United States v. Castaneda

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-40307

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RAYMOND CASTANEDA,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

December 9, 1998
Before WISDOM, WIENER, and DENNIS, Circuit Judges.

WIENER, Circuit Judge:

In this direct criminal appeal, defendant-appellant Raymond

Castaneda challenges his conviction of RICO conspiracy under 18

U.S.C. § 1962(d), alleging errors at both the indictment and trial

stages of his case. Concluding that the district court erred in

failing to dismiss Castaneda’s indictment on the basis of the

government’s unwarranted revocation of its transactional immunity

agreement, we reverse Castaneda’s conviction, vacate his sentence,

and remand for entry of a judgment of acquittal.
 I

FACTS AND PROCEEDINGS

Castaneda owned an auto repair shop and towing service in

Brownsville, Texas. From 1990 to 1994, William Weaver worked as an

investigator in the Cameron County Attorney’s Office in

Brownsville. During these years, Castaneda and Weaver conspired to

solicit bribes from individuals accused of driving while

intoxicated (DWI) in exchange for getting the charges dismissed or

sentences reduced. Castaneda’s role in this conspiracy was that of

middleman, referring “clients” to Weaver, arranging meetings,

receiving payments, and suggesting strategies for accomplishing

fixes. Weaver’s role on the other hand was that of principal,

making the necessary arrangements within the County Attorney’s

Office to have the charges reduced or disappear.

Suspecting corruption, the FBI began an investigation of the

County Attorney’s Office. As part of this activity, Special Agent

Jose Louis Cisneros sought Castaneda’s cooperation. This, in turn,

led AUSA Mervyn Milton Mosbacker and Castaneda to enter into an

informal, written proffer agreement on January 24, 1995, pursuant

to which Castaneda was granted use immunity.1 Sometime later, AUSA

1
According to the terms of this agreement, Castaneda was granted
“use” but not “derivative use” immunity. In other words, the government
promised not to use any of the information or statements provided by
Castaneda directly against him in any criminal proceeding, but reserved its
right to pursue investigative leads derived from Castaneda’s statements and
use this “derivative” evidence against him.

2
Mosbacker and Castaneda entered into another agreement2 —— this one

oral —— in which Castaneda was granted transactional immunity in

exchange for his obligation to “tell everything he knew” about

Weaver’s criminal activity.3

On January 24, 1995 and again on November 17, 1995, Castaneda

was questioned by Agent Cisneros and AUSA Mosbacker. In those

interviews, Castaneda acknowledged that he had participated as

Weaver’s intermediary in several acts of bribery and extortion

connected to the “fixing” of criminal prosecutions brought by the

County Attorney’s Office. Castaneda identified a number of

individuals who had knowledge of, or had been involved in, the

scheme. These included(1) Jose Luis Reyes,4 (2) Julio Gonzalez,5

(3) Jeff Lewis,6 (4) Chuy Hinojosa,7 (5) Guadalupe Barajas,8 (6)

2
Although there is some question as to whether AUSA Mosbacker had the
authority to grant Castaneda transactional immunity, for the purposes of
this appeal, the government does not dispute the existence of a valid
agreement.
3
Pursuant to this agreement, Castaneda also agreed to provide
information about the illegal activities of Alex Perez, the Sheriff of
Cameron County.
4
Castaneda told the government that, in addition to Reyes’s
involvement in drug trafficking, he often paid large sums of cash to
Sheriff Perez (presumably as political contributions). On many of these
occasions, admitted Castaneda, he served as the conduit between Reyes and
Perez.
5
Castaneda told the government that he was approached by Julio
Gonzalez in 1992 for assistance in getting his DWI case reduced. Gonzalez
gave Castaneda $1,000 to pass on to Weaver as payment for the fix.
Castaneda acknowledged keeping approximately $100 for himself.
6
Castaneda advised the government that Gonzalez approached him on
another occasion for assistance in getting dismissed a DWI for Jeff Lewis.
Castaneda was unsure if Weaver had ultimately been successful in fixing the

