United States of America v. James M. Gebbie, Midwest Presort Mailing Services, Inc.

PRECEDENTIAL
Filed June 28, 2002
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1812
UNITED STATES OF AMERICA,
Appellant,
v.
JAMES M. GEBBIE, MIDWEST PRESORT MAILING
SERVICES, INC., and JAMES D. RICHTER
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 00-cr-00114)
District Judge: The Honorable Donald E. Ziegler
Argued October 29, 2001
BEFORE: SLOVITER, NYGAARD, and AMBRO,
Circuit Judges.
(Filed: June 28, 2002)
Paul J. Brysh, Esq. (Argued)
Office of the United States Attorney
633 USPO and Courthouse Building
Pittsburgh, PA 152189
Counsel for Appellant
Michael R. Hamed, Esq. (Argued)
Messerman & Messerman
127 Public Square
Suite 4100
Cleveland, OH 44114
Counsel for Appellee,
James M. Gebbie
J. Alan Johnson, Esq.
Johnson & Eddy
707 Grant Street
1720 Gulf Tower
Pittsburgh, PA 15219
Counsel for Appellee,
Midwest Presort
OPINION OF THE COURT
NYGAARD, Circuit Judge:

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We are asked to determine whether plea agreements
between Appellees and the U.S. Attorneys for the Northern
and Southern Districts of Ohio bar the present prosecution.
Appellees pleaded guilty to misprision of felony in Ohio, and
now the U.S. Attorney for the Western District of
Pennsylvania is prosecuting Appellees for the felony that
formed the basis of the misprision pleas. The District Court
dismissed that count of Appellees’ indictment, holding that
it violated the Fifth Amendment’s prohibition against being
twice placed in jeopardy, and the Government appealed. We
conclude that the District Court erred, but will affirm the
dismissal because the plea agreements protect Appellees
from prosecution in Pennsylvania for the same crimes and
offenses that were charged against them in Ohio.
I.
Appellee James Gebbie is the founder, president, and
owner of Appellee Mid-West Presort Mailing Services, Inc.
("Midwest"). Midwest is headquartered in Cleveland, Ohio,
and operates facilities in Pittsburgh, Syracuse, Akron, and
Columbus. Appellee James Richter was the plant manager
2
in Pittsburgh and the senior director of operations in Akron
and Columbus. Midwest sorted and bar-coded mail for
business customers seeking to obtain lower first-class letter
rates for pre-sorted and bar coded mail from the United
States Postal Service. The rates for such mail depended
upon the proportion of mail that was sorted and the extent
of sorting.
Mail from certain business customers was given to
Midwest with reduced rate postage already affixed. If
Midwest was able to sort their mail more extensively than
anticipated, the Postal Service paid Midwest a rebate.
Conversely, if Midwest sorted their mail less extensively
than anticipated, Midwest owed the Postal Service
additional postage. The Postal Service checked only small
samples of the presorted mail. Refunds and charges were
based upon two forms submitted by Midwest: P.S. Form
3600, entitled "Mailing Statement," and P.S. Form 3533,
entitled "Application and Voucher for Refund of Postage and
Fees."
On March 18, 1999, a twenty-two-count indictment was
returned in the Southern District of Ohio naming Gebbie,
Richter, Midwest, and one other former Midwest employee
as Defendants. Among other things, the Ohio Indictment
alleged that all Defendants conspired to make false
statements to the Postal Service between January 1, 1993
and August 31, 1994. The Ohio Indictment alleged that the
conspiracy occurred in the Southern District of Ohio"and
elsewhere."
Midwest pleaded guilty to Count Eighteen of the Ohio
Indictment, which charged a conspiracy to make false
statements in violation of 18 U.S.C. SS 371, 1001. The

