United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2000 Decided November 14, 2000
No. 99-3149
United States of America,
Appellee
v.
Yong Ho Ahn,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00060-01)
Jonathan Shapiro argued the cause and filed the briefs for
appellant.
Elizabeth H. Danello, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Thomas J. Tourish,
Jr., and Robert R. Chapman, Assistant U.S. Attorneys.
Before: Williams, Sentelle and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge: Appellant Yong Ho Ahn, a Met-
ropolitan Police officer, pleaded guilty to violating 18 U.S.C.
s 201(c)(1)(B) by receiving illegal gratuities from massage
parlors that were flagrantly violating local law. Ahn appeals
from a district court judgment accepting his guilty plea and
sentencing him to four months incarceration and two years
supervised release. Appellant contends that in light of Unit-
ed States v. Sun-Diamond Growers, 526 U.S. 398 (1999), the
district court erred in finding that his plea had a sufficient
factual basis and that he understood the nature of the charges
against him. Ahn also argues that the Government breached
its duty of good faith and an implied promise of secrecy by
leaking information to news media about his arrest, and
submits that the district court erred in quashing a subpoena
he sought in order to obtain the confidential sources of the
reporters who broadcast the story. Finally, Ahn contends
that the Government violated the plea agreement by making
a witness available at the sentencing hearing and then ques-
tioning the witness, when it had expressly promised not to
take a position on whether Ahn had obstructed justice.
For reasons more fully set out below, we hold that the
district court did not err, and affirm Ahn's conviction and
sentence.
I. BACKGROUND
In early September 1997, Lieutenant Yong Ho Ahn, a
fifteen-year veteran of the Metropolitan Police Department of
Washington, D.C., entered a massage parlor and informed a
person associated with the parlor, a witness cooperating with
the Metropolitan Police Department ("CW-1"), that it "was
not properly licensed." As Ahn knew, the parlor violated
local law by allowing its female employees to provide massag-
es to male customers, see D.C. Code s 47-2811, and by
serving as a brothel, where male customers could purchase
sexual acts from female employees, see id. s 22-2722. On
September 3, 1997, CW-1 gave Lieutenant Ahn a controlled
payment of $1,000. Within the following three months, CW-1
gave Ahn two additional payments--one for $500 and another
for $1,500.
In early December 1997, Ahn visited a second massage
parlor, which also allowed female employees to provide mas-
sages and sexual acts to male customers. At that parlor,
Lieutenant Ahn informed another cooperating witness ("CW-
2") that the massage parlor "was not properly licensed." On
December 23, 1997, CW-2 made a controlled payment of
$3,000 to Ahn. The following month, Ahn received another
controlled payment of $2,000 from CW-2.
On February 10, 1998, Lieutenant Ahn was arrested on a
warrant charging him with receiving a bribe in violation of 18
U.S.C. s 201(b)(2)(C). After a failed plea attempt and a
series of negotiations, he agreed to plead guilty to receiving
an illegal gratuity under 18 U.S.C. s 201(c)(1)(B). As part of
his plea agreement, Ahn agreed to cooperate with the Gov-
ernment "whenever, wherever, and in whatever form" it
deemed appropriate. In exchange, the Government agreed to
inform the court of Ahn's cooperation and to abstain from
taking a position at sentencing concerning whether Ahn ob-
structed justice.
On April 28, 1998, while the case was under seal and Ahn
was secretly assisting the Government in a sting operation
attempting to catch then-Mayor Marion Barry accepting a
bribe, two televised news reports described Ahn's arrest.
The sting, set for the following day, was quickly aborted. In
light of the publicity surrounding his case, Ahn filed a motion
to withdraw his plea, contending that by leaking information
about his case the Government had breached its implied
promise to maintain the secrecy of his cooperation. The
district court denied Ahn's motion, finding that the plea
agreement contained no enforceable promise of secrecy and
that, even if there had been such a promise, Ahn failed to
carry his burden of proving that the Government breached it.
After the plea hearing, but before sentencing, the Supreme
Court decided United States v. Sun-Diamond Growers, 526
U.S. 398 (1999), which interpreted the illegal gratuity statute.
In light of the Court's interpretation, Ahn filed a second
motion to withdraw his plea, this time arguing that the
Government's factual proffer was insufficient to establish his
guilt. Again, the district court denied his motion.
