                                                                                                                           Opinions of the United
2000 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-14-2000

United States v. Swint
Precedential or Non-Precedential:

Docket 99-5569




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"United States v. Swint" (2000). 2000 Decisions. Paper 166.
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Filed August 14, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-5569

UNITED STATES OF AMERICA

v.

CLEVELAND SWINT,

       Appellant.

ON APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Criminal No. 98-713)
District Judge: Honorable Harold A. Ackerman

Argued: March 9, 2000

Before: BECKER, Chief Judge, and NYGAARD and
GARWOOD,* Circuit Judges.

(Filed: August 14, 2000)

       John H. Yauch, Esq. (ARGUED)
       Assistant Federal Public Defender
       Newark, New Jersey
        Counsel for Appellant



_________________________________________________________________
* Honorable Will Garwood, United States Circuit Judge for the Fifth
Circuit, sitting by designation.
       Shawna H. Yen (Argued)
       Assistant United States Attorney
       Robert J. Clear
       United States Attorney
       Newark, New Jersey
        Counsel for Appellee

OPINION OF THE COURT

GARWOOD, Circuit Judge:

Defendant-appellant Cleveland Swint (Swint) pleaded
guilty to one count of knowingly using and trafficking in
unauthorized access devices to obtain things of value
aggregating more than $1,000 during a one-year period, in
violation of 18 U.S.C. SS 1029(a)(2) & 2. He entered into a
written plea agreement with the government, pursuant to
which he agreed to fully cooperate with the government in,
inter alia, its investigations. The government agreed not to
prosecute him for other criminal activity committed during
the time of his charged offenses and to move for a
downward departure in his sentence in exchange for
Swint's "substantial assistance" with one or more
government investigations and not committing any
additional crimes. The agreement provided that "[t]he
determination whether Swint has provided substantial
assistance to the Government rests solely in the discretion
of " the United States Attorney's Office. After entering into
the agreement but before sentencing, Swint committed two
more offenses. The government informed Swint that he had
violated the plea agreement and that it would not seek the
downward departure. At sentencing, the district court
sentenced Swint to a term of seventy months'
imprisonment. Swint appeals his sentence, arguing that the
government breached the plea agreement. We affirm.

Facts and Proceedings Below

In August, 1997, police officers in Edison, New Jersey,
along with U.S. Secret Service Agents, began an
investigation into the suspected unlawful use of innocent
individuals' names and social security numbers to obtain

                               2
bank loans, checks, credit cards, and an auto lease. The
investigation revealed Swint as the perpetrator of these
activities. Investigators ultimately learned that during a
one-year period, Swint had engaged in at least twenty-six
fraudulent transactions, resulting in total losses (actual
and intended) of $264,833.56. On October 20, 1997, Swint
was arrested and charged by information with one count of
violating 18 U.S.C. SS 1029(a)(2)1 & 2.2

Soon after his arrest, Swint began negotiations with the
government regarding a plea agreement. Pursuant to the
agreement, the government agreed not to prosecute Swint
for other charges arising from his fraudulent activities
between May, 1997 and October, 1997. In return, Swint
agreed to "cooperate fully" with the U.S. Attorney's
investigation, including providing truthfully all information
requested of him; testifying on behalf of the government;
and, if requested, making himself available for assisting one
or more government investigations, including making phone
calls, tape recording conversations, and introducing law
enforcement officials to other individuals, provided "[a]ll
such activity by Swint must be conducted only at the
express direction and under the supervision of . . .[the
United States Attorney's Office] and federal law enforcement
personnel." The agreement provides that the
nonprosecution provisions will be ineffective if Swint
commits any new federal, state or local crimes" or otherwise
has violated any provision of this agreement." It states that
if Swint fully complied with the agreement and provided
_________________________________________________________________

1. 18 U.S.C. S 1029(a)(2) proscribes

       "knowingly and with intent to defraud traffics in or uses one or
more
       unauthorized access devices during any one-year period, and by
       such conduct obtains anything of value aggregating $1,000 or more
       during that period."

