United States v. Raymond

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 24, 2010
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellant,
No. 09-2101
v. (D.C. No. 1:07-CR-00748-MCA-2)
(D. N.M.)
BENJAMIN RAYMOND,

Defendant - Appellee.

ORDER AND JUDGMENT*

Before HENRY, EBEL and GORSUCH, Circuit Judges.

The United States appeals the district court’s decision to dismiss an indictment

charging Defendant-Appellee Benjamin Raymond with several violent crimes allegedly

undertaken as part of his membership in the Aryan Brotherhood. The district court

dismissed the indictment after finding that an earlier plea agreement between Raymond

and the United States precluded the United States Attorney’s Office for the District of

New Mexico from pursuing these charges. Having jurisdiction pursuant to 18 U.S.C.

§ 3731, we AFFIRM in part, REVERSE in part, and REMAND this case to the district

court.

*This order and judgment is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
 I. FACTUAL BACKGROUND

This appeal involves two federal criminal prosecutions.

A. Raymond’s 2003 federal prosecution for being a previously convicted felon in
possession of a firearm

In October 2003, a federal grand jury in New Mexico indicted Raymond on one

count of being a previously convicted felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924(a)(2). This charge stemmed from an incident occurring on

June 29, 2002, when Albuquerque police officers arrested Raymond and another

individual, Josie Robinson, for trying to buy a car using fraudulent checks. Raymond and

Robinson were an unlikely pair to find together because, one week earlier, Robinson had

reported to officers from the nearby Rio Rancho, New Mexico, police department that her

boyfriend, Henry George, was missing and that she suspected Raymond and his

associates, Travis Dally and Bradley Wasson, of foul play. At the time of his June 29

arrest by Albuquerque police, Raymond, a previously convicted felon, was found in

possession of two firearms. This led to Raymond’s 2003 federal prosecution for being a

felon in possession of a firearm.

To resolve that case, Raymond entered into a plea agreement with the United

States on October 14, 2004. Pursuant to the agreement, Raymond pled guilty to the

single charged offense, in exchange for the Government’s promise that:

10. Provided that the defendant fulfills his obligations as set out above, . . .

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 a. The United States will not bring additional charges against the defendant
arising out of the defendant’s conduct now known to the United States
Attorney’s Office for the District of New Mexico.

11. This agreement is limited to the United States Attorney’s Office for the
District of New Mexico [“USAO”] and does not bind any other federal,
state, or local agencies or prosecuting authorities.

(Aplt. App. at 44.) The district court sentenced Raymond to fifteen years in prison.

B. Raymond’s 2007 federal prosecution for a weapons offense and violent crimes
committed in aid of racketeering

In 2007, a federal grand jury in New Mexico charged Raymond and three others,

Bradley Wasson, Travis Dally and Jeremiah Looney, with weapons offenses and violent

crimes committed in aid of racketeering. The controlling superseding indictment

specifically alleged the following: Bradley Wasson was the head of one faction of the

Aryan Brotherhood in New Mexico. Raymond, Dally and Looney were members or

prospective members of Wasson’s Aryan Brotherhood faction. A prospective member is

one who is serving a probationary period, but who is nevertheless “considered part of the

Aryan Brotherhood family.” (Id. at 18.) The Aryan Brotherhood engages in racketeering

activity, such as “acts of violence, and other criminal activities, including murder,

kidnapping, attempted murder, conspiracy to manufacture/distribute narcotics and

firearms trafficking,” as well as identity theft and check fraud, which “are the most

prevalent non-violent crimes committed by the Aryan Brotherhood.” (Id. at 15, 17.)

The superseding indictment further alleged that, in order “to advance the status of

the Aryan Brotherhood” (id. at 23), as well as their own positions within that

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organization, Wasson, Raymond and Dally conspired to kidnap and murder Henry

George, another Aryan Brotherhood prospect, because he had contacted police. And one

of the rules of the Aryan Brotherhood is “that any member assisting law enforcement

authorities must be killed.” (Id. at 21.) Therefore, according to the indictment, Wasson,

Dally and Raymond went to George’s apartment in Rio Rancho, New Mexico, on June

20, 2002, and assaulted George until he confessed to contacting police. Wasson then

ordered that George be killed. Members of the Aryan Brotherhood “are required, when

ordered, to kill without hesitation. Members who do not fulfill their obligations to the

Aryan Brotherhood are themselves subject to violent acts, to include murder.” (Id. at 18.)

Pursuant to Wasson’s order, Dally and Raymond took George to a remote area of Rio

Rancho, New Mexico, killed him and buried his body in the desert.

The indictment also alleged that, in order to prevent John Mudersbach, another

Aryan Brotherhood prospect, from talking to police about George’s murder, Dally and

Raymond later ordered Brotherhood member Jeremiah Looney to murder Mudersbach.

Looney tried to kill Mudersbach, but failed to do so.

Based upon these allegations, the federal grand jury charged Wasson, Dally and

Raymond with four counts of committing violent crimes in furtherance of racketeering

activity in connection with George’s murder: Count 1, conspiring to murder George, in

violation of 18 U.S.C. § 1959(a)(5); Count 2, murdering George, in violation of 18

U.S.C. § 1959(a)(1) and 18 U.S.C. § 2; Count 4, conspiring to kidnap George, in

violation of § 1959(a)(5); and Count 5, kidnapping George, in violation of § 1959(a)(1)
4
and 18 U.S.C. § 2.1 The grand jury also charged several weapons offenses: Count 3

charged Wasson, Dally and Raymond with carrying and using a firearm in relation to a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (j)(1).2 And Count 6

1
18 U.S.C. § 1959 provides, in pertinent part:

(a) Whoever, as consideration for the receipt of, or as consideration for a
promise or agreement to pay, anything of pecuniary value from an
enterprise engaged in racketeering activity, or for the purpose of gaining
entrance to or maintaining or increasing position in an enterprise engaged
in racketeering activity, murders, kidnaps, maims, assaults with a
dangerous weapon, commits assault resulting in serious bodily injury upon,
or threatens to commit a crime of violence against any individual in
violation of the laws of any State or the United States, or attempts or
conspires so to do, shall be punished --

(1) for murder, by death or life imprisonment, or a fine under
this title, or both; and for kidnapping, by imprisonment for
any term of years or for life, or a fine under this title, or both;
....

(5) for attempting or conspiring to commit murder or
kidnapping, by imprisonment for not more than ten years or a
fine under this title, or both . . . .

