United States v. Feldman, No. 17-2868 (2d Cir. 2019)
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The Second Circuit vacated the district court's denial of defendant's motion to stay and vacate a writ of execution on his retirement account. The court held that the district court's reasons for denying defendant's motions were erroneous. In this case, the district court neither allowed discovery nor conducted an evidentiary hearing, and thus the record did not provide a basis for a complete understanding of what happened in the course of the plea negotiations and thereafter.
The court held that the evidence was sufficient in these circumstances to require of the district court that it take evidence and make findings to determine such questions as whether the merger clause should be strictly enforced in accordance with its terms, whether the Office of the United States Attorney's undertaking to recommend restoration was fulfilled, whether its expression of optimism that its recommendation of restoration would be accepted was misleading, and whether defendant was entitled to any relief.
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17 2868 (L) United States of America v. Feldman 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2018 (Argued: October 29, 2018 Decided: September 17, 2019) Docket No. 17 2868, 17 2869 _____________________________________ UNITED STATES OF AMERICA, Appellee, v. DORON FELDMAN, Defendant Appellant. _____________________________________ Before: WALKER, LEVAL, and DRONEY, Circuit Judges. Appeal from the denial by the United States District Court for the Western District of New York (Frank P. Geraci, J.), of defendant Doron Feldman’s motion to stay and vacate a writ of execution on his retirement account. Held, the district court’s reasons for denying Feldman’s motions were erroneous. The order of the district court is VACATED and the case REMANDED for factfinding, and reconsideration. TIFFANY H. LEE, for James P. Kennedy, United States Attorney for the Western District of New York, United States Attorney’s Office, Rochester, NY, 1 2 3 4 5 RANDALL ANDREOZZI, Clarence, NY, for Defendant Appellant Doron Feldman. LEVAL, Circuit Judge: Defendant Doron Feldman appeals from the September 5, 2017 order of 6 7 the United States District Court for the Western District of New York (Frank 8 P. Geraci, J.), reaffirming an earlier denial of Feldman’s motions to stay and 9 vacate a writ of execution on Feldman’s retirement account, known as the 10 Great Lakes Account (which had a balance of approximately $1.131 million),1 11 and seeking discovery in support of those motions. We conclude that the 12 district court’s reasons for its rulings were erroneous. We therefore vacate the 13 court’s orders and remand for factfinding and reconsideration of Feldman’s 14 motions. BACKGROUND 15 16 This appeal raises the question whether, by reason of undertakings and 17 representations made by the government to the defendant in the course of 18 plea negotiations for disposition of a criminal charge, funds forfeited by the In litigation documents, this account has been variously termed the “Great Lakes Anesthesiology Associates PC Retirement Plan,” “Great Lakes Anesthesiology,” and one of the “Sentinel Accounts.” We refer to it as “the Great Lakes Account.” 1 2 1 defendant pursuant to his plea of guilty should be credited to his obligation 2 under his sentence to pay restitution to the victims of his offense.2 3 4 which charged him with having conspired with a fellow doctor, identified as 5 “Doctor 1,” and Debra Bulter, the Program Administrator of the Department 6 of Anesthesiology of Rochester University, to defraud the University. 7 Feldman’s plea was entered pursuant to a plea agreement he made with the 8 Office of the United States Attorney for the Western District of New York 9 (“the Office”). Feldman asserts that, in the negotiations that resulted in the On June 24, 2014, Feldman pleaded guilty to a one count information 10 plea agreement, the Assistant United States Attorney (“AUSA”) in charge of 11 the prosecution, Richard Resnick, undertook to recommend to the responsible 12 decision makers in the Department of Justice (“DOJ”) that, through a practice 13 known as “restoration,” the proceeds of Feldman’s forfeiture would be paid 14 to the victims of his crime and would thus reduce the amount of the 15 restitution obligation imposed on him. Feldman further asserts that Resnick, 16 while making clear that DOJ had absolute discretion to reject his 17 recommendation of restoration, nonetheless expressed optimism that it 2 Feldman has not sought to withdraw his plea. 3 1 would accept the recommendation. Feldman also asserts that, during those 2 plea negotiations, the AUSA was aware of Feldman’s Great Lakes Account 3 and its $1,131,000 balance. 