2. 18 U.S.C. S 2 provides:

       (a) Whoever commits an offense against the United States or aids,
       abets, counsels, commands, induces or procures its commission, is
       punishable as a principal.

       (b) Whoever willfully causes an act to be done which if directly
       performed by him or another would be an offense against the United
       States, is punishable as a principal."

                                3
"substantial assistance" in the investigation or prosecution
of one or more persons who had committed criminal
offenses, the government would move for a downward
departure for his sentence, pursuant to U.S.S.G.S 5K1.1.3
On November 20, 1998, the district court accepted Swint's
guilty plea. The government supported Swint's bail
application, and Swint was eventually released on bond.

After he was released on bail, Swint began cooperating
with the U.S. Attorney's office in its investigation of various
credit card and other fraudulent scams. On February 18,
1999, while on bail, Swint used another person's name and
social security number to lease a 1999 Ford Expedition
sports utility vehicle, valued at approximately $40,000. He
was arrested by the police department of Hillside, New
Jersey. On May 10, 1999, the Assistant U.S. Attorney who
had negotiated the plea agreement with Swint met with him
and his lawyer and informed them that Swint's February 18
arrest could seriously jeopardize his chances of obtaining
the section 5K1.1 downward departure. The AUSA warned
Swint that if he were involved in any further violations of
federal, state, or local law, the government would not seek
the departure.

Deterred only briefly, Swint soon broke the law again.
Barely a month later, on June 14, 1999, he used a false
name to complete a credit card application at a Home
Depot store. He was arrested by the police department of
South Plainfield, New Jersey, and charged with attempted
credit card fraud, resisting arrest, and obstruction.4 On
June 15, 1999, the government informed Swint by letter
that because he had violated the plea agreement twice by
_________________________________________________________________

3. U.S.S.G. S 5K1.1 provides in relevant part:

       "Upon motion of the government stating that the defendant has
       provided substantial assistance in the investigation or prosecution
       of another person who has committed an offense, the court may
       depart from the guidelines."

4. Following Swint's arrest on June 14, 1999, the U.S. Customs Service
determined that Swint had engaged in additional criminal activity,
including using a false identity to lease a vehicle from a Chevrolet
dealership, as well as unlawfully re-titling, placing in another's name,
and switching license plates on the vehicle.

                               4
engaging in two separate incidents of criminal conduct, the
government would not move for the section 5K1.1
departure.

The district court conducted a sentencing hearing on
July 15, 1999. At the hearing, Swint moved for a three-level
downward departure pursuant to section 3E1.1 based on
his acceptance of responsibility. Swint also argued that the
district court should not depart upward based on his
"egregious" criminal record because he cooperated
extensively with the government's investigations. In
addition, he argued that the district court should compel
the government to file a motion to depart downward
pursuant to section 5K1.1. The government acknowledged
that Swint had provided "substantial" assistance in one
case, but that he was not entitled to the downward
departure because he had breached the plea agreement by
committing the two subsequent offenses in February and
June, 1999.

The district court denied Swint's motion for a downward
departure for acceptance of responsibility because Swint
had committed additional offenses after entering into the
plea agreement. The court also agreed with the
government's decision not to seek a downward departure
under section 5K1.1 because Swint had breached the plea
agreement in three ways: (1) by committing additional
crimes after signing the plea agreement; (2) by failing to
disclose to the government his ongoing criminal activities;
and (3) by acting in a manner, while cooperating with the
government, that was not at the express direction of the
government.

The district court then examined Swint's criminal history
score, which the PSR calculated at VI. Describing Swint's
thirty-year criminal history as "prodigious" and a "Niagara"
and considering the fact that Swint had twenty-two
convictions that had not been counted toward his criminal
history score, the district court departed upward from the
applicable range of forty-six to fifty-seven months to sixty-
three to seventy-eight months. At that point, the
government detailed the extent of Swint's cooperation with
the government's investigation, and requested the court to
sentence Swint in the lower half of the new range. The

                               5
court did so and sentenced Swint to seventy months'
incarceration. Swint now appeals his sentence.

