EFTA00182748

06/05/2000 10:01 FAX 
ROTHSTEIN ROSENFELT ADLE 
121010 
06-01-'09 15:37 FROM-THOMAS & LOCICERO 
8139843078 
T-989 P006/007 F-845 
of the New York Times Co. v. Holtzendorf 507 So. 2d 667, 668 (Fla. 2d DCA 1987) ("While a 
judge may impose whatever legal sentence he chooses, if such sentence is based on a tangible 
proceeding or document, it is within the public domain unless otherwise privileged."). In this 
case, no interest justifies continued sealing of these "significant" documents that Judge Pucillo 
considered in accepting the plea and sentencing the Defendant. The lack of any such 
compelling interest — as well as the parties' failure to comply with the standards for sealing 
documents initially — provide good cause for unsealing the documents at this time. 
8. 
Finally, continued closure of these documents is pointless, because many portions 
of the sealed documents already have been made public. For example, court papers quoting 
excerpts of the agreement have been made public in related federal proceedings! As the Florida 
Supreme Court has noted, "there would be little justification for closing a pretrial hearing in 
order to prevent only the disclosure of details which had already been publicized." Le
wis, 426 
So. 2d at 8. Similarly, in this case, to the extent that information already has been made public, 
continued closure is pointless and, therefore, unconstitutional. 
9. 
The Post has no objection to the redaction of victims' names (if any) that appear 
in the sealed documents. In addition, insofar as the Defendant or State Attorney seek continued 
closure, the Post requests that the Court inspect the documents in camera in order to assess 
whether, in fact, continued closure is proper. 
3 See, ea., "Defendants Jeffrey Epstein and 
Motion for Stay," Mit 
Epstein, Case No. 08-80811 (S.D. Fla. July 25, 2008) (filed publicly Jan. 7, 2009). 
4 
EFTA00182788

06/05/2009 10:01 FAX 
ROTHSTEIN ROSENFELT ADLE 
• 
ei011
06-01-'09 15:38 FROM-THOMAS & LOCICERO 
8139843070 
T-989 P007/007 F-845 
WHEREFORE, the Post respectfully requests that this Court unseal the non-prosecution 
agreement and addendum and grant the Post such other relief as the Court deems proper. 
Respectfully submitted, 
THOMAS, LOCICERO & BRALOW PL 
canna IC. Sh 
Florida Bar No.: 
James B. Lake 
Florida Bar No.: 
101 N.E. Third Avenue, Suite 1500 
Fort Lauder 
Telephone: 
Facsimile: 
Attorneys for The Palm Beach Post 
CERTIFICATE OF SERVICE 
A FOCA* 
I HEREBY CERTIFY that a true and correct copy of the foregoing has been tlimished 
via facsimile and U.S. Mail to: R. Alexander Acosta, United States Attorney's Office - Southern 
District, 500 S. Australian Ave., Ste. 400, West Palm Beach, FL 33401 (fax: 
Michael McAuliffe, Esq., and Judith Stevenson Arco, Esq., State Attorney's Office - West 
Palm Beach, 401 North Dixie Highway, West Palm Beach, FL 33401 (fax: I 
I); Jack 
Man Goldberger, Esq., Atterbury Goldberger, et al., 250 S. Australian Ave., Ste. 1400, West 
Palm Beach, FL 33401 (fax: I)
; and Bradley J. Edwards, Esq. and William 
Berger, Esq., Rothstein Rosenfeldt Adler, 401 East Las Olas Blvd., Suite 1650, Fort Lauderdale, 
FL 33394 (nix: 
on this 1st clay of June, 2009. 
5 
EFTA00182789

Page 2 of 5 
Westlaw, 
780 F.2d 929 
780 F.2d 929 
(Cite as: 780 F.2d 929) 
H 
United States Court of Appeals, 
Eleventh Circuit. 
UNITED STATES of America, Plaintiff-Appellant, 
Leon J. WOOD, III, Defendant-Appellee. 
No. 85-3261. 
Jan. 21, 1986. 
In prosecution for violations of the Racketeer Influ-
enced and Corrupt Organizations Act, the United 
States District Court for the Middle District of Flor-
ida, Hodges, Chief Judge, dismissed indictment 
against defendant, concluding that nonprosecu-
tion agreement entered into by the Government 
and defendant barred prosecution, and the Govern-
ment appealed. The Court of Appeals held that de-
fendant's failure to disclose his part in possible 
drug deal amounted to a substantial breach of 
agreement nullifying Government's promise not to 
prosecute defendant, even though defendant was 
acquitted on drug charges arising out of incident in 
question. 
Reversed and remanded. 
West Headnotes 
Criminal Law 110 *C=.42.5(3) 
110 Criminal Law 
11011 Defenses in General 
I 10k42 Immunity to One Furnishing Inform-
ation or Evidence 
I 1 0k42.5 Agreements Granting Immunity 
Il0k42.5(3) 
k. 
Performance 
and 
Breach. Most Cited Cases 
(Formerly I 10k42) 
Fact that alleged drug deal was not under investiga-
tion and that the Government did not specifically 
inquire about incident did not justify defendant's 
failure to disclose his knowledge of drug deal, 
where defendant admitted that he understood that 
Page I 
he was required pursuant to reprosecution agree-
ment with Government to fully disclose all inform-
ation he possessed concerning drug activities, and 
thus, defendant's failure to disclose his part in such 
incident amounted to a substantial breach of agree-
ment nullifying Government's promise not to pro-
secute defendant, even though defendant was ac-
quitted on charges arising out of alleged drug deal. 
* John M. Fitzgibbons, Asst. U.S. Any., Tampa, 
Fla., for plaintiff-appellant. 
Frank Regano, Tampa, Fla., for defendant- appellee. 
Appeal from the United States District Court for the 
Middle District of Florida. 
Before HILL and HENDERSON, Circuit Judges, 
and TUTTLE, Senior Circuit Judge. 
PER CURIAM: 
This is an appeal from the government's unsuccess-
ful attempt to prosecute Leon J. Wood, Ill for viol-
ations of the Racketeer Influenced and Corrupt Or-
ganizations Act, I8 U.S.C. § 1962(c) and (d). The 
United States District Court for the Middle District 
of Florida, adopting the magistrate's report and re-
commendation, dismissed the indictment against 
Wood, concluding that a non-prosecution agree-
ment entered into by the government and Wood 
barred the prosecution. We reverse. 
