San Pedro v. United States

United States Court of Appeals, Eleventh Circuit.

No. 94-4979.

Alberto SAN PEDRO, Plaintiff-Appellant,

v.

UNITED STATES of America; Kendall Coffey, United States
Attorney; United States Department of Justice, Immigration and
Naturalization Service, District Director, Robert M. Moschorak;
United States Department of Justice, Executive Office for
Immigration Review, Director, David L. Milhollan; and United
States Department of Justice, Executive Office for Immigration
Review, Office of The Immigration Judge, Honorable Bruce W. Solow,
and other individuals similarly situated, Defendants-Appellees.

April 9, 1996.

Appeal from the United States District Court for the Southern
District of Florida. (No. 93-0039-CIV-LCN), Lenore Carrero Nesbitt,
Judge.

Before COX, Circuit Judge, DYER, Senior Circuit Judge, and
GOETTEL*, Senior District Judge.

DYER, Senior Circuit Judge:

This case arises out of a dispute concerning the scope of a

plea agreement between the United States government and Alberto San

Pedro ("San Pedro") and representations made by the government

during plea negotiations. The district court granted summary

judgment for the government holding that the United States Attorney

and the Assistant United States Attorneys ("AUSAs") did not have

authority to promise, as part of a plea bargain, that San Pedro

would not be deported. The Immigration and Naturalization Service

("INS") was thus free to initiate deportation proceedings against

San Pedro. We affirm.

I. BACKGROUND

*
Honorable Gerard L. Goettel, Senior U.S. District Judge for
the Southern District of New York, sitting by designation.
 San Pedro is a citizen of Cuba and has been a lawful permanent

resident of the United States since May 2, 1956. Following a

federal grand jury indictment for bribery of a federal public

official and conspiracy to commit bribery, he pled guilty to the

conspiracy charge. The government concedes that the plea agreement

expressly affords San Pedro transactional immunity. The written

plea agreement contains an integration clause and does not mention

the subject of deportation, but, according to San Pedro, the United

States Attorney and AUSAs who negotiated on behalf of the
government represented, as part of the agreement, that the

government would not institute deportation proceedings against him.

Nevertheless, INS filed an Order to Show Cause why he should not be

deported. San Pedro responded by filing the instant Petition for

Writ of Mandamus or Prohibition and Temporary Restraining Order,

seeking a declaration that the instigation of deportation

proceedings violated the plea agreement because the government had

represented that his transactional immunity1 included a promise of

1
The relevant clause of the plea agreement provides that:

The United States, in consideration of the defendant's
compliance with the terms and conditions of this Plea
Agreement, agrees not to prosecute ALBERTO SAN PEDRO
for any other offenses based upon any evidence revealed
in the investigation that led to the charges in the
subject indictment. In addition, the United States
agrees not to prosecute ALBERTO SAN PEDRO based upon
any other evidence of which it is now aware or which,
with the exercise of reasonable diligence, it could
presently become aware through communication with state
or local enforcement personnel.

San Pedro argued that the agreement "not to prosecute ...
for any other offenses" included a promise not to deport him
because, as part of the basis for the bargain, he dropped
his appeal of two state court convictions that predicated
the show cause order.
non-deportation.

The government filed a motion to dismiss, which the court

converted to a motion for summary judgment. In contesting San

Pedro's claim for breach of the plea agreement, the government

contended that San Pedro was never promised non-deportation, and

even if he was, the promise did not bind the INS because the United

States Attorney and AUSAs had no authority to make such promise.

The district court found that the United States Attorney's Manual

("USAM") required that the United States Attorney obtain approval

from the Department of Justice before conducting negotiations

involving deportation. Because the government had produced no

evidence concerning whether the prosecutor sought authorization

from the Department of Justice, the court denied the government's

first summary judgment motion.

To correct the deficiency, the government filed two more

motions for summary judgment, again raising the question of whether

the United States Attorney and the AUSAs had the authority to

promise San Pedro he would not be deported. The district court

determined there was a dispute as to whether the government made

the promise but that the decisive legal issue was whether the

United States Attorney had the authority to promise not to deport

a criminal defendant as a condition of a plea bargain. The court

concluded that nothing in the USAM or the Immigration and

Nationality Act, 8 U.S.C. § 1101 et seq., ("INA") vested the United

States Attorney with that authority. Thus, any promise regarding

deportation did not bind the INS and the court entered summary

judgment for the government. This appeal ensued.
 II. DISCUSSION

We review the district court's grant of summary judgment de

novo. Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th

Cir.1994). A party seeking summary judgment must demonstrate that

"there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law."

Fed.R.Civ.P. 56(c). Summary judgment is appropriate "if a jury,

viewing all facts and any reasonable inferences therefrom in the

light most favorable to [the non-moving party], could not

reasonably return a verdict in [that party's] favor." Hale v.

Tallapoosa County, 50 F.3d 1579, 1581 (11th Cir.1995) (citing

Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510,

91 L.Ed.2d 202 (1986)).

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971), the Supreme Court stated: "[W]hen a plea rests

in any significant degree on a promise or agreement of a

prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled." Id. at 262, 92

S.Ct. at 499. "When a prosecutor breaks the bargain, he undercuts

the basis for the waiver of constitutional rights implicit in the

plea." Id. at 268, 92 S.Ct. at 502 (Marshall, J. concurring in

part and dissenting in part). Furthermore, a guilty plea " "must

stand unless induced by ... misrepresentation (including

unfulfilled or unfulfillable promises)....' " Mabry v. Johnson,

467 U.S. 504, 509, 104 S.Ct. 2543, 2547, 81 L.Ed.2d 437 (1984)

(quoting Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25

L.Ed.2d 747 (1970)).
 We are mindful of the due process considerations underlying

these principles, and note that San Pedro does not question the

voluntary character of his guilty plea. He does not seek to have

the plea vacated; rather, he seeks to enforce a promise allegedly

made during plea negotiations. "[T]he general rule requiring

governmental adherence to promises made during plea negotiations is

subject to two conditions. First, the agent making the promise

must be authorized to do so, and second, the defendant must

detrimentally rely on the promise. If either condition is lacking,

then the agreement is unenforceable and the government may withdraw

its offer." United States v. Kettering, 861 F.2d 675, 677 (11th

Cir.1988) (citing Johnson v. Lumpkin, 769 F.2d 630 (9th Cir.1985)).