4 5 it has expressly confirmed that Resnick undertook to make the restoration 6 recommendation to DOJ.) The government argues, however, that those facts 7 are irrelevant to the outcome of this appeal for reasons explained below. 8 9 forfeit the proceeds of three specified accounts (not including the Great Lakes 10 Account), which amounted in the aggregate to approximately $1 million, and 11 would pay restitution to the University in the amount of $1,460,000, the entire 12 amount of the loss the University sustained. 13 14 by the defendant, addressed the question of restoration in somewhat different 15 terms from those attributed by Feldman to AUSA Resnick. It stated that “the 16 government may, in its discretion, recommend to the Attorney General” that 17 funds forfeited by Feldman be applied, through restoration, to his restitution 18 obligation: The government has not denied Feldman’s factual assertions. (Indeed, Feldman s plea agreement provided that he would plead guilty, would The written plea agreement, prepared by the government and signed 4 [I]t is understood by the defendant that the government may, in its discretion, recommend to the Attorney General that any of the forfeited proceeds be remitted or restored to eligible victims of the offense, pursuant to 19 U.S.C. § 981(e), 28 C.F.R. Pt. 9, and other applicable law, it being understood that the United [States]Attorney’s Office has authority only to recommend such relief and that the final decision of whether to grant relief rests with the Department of Justice, which will make its decision in accordance with applicable law. 1 2 3 4 5 6 7 8 9 10 11 12 13 App’x at 34 (emphasis added). The agreement did not state that the U.S. 14 Attorney would recommend restoration; nor did it mention AUSA Resnick’s 15 representation of optimism that the recommendation would be accepted. A 16 second pertinent provision, a merger clause, stated: 17 18 19 20 21 22 23 24 25 This plea agreement represents the total agreement between the defendant, DORON FELDMAN, and the government. There are no promises made by anyone other than those contained in this agreement. This agreement supersedes any other prior agreements, written or oral, entered into between the government and the defendant. App’x at 35. 26 27 pleaded guilty on June 24, 2014. On July 1, 2014, the district court entered a The plea agreement was accepted by the district court, and Feldman 5 1 preliminary order of forfeiture, and on October 27, 2014, a final order of 2 forfeiture. On several occasions after the plea agreement was signed and the plea 3 4 and the final order of forfeiture were entered, the Office discussed with 5 Feldman its intention to recommend restoration to the Asset Forfeiture and 6 Money Laundering Section of the Criminal Division at DOJ (“AFMLS”), on 7 each occasion making clear that the ultimate decision rested with AFMLS.3 8 9 wrote: In an email to Feldman’s attorney on January 21, 2015, AUSA Resnick The amount we have seized [pursuant to the forfeiture ordered by the court] is approximately one million dollars. I was told that after sentencing, we will submit a formal restoration request package to the money laundering section of DOJ and they will decide how much can go toward restitution. We will ask for all of it and hopefully they will approve. But we will not know the balance of the restitution amount until they decide, which will be after sentencing. The balance should hopefully be around $460,000. If the restitution is paid after sentencing, then it needs to be paid to the clerk s office. If paid prior to sentencing, it will likely go straight to the [insurer of the victim university]. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 This unit was later renamed the “Money Laundering and Asset Recovery Section.” See DEPARTMENT OF JUSTICE, EQUITABLE SHARING WIRE (Nov. 16, 2017), https://www.justice.gov/criminal mlars/file/1018236/download. 3 6 1 App’x at 244 (emphasis added). 2 3 said, “I have been advised that while we will request that all of the seized 4 funds be used for restitution, there is no guarantee that DOJ in DC will 5 approve our request. We will make the request after sentencing.” App’x at 6 243. 7 8 pursuant to another plea agreement. Sentencing on both the tax charge and 9 the conspiracy charge took place the same day. Feldman was sentenced to In another email to Feldman’s attorney, dated January 28, 2015, Resnick Feldman pleaded guilty to a separate tax charge on February 18, 2015, 10 twenty four months’ imprisonment and ordered to pay the restitution 11 specified above (as well as restitution related to his tax offense). The ultimate 12 version of Feldman’s presentence report (“PSR”), dated February 11, 2015, 13 which was presented to the court at sentencing, listed among Feldman’s 14 assets the $1.131 million Great Lakes retirement account at issue in this case. 15 The previous three versions of the PSR (dated December 24, 2014; January 12, 16 2015; and January 26, 2015) also listed the Great Lakes Account among 17 Feldman’s assets. 