18 U.S.C. § 2 further provides: “(a) Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or procures its commission, is
punishable as a principal,” and “(b) [w]hoever willfully causes an act to be done which if
directly performed by him or another would be an offense against the United States, is
punishable as a principal.”
2
Section 924 provides, in pertinent part, that

any person who, during and in relation to any crime of violence . . . for
which the person may be prosecuted in a court of the United States, uses or
carries a firearm, . . . shall, in addition to the punishment provided for such
crime of violence . . . if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
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charged only Wasson with being a felon found in possession of a firearm on the day

following George’s murder. Finally, Counts 7 and 8 charged Raymond, Dally and

Looney with committing two additional violent crimes in furtherance of racketeering

activity: conspiring and attempting to murder Mudersbach, in violation of 18 U.S.C. §§ 2,

1959(a)(5). The superseding indictment also alleged that there existed “SPECIAL

FINDINGS,” see 18 U.S.C. §§ 3591-92, that would make Wasson, Dally or Raymond

eligible for a death sentence if a jury convicted them, under 18 U.S.C. § 1959(a)(1), of

murdering George in furtherance of racketeering activity, or of carrying a firearm in

furtherance of a violent crime causing death, in violation of 18 U.S.C. § 924(c)(1)(A)(iii)

and (j)(1).

Raymond moved for the dismissal of all of the counts the superseding indictment

charged against him, asserting that the USAO knew about his conduct underlying these

offenses at the time the USAO previously entered into the plea agreement with him to

resolve the 2003 felon-in-possession charge, which plea agreement promised that the

USAO would not bring additional charges against him “arising out of the defendant’s

conduct now known to the United States Attorney’s Office for the District of New

Mexico” (Aplt. App. at 44). After conducting an evidentiary hearing, the district court

18 U.S.C. § 924(c)(1)(A)(iii). But “[a] person who, in the course of a violation of
subsection (c), causes the death of a person through use of a firearm, shall—(1) if the
killing is a murder . . . , be punished by death or imprisonment for any terms of years or
for life.” Id. § 924(j)(1).

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agreed with Raymond. The court, therefore, dismissed the superseding indictment

against him, but without prejudice “[b]ecause the plea agreement in [Raymond’s 2003

federal felon-in-possession case] does not bind state or federal agencies other than the

USAO for the District of New Mexico [and so] the dismissal of these charges does not

necessarily preclude similar charges brought by another agency.” (Id. at 173.) The

United States appeals. See 18 U.S.C. § 3731.

II. STANDARD OF REVIEW

This court generally “review[s] the district court’s dismissal of an indictment for

an abuse of discretion.” United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006); see

also United States v. La Cock, 366 F.3d 883, 888 (10th Cir. 2004). “Abuse of discretion

is established if the district court’s [dismissal] is based upon an error of law or a clearly

erroneous finding of fact.” United States v. Lin Lyn Trading, Ltd., 149 F.3d 1112, 1116-

17 (10th Cir. 1998) (quotation, alteration omitted).

This court will “review de novo a claim that the government has breached a plea

agreement.” United States v. Villa-Vazquez, 536 F.3d 1189, 1196 (10th Cir. 2008); see

also Allen v. Hadden, 57 F.3d 1529, 1534 (10th Cir. 1995) (“Whether government

conduct has violated a plea agreement presents a question of law we review de novo.”).

This court will review for clear error, however, any underlying factual findings. See

United States v. Elashyi, 554 F.3d 480, 501 (5th Cir. 2008), cert. denied, 130 S. Ct. 57,

61, 363 (2009). In doing so, we “construe the evidence in the light most favorable to the

7
district court’s ruling.” United States v. Winder, 557 F.3d 1129, 1133 (10th Cir.), cert.

denied, 129 S. Ct. 2881 (2009).

“[R]eview under the ‘clearly erroneous’ standard is significantly deferential.”

Concrete Pipe and Prods. of Calif., Inc. v. Constr. Laborers Pension Trust for S. Calif.,

508 U.S. 602, 623 (1993). Importantly,

[i]t is not the role of an appellate court to retry the facts, because the
[district] court . . . has the exclusive function of appraising credibility,
determining the weight to be given testimony, drawing inferences from the
facts established, and resolving conflicts in the evidence. That the record
supports a view of the evidence that is permissible but contrary to the trial
court’s findings is not sufficient to warrant upsetting the lower court’s
findings. Instead, findings of fact are clearly erroneous when they are
unsupported in the record, or if after our review of the record we have the
definite and firm conviction that a mistake has been made.

Holdeman v. Devine, 572 F.3d 1190, 1192 (10th Cir. 2009) (quotations, citations,

alterations omitted).

Raymond bore the burden of proving, by a preponderance of the evidence, “the

underlying facts establishing” that the Government breached the plea agreement.

Cunningham v. Diesslin, 92 F.3d 1054, 1059 (10th Cir. 1996).

III. DISCUSSION

“Where the Government obtains a guilty plea which is predicated in any

significant degree on a promise or agreement with the U.S. Attorney, such promise or

agreement must be fulfilled to maintain the integrity of the plea.” United States v.

Bullcoming, 579 F.3d 1200, 1205 (10th Cir. 2009) (quotation omitted); see also

Santobello v. New York, 404 U.S. 257, 262 (1971). While courts rely on general
8
contract law when interpreting a plea agreement, see Bullcoming, 579 F.3d at 1205; see

also Puckett v. United States, 129 S. Ct. 1423, 1430 (2009), such an agreement,

nevertheless, “is not simply a contract between two parties. It necessarily implicates the

integrity of the criminal justice system.” Villa-Vazquez, 536 F.3d at 1199 (quotation

omitted). As such, a plea agreement is also “a matter of constitutional due process,” and

“an amalgam of constitutional, supervisory, and private contract law concerns.” Id.

(quotations omitted). Thus, “the government has a heightened responsibility that extends

beyond the plea negotiation to all matters relating to the plea agreement.” Id. (quotation,

alteration omitted).

A defendant waives numerous constitutional rights when he enters into a
plea agreement with the government. As part of this bargain, the
government must stay faithful to its promises to the defendant. Where . . .
the government falls short of its promise, a correction is required to
preserve the integrity of the criminal justice process, and the public’s faith
in this integrity.

United States v. Cudjoe, 534 F.3d 1349, 1357 (10th Cir. 2008) (quotation, citations,

alterations omitted).

A. Whether the United States breached the 2004 plea agreement by charging
Raymond in the 2007 indictment with the five offenses stemming from
George’s murder

We address first the five charges against Raymond stemming from the

disappearance and murder of George: Counts 1, 2, 4 and 5, charging that Raymond

conspired to, and did, kidnap and murder George in furtherance of racketeering activity,

and Count 3, alleging that Raymond used and carried a firearm in relation to these

9
crimes. The district court found that the USAO knew, on or before October 14,

2004---the date on which Raymond entered into a plea agreement with the USAO

resolving the 2003 felon-in-possession charge---of Raymond’s conduct linking him to the

disappearance of Henry George. 3 The district court based that finding on several

different categories of evidence.