In other words, to enforce a promise made during plea negotiations,

there must have been a valid, binding agreement in the first

instance upon which the defendant relied in deciding to forego his

constitutional rights and plead guilty. For an agreement to be

valid and binding, the agent must possess actual authority to make

the promise—either express authority or authority implied in or

incidental to a grant of express authority. Thomas v. INS, 35 F.3d

1332, 1338 (9th Cir.1994). "Estoppel and apparent authority

normally will not substitute for actual authority to bind the

United States government." Id. (citing Utah Power & Light Co. v.

United States, 243 U.S. 389, 408-09, 37 S.Ct. 387, 391-92, 61 L.Ed.

791 (1917); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384,

68 S.Ct. 1, 2-3, 92 L.Ed. 10 (1947)). But see Houck ex rel. United

States v. Folding Carton Administration Comm., 881 F.2d 494, 501

(7th Cir.1989). Therefore, assuming San Pedro was promised
non-deportation,2 the INS is not bound unless the United States

Attorney and the AUSAs had either express or implied actual

authority to make that representation.

Subsequent to the district court's order, the Ninth Circuit

held in Thomas v. INS that the INS was bound by a cooperation

agreement not to seek deportation of a convicted felon. 35 F.3d at

1335. In Thomas the defendant and an AUSA entered into a letter

agreement where the defendant was to provide the government with

information about narcotics trafficking and work as a cooperating

witness for two years. In return, the government agreed not to

oppose Thomas' motions for reduction of sentence or relief from

deportation. Nonetheless, after his conviction, the INS initiated

deportation proceedings. Id. at 1335-36. The court reasoned that,

despite the AUSA's lack of express authority to bind the INS to the

agreement, Congress, through its grant of power "to prosecute for

all offenses against the United States," 28 U.S.C. § 547(1) (1988),

had given the United States Attorney implied actual authority to

bind the "government," and thus the INS, not to oppose motions for

relief from deportation. Id. at 1339-41. The court found that a

United States attorney's authority to obligate the government "as

part of a plea bargain is incidental to his statutory authority to

prosecute crimes." Id. at 1340. According to the Thomas court,

the United States attorneys need not receive authority from the

attorney general to bind the INS to their agreements with

2
The parties dispute whether such promise was made, however,
the factual dispute is irrelevant in view of our holding that the
United States Attorney and the AUSAs lacked authority to bind the
INS. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
defendants because they have already received such authority from

Congress. Id. at 1338-40. Absent any express limitation on that

authority by the attorney general, therefore, United States

attorneys are free to bind the INS (and presumably other government

agencies) to agreements with defendants so long as the agreements

fall within the scope of the broad language of § 547(1). Id. at

1338-41.

In Margalli-Olvera v. INS, 43 F.3d 345 (8th Cir.1994), the

Eighth Circuit adopted the reasoning of Thomas. There the AUSA

agreed that the government would recommend against deportation if

the defendant participated in a debriefing; otherwise, the

government would remain silent regarding deportation. Id. at 348.

In upholding the authority of the AUSA to bind the INS to the plea

agreement, the court apparently extended the holding of Thomas to

say that a United States attorney has authority to bind all

governmental agencies to plea agreements. See id. at 353 ("[A]n

Assistant United States Attorney enters into a plea agreement on

behalf of the United States government as a whole. Accordingly,

promises made by an Assistant United States Attorney bind all

agents of the United States government. Therefore, we hold that

unless a plea agreement uses specific language that limits the

agents bound by the promise, ambiguities regarding the agencies

bound by the agreement are to be interpreted to bind the agency at

issue."). If this is a correct reading of Margalli, we reject the

suggestion that a government attorney has authority to bind all

government agencies to plea agreements by virtue of § 547(1).

We agree that Congress did not expressly grant the United
States attorney authority to bind the INS, or any other

governmental agency. See 28 U.S.C. § 547 and Thomas, 35 F.3d at

1338-39. Our agreement with the Ninth Circuit, however, ends

there. We believe Thomas incorrectly harmonized the statutes that

empower the United States attorneys and the attorney general,3 and

failed to consider that the express authority to enforce

immigration law is concentrated solely in the attorney general. It

is unclear to this court, as it was to the district court, why

Congress would have granted United States attorneys the authority

to enter into agreements with criminal defendants that bind the INS

while simultaneously granting the authority to enforce the specific

provisions of the immigration laws to the attorney general in the

INA. We therefore follow the principle, upheld by the Supreme

Court on numerous occasions, that a specific statute takes

precedence over a more general one. See, e.g., Simpson v. United

States, 435 U.S. 6, 15, 98 S.Ct. 909, 914, 55 L.Ed.2d 70 (1978);

Brown v. General Services Administration, 425 U.S. 820, 834, 96

S.Ct. 1961, 1968-69, 48 L.Ed.2d 402 (1976).