On May 20, 1983, while Wood was incarcerated at 
Florida's Lake Butler Correctional Facility for nar-
cotics violations, he entered into a covenant with 
the government in which the government agreed 
not to prosecute Wood if he consented to 
*930 fully and truthfully disclose to law enforce-
ment everything that he knows concerning offers 
to, or the actual bribery of any public official con-
cerning any matter, about any other matter, includ-
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780 F.2d 929 
780 F.2d 929 
(Cite as: 780 F.2d 929) 
ing drug importation and drug distribution conspir-
acies now under investigation, and about any other 
matter as to which the Government may inquire and 
shall not at any time willfully fail to disclose any 
fact material to any such inquiry or matter. 
The agreement also provided that if Wood "should 
fail in any way to fulfill completely each and every 
one of his obligations, then the Government will be 
free from its obligations to Mr. Wood." 
Between May and December 1983, the FBI inter-
viewed Wood on numerous occasions asking him 
about various matters relating to bribery attempts 
and drug trafficking. On January 12, 1984, Wood 
was arrested on narcotics charges for activities 
which allegedly took place in the Jacksonville area. 
lie was subsequently acquitted by a jury of those 
charges. In April, 1984, government agents in-
formed Wood that he had breached the immunity 
agreement. After the parties met unsuccessfully to 
work out their differences, the government indicted 
Wood in the case currently pending before this court. 
An evidentiary hearing was held before a United 
States Magistrate on August 22, 1984. Sub-
sequently, in a written report and recommendation, 
the magistrate concluded that the government failed 
to establish a "substantial breach of the specific 
terms of the agreement" and that Wood was entitled 
to "specific enforcement of the agreement." Magis-
trate's Report and Recommendation at 6. The dis-
trict court adopted the report on March 7, 1985 and 
subsequently dismissed the indictment. 
On appeal, the government first contends that the 
district court improperly applied a substantial com-
pliance standard to Wood's obligations under the 
agreement instead of a strict compliance criterion. 
Second, it maintains that the district court's finding 
that Wood substantially complied with the contract 
is clearly erroneous. Because we agree with the lat-
ter argument, we need not decide whether the dis-
trict court erred by adopting a substantial compli-
ance rule. 
Page 2 
The government alleges that on numerous occa-
sions Wood withheld information pertaining to 
bribery attempts or drug transactions until he was 
confronted with independent facts establishing that 
he actually had knowledge of the relevant incidents. 
For example, United States Attorney Joseph Magri 
testified at the hearing before the magistrate that 
the government learned that Wood had sold cocaine 
to John Tamargo but Wood did not admit to the sale 
until after Magri challenged this denial with facts 
derived from another source. Supplemental Record 
on Appeal, Vol. III at 209, 212. Also, the govern-
ment contends that Wood initially told them that he 
had paid $50,000.00 to Angelo Bedami to have him 
bribe state officials in the Hillsborough County 
Sheriffs Office but that he asked for a return of the 
money. Subsequently, the government discovered 
that Wood had again furnished the money to Bed-
ami and when they confronted him with that fact, 
he admitted that he did give the money to Bedami 
on a second occasion. Supplemental Record on Ap-
peal, Vol. III at 135. The government urges that 
these incidents, along with numerous others, FM
demonstrate a breach of the agreement. 
MI. Wood admitted at the hearing that he 
initially did not tell the government about 
the involvement of David Grimes in drug 
transactions because Grimes was "like a 
brother to him." Wood did tell the govern-
ment about Grimes' drug activities in sub-
sequent interviews. See Appendix to Ap-
pellant's Brief at 193. 
In response, Wood simply claims that he eventually 
cured all of these alleged violations and that the 
district court's finding that he did not breach the 
agreement because of the corrections should be 
sustained. Even if we were to agree with this ex-
planation, we must overturn the district court's de-
cision because Wood breached the agreement by 
not disclosing the drug activities*931 leading up to 
his arrest in Jacksonville. 
Wood admitted at the hearing before the magistrate 
that he attempted to set up a drug deal with Robert 
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Page 4 of 5 
780 F.2d 929 
780 F.2d 929 
(Cite as: 780 F.2d 929) 
Grogan in Jacksonville. Supp. Record on Appeal, 
Vol. II at 28, 34. He was arrested for these activit-
ies and subsequently acquitted by a jury. lie testi-
fied at his trial that he was acting as a quasi-law en-
forcement officer attempting to set up Grogan and 
that he never intended to actually consummate the 
drug transaction. He reaffirmed this position in the 
hearing before the magistrate. Id. at 36. He also ad-
mitted that he did not tell the government about 
these efforts. He testified as follows before the ma-
gistrate: 
Q. You were engaged in an undercover operation 
on your own; is that your testimony? 
A. Yes, sir, I was. 
Q. And you had knowledge that other individuals 
were attempting to commit a crime involving a 
large amount of narcotics; isn't that correct? 
A. They were talking about it, yes, sir. 
Q. And you did not reveal that information to 
Agent Wooldrige? 
A. No, sir.... 
Id. 
Wood defends his failure to inform the government 
about the Jacksonville drug scheme on the ground 
that he was never asked about it. lie stated that he 
was only asked about drug activities in the Tampa 
Bay area and not in Jacksonville. Assuming the 
truth of that testimony, it is nonetheless clear that 
Wood breached the agreement by intentionally 
withholding the information. Wood described his 
obligations under the agreement: 
My understanding was that I would give informa-
tion, tell them everything I knew about bribe at-
tempts or drug importation and trafficking that was 
then under investigation or that I had knowledge of 
and in return I would not be prosecuted in any way 
by the federal government. (emphasis added). 
Page 3 
Id. at 10. 
In light of this concession, Wood's explanation for 
his failure to tell the government about the drug 
activities in Jacksonville does not satisfy the re-
quirements of his contract. Ile admitted that he 
knew about a possible drug deal and yet failed to 
disclose that information to the government pur-
portedly because they did not specifically mention 
Jacksonville in their inquiry,'2 Under his own in-
terpretation of his duties under the contract, 
however, he had a continuing obligation to reveal 
that information regardless of whether he was spe-
cifically asked about it. In our view, this failure to 
disclose the Jacksonville drug activities, standing 
alone, constitutes a substantial breach of the con-
tract. 
FN2. Wood also testified that he didn't tell 
the government about his dealings in Jack-
sonville because he wanted to acquire all 
the information at one time and then "put 
everything in their lap for them." Other-
wise he was afraid that the government 
"would have blown the whole case for 
me." Supp. Record on Appeal, Vol. II at 
40. This reason does not excuse Woods' 
clear breach of the contract in light of the 
fact that he never came forward and told 
the 
government about 
the Jacksonville 
activities. 
