United States v. Terry ( 2021 )

Appellate Case: 20-7053 Document: 010110622042 Date Filed: 12/21/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 21, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-7053
(D.C. No. 6:19-CR-00045-RAW-1)
AARON DEWAYNE TERRY, (E.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before BACHARACH, MORITZ, and EID, Circuit Judges.
_________________________________
After Aaron Terry pleaded guilty to five counts of various financial and tax
crimes, he moved to enforce his plea agreement, arguing that the government breached its
obligation to give him an opportunity to provide substantial assistance and potentially
receive cooperation credit, thereby reducing his sentence. The district court denied
Terry’s motion, and Terry appeals. For the following reasons, we affirm.
Background
In August 2019, a grand jury returned a 15-count indictment against Terry for
various financial crimes. Terry was later charged by information in a separate criminal
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. But it may be cited for its
persuasive value. See Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
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case with two additional counts of tax fraud. Terry entered a plea agreement covering
both cases, pleading guilty to five of the charged crimes.1 In exchange for Terry’s guilty
plea, the government agreed to dismiss the remaining charges.
The plea agreement required Terry to make certain financial disclosures.
Specifically, Terry agreed to disclose all his assets and “to provide waivers, consents[,] or
releases requested by the United States Attorney’s Office to access records to verify the
financial information.” R. vol. 1, 70.
A sealed plea-agreement supplement set forth additional terms related to Terry’s
cooperation with the government. In the supplement, Terry agreed to “cooperate with the
United States regarding specific crimes, targets[,] and investigations,” “comply[] with all
reasonable instructions from the United States,” and “submit[] to interviews by
investigators and attorneys at such reasonable times and places to be determined by
counsel for the United States.” R. vol. 2, 26–27 (sealed). The supplement also included
the potential sentencing results of such cooperation. Specifically, the supplement
provided that if (and only if) the government believed Terry had provided “‘substantial
assistance,’” then the government “may in its discretion” request that the district court
depart below the advisory United States Sentencing Guidelines range. Id. at 27 (quoting
18 U.S.C. § 3553(e)). The supplement also expressly stated that the government was not
obligated to make any such request. Further, the agreement stated that “[a]t or before the
1
Terry states, without a record cite, that he met with the government multiple
times before he pleaded guilty. The government does not dispute that these meetings
occurred.
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time of sentencing, the United States will advise the [c]ourt of any assistance [Terry]
provide[s].” Id.
In October, shortly after pleading guilty, Terry met with prosecutors and
investigators.2 Terry’s lead attorney, Vicki Behenna, could not attend the meeting, so
only Behenna’s cocounsel attended. According to an email Behenna received from
prosecutor Douglas Horn, the meeting went well, and another prosecutor who
attended anticipated using Terry in the prosecution of his codefendant. Terry also
apparently provided the government with a thumb drive containing documents
relevant to another investigation. At the end of this meeting, the government
requested a copy of Behenna’s application for funds under 18 U.S.C. § 3006A(e),
which she had previously filed ex parte under seal with the district court.3
Over the next several months, Behenna and Horn exchanged emails about
Behenna’s § 3006A(e) application and the possibility of further meetings with Terry.
On December 6, Behenna asked about scheduling another interview. Horn responded
that he had still not heard from Behenna regarding the government’s request for the
sealed § 3006A(e) application and that until this request had been fulfilled there was
no need for another meeting. Terry (through counsel) moved for authorization to
provide a copy of the § 3006A(e) application to the government and for a protective
2
There is no transcript or other memorialization of this meeting in the record,
so our understanding of what occurred derives largely from emails between counsel
that Terry attached as exhibits to his motion to enforce the plea agreement.
3
Section 3006A(e)(1) permits “[c]ounsel for a person who is financially
unable to obtain investigative, expert, or other services necessary for adequate
representation” to request such services in an ex parte application.
3
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order limiting disclosure of the application solely to the government. On December
30, the district court granted Terry’s motion, and four days later, Behenna emailed
the application to Horn.
In a January 24, 2020 email, Horn raised the prospect of an additional
interview with Terry. Horn wrote that the government’s agents were “willing to
meet” but that the government was “unsure of any additional information” Terry
could “provide that would be ‘substantial assistance’ in any additional
investigations.” R. vol. 2, 83 (sealed) (quoting § 3553(e)). He added that if Behenna
sent “a proffer of the ‘substantial’ information that [Terry] c[ould] provide,” he and
Behenna could arrange a meeting with Terry before sentencing. Id. (quoting
§ 3553(e)).