Congress placed the responsibility of enforcing the INA in the

hands of the attorney general, who in turn is permitted to delegate

her powers to the commissioner of the INS. 8 U.S.C. § 1103(a) and

(b); 8 C.F.R. § 2.1 (1995); INS v. Phinpathya, 464 U.S. 183, 185

n. 1, 104 S.Ct. 584, 587 n. 1, 78 L.Ed.2d 401 (1984). The attorney

3
Cf. 28 U.S.C. § 547(1) (granting United States attorneys
the power to prosecute) with 28 U.S.C. § 515(a) (authorizing the
attorney general to conduct "any kind of legal proceeding" which
United States attorneys are authorized by law to conduct) and see
35 F.3d at 1338-39 (attorney general and United States attorney
have overlapping authority expressly granted by Congress).
general's authority includes the power to deport certain classes of

aliens pursuant to 8 U.S.C. § 1251(a). Only officers and employees

of INS may initiate deportation proceedings by filing an Order to

Show Cause with the Office of the Immigration Judge, 8 C.F.R. §

242.1(a) (1995), and only officers authorized in § 242.1(a) may

cancel an Order to Show Cause. 8 C.F.R. § 242.7 (1995). Being

neither an INS officer nor employee, a United States attorney

cannot initiate or terminate deportation proceedings. It follows,

therefore, that a United States attorney and AUSAs cannot preclude

a deportation proceeding by promising an alien defendant that he

will not be deported because such action would constitute an

impermissible exercise of authority over the INS. To hold

otherwise is to say that the United States attorney's general power

of prosecution can usurp the attorney general's specific power to

deport certain classes of aliens, which we do not believe Congress

intended. Thus, reading 28 U.S.C. § 547(1), 28 U.S.C. § 515(a) and

8 U.S.C. § 1103(a) together, we hold that the power to promise a

criminal defendant during plea negotiations that he will not be

deported is vested in the attorney general.

For the United States attorney to promise a criminal

defendant non-deportation, therefore, the attorney general must

have delegated the power to him. The parties dispute whether such

a delegation has been made, but they agree the only possible

sources of delegation are §§ 9-16.0204 and 9-73.5105 of the USAM.

4
USAM § 9-16.020 provides that:

U.S. Attorneys should also be cognizant of the
sensitive areas where plea agreements involve either
extradition or deportation. No U.S. Attorney or AUSA
We cannot improve upon the district court's reasoning on this

issue:

Upon review, the Court finds that [9-16.020 and 9-73.510],
whether read independently or together, do not constitute a
delegation of authority to U.S. Attorneys and AUSAs from the
Attorney General. There are several reasons for this. For
instance, although the government argues to the contrary, the
Court is not convinced that, as currently drafted, the USAM
could constitute the source of such a delegation. It is well
established that the USAM only provides guidance to officials
at the Department of Justice and does not have the force of
law. U.S. v. Carson, 969 F.2d 1480, 1495 n. 8 (3d Cir.1992)
("Though the Manual is not binding on United States Attorneys,
it is designed to serve as a guide to their conduct....");
United States v. North, 1988 WL 148491, 1988 U.S. Dist. Lexis
16017 (D.D.C.1988) ("The [USAM] is not published in the United
States Code or Code of Federal Regulations and none of its
provisions are promulgated through the Federal Register. It
does not have the force of law."); United States v. Huslage,
480 F.Supp. 870, 873 (W.D.Pa.1979) ("The procedures set forth
in the [USAM] are not binding on the district offices....").
The USAM itself states that:

The Manual provides only internal Department of Justice
guidance. It is not intended to, and may not be relied
upon to create any rights, substantive or procedural,
enforceable at law by any party in any matter civil or
criminal. Nor are any limitations hereby placed on
otherwise lawful litigative prerogatives of the
Department of Justice.

USAM § 1-1.000 (emphasis added). San Pedro relies on the USAM
as the source of a U.S. Attorney/AUSA's authority to promise

has the authority to negotiate regarding an extradition
or deportation order in connection with any case. If
extradition has been requested or there is reason to
believe that such a request will be made, or if a
deportation action is pending or completed, U.S.
Attorneys or AUSAs, before entering negotiations
regarding such matters, must seek specific approval
from the Assistant Attorney General, Criminal Division.

5
USAM § 9-73.510 provides that:

In a criminal case, the United States Attorney should
not as part of a plea agreement or an agreement to
testify, or for any other reason, promise an alien that
he/she will not be deported, without prior
authorization from the Criminal Division.
 non-deportation and, thus, as the ultimate source of his right
against deportation. The underlined language makes clear that
the USAM cannot serve as the source of such a right, however.
Put another way, the language of section 1-1.000 establishes
that the Attorney General did not intend the USAM to serve as
the vehicle for the delegation of authority to U.S. Attorneys
and AUSAs.

[12] Even if the USAM could serve as the source of a delegation of
the Attorney General's authority to promise non-deportation, the
language in sections 9-16.020 and 9-73.510 is insufficient to
effect such a delegation. In order to be effective, a delegation
of statutory authority from the Attorney General to other federal
officials must be both explicit and affirmative. [ See United
States v. Pees, 645 F.Supp. 697, 704 (D.Colo.1986) ("If the
attorney general were not required to execute an affirmative act in
subdelegating his authority, the authority of other administrative
agencies vis. a vis. the authority of the attorney general would be
hopelessly ambiguous and unworkable.") ]; see also, United States
v. Touby, 909 F.2d 759, 770 (3d Cir.1990) ( [the Attorney General
must explicitly subdelegate authority for the subdelegatee to be
empowered to act] ), aff'd, 500 U.S. 160, 111 S.Ct. 1752, 114
L.Ed.2d 219 (1991).

The need for express delegations in the area of
immigration and naturalization is particularly acute. The
area is one in which the Attorney General has already
delegated significant authority to another administrative
agency—the INS. As a result, the Attorney General must take
special care to make delegations of authority in this area to
officials outside INS with particular clarity. Otherwise,
confusion, and often litigation, concerning the scope of the
authority of the INS and that of the other delegatee will
likely result.