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remaining twenty-one counts in the Ohio Indictment
against Midwest were dismissed. Gebbie and Richter
pleaded guilty to a single count of misprision of a felony in
violation of 18 U.S.C. S 4. This was pursuant to a plea
agreement in which the Ohio Indictment was dismissed in
its entirety and a Superseding Information alleging
misprision was issued to replace it. The felony underlying
the misprision charge was the same conspiracy to which
Midwest had pleaded guilty, i.e., "conspiracy to make false
statements on Form 3600 mailing statements submitted to
3
the United States Postal Service in 1993 and 1994."
Appellees were then sentenced in the Southern District of
Ohio.
Before the plea agreements in Ohio were finalized, the
U.S. Attorney for the Southern District of Ohio and defense
counsel learned that the U.S. Attorney for the Western
District of Pennsylvania was investigating Defendants. They
made an attempt to resolve all potential charges in a global
agreement among the Northern District of Ohio, the
Southern District of Ohio, the Western District of
Pennsylvania, and Defendants, but the U.S. Attorney’s
Office for the Western District of Pennsylvania believed it
was investigating crimes other than those committed in
Ohio, so it declined to enter into an agreement.
A few months later, Gebbie, Richter, and Midwest were
indicted in the Western District of Pennsylvania. That
indictment was later replaced by an eight-count
superseding indictment. Count One of the Pittsburgh
Indictment charged Midwest, Gebbie, and Richter with a
conspiracy, from 1992 to 1995, to commit mail fraud by
undercounting mail processed for Mellon Bank and then
"hiding" the mail among other customers’ mail. Defendants
allegedly would submit P.S. Forms 3600 that understated
Mellon Bank’s mail and Forms 3533 that overstated the
refunds to which Midwest was entitled. In that manner,
they caused the Postal Service to issue refund checks that
were inflated. Counts Two and Three charged all three
Defendants with substantive mail fraud offenses. Counts
Four through Eight charged all three Defendants with
making false statements to a federal agency.
Defendants filed motions to dismiss on double jeopardy
grounds, based upon the prior federal prosecution in the
Southern District of Ohio. Midwest and Gebbie filed a joint
motion to dismiss the conspiracy charge. Richter filed a
separate motion to dismiss the conspiracy charge and the
false statements charges. Defendants also moved to dismiss
the Pittsburgh Indictment in its entirety on the basis of
unconstitutional pre-indictment delay.
The District Court granted the motions to dismiss the
conspiracy count, but denied Richter’s motion to dismiss
4

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the substantive false statements counts. The court held
that the mail fraud conspiracy charged in the Pittsburgh
Indictment is the same offense as the false statements
conspiracy to which Midwest had pleaded guilty in Ohio.
The court also held that the misprision charge to which
Gebbie and Richter had pleaded guilty in Ohio was a lesser-
included offense of the conspiracy charge alleged in Count
One of the Pittsburgh Indictment, and thus violated the
Double Jeopardy Clause of the Fifth Amendment to the
Constitution which "forbids successive prosecution and
cumulative punishment for a greater and lesser included
offense."1 Brown v. Ohio , 432 U.S. 161, 169 (1977). The
Government argues on appeal that the District Court’s
double jeopardy analysis is constitutionally infirm.
II.
Because we decide this case based upon the plea
agreements, we do not need to reach the constitutional
issue. Nonetheless, we think it is instructive to briefly
explain why the District Court erred by treating misprision
of felony as a lesser-included offense of the mail fraud
conspiracy. When determining whether one crime is a
lesser-included offense of another, we apply the test set
forth in Blockburger v. United States, 284 U.S. 299 (1932).
The test is "whether each provision requires proof of an
additional fact which the other does not." Blockburger, 284
U.S. at 304.
The elements of misprision of felony under 18 U.S.C.S 4
are (1) the principal committed and completed the felony
alleged; (2) the defendant had full knowledge of that fact; (3)
the defendant failed to notify authorities; and (4) the
defendant took steps to conceal the crime. See United
States v. Cefalu, 85 F.3d 964, 969 (2d Cir. 1996). The
elements of conspiracy to commit mail fraud under 18
U.S.C. SS 371, 1341 are (1) an agreement between two or
more persons to commit mail fraud; (2) the defendant
knowingly joined the conspiracy; and (3) one of the
_________________________________________________________________
1. The court did not specifically address the issue of unconstitutional
pre-indictment delay, but did deny the motion "in all other respects."
Given how we resolve the appeal, however, that presents no problem.
5
conspirators committed an overt act in furtherance of the
conspiracy. See United States v. Conley, 37 F.3d 970, 976-
77 (3d Cir. 1994). Each requires proof of an additional fact
that the other does not. For example, misprision requires
that the defendant took steps to conceal the crime. There is
no analogous element in the mail fraud or conspiracy
statutes. Likewise, conspiracy to commit mail fraud
requires an agreement, whereas there is no analogous
element in the misprision statute. Therefore, misprision of
the felony of conspiracy is not a lesser-included offense of

