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Motoin to Withdraw Guilty Plea

Motoin to Withdraw Guilty Plea

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Published by the kingfish
Claiborne Frazier motion to withdraw guilty plea
Claiborne Frazier motion to withdraw guilty plea

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Published by: the kingfish on Mar 06, 2014
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03/07/2014

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI JACKSON DISTRICT UNITED STATES OF AMERICA PLAINTIFF v. Criminal No. 3:12cr141KS-FKB H. CLAIBORNE FRAZIER DEFENDANT
MOTION TO ENFORCE THE PARTIES’ AGREEMENT TO LIMIT THE GOVERNMENT’S PROFFER OF OVERT ACTS
Claiborne Frazier by and through counsel hereby moves to limit the Government’s  proffer of what it would have proven at trial (the overt acts) to acts committed by Frazier involving BancorpSouth and M&F Bank as per the agreement between Frazier and the Government. In support thereof, Frazier states as follows:
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1.
 
In arriving at a plea agreement whereby Frazier would plead guilty to Count 1 of the indictment (conspiracy to commit bank, mail, and/or wire fraud in violation of 18 U.S.C. § 1349), then-counsel for Frazier, Drew M. Martin, and Assistant United States Attorney Carla Clark expressly agreed that the Government would limit the overt acts referenced in its factual  basis to those acts committed by Frazier against BancorpSouth Bank and/or M&F Bank.
See  Ex. A., e-mail correspondence between Drew E. Martin and Carla Clark dated Friday, September 13, 2013.
2.
 
In accordance with this agreement, at the Monday, September 16, 2013, hearing the guilty
Case 3:12-cr-00141-KS-FKB Document 89 Filed 02/25/14 Page 1 of 7
 
#
 plea, the Government’s proffer regarding what it could prove against Claiborne Frazier was limited to acts committed against BancorpSouth and M&F Bank.
See Ex. B. portions of transcript from plea hearing 
. 3.
 
Frazier having pleaded guilty, the Government has now made it clear that it intends to go outside the scope of the parties’ agreement and use conduct other than that directed towards BancorpSouth and M&F Bank as relevant conduct. This it should not be allowed to do. If the Government insists on relying on relevant conduct outside the scope of the agreement entered into between Frazier and the Government, then Claiborne Frazier requests to exercise his right to withdraw his guilty plea based on the Government’s breach of its agreement with Frazier.
United 
 
States v. Harper 
, 643 F.3d 135, 139 (5th Cir. 2011) (“If the Government breaches a plea agreement, the defendant may seek one of two remedies: specific performance, requiring resentencing before a different judge; or withdrawal of his guilty plea”).
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4.
 
The rules for enforcing plea agreements are well established. “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be  part of the inducement or consideration, such promise must be fulfilled.”
Santobello v. New York 
, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L. Ed. 2d 427 (1971). “Because the defendant, by entering into the plea, surrenders a number of [his] constitutional rights, 'courts are compelled to scrutinize closely the promise made by the government in order to determine whether it has been  performed.’”
United States v. Nolan-Cooper 
, 155 F.3d 221, 236 (3d Cir. 1998). 5.
 
Plea agreements are construed according to the general principles of contract law.
United States v. Cantu
, 185 F.3d 298, 302 (5th Cir. 1999);
United States v. Read 
, 778 F.2d 1437 (9th Cir. 1985), cert. denied, 479 U.S. 835, 93 L. Ed. 2d 75, 107 S. Ct. 131 (1986);
United
Case 3:12-cr-00141-KS-FKB Document 89 Filed 02/25/14 Page 2 of 7
 
$
States v. Baldacchino
, 762 F.2d 170 (1st Cir. 1985);
 Brooks v. United States
, 708 F.2d 1280 (7th Cir. 1983);
 Palermo v. Warden, Green Haven State Prison
, 545 F.2d 286 (2d Cir. 1976), cert. dismissed, 431 U.S. 911, 97 S. Ct. 2166, 53 L. Ed. 2d 221 (1977). Courts should consider not only contract principles but also ensure that the plea bargaining process is “attended by safeguards to insure the defendant [receives] what is reasonably due in the circumstances.”
Santobello
, 404 U.S. at 262. Thus, the government cannot resort to a rigidly literal approach in the construction of language.
United States v. Crusco
, 536 F.2d 21 (3d Cir. 1976); United
States v. Bowler 
, 585 F.2d 851 (7th Cir. 1978). And, in recognition of the Government's “tremendous  bargaining power,” plea agreements are construed strictly against the Government.
United States v. Elashyi
, 554 F.3d 480, 501 (5th Cir. 2008). And while the agreement in this case may be characterized as a “side agreement”, the fact that it is a side agreement does not negate its existence. Rather, the existence of a side agreement is a question of fact.
United States v.  Kahley
, 1995 U.S. App. LEXIS 13602 (6th Cir. Ky. May 31, 1995). Here, Frazier has incontrovertible evidence of that agreement.
 
6.
 
When examining whether the government has breached a plea agreement, a court must determine whether the government's conduct is inconsistent with what was reasonably understood by the defendant when entering the plea of guilty.
United States v. Hall 
, 515 F.3d 186, 198 (3d Cir. 2008). “Accordingly, we will not permit the government to rely upon a 'rigidly literal' approach to the construction of the terms of the plea agreement.”
 Id.
 Although “[t]he government need not endorse the terms of its plea agreements enthusiastically,”
1
, it nonetheless “must adhere strictly to the terms of the bargain it strikes with defendants.”
United States v. Moscahlaidis
, 868 F.2d 1357, 1361 (3d Cir. 1989). Indeed, “the doctrine that the government must adhere to its bargain in the plea agreement is so fundamental that even though
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United States v. Badaracco
, 954 F.2d 928, 941 (3d Cir. 1992).
Case 3:12-cr-00141-KS-FKB Document 89 Filed 02/25/14 Page 3 of 7

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