3
Federico Morales,9 (7) Alejandro Cano,10 and (8) Mario Meliton

Garcia.11

On October 22, 1996 —— almost one year after the November,

1995 interview with Castaneda, and at the end of the grand jury’s

deliberations —— the government wrote to Castaneda advising that,

because he had “failed to provide . . . relevant and material

information concerning criminal activities of which he was well

aware,” he had violated the transactional immunity agreement, so

the government was revoking its promise not to prosecute. The very

next day, a grand jury returned a seven-count indictment12 against

case.
7
Castaneda told the government that an individual known as “Chuy”
Hinojosa had approached Weaver and given him an unknown amount of money.
When Weaver was unable to fix the case, Hinojosa’s money was returned.
8
Castaneda told the government that Barajas —— who was on probation
and afraid she would fail a urine test —— paid Weaver $6,000 to have the
test fixed.
9
Castaneda told the investigators that Morales was arrested for DWI
and possession of a firearm and that he paid Weaver $1,000 to get the case
dismissed. Castaneda admitted that, although he did not receive any money
directly from this transaction, Weaver paid him $1,000 on a separate
occasion to “keep [him] happy.”
10
Castaneda told the government that Cano paid Weaver $15,000 to fix
a cocaine possession charge. When Weaver was unable to get the case
dismissed or reduced, the money was returned to Cano’s family.
11
Castaneda informed the agents that Meliton Garcia paid Weaver $500
to get an assault charge dismissed or reduced. Out of that money,
Castaneda admitted to having kept $50.
12
Count One alleged a pattern of racketeering activity through
predicate acts of bribery and extortion —— the taking of payments for
fixing DWI and marijuana possession prosecutions —— in violation of 18
U.S.C. § 1962(c)(RICO). Count Two alleged a conspiracy to engage in the
same pattern of racketeering activity, in violation of 18 U.S.C. § 1962(d).

4
Castaneda and Weaver.13

Castaneda filed two motions to dismiss the indictment, in one

of which he argued that the government had breached its agreement

not to prosecute.14 After an evidentiary hearing, the district

court denied Castaneda’s motion without reasons.

Thereafter, Castaneda was convicted by a jury of RICO

conspiracy.15 The district court entered judgment in accordance

with the jury’s verdict, and sentenced Castaneda to 33 months in

prison, to be followed by a three year period of supervised

release, and a fine of $7,500.00. Castaneda appeals his

conviction.16

Counts Three through Six alleged specific acts of extortion involving both
defendants, in violation of 18 U.S.C. §§ 1951 and 1952 (Hobbs Act). Count
Seven concerned an act of extortion involving only Weaver.
13
Weaver pled guilty to the RICO substantive count, and his sentence
was reduced to approximately 17 months. The reduction of Weaver’s sentence
was contingent on his willingness to testify truthfully against Castaneda
at trial.
14
In his other motion, Castaneda sought to have the indictment
dismissed on the ground that the government had breached its proffer
agreement by using his immunized testimony in the grand jury proceeding.
The district court denied this motion but we do not reach it.
15
The jury acquitted Castaneda of the RICO substantive count and the
four Hobbs Act counts. The count on which Castaneda was convicted
identified as predicate acts five DWI cases that he and Weaver conspired
to fix. Named as the bribe-payors/extortion victims in these cases are
Julio Gonzalez (a participant in two transactions —— his own and that
involving Maurice Middleton), Meliton Garcia, Rafael Gonzalez and Sammy
Snodgrass (a participant in the transaction involving Jeff Lewis).
Predicate Act Six —— referring to the dismissal of a marijuana charge for
Silverio Garza —— pertained only to Weaver.
16
On appeal, Castaneda asserts four distinct errors that allegedly
warrant the reversal of his conviction. Because we conclude that the
government breached its transactional immunity agreement and that the

5
 II

ANALYSIS

Castaneda argues that the district court should have granted

his motion to dismiss the indictment because the government

breached its oral agreement not to prosecute. Implicit in this

claim is the charge that the government failed to show by a

preponderance of the evidence that Castaneda materially breached

the immunity agreement, without which the government could not

repudiate the contract and prosecute him. We agree.