7 1 At sentencing, AUSA Resnick “comment[ed] on the restitution issue” in 2 the following exchange with the district judge: MR. RESNICK: The restitution amount of $1.46 million is to be ordered. The Government – I just wanted to clarify. The Government had seized [though the forfeiture] approximately a million dollars, a little less than a million dollars of Dr. Feldman s assets when this case first started and we were investigating it. Mr. Feldman has recently paid the [victim university] about $467,000. We anticipate applying the forfeited funds to the restitution amount, if we get the approval from DOJ down in Washington. But, technically, the restitution has not been paid yet in full. We re hoping that we can get that million dollars in seized funds, you know, applied towards the restitution amount, but we won’t know that for probably a month or two. THE COURT: That was always the expectation? MR. RESNICK: Yes, that s the expectation. But it has been provided to counsel many times that there s no guarantee, you know, our hands are tied and we have to do what DOJ provides. But we are going to ask that 100% of it be applied towards the restitution amount. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 App’x at 124–5 (emphasis added). 26 27 behalf of the Office, Grace M. Carducci, made the recommendation 28 envisioned in the plea agreement – that Feldman’s forfeited funds be applied 29 to his restitution obligation. It appears that, under the Office’s division of In a letter to AFMLS dated March 4, 2015, another AUSA acting on 8 1 responsibilities, AUSA Resnick exercised control over Feldman’s prosecution, 2 while AUSA Carducci exercised control over forfeiture matters and AUSA 3 Kevin Robinson, assigned to the Office’s Financial Litigation Unit, exercised 4 control over restitution. Carducci’s March 4 letter to DOJ expressed the 5 Office’s “request that the Chief of AFMLS exercise his/her discretionary 6 authority to authorize the restoration of forfeited property to compensate the 7 victims in the referenced case,” and purported to enumerate the “assets 8 owned or controlled” by Feldman. App’x at 430, 432–33. Her enumeration of 9 Feldman’s assets, however, was incomplete and did not include the Great 10 Lakes Account. 11 12 another letter to AFMLS. That letter began as follows: 13 14 15 16 17 18 19 20 21 22 23 On August 7, 2015, Carducci, having realized the omission, sent Please allow this letter to serve as an addendum to the restoration request that was submitted by my office on March 5, 2015. We believe the below addendum is vital to the determination of our request, as the additional assets may provide recourse reasonably available to other assets from which the victim may obtain compensation for its loss in this matter. … We have become aware of additional assets owned or controlled by the defendant, and therefore, supplement … with the information italicized below. 9 1 App’x at 434 (emphasis added). The letter then listed four Feldman accounts 2 not listed in her prior letter, including the Great Lakes Account. Feldman 3 points out that this letter was inaccurate in its contention that the Office was 4 previously unaware of the Great Lakes Account. He argues that the new letter 5 effectively constituted a revocation of the Office’s request for restoration, in 6 stating that the “addendum [listing additional Feldman assets] is vital to the 7 determination of [the] request as the additional assets may provide recourse 8 reasonably available to other assets.” App’x at 434. 9 10 On November 23, 2015, the Financial Litigation Unit moved for a writ of execution on: any and all account(s) in the name of defendant, Doron Feldman . . . , over which the defendant has signatory authority, either directly or as custodian, authorized person, nominee, agent, power of attorney, or through letters of direction, including but not limited to deferred profit sharing plans and individual retirement account(s) held with Sentinel Benefits & Financial Group. 11 12 13 14 15 16 17 18 19 20 App’x at 143–44. The district court ordered execution on December 1, and the 21 U.S. Marshal shortly thereafter levied upon the Great Lakes Account in the 22 amount of $1,150,475.98. On January 11, 2016, Feldman moved to stay the 10 1 execution and levy on the Great Lakes Account. A status conference was then 2 set for March 16, 2016. 3 4 AFMLS responded to AUSA Carducci’s letters. AFMLS denied the request for 5 restoration. It explained: Shortly before the conference was set to occur, on March 14, 2016, Doron Feldman is independently capable of satisfying the restitution order through bank and investment accounts discovered after the sentencing of Feldman. According to Asset Forfeiture Policy Manual (2013), Chap. 12, Sec. I.B., a request for restoration should be denied if the victims have recourse reasonably available to other assets from which to obtain compensation for their losses. 