At Ahn's sentencing hearing, the district court considered
allegations included in the presentence report that Ahn asked
CW-1 to tell the FBI that the money he had taken had been
returned. This allegation raised questions about whether
Ahn's sentence should be enhanced for obstructing justice.
At the hearing, the Government made a witness available to
testify about the facts underlying the allegation. Then, at the
court's direction, the Government questioned the witness.
Ahn objected based on the Government's promise not to take
a position on whether he had obstructed justice, but the court
overruled him. Ultimately, after finding that Ahn had ob-
structed justice and granting Ahn a downward departure for
his substantial assistance, the court sentenced Ahn to four
months incarceration and two years of supervised release and
imposed a special assessment of $100.
On appeal, Ahn contends that: (1) his guilty plea was taken
in violation of Rule 11 of the Federal Rules of Criminal
Procedure; (2) the district court erred in finding that his plea
agreement did not contain an implicit promise of secrecy and
that the Government did not breach its duty of good faith; (3)
the district court improperly granted the two television re-
porters' motion to quash Ahn's subpoena; and (4) the Govern-
ment breached the plea agreement by taking a position in
favor of a sentence enhancement for Ahn's obstructing jus-
tice. We address each of these issues in turn.
II. ANALYSIS
A. The Sun-Diamond Decision
A district court "may" grant a defendant's motion to with-
draw a guilty plea "if the defendant shows any fair and just
reason." Fed. R. Crim. P. 32(e). Although presentence
withdrawal motions should be "liberally granted," they are
"not granted as a matter of right." United States v. Ford,
993 F.2d 249, 251 (D.C. Cir. 1993); United States v. Lough-
ery, 908 F.2d 1014, 1017 (D.C. Cir. 1990).
On appeal, a district court's denial of a motion to withdraw
will be vacated only if "the defendant can show an abuse of
discretion." Ford, 993 F.2d at 251. In determining whether
the trial court abused its discretion, this Court considers
three factors: (1) whether the defendant "asserted a viable
claim of innocence"; (2) whether the delay between the plea
and the motion to withdraw "substantially prejudiced the
Government's ability to prosecute the case"; and (3) "whether
the guilty plea was somehow tainted." Id. (internal quotes
omitted). Because Ahn does not claim to be innocent and the
Government has not argued that the delay would prejudice its
ability to prosecute Ahn, we focus our attention on the third
factor.
If a guilty plea is tainted--that is, if it is " 'entered uncon-
stitutionally or contrary to Rule 11 procedures' "--a court's
assessment of a motion to withdraw the plea is " 'very le-
nient.' " Id. (quoting United States v. Barker, 514 F.2d 208,
221 (D.C. Cir. 1975) (en banc)). If the plea colloquy was not
conducted in "substantial compliance" with Rule 11, then the
defendant should " 'almost always' be permitted to withdraw
his plea." Id. (quoting United States v. Abreu, 964 F.2d 16,
18 (D.C. Cir. 1992) (per curiam)).
Ahn claims that his plea was tainted in two respects.
First, he argues that the Government's proffer provided an
insufficient factual basis for the illegal gratuity charge. Sec-
ond, he contends that his plea was involuntary because he
lacked an understanding of the nature of the charge against
him. We reject both claims.
Each of Ahn's claims hinges on the meaning of the illegal
gratuity statute. The statute makes it a crime for a public
official to receive or accept "anything of value personally for
or because of any official act performed or to be performed
by such official...." 18 U.S.C. s 201(c)(1)(B). An official
act is defined as "any decision or action on any ... matter
... which may at any time be pending ... in such official's
official capacity, or in such official's place of trust...." Id.
s 201(a)(3).
Shortly after Ahn pleaded guilty, the Supreme Court decid-
ed United States v. Sun-Diamond Growers, 526 U.S. 398
(1999), which interpreted the illegal gratuity statute's "for or
because of any official act" language. The Sun-Diamond
Court held that an illegal gratuity could not be proved by
merely demonstrating that a thing of value "was given be-
cause of the recipient's official position." Id. at 400. Rather,
the Government must establish a link between the gratuity
and "a specific 'official act' for or because of which it was
given." Id. at 414; accord United States v. Schaffer, 183
F.3d 833, 844 (D.C. Cir. 1999). In other words, a violation
requires that "some particular official act be identified and
proved." Sun-Diamond, 526 U.S. at 406. Following Sun-
Diamond, this Court held that an illegal gratuity "can take
one of three forms": (1) a reward for past action, (2) an
enticement to maintain a position already taken, or (3) an
inducement to take or refrain from some future official action.