1. Defense Attorney Gonzales’ testimony

The district court found that “the most direct evidence” on this issue was Public

Defender Benjamin Gonzales’ testimony. (Aplt. App. at 166-67.) Gonzales represented

Raymond in the 2003 felon-in-possession prosecution. In that case, the grand jury

charged Raymond in October 2003; plea negotiations occurred beginning in April 2004;

and Raymond pled guilty to that offense on October 14, 2004. There is no dispute that,

several weeks after Raymond’s guilty plea, the assistant United States attorney

(“AUSA”) handling the case, Louis Valencia, acquired information indicating that

Raymond was a suspect in George’s disappearance. In fact, Valencia used that

information at sentencing to argue, unsuccessfully, that Raymond, who had been free on

bond, should not be allowed to surrender voluntarily, but instead should be taken into

3
In interpreting the relevant provision of the plea agreement, the district court correctly
rejected the Government’s argument that “known” meant that the Government, on
October 14, 2004, knew that Raymond had committed a particular crime, and rejected as
unreasonable the Government’s understanding that this provision in the plea agreement
was limited to the USAO’s knowledge of Raymond’s conduct underlying only the 2003-
04 felon-in-possession charge. The plea agreement’s language does not support this
interpretation urged by the Government.

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custody immediately after the sentencing hearing because “Mr. Raymond was suspected

of a murder in Rio Rancho, New Mexico.” (Id. at 543.) The question for the district

court was whether the USAO knew, before Raymond’s October 14, 2004 guilty plea, that

he was a suspect in Henry’s disappearance.

Gonzales testified, in support of Raymond’s motion to dismiss the 2007

indictment, to the following:

Q Mr. Gonzales, did there come a time in this matter when you had
a conversation with Mr. Raymond in your office about what he was likely
to be looking at on his plea of guilty to felon in possession charges?

A. Yes.

Q. Do you recall approximately when that conversation occurred?
Do you know if it was before or after his plea?

A. Oh, it was certainly before his plea.

Q. Do you recall having a conversation with Mr. Raymond about
how he could help himself by cooperating with the federal authorities?

A. Yes.

Q. Will you relate to the Court essentially what that conversation
involved?

A. I had learned from Mr. Valencia, the prosecutor, that there was an
investigation concerning a disappearance and possibly a murder in Rio
Rancho. And I don’t remember. I couldn’t quote Mr. Valencia. It’s been
too long ago.

Q. Okay.

A. But my impression was that the government was interested in my
client, Benjamin Raymond, and Mr. Valencia inquired whether Mr.

11
 Raymond would be interested in cooperating, at least talking to federal
authorities.

Q. And did you relay that interest to Mr. Raymond?

A. I did.

(Id. at 251-52.)

Based on this testimony, the district court found that the USAO knew Raymond

was suspected of being implicated in George’s disappearance and murder before

Raymond pled guilty to the felon-in-possession charge in October 2004:

The most direct evidence on this point is Mr. Gonzales’ credible testimony
that Mr. Valencia spoke to him about seeking Defendant Raymond’s
cooperation in the Rio Rancho murder investigation at some time before
Defendant Raymond entered his guilty plea. Although Mr. Gonzales could
not recall the exact date or time at which Mr. Valencia first communicated
this request for cooperation regarding the Rio Rancho murder investigation,
I find Mr. Gonzales’ testimony to be credible, and I further conclude that
someone from the USAO (e.g., Mr. Valencia) communicated to Mr.
Gonzales a request for Defendant Raymond’s cooperation in the Rio
Rancho murder investigation before Defendant Raymond entered his guilty
plea . . . on October 14, 2004.

(Id. at 166-67 (emphasis added, citations omitted).)

The Government challenges, on three bases, the district court’s finding that the

USAO knew, prior to October 14, 2004, that Raymond was a suspect in George’s

disappearance.

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 a. The district court misinterpreted Gonzales’ testimony

First, the Government argues that the district court misinterpreted Gonzales’ direct

examination testimony to indicate that Gonzales had one conversation with Raymond,

prior to his guilty plea, during which they discussed both the sentence Raymond was

“likely . . . looking at” if he pled guilty to being a felon in possession and how Raymond

might help himself by cooperating with authorities investigating George’s disappearance.

The Government argues that Gonzales’ testimony was “equivocal” and interprets it,

instead, to indicate that Gonzales spoke with Raymond about these matters during two

separate conversations: 1) The conversation Gonzales had with Raymond, before his

guilty plea, regarding “what he was likely to be looking at on his plea of guilty to felon in

possession charges”; and 2) a separate conversation with Raymond, occurring at some

unspecified time, “about how he could help himself by cooperating with the federal

authorities” investigating George’s disappearance. (Id.) Thus, the Government asserts

that the district court clearly erred in finding, based upon Gonzales’ direct examination

testimony, that AUSA Valencia had inquired whether Raymond might be interested in

talking to authorities investigating George’s disappearance , prior to his guilty plea.

Gonzales’ testimony is ambiguous. It can be read both as the district court

interpreted it and also as the Government now reads it. However,

[i]f the district court’s account of the evidence is plausible in light of the
record viewed in its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Where there are two permissible views

13
 of the evidence, the factfinder’s choice between them cannot be clearly
erroneous.

Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985). Although Gonzales’

testimony is ambiguous, we cannot conclude that the district court’s interpretation of that

testimony is implausible. See id. at 578 (upholding trial court’s factual finding,

notwithstanding that the testimony on which the court relied to make that finding was

ambiguous). Furthermore, the district court was in the best position to weigh the

credibility and demeanor of the witness. See Snyder v. Louisiana, 552 U.S. 472, 477

(2008).

b. Other witnesses contradicted Gonzales’ testimony

The United States further argues that the district court erred in relying on

Gonzales’ direct examination testimony because the testimony of several other witnesses

contradicted it. Even so, we cannot say that the district court’s decision to credit

Gonzales’ testimony over the other witnesses was clearly erroneous. 4 See La Resolana

4
The United States points to two categories of evidence that contradicted Gonzales’
testimony. First, AUSA Valencia testified that he talked to Gonzales about Raymond’s
possible cooperation with authorities investigating George’ disappearance after Raymond
had pled guilty, but before his sentencing. The district court, however, appears to have
credited instead Valencia’s later testimony that he could not “recall” any conversations he
had with Gonzales prior to Raymond’s guilty plea. Based on that testimony, the district
court found that “Mr. Valencia made a good-faith effort to recall the events concerning
his prosecution of Defendant Raymond several years ago,” but that “his recollection was
not clear enough to rebut the contrary evidence and corroborating circumstances
presented by the defense in this case.” (Aplt. App. at 174.)