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the conspiracy itself, and Appellees have not been twice
placed in jeopardy for the same offense.
III.
Gebbie and Richter also argue that their plea agreements
in Ohio bar their prosecution in the Western District of
Pennsylvania.2 They argue that the Government cannot
reindict them for the same conspiracy that it voluntarily
dismissed in Ohio in exchange for their pleas to misprision.
They point to the language in their plea agreements stating
that their agreements were made "in exchange for the
dismissal" of the conspiracy counts, and they contend that
under contract principles as applied to plea agreements,
the Government must live up to its side of the bargain. See
Santobello v. New York, 404 U.S. 257, 262 (1971) ("[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."). According to Gebbie and Richter,
because they offered their pleas in exchange for dismissal
of the conspiracy counts, the Government is precluded from
prosecuting them again for the same conspiracy."Whether
the government’s conduct violates the terms of the plea
agreement is a question of law and our review is plenary."
United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.
1989).
_________________________________________________________________
2. Gebbie and Richter offer several legal grounds upon which we could
affirm the District Court’s order. We only need to consider one of them
because we find it convincing.
6
A.
Plea agreements are contractual in nature, so we begin
our analysis as we would with any contract. We examine
first the text of the contract, or, in this case, the language
of the Ohio plea agreement. See Moscahlaidis, 868 F.2d at
1361 ("Although a plea agreement occurs in a criminal
context, it remains contractual in nature and is to be
analyzed under contract-law standards."). Gebbie and
Richter argue that Paragraph 11 of their Ohio plea
agreements forbids the Government from prosecuting them
for the same crime that was dismissed in Ohio, but the
Government argues Gebbie’s Paragraph 5 and Richter’s
Paragraph 6 make clear that only the U.S. Attorneys for the
Northern and Southern Districts of Ohio agreed not to
prosecute further.
Gebbie’s Paragraph 5 states:
If such plea of guilty is entered, and not withdrawn,
and defendant JAMES GEBBIE acts in accordance with
all other terms of this agreement, the United States
Attorney for the Southern District of Ohio agrees to
seek leave of Court at the time of sentencing to dismiss

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Counts One through Eighteen of the Indictment and
the United States Attorneys for the Southern and
Northern Districts agree not to file additional criminal
or civil charges against defendant JAMES GEBBIE
based on his activities charged in the Superseding
Information or the original Indictment herein or based
on other similar activities in the Southern or Northern
Districts of Ohio occurring prior to the dates set forth
in the Superseding Information or Indictment.
And Gebbie’s Paragraph 11 states:
Defendant JAMES GEBBIE understands that this
agreement does not protect him from prosecution for
perjury, should defendant JAMES GEBBIE testify
untruthfully, or for making false statements, nor does
it protect him from prosecution for other crimes or
offenses which the United States discovers by
independent investigation. Further, should Defendant
JAMES GEBBIE fail to comply fully with the terms and
conditions set forth herein, or should he fail to appear
7
as required for sentencing, this agreement is voidable
at the election of the government, in which case
defendant JAMES GEBBIE shall be subject to
prosecution as if the agreement had never been made.
Similarly, Richter’s Paragraph 6 states:
If such plea of guilty is entered, and not withdrawn,
and defendant JAMES RICHTER acts in accordance
with all other terms of this agreement, the United
States Attorneys for the Northern and Southern
Districts of Ohio agree not to file additional criminal
charges against defendant JAMES RICHTER based on
his activities charged in the Superseding Information or
the indictment herein, or based on other similar
activities in the Northern or Southern Districts of Ohio
occurring prior to the dates set forth in the
Superseding Information or Indictment and as to which
Defendant gives testimony or makes sworn or unsworn
statements pursuant to this agreement.
And Richter’s Paragraph 11 states:
Defendant JAMES RICHTER understands that this
agreement does not protect him from prosecution for
perjury, should defendant JAMES RICHTER testify
untruthfully, or for making false statements, nor does
it protect him from prosecution for other crimes or
offenses which the United States discovers by
independent investigation. Further, should Defendant
JAMES RICHTER fail to comply fully with the terms
and conditions set forth herein, or should he fail to
appear as required for sentencing, this agreement is
voidable at the election of the government, in which
case defendant JAMES RICHTER shall be subject to