6 7 8 9 10 11 12 13 14 15 App’x at 436 (emphasis added). 16 17 the Office “was aware of the [Great Lakes] pension account,” but that AUSA 18 Robinson had informed him that “at the time the restoration request was 19 made to AFMLS [in March 2015] . . . , [AUSA Carducci] . . . wasn’t aware that 20 the defendant had this pension account . . . with th[e] $1.1 million valuation[,] 21 [a]nd it was not until [Robinson’s] unit began their discovery work on the 22 collection that they discovered the existence of the account.” App’x at 159. (If 23 AUSA Robinson made that representation to Feldman’s counsel and intended At the March 16, 2016 conference, Feldman’s counsel told the court that 11 1 to convey that the Office had been unaware of the Great Lakes Account until 2 Robinson’s unit began to investigate subsequent to March 2015, this would 3 unquestionably have been incorrect, as the Great Lakes Account was 4 referenced in the presentence report at least as early as December 2014. 5 Furthermore, the government has not denied Feldman’s assertion that the 6 Office was aware of the Great Lakes account during the plea negotiations.) 7 8 had worked on the prosecution, the forfeiture, and the restitution, and that 9 while AUSA Resnick, who prosecuted the criminal case, may (or may not) The government explained to the district court that different attorneys 10 have been aware of the Great Lakes Account, AUSA Carducci, who handled 11 the forfeiture, was not aware of it at the time she wrote the March 2015 letter 12 to AFMLS recommending restoration. Carducci stated to the court: 13 14 15 16 17 18 19 20 21 22 23 24 Rick Resnick did represent with plea negotiations that he would make this restoration request, which I indicated I would do based on the information that I had. Sentencing went forward, and I made th[e] [March 2015] request to AFMLS because I did not know of this additional asset that was in the presentence investigation report. Once I became privy to that information, I am under an obligation to make AFMLS aware of that. So once the PSR was provided to me, I forwarded that information to AFMLS. Once AFMLS found out about that additional account, they denied that request. 12 So Rick Resnick did not hand me that PSR, you know, directly after sentencing. But then I did become aware of it, and as soon as I became aware of that, I passed that information onto AFMLS. . . . Rick Resnick doesn t know what AFMLS requires. I do, that s my job. And to make that restoration request, I m under a duty to represent to them that the defendant does not have any other assets with which to pay restitution. As soon as I found out about that account from the PSR—and I wasn t at sentencing and didn t prepare for it, that s why I didn t know about it—I wrote [the May 2015] letter to AFMLS and made them aware of that. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 App’x at 170. 16 17 collection actions on the Great Lakes Account before receiving a response 18 from AFMLS. App’x at 173. AUSA Robinson responded that his division, “the 19 Financial Litigation Unit, a totally different unit,” was responsible for the 20 restitution process and the writ of execution. Id. At the time it attempted to 21 execute the writ, Robinson said, the Financial Litigation Unit “was not aware 22 of . . . a restoration request.” Id. He explained: “[O]ur unit was simply 23 executing on the judgment issued by the Court which indicated that the 24 defendant owed restitution[,] [a]nd it was only after we made the—we filed 25 the writ that we’ve become aware of the restoration request.” Id. Feldman’s lawyer then asked why Carducci’s division had commenced 13 1 Feldman’s lawyer (understandably) commented, “Something doesn’t 2 make sense here.” Id.4 3 4 the district court denied Feldman’s motion to vacate the writ of execution on 5 the Great Lakes Account, as well as his motion for discovery. Feldman then 6 moved for reconsideration, and on September 5, 2017, the district court 7 reaffirmed its July order and denied Feldman’s motion to vacate the writ of 8 execution. Feldman filed this appeal. On August 22, 2016, Feldman moved for discovery. On July 17, 2017, DISCUSSION 9 10 11 obligations as part of the plea negotiations in at least two ways. First, after 12 AUSA Resnick induced him to plead guilty and consent to forfeiture and 13 restitution by undertaking that the Office would recommend restoration, 14 AUSA Carducci, although initially making the recommendation of 15 restoration, effectively withdrew that recommendation by her letter to 16 AFMLS of August 7, 2015 , which implied that restoration would be 17 inappropriate in view of Feldman’s Great Lakes Account, enabling him to pay 4 Feldman contends, inter