The district court held that Wood's failure to tell the 
government agents of his Jacksonville activities did 
not amount to a substantial breach of the contract 
because the "matter was not under investigation at 
the time of the agreement, the Government did not 
make specific inquiry concerning the matter [and) 
the incidental references to possible police corrup-
tion has [sic) been fully disclosed by Mr. Wood 
both at trial and thereafter. Mr. Wood was acquitted 
by a jury that must have found his testimony cred-
ible in arriving at its conclusion." Record Excerpts 
at 110. The fact that the Jacksonville episode may 
not have been under investigation and that the gov-
ernment may not have made specific inquiry about 
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780 F.2d 929 
780 F.2d 929 
(Cite as: 780 F.2d 929) 
it does not justify Wood's failure to disclose his 
END OF DOCUMENT 
knowledge of the drug scheme in light of his admis-
sion that he understood that he was required to fully 
disclose all information that he possessed concern-
ing •932 drug activities.'" Furthermore, his ac-
quittal on charges arising out of this course of con-
duct is irrelevant to the issues here because Wood 
has admitted that he had knowledge of people at-
tempting to engage in illegal drug pursuits. It is 
simply not germane that a jury believed Wood 
when he testified that his participation in those 
transactions was for a lawful purpose. 
FN3. Woods version of his obligations is 
consistent with the wording of the agree-
ment and the government's understanding 
of the agreement. 
We hold that Wood's failure to disclose his part in 
the Jacksonville drug undertaking amounted to a 
substantial breach of the contract and the district 
court's finding to the contrary is clearly erroneous. 
Therefore, under the terms of the agreement, 
Wood's failure to comply with his obligations nulli-
fies the government's promise not to prosecute him 
and the government is entitled to have the indict-
ment reinstated."" 
FN4. Wood argues that it would be unfair 
to allow the government to use statements 
that he made after the time that the govern-
ment considered the contract breached. 
This issue, however, relates to the admiss-
ibility of those statements not to the ques-
tion of whether Wood violated the agree-
ment. We express no opinion as to the ad-
missibility of any statements made by 
Wood either before or after the breach of 
the contract. 
REVERSED and REMANDED. 
C.A.I I (Fla.),1986. 
U.S. v. Wood 
780 F.2d 929 
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Page 2 of 11 
Westlaw. 
162 F.3d 832 
162 F.3d 832 
(Cite as: 162 F.3d 832) 
C 
United States Court of Appeals, 
Fifth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
v. 
Raymond CASTANEDA, Defendant-Appellant. 
No. 97-40307. 
Dec. 9, 1998. 
Defendant was convicted in the United States Dis-
trict Court for the Southern District of Texas, 
Filemon B. Vela, .1., of Racketeer Influenced and 
Corrupt Organizations Act (RICO) conspiracy. De-
fendant appealed. The Court of Appeals, Wiener, 
Circuit Judge, held that government failed to prove 
that defendant materially breached nonprosecution 
agreement providing defendant with transactional 
immunity. 
Reversed, sentence vacated, and remanded. 
West Headnotes 
III Criminal Law 4C=42.5(1) 
I I 0k42.5(1) Most Cited Cases 
(Formerly 110k42) 
111 Criminal Law 4C=.42.5(3) 
1101(42.5(3) Most Cited Cases 
(Formerly 1 I 0k42) 
Nonprosecution agreements, like plea bargains, are 
contractual in nature, and are therefore interpreted 
in accordance with general principles of contract 
law, under which if a defendant lives up to his end 
of the bargain, the government is bound to perform 
its promises, but if a defendant materially breaches 
his commitments under the agreement, the govern-
ment can be released from its reciprocal obliga- tions. 
121 Constitutional Law €=)4526 
92k4526 Most Cited Cases 
(Formerly 92k257.5) 
When the govemment believes that a defendant has 
Page I 
breached the terms of a nonprosecution agreement 
and wishes to be relieved of performing its part of 
the bargain, due process prevents the government 
from making this determination and nullifying the 
agreement unilaterally. U.S.C.A. Const.Amend. 5. 
131 Criminal Law 4C=042.5(3) 
110k42.5(3) Most Cited Cases 
(Formerly I 1 Ok42) 
131 Criminal Law €=.42.7(2) 
I I 0k42.7(2) Most Cited Cases 
(Formerly I I Ok42) 
When the government believes that a defendant has 
breached the terms of a nonprosecution agreement 
and wishes to be relieved of performing its part of 
the bargain, the government must prove to the court 
by a preponderance of the evidence that (I) the de-
fendant breached the agreement, and (2) the breach 
is sufficiently material to warrant rescission. 
141 Criminal Law £
42.7(3) 
110k42.7(3) Most Cited Cases 
(Formerly I 1 Ok42) 
If the pleadings show no factual dispute, the court 
may determine defendant's breach of terms of non-
prosecution agreement as a matter of law. 
151 Criminal Law (C=.1139 
I I 0k1139 Most Cited Cases 
Where district court issued no factual findings, ap-
pellate court would review defendant's claim of 
breach of a nonprosecution agreement de novo. 
161 Criminal Law €=.42.5(3) 
I I0k42.5(3) Most Cited Cases 
(Formerly I 1 Ok42) 
Government failed to prove that defendant materi-
ally breached nonprosecution agreement providing 
defendant with transactional immunity regarding 
his role in setting up "clients" with investigator in 
county attorney's office who would arrange to have 
criminal charges reduced or disappear, and thus 
government could not rescind agreement, although 
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162 F.3d 832 
162 F.3d 832 
(Cite as: 162 F.3d 832) 
defendant omitted some information, where defend-
ant provided volumes of both direct and indirect 
leads, and government failed to show that omis-
sions were intentional or prejudicial to government. 
U.S.C.A. Const.Amend. 5. 
VII Criminal Law €=>42.5(3) 
I 10k42.5(3) Most Cited Cases 
(Formerly I 10k42) 
In determining the materiality of a breach in the 
context of nonprosecution agreements, if a party's 
nonperfonnance 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. 
*833 Michael R. Dreeben, Jonathan Goldman Ce-
darbaurn, Jessie Acker Allen, U.S. Dept. of Justice, 
Washington, DC, Paula Camille Offenhauser, Asst. 
U.S. Any., Houston, TX, for Plaintiff-Appellee. 