Discussion

Swint makes two primary arguments on appeal. First, he
contends that despite his committing two criminal acts
after entering into the plea agreement, the government
breached the agreement by not moving for a downward
departure under section 5K1.1. Second, Swint maintains
that the government also breached the agreement by failing
to inform the district court of the "full nature and extent"
of his cooperation with the investigation until it was too late
in the sentencing hearing. Finding both arguments to be
without merit, we affirm Swint's sentence.

I. Construction of the Plea Agreement

The first issue is essentially one of contract construction.
Swint argues that the government breached the plea
agreement by not requesting a downward departure for him
based on his substantial assistance. He asserts that despite
the two offenses he committed after entering into the plea
agreement, the language of the agreement still required the
government to move for the downward departure at
sentencing. Whether the government breached the plea
agreement is a question of law which this Court reviews de
novo. See United States v. Huang, 178 F.3d 184, 187 (3d
Cir. 1999); United States v. Roman, 121 F.3d 136, 142 (3d
Cir. 1997). When a defendant has entered into a plea
agreement expressly requiring the government to move for
a downward departure under section 5K1.1, the district
court and reviewing court are "free to apply contract
principles" to determine whether the parties have complied
with the terms of the agreement. See United States v. Isaac,
141 F.3d 477, 481-82 (3d Cir. 1998).5 Swint has the
_________________________________________________________________

5. In situations in which there is no plea agreement, the government's
decision not to move for a downward departure based on section 5K1.1
may be reviewed only for "unconstitutional motive," like race or religion.
See Isaac, 141 F.3d at 481 (citing Wade v. United States, 112 S.Ct. 1840
(1992)). When there is an agreement, the district court may interpret the
agreement according to contract principles and consider whether the

                               6
burden of demonstrating by a preponderance of the
evidence that the government breached the plea agreement.
See Huang, 178 F.3d at 187.

The relevant portions of the plea agreement provide as
follows:

       ". . . If Swint enters a guilty plea and is sentenced on
       this charge, and otherwise fully complies with all of the
       terms of this agreement, this Office will not initiate any
       further charges arising from Swint's participation
       between May 1997 and October 1997 in the
       unauthorized use of unauthorized access devices. . ..

       Cooperation

       Swint shall cooperate fully with this office. As part of
       that obligation, Swint shall truthfully disclose all
       information concerning all matters about which this
       office and other Government agencies designated by
       this Office may inquire of him. Swint also shall make
       himself available at all reasonable times requested by
       representatives of the Government and shall truthfully
       testify in all proceedings, including grand jury and trial
       proceedings, as to any subject about which he is
       questioned. Furthermore, Swint agrees to provide to
       this Office, upon request, all documents and other
       materials relating to matters about which this Office
_________________________________________________________________

government has acted in good faith in choosing not to move for the
downward departure. See id. at 481-83. Presumably, a district court may
also determine whether the government has acted with an
unconstitutional motive in this circumstance. Huang suggests that even
when a plea agreement exists, the government's decision not to move for
a section 5K1.1 departure may be reviewed only for unconstitutional
motive or bad faith, see Huang, 178 F.3d at 189, but this conclusion
may simply represent a drafting slip. District courts, as well as
reviewing
courts, clearly retain the ability to employ contract principles to
determine whether both parties have complied with the terms of a plea
agreement. This point is ultimately irrelevant to the present appeal
because Swint has alleged neither bad faith nor unconstitutional motive
on the part of the government, and it appears that the government acted
within the terms of the agreement in not seeking the departure, see
infra.

                               7
inquires of him. Full cooperation includes participating,
if requested, in affirmative investigative techniques,
such as making telephone calls, tape recording
conversations, and introducing law enforcement
officials to other individuals. All such activity by Swint
must be conducted only at the express direction and
under the supervision of this Office and federal law
enforcement personnel.

Should Swint withdraw from this agreement, or
should Swint commit any additional federal, state, or
local crimes, or should it be established that Swint has
intentionally given materially false, incomplete, or
misleading testimony or information or otherwise has
violated any provision of this agreement, the non-
prosecution provisions of this agreement shall be null
and void. All other provisions of this agreement shall
remain in full force and effect . . . .