[13] Confusion of this kind is at the heart of this case. As
noted, the Attorney General has delegated [authority] to the INS
includ[ing] the authority to initiate and prosecute deportation
proceedings. See 8 C.F.R. § 2.1 [1995]. Absent a clear, explicit
delegation of authority to U.S. Attorneys and AUSAs of the
authority to promise non-deportation to criminal defendants,
officials at the INS may initiate deportation proceedings against
a particular defendant without considering whether an AUSA or U.S.
Attorney has promised the defendant non-deportation as part of a
plea agreement. Protracted litigation arising out of the ambiguity
concerning the authority of the U.S. Attorneys and AUSAs is the
likely result. That is precisely what occurred here.

[14] Neither section 9-73.510 no[r] section 9-16.020 contain an
explicit, affirmative delegation to U.S. Attorneys and AUSAs of the
Attorney General's authority to promise non-deportation. To the
contrary, both sections expressly limit the authority of U.S.
Attorneys and AUSAs to make such promises. Section 9-73.510 is
particularly clear. The section unequivocally provides that,
unless a U.S. Attorney obtains prior authorization from the
Criminal Division of the Department of Justice, the U.S. Attorney
should not promise an alien as part of a plea agreement that he or
she will not be deported. Section 9-16.020 goes even farther. The
section provides that, if a deportation action against a criminal
defendant is pending or completed, a U.S. Attorney or AUSA cannot
even negotiate regarding deportation without obtaining specific
approval from the Assistant Attorney General of the Criminal
Division of the Department of Justice. Nothing in these sections
remotely suggests that a U.S. Attorney or AUSA has the authority to
negotiate, or to promise anything, concerning deportation absent
such approval.6

III. CONCLUSION

Based on the foregoing, we conclude the United States Attorney

and the AUSAs who negotiated the plea agreement with San Pedro did

not have the authority to promise that he would not be deported for

that authority was vested in the attorney general. We further

conclude that §§ 9-16.020 and 9-73.510 of the USAM do not

constitute a delegation of that authority to the United States

Attorney and AUSAs. Summary judgment for the government is

therefore AFFIRMED.

GOETTEL, Senior District Judge, dissenting:

I respectfully dissent. The principal issue in this case is

not the authority of the United States Attorney's Office with

6
The dissent posits that the issue of whether the attorney
general expressly delegated authority to the U.S. Attorney in
this case is necessarily subsumed in the factual dispute of
whether a promise was ever made to San Pedro, and thus summary
judgment was precluded. This point is irrelevant for three
reasons. First, we assume for summary judgment purposes that the
promise was made. Second, the district court specifically found
that the government produced unrebutted evidence that the
prosecutors who negotiated the plea bargain never obtained such
authorization. Moreover, San Pedro conceded in his initial brief
that the U.S. Attorney and AUSAs never contacted anyone in the
Department of Justice for actual authorization to promise
nondeportation. Because San Pedro did not contend in the
district court or on appeal that the attorney general authorized
the promise, there is no factual dispute precluding summary
judgment.
respect to deportation. Rather, the critical issue is whether

there has been a violation of San Pedro's fundamental right to due

process if, in fact, the government reneged on a prosecutorial

promise made as part of San Pedro's plea agreement. See Bemis v.

United States, 30 F.3d 220, 222 (1st Cir.1994) ("[T]he crucial

question is not whether the Government had the authority to carry

out the promise which [petitioner] claims he understood it to make,

but whether it did in fact make such a promise," citing United

States v. Cook, 668 F.2d 317, 320 (7th Cir.1982)1).

This appeal arises from the district court's grant of summary

judgment in favor of the government, in an action brought by San

Pedro to force the government to abide by promises relating to his

non-deportation that it allegedly made as part of a plea

agreement.2 Exactly what those promises are we do not know.

1
In United States v. Cook, 668 F.2d 317 (7th Cir.1982), the
issue before the court was whether a defendant should be allowed
to plead anew to charges against him where the government had
breached a plea agreement. The government had agreed to offer
nothing in aggravation of the defendant's sentence.
Nevertheless, the probation officer who prepared the presentence
report used damaging background information from the government's
files. The government claimed that it was without authority to
withhold relevant information from the sentencing court and
argued that, therefore, no breach could have occurred. The
Seventh Circuit held that although there was substantial doubt as
to whether the government could lawfully withhold relevant
information, that issue was not dispositive. "Regardless of
whether the Government has the authority to withhold relevant
information, if it did in fact promise to do so, then [the
defendant] is nevertheless entitled to relief." Id. at 320
(citations omitted).
2
In his Complaint, San Pedro alleges as follows:

14. Plaintiff would not have entered a Plea
Agreement requiring him to withdraw his appeals from
state convictions but for the representation of the
United States of America that his transactional
immunity precluded the institutions [sic] of
However, in ruling on a motion for summary judgment, the court must

resolve all ambiguities and draw all justifiable inferences in

favor of the non-moving party, San Pedro. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513-14, 91 L.Ed.2d

202 (1986). And if, in fact, such promises were made, as San Pedro

claims, due process requires the government to adhere to the

promises that it made as part of the plea agreement. United States

v. Harvey, 869 F.2d 1439, 1443 (11th Cir.1989); United States v.

Weiss, 599 F.2d 730, 737 (5th Cir.1979).

These due process concerns the majority has ignored. They

have held in essence that, whatever the promises, the United States

Attorney's Office did not have the authority to make such promises

and, therefore, these promises need not be enforced.3 I cannot

deportation proceedings against him for those
convictions and that if not covered by the
transactional immunity the United States of America
would do everything possible to preclude the
institution of deportation proceedings.

