                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 09 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10505

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00285-RJB-1

 v.
                                                 MEMORANDUM*
IVORY CROW,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 15-10165

              Plaintiff - Appellee,              D.C. No. 2:11-cr-00285-RJB-1

 v.

IVORY CROW,

              Defendant - Appellant.


                   Appeal from the United States District Court
                             for the District of Arizona
                  Robert J. Bryan, Senior District Judge, Presiding




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted May 5, 2016**
                               Pasadena, California

Before: BYBEE and N.R. SMITH, Circuit Judges and STEIN,*** District Judge.

      Appellant Ivory Crow was sentenced after pleading guilty to multiple counts

of bank fraud and theft of government funds. On appeal, he raises two arguments:

(1) the government promised him transactional immunity for his crimes, and (2) he

is entitled to the return of money the government took from certain bank accounts.

We affirm.1

      Crow’s counsel never raised the issue of transactional immunity below, so

we review that issue for plain error. Hemmings v. Tidyman's Inc., 285 F.3d 1174,

1193 (9th Cir. 2002). A denial of a motion to return property is reviewed de novo.




          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable Sidney H. Stein, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
      1
              The government filed a separate motion to dismiss the appeal in part,
arguing that Crow waived his right to appeal the transactional immunity issue by
unconditionally pleading guilty in the district court. We need not reach this issue
because, even assuming Crow did not waive his right to appeal this issue, there is
no merit to his argument. See United States v. Jacobo Castillo, 496 F.3d 947, 957
(9th Cir. 2007) (en banc) (holding that federal appellate courts maintain
jurisdiction even where a defendant unconditionally waives the right to appeal).
The government’s motion is denied as moot.

                                         2
United States v. Harrell, 530 F.3d 1051, 1057 (9th Cir. 2008). The district court’s

related factual findings are reviewed for clear error. Id

1.     Crow argues that, as part of a plea agreement in an unrelated case, he was

promised transactional immunity for the crimes he is charged with in this case.

Plea agreements are governed by everyday contract principles and given their

objective meaning: What would a reasonable defendant understand from the plea

agreement’s written terms and the surrounding circumstances? United States v. De

La Fuente, 8 F.3d 1333, 1337 (9th Cir.1993); see also United States v. Spear, 753

F.3d 964, 969 (9th Cir. 2014) (“[W]e look to ‘what the defendant reasonably

understood to be the terms of the agreement when he pleaded guilty.’”).

      Crow has produced no evidence indicating he was promised transactional

immunity; indeed the evidence shows just the opposite. The plea agreement and

proffer agreement that Crow signed expressly state he was promised use immunity,

not transactional immunity. Crow could not reasonably believe he was being

promised blanket transactional immunity where he was expressly promised the

narrower use immunity. See United States v. Plummer, 941 F.2d 799, 803 (9th Cir.

1991) (holding that defendant was not promised transactional immunity where plea

agreement expressly promised only use immunity). Further, the plea agreement

dispelled any doubt that Crow was promised anything more because it stated that


                                           3
all of the government’s promises were contained in the written agreement. The

U.S. inspector who took Crow’s proffer specifically told him that he was not being

promised anything with respect to a possible future prosecution for his fraud

crimes. Nor does anything else in the record indicate Crow reasonably believed he

was promised transactional immunity.

      Crow argues no reasonable defendant would have helped the government for

so little in return. But a defendant cannot challenge a plea agreement because in

retrospect he believes it was a bad deal. And in any event, the government gave

Crow much more than just use immunity: It also recommended a significant

downward sentencing departure in another case.

      Crow provided no evidence showing that he was promised transactional

immunity, much less establishing the district court plainly erred in not raising the

issue on its own. We must therefore affirm the district court’s sentence.

2.    Crow argues the government wrongfully took $70,000 from his bank

accounts and that he is entitled to have this money returned to him. To prevail on a

motion for return of property, Crow must demonstrate that (1) he is entitled to

lawful possession of the seized property; (2) the property is not contraband; and (3)

either the seizure was illegal or the government’s need for the property as evidence




                                          4
has ended. United States v. Van Cauwenberghe, 827 F.2d 424, 433 (9th Cir.

1987).

      Crow has not established he is entitled to possess the funds from these

accounts or that the funds are not contraband. Crow admits he deposited stolen

checks into these accounts, and there is no indication in the record that Crow

partitioned any lawful funds from the illicit funds. Moreover, these accounts are

not even owned by Crow, so he does not have any claim to them even if they did

contain untainted funds.

AFFIRMED.




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