The second category of evidence that may be considered to conflict with
Gonzales’ direct examination testimony—that Valencia talked to him about Raymond’s
14
Architects, PA v. Reno, Inc., 555 F.3d 1171, 1180 (10th Cir. 2009) (noting district “court

did not commit clear error simply because it chose to credit” one witness’s testimony

over another); see also United States v. DeShazer, 554 F.3d 1281, 1287 (10th Cir. 2009)

(noting district court was entitled to credit witness’s testimony). “[W]hen a trial judge’s

finding is based on his decision to credit the testimony of one of two or more witnesses,

each of whom has told a coherent and facially plausible story that is not contradicted by

extrinsic evidence, that finding, if not internally inconsistent, can virtually never be clear

error.” Anderson, 470 U.S. at 575 (noting that “only the trial judge can be aware of the

variations in demeanor and tone of voice that bear so heavily on the listener’s

understanding of and belief in what is said”).

possible cooperation with authorities investigating George’s disappearance before
October 14, 2004—was the testimony of Rio Rancho Detective Hubbard, FBI Agent
Griego and ATF Agent Jessen, from whom AUSA Valencia said he learned that
Raymond had been implicated in George’s disappearance. These three law enforcement
officers testified that they did not exchange information about George’s disappearance
and murder until at least November 2004, a few weeks after Raymond pled guilty. While
the district court found “that Special Agent Griego and Agent Jessen credibly testified
that it was not until November 2004 that they learned of Defendant Raymond’s status as
a suspect in Detective Hubbard’s investigation into Mr. George’s disappearance,” the
court further noted that “their testimony in this regard does not preclude a reasonable
inference that such knowledge reached the USAO through other, alternative channels of
communication with state and local law-enforcement officials before that date.” (Id.)
And the record supports this suggestion. It was ATF Agent Foutz, and not Jessen, who
was the ATF case agent working with Valencia to prosecute Raymond. And, although
Detective Hubbard was the Rio Rancho detective investigating George’s disappearance,
Lt. Noel Snow appears to have assisted Hubbard a great deal, at least initially. So there
were a number of officers investigating the murder who did not testify, and so did not
deny giving the USAO information, before October 14, 2004, that authorities suspected
that Raymond was involved in Henry’s disappearance.

15
 c. Whether Gonzales later contradicted his direct examination
testimony

Lastly, the United States argues that the district court clearly erred in relying on

Gonzales’ direct examination testimony because it was “internally inconsistent”; that is,

Gonzales’ later testimony contradicted his direct examination testimony on which the

district court relied. On cross-examination, Gonzales testified:

Q. Do you have any notes in your file indicating when Mr. Valencia
discussed this issue with you?

A. No.

Q. So you have basically a vague recollection that you had some
sort of discussion with him?

A. I know I had that discussion with him.

(Aplt. App. at 256-57.) The Government asserts that, by this cross-examination

testimony, Gonzales indicated, contrary to the district court’s interpretation of his direct

examination testimony, that Gonzales actually had no idea when this conversation with

Valencia occurred. While this cross-examination testimony could be interpreted that

way, the district court instead interpreted it in light of Gonzales’ direct examination

testimony to indicate that the conversation Gonzales had with AUSA Valencia occurred

prior to the guilty plea, but that Gonzales was unsure of the exact date on which that

conversation occurred.

Finally, during redirect, Gonzales testified:

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 Q. And was it your understanding at the time of sentencing that the
government knew about this murder in Rio Rancho and Ben Raymond’s
involvement?

A. The reports I got from Mr. Valencia told me, of course, the
federal government knew about the murder in Rio Rancho and felt that Ben
Raymond was involved. I don’t know when the government knew that. I
didn’t have discussions with Louis Valencia --- well, I don’t know when I
had those discussions.

(Id. at 260.)

As the Government argues, Gonzales’ testimony could be understood to mean that

he did not know when---pre- or post-guilty plea---that Valencia knew Raymond was

suspected of being involved in George’s murder. Or, read in light of the district court’s

interpretation of Gonzales’ direct testimony that the prosecutor raised this issue with

Gonzales prior to Raymond’s guilty plea, Gonzales’ testimony on redirect might mean

instead that he did not know the exact date on which the government discovered this

information, but that Valencia had raised the issue with Gonzales prior to the plea

agreement. This is the interpretation the district court gave Gonzales’ testimony as a

whole, finding “that someone from the USAO (e.g., Mr. Valencia) communicated to Mr.

Gonzales a request for Defendant Raymond’s cooperation in the Rio Rancho murder

investigation before Defendant Raymond entered his guilty plea” in the 2003 felon-in-

possession case. (Id. at 167 (emphasis added).). Although Gonzales’ testimony is

ambiguous, the district court’s interpretation is plausible. Therefore, we cannot conclude

it was clearly erroneous. See Anderson, 470 U.S at 574, 578-79.

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 2. Evidence linking Raymond’s 2003 federal felon-in-possession
prosecution to the Rio Rancho Police Department’s investigation of
George’s disappearance

There is additional evidence that not only supports the district court’s

interpretation of Gonzales’ testimony, but also supports the court’s finding that the

USAO knew that Raymond was suspected in George’s disappearance before October 14,

2004. For example, based on evidence of the interconnected nature of the 2003-04 felon-

in-possession prosecution and local officials’ investigation into George’s disappearance,

the district court determined that the USAO must have been aware, prior to October 14,

2004, that Raymond had been implicated in George’s disappearance.

Thus, at the time the USAO brought the indictment against Defendant
Raymond in [the federal felon-in-possession case] on October 17, 2003,
there was a pending investigation into Mr. George’s disappearance that
necessarily involved some degree of overlap and coordination among
several state and local law-enforcement agencies, prosecutors, and
correctional authorities. All of the Defendants in the present case, as well
as [Mudersbach] and Ms. Robinson, had been detained in connection with
criminal charges in state court before that date, and thus it was necessary
for some if not all of the above agencies to coordinate with one another in
order to make decisions about where and under what conditions to detain
the above individuals, arrange for interviews while they were in custody,
identify the offenses with which to charge them and identify the proper
jurisdiction in which to charge them. Under these circumstances, it is
highly unlikely and not plausible that a federal prosecutor or law
enforcement agency could have obtained police reports regarding
Defendant Raymond’s arrest by APD officers on June 29, 2002, and related
criminal-history information necessary to bringing the charge of being a
felon in possession of a firearm on that date, without also coming across
some link to, or background information concerning, the [Rio Rancho
Police Department’s] pending investigation into Mr. George’s
disappearance and related racketeering activity attributed to the Aryan
Brotherhood.

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(Aplt. App. at 129; see also id. at 168 (“The evidence of record supports a reasonable

inference that the information concerning the nature and existence of the [Rio Rancho

Police Department’s] investigation into Mr. George’s disappearance, as well as

Defendant Raymond’s alleged involvement in that disappearance and related racketeering

activity, was readily available to Mr. Valencia, others in the USAO, the ATF case agent

in [Raymond’s felon-in-possession case], and the District Attorney’s Office before the

date of Defendant Raymond’s plea agreement in that case.”).) Thus, the district court

held that,

[w]hile there is no “smoking gun” confirming beyond doubt that the USAO
received copies of the written reports of these investigations before October
14, 2004, there is an abundance of indirect, circumstantial evidence to
support a reasonable inference that the USAO knew of the information in
such reports before that date; such indirect, circumstantial evidence is
sufficient to meet Defendant Raymond’s burden of proof on this issue.