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prosecution as if the agreement had never been made.
There is some tension between these paragraphs.
Paragraphs 5 and 6 say that "the United States Attorneys
for the Northern and Southern Districts of Ohio agree not
to file additional criminal charges against" Gebbie and
Richter. It sounds as if only those two U.S. Attorneys are
bound. But Paragraph 11 refers not to specific U.S.
Attorneys, but to "the United States." As we will explain, if
the reference to "the United States" means only the U.S.
8
Attorneys involved in the plea, then there is no conflict
between these paragraphs. But, if the reference to"the
United States" means all U.S. Attorneys, then the plea
agreement as a whole is ambiguous as to whether it
permits the present prosecution to go forward.
Before considering what "the United States" means, we
must explain why Paragraph 11 has the possibility of
foreclosing the present prosecution. Paragraph 11 makes
clear that the Ohio plea agreements do not protect Gebbie
and Richter from further prosecution if they commit perjury
or "for other crimes or offenses which the United States
discovers by independent investigation." This means that
Gebbie and Richter can be prosecuted for crimes and
offenses that were not part of the Ohio plea agreements.
But in this case, the District Court found, and the
Government concedes, that the conspiracy alleged in
Pennsylvania is the same conspiracy as the one alleged in
Ohio. Therefore, the United States Attorney for the Western
District of Pennsylvania is attempting to prosecute Gebbie
and Richter for the same crimes and offenses that were at
issue in Ohio. While the Ohio plea agreements permit the
Government to prosecute Gebbie and Richter "for other
crimes or offenses," they do not permit the Government to
prosecute Gebbie and Richter for the same crimes or
offenses. The question, then, is who is bound when a plea
agreement refers to "the United States" or"the
Government"?
B.
We have touched upon a related issue before. In United
States v. Igbonwa, 120 F.3d 437 (3d Cir. 1997), we were
asked to decide whether a promise made by a United States
Attorney or his assistant would be binding on another
agency -- the INS -- without the agency’s explicit authority
to bind it. There, we recognized a split among other
circuits, and we adopted the reasoning of those courts
holding that a United States Attorney cannot bind the INS
without explicit authority from the INS. Id. at 444. We
thought that "[t]o hold otherwise would grant United States
Attorneys the power to bind any and every governmental
agency under the supervision of the Attorney General
9

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through promises made in the plea agreement." Id.
Although there are some surface similarities between
Igbonwa and this case, Igbonwa is not dispositive. We are
not asked to determine whether the promises of a U.S.
Attorney are binding on the INS, DEA, or "every
governmental agency under the supervision of the Attorney
General." The question here is more circumscribed. We
must determine whether promises made on behalf of"the
Government" or "the United States" by a United States
Attorney to a defendant bind other United States Attorneys
with respect to the same defendant.
Courts of appeals are split on this issue. The Second
Circuit has found that when a United States Attorney uses
a term like "the Government," he binds only that specific
district, "unless it affirmatively appears that the agreement
contemplates a broader restriction."3 United States v.
Annabi, 771 F.2d 670, 672 (2d Cir. 1985); see also United
States v. Abbamonte, 759 F.2d 1065 (2d Cir. 1985),
overruled on other grounds by United States v. Macchia, 41
F.3d 35 (2d Cir. 1994); United States v. Alessi , 544 F.2d
1139 (2d Cir. 1976), overruled on other grounds by United
States v. Macchia, 41 F.3d 35 (2d Cir. 1994). But the
Fourth Circuit holds that a U.S. Attorney’s use of terms like
"the Government" or "the United States" bind all other
United States Attorneys, unless there is an express
limitation to the contrary. See United States v. Harvey, 791
F.2d 294 (4th Cir. 1986); United States v. Carter, 454 F.2d
426. Thus, the Second and Fourth Circuits employ opposite
default rules.
The Second Circuit explained its rule in United States v.
Annabi, but, interestingly, also noted its illogical posture:
As an original proposition, a plea agreement whereby a
federal prosecutor agrees that "the Government" will
dismiss counts of an indictment other than the ones to
which guilty pleas are entered might be thought to bar
_________________________________________________________________
3. The Second Circuit has held that "an affirmative appearance need not
be an express statement." United States v. Russo, 801 F.2d 624, 626 (2d
Cir. 1986). Thus, "a promise to bind other districts can be inferred from
the negotiations between defendant and prosecutor, as well as from
statements at the plea colloquy." Id. (citations omitted).
10
the United States from reprosecuting the dismissed
charges in any judicial district unless the agreement
expressly limits the scope of the agreement to the
district in which the dismissed charges are initially
brought. However, the law has evolved to the contrary.
A plea agreement binds only the office of the United
States Attorney for the district in which the plea is
entered unless it affirmatively appears that the
agreement contemplates a broader restriction. United
States v. Abbamonte, supra, 759 F.2d [1065 (2d Cir.