Schaffer, 183 F.3d at 841-42.
1. Sufficiency of the Factual Proffer
Ahn argues that the Government failed to proffer any facts
that would demonstrate a link between the payments he
received and any official act. He suggests that, instead, the
Government's proffer only establishes that the massage par-
lors paid him solely because of his position as a police
lieutenant.
According to Rule 11, when considering a plea, the trial
court must "mak[e] such inquiry as shall satisfy it that there
is a factual basis for the plea." Fed. R. Crim. P. 11(f). To
establish a satisfactory factual basis, the Government must
proffer " 'evidence from which a reasonable juror could con-
clude that the defendant was guilty as charged.' " In re
Sealed Case, 153 F.3d 759, 771 (D.C. Cir. 1998) (quoting Ford,
993 F.2d at 253). Accordingly, the trial court may draw
reasonable inferences from the facts proffered by the Govern-
ment. See United States v. Graves, 106 F.3d 342, 345 (10th
Cir. 1997).
The Government's factual proffer established that Ahn
went to the massage parlors to tell the cooperating witnesses
that their parlors were not properly licensed. As a police
officer, Lieutenant Ahn had a duty to report the licensing
violations and to take "such immediate and proper police
action as the circumstances may demand." Metropolitan
Police Dep't Gen. Order 401.4, Part I, s D(2). The proffer
explicitly described how Ahn accepted payments from two
cooperating witnesses "associated with The Spa[s]" rather
than reporting the violations. The proffer expressly defined
"The Spa[s]" as "business[es] whereby male customers pur-
chase massages from female spa workers ... [and] may also
purchase sexual acts." In the proffer, the Government identi-
fied five different payments from the cooperating witnesses,
who were, as the proffer makes clear, associated with "The
Spa[s]," which by the proffer's own unambiguous definition
were engaged in illegal activity. Consequently, the only
conclusion that can be drawn from the proffer is that while
Lieutenant Ahn received payments from the cooperating wit-
nesses, the massage parlors continued to engage in illegal
conduct and Ahn failed to take any "immediate and proper
police action."
Although Appellant is correct that the proffer does not
explicitly state a link between the payments and an official
act, it does provide sufficient " 'evidence from which a reason-
able juror could conclude that the defendant was guilty as
charged.' " In re Sealed Case, 153 F.3d at 771 (emphasis
added) (quoting Ford, 993 F.2d at 253). A reasonable juror
could interpret the facts proffered by the Government as
demonstrating that the cooperating witnesses paid Ahn as a
reward for his not reporting the parlors' violations when he
first notified them that they were not properly licensed, as an
enticement to continue failing to report them, and as an
inducement for not reporting them in the future. Under all
of these reasonable inferences, the Government has proffered
a sufficient factual basis to establish the link between the
payments and an identified official act, or in Lieutenant Ahn's
case, an official failure to act. See Sun-Diamond, 526 U.S. at
414; Schaffer, 183 F.3d at 841-42.
We find instructive our recent decision in In re Sealed
Case, 153 F.3d 759 (D.C. Cir. 1998). In that case, the
defendant pleaded guilty to violating 18 U.S.C. s 924(c)(1),
which establishes minimum sentences for anyone who "uses
or carries a firearm" during or in relation to a drug traffick-
ing crime. Before the defendant was sentenced, however, the
Supreme Court held that to establish the "use" of a firearm
the Government must prove that it was actively employed.
See Bailey v. United States, 516 U.S. 137, 144 (1995). The
Sealed Case defendant sought to withdraw his plea based on
this holding, arguing that the Government's proffer had not
established that he had used or carried a weapon. Neverthe-
less, the proffer did demonstrate that when police officers
told the defendant to show his hands, he moved them "away
from his body and toward the corner," where the police found
a gun moments later. In re Sealed Case, 153 F.3d at 772.