(Id. at 169-70.)5

5
The district court bolstered its finding by noting that

[t]he cross-examination of [Rio Rancho] Detective Hubbard also revealed
that there may have been some delay in the preparation of his written
reports. For example, Detective Hubbard’s report concerning the follow-up
interview with Ms. Robinson that occurred on July 10, 2002, was not
prepared until November 12, 2004. Thus, it is reasonable to infer that
Detective Hubbard relied, at least in part, on informal oral communications
to conduct his investigation of Mr. George’s disappearance prior to the
federal involvement in November 2004, when more thorough
documentation was requested.

(Aplt. App. at 138.) This, then, might help explain why there is no written document
establishing that local authorities shared information about Raymond’s suspected
involvement in George’s disappearance before Raymond’s October 14, 2004, guilty plea.
19
 “[D]rawing reasonable inferences and conclusions from the evidence [is] within

the province of the district court.” United States v. Munoz-Nava, 524 F.3d 1137, 1145

(10th Cir. 2008) (quotation omitted). Here, the inferences the district court drew were

not clearly erroneous.

The district court premised its inference that the USAO must have known, before

October 14, 2004, that Raymond was a suspect in George’s disappearance on at least two

additional facts: 1) federal officials were working with the APD to prosecute Raymond in

2003 for being a felon in possession of a firearm; and 2) APD officers were in contact

with Rio Rancho officials, who suspected Raymond’s involvement in George’s

disappearance.

a. Evidence that federal authorities were working with APD to
prosecute Raymond, in 2003 and 2004, for being a felon in
possession of a firearm

Although the evidence before the district court did not specifically identify the

APD’s exact connection with the USAO’s prosecution of Raymond for being a felon in

possession of a firearm, it cannot be doubted that there was a definite link between the

two agencies. The federal felon-in-possession charge against Raymond originated from

the APD officers who arrested Raymond on June 29, 2002, for trying to buy a car using

fraudulent checks. After discovering that Raymond was armed at the time of his arrest,

and that he had prior felony convictions, APD officers contacted

Detective Garcia of APD Intelligence Unit . . . in regards to “Project Exile.”
As a result of this conversation, it was decided that [Defendant] Raymond
would be booked into [the Bernalillo County Detention Center] on
20
 [outstanding] felony warrants and on charges that would be forthcoming
from the U.S. Attorneys [sic] Office regarding felon in possession of a
handgun.

(Aplt. App. at 124-25.)

“Project Exile” . . . involved a series of monthly meetings between the
USAO and the District Attorney’s Office in Bernalillo County. At such
meetings, those in attendance would go over reports for the purpose of
identifying cases which warranted federal prosecution by the USAO or
further follow up by the ATF. According to Mr. Valencia, “Project Exile”
also involved instances where the local police department would call ATF
and ask them to present the case to the U.S. Attorney’s Office. In addition,
there was a Violent Crime Impact Task Force, where the ATF was
embedded into a task force that APD had. Mr. Valencia [testified] that he
was not sure whether he discussed any charges or criminal history relating
to Defendant Raymond’s arrest on June 29, 2002, with the District
Attorney’s Office, but he acknowledged that reports relating to that arrest
might have been brought to his attention during one of the “Project Exile”
meetings.

(Id. at 144-45 (quotations, citations omitted).) Valencia further testified that, although he

did not know exactly how Raymond’s felon-in-possession case came to the USAO for

prosecution, it is likely that APD officers contacted the ATF, which would have

presented the case to the USAO, where Valencia was the “firearms unit supervisor”

through whom most weapons cases were channeled. This evidence, then, clearly

established a pathway by which the USAO received from the APD the information

underlying the USAO’s felon-in-possession prosecution against Raymond.

b. Evidence that APD was in contact with Rio Rancho officials who
had identified Raymond as a suspect in George’s disappearance

The evidence before the district court also clearly established that APD knew Rio

Rancho authorities were investigating George’s disappearance; in fact, APD notified Rio
21
Rancho police at the time they arrested Raymond and Robinson, on June 29, 2002. APD

officers did so after Josie Robinson, having been arrested with Raymond, told APD

officers that she was working with Rio Rancho authorities “on a case.” (Id. at 84.) In

fact, it appears that APD Officer Power, who arrested Raymond, had a fairly detailed

conversation with Rio Rancho Lt. Noel Snow about each department’s respective

investigations involving Raymond and Robinson.6 And it is undisputed that by this time

Rio Rancho authorities had already identified Raymond as a suspect in George’s

disappearance.

Further, after discovering that APD officers had taken Raymond into custody, Rio

Rancho Detective Hubbard, who was investigating George’s disappearance, interviewed

Raymond. The district court noted that this “would have entailed some communications

with corrections officials or the agency responsible for detaining Defendant Raymond at

this time.” (Id. at 138.)

6
APD Officer Power notified Snow that APD had arrested Robinson and “her boyfriend”
Raymond “for attempting to purchase a vehicle with a fraudulent check,” and that
Robinson had told APD that she was “working with [Snow] on a case,” so Power might
want to contact Snow. (Aplt. App. at 84.) Power also told Snow that both Raymond and
Robinson were armed at the time of their arrest. Snow, in turn, told Power that
Raymond’s possession of firearms was a probation violation and a crime in light of his
prior convictions; Power was already aware of this. Snow suggested that Power “might
want to check out the validity of the temporary tag displayed on the vehicle” that
Robinson and Raymond were driving, because when Rio Rancho authorities searched
both Robinson’s and Raymond’s apartments, they “discovered and seized evidence that
would lead us to that conclusion.” (Id. at 85.) Power asked if Snow wanted to interview
either Raymond or Robinson, Snow indicated that they probably would later. When
Snow reported this to Rio Rancho Detective Hubbard, the detective wanted to interview
Robinson as soon as possible.
22
 c. Inferences the district court drew from these facts

Relying on these facts---that the USAO was working with APD officers to

prosecute Raymond for being a felon in possession of a firearm, that APD was in contact

with Rio Rancho authorities investigating George’s disappearance, and Rio Rancho

authorities identified Raymond as a suspect within days of George’s disappearance---the

district court inferred that federal authorities, prior to Raymond’s October 14, 2004,

guilty plea, must have known that he had been implicated in George’s disappearance.

Drawing inferences in the light most favorable to the district court’s determination, see

United States v. Beltran, 571 F.3d 1013, 1020 (10th Cir. 2009) (reviewing application of

a sentencing enhancement under the guidelines), we cannot say that the district court’s

inference was unreasonable or clearly erroneous. See Holdeman, 572 F.3d at 1192

(noting it is the province of the district court to draw inferences from the evidence).