Behenna responded on February 3, stating that Terry and cocounsel, who had
attended the October interview, were “under the impression that the agents wanted to
speak with [Terry]” about another investigation and that she could “ask [Terry] what
other information he has that he thinks would be helpful.” Id. at 82. There are no
further exchanges between Behenna and Horn in the record regarding Terry’s
potential cooperation.
About five months later, the district court granted Terry’s motion to continue
his sentencing until after his codefendant’s criminal trial so that the district court
could be fully advised as to the extent of Terry’s cooperation. Three days before the
rescheduled sentencing date, Terry moved to enforce his plea agreement, arguing that
the government had breached it by failing to provide him with an opportunity to
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cooperate. Terry argued that (1) the government made binding assurances to him
before he signed the plea agreement that he would be given the opportunity to
substantially assist the government; (2) the plea agreement’s language stating that the
government “will advise the [c]ourt of any assistance provided by defendant”
required it to provide Terry with an opportunity to cooperate after he signed the plea;
and (3) even if the plea agreement did not require the government to provide Terry
with an opportunity to cooperate, the government’s failure to provide one amounted
to a breach because the government’s failure was motivated by bad faith. Id. at 47
(quoting id. at 27).
After conducting a hearing on Terry’s motion, the district court ruled that the
plea agreement did not obligate the government to provide Terry with an opportunity
to cooperate. And even if the plea agreement created such an obligation, the district
court concluded, the government gave Terry that opportunity. It further determined
that any failure to give Terry that opportunity was not motivated by bad faith and that
it had been apprised as to the extent of Terry’s cooperation. The district court later
issued a one-page written order reiterating those findings. It sentenced Terry to
concurrent terms of 48 and 36 months in prison, imposed concurrent one- and three-
year terms of supervised release, and ordered Terry to pay certain monetary penalties.
Terry now appeals the district court’s denial of his motion to enforce the plea
agreement.
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Analysis
We “review de novo whether the [g]overnment has breached a plea agreement.”
United States v. Rodriguez-Rivera, 518 F.3d 1208, 1212 (10th Cir. 2008)). We review
any underlying factual findings for clear error. United States v. Elashyi, 554 F.3d 480,
501 (5th Cir. 2008); see also United States v. Raymond, 369 F. App’x 958, 962 (10th Cir.
2010) (unpublished). Under clear-error review, “[w]e will not disturb factual findings
‘unless they have no basis in the record.’” United States v. Jordan, 806 F.3d 1244, 1252
(10th Cir. 2015) (quoting United States v. Martin, 163 F.3d 1212, 1217 (10th Cir. 1998)).
Terry argues that the plea agreement required the government to offer him an
opportunity to cooperate. “In interpreting a plea agreement, we rely on general
principles of contract law.” Rodriguez-Rivera, 518 F.3d at 1212. Thus, we “look to
the express language in the agreement to identify both the nature of the government’s
promise and the defendant’s reasonable understanding of this promise at the time of the
entry of the guilty plea.” Id. at 1212–13 (quoting United States v. VanDam, 493 F.3d
1194, 1199 (10th Cir. 2007), overruled on other grounds by Puckett v. United States,
556 U.S. 129 (2009)). But in this case, we ultimately decline to reach Terry’s
argument about what the plea agreement required. See Elkins v. Comfort, 392 F.3d
1159, 1162 (10th Cir. 2004) (“We have discretion to affirm on any ground adequately
supported by the record.”). Assuming without deciding that the plea agreement
imposed such an obligation on the government, we find—consistent with the district
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court’s conclusion—that the government provided Terry an opportunity to
cooperate.4
Terry cites one out-of-circuit case, United States v. Ringling, 988 F.2d 504(4th Cir. 1993), to support his view that the government did not provide him an
opportunity to cooperate. But Ringling is distinguishable. There, the government
never interviewed the defendant. Id. at 505. By contrast, here, the government met
with Terry for an interview shortly after he entered into his plea agreement.
Moreover, contrary to Terry’s contention, nothing in the parties’ subsequent
email exchanges establishes that the government “with[eld] future cooperation
opportunities.” Aplt. Br. 14. In an email to Behenna following the initial interview,
Horn stated that the interview went well and that the government anticipated using
Terry in his codefendant’s prosecution. The parties exchanged emails over the next
4
Terry relatedly argues that before he entered into the plea agreement, the
government promised him the opportunity to earn cooperation credit in exchange for
his guilty plea. According to Terry, the government promised him “a series of
debriefings with the government, each covering a different topic”; and “[i]f the
government believed [Terry’s] assistance was substantial, it would move for a
downward departure at sentencing.” Aplt. Br. 12. But our analysis of what Terry
reasonably understood the government to be promising him when he entered his
guilty plea derives from the text of the plea agreement itself. See Rodriguez-Rivera,
518 F.3d at 1212–13. Further, here, the agreement contained an explicit integration
clause, providing that “[t]his written agreement[] supersedes all prior understandings,
if any, whether written or oral.” R. vol. 1, 74; see also United States v. Reyes Pena,
216 F.3d 1204, 1212 (10th Cir. 2000) (“[T]he plea agreement contained an
integration clause, stating that the final version represented the complete agreement
between the government and [the defendant]. Thus, [the defendant] is unable to alter
the terms of the plea agreement with reference to the government’s earl[ier
representations].”). Terry’s suggestion that pre-plea discussions or representations
informed his reasonable understanding of what the government promised him is
therefore unpersuasive.
