United States v. 2006-04-04 | 04-10457 | USA VTRANSFIGURACION | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellant, No. 04-10457
v.  D.C. No.
CR-01-00099-4-JCC LYNDA L. TRANSFIGURACION,
Defendant-Appellee. 
 UNITED STATES OF AMERICA, No. 04-10458
Plaintiff-Appellant, D.C. No.
v.  CR-01-00099-2-JCC
THUY DAO, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Guam
John C. Coughenour, Chief Judge, Presiding
Argued and Submitted
September 16, 2005—San Francisco, California
Filed April 5, 2006
Before: Betty B. Fletcher, John R. Gibson,* and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Dissent by Judge Gibson
*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.
3801

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COUNSEL
Leonardo M. Rapadas, United States Attorney, & Marivic P.
David, Assistant United States Attorney, Hagåtña, Guam, for
plaintiff-appellant United States of America.
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William Gavras, Gorman & Gavras, P.C., Hagåtña, Guam, for
defendant-appellee Lynda Transfiguracion.
Joaquin C. Arriola, Jr. & Jacqueline Taitano Terlaje, Arriola,
Cowan & Arriola, Hagåtña, Guam for defendant-appellee
Thuy Dao.
OPINION
BERZON, Circuit Judge:
In this consolidated proceeding, we are called on to inter-
pret and give effect to a less-than-precise plea agreement
between the United States and two criminal defendants. The
United States appeals from two decisions of the district court,
which dismissed an indictment against both defendants on the
grounds that the terms of their plea agreements prohibited the
government from prosecuting them for the offenses covered
by the indictment. We affirm.
I.
On October 10, 2001 a federal grand jury sitting in the Dis-
trict of Guam returned a multi-count indictment in criminal
case No. 01-00099, charging defendants Lynda Transfigura-
cion and Thuy Dao, among others, with various offenses asso-
ciated with a conspiracy to smuggle narcotics from California
to Guam between early 1997 and late 1998. Transfiguracion
and Dao were both charged with conspiracy to import over
500 grams of methamphetamine hydrochloride “into the
United States from a place outside thereof” in violation of 21
U.S.C. §§ 952(a), 960, and 963 and conspiracy to distribute
over 500 grams of methamphetamine hydrochloride in viola-
tion of 21 U.S.C. §§ 841(a)(1) and 846. Dao was also charged
with conspiracy to launder monetary instruments in violation
of 18 U.S.C. §§ 2, 1956(a)(i)(B)(i), and 1956(h).
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Following negotiations with the government, both defen-
dants agreed, pursuant to plea agreements, to waive indict-
ment and plead guilty to an information charging them with
importing 100 grams of methamphetamine hydrochloride
“into the United States from a place outside thereof” in viola-
tion of 18 U.S.C. § 2 and 21 U.S.C. §§ 952(a) and 960. Trans-
figuracion and Dao also agreed to cooperate with the
government fully and truthfully in its investigation of the drug
trafficking conspiracy and in the prosecution of their co-
conspirators. In exchange for their guilty pleas and coopera-
tion, the government agreed not to prosecute the defendants
for “any other non-violent offenses.” The agreement also pro-
vided that the government would dismiss the conspiracy
charges contained in the multi-count indictment “upon sen-
tencing.” Because the exact language of the defendants’ plea
agreements is significant to the resolution of this case, we
reproduce the relevant provisions of those agreements here:1
1. The defendant agrees to waive indictment pursu-
ant to Rule 7(b) of the Federal Rules of Criminal
Procedure, and enter a guilty plea to an Information
charging her with importation of 100 grams net
weight of methamphetamine also known as “ice,” in
violation of 21 U.S.C. §§ 952(a) and 960. The gov-
ernment will move to dismiss Counts I, VI and VIII
of an indictment against her in CR# 01-00099 upon
sentencing.[2]
1Although Transfiguracion and Dao executed separate plea agreements,
the texts are substantially identical. We quote directly from Dao’s agree-
ment; the same language appears in Transfiguracion’s agreement, unless
noted otherwise.
