                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                     UNITED STATES COURT OF APPEALS
                          For the Fifth Circuit                       March 14, 2007

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 06-10482




                         UNITED STATES OF AMERICA

                                                       Plaintiff - Appellee


                                    VERSUS


                              JERRY M. GIVENS


                                                      Defendant - Appellant



              Appeal from the United States District Court
          For the Northern District of Texas, Lubbock Division
                              5:05-CV-00242



Before DAVIS, DENNIS and PRADO, Circuit Judges.

PER CURIAM:*

      Appellant, Jerry M. Givens (“Givens”) pleaded guilty to

making a false statement to a government agency and aiding and

abetting following the execution of a plea agreement with the

United States.     As part of his sentence and pursuant to the plea

agreement, Givens was ordered to pay, inter alia, prosecution



      *
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
costs in the amount of $200,000.          The plea agreement states in

relevant part that:

      Givens further agrees that he will pay costs of
      prosecution in the amount of Two Hundred Thousand
      ($200,000.00) Dollars. Givens agrees to assign to the
      United States Department of Justice as costs of
      prosecution in this matter, the first $200,000 of the
      amount payable to him by the Escrow Agent . . . .
      Givens further agrees to execute any and all documents
      necessary to assign the funds to be paid to the United
      States Department of Justice to insure payment by the
      Escrow Agent of this cost of prosecution assignment.

      Consistent with the plea agreement, Givens and the United

States executed the Assignment and Notice to Escrow Agent (the

“Assignment Agreement”), in which Givens and other sellers

assigned to the United States all of their “right, title and

interest in and to the first $200,000 of the Escrowed Funds . . .

in satisfaction of Givens’ obligation under the Plea Agreement to

pay certain agreed costs of prosecution.”          At the time the

Assignment Agreement was executed, $255,988 was in the Escrow

Account.    However, the funds were not immediately available to

the United States, and on the date the funds were to be released

to the United States, charge-offs against the Escrow Account had

reduced the account to a negative balance of -$50,397.00.

      To enforce its recovery of the costs of prosecution,1 the

government sought a writ of garnishment seeking to garnish

Givens’s property.      Givens argued that the garnishment should be


      1
       The government was also seeking the balance due on the $4,000 fine
assessed pursuant to the plea agreement.

                                      2
terminated because the Assignment Agreement operated as an accord

and satisfaction of the $200,000 costs of prosecution.             The

district court overruled Givens’s objection, determining that the

doctrine of accord and satisfaction was inapplicable in the

context of criminal judgments, and, even if applicable, Givens

failed to satisfy the requisite elements of an accord and

satisfaction.

     We need not decide whether the district court erred in

concluding as a matter of law that the doctrine of accord and

satisfaction is inapplicable in the context of criminal judgments

because there is a clearer ground for affirmance.            We conclude

that the unambiguous language of the Assignment Agreement fails

to satisfy the elements of an accord and satisfaction under Texas

law2 because Givens unambiguously agreed to “pay costs of

prosecution in the amount of $200,000.”          Thus, there was no

dispute about an existing obligation between Givens and the

government at the time the Assignment Agreement was executed.3



     2
       For an agreement to operate as an accord and satisfaction under Texas
law, there must be (1) a dispute about an existing obligation; (2) a new
contract, express or implied, in which the parties agree to the discharge of
the existing obligation by means of the lesser payment tendered and accepted;
(3) an assent of the parties to an agreement that the amount paid by the
debtor to the creditor was in full satisfaction of the entire claim; and (4)
an unmistakable communication to the creditor that tender of the lesser sum is
upon the condition that acceptance will constitute satisfaction of the
underlying obligation. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W. 3d
857, 863 (Tex. 2000).
     3
       Because we find that the Assignment Agreement does not satisfy the
first element of an accord and satisfaction, we do not consider whether the
other elements are satisfied.

                                      3
For the foregoing reasons, we affirm.

AFFIRMED.




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