In its Answer, the government responds: "Defendants are
without sufficient knowledge to either admit or deny the
allegations in paragraph fourteen. Consequently, the
allegations are denied."
3
The majority relies on the case of United States v.
Kettering, 861 F.2d 675 (11th Cir.1988), in support of its
holding. Kettering is distinguishable. In that case, the
defendant sought to enforce a proposed plea agreement discussed
between defense counsel and a DEA agent. The agreement was never
approved by the Assistant United States Attorney in charge of the
case, who so informed defense counsel. Defense counsel then
filed a motion to enforce the proposed agreement prior to the
defendant's entering a plea, which motion was heard at the time
of the arraignment. The court denied the motion and allowed the
defendant to withdraw his guilty plea entered at the arraignment.
In the instant case, the promises were allegedly made directly by
the United States Attorney's Office and were allegedly relied
upon by San Pedro in entering his guilty plea, withdrawing two
pending state court appeals, and in cooperating with the
government for over one year.
agree.

San Pedro is a citizen of Cuba and has been a lawful permanent

resident of the United States since 1956. On October 7, 1988, a

federal grand jury in the Southern District of Florida returned a

three-count indictment against San Pedro, charging him with two

counts of bribery and one count of conspiracy to commit bribery.

At that time, the United States Attorneys' Office for the Southern

District of Florida was involved in an extensive investigation of

corruption of various elected officials in the City of Hialeah,

Florida. Because of San Pedro's involvement with "the players in

Hialeah politics," the government sought to use San Pedro as a

government witness. United States v. San Pedro, 781 F.Supp. 761,

765 (S.D.Fla.1991). Thus, San Pedro was able to negotiate a plea

agreement with the United States Attorney's Office under which he

pled guilty to the conspiracy count, and the government dismissed

the remaining counts against him. In return, San Pedro agreed to

provide the government with information concerning all criminal

activities within the United States of which he was aware. He also

agreed to voluntarily dismiss two pending state court appeals from

criminal convictions for conspiring to traffic in cocaine and

unlawful compensation.

Under the express terms of the written Plea Agreement with San

Pedro, the United States agreed not to prosecute San Pedro for any

other offenses based upon any evidence revealed in the

investigation that led to the indictment, and upon any evidence of

which it was then aware or could be aware in the exercise of due

diligence. The government concedes that the plea agreement
provided San Pedro with transactional immunity. San Pedro v.

United States, No. 93-0039-CIV-NESBITT, Order at 2 (S.D.Fla. Aug.

23, 1993). Moreover, according to San Pedro, the Assistant United

States Attorneys negotiating on behalf of the government

represented to him that, as part of the agreement, the government

would not institute deportation proceedings against him. The

government denies that such a promise was made.

At the sentencing hearing, which had been continued to allow

San Pedro to cooperate with the government, the government

recommended that San Pedro be released immediately and placed on

probation for four to six months to facilitate his continued

cooperation. The government further recommended that, irrespective

of the sentence imposed, he be immediately eligible for parole

pursuant to 18 U.S.C. § 4205(b)(2). The district judge adopted the

government's recommendation of immediate parole eligibility but

still sentenced San Pedro to thirty (30) months in prison. He was

credited with all of the time that he served in federal custody as

a result of these charges. San Pedro was ultimately paroled on

December 20, 1989. San Pedro, 781 F.Supp. at 765. The government

described San Pedro's contribution to the government's

investigation of the corruption in Hialeah politics as substantial,

truthful, and invaluable. Id. at 765-66.

On December 22, 1989, two days after San Pedro's parole, the

Immigration and Naturalization Service (the INS) issued an Order to

Show Cause, charging San Pedro with being deportable from the

United States due to the commission of various crimes. On or about

November 10, 1992, the INS filed the Order to Show Cause with the
Office of the Immigration Judge in Miami, Florida.4 On January 11,

1993, San Pedro filed a petition for writ of mandamus or

prohibition and temporary restraining order, asking the district

court to declare the deportation proceedings unlawful and to enjoin

the deportation proceedings from going forward based on the

prosecutorial promises allegedly made to him as part of his plea

agreement.

The district court never resolved the issue of what promises,

if any, were made to San Pedro regarding non-deportation. Indeed,

in denying the government's first motion for summary judgment, the

district court, applying the principles set forth in United States

v. Rewis, 969 F.2d 985, 988 (11th Cir.1992),5 held this issue was

4
From the Sworn Statement of San Pedro's immigration
attorney, Teofilo Chapa, Esq., dated April 6, 1993, which was
filed in this case, it appears that this three-year delay between
the issuance of the Order to Show Cause and the filing of the
Order with the Office of the Immigration Judge in Miami was due
at least in part to San Pedro's cooperation in the investigation
and trial of Raul Martinez, the Mayor of Hialeah, as well as
ongoing communications between Attorney Chapa and the INS. See
United States v. San Pedro, 761 F.Supp. at 765.
5
In United States v. Rewis, 969 F.2d 985, 988 (11th
Cir.1992), this court held that whether the government violated
the plea agreement is to be judged according to the defendant's
reasonable understanding at the time he entered the plea. If the
defendant's understanding is disputed by the government, then it
is the function of the court to determine the terms of the plea
agreement according to an objective standard. This court
cautioned against a "hyper-technical reading of the written
agreement" and "a rigidly literal approach in the construction of
the language." Id. (citations omitted). Rewis further instructs
that the written agreement should be viewed against the
background of the negotiations and should not be read to directly
contradict an oral understanding. Id. (citations omitted).
Finally, Rewis holds that an ambiguous plea agreement must be
read against the government and that this method of
interpretation must be strictly adhered to because a plea
agreement constitutes a waiver of significant constitutional
rights. Id.
"clearly one of fact and must be resolved by the trier of fact."