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several weeks, mostly regarding the government’s request to see Behenna’s
§ 3006A(e) application. And when Behenna asked on December 6 about scheduling a
follow-up interview with Terry, Horn would not agree until Behenna disclosed the
§ 3006A(e) application.
Once Behenna disclosed the application in January 2020, Horn renewed talks
about a subsequent interview. Specifically, Horn responded to Behenna’s
December 6 email, stating that his agents were “willing to meet” but that he was
“unsure of any additional information that [Terry] c[ould] provide that would be
‘substantial assistance’ in any additional investigations.” R. vol. 2, 83 (sealed)
(quoting § 3553(e)). Horn added that he could arrange a meeting before sentencing if
Behenna gave “a proffer of the ‘substantial’ information that [Terry] c[ould]
provide.” Id. (quoting § 3553(e)). On February 3, Behenna responded to Horn’s
request for a proffer by stating that although she was not at the initial October
meeting, she “was under the impression that the agents wanted to speak” with Terry
about two additional investigations and that she could “ask [Terry] what other
information he has that he thinks would be helpful to [the government] if [Horn
would] like.” Id. at 82.
The parties do not dispute that Horn never responded to Behenna’s email.
Nevertheless, we do not find that Behenna’s February 3 response to Horn’s explicit
request constituted a proffer. Rather, Behenna simply indicated she would talk with
Terry about what information he might proffer. What’s more, in the over six months
between Behenna’s response to Horn’s email and Terry’s sentencing, Behenna never
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followed up with a proffer or otherwise inquired about Terry’s cooperation. Given
this sequence of events, the district court’s factual finding that Terry had an
opportunity to cooperate has some “basis in the record” and was therefore not clearly
erroneous. Jordan, 806 F.3d at 1252 (quoting Martin, 163 F.3d at 1217).
Accordingly, assuming the plea agreement required the government to offer Terry an
opportunity to cooperate, the government did not break that promise.
Next, Terry challenges the district court’s conclusion—which was apparently
based on the parties’ sentencing memoranda—that the government provided adequate
information regarding Terry’s cooperation. In support, Terry describes allegedly
inaccurate representations made by the government in its response to Terry’s motion
for downward variance in the district court. The government responds that its filings
connected to Terry’s motions to continue sentencing and for a downward variance, as
well as its sentencing memorandum, provide “extensive background for the
arguments heard by the district court” on Terry’s motion to enforce the plea
agreement. Aplee. Br. 21–22 n.9.
But none of these district-court filings or any accompanying exhibits are in the
appellate record. It is Terry’s responsibility, as the appellant, to present us with the
record necessary to evaluate the district court’s decision. See United States v.
Vasquez, 985 F.2d 491, 495 (10th Cir. 1993) (“The appellant is responsible for
insuring that all materials on which he [or she] seeks to rely are part of the record on
appeal.”). Without the complete record before us, “we must defer to the trial court’s
decision.” Id. (quoting Moore v. Subaru of Am., 891 F.2d 1445, 1448 (10th Cir.
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1989)); see also 10th Cir. R. 10.4(B) (“When the party asserting an issue fails to
provide a record . . . sufficient for considering that issue, the court may decline to
consider it.”). We therefore defer to the district court’s conclusion that the
government complied with the plea agreement by providing adequate information
about Terry’s cooperation.5
Conclusion
We affirm the district court’s order denying Terry’s motion to enforce the plea
agreement because Terry received an opportunity to cooperate with the government
and failed to present relevant documents in the record on appeal to challenge the
district court’s conclusion that the government adequately informed the district court
as to Terry’s cooperation.
Entered for the Court
Nancy L. Moritz
Circuit Judge
5
Terry also argues that even if the plea agreement did not obligate the
government to provide him with an opportunity to cooperate, failure to provide such
an opportunity amounts to a breach when the government’s decision is motivated by
impermissible animus or is not rationally related to a legitimate government end. But
for the reasons described above, we conclude that Terry did have the opportunity to
cooperate. We therefore decline to reach Terry’s bad-faith argument.
10