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1985)] at 1072; United States v. Alessi, 544 F.2d 1139,
1154 (2d Cir. [1976]), cert. denied, 429 U.S. 960, 97 S.
Ct. 384, 50 L. Ed. 2d 327 (1976); see also United
States v. Papa, 533 F.2d 815, 823025 (2d Cir.[1976]),
cert. denied, 429 U.S. 961, 97 S. Ct. 387, 50 L. Ed. 2d
329 (1976).
Annabi, 771 F.2d at 670. Working back through the three
cases cited in Annabi, we are unable to discern a sound
basis for the rule. How the rule "has evolved to the
contrary" shows that it really has no analytically sound
foundation. It just keeps replicating itself each time it is
cited.
The first case cited in Annabi is Abbamonte, but
Abbamonte merely relies upon the other two cases cited in
Annabi -- Alessi and Papa-- for the proposition that there
must be an indication that a plea agreement contemplates
a broader restriction for it to be binding on other districts.
The court in Abbamonte offers no further justification for
the rule.
The court in Alessi relies upon Papa, which is a related
case. The district court in Papa had held an evidentiary
hearing into the meaning and scope of a plea agreement
between the Government and Papa, and now in Alessi, one
of Papa’s co-conspirators alleged that Papa’s plea
agreement also covered him. Because the court in Alessi
was construing the same plea agreement as was the court
in Papa, it makes sense that Alessi relied upon Papa.
Papa, however, provides no support for the rule the
Second Circuit follows. Although the issue in Papa was
whether a promise made in the Eastern District of New
11
York was binding upon the Southern District of New York,
the court expressly stated that "[t]he question here does
not, as appellant suggests, concern the breadth of the
respect that principles of due process require one district of
the United States Attorneys’ Office to accord promises made
by a Strike Force Attorney in another district." Papa, 533
F.2d at 824. The district court held an evidentiary hearing
into the meaning of the plea agreement, and the Second
Circuit agreed that "[t]he representations made by [the
United States Attorney] related expressly and by necessary
implication exclusively to Eastern District investigations
and prosecutions." Id. at 824.
Although Papa held that the plea agreement did not bind
other districts because the evidence revealed an intent to
bind only one district, the Second Circuit apparently has
broadly interpreted this case as meaning that plea
agreements do not bind other districts absent an
affirmative appearance of doing so. Papa does not explain
or attempt to rationalize the rule that has evolved.
In contrast to the Second Circuit, the Fourth Circuit