Nonprosecution agreements, like plea bargains, are contractual

in nature, and are therefore interpreted in accordance with general

principles of contract law.17 Under these principles, if a defendant

lives up to his end of the bargain, the government is bound to

perform its promises.18 If a defendant “materially breaches” his

commitments under the agreement, however, the government can be

released from its reciprocal obligations.19 When the government

district court erred in failing to dismiss Castaneda’s indictment on this
ground, we do not reach Castaneda’s other three assignments of error.
17
United States v. Moulder, 141 F.3d 568, 571 (5th Cir. 1998); United
States v. Ballis, 28 F.3d 1399, 1409 (5th Cir. 1994); United States v.
Fitch, 964 F.2d 571, 574 (6th Cir. 1992); United States v. Brown, 801 F.2d
352, 354 (8th Cir. 1986).
18
United States v. Tilley, 964 F.2d 66, 70 (1st Cir. 1992).
19
Ballis, 28 F.2d at 1409; Tilley, 964 F.2d at 70; United States v.
Crawford, 20 F.3d 933, 935 (8th Cir. 1994).
According to Castaneda, the government’s sole remedy for his alleged
breach would be prosecution for perjury, not rescission of the agreement.
Castaneda claims that the government is limited to the remedies stated in
the agreement. Because the oral agreement did not specifically contemplate

6
believes that a defendant has breached the terms of a nonprosecution

agreement and wishes to be relieved of performing its part of the

bargain —— here, refraining from prosecuting the defendant —— due

process prevents the government from making this determination and

nullifying the agreement unilaterally.20 Instead, the government

must prove to the court by a preponderance21 of the evidence that

(1) the defendant breached the agreement, and (2) the breach is

sufficiently material to warrant rescission.22 If the pleadings show

no factual dispute, however, the court may determine breach as a

matter of law.23 Because the district court issued no factual

prosecution for immunized crimes in the event he failed to provide full and
truthful information, argues Castaneda, the government may not revoke its
grant of transactional immunity. In support of this proposition, Castaneda
cites United States v. Fitch, 964 F.2d 571, 575 (6th Cir. 1992).
20
United States v. Verrusio, 803 F.2d 885, 888 (7th Cir. 1986); United
States v. Tarrant, 730 F.Supp. 30, 32 (N.D. Tex. 1990).
21
United States v. Price, 95 F.3d 364, 367 (5th Cir. 1996)(stating
that, in determining whether government’s actions have breached terms of
plea agreement, defendant bears burden of demonstrating underlying facts
that establish breach by preponderance of evidence); United States v.
Wittie, 25 F.3d 250, 262 (5th Cir. 1994), aff’d, 515 U.S. 389 (1995)(same);
Tilley, 964 F.2d at 71 (holding that before government may revoke
agreement, it must show by a preponderance of evidence that the defendant
has committed a substantial breach); United States v. Packwood, 848 F.2d
1009, 1011 (9th Cir. 1988)(same).
We recognize, however, that not all courts have adopted this
standard. See, e.g., United States v. Gonzalez-Sanchez, 825 F.2d 572, 578
(1st Cir. 1987)(holding that government bears the burden of demonstrating
by adequate evidence that there has been a substantial breach by
defendant); State v. Rivest 316 N.W.2d 395, 398-99 (Wis. 1982)(adopting a
beyond a reasonable doubt standard); United States v. Skalsky, 616 F.Supp.
676, 681 (D.N.J. 1985)(requiring proof of material breach by clear and
convincing evidence).
22
See Packwood, 848 F.2d at 1011; Tarrant, 730 F.Supp. at 32.
23
Packwood, 848 F.2d at 1011; United States v. Calabrese, 645 F.2d
1379, 1390 (10th Cir. 1981).