San Pedro Order of Aug. 23, 1993 at 5. The district court found as

follows:

The Court finds the terms "prosecute ... for any other
offenses" to be ambiguous. Deportation involves the
imposition of a specific sanction—expulsion from the country.
Moreover, in the present case, there is a close link between
the sanction and San Pedro's history. As part of the Plea
Agreement, San Pedro agreed to withdraw his appeals of two
state convictions. These convictions form the basis upon
which the government seeks to deport him. San Pedro might
have thus reasonably regarded deportation as an additional
sanction for the offenses for which he was convicted in state
court and might therefore reasonably have construed the terms
"prosecute ... for any other offenses" to cover the initiation
of deportation proceedings.

Even if this were not the case, the Court would not enter
summary judgment in favor of the government without receiving
evidence concerning the government's alleged representations
to San Pedro. As noted, the Court is obligated to interpret
the Plea Agreement in the light of the negotiations preceding
the execution of the Agreement. If agents of the government
did promise San Pedro that he would not be deported, then it
might well have been reasonable for him to believe that the
phrase "prosecute ... for any other offenses" covered
deportation proceedings. The representations made by the
government prior to the execution of the Plea Agreement are
thus not only not irrelevant, they may have a pivotal bearing
on what San Pedro might reasonably have interpreted that
agreement to mean.

Id. at 7-8.

I believe the district court was correct in this regard.

Although this is not the order being appealed, even after two

additional summary judgment motions were filed and decided, this

critical and pivotal issue was never resolved. The district court,

as the majority here, ultimately held that the United States

Attorney's Office did not have the authority to promise

non-deportation and, thus, never reached the issue of what

promises, if any, regarding non-deportation were made by the

government. San Pedro v. United States, No. 93-0039-CIV-NESBITT
(S.D.Fla. Aug. 18, 1994). For purposes of this appeal, we must

assume that such a promise was made. Even if we conclude that the

United States Attorney's Office lacked the authority to make the

promise, there still is a violation of San Pedro's constitutional

right to due process in the breaching of a prosecutorial promise

that was part of a plea agreement. Thus, rather than focusing on

the authority issue as the district court and the majority have

done, we must look instead to the fundamental due process issue.

As this Court held in In re Arnett, 804 F.2d 1200, 1202-03

(11th Cir.1986), it is incumbent upon this Court to determine

whether the government's actions are inconsistent with what the

defendant [San Pedro] reasonably understood when he entered his

guilty plea. A guilty plea is more than an admission of past

conduct; it is a waiver of the right to a trial by jury, and in

this case, a waiver of the right to appeal. To constitute a valid

waiver of substantial constitutional rights, a guilty plea must

represent a voluntary, knowing, intelligent act and must be offered

with sufficient awareness of likely consequences. Id. "A plea

bargain standing alone is without constitutional significance; in

itself it is a mere executory agreement which until embodied in the

judgment of a court, does not deprive an accused of liberty or any

other constitutionally protected interest. It is the ensuing

guilty plea that implicates the Constitution." Mabry v. Johnson,

467 U.S. 504, 507-8, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984)

(footnote omitted). Given such implications, this Circuit, as have

others, has required the government to adhere strictly to the terms

of a plea agreement. In re Arnett, 804 F.2d at 1202-03; see also
Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973). Thus,

unlike situations involving the normal commercial contract, when a

plea is made based upon prosecutorial promises, due process

requires that the government adhere to the terms of any plea

agreement that it makes. United States v. Pelletier, 898 F.2d 297,

302 (2d Cir.1990) (citing Mabry v. Johnson, 467 U.S. at 509, 104

S.Ct. at 2547).

The starting point for analyzing issues involving the breach

of a plea agreement by the government is the Supreme Court's

decision in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971). See In re Arnett, 804 F.2d at 1202. In

Santobello the Supreme Court held that, as part of the criminal

justice process, accepting a plea of guilty "must be attended by

safeguards to insure the defendant what is reasonably due in the

circumstances. The circumstances will vary, but a constant factor

is that when 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."

404 U.S. at 262, 92 S.Ct. at 499. In that case, finding that the

prosecution, through inadvertence, had not lived up to its plea

bargain, the Supreme Court vacated the judgment and remanded to the

state court to determine whether the criminal defendant should be

re-sentenced with the prosecutor keeping his bargain, or whether

the defendant should be allowed to withdraw his guilty plea. As

the majority opinion notes, it matters not whether the promise is

unfulfillable, Mabry v. Johnson, 467 U.S. at 509, 104 S.Ct. at 2547

(quoting Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25
L.Ed.2d 747 (1970)); there is nevertheless a guilty plea induced

by a misrepresentation.

This is not the first time San Pedro has been confronted with

the government's breach of its plea agreement. See San Pedro, 781

F.Supp. 761. In 1991, San Pedro was indicted for RICO violations.

He moved to dismiss the indictment on the ground that it violated

his plea agreement with the government, the same plea agreement

that is the subject of this appeal. The district court, in

granting San Pedro's motion, found that the government had breached

its duty of good faith and fair dealing and that it had failed to

live up to its obligation of not prosecuting San Pedro. Id. at

773-75. In a strongly worded opinion, the court concluded:

The Court believes that the government "set up" San Pedro in
an effort to renege on its promise of immunity, after it had
derived substantial and invaluable cooperation from him over
a fourteen month period.

Having received its benefit from the bargain, namely San
Pedro's cooperation, the government sought to deny the
defendant [San Pedro] the benefit for which he had
bargained—immunity from prosecution.

Such conduct on the part of the government is simply unfair
and this Court of the United States will not permit it.