We held that those facts were sufficient for a reasonable juror
to find that the defendant had tossed away the gun and
therefore was guilty of "carrying." See id. Likewise, in
Ahn's case, the Government did not explicitly state that Ahn
received the payments for or because of an official act, but
the facts it proffered were sufficient for a reasonable juror to
infer such a link.
In contrast, in cases in which courts have held that there
was an insufficient factual basis for a defendant's plea, the
government has offered no evidence to support an element of
the charge. For example, the defendant in United States v.
Ford pleaded guilty to possessing a weapon while under
indictment for a felony, see 18 U.S.C. s 922(n), and the
government "omitted the fact that a gun was recovered from
[the defendant's] bedroom"--the key fact necessary to estab-
lish that he possessed a gun. Ford, 993 F.2d at 253.
Similarly, in United States v. Sawyer, 74 F. Supp. 2d 88 (D.
Mass. 1999), on which Appellant relies, the government's
proffer was insufficient to establish a factual basis for a
violation of a Massachusetts illegal gratuity statute similar to
the one at issue here.1 In Sawyer, the government only
demonstrated that the defendant gave "free golf and other
entertainment to Massachusetts legislators." Id. at 93 n.6.
The court properly ruled that the government failed to allege
any link between the entertainment and an "identifiable,
specific, official act." Id. at 103. More significantly, howev-
er, the government failed to identify any official act, instead
wholly relying on the fact that gifts were given to state
legislators.
Ahn argues that in his case, as in Sawyer, the Government
believed that it could prosecute him based solely on his status
as a police officer. Even if Ahn is correct, this belief is not
fatal because the Government here, unlike the prosecution in
Sawyer, proffered sufficient evidence linking the payments
Ahn received to an official act. The record reveals that the
district court substantially complied with the dictates of Rule
11(f), that the factual proffer provided sufficient evidence to
establish a violation of the illegal gratuity statute, and, there-
fore, that the court did not abuse its discretion in denying
Ahn's motion to withdraw his guilty plea.
2. Voluntariness of the Plea
Ahn next contends that his plea was involuntary because he
did not understand the nature of the charge against him. He
suggests that, at the time of his plea, he understood that he
was being charged with accepting payments because of his
position as a police officer, not, as Sun-Diamond later re-
quired, because of any official act.
__________
1 In Sawyer, the defendant pleaded to guilty to mail fraud in
violation of 18 U.S.C. ss 1341, 1346. See Sawyer, 74 F. Supp. 2d at
92 & n.5. To establish federal mail fraud as alleged in that case,
the prosecution was required to prove that the defendant used the
postal system to violate Massachusetts law. The prosecution stated
that the defendant had violated the state's illegal gratuity statute,
which, like the federal statute, prohibits people from giving a public
official--and a public official from receiving--anything of substan-
tial value "for or because of any official act performed or to be
performed." Mass. Gen. Laws ch. 268A, s 3.
Before accepting a guilty plea, the trial court must engage
in a colloquy with the defendant to determine that he under-
stands "the nature of the charge to which the plea is offered,"
Fed. R. Crim. P. 11(c)(1), and, therefore, that it is voluntary,
see id. 11(d). For a plea to be voluntary under the Constitu-
tion, a defendant must receive " 'real notice of the true nature
of the charge against him.' " United States v. Dewalt, 92
F.3d 1209, 1211 (D.C. Cir. 1996) (quoting Henderson v. Mor-
gan, 426 U.S. 637, 645 (1976) (internal quotes omitted)). Real
notice is that which is "sufficient to give the defendant 'an
understanding of the law in relation to the facts' of his case."
Id. at 1212 (quoting McCarthy v. United States, 394 U.S. 459,
466 (1969)). In assessing whether the defendant has such an
understanding, the record of the plea colloquy must, based on
the totality of the circumstances, " 'lead a reasonable person
to believe that the defendant understood the nature of the
charge.' " Id. (quoting United States v. Frye, 738 F.2d 196,
201 (7th Cir. 1984), and citing United States v. Musa, 946 F.2d
1297, 1304 (7th Cir. 1991)); see also Roberson v. United
States, 901 F.2d 1475, 1477 (8th Cir. 1990) (explaining that a
defendant is "entitled to relief if the totality of the circum-
stances indicates that he did not understand the nature of the
charges to which he entered a plea of guilty").
