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Witnesses at Sentencing Weren't a Breach of Gov't Plea Deal

By Jonathan R. Tung, Esq. on March 18, 2016 10:57 AM

The Court of Appeals for the Seventh Circuit ruled recently that the government did not breach the terms of a plea agreement that it entered into with a defendant whom it had indicted on several counts of fraud. Those terms, the defendant argued, limited the number of victims allowed to testify at sentencing.

The Fourth Circuit, however, disagreed. Whatever plea agreement the defendant had entered into with the government, it could not have been meant to limit the number of victims used against the defendant.

Indictment and Pleading

The defendant in this case was Vernado Malone. In 2013, a grand jury indicted Mr. Malone on several counts of mail fraud, wire fraud, and aggravated identity theft.

Malone and the government entered into the pleading phase, with Malone pleading guilty to mail fraud identity theft. As a part of the plea, Malone agreed to waive his right to appeal.

Trial and Sentence

Malone was taken by surprise when sentenced to 61 months of prison time, with additional supervised time after his release. Despite the plea arrangement, Malone appealed anyway because, he argued, the plea arrangement between him and the government was clearly an understanding that the government would only mention three victims. Instead, the government had introduced evidence of 28 victims of Malone's mail fraud schemes. At the district level, the court made the determination that the 28 mentioned were not actually victims because they were not actually injured by Malone's activities. Thus, no breach of the agreement took place.

Circuit's Take; Parole Evidence

The Seventh Circuit largely agreed with the reasoning of the lower court. The plea, it said, said nothing about the government limiting evidence against Malone. Rather, the plea actually outlined "numerous instances of device fraud" and the facts taken together outlined examples of Malone's nefarious activities. Besides, said the Seventh, the plea agreement also contained a clear parole evidence clause which stipulated that external evidence that contravened the clear language of the document couldn't be considered part of the plea. Thus, no breach took place, and the sentence was left undisturbed.

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