In a day when the confidence and trust of the American people
in their government ebbs, it is critical that the United
States government keep its word and live up to its
obligations. If doing so means that it must forego convicting
one person of a crime, that is a small price to pay to
preserve the integrity of our institutions.

The foundation of the Republic will not crack if the United
States fails to put Alberto San Pedro in a federal prison. It
will shatter, however, if the American People come to believe
that their government is not to be trusted. A deal is a deal,
and the government's word must be its bond.

Id. at 776.

The principle that "[a] deal is a deal, and the government's
word must be its bond," id., must guide us in this appeal. To

paraphrase the Fourth Circuit's decision in United States v.

Carter, 454 F.2d 426 (4th Cir.1972) (en banc), cert. denied, 417

U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974), there is more at

stake than just whether San Pedro should be deported. "At stake is

the honor of the government, public confidence in the fair

administration of justice, and the efficient administration of

justice in a federal scheme of government." Id. at 428.

From the earlier San Pedro decision, we also know that, in a

letter dated October 3, 1989, an Assistant United States Attorney

urged the Assistant District Director of the INS to withhold or

suspend deportation proceedings against San Pedro because of his

cooperation. San Pedro, 781 F.Supp. at 765-66. Additionally, in

the instant case, San Pedro's immigration attorney submitted a

sworn statement detailing other efforts undertaken by the United

States Attorney's Office to have the deportation proceedings

terminated by the INS.6 In light of the action taken by the United

States Attorney's Office, it would appear that something regarding

non-deportation was promised to San Pedro, and that, at least for

some period of time, the INS honored the request of the United

6
Attorney Teofilo Chapa, in his Sworn Statement dated April
6, 1993, testified that Assistant United States Attorney Steven
Cheykin wrote the District Director of the INS on June 5, 1990,
asking the INS to consider San Pedro's cooperation and to
terminate the deportation proceeding. (Sworn Statement of
Teofilo Chapa, Esq., at 13-15). His letter ends with a statement
that "[y]ou can be assured that in the future your office will be
consulted regarding any proposed plea or cooperation agreement
the terms of which may affect matters within the jurisdiction of
the Immigration and Naturalization Service." Id. at 14-15. This
statement could well be read to imply that in this instance the
United States Attorney's Office made promises to San Pedro
regarding deportation without consulting the INS.
States Attorney's Office in that regard.

There is also binding legal precedent in this Circuit

concerning a prosecutor's breach of a plea agreement involving

deportation and/or extradition, which precedent cannot be ignored.7

See Geisser v. United States, 513 F.2d 862 (5th Cir.1975), after

remand, 554 F.2d 698 (5th Cir.1977), after remand, 627 F.2d 745

(5th Cir.1980), cert. denied sub nom. Bauer v. United States, 450

U.S. 1031, 101 S.Ct. 1741, 68 L.Ed.2d 226 (1981). In that case,

the Department of Justice Organized Crime Section entered into a

plea bargain with two criminal defendants under which they would

reveal everything that they knew regarding a drug smuggling

conspiracy and would testify at the trials of the other

conspirators. In turn, the government promised that they would be

reindicted on lesser offenses carrying maximum sentences of seven

years, that they would be paroled in three years, and that the

government would use its "best efforts" to avoid their deportation8

to France or Switzerland. When it appeared that the Department of

Justice was no longer going to live up to its plea bargain as to

extradition, a petition for habeas corpus and injunctive relief was

filed. The Fifth Circuit found that the federal government had an

obligation to carry out the plea bargain made. Although there was

considerable controversy as to what the prosecutors in Geisser had

7
Decisions of the Fifth Circuit decided prior to the close
of business on September 30, 1981, are binding precedent in the
Eleventh Circuit under Bonner v. City of Pritchard, 661 F.2d
1206, 1209 (11th Cir.1981).
8
Although the plea bargain stated "deportation", the issue
was extradition which is subject to specific international
obligations, while deportation is essentially at the option of
the deporting country.
promised, ultimately it was determined that the plea bargain only

obligated prosecutors to use their "best efforts" to avoid the

return of the petitioner to Switzerland, 9 and the government was
ordered by the court to live up to its end of the bargain.

The case was remanded for the district court to determine what

had been done with respect to the Justice Department's promise to

use best efforts. Numerous letters were sent from the Department

of State to the Swiss government and Swiss embassy. Finally, after

two more appeals, the Fifth Circuit determined that the government

had lived up to its agreement to use best efforts and that this

agreement could not override a century-old treaty between the

United States and Switzerland requiring extradition of the

defendant.10 As the late Chief Judge Brown wrote in Geisser, 513

F.2d at 863, "[t]his is an extraordinary case calling for

9
The district court found in the first instance that there
was a specific, definite agreement that the petitioner would be
deported to some country other than Switzerland or France. After
setting aside and enjoining the execution of the extradition
order, the district judge directed that, if it was determined
that the petitioner should be deported, it would be only to an
"acceptable" country—not France, Switzerland, or the possessions
of either. Geisser, 513 F.2d at 868. On appeal, the Department
of Justice insisted that the deportation-extradition commitment
was not the absolute one found by the district court but the more
limited commitment to use its "best efforts." Id.; Geisser, 554
F.2d at 699. The Fifth Circuit, through Judge Brown, asked the
government for an "authoritative declaration of the position of
the United States Government—not just that of one or more
departments or agencies;" Geisser, 513 F.2d at 869; and
remanded for further hearings on the question of "just what has
been done with the promise "to use our best efforts.' " Id. at
872.
10
It is significant that in Geisser different departments
within the government were involved (the Department of State and
the Department of Justice), yet the Fifth Circuit still required
the two departments to live up to the agreement made by the
Department of Justice, whereas the instant case involves
different arms of the same department.
extraordinary action. It is a case of the great United States

going back on its word in a plea bargain made by the Department of

Justice which assured the Government vital indispensable evidence

leading to conviction of principals in a grand scale international

heroin importing conspiracy. The effect of part of the bargain was

that the defendant-turned-states-evidence would not be

deported...." See also Martin v. Warden, Atlanta Pen, 993 F.2d

824, 829 n. 9 (11th Cir.1993) (recognizing that a defendant has a

valid constitutional claim if the government has not complied with

its obligations under plea agreements even though such may conflict

with the United States' obligation to a treaty partner). San

Pedro's allegations, if true, are no less serious and demand that

this court ensure that his constitutional rights have not been

violated.