Ahn's contention rests solely on the following statements
made by the Government during the plea hearing:
I would further proffer to the Court that [defense coun-
sel] and I have had a number of discussions about the
illegal gratuity and bribery statute. And we have dis-
cussed that under certain interpretations, it is unneces-
sary to show the payments were earmarked for a partic-
ular purpose, but rather payments can be made to an
individual because of his capacity or his particular status
within the Government.... Certainly in this case the
Government has discussed with counsel is not charging
Mr. Ahn with a quid pro quo, but rather more of a theory
of his job.
Transcript of Plea Hearing, Mar. 11, 1998, at 26. Appellant
argues that these statements suggest that Ahn understood
that the Government only needed to prove that he accepted
payments as a public official. When viewed in isolation, his
argument seems colorable. But when considered in light of
the record of the plea hearing as a whole, it falls short.
Initially, in considering the Government's statement itself,
it appears possible that the prosecutor and defense counsel
agreed that the Government only needed to establish that
Ahn received payments as a police officer. Yet, even the
Government's statement is inconclusive. In the first part of
its statement, the prosecution only said that "under certain
interpretations" the Government did not need "to show the
payments were earmarked for a particular purpose." It
never said that in this case the Government need not show
such a purpose. In fact, as explained above, the Government
proffered sufficient facts to reasonably demonstrate a particu-
lar purpose--that Ahn did nothing about the massage parlors'
flagrant violations of the law.
The second half of the prosecution's statement is equally
inconclusive. The Government correctly points out that it
was "not charging Mr. Ahn with a quid pro quo"--if it had
been, then it would have been charging him under the bribery
statute, a charge to which Ahn already refused to plea guilty.
Cf. Sun-Diamond, 526 U.S. at 405 (explaining that, in con-
trast with an illegal gratuity, "only a bribe requires proof of a
quid pro quo"); Schaffer, 183 F.3d at 841 (noting that the
bribery and illegal gratuity statutes differ because "bribery
requires a quid pro quo"); United States v. Tomblin, 46 F.3d
1369, 1379 (5th Cir. 1995) ("Under the bribery statutes, the
government must prove a quid pro quo."). Although it is
plausible to read the "theory of the job" statement to mean
that the Government was charging Ahn with receiving a
payment because of his position, such a reading ignores the
contrast the prosecution seemed to be drawing between "the
illegal gratuity and bribe statute." In context, a reasonable
person could have understood that the prosecution's reference
to a "theory of the job" meant that the Government was
charging Ahn for receiving payments that were linked to his
failure to uphold the duties of his job--that is, his failure to
report the licensing violations.
The critical inquiry is whether Ahn understood the nature
of the charges against him. The record of the plea hearing
reveals that a reasonable person would have believed that he
did. Throughout the hearing, the court asked Ahn a series of
questions focused on the nature of the crime. Significantly,
at no point during this colloquy did the court or Ahn state
that he was being charged merely for receiving payments
because he was a police officer.
First, the district court asked whether Ahn "did either
seek, or receive, or accept, or agree to receive something of
value from two witnesses, who are cooperating with the
Government ... because of formal official acts performed by
you." Transcript of Plea Hearing, Mar. 11, 1998, at 14
(emphasis added). Moments later, after giving Ahn a chance
to compose himself, the Judge again asked if he "understood
the nature of the charge against [him], ... the receipt of
illegal gratuities, something of value to perform an official
act or not." Id. at 15 (emphasis added). Ahn responded, "I
understand, Judge." Id.
Later in the colloquy, the Judge asked Ahn, "[Y]ou are
charged ... with receipt of illegal gratuities in that either you
received directly or indirectly or demanded and/or agreed to
receive, accept cash from two individuals because of official
acts to be performed or not performed by you; is that true,
sir?" Id. at 23 (emphasis added). Ahn answered, "Yes, Your
Honor." Id. at 24.
In each of these exchanges, the court spoke about Ahn's
receiving payments for performing official acts, not for being
a public actor, and in each exchange, Ahn replied that he
understood. Based on this colloquy, a reasonable person
could believe that Ahn understood the relationship between
the law and the facts.