3. USAO’s common practices

Providing some additional support for the district court’s interpretation of

Gonzales’ direct examination testimony and the court’s finding that the USAO knew,

before October 14, 2004, that Raymond was a suspect in George’s disappearance, the

district court took judicial notice of “Section 9-27.420 of the United States Attorney’s

Manual (rev. 1997).” (Aplt. App. at 167.) That manual section provides that, “‘[i]n

determining whether it would be appropriate to enter into a plea agreement, the attorney

for the government should weigh all relevant considerations, including . . . [t]he

defendant’s willingness to cooperate in the investigation or prosecution of others.’” (Id.)
23
Furthermore, the district court found that “[t]here is evidence suggesting that it is a

common practice of the USAO in the District of New Mexico to charge defendants who

were similarly situated with Raymond initially with gun crimes and then solicit their

cooperation before bringing additional charges or negotiating a plea agreement,” citing

the USAO’s prosecution of Wasson, Mudersbach and Robinson. (Id. at 167-68.) Based

upon this evidence, the district court noted that it would have been unusual, and contrary

to its policy, for the USAO to enter into a plea agreement with Raymond without

investigating his possible involvement in other criminal activity. While the Government

argues that the district court could just as easily have drawn contrary inferences from the

evidence, that does not warrant us finding that the inferences the district court did draw

were unreasonable or clearly erroneous. “Where there are two permissible views of the

evidence, the factfinder’s choice between them cannot be clearly erroneous.” Anderson,

470 U.S. at 574.

4. District court’s disbelief of the Government’s explanation for how the
USAO finally discovered that Raymond was a suspect in George’s
disappearance

Lastly, the district court based its finding that the USAO knew of Raymond’s

involvement in George’s disappearance before October 14, 2004, in part on the court’s

disbelief of the Government’s explanation of how AUSA Valencia discovered that

Raymond was a suspect in George’s disappearance, just a few weeks after Raymond’s

guilty plea. Valencia’s explanation was this: Within just a few weeks of Raymond’s

October 14, 2004, guilty plea, FBI Agent Griego was “cold calling” local law
24
enforcement agencies in New Mexico, asking if they had any cases involving the Aryan

Brotherhood. When he happened to call Rio Rancho Detective Hubbard, Hubbard told

Griego about the investigation into George’s disappearance. At Agent Griego’s urging,

Detective Hubbard then faxed information about the George investigation to ATF Agent

Jessen. It was ATF Agent Jessen who then forwarded this information on to AUSA

Valencia (even though ATF Agent Foutz, and not Jessen, was the case agent with whom

Valencia was working to prosecute Raymond). According to Valencia, it was only after

he received this information, following Raymond’s guilty plea, that he asked defense

attorney Gonzales if Raymond might be interested in cooperating with authorities

investigating George’s disappearance.

The district court found this story of how the USAO discovered that Raymond was

a suspect in George’s disappearance, by happenstance and within just a few weeks of

Raymond’s guilty plea, to be too coincidental:

To draw the . . . inference that the USAO did not know anything
about the various pending investigations by state and local officials with
regard to Ms. Robinson, Defendant Raymond, their alleged involvement in
Mr. George’s disappearance, and Defendant Raymond’s association with
the racketeering activities of the Aryan Brotherhood at the time he entered
his guilty plea in [the 2003 federal felon-in-possession prosecution], one
would have to rely on a remarkably improbable series of coincidences:
(a) the USAO managed to learn the details of Defendant Raymond’s
involvement in the incident of June 29, 2002, without simultaneously
learning of Ms. Robinson’s involvement in that incident or the
communications between APD and [Rio Rancho police] that she prompted
at that time; (b) despite the efforts by law enforcement agencies to “sell”
the case for federal prosecution through “Project Exile” and the like, and
despite the pressing need to develop evidence in support of the effort to
have Defendant Raymond’s conditions of pretrial release revoked, the
25
 USAO entered into the plea agreement in [the 2003 felon-in-possession
prosecution] without first inquiring about Defendant Raymond’s reported
association with the “Aryan Brotherhood” or any additional crimes that he
may have committed; (c) despite the USAO’s usual practice of soliciting
and assessing a defendant’s cooperation before entering into a plea
agreement, the USAO did not do so in that case, and (d) instead the USAO
learned for the first time of the reports of Defendant Raymond’s
involvement in the disappearance of Mr. George through a “general
canvassing” or “cold call” initiated by Special Agent Griego less than a
month after the plea hearing but in ample time to alert the Court of these
reports for purposes of the sentencing hearing.

I do not accept the theory that the Government’s knowledge arose through
such a series of coincidences. Rather, I find that Mr. Gonzales’ testimony
provides a more logical explanation that is corroborated by the surrounding
circumstances.

(Aplt. App. at 172-73.)

We must defer to the district court’s determination that the United States’

explanation for when and how the USAO discovered that Raymond was a suspect in

George’s disappearance was unbelievable. “[D]eterminations of credibility and

demeanor lie peculiarly within a trial judge’s province, and . . . in the absence of

exceptional circumstances, we . . . defer to the trial court.” Snyder, 552 U.S. at 477

(quotations, citations, alterations omitted).

Having disbelieved the United States’ explanation, the district court was left with

the evidence indicating that the USAO knew that Raymond had been implicated in

George’s disappearance before October 14, 2004. Cf. Allen, 57 F.3d at 1540 (noting, in

dicta, that the petitioner had shown that the “government potentially breached the plea

agreement” by offering an “obvious explanation” of his prison classification---the

26
Government used evidence of counts against petitioner that it had dismissed, contrary to

the terms of petitioner’s plea agreement---and the Government “offered no alternative

justification”).

5. Conclusion

Because the evidence presented to the district court was ambiguous and disputed,

this court, based on the cold record before us, might have made different factual findings

than those the district court made. However, in this case our standard of review is

determinative. Under “significantly deferential” clear error review, Concrete Pipe, 508

U.S. at 623, we cannot disturb the district court’s factual finding that the USAO knew,

prior to October 14, 2004, of Raymond’s conduct implicating him in the disappearance

and murder of George. We, therefore, AFFIRM the district court’s decision to dismiss

the five charges alleged in the 2007 indictment against Raymond stemming from

George’s disappearance and murder.7

B. Whether the United States breached the 2003 plea agreement by charging
Raymond in the 2007 indictment with two offenses stemming from the
attempted murder of Mudersbach

The 2007 indictment also charged Raymond with conspiring and attempting to

murder John Mudersbach in furtherance of racketeering activity, contrary to 18 U.S.C.

7
In light of this conclusion, we need not address here whether the USAO’s knowledge,
prior to October 14, 2004, of Raymond’s involvement in the Aryan Brotherhood and with
suspected check fraud, sufficed to preclude charging Raymond, in the 2007 indictment,
with the offenses stemming from George’s disappearance and murder. We address that
evidence next, however, as it pertained to the charges against Raymond stemming from
the attempted murder of Mudersbach.
27
§§ 2, 1959(a)(5). These charges present a different issue. We conclude that the district

court legally erred at the outset of its analysis of these charged offenses when the court

interpreted the relevant language from the 2004 plea agreement---that “the United States

will not bring additional charges against [Raymond] arising out of the defendant’s

conduct now known” to the New Mexico USAO (Aplt. App. at 44)---to require “an

inquiry as to whether any of the essential elements of the ‘additional charges’ the USAO

brought against [Raymond] in [the 2007 case] originate from conduct known to the

USAO” on October 14, 2004. (Id. at 164.) See Villa-Vazquez, 536 F.3d at 1196

(reviewing de novo whether government breached its plea agreement).

