Case 3:12-cr-00141-KS-FKB Document 89 Filed 02/25/14 Page 1 of 7

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: !" #$%&'()*%+'$,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

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plea, the Government’s proffer regarding what it could prove against Claiborne Frazier was limited to acts committed against BancorpSouth and M&F Bank. 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”). ." /01-0$(-0&2)34$%,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 See Ex. B. portions of

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

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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). 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 Here, Frazier has

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
"""""""""""""""""""""""""""""""""""""""""""""""""""""""""""" ! "United States v. Badaracco, 954 F.2d 928, 941 (3d Cir. 1992). $" "

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the government's breach is inadvertent and the breach probably did not influence the judge in the sentence imposed, due process and equity require that the sentence be vacated.” United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998). 7. If the Government breaches its plea agreement, the district court is required to grant specific performance or allow withdrawal of the plea, See, e.g., United States v. Gonczy, 357 F.3d 50, 54 (1st Cir. 2004) (resentencing required because prosecution made sentencing recommendation different from one agreed to in plea agreement); United States v. Vaval, 404 F.3d 144, 153 (2d Cir. 2005) (resentencing required because prosecutor breached terms of plea agreement by actively advocating longer sentence); United States, 412 F.3d 479, 487 (3d Cir. 2005) (limited remand for resentencing required because government violated plea agreement by making arguments contrary to plea agreement at sentencing); United States v. Elashyi, 554 F.3d 480, 501-02 (5th Cir. 2008) (conviction vacated and denial of motion to dismiss reversed where government breached plea agreement to not prosecute charges relating to the "facts and circumstances" of previous guilty plea); United States v. Grimm, 170 F.3d 760, 765-66 (7th Cir. 1999) (resentencing required because plea agreement breached when government called court's attention to use of weapon in commission of crime, a sentence-enhancing factor; government had to argue why presence of gun should not warrant enhancement of sentence in order to comply with agreement stipulating it would not oppose sentence reduction for lack of weapon); United States v. Fowler, 445 F.3d 1035, 1038 (8th Cir. 2006) (resentencing or withdrawal of guilty plea required where government breached plea agreement by making recommendations to sentencing court inconsistent with those outlined in plea agreement); Gunn v. Ignacio, 263 F.3d 965, 971 (9th Cir. 2001) (resentencing required because prosecution breached plea agreement to not oppose concurrent sentences by concurring in PSR that opposed concurrent sentences); United

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States U.S. v. Villa-Vazquez, 536 F.3d 1189, 1201 (10th Cir. 2008) (resentencing required when government breached plea agreement to recommend a low-end sentence and instead pushed for an upward departure); United States . v. Johnson, 132 F.3d 628, 631 (11th Cir. 1998) (resentencing required because prosecution breached plea agreement by advocating that larger amount of marihuana be attributed to defendant when previously stipulated to smaller amount); United States v. Wolff, 127 F.3d 84, 89 (D.C. Cir. 1997) (resentencing required upon breach of plea agreement by government). 8. The goal in providing a remedy for breach of the bargain is to redress the harm caused by the violation without prejudicing either party or curtailing the normal sentencing discretion of the trial judge. Generally, though, when the defendant seeks specific enforcement of the plea agreement, and such enforcement will give him the benefit of his bargain, courts will order that remedy. United States v. Carbone, 739 F.2d 45, 48 (2d Cir. 1984); United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984); United States v. Corsentino, 685 F.2d 48, 52 (2d Cir. 1982); United States v. Runck, 601 F.2d 968, 970 (8th Cir. 1979), cert. denied, 444 U.S. 1015 (1980); State v. Rutherford, 693 P.2d 1112 (Idaho Ct. App. 1985); State v. Tourtellotte, 564 P.2d 799, 803 (Wash. 1977). 9. In this case, the correspondence between Drew Martin and Carla Clark proves that Frazier agreed to plead guilty only if, among other things, the Government agreed to limit the overt acts to those involving fraud against BancorpSouth Bank and M&F Bank. The

documents make equally clear that the Government fully accepted this provision. The Government is now proceeding against Claiborne Frazier regarding other entities as relevant conduct. This is a clear violation of what Claiborne Frazier is entitled to rely upon. As a remedy, Frazier is entitled to enforcement of the agreement. This Court, then, should order that all acts

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pertaining to any entity other than BancorpSouth Bank and M&F Bank be redacted from all documents and transcripts purporting to recite the overt acts and relevant conduct underlying the plea. If this is not done, then Frazier has no choice but to exercise his right to withdraw his plea

of guilty. Wherefore, for the above reasons, H. Claiborne Frazier requests that this Court order enforcement of the agreement between himself and the Government whereby the only overt acts the Government may refer to as relevant conduct are those involving BancorpSouth Bank and M&F Bank. Alternatively, Frazier requests that he be allowed to withdraw his guilty plea.

Respectfully submitted, H. CLAIBORNE FRAZIER

/s/ Cynthia A. Stewart Cynthia A. Stewart 118 Homestead Dr Suite C Madison, MS 39110-7086 Telephone: (601) 856-0515 Facsimile: (601) 856-0514

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Case 3:12-cr-00141-KS-FKB Document 89 Filed 02/25/14 Page 7 of 7

CERTIFICATE OF SERVICE I, Cynthia Stewart, hereby certify that I have this day electronically filed the foregoing document with the Clerk of the Court using the ECF which sent notification of such filing to all counsel including: U. S. ATTORNEY 501 East Court Street Suite 4.430 Jackson, MS 39201 This, the 25th day of February, 2014.

/s/ Cynthia A. Stewart__________________ Cynthia A. Stewart

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