2Count VIII refers to the conspiracy to launder monetary instruments
charge, for which Dao, but not Transfiguracion, was indicted. Transfigura-
cion’s plea agreement states that the government will move to dismiss
only Counts I and VI, which correspond to the conspiracy to import and
conspiracy to distribute offenses, respectively.
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2. The defendant . . . further agrees to fully and
truthfully cooperate with federal and local law
enforcement agents concerning their investigation of
the importation, possession, and distribution of con-
trolled substances, and money laundering, and
related unlawful activities, including the disposition
of profits from and assets relating to such activities.
She agrees to testify fully and truthfully before any
grand juries and at any trials or proceedings against
any other co-conspirators if called upon to do so for
the United States, subject to prosecution for perjury
for not testifying truthfully. The United States will
make this cooperation known to the Court prior to
the defendant’s sentencing. The defendant further
understands that she remains liable and subject to
prosecution for any non-violent Federal or Territorial
offenses that she does not fully advise the United
States, or for any material omissions in this regard.
In return for this cooperation, the United States
agrees not to prosecute defendant in the District of
Guam or the Northern Mariana Islands for any other
non-violent offenses now known to the government
or which she reveals to federal authorities.
* * *
6. If defendant provides full, truthful, and substan-
tial assistance to investigating federal agencies, the
government will move the Court, as provided by
Section 5K1.1, United States Sentencing Guidelines,
hereinafter USSG, and 18 U.S.C. Section 3553(e),
for a downward departure from the Guidelines and
the statutory minimum sentence. . . .
7. The defendant understands that to establish a
violation of importation of 100 grams of metham-
phetamine, the government must prove each of the
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following elements beyond a reasonable doubt:
First: defendant knowingly[3] brought 100 grams
net weight of methamphetamine a/k/a “Ice” into the
United States from a place outside thereof; and
Second: defendant knew it was methamphetamine
a/k/a “Ice.”
* * *
9. The defendant understands that this plea agree-
ment depends on the fullness and truthfulness of her
cooperation. Therefore, defendant understands and
agrees that if she should fail to fulfill completely
each and every one of her obligations under this plea
agreement, or make material omissions or intentional
misstatements or engage in criminal conduct after
the entry of her plea agreement and before sentenc-
ing, the government will be free from its obligations
under the plea agreement. Thus, defendant, in addi-
tion to standing guilty of the matters to which she
has pled pursuant to this agreement, shall also be
fully subject to criminal prosecution for other
crimes, and for the counts which were to be dis-
missed. In any such prosecution, the prosecuting
authorities, whether Federal, State, or Local, shall be
free to use against her, without limitation, any and
all information, in whatever form, that she has pro-
vided pursuant to this plea agreement or otherwise;
defendant shall not assert any claim under the United
States Constitution, any statute, Rule 11(e)(6) of the
Federal Rules of Criminal Procedure, Rule 410 of
the Federal Rules of Evidence, or any other provi-
sion of law, to attempt to bar such use of the infor-
mation.
3Transfiguracion’s plea agreement contains the word “intentionally”
instead of “knowingly.”
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10. The defendant agrees to waive any right to
appeal or to collaterally attack this conviction. The
defendant reserves the right to appeal the sentence
actually imposed in this case.
11. If defendant’s guilty plea is rejected, with-
drawn, vacated, or reversed at any time, the United
States will be free to prosecute defendant for all
charges of which it then has knowledge, and any
charges that have been dismissed will be automati-
cally reinstated or may be represented to a grand jury
with jurisdiction over the matter. In such event,
defendant waives any objections, motions, or
defenses based upon the Statute of Limitations,
Speedy Trial Act, or constitutional restrictions as to
the time of the bringing of such charges.
As agreed, both defendants, in June, 2002, waived indict-
ment and pleaded guilty to the importation charges. Their
cases were set for status hearings. Sentencing in both cases
was postponed to allow the defendants time to provide the
required cooperation and to allow the government time to
evaluate the assistance. Transfiguracion and Dao were
released on certain conditions and permitted to return to Cali-
fornia during the interim.4 By all accounts, the defendants
fully cooperated, as required.