7
findings in this case, we review Castaneda’s claim of breach of a

nonprosecution agreement de novo.24

In the instant case, the government promised not to prosecute

Castaneda for his role in the bribery scheme in exchange for his

full and truthful disclosure of information implicating Weaver.

After dealing with Castaneda for more than a year, the government

rescinded this agreement at the eleventh hour, and Castaneda was

indicted by the grand jury one day later. At a pretrial hearing on

Castaneda’s motion to dismiss his indictment,25 the government

presented evidence purporting to show that Castaneda had breached

his end of the bargain by failing to reveal “relevant and material

information . . . of which he was well aware.”26 Because of these

24
Moulder, 141 F.3d at 571; Price, 95 F.3d at 367; United States v.
Laday, 56 F.3d 24, 26 (5th Cir. 1995); Wittie, 25 F.3d at 262; United
States v. Valencia, 985 F.2d 758, 760 (5th Cir. 1993).
The government argues that the appropriate standard of review is
clear error. See United States v. Gibson, 48 F.3d 876, 878 (5th Cir.
1995); Ballis, 28 F.3d at 1409. We agree that this is the appropriate
standard for reviewing a district court’s findings as to the underlying
facts that constitute breach. In the absence of such factual findings,
however, we must conduct a de novo review of every aspect of Castaneda’s
purported breach.
25
The government did not seek a judicial determination of breach until
after Castaneda had been indicted, and Castaneda does not contend that a
hearing had to have been held prior to this time. For the purposes of this
opinion, therefore, we do not pass on the issue of when, during the
progress of a criminal investigation, a judicial determination of breach
is required to comport with due process. See Verrusio, 803 F.2d at 888-89
(discussing whether defendant’s indictment constituted a deprivation of his
interest in the enforcement of a plea agreement, and whether he was
entitled to a preindictment hearing to determine whether he had breached
his obligations under that agreement).
26
All of the evidence presented at the pretrial hearing pertained to
Castaneda’s omission of information about illegal activities involving
Weaver. It appears that the government introduced evidence in camera

8
alleged omissions, contended the government, it was entitled to

rescind the agreement and be relieved of its obligation not to

prosecute. Castaneda countered that he gave the government

considerable, accurate, and incriminating information about Weaver,

and that any omissions Castaneda made were essentially inadvertent

or duplicative and thus did not amount to a material breach of the

agreement.27 In so many words, he argued substantial performance.

There is no clear Fifth Circuit law on the issue of what

constitutes a “material breach” of a nonprosecution agreement.28

regarding Castaneda’s alleged omissions about activities involving Sheriff
Alex Perez. It is not clear whether the court took this evidence into
account when determining Castaneda’s breach, and this evidence is not in
the record on appeal. Although the government maintains its position that
Castaneda breached the nonprosecution agreement with regards to both Weaver
and Perez, the government has failed to cite any specific omissions
involving Perez and has failed to see to it that its in camera inculpatory
evidence is included in the record on appeal.
27
Castaneda’s lawyer —— Ernesto Gamez, Jr. —— wrote a letter to AUSA
Mosbacker, dated December 12, 1996, in which he argued that Castaneda’s
inadvertent omission of some names does not amount to a lie.
Forgetfulness, argued Gamez, is not the same as noncompliance.
Furthermore, Gamez contended, the government “either already possessed
[the omitted names] or acquired this additional information from
[Castaneda’s] statements.” In the letter, Gamez noted that he had spoken
with Agent Cisneros on several occasions, and that he had been led to
believe that the government was fully satisfied with the information
provided by Castaneda. Gamez also claimed that Agent Cisneros had agreed
to contact him in the event the government needed additional information.
28
For some of the circumstances in which courts have allowed the
government to rescind plea agreements, see Ballis, 28 F.3d at 1409
(withholding of information, untruthful testimony, and inducement of plea
agreement by fraud); Hentz v. Hargett, 71 F.3d 1169, 1172-75 (5th Cir.
1996)(informing prosecutor of intent to change testimony is circumstance
amounting to anticipatory repudiation which justifies revocation of
agreement); Tarrant, 730 F.Supp. at 32-33(refusing to cooperate by failing
to meet with government representatives, failing to testify before grand
jury and fleeing jurisdiction to avoid cooperation); United States v.
Donahey, 529 F.2d 831, 832 (5th Cir. 1976)(providing evasive, misleading
answers, answers which could not be verified, and refusing to answer