Lawrence Irwin Zinn, San Antonio, TX, for De-
fendant-Appellant. 
Appeal from the United States District Court for the 
Southern District of Texas. 
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 I8 U.S.C. § 1962(d), al-
leging 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 *834 of the government's unwarranted revoc-
ation of its transactional immunity agreement, we 
reverse Castaneda's conviction, vacate his sentence, 
and remand for entry of a judgment of acquittal. 
FACTS AND PROCEEDINGS 
Castaneda owned an auto repair shop and towing 
service in Brownsville, Texas. From 1990 to 1994, 
Page 3 of 11 
Page 2 
William Weaver worked as an investigator in the 
Cameron County Attorney's Office in Browns-
ville. 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 re-
duced. Castaneda's role in this conspiracy was that 
of middleman, referring "clients" to Weaver, arran-
ging meetings, receiving payments, and suggesting 
strategics for accomplishing fixes. Weavers role 
on the other hand was that of principal, making the 
necessary arrangements within the County Attor-
ney's Office to have the charges reduced or disap-
pear. 
Suspecting corruption, the FBI began an investiga-
tion 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. [FNI] Sometime later, 
AUSA Mosbacker and Castaneda entered into an-
other agreement [FN2]-- 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. [11‘13] 
FN I. According to the terms of this agree-
ment, 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 Castancda 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. 
FN2. Although there is some question as to 
whether AUSA Mosbacker had the author-
ity to grant Castaneda transactional im-
munity, for the purposes of this appeal, the 
government dots not dispute the existence 
of a valid agreement. 
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162 F.3d 832 
(Cite as: 162 F.3d 832) 
FN3. 
Pursuant 
to 
this 
agreement, 
Castaneda also agreed to provide informa-
tion about the illegal activities of Alex 
Perez, the Sheriff of Cameron County. 
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 Of-
fice. Castaneda identified a number of individuals 
who had knowledge of, or had been involved in, the 
scheme. These included (I) Jose Luis Reyes, 
[FN4] (2) Julio Gonzalez, [FN5] (3) Jeff Lewis, 
[FN6] (4) Chuy Hinojosa, [FN7] (5) Guadalupe Ba-
rajas, [FN8] (6) Federico Morales, [FN9] (7) *835 
Alejandro Cano, IFN 1 0] and (8) Mario Meliton 
Garcia. [FN II] 
FN4. 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 polit-
ical contributions). On many of these oc-
casions, admitted Castaneda, he served as 
the conduit between Reyes and Perez. 
FN5. 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 keep-
ing approximately $100 for himself. 
FN6. Castaneda advised the government 
that Gonzalez approached him on another 
occasion for assistance in getting dis-
missed a DWI for Jeff Lewis. Castaneda 
was unsure if Weaver had ultimately been 
successful in fixing the case. 
FN7. Castaneda told the government that 
an individual known as "Chuy" Hinojosa 
Page 4 of 11 
Page 3 
had approached Weaver and given him an 
unknown amount of money. When Weaver 
was unable to fix the case, Hinojosa's 
money was returned. 
FN8. 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. 
FN9. Castaneda told the investigators that 
Morales was arrested for DWI and posses-
sion 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." 
EN 1 0. Castaneda told the government that 
Cano paid Weaver $15,000 to fix a cocaine 
possession charge. When Weaver was un-
able to get the case dismissed or reduced, 
the money was returned to Cano's family. 
FNI I. 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 hav-
ing kept $50. 
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 gov-
ernment 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 transaction-
al immunity agreement, so the government was re-
voking its promise not to prosecute. The very next 
day, a grand jury returned a seven-count indictment 
[FN12] against Castaneda and Weaver. (EN13] 
FN12. Count One alleged a pattern of rack-
eteering activity through predicate acts of 
bribery and extortion--the taking of pay-
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162 F.3d 832 
162 F.3d 832 
(Cite as: 162 F.3d 832) 
tents for fixing DWI and marijuana pos-
session prosecutions--in violation of 18 
U.S.C. § 1962(c) (RICO). Count Two al-
leged a conspiracy to engage in the same 
pattern of racketeering activity, in viola-
tion of 18 U.S.C. § I962(d). Counts Three 
through Six alleged specific acts of extor-
tion involving both defendants, in violation 
of 18 U.S.C. §§ 1951 and 1952 (Hobbs 
Act). Count Seven concerned an act of ex-
tortion involving only Weaver. 
FN 1 3. Weaver pled guilty to the RICO 
substantive count, and his sentence was re-
duced to approximately 17 months. The 
reduction of Weaver's sentence was contin-
gent on his willingness to testify truthfully 
against Castaneda at trial. 
Castaneda filed two motions to dismiss the indict-
ment, in one of which he argued that the govern-
ment had breached its agreement not to prosecute. 
[FNI4] After an evidentiary hearing, the district 
court denied Castaneda's motion without reasons. 
FN I 4. 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. 
Thereafter, Castaneda was convicted by a jury of 
RICO conspiracy. [FN 15] 
The district 
court 
entered judgment in accordance with the jury's ver-
dict, and sentenced Castaneda to 33 months in pris-
on, to be followed by a three year period of super-
vised release, and a fine of $7,500.00. Castaneda 
appeals his conviction. [FN16] 
ENI5. The jury acquitted Castaneda of the 
RICO substantive count and the four 
Hobbs Act counts. The count on which 
Castaneda was convicted identified as pre-
dicate acts five DWI cases that he and 
Page 4 
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 in-
volving Maurice Middleton), Meliton Gar-
cia, Rafael Gonzalez and Sammy Snod-
grass (a participant in the transaction in-
volving Jeff Lewis). Predicate Act Six--
referring to the dismissal of a marijuana 
charge for Silverio Garza-- pertained only 
to Weaver. 
FN I6. On appeal, Castaneda asserts four 
distinct errors that allegedly warrant the re-
versal of his conviction. Because we con-
clude that the government breached its 
transactional immunity agreement and that 
the district court erred in failing to dismiss 
Castaneda's indictment on this ground, we 
do not reach Castaneda's other three as-
signments of error. 
ANALYSIS 
Castaneda argues that the district court should have 
granted his motion to dismiss the indictment be-
cause the government breached its oral agreement 
not to prosecute. Implicit in this claim is the 
charge that the government failed to show by a pre-
ponderance of the evidence that Castaneda materi-
ally breached the immunity agreement, without 
which the government could not repudiate the con-
tract and prosecute him. We agree. 