If it is ultimately determined that a prosecutorial promise of

non-deportation was made, then San Pedro is entitled to relief.

United States v. Yesil, 991 F.2d 1527, 1532 (11th Cir.1992).

Defaulted plea bargains must be remedied. Geisser, 513 F.2d at

871. So long as a prosecutorial promise remains unfulfilled, the

plea on which it was based is involuntary and, therefore,

unconstitutional unless the breach is remedied. Geisser, 554 F.2d

at 705. Relief may be in the form of specific performance of the

plea agreement or in the opportunity to withdraw the guilty plea.

Id., citing Santobello, 404 U.S. at 263, 92 S.Ct. at 499. See also

Geisser, 513 F.2d at 871; and Geisser, 554 F.2d at 704-705.

The majority notes that San Pedro does not seek one of the two

remedies available under Santobello, namely, the withdrawal of his
guilty plea. To allow San Pedro to withdraw his guilty plea is no

remedy at all, for he has already served his sentence; he has

given the government invaluable cooperation over a fourteen month

period; and he has withdrawn his appeals of the two state court

convictions. Although fashioning an appropriate remedy is left to

the sound discretion of the trial court, Santobello, 404 U.S. at

263, 92 S.Ct. at 499, it appears that the only remedy remaining, if

in fact such a promise was made, is to enforce it. Geisser, 513

F.2d at 871. But, again, we must first know exactly what that

promise was.

Clearly the United States Attorney's Office did not have the

express authority to promise a criminal defendant that he would not

be deported as part of a plea bargain. However, it is not

necessary to go as far as the Ninth Circuit did in Thomas v. INS,

35 F.3d 1332 (9th Cir.1994), and hold that the authority to

prosecute all offenses against the United States found in 28 U.S.C.

§ 547(1) (1988) gives the United States Attorney the implied actual

authority to bind the government including the Immigration and

Naturalization Service. Id. at 1339-41. Nor is it necessary to go

as far as the Eighth Circuit did in Margalli-Olvera v. INS, 43 F.3d

345 (8th Cir.1994), in holding that the United States Attorney has

authority to bind all governmental agencies to plea agreements.

I agree with the majority that the power to promise a criminal

defendant in a plea bargain that he will not be deported is vested

in the Attorney General.11 I also agree with the lower court that

11
The Immigration and Naturalization Act, 8 U.S.C. § 1103,
contains one of the broadest delegations of authority by
Congress. Jean v. Nelson, 711 F.2d 1455 (11th Cir.1983), aff'd,
unless the United States Attorney obtains prior authorization from

the Criminal Division of the Justice Department, the United States

Attorney should not promise an alien as part of a plea agreement

that he will not be deported. The majority then notes that there

is no evidence that the United States Attorney or the Criminal

Division ever authorized such a promise. That is part of the

factual question of whether they ever made such a promise, which in

my opinion precludes our affirming the grant of summary judgment in

favor of the government. Since the government denies having made

the promise, it follows that they would not have sought approval.

However, the plaintiff would not know this. San Pedro claims that

he was made a promise and there is no way that he would know

whether or not the proper authorization had been obtained. Clearly

the Attorney General, as head of the Department of Justice which

includes both the Office of United States Attorneys and the

Immigration and Naturalization Service, could have authorized the

United States Attorney's Office to make such a promise.12

472 U.S. 846, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985). It allows
the Attorney General to delegate his responsibilities under the
Act to "any employee of the Service or the Department of Justice"
and to "confer or impose upon any employee of the United States,
... any of the powers, privileges, or duties conferred or imposed
by this chapter or regulations issued thereunder upon officers or
employees of the Service."
12
Congress has granted broad prosecutorial powers to United
States Attorneys, 28 U.S.C. § 547. This express grant of
authority also carries with it the implied authority to negotiate
plea bargains with respect to subsequent deportation proceedings.
Deportation commonly arises as a result of a criminal
prosecution, and the terms of a plea or cooperation agreement
will commonly affect deportation. Since both the United States
Attorneys and the INS are part of the same department of the
government, if the Department of Justice wishes to have internal
coordinating procedures for agreements by United States Attorneys
and defendants which affect INS, that is more of an
 This case is on appeal from a grant of summary judgment in

favor of the government. There has been no factual determination

as to what promises concerning deportation, if any, were made by

the United States Attorney's Office to induce the plea bargain.

Under the circumstances I would reverse and remand for further

factual findings.

administrative concern of the Attorney General. As the Fourth
Circuit noted in United States v. Carter, 454 F.2d 426 (4th
Cir.1972), a case involving the breach of a prosecutorial promise
involving multiple federal districts,

If there be a fear that an United States Attorney may
unreasonably bargain away the government's right and
duty to prosecute, the solution lies in the
administrative controls which the Attorney General of
the United States may promulgate to regulate and
control the conduct of cases by the United States
Attorneys and their assistants. The solution does not
lie in formalisms about the express, implied or
apparent authority of one United States Attorney, or
his representative, to bind another United States
Attorney and thus to visit a sixteen year sentence on a
defendant in violation of a bargain he fully performed.

Id. at 428.