While the United States could have written the plea agreement in that manner, it

did not do so in this case. Instead, the plea agreement at issue here indicated that the

USAO would not “bring additional charges against [Raymond] arising out of the

defendant’s conduct now known.” (Id. at 44.) Although, as the district court noted, the

USAO knew, at the time of Raymond’s guilty plea, that he was affiliated with the Aryan

Brotherhood and that he was suspected of check fraud, those facts do not involve

affirmative conduct on his part linking him to Mudersbach’s attempted murder.

Moreover, we agree with the Government that the parties could not have understood the

plea agreement’s language to mean that, just because the Government knew that

Raymond had been affiliated with the Aryan Brotherhood, that fact would immunize him

from liability for any crimes committed as part of his involvement with that group.

28
 There is no evidence in the record to indicate that, at the time Raymond pled guilty

to the felon-in-possession offense on October 14, 2004, the USAO knew of any conduct

Raymond had undertaken that would have connected him to the attempted murder of

Mudersbach. Because there is no such evidence, we need not remand this case to the

district court to permit that court to consider, in the first instance, the record evidence

under the correct interpretation of the plea agreement’s relevant language. We conclude,

instead, that the district court legally erred in dismissing the 2007 indictment charging

Raymond with the two offenses stemming from that attack on Mudersbach.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s decision to dismiss the

2007 charges against Raymond that stem from George’s disappearance and murder,

Counts 1, 2, 3, 4 and 5. But we REVERSE the dismissal of the indictment as to the two

charges against Raymond stemming from the attempted murder of Mudersbach, Counts 7

and 8. In light of that, we REMAND this case to the district court for further proceedings

consistent with this decision.

ENTERED FOR THE COURT

David M. Ebel
Circuit Judge

29
09-2101, United States v. Raymond

GORSUCH, J., concurring in part and dissenting in part.

The majority’s analysis proceeds in two movements. The first movement affirms

the district court’s dismissal of the charges associated with the George murder. But the

second movement sounds a different note, reversing the district court and reinstating the

charges associated with the Mudersbach attempted murder. I agree with the second half

of the majority’s opinion and join its decision to reinstate the Mudersbach attempted

murder charges. Respectfully, however, I submit that the same logic that compels this

conclusion also compels the reinstatement of the George murder charges.

I

Mr. Raymond has a long and violent criminal history. It is a history that includes

battery, aggravated burglary, armed robbery, violations of drug and gun laws — and now

murder. Many of these crimes appear linked to his membership and involvement in the

Aryan Brotherhood. The current case against Mr. Raymond started in 2007 when the

New Mexico United States Attorney’s Office (USAO) charged him, and a grand jury

indicted him, for various crimes in furtherance of Aryan Brotherhood racketeering

activity, including the successful murder of Henry George and the attempted murder of

John Mudersbach.

According to the USAO’s charging documents, when Mr. Raymond and his

associates heard in 2002 that Mr. George had recently spoken to law enforcement

officials, they went to Mr. George’s apartment and beat him until he admitted to
“ratting.” After extracting his confession, the group took Mr. George into the desert near

Rio Rancho, New Mexico, where they forced him to dig a large hole. Mr. Raymond then

tried to choke Mr. George to death; when that didn’t work, he or one of his co-

conspirators shot and killed Mr. George. Before leaving the scene, the group buried Mr.

George in the hole he had dug. A few months later, Mr. Raymond caught wind that Mr.

Mudersbach, a then-incarcerated member of the Aryan Brotherhood, had “snitched” to

local authorities about the George murder. As retaliation, Mr. Raymond ordered

Jeremiah Looney, another of his incarcerated cohorts in the Brotherhood, to murder Mr.

Mudersbach. Mr. Looney responded by attacking Mr. Mudersbach with a barbell,

“beating him within an inch of his life.” App. at 54-55.

Mr. Raymond sought dismissal of the USAO’s racketeering charges against him.

He argued that the charges were barred by a plea agreement he reached with the

government on an unrelated and relatively modest firearms charge in 2004. In the 2004

plea agreement, the USAO promised that it would “not bring additional charges against

the defendant arising out of the defendant’s conduct now known to the [USAO].” App.

at 44. The district court agreed with Mr. Raymond’s motion and dismissed the 2007

racketeering indictment in its entirety.

II

My colleagues hold that the district court applied an incorrect legal standard in

dismissing the charges associated with the Mudersbach attempted murder. I agree. The

district court asked “whether any of the essential elements of the” government’s
2
attempted murder charges “originate from conduct known” to the USAO as of the date of

the plea agreement in 2004. Maj. Op. at 28. This standard, the majority explains, does

not reflect the terms of the parties’ plea agreement, which instead barred the government

from bringing new charges “arising out of the defendant’s conduct now known” to the

USAO, as of the date of the 2004 plea agreement. Id.

While the difference between these two standards might not seem significant at

first blush, as the case played out in the district court the difference proved dispositive.

The district court dismissed the Mudersbach attempted murder charges because an

essential element of those charges required the government to prove Mr. Raymond’s

participation in a racketeering enterprise — here, as alleged in the indictment, the Aryan

Brotherhood. Because the USAO knew Mr. Raymond was a member of the Aryan

Brotherhood in 2004, the district court reasoned, dismissal of the Mudersbach attempted

murder charges was required. Simply put, the USAO’s knowledge of Mr. Raymond’s

status within the Brotherhood, as of 2004, precluded the current prosecution against him.

As the majority correctly explains, however, the terms of the plea agreement bar the

government from bringing charges that arise from conduct, not mere status, known to the

USAO at the time of the 2004 plea.

Having identified this error in the legal standard employed by the district court,

my colleagues do not remand the matter back to the district court for application of the

correct legal standard in the first instance. They do not because, as they explain, the

record before us is clearly devoid of evidence that the USAO knew of any of Mr.
3
Raymond’s conduct in connection with the Mudersbach attempted murder at the time of

the 2004 plea. Accordingly, the majority reverses the district court’s decision and orders

the reinstatement of the Mudersbach charges against Mr. Raymond.

III

The same analysis that leads to the reinstatement of the Mudersbach charges

should also lead to the reinstatement of the George charges. The district court analyzed

the George charges under the same erroneous legal standard it used when assessing the

Mudersbach charges. And, under the correct legal standard, the record contains no more

evidence that the USAO, at the time of the 2004 plea agreement, knew of Mr. Raymond’s

conduct in connection with the George murder than it did his conduct in connection with

the Mudersbach attempted murder.

First, the district court applied its erroneous legal standard to both the George

charges and the Mudersbach charges. Indeed, the district court’s opinion analyzed the

George and Mudersbach charges together, in one section, introducing its incorrect legal

standard at the outset of its common discussion. Under the district court’s standard, the

USAO’s knowledge in 2004 of Mr. Raymond’s status as a participant in the Aryan

Brotherhood was enough to require dismissal of all the charges against him. Thus, if

reversible legal error infects the district court’s analysis of the Mudersbach charges (as it

does), it no less infects the district court’s treatment of the George charges. The two

halves of this whole cannot be peeled apart, and so reversal of the whole case, not just

half of it, should follow.
4
 Second, reviewing this case under the correct legal standard, there is no more

evidence in the record that the USAO knew, at the time of the 2004 plea, of Mr.