9
In the context of general contract law, however, we have recognized

that a breach is not material unless the non-breaching party is

deprived of the benefit of the bargain.29 The less the non-

breaching party is deprived of the expected benefits, the less

material the breach.30

Courts within this Circuit have clarified the concept of

material breach by comparing it with the converse concept of

substantial performance.31 Using this approach, if a party’s

questions).
29
Hanson Prod. Co. v. Americas Ins. Co, 108 F.3d 627, 630 (5th Cir.
1997)(relying on Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 692-92
(Tex. 1994) in holding that, where an insurer is not prejudiced by a
breach, the breach is not material, the insurer has not been deprived of
the benefit of the bargain, and it should not be relieved of its obligation
to provide coverage).
The “benefit of the bargain” standard has been adopted, at least in
part, by the Eighth Circuit in determining breach of an immunity agreement.
In United States v. Crawford, 20 F.3d 933 (8th Cir. 1994), the court relied
on the following three factors —— borrowed from the Restatement of
Contracts —— to guide their determination: (1) the extent to which the
injured party will be deprived of the benefit which he reasonably expected;
(2) the likelihood that the party failing to perform will cure his failure;
and (3) the extent to which the behavior of the party failing to perform
comports with standards of good faith and fair dealing. Id. at 935. The
other considerations listed in the Restatement as significant in
determining the materiality of a breach include (1) the extent to which the
injured party can be adequately compensated for the part of that benefit
of which he will be deprived; and (2) the extent to which the party failing
to perform or to offer to perform will suffer forfeiture. Restatement
(Second) of Contracts § 241 (1981).
In United States v. Fitch, the Sixth Circuit adopted a somewhat more
rigorous standard, holding that the government must prove a “bad faith,
intentional, substantial omission” on the part of the defendant before it
can be released from its obligations. 964 F.2d at 574 (adopting the
standard set forth in United States v. Castelbuono, 643 F.Supp. 965, 971
(E.D.N.Y. 1986)).
30
Hernandez v. Gulf Group Lloyds, 875 S.W.2d 691, 693 (Tex. 1994).
31
See White Hawk Ranch, Inc. v. Hopkins, No. CIV.A.91-CV29-DD, 1998
WL 94830, at *3 (N.D.Miss. Feb. 12, 1998). See also 2 E. Allan Farnsworth,

10
“nonperformance . . . is innocent, does not thwart the purpose of

the bargain, and is wholly dwarfed by that party’s performance,”

the breaching party has substantially performed under the contract,

and the non-breaching party is not entitled to rescission.32 We

think that this approach is equally applicable in determining the

materiality of a breach in the context of nonprosecution

agreements.33 Given the government’s burden of proof, our de novo

application of this test demonstrates that the relatively

insignificant omissions by Castaneda did nothing to frustrate the

government’s prosecution of Weaver. Moreover, these omissions pale

by comparison to the plethora of information delivered by

Castaneda.