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holds that "the Government" means the whole Government,
thus all U.S. Attorneys. In United States v. Carter, the
question arose whether the U.S. Attorney for the District of
Columbia might bind the U.S. Attorney for the Eastern
District of Virginia. Carter, 454 F.2d at 427. The defendant
alleged that such a promise had been made, and the
Fourth Circuit concluded that the defendant was entitled to
an evidentiary hearing to determine the existence and scope
of the promise. Id. In finding that one U.S. Attorney could
indeed bind another, the Fourth Circuit used language so
eloquent, and of such sound logic, that we quote it here to
give it its full effect:
The United States government is the United States
government throughout all of the states and districts.
If the United States government in the District of
Columbia, acting through one of its apparently
authorized agents, promised that the sole prosecution
against defendant would be the misdemeanor charge in
that jurisdiction, and defendant relied on the promise
to his prejudice--facts which must be proved in the
plenary hearing if the indictment is to be dismissed--
12
we will not permit the United States government in the
Eastern District of Virginia to breach the promise.
Sound reasons of public policy support this result.
Many federal crimes have multistate ramifications and
are committed by persons acting in concert. If we
hypothesize a single defendant charged with the
interstate transportation of a stolen motor vehicle
through several states, we would not question that the
efficient administration of justice would support the
authority of the prosecutor in one of those states to
obtain an indictment and bargain for a guilty plea,
agreeing that all offenses in the other jurisdictions
would be disposed of in the single case. If there is
added to the hypothetical codefendants and, if the plea
bargain includes a promise of cooperation in their
disclosure and/or their prosecution, the desirability of
the result we reach becomes more apparent. A contrary
result would constitute a strong deterrent to the
willingness of defendants accused of multistate crimes
to cooperate in speedy disposition of their cases and in
apprehending and prosecuting codefendants.
If there be fear that an United States Attorney may
unreasonably bargain away the government’s right and
duty to prosecute, the solution lies in the
administrative controls which the Attorney General of
the United States may promulgate to regulate and
control the conduct of cases by the United States
Attorneys and their assistants. The solution does not
lie in formalisms about the express, implied or
apparent authority of one United States Attorney, or
his representative, to bind another United States
Attorney and thus to visit a sixteen year sentence on a

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defendant in violation of a bargain he fully performed.
There is more at stake than just the liberty of this
defendant. At stake is the honor of the government[,]
public confidence in the fair administration of justice,
and the efficient administration of justice in a federal
scheme of government.
Carter, 454 F.2d at 428.
The Fourth Circuit later relied upon Carter in interpreting
the plea agreement at issue in United States v. Harvey, 791
13
F.2d 294 (4th Cir. 1986). In Harvey, the defendant entered
into a plea agreement in the Eastern District of Virginia
which stated, in part:
Should the Court accept the defendant’s plea of guilty
. . . the Government will move to dismiss the remaining
counts of the indictment . . . The Eastern District of
Virginia further agrees not to prosecute MICHAEL LEE
HARVEY for any other possible violations of criminal
law arising from the offenses set out in the indictment
or the investigation giving rise to those charges. It is
also a part of this plea agreement that the Government
will not oppose a continuation of the defendant’s bond
pending his sentencing . . . The Government also will
not oppose the defendant’s [sentencing request].
Harvey, 791 F.2d at 296 n.1. Harvey was subsequently
indicted in the District of South Carolina. He moved in the
Eastern District of Virginia to enjoin the South Carolina
prosecution on the basis of his plea agreement in Virginia.
The Fourth Circuit determined, first, that the reference to
"the Eastern District of Virginia" in the plea agreement was
ambiguous. Id. at 301. The court noted that most of the
plea agreement referred to "the United States" rather than
the specific U.S. Attorney’s Office, so it posited that the
reference to "the Eastern District of Virginia" may have
been "merely a careless imprecision." Id . It also noted that
the background law in the Fourth Circuit is Carter’s
holding that "though the Government negotiates its plea
agreements through the agency of specific United States
Attorneys--as necessarily it must--the agreements reached
are those of the Government." Id. at 302-03. The court
concluded that the plea agreement was ambiguous,
construed the ambiguity against the Government, and held
"that [the plea agreement] must be interpreted to prevent
further prosecutions for such offenses anywhere and by
any agency of Government." Id. at 303.
After considering these various approaches to construing
terms like "the Government" and "the United States," we
find the reasoning underlying the Fourth Circuit’s approach
more persuasive. We do not go as far as the Fourth Circuit,
which seems willing to hold that the entire Government is