alia, that the government violated its AUSA Carducci responded, “It does make sense, sir.” Id. 14 1 restitution over and above the forfeiture. Second, Feldman contends that the 2 Office made a false or misleading representation when AUSA Resnick 3 expressed optimism that the Office’s recommendation of restoration would be 4 accepted by DOJ. If, as AFMLS advised in its March 4, 2016 letter denying 5 restoration, DOJ’s governing policy was to deny restoration “if the victims 6 have recourse reasonably available to other assets from which to obtain 7 compensation for their losses,” App’x at 436, then the availability of recourse 8 to Feldman’s Great Lakes Account effectively foreclosed DOJ’s approval of 9 the restoration request, so that the expression of optimism was without 10 reasonable basis and arguably misleading. 11 12 the factual assertions on which they are based. Indeed, the government has 13 expressly confirmed that Resnick represented to Feldman that he would 14 recommend restoration. Its position has been rather that Feldman’s 15 arguments are irrelevant because (i) the Office’s undertaking to recommend 16 restoration was fulfilled by AUSA Carducci’s March 4, 2015 letter 17 recommending restoration, (ii) the recommendation was never withdrawn, 18 and (iii) the merger clause incorporated into the plea agreement forecloses The government’s response to these arguments has not been to deny 15 1 Feldman’s reliance on Resnick’s oral representation of optimism, which is not 2 expressed in the written document. 3 4 its basis for denying Feldman’s motions for relief. While noting the 5 government’s acknowledgment of having represented to Feldman during the 6 plea negotiations that it would request restoration, the court found that 7 Feldman was not entitled to rely on these representations because “no such 8 promise was included in the written plea agreement and such a promise 9 would be incompatible with the plain language of the agreement that the The district court essentially adopted the government’s arguments as 10 parties actually entered into.” App’x at 423–24. The court further found that 11 even if the Office had promised to recommend restoration, it fulfilled any such 12 promise by sending the March 5, 2015 letter to AFMLS, notwithstanding 13 Carducci’s August 7, 2015 addendum. 14 15 say that Carducci’s March 5 letter made a restoration request, in accordance 16 with Resnick’s earlier commitment to do so, and that Carducci’s subsequent 17 letter “did not rescind” the request, is overly formalistic. If the fair inference 18 of Carducci’s August 7 follow up letter was to communicate that, because of We do not believe this reasoning appropriately resolved the issues. To 16 1 newly acquired information, the Office no longer believed that restoration 2 was appropriate, the mere fact that the letter did not explicitly state that the 3 earlier recommendation was withdrawn would not bar the court from 4 reading the letter in accordance with its implication. Carducci’s August 7 5 letter went considerably further than merely providing pertinent information. 6 It expressed the view that the information now being provided to AFMLS 7 (about the Great Lakes account) “is vital to [AFMLS’s] determination.” App’x 8 at 434. The mere fact that Carducci’s August 7 letter did not characterize itself 9 as “rescind[ing]” the restoration request does not necessarily mean that it did 10 not effectively do exactly that. It may also be pertinent that Carducci s second 11 letter was arguably misleading in telling AFMLS that “[w]e [i.e., the Office] 12 have become aware of additional assets,” App’x at 434, when, in fact, the 13 Office had been aware of the Great Lakes account long before Carducci wrote 14 her letter recommending restoration. 15 16 compelling with respect to a contract arising out of commercial negotiations 17 among private parties, we believe the court did not correctly apply the 18 standards that govern the interpretation of plea agreements with the Furthermore, while the district court’s analysis might have been 17 1 government. We have long recognized that plea agreements are significantly 2 different from commercial contracts. See Innes v. Dalsheim, 864 F.2d 974, 978 3 (2d Cir. 1988) (“Comparing a criminal defendant with a merchant in the 4 marketplace is an inappropriate analogy that we have rejected.”); see also U.S. 5 v. Mozer, 828 F.Supp. 208, 215 (S.D.N.Y. 1993) (“[A] prosecutor entering into a 6 plea bargain agreement is not simply a party to a contract. The [g]overnment 7 is required to observe high standards of integrity and honorable conduct, and 8 the supervisory power of the court is designed to insure that such standards 9 are observed.”). Our review of a plea agreement is not limited to its four 10 corners, United States v. Graves, 374 F.3d 80, 84 (2d. Cir. 2004), and we construe 11 them “strictly against the government.” United States v. Vaval, 404 F.3d 144, 12 152 (2d Cir. 2004). Government conduct in negotiating plea agreements must 13 “comport[] with the highest standard of fairness.” Id. Because such 14 agreements involve waivers of fundamental constitutional rights, 15 “prosecutors are held to meticulous standards of performance.” Id. at 153. 