[1][2][3][4115] Nonprosecution agreements, like 
plea bargains, are contractual in nature, and are 
therefore interpreted in accordance with general 
principles of contract law. [EN17] Under these 
principles, if a defendant lives up to his end of the 
bargain, the government is bound *836 to perform 
its promises. [EN18] If a defendant "materially 
breaches" his commitments under the agreement, 
however, the government can be released from its 
reciprocal obligations. [FN I9] When the govern-
ment believes that a defendant has breached the 
terms of a nonprosecution agreement and wishes to 
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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. [FINI20] Instead, the government must 
prove to the court by a preponderance [FlsI21] of 
the evidence that (I) the defendant breached the 
agreement, and (2) the breach is sufficiently materi-
al to warrant rescission. [FN22] If the pleadings 
show no factual dispute, however, the court may 
determine breach as a matter of law. [F1423) Be-
cause the district court issued no factual findings in 
this case, we review Castaneda's claim of breach of 
a nonprosecution agreement de novo. [FN241 
FNI7. United States v. Moulder, 141 F.3d 
568, 571 (5th Cir.1998); United Slates v. 
Rallis, 28 F.3d 1399, 1409 (5th Cir.1994); 
United States v. Fitch, 964 F.2d 571, 574 
(6th Cir.1992); United Stales v. Brown, 
801 F.2d 352, 354 (8th Cir.1986). 
F1418. United States v. Tilley, 964 F.2d 66, 
70 (Id Cir.1992) 
FN19. Dallis, 28 F.3d 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 
prosecution for immunized crimes in the 
event he failed to provide full and truthful 
information, argues Castaneda, the govern-
ment may not revoke its grant of transac-
tional immunity. In support of this prn-
position, Castaneda cites United States v. 
Fitch, 964 F.2d 571, 575 (6th Cir.1992). 
FN20. United Slates v. Verrusio, 803 F.2d 
885, 888 (7th Cir.1986); United States v. 
Tenant, 
730 
F.Supp. 
30, 
32 
Page 5 
1990). 
FN21. United States v. Price, 95 F.3d 364, 
367 (5th Cir.1996) (stating that, in determ-
ining whether government's actions have 
breached terms of plea agreement, defend-
ant bears burden of demonstrating underly-
ing facts that establish breach by prepon-
derance of evidence); United States v. Wil-
lie, 25 F.3d 250, 262 (5th Cir.1994), affd, 
515 U.S. 389, 115 S.Ct. 2199, 132 L.Ed.2d 
351 (1995) (same); Tilley, 964 F.2d at 71 
(holding that before government may re-
voke agreement, it must show by a prepon-
derance of evidence that the defendant has 
committed a substantial breach); United 
States t 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 Slates v. Gonzalez-Sanchez, 825 
F.2d 572, 578 (1st Cir.1987) (holding that 
government bears the burden of demon-
strating by adequate evidence that there 
has been a substantial breach by defend-
ant); State v. Rivest 106 Wis.2d 406, 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.I985) (requiring proof of ma-
terial breach by clear and convincing evid-
ence). 
F1122. See Packwood, 848 F.2d at 1011; 
Tarrant, 730 F.Supp. at 32. 
F1423. Packwood, 
848 F.2d at 
1011; 
United Stales v. Calabrese, 645 F.2d 1379, 
1390(10th Cir.I981). 
FN24. 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.I993). 
The government argues that the appropri-
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162 F.3d 832 
(Cite as: 162 F.3d 832) 
ate standard of review is clear error. See 
Linked States v. Gibson, 48 F.3d 876, 878 
(5th Cir.1995); Balls, 28 F.3d at 1409. 
We agree that this is the appropriate stand-
ard 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. 
[6] 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 disclos-
ure of information implicating Weaver. After deal-
ing with Castaneda for more than a year, the gov-
ernment 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, [FN25] the gov-
ernment presented evidence purporting to show that 
Castaneda had *837 breached his end of the bargain 
by failing to reveal "relevant and material informa-
tion 
... 
of 
which 
he 
was 
well 
aware." 
[FN26] Because of these alleged omissions, con-
tended 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 incriminat-
ing information about Weaver, and that any omis-
sions Castancda made were essentially inadvertent 
or duplicative and thus did not amount to a material 
breach of the agreement. [FN27] In so many words, 
he argued substantial performance. 
FN25. The government did not seek a judi-
cial 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, dur-
ing the progress of a criminal investiga-
tion, a judicial determination of breach is 
required to comport with due process. See 
Page 6 
Vernal°, 803 F.2d at 888- 89 (discussing 
whether defendant's indictment constituted 
a deprivation of his interest in the enforce-
ment of a plea agreement, and whether he 
was entitled to a preindictment hearing to 
determine whether he had breached his ob-
ligations under that agreement). 
FN26. 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 
regarding 
Castaneda's 
alleged 
omissions about activities involving Sher-
iff 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 po-
sition that Castaneda breached the nonpro-
secution agreement with regards to both 
Weaver and Perez, the government has 
failed to cite any specific omissions in-
volving Perez and has failed to see to it 
that its in camera inculpatory evidence is 
included in the record on appeal. 
FN27. 
Castaneda's 
lawyer--Ernesto 
Game; Jr.--wrote a letter to AUSA Mos-
backer, 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. Further-
more, Gamez contended, the government 
"either 
already 
possessed 
[the omitted 
names] or acquired this additional informa-
tion from [Castaneda's] statements." In 
the letter, Gamcz 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 in-
formation provided by Castancda. Gamez 
also claimed that Agent Cisneros had 
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162 F.3d 832 
(Cite as: 162 F.3d 832) 
agreed to contact him in the event the gov-
ernment needed additional information. 
There is no clear Fifth Circuit law on the issue of 
what constitutes a "material breach" of a nonpro-
secution agreement. [FN28] In the context of gener-
al 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. 
[FN29] The less the non-breaching party is de-
prived of the expected benefits, the less material the 
breach. [F1430] 
FN28. For some of the circumstances in 
which courts have allowed the government 
to rescind plea agreements, see Rallis, 28 
F.3d at 1409 (withholding of information, 
untruthful testimony, and inducement of 
plea agreement by fraud); Hertz v. Har-
gett, 71 F.3d 1169, 1172-75 (5th Cir.1996) 
(informing prosecutor of intent to change 
testimony is circumstance amounting to 
anticipatory repudiation which justifies re-
vocation of agreement); 
Tarrant, 
730 
F.Supp. at 32-33 (refusing to cooperate by 
failing to meet with government represent-
atives, failing to testify before grand jury 
and fleeing jurisdiction to avoid coopera-
tion); United States v. Donahey, 529 F.2d 
831, 832 (5th Cir.1976) (providing evas-
ive, misleading answers, answers which 
could not be verified, and refusing to an-
swer questions). 