The government argues that Castaneda committed a material

breach of the agreement by failing to reveal Weaver’s involvement

Farnsworth on Contracts § 8.16 at 442 (2d ed. 1990)(recognizing that
substantial performance is performance without a material breach, and a
material breach results in performance that is not substantial).
32
White Hawk Ranch, No. CIV.A.91-CV29-DD, 1998 WL 94830, at *3.
33
The government cites United States v. Gerant, 995 F.2d 505, 509 (4th
Cir. 1993) in support of its argument that Castaneda’s breach of the
agreement should not be overlooked simply because he furnished the
government with some useful information. In Gerant, however, the court
concluded that the defendant’s breach of the nonprosecution agreement had
“seriously impaired ongoing drug investigations and prosecutions,” thereby
entitling the government to rescission of the agreement. Id. In other
words, the government had been prejudiced by the defendant’s breach.
Moreover, the court was careful to point out that there may be cases “where
the extent of information and cooperation provided by a defendant who has
trivially breached a nonprosecution agreement is so great that the court
is persuaded that the defendant substantially complied with the agreement.”
Id. at 509 n.4. Thus, while the Fourth Circuit rejected the defendant’s
substantial compliance argument under the particular facts of the case,
Gerant does not stand for a per se rejection of this argument.

11
in the dismissal of DWIs for Meliton Garcia, Maurice Middleton and

Rafael Gonzalez, as well as the dismissal of a gun charge for Jose

Galvan.34 Although it is clear that Castaneda omitted some

information during his interviews with the government, it is

anything but clear that, when viewed in the context of what the

government already knew or learned derivatively from other sources,

these omissions rise to the level of a material breach, even

collectively.

Castaneda provided the government with substantial, detailed

accounts of bribery involving Weaver and seven other individuals ——

Julio Gonzalez, Jeff Lewis, Chuy Hinojosa, Guadalupe Barajas,

Federico Morales, Alejandro Cano, and Meliton Garcia. Weaver’s

illegal activities with three of these individuals eventually

formed the basis for predicate racketeering acts and Hobbs Act

counts in the indictment.35

Even the government’s examples of omissions cut both ways.

With regard to Meliton Garcia, Castaneda did provide the government

34
Agent Cisneros testified at the pretrial hearing that the government
knew about the cases of Meliton Garcia, Maurice Middleton and Rafael
Gonzalez before interviewing either Castaneda or Weaver. The government
conducted interviews with Weaver on February 27, 1995, March 22, 1995, May
31, 1995 and January 29, 1996.
35
The indictment listed, as RICO predicate acts, instances of bribery
and extortion involving Julio Gonzalez (Act One —— for dismissal of his own
DWI charge), Meliton Garcia (Act Two —— albeit for the dismissal of his DWI
charge rather than his assault charge), and Jeff Lewis (Act Five —— through
Sammy Snodgrass for dismissal of Lewis’s DWI). Illegal activities with
these same individuals formed the basis of Counts Three, Four, and Six ——
Hobbs Act violations.

12
with information about the dismissal of an assault charge; he

merely failed to mention the dismissal of a DWI charge as well.

Thus, Castaneda led the government to the right source, even if his

tip was not complete.

Likewise, although Castaneda did not disclose information

about Weaver’s dismissal of Maurice Middleton’s DWI,36 Castaneda did

provide accurate information about his own involvement as a go-

between for Weaver and Julio Gonzalez —— and, thereafter, Gonzalez

confessed to the government that he had contacted Castaneda for

help getting DWIs dismissed both for himself and Middleton, as well

as for Jeff Lewis. Thus, Castaneda did indirectly that about which

the government faults him for not doing directly.

Finally, with regard to Rafael Gonzalez37, Agent Cisneros and

AUSA Mosbacker were inconsistent about the extent of information

Castaneda provided. In the pretrial motion hearing, Agent Cisneros

repeatedly testified that Castaneda had discussed Rafael’s DWI,

only to recant this assertion on further questioning. AUSA

Mosbacker admitted that he thought Castaneda had discussed

illegalities in which Weaver and Rafael were involved, but

maintained that Castaneda did not mention the DWI. Even if

Castaneda failed to reveal any direct information about Rafael,

though, it is undisputed that he did provide substantial

36
Maurice Middleton was named in predicate Act Three of the
indictment.
37
Rafael Gonzalez was named in predicate Act Four and Count Five.