16 “[W]hen a plea rests in any significant degree on a promise or agreement of 17 the prosecutor, so that it can be said to be part of the inducement or 18 consideration, such promise must be fulfilled.” Santobello v. New York, 404 U.S. 18 1 257, 262 (1971); see also United States v. Carbone, 739 F.2d 45, 46 (2d Cir. 1984) 2 (“[O]nce a plea actually is entered, and was induced by a prosecutor’s 3 promise . . . that promise must be fulfilled.”). 4 5 the Government. A promise made by one attorney must be attributed . . . to 6 the Government.” Giglio v. United States, 405 U.S. 150, 154 (1972) (citing 7 Restatement (Second) of Agency § 272). The Office, like all prosecutor’s 8 offices, carried the burden of “insur[ing] communication of all relevant 9 information on each case to every lawyer who deals with it.” Id. “The prosecutor’s office is an entity and as such it is the spokesman for 10 Our relaxed approach to the parol evidence rule in this context applies 11 even when a plea agreement contains a merger clause. Graves, 374 F.3d at 84 12 (distinguishing between the “usual principles of contract law” for 13 interpreting an agreement with a merger clause and those applicable for 14 interpreting plea agreements with a merger clause). In unusual 15 circumstances, including, but not necessarily limited to, the failure of the 16 government to negotiate or act in good faith, the merger clause is not ironclad 17 and we consider the government’s oral and written statements in our 18 interpretive exercise. Cf. In re Altro, 180 F.3d 372, 375, 376 (2d Cir. 1999) 19 1 (refusing to interpret a plea agreement with a merger clause in accordance 2 with a defendant’s mere “purported implicit understanding” in the absence 3 of a representation by the defendant that the government had made any 4 statement to induce his understanding). 5 6 conducted an evidentiary hearing, the record does not furnish a basis for a 7 complete understanding of what happened in the course of the plea 8 negotiations and thereafter. Numerous potentially significant questions 9 remain unanswered. Feldman’s evidence is sufficient in these circumstances In part because the district court neither allowed discovery nor 10 to require of the district court that it take evidence and make findings to 11 determine such questions as whether the merger clause should be strictly 12 enforced in accordance with its terms, whether the Office’s undertaking to 13 recommend restoration was fulfilled, whether its expression of optimism that 14 its recommendation of restoration would be accepted was misleading, and 15 whether the defendant is entitled to any relief. We do not know exactly what 16 Resnick said to Feldman concerning the Office’s recommendation, what 17 information the Office had requested about Feldman’s finances when Resnick 18 said whatever he said, and what information Feldman had furnished at the 20 1 time Resnick spoke of the possibility of restoration of the forfeiture. These 2 issues may have a bearing on whether the merger clause should be strictly 3 enforced and, if not, whether Feldman is entitled to any relief. We intimate no 4 views as to the answers to these questions. 5 6 permanently bound by everything it says in the course of plea negotiations. If, 7 prior to the conclusion of the agreement, the government wishes to retract 8 promises and representations earlier made, it is free to do so. However, 9 unlike civil commercial negotiations among private persons, the government 10 may need to make clear to the defendant that prior commitments have been 11 withdrawn. Depending on the circumstances, the government may not be 12 able to rely exclusively on omissions of prior undertakings and 13 representations from the four corners of the written agreement as effective 14 nullification of them. 15 16 denial of Feldman’s motions to stay and vacate the court’s order of execution, 17 and direct the district court to take evidence and reconsider Feldman’s Nor do we imply in any way that the government is necessarily For the reasons explained above, we hereby vacate the district court’s 21 1 motions, while safeguarding Feldman’s and the government’s respective 2 interests in the Great Lakes Account. CONCLUSION 3 4 The district court’s orders denying the defendant’s motions to stay and 5 vacate the court’s order of execution on the Great Lakes Account are hereby 6 VACATED, and the case is remanded for further proceedings not inconsistent 7 with this opinion. 22
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