FN29. Hanson Prod. Co. v. Americas Ins. 
Co., 108 F.3d 627, 630 (5th Cir.I997) 
(relying on Hernandez v. Gulf Group 
Lloyds, 
875 
S.W.2d 
691, 
692-92 
(Tex.1994) in holding that, where an in-
surer 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 obliga-
tion to provide coverage). 
The "benefit of the bargain" standard has 
been adopted, at least in part, by the Eighth 
Page 7 
Circuit in determining breach of an im-
munity agreement. In United States v. 
Crawford, 20 F.3d 933 (8th Cir.I994), the 
court relied on the following three factors-
-borrowed from the Restatement of Con-
tracts--to guide their determination: (1) the 
extent to which the injured party will be 
deprived of the benefit which he reason-
ably expected; (2) the likelihood that the 
party failing to perform will cure his fail-
ure; and (3) the extent to which the behavi-
or of the party failing to perform comports 
with standards of good faith and fair deal-
ing. Id. at 935. The other considerations 
listed in the Restatement as significant in 
determining the materiality of a breach in-
clude (I) 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 per-
form will suffer forfeiture. Restatement 
(Second)of Contracts § 241 (1981). 
In United States v. Fitch, the Sixth Circuit 
adopted a somewhat more rigorous stand-
ard, holding that the government must 
prove a "bad faith, intentional, substantial 
omission" on the part of the defendant be-
fore it can be released from its obligations. 
964 F.2d at 574 (adopting the standard set 
forth in United Slates v. Castelbuono, 643 
F.Supp. 965, 971 (E.D.N.Y.1986)). 
FN30. Hernandez v. Gulf Group Lloyds, 
875 S.W.2d 691, 693 (Tex.1994). 
[7] Courts within this Circuit have clarified the 
concept of material breach by comparing it with the 
converse concept of substantial*838 performance. 
[FN3 I] Using this approach, if a party's "nonper-
formance ... is innocent, does not thwart the pur-
pose of the bargain, and is wholly dwarfed by that 
party's performance," the breaching party has sub-
stantially performed under the contract, and the 
non-breaching party is not entitled to rescission. 
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[FN32] We think that this approach is equally ap-
plicable in determining the materiality of a breach 
in the context of nonprosecution agreements. 
[FN33] 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. 
FN3 I. See White Hawk Ranch, Inc. v. Hop-
kins, No. CIV.A.91-CV29-DD, 1998 WL 
94830, at *3 (N.D.Miss. Feb.12, 1998). 
See also 2 E. Allan Farnsworth, Farns-
worth on Contracts § 8.16 at 442 (2d ed. 
1990) (recognizing that substantial per-
formance is performance without a materi-
al breach, and a material breach results in 
performance that is not substantial). 
FN32. 
White 
Hawk 
Ranch, 
No. 
CIV.A.91-CV29-DD, 1998 WL 94830, at * 
3. 
FN33. 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 in-
vestigations and prosecutions," thereby en-
titling the government to rescission of the 
agreement. Id In other words, the govern-
ment had been prejudiced by the defend-
ant's breach. Moreover, the court was care-
ful to point out that there may be cases 
"where the extent of information and co-
operation provided by a defendant who has 
trivially breached a nonprosecution agree-
ment is so great that the court is persuaded 
that the defendant substantially complied 
Page 8 
with the agreement." Id. at 509 n. 4. 
Thus, while the Fourth Circuit rejected the 
defendant's substantial compliance argu-
ment under the particular facts of the case, 
Gerant does not stand for a per se rejection 
of this argument. 
The government argues that Castaneda committed a 
material breach of the agreement by failing to re-
veal Weaver's involvement 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. [FN34) 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. 
FN34. Agent Cisneros testified at the pre-
trial hearing that the government knew 
about the cases of Meliton Garcia, Maurice 
Middleton and Rafael Gonzalez before in-
terviewing either Castaneda or Weaver. 
The government conducted interviews with 
Weaver on February 27, 1995, March 22, 
1995, May 31, 1995 and January 29, 1996. 
Castaneda provided the government with substan-
tial, detailed accounts of bribery involving Weaver 
and seven other individuals--Julio Gonzalez, Jeff 
Lewis, Chuy Hinojosa, Guadalupe Barajas, Fed-
erico Morales, Alejandro Cano, and Mcliton Gar-
cia. Weaver's illegal activities with three of these 
individuals eventually formed the basis for predic-
ate racketeering acts and Hobbs Act counts in the 
indictment. [FN35] 
FN35. The indictment listed, as RICO pre-
dicate acts, instances of bribery and extor-
tion involving Julio Gonzalez (Act One-
-for dismissal of his own DWI charge), 
Mcliton Garcia (Act Two--albeit for the 
dismissal of his DWI charge rather than his 
assault charge), and Jeff Lewis (Act Five--
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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. 
Even the government's examples of omissions cut 
both ways. With regard to Meliton Garcia, 
Castaneda did provide the government with inform-
ation about the dismissal of an assault charge; he 
merely failed to mention the dismissal of a DWI 
charge as well. Thus, Castaneda led the govern-
ment to the right source, even if his tip was not 
complete. 
Likewise, although Castaneda did not disclose in-
formation about Weaver's dismissal of Maurice 
Middleton's DWI, 1FN36] 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 •839 dismissed both for himself and 
Middleton, as well as for Jeff Lewis. Thus, 
Castaneda did indirectly that about which the gov-
ernment faults him for not doing directly. 
FN36. Maurice Middleton was named in 
predicate Act Three of the indictment. 
Finally, with regard to Rafael Gonzalez [FN37], 
Agent Cisneros and AUSA Mosbacker were incon-
sistent 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 asser-
tion on further questioning. AUSA Mosbackcr ad-
mitted that he thought Castaneda had discussed il-
legalities in which Weaver and Rafael were in-
volved, but maintained that Castaneda did not men-
tion the DWI. Even if Castaneda failed to reveal 
any direct information about Rafael, though, it is 
undisputed that he did provide substantial informa-
tion about Jose Reyes--a source intimately connec-
ted with Rafael Gonzalez. Thus, it appears that the 
only 
Weaver-related 
individual 
about 
whom 
Page 9 
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 in-
dictment. [FN38] 
FN37. Rafael Gonzalez was named in pre-
dicate Act Four and Count Five. 
