Unpublished Disposition, 923 F.2d 863 (9th Cir. 1991)

MEMORANDUM^** 

Onesio Chavez appeals from his conviction by a jury of possession of a controlled substance with intent to distribute in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2 aiding and abetting. Chavez claims on appeal that the district court erred by not specifically enforcing a plea agreement. We disagree and affirm.

At this time, I feel very unprepared and would request either a time to continue or a disposition in this case, or just put on the record that it's--we feel that it's very unfair that my client's going to trial today completely against his will because his co-Defendant is unwilling to accept a plea agreement, and he is facing a five-year enhancement, that he really wasn't aware he was going to be facing up until 2:00 o'clock yesterday afternoon.

After a short colloquy, the court inquired as follows:

Look, there is nothing that, realistically, I gather, that you're moving for, and nothing that I can really do. It's a situation that the Government has the right to ask for a package deal if they choose to do so, and they did in this particular case.

There has certainly been no misrepresentation as to whether Mr. Medina was going to plead. I mean, they didn't know, too. They were trying to find out also. So was I.

Chavez' counsel replied: "The problem is they switched the package deal, and Mr. Velasquez is gone."

The court did not grant a continuance and did not accept Chavez' request for a "disposition in this case." The case proceeded to trial on the same date.

Chavez does not argue before this court that he was prejudiced by the failure of the court to continue the trial of this matter to a future date because the information was filed on the day set for trial. Chavez did not request an evidentiary hearing before the trial court to demonstrate that he was prejudiced by the Government's alleged unfairness in refusing his counter offer to plead guilty to one count after the package deal was rejected by Medina-Betancourt.

The district court appears to have accepted the representations made by the parties as judicial admissions or as an informal stipulation concerning the operative facts. We note also that the record shows that the court was aware that the Government had been trying to effect a package deal but was unable to determine whether it would be accepted until Medina-Betancourt's attorney returned to San Diego. Because we agree that the facts as represented by Chavez' counsel do not demonstrate that the Government acted unfairly, no purpose would be served in remanding this matter for an evidentiary hearing.

Chavez argues before this court that "the prosecution did not adhere strictly to the terms of the bargain it entered into with appellant." Appellant's Opening Brief at 12. Before the district court, however, Chavez' counsel conceded that the "package deal" was never "cemented." He also asserted that his willingness to accept the terms of the offer was rejected because Medina-Betancourt refused to plead guilty. The district court impliedly found that no plea agreement was consummated because Medina-Betancourt refused to accept the package deal. We review a district court's findings concerning whether a plea agreement was effected for clear error. United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1985), cert. denied, 479 U.S. 835 (1986).

A defendant "has no right to a plea agreement that he was originally offered." United States v. Osif, 789 F.2d 1404 1405 (9th Cir. 1986) (citing Weatherford v. Bursey, 429 U.S. 545, 561 (1977). The Government may refuse to bargain, and may also cut off or limit negotiations before an offer is accepted by the defendant. United States v. Herrera, 640 F.2d 958, 962 (9th Cir. 1981).

In the instant matter, the Government's offer was conditioned upon the acceptance of its terms by each of the defendants. An agreement based on the terms set forth by the Government became impossible when Medina-Betancourt refused to plead guilty. " [A]n offeree's power of acceptance is terminated by the non-occurrence of any condition of acceptance under the terms of the offer." Restatement, Second, Contracts Sec. 36(2).

Chavez' argument that the Government acted unfairly in rejecting his counter offer while accepting Velasquez-Jacob's proposal is unpersuasive. " [V]indictiveness is not present if there are intervening circumstances to justify the prosecutor's action." United States v. Osif, 789 F.2d at 1405.

Velasquez-Jacob offered to testify against his co-defendants. The Government was free to accept or reject this counter offer. Two intervening factors justify the prosecutor's action in this case. The "package deal" could not be effected because one defendant refused to plead guilty. In accepting Velasquez-Jacob's counter offer, the Government apparently concluded that he would be a credible witness. Chavez had no enforceable right to compel the Government to accept his counter offer to testify against Medina-Betancourt in exchange for a plea to one count and a term of imprisonment of no more than five years. Herrera, 640 F.2d at 962.

Chavez' counsel's mistaken assumption that Medina-Betancourt had accepted the package deal, when she did not hear from the prosecutor to the contrary, does not demonstrate that the prosecutor acted unfairly. All the parties were aware that the "package deal" could not be consummated until Medina-Betancourt's attorney returned to San Diego. As soon as the prosecutor was informed of Medina-Betancourt's decision not to plead guilty, Chavez' attorney was informed that the "package deal" offer was withdrawn. The record does not show that the prosecutor misled Chavez or his attorney. At the time Chavez made his counter offer, the Government had obtained a commitment from Velasquez-Jacobs to testify against Chavez and Medina-Betancourt. The Government had the discretion to refuse to bargain for a second accomplice's testimony in order to obtain a conviction against Medina-Betancourt.

The district court did not clearly err in impliedly finding that Chavez' power to accept the Government's "package deal" was terminated when Medina-Betancourt refused the offer. Accordingly, Chavez was not entitled to an order compelling the Government to accept his counter offer to plead guilty on the same terms contained in the failed "package deal."

AFFIRMED.