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14
bound by a U.S. Attorney’s promise. Indeed, our decision in
Igbonwa would not allow it. We only need to decide whether
a U.S. Attorney’s use of terms like "the United States" and
"the Government" binds his fellow U.S. Attorneys. We
conclude that it does.
We hold, therefore, that when a United States Attorney
negotiates and contracts on behalf of "the United States" or
"the Government" in a plea agreement for specific crimes,
that attorney speaks for and binds all of his or her fellow
United States Attorneys with respect to those same crimes
and those same defendants. We are not convinced, as the
U.S. Attorney argues, that each district should always be a
separate contracting entity. United States Attorneys should
not be viewed as sovereigns of autonomous fiefdoms. 4 They
represent the United States, and their promises on behalf of
the Government must bind each other absent express
contractual limitations or disavowals to the contrary.
C.
This conclusion, however, does not completely resolve the
issue on appeal. As we stated at the outset, our inquiry into
the meaning of "the United States" is relevant to
determining whether the plea agreements in their entirety
prevent the current prosecution from going forward. We
said that if "the United States" refers only to the U.S.
Attorneys involved in negotiating the plea, then there would
be no tension between Paragraph 5 and Paragraph 11. 5
Both paragraphs would reinforce each other. But if"the
United States" refers to all U.S. Attorneys, then Paragraphs
_________________________________________________________________
4. We are convinced that the U.S. Attorney’s Office for the Western
District of Pennsylvania honestly believed that it was investigating "other
crimes" when it declined to specifically join this agreement. We are
likewise convinced that, in an accusatorial system such as ours,
defendants whose crimes may potentially implicate other districts should
not have to depend upon the integrity of remote U.S. Attorneys when
negotiating their pleas. Mischief happens. If the plea agreement is to
bind no other U.S. Attorney and no other district, a provision saying so
is easily inserted, and every party is thus protected.
5. For Richter, the relevant paragraphs are Paragraph 6 and Paragraph
11.
15
5 and 11 conflict. Because we now hold that terms like "the
United States" and "the Government" do indeed refer to all
U.S. Attorneys, we find that Paragraphs 5 and 11 are in
tension with each other, and the plea agreements are,
therefore, ambiguous on the question of whether they
permit the present prosecution to proceed.
The text of the agreements themselves does nothing to

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clear up this ambiguity. At times, the contracting party is
referred to as "the United States."6 Sometimes, the
contracting party is called "the government." 7 Yet other
times, the contracting party is identified as the United
States Attorneys for the Southern and Northern Districts of
Ohio.8 Finally, the ninth paragraph contains a mysterious
_________________________________________________________________
6. Using Gebbie’s plea agreement as an example: The opening paragraph
of the plea agreement identifies the plaintiff as the "United States of
America." The fourth paragraph warns that sentencing estimates that
Gebbie may have received from "the United States" are not binding on
"the United States," and that "[t]he United States makes no promise or
representation concerning what sentence the defendant will receive." The
seventh paragraph states that "Gebbie and the United States agree that
he will make restitution." Three subparts to the seventh paragraph
similarly refer to "the United States," including Paragraph 7.5 which says
"the United States may withdraw its offer of a plea" if the court’s order
of restitution and fines is less than $200,000. The eighth paragraph
refers to an agreement made between Gebbie and "the United States."
The tenth paragraph refers to the sentence recommendation which "the
United States" will make. And the eleventh paragraph states that the
plea agreement does not protect Gebbie "from prosecution for other
crimes or offenses which the United States discovers by independent
investigation."
7. The eleventh paragraph makes the plea agreement "voidable at the
election of the government" if Gebbie fails to comply with its terms and
conditions.
8. The fifth paragraph states that "the United States Attorney for the
Southern District of Ohio agrees to seek leave of Court" for dismissal of
Counts One through Eighteen of the Indictment, and that "the United
States Attorneys for the Southern and Northen Districts agree not to file
additional criminal or civil charges against defendant James Gebbie
based on his activities charged in the Superseding Information or the
original Indictment herein or based on other similar activities in the
Southern or Northern Districts of Ohio occurring prior to the dates set
forth in the Superseding Information or Indictment." The twelfth
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reference to "The United States Attorney" without
identifying which United States Attorney is being discussed.
This imprecise drafting and interchanging of terms makes
it difficult to determine precisely who promised what. And
it further compounds the ambiguity caused by Paragraphs
5 and 6’s references to the specific U.S. Attorneys and
Paragraph 11’s reference to "the United States."
Because we apply rules of contract interpretation to plea
agreements, the first step is to decide whether the plea
agreement is ambiguous or unambiguous. "A contract is
ambiguous if it is capable of more than one reasonable
interpretation." Pacitti v. Macy’s, 193 F.3d 766, 773 (3d Cir.
1999). As we have already concluded, the agreements are
ambiguous because, while Paragraphs 5 and 6 indicate
only the U.S. Attorneys for the Southern and Northern