FN38. 
In 
addition, 
it 
appears 
that 
Castaneda did not provide any information 
about an alleged DWI dismissal for an in-
dividual named Perez (first name un-
known). When asked during the pretrial 
hearing to list the omissions constituting 
Castaneda's breach, however, AUSA Mos-
backer 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 Gonza-
lez, and Jeff Lewis, the indictment identi-
fied 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. Castancda was not named in Act 
Six or Count Seven, however, and the gov-
ernment does not assert that he had any 
knowledge of this transaction. 
Having reviewed the briefs of the parties, heard or-
al argument, and thoroughly reviewed the record, 
we are now satisfied that, despite Castaneda's relat-
ively 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 trans-
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162 F.3d 832 
162 F.3d 832 
(Cite as: 162 F.3d 832) 
actions conducted through the County Attorneys 
Office. [FN39) Although it appears that Castaneda's 
performance was not perfect--that he did not liter-
ally "tell everything he knew," as he was technic-
ally required to do under the agreement--the gov-
ernment has failed to show that these omissions 
were intentional or, more importantly, that the gov-
ernment 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 informa-
tion 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 nonpro-
secution agreement with Castaneda and prosecute 
him in this case. 
FN39. 
Including 
dismissals 
for 
Julio 
Gonzalez, Jeff Lewis, Chuy Hinojosa, 
Guadalupe Barajas, Federico Morales, Ale-
jandro Cano, and Meliton Garcia. The in-
formation that Castaneda provided regard-
ing Jose Reyes was directly pertinent to the 
illegal activities of Sheriff Perez but not 
Weaver. 
III 
CONCLUSION 
It ill behooves government agents and prosecutors 
to enter into agreements of transactional immunity 
with mid-level co-conspirators, milk them of sub-
stantial leads and information that literally make 
the government's case against the "big fish" while 
coincidentally giving the government a lay-down 
•840 winning hand against the cooperating co-
conspirator; then, at the last moment, rely on some 
technical or relatively minor deficiency in perform-
ance to pull the rug from under the cooperating in-
formant by claiming a breach and proceed to pro-
secute him in a slain-dunk case based largely on his 
Page 10 
own revelations. Yet, this is precisely what we 
perceive to have happened here, and due process 
cannot abide such behavior. For the reasons ex-
plained above, we conclude that the district court 
erred in failing to grant Castaneda's motion to dis-
miss the indictment, which was obtained in viola-
tion of a transactional immunity agreement, that the 
government 
failed 
to 
prove 
was 
materially 
breached. Castaneda's conviction of RICO con-
spiracy is reversed, the sentence imposed in accord-
ance with that conviction is vacated, and the case is 
remanded to the district court for entry of a judg-
ment of acquittal. 
REVERSED; 
sentence 
VACATED; and RE-
MANDED with instructions. 
162 F.3d 832 
END OF DOCUMENT 
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Westlaw Delivery Summary Report for ATKINSON,KAREN 
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Westlaw. 
730 F.Supp. 30 
730 F.Supp. 30 
(Cite as: 730 F.Supp. 30) 
H 
United States District Court, 
N.D. Texas, 
Dallas Division. 
UNITED STATES of America 
v. 
Sean Christian TARRANT, Jon Lance Jordan, 
Christopher Barry Greer, Michael Lewis Lawrence, 
Daniel Alvis Wood. 
Crim. A. No. 3-89-293-H. 
Jan. 16, 1990. 
Defendant who allegedly breached nonprosecu-
lion agreement moved to dismiss indictment or to 
suppress statements. The District Court, Sanders, 
Chief Judge, held that: (I) defendant, who refused 
to cooperate by failing to meet with Government 
representatives, failing to testify before grand jury, 
and eventually fleeing Texas to avoid cooperation 
altogether, substantially and materially breached 
pretrial proffer agreement, and (2) defendant's 
substantial material breach of agreement permit-
ted Government to indict defendant on charges that 
were subject to agreement, even if indictment were 
issued as a result of statements defendant made un-
der agreement. 
Motion denied. 
See also, 732 F.Supp. 56. 
West I leadnotes 
III Criminal Law 1104=42.5(1) 
110 Criminal Law 
11011 Defenses in General 
110k42 Immunity to One Furnishing Inform-
ation or Evidence 
110k42.5 Agreements Granting Immunity 
I 10k42.5(1) k. In General. Most Cited 
Cases 
Page 
(Formerly I 10k42) 
Pretrial agreements, like plea bargains, are con-
tractual in nature. 
Ill Criminal Law 1104=42.5(1) 
110 Criminal Law 
11011 Defenses in General 
I I0k42 Immunity to One Furnishing Inform-
ation or Evidence 
II0k42.5 Agreements Granting Immunity 
II0k42.5(1) k. In General. Most Cited 
Cases 
(Formerly Il0k42) 
Although principles of contract law generally apply 
to pretrial agreements, constitutional ramifications 
of agreements require judicial supervision to safe-
guard defendant's rights. 
(31 Criminal Law 110 e=)42.5(3) 
110 Criminal Law 
11011 Defenses in General 
I 10k42 Immunity to One Furnishing Inform-
ation or Evidence 
110k42.5 Agreements Granting Immunity 
Il0k42.5(3) 
k. 
Performance 
and 
Breach. Most Cited Cases 
(Formerly Il0k42) 
Criminal Law 110 de=.42.7(2) 
110 Criminal Law 
1 1011 Defenses in General 
1 10k42 Immunity to One Furnishing Inform-
ation or Evidence 
I 1 0k42.7 Enforcement of Grant of Im-
munity 
I 10k42.7(2) k. Evidence. Most Cited 
Cases 
(Formerly I 10k42) 
When Government believes that defendant has 
breached terms of pretrial agreement and wishes 
to rescind its part of bargain, Government may not 
make determination unilaterally, but must prove to 
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Page 3 of 9 
730 F.Supp. 30 
730 F.Supp. 30 
(Cite as: 730 F.Supp. 30) 
court by preponderance of evidence that defendant 
materially breached agreement. 
141 Criminal Law 110 te=z42.5(3) 
110 Criminal Law 
11011 Defenses in General 
I 10k42 Immunity to One Furnishing Inform-
ation or Evidence 
Il0k42.5 Agreements Granting Immunity 
110k42.5(3) 
k. 
