtain advantages
when the guilty plea is exchanged for sentencing concessions, "the
agreement is no less voluntary than any other bargained-for ex-
change").
In this case, the government agreed under the plea bargain
agreement that if the court accepted Asset's plea of guilty to
count 1 of the indictment, the government "would request the Court
to dismiss Counts 2 through 9 at the time of sentencing." In
contract parlance, the government's agreement to request dismissal
of eight counts of the indictment was the quid pro quo for Asset's
agreement to plead guilty and to pay $50,000 in restitution.
Obviously, the government never performed its part of this bargain
because, due to Asset's death, the proceedings never reached the
sentencing phase. Under traditional principles of contract law,
where performance on one side of a contract becomes excusably
impossible at a time when performance on the other side of the
bargain agreement and defendant relies upon agreement, prosecu-
tion is bound to its bargain); State v. Nall, 379 So. 2d 731, 733
(La. 1980) (plea bargain is contract between state and one
accused of crime).
15
contract has already been rendered, justice requires that the party
excused by impossibility either return the performance rendered or
pay its fair value. 18 Samuel Williston, Williston on Contracts §
1972 (Walter H. E. Jaeger ed., 3d ed. 1978). Indeed, where impos-
sibility has resulted in failure of the agreed consideration, there
is no principle of law
"that would give absolution from the obligations of a
contract to a party who has received from the other full
consideration for a promise which the former has become
unable to fulfill, and at the same time protect him in
the enjoyment of the consideration paid. The act of God
may properly lift from his shoulders the burden of per-
formance, but has not yet been extended so as to enable
him to keep the other man's property for nothing."
Id. at § 1974 (quoting Board of Education v. Townsend, 63 Ohio St.
514, 59 N.E. 223 (1900)).
This circuit has stated:
Plea bargaining is an accepted folkway of our crimi-
nal jurisprudence onto which some, but not all, contract
criteria have been superimposed. Analogous to promissory
estoppel, plea bargaining must have more substantiality
than mere expectation and hope. It must have explicit
expression and reliance and is measured by objective, not
subjective, standards. . . . [T]he law gives its sanction
to such bargains when they are real and not mere fig-
ments.
Johnson v. Beto, 466 F.2d 478, 480 (5th Cir. 1972). Consistent
with the Beto court's observation that not all elements of contract
law apply to plea bargain agreements, this court recently commented
in Johnson v. Sawyer, 980 F.2d 1490 (5th Cir. 1992), that
a plea agreement in a criminal case is not a contract in
the civil sense. A breach of a plea agreement may affect
such criminal matters as sentencing, withdrawal of a
plea, sentencing appeals, and the like; but the breach of
a plea agreement never generates civil remedies such as
monetary damages or specific performance. . . . [W]e
observe in passing that a plea agreement does create a
16
duty owed by the government to the defendant, and thus a
standard of care, the breach of which might constitute a
tort under the right circumstances.
Id. at 1501.
In the case at bar, appellant has requested neither monetary
damages nor specific performance nor, for that matter, any other
remedy as a result of the government's inability to fulfill its
obligation under the plea agreement. As the above cases suggest,
traditional principles of contract law are not strictly applicable
to plea agreements. Rather, contract principles are generally
invoked to hold the government to its obligations under a plea
agreement so that the defendant will not suffer prejudice as a
result of his or her reliance on it. See Santobello v. New York,
404 U.S. 257, 260, 92 S. Ct. 495, 498, 30 L.Ed.2d 427, 432 (1971)
("[W]hen a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be part of
the inducement or consideration, such promise must be fulfilled.").
That is, the government is not permitted to breach its part of a
plea agreement in such a way that frustrates the defendant's
reasonable expectations under the plea agreement. See United
States v. Chagra, 957 F.2d 192, 194 (5th Cir. 1992) ("`[T]he
government's conduct [must be] consistent with what [was] reason-
ably understood by the defendant when entering [his] plea of
guilty.'" (quoting United States v. Huddleston, 929 F.2d 1030, 1032
(5th Cir. 1992))). Surely in this case, Asset reasonably expected
that when the date for sentencing arrived, the government would
request that the court dismiss the remaining eight counts of the
17
indictment.7 However, she was not deprived of any bargained-for
exchange as a result of any breach by the government, but rather as
the result of the fortuity of her death prior to sentencing.
Moreover, Asset's death prior to sentencing obviated any possible
prejudice in terms of the government's performance8 so that, in
this unusual circumstance, resort to contract principles to protect
the defendant's reasonable expectations is unnecessary and, in the
court's opinion, unwarranted.9
III.
CONCLUSION
For the reasons set forth above, the judgment of the district
court is AFFIRMED.
7
It should be noted, though, that Asset agreed in the plea
agreement that she understood that the court was not bound to
dismiss any count. In this regard, compare the decision in
Chagra, supra, in which this court concluded that it was not
reasonable for a defendant to have understood, based on a state-
ment in his plea agreement that the government would recommend a
reduction in his co-conspirator's sentence, that the district
court was required to reduce the co-conspirator's sentence,
because, "[a]lthough the Government may recommend a particular
sentence, such recommendation [is] not . . . binding upon the
court." Chagra, 957 F.2d at 195 (citations and internal quota-
tions omitted).
8
Appellant argues that Asset's estate will be prejudiced if
it is unable to obtain a return of Asset's restitution payment. In
the court's opinion, however, the estate, aside from the fact that
it was not a party to the plea agreement, clearly has not been
deprived of any bargained-for exchange under the plea agreement.
It simply cannot be reasonably contended that Asset's estate had
any expectation interest that was thwarted by the government's
actions and which would require the application of contract princi-
ples to be made whole.
9
Indeed, ironically, under the abatement principles dis-
cussed supra, all of the counts of the indictment were dismissed
as a result of Asset's death.
18