Then this court threw a wrench in the works: On June 6,
2003, we decided United States v. Cabaccang, 332 F.3d 622
(9th Cir. 2003) (en banc), in which we held that the smug-
gling of drugs from California to Guam did not constitute the
crime of importation of a controlled substance “into the
United States from any place outside thereof,” as defined in
21 U.S.C. § 952(a). We concluded that the text and structure
4After Transfiguracion missed several of her required drug tests and
failed to appear for a hearing, a bench warrant was issued for her arrest.
She was subsequently arrested and returned to Guam.
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of the statute did not proscribe the transportation of drugs
between two domestic locations within the United States,
even if the travel included a flight through international air-
space. Id. at 636. Our decision in Cabaccang meant that the
facts that had formed the predicate of Transfiguracion’s and
Dao’s contracted-for guilty pleas no longer constituted a
crime.
In light of Cabaccang, both defendants moved to dismiss
the importation informations filed against them. They did not
seek to withdraw their guilty pleas to those charges. The
defendants also moved to dismiss the indictment in criminal
case No. 01-00099.
At the district court hearing on Dao’s motions to dismiss,
the government agreed that this court’s decision in Cabac-
cang required the importation information to be dismissed, as
there was no longer a factual basis to support the charges. The
government, however, maintained that it could continue to
prosecute Dao on the conspiracy charges covered by the
multi-count indictment. The district court dismissed the
importation information, holding that the charge could not
stand in light of Cabaccang and that the case could not pro-
ceed to sentencing. The district court then ordered supplemen-
tal briefing on the motion to dismiss the outstanding
indictment and set the matter for a status hearing.
After briefing, the district court held a joint hearing to
address Transfiguracion’s motion to dismiss the importation
information as well as the conspiracy indictment and Dao’s
outstanding motion to dismiss the conspiracy indictment. As
it had done in Dao’s case, the government agreed that the
importation information filed against Transfiguracion had to
be dismissed. The government argued, however, that the par-
ties’ mutual mistake of law as to the factual basis of the
importation charge justified rescission of the defendants’ plea
agreements. The government also contended that under the
terms of the plea agreements, the conspiracy charges
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remained viable against both Transfiguracion and Dao.5 The
defendants countered that because they had fully complied
with their obligations under their plea agreements, including
providing substantial cooperation to the government, the
United States was prohibited from prosecuting them on the
conspiracy charges contained in the indictment.
In two separate written orders, the district court granted
both defendants’ motions to dismiss the conspiracy indictment.6
The court rejected the government’s claim that the agreements
could be rescinded under the doctrine of mutual mistake and
held that because the defendants had complied with their
agreements by cooperating with the government, the agree-
ments precluded their prosecution for the conspiracy charges.
The United States timely appealed the district court’s deci-
sions to preclude the prosecution of Transfiguracion and Dao
on the conspiracy indictment.7 This court subsequently
granted the government’s motion to consolidate the appeals.
II.
As we have noted previously, see United States v. Franco-
Lopez, 312 F.3d 984, 988 (9th Cir. 2002), there is a conflict
in our case law concerning the proper standard to be applied
to a district court’s interpretation of a plea agreement. Com-
pare United States v. Floyd, 1 F.3d 867, 869 (9th Cir. 1993)
(“The district court’s interpretation of a plea agreement is a
finding of fact and is reviewed for clear error but its applica-
5We use the phrase “conspiracy charges” to refer generally to the counts
charged against Transfiguracion and Dao in the indictment in criminal
case No. 01-00099 — the offenses the government maintains it may con-
tinue to prosecute.
6The district court also dismissed the importation information filed
against Transfiguracion, as it had done with regard to Dao.
7The United States has not sought review of the district court’s rulings
dismissing the importation informations.
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tion of the legal principles is a question of law reviewed de
novo.” (citations omitted)), with United States v. Salemo, 81
F.3d 1453, 1460 (9th Cir. 1996) (“We review a district court’s
interpretation of the terms of a plea agreement de novo. We
consider whether the facts demonstrate that there was a
breach of a plea agreement under the more deferential clearly
erroneous standard of review.” (citations omitted)). We need
not, however, resolve this conflict in this case. Even under the
less deferential de novo standard of review, we conclude that
the district court’s interpretation of the plea agreements at
issue was correct.8 See Franco-Lopez, 312 F.3d at 988 (not-
ing, but declining to resolve, the standard of review inconsis-
tency regarding interpretation of plea agreements because
“[w]hichever standard we apply, we reach the same conclu-
sion”).