Raymond’s conduct in connection with the George murder than it did his conduct in

connection with the Mudersbach attempted murder. Indeed, it knew nothing about his

role in either attack. Any contrary conclusion is thus clearly erroneous, and reinstatement

of the George charges should follow.

The record in this case reveals that the Assistant U.S. Attorney who struck the

2004 plea agreement with Mr. Raymond testified that he had no knowledge of Mr.

Raymond’s involvement in the George murder until after the agreement. App. at 674.

Two federal agents involved in the investigation said the same thing. App. at 303, 308.

Their testimony was corroborated by a fax date stamp reflecting that state authorities first

passed along information linking Mr. Raymond to the George murder only after the 2004

plea deal. App. at 75. And all of this testimony was corroborated by the local

investigating officer who explained that he hadn’t consulted with federal authorities

about the George murder until well after the plea deal was consummated. App. at 280.

In the face of this proof, Mr. Raymond points to the testimony of his defense

attorney, Benjamin Gonzales, who indicated that the USAO, at some point, asked him

whether Mr. Raymond might assist with a possible investigation into Mr. George’s

“disappearance.” App. at 251. From this, Mr. Raymond asks us to infer that the USAO

must’ve known, before the plea agreement, of his involvement in the George murder.

5
 At least two problems confront this argument. In the first place, there is no

evidence in the record suggesting that the conversation occurred before, rather than after,

the 2004 plea — and thus no evidence that the USAO knew anything of Mr. Raymond’s

conduct in connection with the George murder before agreeing to the firearms plea deal.

To be sure, Mr. Raymond urges us to defer to the district court’s estimation that the

conversation took place before the plea. But for us to uphold the district court’s

inference, it “must be [based on] more than speculation and conjecture.” United States v.

Truong, 425 F.3d 1282, 1288 (10th Cir. 2005) (internal quotation marks omitted). In this

case, speculation and conjecture about the timing of Mr. Gonzales’s conversation with

the USAO is all we have.

Even if we could overlook this problem, another remains. If the government’s

request for help in connection with an investigation into George’s disappearance suggests

anything, it suggests that the USAO did not know Mr. Raymond kidnapped and killed

Mr. George. If the USAO did know those things, after all, it would hardly have needed to

solicit Mr. Raymond’s assistance with its investigation into Mr. George’s

“disappearance.” At most, the government’s request for assistance suggests only that the

USAO suspected Mr. Raymond of possessing helpful information about George’s

disappearance. And under the plea agreement that is not enough. It isn’t enough that the

government, Casablanca-style, might have considered Mr. Raymond one of the “usual

suspects” to be rounded up and questioned about a disappearance linked to the Aryan

Brotherhood. To be barred from proceeding with its indictment, the USAO had to know
6
that Mr. Raymond engaged in the conduct of kidnapping and killing George. There is

simply no evidence that it did.

To uphold the district court and dismiss the George murder charges, then, we

would have to accept Mr. Raymond’s piling of one speculative inference (that the

Gonzales conversation took place before the plea) on another (that the prosecutor’s

comments somehow signaled knowledge of Mr. Raymond’s conduct, rather than

suspicion of his usefulness as an informant). None of this we can do. See United States

v. Hilliard, 31 F.3d 1509, 1521 (10th Cir. 1994) (explaining that “[w]e are unwilling to

stack inference upon inference” to uphold a district court’s factual findings); cf. United

States v. Rakes, 510 F.3d 1280, 1284 (10th Cir. 2007) (“[W]e will not uphold a

conviction obtained by piling inference upon inference.”). Mr. Raymond asks us to

believe that the USAO decided to give Mr. Raymond a free pass on a murder charge,

despite knowing he kidnapped and killed Mr. George, in exchange for a guilty plea to an

unrelated and relatively modest gun charge. While maybe not an entirely unfathomable

scenario, Mr. Raymond fails to provide more than speculation that anything so unlikely

actually occurred.

In response to all this, Mr. Raymond stresses that state and local authorities had

information linking Mr. Raymond to the George murder before the date of the 2004 plea

agreement. But that is not enough either. Under the terms of the plea, the USAO was

barred only from pursuing conduct known to it, not conduct known to state and local

authorities.
7
 Mr. Raymond replies that law enforcement officials frequently coordinate their

investigative work and so the USAO likely knew what state and local authorities knew.

But this, too, is just speculation — and speculation contradicted by all of the competent

record evidence. Every investigator called as a witness, from every law enforcement

agency involved, testified that the USAO received no information on the George murder

until after the 2004 plea agreement. To be sure, Mr. Raymond argues that other federal

officials, who did not testify, might have learned what state and local authorities knew

before the plea agreement. But, yet again, he supplies no evidence to support that

speculation. And protesting that the right officials didn’t testify does Mr. Raymond no

good anyway. He had the chance to call the witnesses he wished and, as the movant

seeking dismissal of the indictment, he bore the burden of proving that the USAO’s

charges arise out of conduct it knew of at the time of the plea. Allen v. Hadden, 57 F.3d

1529, 1534 (10th Cir. 1995). That he simply did not do.

Moreover, if we could fairly impute the knowledge of state and local officials to

the USAO, as Mr. Raymond suggests and the majority seems to agree, we would have to

affirm the dismissal not just of the George charges. We would also likely have to affirm

the dismissal of the Mudersbach charges. The majority indicates that the only

information the USAO knew about Mr. Raymond’s conduct in connection with the

Mudersbach attack was Mr. Raymond’s status as an affiliate of the Aryan Brotherhood.

But there are loads of other things that state and local investigators knew about Mr.

Raymond’s involvement in the attack on Mr. Mudersbach. They knew that Mr.
8
Mudersbach was a member of the Aryan Brotherhood. They knew that Mr. Mudersbach

had implicated Mr. Raymond in the George murder. And they knew that Mr.

Mudersbach had been attacked in jail by another Aryan Brotherhood member,

presumably for “snitching” on Raymond. If the knowledge of state and local officials

about the George murder could be fairly imputed to the USAO, presumably the same

should hold true for the Mudersbach attempted murder, thus precluding prosecution of

either crime. The reason why we can’t impute the knowledge of local and state officials

to the USAO in either case, of course, is that any such imputation would be based on

speculation. There is simply no evidence in this record that the USAO, as opposed to

state and local officials, knew of Mr. Raymond’s involvement in either crime.

***

The district court applied the wrong legal standard to both the George and

Mudersbach charges. Applying the correct standard, the record is clearly devoid of

evidence that the Mudersbach charges arise from conduct known to the USAO at the time

of the 2004 plea agreement. Exactly the same must also be said of the George charges.

Accordingly, I would reinstate not just half but all of the indictment against Mr.

Raymond.

9