13
information about Jose Reyes —— a source intimately connected with

Rafael Gonzalez. Thus, it appears that the only Weaver-related

individual about whom Castaneda failed entirely to provide

information was Jose Galvan —— for dismissal of a gun charge that

did not serve as the basis for any count in the indictment.38

Having reviewed the briefs of the parties, heard oral

argument, and thoroughly reviewed the record, we are now satisfied

that, despite Castaneda’s relatively insignificant omissions, the

government got the benefit of its bargain and has failed to carry

its burden of proving a material breach by Castaneda. The

government granted Castaneda transactional immunity with the

intention of receiving in return leads and information pertinent to

its investigation of Weaver and corruption in the Cameron County

Attorney’s Office. Castaneda provided both direct and indirect

leads, and volumes of such information as well. In fact, Castaneda

gave the government significant quantities of detailed information

about Weaver’s involvement in at least seven illegal transactions

38
In addition, it appears that Castaneda did not provide any
information about an alleged DWI dismissal for an individual named Perez
(first name unknown). When asked during the pretrial hearing to list the
omissions constituting Castaneda’s breach, however, AUSA Mosbacker did not
mention this transaction. Neither is the Perez omission mentioned in the
government’s brief to this Court.
We note that, in addition to dismissals of charges against Julio
Gonzalez, Meliton Garcia, Maurice Middleton, Rafael Gonzalez, and Jeff
Lewis, the indictment identified as a predicate act for the substantive
RICO count the dismissal of a marijuana charge for Silverio Garza (Act
Six). This same transaction formed the basis of Count Seven. Castaneda
was not named in Act Six or Count Seven, however, and the government does
not assert that he had any knowledge of this transaction.

14
conducted through the County Attorney’s Office.39 Although it

appears that Castaneda’s performance was not perfect —— that he did

not literally “tell everything he knew,” as he was technically

required to do under the agreement —— the government has failed to

show that these omissions were intentional or, more importantly,

that the government was prejudiced. Much of the relatively little

that Castaneda omitted was already known to the government before

interrogating Castaneda, or was discovered from other sources.

When viewed in light of the overwhelming quantity of information he

furnished about numerous individuals and incidents involving

Weaver, much that Castaneda omitted must be classified either as

cumulative or surplusage. In the absence of proof of substantial

or intentional omissions by Castaneda constituting prejudice to the

government, the district court erred in permitting the government

to revoke the nonprosecution agreement with Castaneda and prosecute

him in this case.

III

CONCLUSION

It ill behooves government agents and prosecutors to enter

into agreements of transactional immunity with mid-level co-

conspirators, milk them of substantial leads and information that

literally make the government’s case against the “big fish” while

39
Including dismissals for Julio Gonzalez, Jeff Lewis, Chuy Hinojosa,
Guadalupe Barajas, Federico Morales, Alejandro Cano, and Meliton Garcia.
The information that Castaneda provided regarding Jose Reyes was directly
pertinent to the illegal activities of Sheriff Perez but not Weaver.

15
coincidentally giving the government a lay-down winning hand

against the cooperating co-conspirator; then, at the last moment,

rely on some technical or relatively minor deficiency in

performance to pull the rug from under the cooperating informant by

claiming a breach and proceed to prosecute him in a slam-dunk case

based largely on his own revelations. Yet, this is precisely what

we perceive to have happened here, and due process cannot abide

such behavior. For the reasons explained above, we conclude that

the district court erred in failing to grant Castaneda’s motion to

dismiss the indictment, which was obtained in violation of a

transactional immunity agreement, that the government failed to

prove was materially breached. Castaneda’s conviction of RICO

conspiracy is reversed, the sentence imposed in accordance with

that conviction is vacated, and the case is remanded to the

district court for entry of a judgment of acquittal.

REVERSED; sentence VACATED; and REMANDED with instructions.

16