Sentencing

. . .

Except as otherwise provided in this agreement, this
office reserves its right to take any position with
respect to the appropriate sentence to be imposed on
Swint by the sentencing judge. In addition, this Office
will inform the sentencing judge and the U.S. Probation
Office of: (1) this agreement; (2) the nature and extent
of Swint's activities and relevant conduct with respect
to this case; (3) the full nature and extent of Swint's
cooperation with this Office and when such cooperation
commenced; and (4) all other information relevant to
sentencing, favorable or otherwise, including
information provided by Swint before and after signing
this agreement.

Further, if Swint fully complies with this agreement
and, prior to his sentencing, provides substantial
assistance in the investigation or prosecution of one or
more persons who have committed offenses, this office
will move the sentencing judge, pursuant to Section
5K1.1 of the Sentencing Guidelines, to depart from the
otherwise applicable guideline range. Whether the
sentencing judge does in fact impose a sentence below

                        8
       the otherwise applicable guideline range is a matter
       committed solely to the discretion of the sentencing
       judge. The determination whether Swint has provided
       substantial assistance to the Government rests solely in
       the discretion of this Office. Swint may not withdraw
       his plea if this Office determines that Swint has not
       rendered substantial assistance or if the court refuses
       to grant the Government's motion for a downward
       departure." (emphasis added)

Swint concedes that the offenses he committed in
February and June, 1999, constituted violations of the plea
agreement.6 Swint's argument concerns instead the proper
remedy for these violations. Relying primarily on the
"Cooperation" section, which provides that"the non-
prosecution provisions of this agreement shall be null and
void" in the event that Swint withdraws from the agreement
or violates it in any way, Swint argues that the only remedy
available to the government is the rescission of its promise
not to prosecute other offenses arising during the period of
May-October, 1997.7 In support of his argument, Swint
points to the next sentence of the "Cooperation" section,
which states that "[a]ll other provisions of this agreement
shall remain in full force and effect." Accordingly, he
contends that the government's obligation to move for the
downward departure based on his substantial cooperation
likewise remains "in full force and effect." By not moving for
a downward departure, the government (according to Swint)
breached the plea agreement.

Swint's reading of the plea agreement is flawed. As the
government rightly points out, the "Sentencing" section of
the agreement, which discusses the section 5K1.1 motion,
specifically conditions the government's moving for the
downward departure on (1) Swint's "fully" complying with
the agreement "and" (2) his providing "substantial
assistance" with the government's investigation. As Swint
was fully aware, one of the basic requirements of the plea
_________________________________________________________________

6. Indeed his counsel expressly so conceded at oral argument.

7. There is no evidence, and Swint does not claim, that the government
has attempted to prosecute Swint for any offenses that occurred between
May and October, 1997.

                               9
agreement was that Swint commit no more crimes. After his
first arrest on February 18, 1999, the government even
gave Swint another chance and told him that if he engaged
in further illegal activity, he would forfeit the departure
motion. Shortly thereafter, on June 14, 1999, Swint again
violated this provision of the agreement when he attempted
to commit credit card fraud at the Home Depot store. By
committing these subsequent offenses, Swint, as he admits,
failed to comply with the terms of the agreement; under the
"Sentencing" provision, Swint's noncompliance released the
government from its obligation to move for the downward
departure. Furthermore, we reject Swint's argument that
his breach was not material.

Under Swint's reading of the plea agreement, any
violation of the agreement would result only in the voiding
of the non-prosecution provision. Accordingly, no violation
could extinguish the government's promise to move for the
downward departure, a result we find absurd. The language
that Swint relies on says that the non-prosecution
provisions of the agreement will be null and void if Swint
breaches the agreement and that the other provisions will
remain in full effect. This is not tantamount to saying that
all of the government's obligations will remain in full effect;
instead, it states that the other provisions of the agreement,
including the "Sentencing" provision and its requirement
that Swint comply fully with the agreement in order to earn
the downward departure motion, remain in effect. Swint's
post hoc parsing of the plea agreement does not alter that
fact.