Cases in this Circuit that have held that a defendant did
not understand the nature of the charges to which he pleaded
guilty were based on substantially more compelling circum-
stances than the instant case. In Ford, the district court did
not "elaborate the charges beyond" asking the defendant
whether he had seen and read the indictment, discussed it
with his attorney, and understood it. Ford, 993 F.2d at 253.
In addition, the court referred to the wrong charge twice and
neglected to "inform[ ] the defendant of the material details of
the charges against him." Id. at 254. In United States v.
Dewalt, 92 F.3d 1209, 1212 (D.C. Cir. 1996), the court never
mentioned that the defendant was pleading guilty to a charge
concerning possession of a weapon. Furthermore, the court
only asked whether the defendant had received a copy of and
understood the indictment, not even asking whether he had
read it. See id.; see also Henderson v. Morgan, 426 U.S.
637, 642-43, 647 (1976) (holding that defendant's plea to
second degree murder charges was involuntary when he was
a nineteen-year-old man with "substantially below average
intelligence," the trial court had not discussed the elements of
the crime, and the trial court had made no reference to the
requirement that the defendant must have intended to cause
the victim's death).
In light of the record before us, it reasonably appears that
Ahn understood the nature of the charges against him and
therefore that his plea was voluntary. Accordingly, we hold
that the trial court did not abuse its discretion in denying
Ahn's motion to withdraw his plea.
B. The Publicity of Ahn's Case
After two television stations broadcast reports detailing
Ahn's arrest, Ahn moved to withdraw his plea, claiming that
the Government had breached the plea agreement by leaking
information to the reporters. The district court denied this
motion, ruling that Ahn had not proved the Government
expressly or impliedly had promised to keep Ahn's coopera-
tion secret, that Ahn failed to establish that the Government
had leaked the information, and that any harm to Ahn was
speculative. Ahn appeals from this denial.
We review a district court's factual determinations concern-
ing a plea agreement, including its determination of whether
a breach occurred, for clear error. See United States v.
Pollard, 959 F.2d 1011, 1023-24 (D.C. Cir. 1992). In consid-
ering whether a plea agreement has been breached, we look
to principles of contract law. See United States v. Jones, 58
F.3d 688, 691 (D.C. Cir. 1995). "Although reducing an agree-
ment to a writing which in view of its completeness and
specificity reasonably appears to be a complete agreement
creates a presumption that the agreement is integrated, the
ultimate determination of integration is a question of fact to
be determined in accordance with all relevant evidence."
Bowden v. United States, 106 F.3d 433, 439-40 (D.C. Cir.
1997) (cites and internal quotes omitted). Likewise, as in all
contracts, plea agreements are accompanied by "an implied
obligation of good faith and fair dealing." Jones, 58 F.3d at
692. In the context of plea agreements, the defendant main-
tains the burden of proving that the agreement has been
breached. See United States v. Kilroy, 27 F.3d 679, 684
(D.C. Cir. 1994).
On appeal, Ahn argues that his plea agreement included an
implied promise by the Government that it would maintain
the secrecy of his arrest. According to Ahn, the Government
breached this promise by leaking the circumstances of his
arrest and plea to two television reporters. Ahn also alleges
that the Government violated its duty of good faith through
the leak.
It is clear from the record that Ahn desired to keep his
plea and cooperation secret in order to shield himself, his
family, and the Korean community. The Government's desire
for secrecy is equally clear--secrecy was imperative for suc-
cessfully executing the sting on then-Mayor Marion Barry.
Nevertheless, as the district court found, these desires do not
constitute implied promises.
Ahn acknowledges that a promise of secrecy was not
expressed in the plea agreement. The agreement did, howev-
er, include an integration clause, which specifically stated that
no other agreements or promises existed between the parties.