Performance 
and 
Breach. Most Cited Cases 
(Formerly 110k42) 
Defendant, who refused to cooperate by failing to 
meet with government representatives, failing to 
testify before grand jury, and eventually fleeing 
Texas to avoid cooperation altogether, substantially 
and 
materially 
breached 
pretrial 
proffer 
agreement, despite defendant's attempts to charac-
terize his actions as "inarticulate way of withdraw-
ing from an agreement about which he had re-
grets.". 
151 Criminal Law 110 e=42.5(1) 
110 Criminal Law 
11011 Defenses in General 
I I0k42 Immunity to One Furnishing Inform-
ation or Evidence 
110k42.5 Agreements Granting Immunity 
I 10k42.5(I) k. In General. Most Cited 
Cases 
(Formerly 10k42) 
Criminal Law 110 e273.1(2) 
110 Criminal Law 
110XV Pleas 
Il0k272 Plea of Guilty 
I I 0k273.I Voluntary Character 
I 10k273.1(2) 
k. 
Representations, 
Promises, or Coercion; Plea Bargaining. Most Cited 
Cases 
Plea and nonprosecution agreements must be in-
terpreted according to objective standards. 
161 Criminal Law 110 C42.5(3) 
Page 2 
110 Criminal Law 
11011 Defenses in General 
I I0k42 Immunity to One Furnishing Inform-
ation or Evidence 
I I0k42.5 Agreements Granting Immunity 
Il0k42.5(3) 
k. 
Performance 
and 
Breach. Most Cited Cases 
(Formerly 1 10k42) 
Where nonprosecution agreement confers im-
munity for defendant, parties must look to and arc 
governed by agreement for the remedies arising 
from breach. 
171 Criminal Law 110 sC=42.5(3) 
110 Criminal Law 
11011 Defenses in General 
I 10k42 Immunity to One Furnishing Inform-
ation or Evidence 
10k42.5 Agreements Granting Immunity 
110k42.5(3) 
k. 
Performance 
and 
Breach. Most Cited Cases 
(Formerly I 10k42) 
Where cooperation agreement so provides, Gov-
ernment may use defendant's statements against 
him in event of defendant's breach. 
181 Criminal Law 110 *C=.42.5(3) 
110 Criminal Law 
11011 Defenses in General 
110k42 Immunity to One Furnishing Inform-
ation or Evidence 
I I0k42.5 Agreements Granting Immunity 
I 10k42.5(3) 
k. 
Performance 
and 
Breach. Most Cited Cases 
(Formerly 110k42) 
Defendant's substantial material breach of non-
prosecution agreement by failing to testify before 
grand jury and eventually fleeing jurisdiction per-
mitted Government to indict defendant on charges 
that were subject to nonprosecution agreement, 
even if indictment was issued as a result of state-
ments defendant made; Government was not lim-
ited to holding defendant in contempt for failure to 
testify as would have been case had defendant 
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730 F.Supp. 30 
730 F.Supp. 30 
(Cite as: 730 F.Supp. 30) 
been granted statutory immunity. 18 U.S.C.A. §§ 
6002, 6003; U.S.C.A. Const.Amend. 5. 
191 Criminal Law 11001C=.408 
110 Criminal Law 
I I0XVII Evidence 
I I0XV I I(L) Admissions 
I I0k405 Admissions by Accused 
I 10k408 k. Negotiations for Com-
promise. Most Cited Cases 
Rule prohibiting admission of statement made in 
course of plea discussions if no plea occurs or plea 
is withdrawn applies only to statements leading up 
to agreement and not those made after agreement. 
Fed.Rules Cr.Proc.Rule I I (c)(6), 18 U.S.C.A. 
*31 James P. Turner, Acting Asst. Atty. Gen., Civ. 
Rights Div., U.S. Dept. of Justice, Barry Kowalski 
& Suzanne Drouet, Attys., Crim. Section, Washing-
ton, D.C., for U.S. 
Craig Jett, Dallas, Tex., for defendant Wood. 
MEMORANDUM OPINION AND ORDER 
SANDERS, Chief Judge. 
Before the Court is Defendant Wood's Motion to 
Dismiss Indictment or To Suppress Statements of 
Defendant, filed December IS, 1989; and the Gov-
ernment's Response, filed January 2, 1990. Defend-
ant Wood moves the Court to dismiss the indict-
ment against him or in the alternative to exclude 
from evidence (I) certain statements made by him 
to law enforcement authorities and (2) any evidence 
derived therefrom. 
I. FACTS 
Following his conviction for criminal mischief in 
state court, Defendant Wood was sentenced to im-
prisonment for ten years. Soon thereafter, Wood 
and his attorney met with representatives of both 
the federal and state government. After some dis-
cussion, the parties reached a deal whereby Wood 
Page 4 of 9 
Page 3 
agreed to cooperate with the federal and state au-
thorities in their investigation of racist criminal 
activity in the Dallas area in exchange for (I) a 
promise that Wood would not be prosecuted further 
and (2) a grant of protection for Wood and his fam-
ily. The parties memorialized the agreement in a 
three-page, single-spaced letter which included 
handwritten modifications and a typed addendum 
(hereinafter the "Proffer Agreement" or " non-pro-
secution agreement"). 
Section TWO of the Proffer Agreement clearly 
states that Wood could be prosecuted for perjury, 
false statement, or obstruction of justice in the 
event he gave false, misleading, or incomplete in-
formation. Section THREE specifically informed 
the Defendant that failure to perform any of his ob-
ligations under the agreement would release the 
government to prosecute him for any crime and per-
mit the government to use evidence against him 
from any source, "including (his) own admissions." 
n'' In an addendum to the agreement, it is reem-
phasized that Wood would not be prosecuted 
"except as set forth in TWO and THREE." 
FN I. The agreement states: 
TWO: You will at all times give com-
plete, truthful and accurate information 
and testimony and must not commit any 
further violation of state or federal law 
whatsoever. Nothing in this agreement 
shall be construed to protect you in any 
way from prosecution or perjury, false 
statement or false declaration, in viola-
tion of 18 U.S.C. §§ 1001, 1621, or 
1623, or obstruction of justice, in viola-
tion of 18 U.S.C. §§ 1503, 1505, and 
1510 in the event it is determined that 
you have intentionally given false, mis-
leading or incomplete information. Nor 
does this agreement protect you from 
criminal prosecution for any other crim-
inal offense committed by you after the 
date of this agreement or any criminal 
offense committed by you which resul-
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