Moreover, the operative effect of Swint's interpretation
would eviscerate one purpose of the plea agreement (as well
as the purpose of allowing him out on bail), which was to
have Swint aid the government in exchange for a possibly
lower sentence--in other words, to make him earn the
downward departure motion. The purpose was not to
enable him to engage in further illegal activity, and then
still benefit from the downward departure. "In determining
whether the terms of the plea agreement have been
violated, the court must determine whether the
government's conduct is consistent with the parties'
reasonable understanding of the agreement." Roman, 121

                               10
F.3d at 142 (quoting United States v. Hernandez , 17 F.3d
78, 80-81 (5th Cir. 1994)). We find the government's
decision not to move for a downward departure manifestly
consistent with any reasonable understanding of this plea
agreement. By contrast, Swint's construction of the
agreement makes little sense in light of the agreement's
clear purpose. This Court has rejected other tortured and
illogical interpretations of plea agreements, and we do the
same here. See Huang, 178 F.3d at 189 (rejecting "the
remarkable proposition" argued by the defendant that when
the government refuses to move for a downward departure
because the defendant has not performed under the plea
agreement, the defendant should be permitted to withdraw
his guilty plea).

Swint relies on the Second Circuit's recent opinion in
United States v. Padilla, 186 F.3d 136 (2d Cir. 1999), but
we find that case distinguishable. In Padilla , the
government submitted a section 5K1.1 motion based on the
defendant's substantial assistance, but the defendant failed
to appear at the sentencing hearing. See Padilla , 186 F.3d
at 139. The defendant was subsequently arrested for
participating in the sale of two bags of crack cocaine to a
police officer. See id. Prior to the second sentencing
hearing, the government withdrew its section 5K1.1 motion
on the ground that Padilla's offense violated the plea
agreement. On appeal, the Second Circuit found that the
government had breached the agreement because the
government withdrew the motion, after originally making it,
without an enumerated provision in the plea agreement
permitting it to withdraw such a motion. See id. at 141. The
Padilla court observed "[t]he [plea] agreement, however, is
silent with regard to the withdrawal of a Section 5K1.1 and
18 U.S.C. S 3553(e) motion," id. at 141 (original emphasis),
and went on to state "we conclude that it [the plea
agreement] prohibits the Government from withdrawing the
Section 5K1.1 and 18 U.S.C. S 3553(e) motion because it
failed to enumerate specifically the right to withdraw the
motion in the several specific and serious consequences
that would follow if Padilla committed further crimes or
otherwise violated the agreement." Id. (emphasis added).
See also id. at 142 ("The plea agreement was silent as to
whether the Government could withdraw the Section 5K1.1

                               11
and 18 U.S.C. S 3553(e) motion . . ."). The Second Circuit
concluded this portion of its opinion by stating"[o]ur
holding is necessarily a narrow one, because of the limited
nature of the issue raised by the attempted withdrawal of
the motion . . . Withdrawal has been specifically dealt with
in some plea agreements but was not in the one before us."
Id. at 142. Here, by contrast, withdrawal of a previously
made motion is not at all involved, and the plea agreement
between Swint and the government by the clearest
implication contemplates that the government may elect not
to move for the section 5K1.1 downward departure in the
event of Swint's noncompliance. Padilla's"narrow" holding
is consequently inapposite here.8

II. The "Full Nature and Extent" of Swint's Cooperation

Swint's other principal argument is that the government
breached the plea agreement by failing to inform the district
court at sentencing of the "full nature and extent" of his
cooperation with the government's investigation. This
argument is also meritless.