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Districts of Ohio are bound, Paragraph 11 indicates that all
U.S. Attorneys are bound. The plea agreements are capable
of two reasonable interpretations.
So, faced with an ambiguous plea agreement, we must
look to extrinsic evidence that may evince the parties’
intent. See United States v. Clark, 218 F.3d 1092, 1095
(9th Cir. 2000) ("If, however, a term of a plea agreement is
not clear on its face, we look to the facts of the case to
determine what the parties reasonably understood to be the
terms of the agreement."), cert. denied, 531 U.S. 1057
(2000). The most relevant piece of extrinsic evidence that,
on first glance, seems to weigh in the Government’s favor is
that the United States Attorney for the Western District of
Pennsylvania was invited to join in the Ohio plea
agreements, but declined. As the U.S. Attorney for the
Western District of Pennsylvania argued below, and
candidly admits on appeal, the Western District believed it
was going to prosecute Gebbie and Richter for different
crimes than the ones that were at issue in Ohio. So did
_________________________________________________________________
paragraph also states that if the Court refuses to accept any binding
provision of the plea agreement, and Gebbie withdraws his guilty plea,
then "the United States Attorneys for the Southern and Northen Districts
of Ohio may proceed with prosecution of the conduct set forth in the
Superseding Information and/or Indictment without prejudice."
17
Gebbie and Richter. Had that happened, then Gebbie’s and
Richter’s argument based on Paragraph 11 of their plea
agreements would fail because the Western District would
be prosecuting them for "other crimes and offenses," which
are clearly exempted from the plea agreements’ purview.
But that is not what happened. Instead, as found by the
District Court, and conceded by the Government on appeal,
the Western District of Pennsylvania ended up prosecuting
Gebbie and Richter for the same crimes and offenses that
had been at issue in Ohio, and this renders the Western
District’s non-participation in the Ohio plea agreement
irrelevant because its decision was based on facts that
simply do not exist. Thus, the extrinsic evidence actually
compounds the ambiguity.
When we interpret ambiguous plea agreements and
extrinsic evidence does not resolve the ambiguity, then we
construe the ambiguity against the drafter. Because of the
Government’s advantage in bargaining power, we, and
numerous other courts of appeals, construe ambiguities in
plea agreements against the Government. See United States
v. Baird, 218 F.3d 221, 229 (3d Cir. 2000) ("In view of the
government’s tremendous bargaining power, we will strictly
construe the text against it when it has drafted the
agreement."); United States v. Difeaux, 163 F.3d 725, 728
(2d Cir. 1998) ("[T]he reviewing court must .. . construe
ambiguous provisions against the government, which
drafted the agreement and enjoys unequal bargaining
power in the sentencing process."); United States v. Harvey,

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791 F.2d 294, 303 (4th Cir. 1986) ("Having concluded that
the disputed provision was ambiguous in the respect found
dispositive by the district court, we further conclude that
under the plea bargaining principles above stated the
provision must be read against the Government."); United
States v. Randolph, 230 F.3d 243, 248 (6th Cir. 2000) ("It
is true, of course, that any ambiguities in the language of
a plea agreement must be construed against the
government."); Margalli-Olvera v. INS, 43 F.3d 345, 353 (8th
Cir. 1994) ("Where a plea agreement is ambiguous, the
ambiguities are construed against the government."); United
States v. Anderson, 970 F.2d 602, 607 (9th Cir. 1992) (The
government "ordinarily must bear responsibility for any
lack of clarity."), as amended by 990 F.2d 1163 (9th Cir.
18
1993); United States v. Jefferies, 908 F.2d 1520, 1523 (11th
Cir. 1990) ("Finally, a plea agreement that is ambiguous
‘must be read against the government.’ "). See also
Restatement (Second) of Contracts, S 206 ("In choosing
among the reasonable meanings of a promise or agreement
or a term thereof, that meaning is generally preferred which
operates against the party who supplies the words or from
whom a writing otherwise proceeds.").
Applying that principle, we will construe the ambiguity
against the Government and hold that Paragraph 11 of
Gebbie’s and Richter’s plea agreements bars the United
States Attorney for the Western District of Pennsylvania
from prosecuting Gebbie and Richter for the same crimes
and offenses that were at issue in the Ohio plea
agreements.
IV.
In sum, and for the reasons given above, we will affirm
the District Court’s order.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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