Standing alone, such a clause would be strong evidence that
no implied promises existed--after all, integration clauses
"establish that the written plea bargain was 'adopted by the
parties as a complete and exclusive statement of the terms of
the agreement.' " United States v. Fentress, 792 F.2d 461,
464 (4th Cir. 1986) (quoting Restatement (Second) of Con-
tracts s 210 (1981)); accord United States v. Hunt, 205 F.3d
931, 935 (6th Cir. 2000) (holding that a merger clause "normal-
ly prevents a criminal defendant, who has entered into a plea
agreement, from asserting that the government made oral
promises to him not contained in the plea agreement itself");
United States v. Alegria, 192 F.3d 179, 185 (1st Cir. 1999)
("Where, as here, an unambiguous plea agreement contains
an unqualified integration clause, it normally should be en-
forced according to its tenor."); United States v. Doyle, 981
F.2d 591, 594 n.3 (1st Cir. 1992) (explaining that this rule "has
particular applicability when, as in this case, the plea agree-
ment itself specifically states that 'there are no further or
other agreements, either express or implied,' other than those
explicitly set forth in the document").
But the integration clause does not stand alone; there is
substantial evidence that the agreement did not contain an
implied promise of secrecy, the most damning of which comes
from the Appellant himself. In accepting the agreement, Ahn
"reaffirm[ed] that absolutely no promises ... have been made
or entered into in connection with my decision to plead guilty
except those set forth in this plea agreement." At the plea
hearing, Ahn again recognized that no promise had induced
him to plead guilty other than those promises made in the
plea agreement. See Transcript of Plea, Mar. 11, 1998, at 22.
As a veteran of the police force represented by experienced
defense counsel, Appellant was aware that he could have
bargained for specific terms in the plea agreement. Yet he
knew that secrecy was not an explicit term. In fact, he
agreed to a merger clause stating that there were no other
promises made. During the hearing on the withdrawal mo-
tion, there was no testimony from the law enforcement offi-
cers who investigated Ahn's crime that the Government
would--or could--guarantee secrecy to him. See, e.g., Tran-
script of Proceedings on Defendant's Motion to Withdraw
Guilty Plea, Oct. 6, 1998, at 110. Likewise, the FBI transla-
tor who spoke to Ahn when he was arrested did not know of
any such promise. See Transcript of Proceedings on Defen-
dant's Motion to Withdraw Guilty Plea, Oct. 8, 1998, at 164.
Based on this record, the district court found that the
Government had not impliedly promised Ahn that it would
guarantee his cooperation would be kept secret. Because the
defendant failed to carry his burden of proof, these findings
were not in clear error. Certainly, "when a plea rests in any
significant degree on a promise or agreement of the prosecu-
tor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled." Santobello v.
New York, 404 U.S. 257, 262 (1971). Yet, "[w]hile the govern-
ment must be held to the promises it made, it will not be
bound to those it did not make. To do otherwise is to strip
the bargaining process itself of meaning and content." Fen-
tress, 792 F.2d at 464-65.
The district court likewise did not plainly err in finding that
Ahn failed to carry his burden of proving that the Govern-
ment caused the leak and consequently breached its obli-
gation of good faith. All of the agents who had access to the
information testified under oath or by affidavit that they did
not divulge anything about Ahn's case to the media. Ahn
failed to present a single witness or any evidence to contra-
dict the agents' sworn statements. As the district court
noted, numerous people outside the prosecution team could
have given the information to the television reporters, from
police officers in Ahn's district who knew about the massage
parlor investigation, to massage parlor operators who "knew
about Mr. Ahn," Transcript of Proceedings on Defendant's
Motion to Withdraw Guilty Plea, Oct. 6, 1998, at 124, to court
personnel who had access to information about Ahn's case.
Ahn contends that only one way exists for him to prove
that the Government caused the leak and thereby breached
its duty of good faith: by subpoenaing the reporters to reveal
their sources. When Ahn sought to subpoena the reporters,
they filed a motion to quash arguing that reporters possess a
qualified privilege not to disclose confidential sources. Cf.
Branzburg v. Hayes, 408 U.S. 665 (1972) (addressing whether
requiring reporters to testify before grand juries concerning
their confidential sources' criminal conduct violates the First
Amendment). The district court found that the reporters'
testimony was not "essential and crucial" to Ahn's case and
was not relevant to determining Ahn's guilt or innocence.
Therefore, the court concluded that Ahn had not demonstrat-
ed that the reporters' qualified privilege should be overcome.
In granting the motion to quash, the district court did not
focus on the government's duty of good faith, yet it was
plainly aware of that duty. Because we agree that Ahn failed
to carry his burden, we hold that the district court did not
make an error of law or abuse its discretion in granting the
reporters' motion.