The plea agreement provides that the government"will
inform the sentencing judge and the U.S. Probation Office
of . . . the full nature and extent of Swint's cooperation with
this Office and when such cooperation commenced." Swint
contends that the government breached this obligation in
that its provision of the details of Swint's cooperation to the
_________________________________________________________________

8. The government also suggests that by committing these two
subsequent offenses, Swint did not meet the other basic requirement of
providing "substantial assistance." The government acknowledges that
the assistance Swint provided regarding the investigation of one
individual turned was in fact "substantial." In the government's
judgment, however, Swint failed to continue to provide substantial
assistance sufficient to earn the section 5K1.1 motion when he
committed the subsequent offenses because he violated the terms of the
agreement and lost any credibility he might have as a future witness. In
other words, his subsequent criminal acts undermined the usefulness of
the assistance he had provided. See United States v. Wilkerson, 179 F.3d
1083, 1086 (8th Cir. 1999) (upholding district court's conclusion that
government did not have to file a section 5K1.1 motion when the
defendant had continued to use drugs after the agreement because that
behavior undermined the "quality" of his assistance). We do not resolve
this contention as it is not necessary for us to do so.

                               12
district court was too little and too late: too little because
the government allegedly did not state everything Swint did
in his cooperation, and too late because the government did
not relay the details of Swint's cooperation to the district
court until after the court had decided to depart upward
based on Swint's criminal history. It is Swint's belief that
the district court should have heard all the details of
Swint's cooperation while it considered whether to depart
upward based on his admitted "egregious" his criminal
history, and that therefore Swint's substantial cooperation
would have balanced out his criminal history and
foreclosed the upward departure.

We do not believe that the government was either too
little or too late in its description of Swint's cooperation.
First, Swint does not provide anything other than
conclusory allegations to explain how the Government's
description of his cooperation was, as he asserts,
"understated and incomplete." Before the district court, the
government offered a lengthy description of Swint's
cooperation activities; this description takes up several
pages of the hearing transcript, and would appear to satisfy
any notion of a "full" and detailed chronology. Second,
Swint does not explain why (or how) the government
breached the agreement by offering its description at a time
he characterizes as "unduly late" in the hearing. The most
obvious weakness to Swint's argument is that there is no
provision in the agreement dictating when the government
must provide this information to the court; presumably it
must only do so before the district court pronounces the
sentence.

Moreover, as the government points out, even if it had
chronicled all the details of Swint's cooperative efforts
before the district court decided to depart upward based on
Swint's criminal history, these efforts have no relevance to
a district court's decision whether to depart, upward or
downward, based on criminal history. Section 4A1.3 of the
Sentencing Guidelines discusses only departures based on
the under or over-representation of criminal history scores;
it nowhere suggests that a defendant's subsequent
cooperation in any way wipes out his prior criminal record.
This Court has observed that once a district court has

                               13
determined that a departure based on criminal history is
warranted, it should then consider a defendant's
cooperation with the government when sentencing within
the new range. See United States v. Bruno, 897 F.2d 691,
693 (3d Cir. 1990). The district court retains discretion,
however, "as to whether to give effect to that cooperation."
Bruno, 897 F.2d at 693.

Bruno does not support Swint's contention that the
district court was required to have considered his
cooperation (and therefore had the full account of it from
the government) before deciding to depart upward. Instead,
it merely confirms that the district court acted within its
discretion when, after determining that an upward
departure was appropriate, it considered Swint's
cooperation and sentenced him within the new range. That
is what the district court did in this case. At sentencing,
the district court stated that "I find that an upward
departure of Mr. Swint's category is absolutely warranted"
due to his thirty-year criminal history, and then began to
determine what new level was appropriate. As it did so, the
district court stated that "in considering what level in the
Guidelines table adequately reflects the defendant's
criminal history, I have considered the defendant's
cooperation with the Government." Later, the government
provided its lengthy narrative about Swint's cooperation to
the district court and requested that the court sentence
Swint to the lower half of the new range. The district court
agreed and sentenced Swint to seventy months'
imprisonment. The district court appropriately exercised its
discretion in weighing Swint's cooperation in the context of
the new sentencing range, and had the benefit of the
government's description of Swint's cooperation to do so. In
sum, we find that the government did not breach the plea
agreement and in fact gave Swint the benefit of his bargain.

Conclusion

Swint's sentence is
AFFIRMED.

                               14
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               15