C. The Sentencing Hearing
Ahn's final contention stems from his sentencing hearing,
during which, he argues, the Government breached its plea
agreement. According to the presentence report, Ahn ap-
proached CW-1 and asked her to tell the FBI that Ahn had
returned the payments he had received. As a result, Ahn
faced the possibility of having his sentence enhanced for
obstructing justice. See United States Sentencing Guide-
lines s 3(c)1.1.
In the plea agreement, the Government had promised Ahn
that it would not take a position on whether he should receive
an obstruction enhancement. At the sentencing hearing,
Appellant's counsel pointed to this provision of the agree-
ment, suggesting that the court would have no evidence on
which to base such an enhancement. The Government re-
sponded by informing the court that it could "make a case
agent available to the Court should the Court want to hear
that agent" testify. The court assented, stating that it want-
ed to "hear from the agent." The Government then asked,
"Does the Court wish the prosecutor to inquire?" The court
did, so the Government questioned the agent about the
allegations in the presentence report.
Appellant now argues that the Government breached the
plea agreement by taking a position on the obstruction en-
hancement. According to Ahn, the Government, while not
explicitly advocating an enhancement, effectively took a posi-
tion by not only questioning the agent, but "rehearsing" that
testimony before the hearing. This argument is unpersua-
sive.
Determining whether a plea agreement was breached
"presents a mixed question of law and fact in which the
factual aspects usually predominate." Pollard, 959 F.2d at
1023. Accordingly, we review the district court's legal conclu-
sions de novo and its factual findings for clear error. See id.
Of course, the district court is "in the best position to
determine whether the government presented an argument
that, perhaps subtly, exceeded the bounds of the agreement."
Id. Therefore, in cases such as the one before us we employ
a more deferential standard of review.
At Ahn's sentencing hearing, the Government had a duty to
provide relevant information about whether Ahn obstructed
justice, even though it had agreed not to take a stand on
whether he should receive a sentence enhancement. See
United States v. Mata-Grullon, 887 F.2d 23, 24 (1st Cir. 1989)
(per curiam) ("[T]he government must bring all relevant facts
to the judge's attention."); United States v. Perrera, 842 F.2d
73, 75 (4th Cir. 1988) (explaining that the Government has "a
duty to bring all relevant information ... to the court's
attention at the time of sentencing"). Under the circum-
stances, we hold the Government acted appropriately in in-
forming the court that a witness was available to recount the
facts underlying the presentence report. Cf. United States v.
Griffin, 816 F.2d 1 (D.C. Cir. 1987).
Furthermore, the prosecution did not violate the plea
agreement by questioning the witness as instructed by the
court. Cf. United States v. Goodman, 165 F.3d 169, 173 (2d
Cir. 1999). The court specifically directed the Government to
"just ask [the witness] the basic questions." By limiting its
questions to factual material, the Government merely facili-
tated the agent's providing the court with relevant back-
ground on whether Ahn obstructed justice. As the court
explained at the sentencing hearing, the prosecution's ques-
tioning simply allowed the court "to find out what happened."
The court undoubtedly understood the nature and purpose
of this questioning. Throughout the hearing, it repeatedly
recognized that the Government was taking no position on the
obstruction enhancement. See, e.g., Transcript of Sentencing,
Nov. 16, 1999, Record Material for Appellee at 7 (recognizing
that the Government "agreed not to take a position"); id. at
12 ("The Government takes no position."); id. at 13 ("[Y]ou're
[i.e., the Government] not taking a position."). Additionally,
the court unambiguously declared that whether Ahn's sen-
tence would be enhanced was "strictly up to the Court to
decide." Id. at 12; see also id. at 19 (explaining that the
court would "make an independent judgment" on the en-
hancement). Like the trial court in United States v. Griffin,
"the District Court was clearly informed of the terms of the
plea agreement and of what the government's recommenda-
tion on penalty was to be." Griffin, 816 F.2d at 7. Accord-
ingly, the court did not clearly err in allowing the Govern-
ment to make a witness available to recount the facts of Ahn's
obstruction, and the Government did not breach the plea
agreement by questioning that witness.
III. CONCLUSION
For the reasons stated above, the district court's judgment
is
Affirmed.