Once a district court has interpreted a plea agreement, its
decision to compel the government’s specific performance of
such an agreement — which is what the defendants sought in
the district court — is reviewed for abuse of discretion.
United States v. Anthony, 93 F.3d 614, 616 (9th Cir. 1996).
III.
A.
[1] Before turning to the specific question presented in this
case, we review some of the governing principles that apply
to the interpretation of a plea agreement. Because a plea
agreement is, at bottom, a contract between the government
and a criminal defendant, for the most part “we construe [a]
plea agreement using the ordinary rules of contract interpreta-
tion.” See Brown v. Poole, 337 F.3d 1155, 1159 (9th Cir.
8It appears that our dissenting colleague is applying a de novo standard
of review in concluding that the district court’s interpretation of the agree-
ment should be reversed, as he provides no basis for declaring the district
court’s interpretation clearly erroneous.
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2003). The analogy to contract law is, however, in certain cir-
cumstances imperfect, and we do not always follow it. See
United States v. Barron, 172 F.3d 1153, 1158 (9th Cir. 1999)
(en banc).
[2] One tenet of contract law we have steadfastly applied
to plea agreements, of particular importance in this case, is
that of contra proferentem, the principle that ambiguities in
contracts “are to be construed unfavorably to the drafter.”
BLACK’S LAW DICTIONARY 328 (7th ed. 1999). In context of
plea agreements, the government is usually the drafter and
must ordinarily bear the “responsibility for any lack of clari-
ty.” Franco-Lopez, 312 F.3d at 989 (internal quotation marks
omitted). Ambiguities are therefore construed “in favor of the
defendant.” Id. (internal quotation marks omitted); see also
United States v. De la Fuente, 8 F.3d 1333, 1338 (9th Cir.
1993) (“Construing ambiguities in favor of the defendant
makes sense in light of the parties’ respective bargaining
power and expertise.”). As a defendant’s liberty is at stake,
the government is ordinarily held to the literal terms of the
plea agreement it made, United States v. Packwood, 848 F.2d
1009, 1012 (9th Cir. 1988), so that “[t]he government gets
what it bargains for but nothing more,” United States v.
Pruitt, 32 F.3d 431, 433 (9th Cir. 1994).
B.
With these principles in mind, we first address the govern-
ment’s contention, based on the doctrine of mutual mistake of
law, that it is entitled to rescind the plea agreement. The claim
is that because both the government and the defendants rea-
sonably believed that the defendants’ conduct constituted the
crime of importation, neither party was bound by the plea
agreement after our decision in Cabaccang proved that under-
standing incorrect.
[3] While the argument has some initial appeal, we rejected
substantially the same mutual mistake argument in Barron.
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172 F.3d at 1158-59. Barron pleaded guilty to the offense of
possession of a firearm in relation to a drug trafficking crime,
in violation of 18 U.S.C. § 924(c)(1). Id. at 1155. Three years
after Barron was sentenced, the Supreme Court handed down
its opinion in Bailey v. United States, 516 U.S. 137 (1995),
which overruled this circuit’s prior understanding that
§ 924(c)(1) required mere possession, see United States v.
Torres-Rodriguez, 930 F.2d 1375, 1385 (9th Cir. 1991), and
held that the offense instead requires “active employment” of
the firearm. Barron thereupon moved to set aside his convic-
tion and sentence pursuant to 28 U.S.C. § 2255, arguing that
the Supreme Court’s intervening decision in Bailey, 516 U.S.
at 143, rendered his conviction invalid. See Barron, 172 F.3d
at 1156. The district court agreed that Barron’s conviction had
to be vacated, but conditioned the vacatur on Barron’s with-
drawal of his plea agreement. Id. We reversed, holding that
although Barron’s conviction had to be set aside, his § 2255
motion had done nothing “to breach nor to repudiate the
agreement,” and accordingly, the agreement remained in
force. Id. at 1158. Because the “plea agreement [was] not at
issue,” and also because the defendant “can never be returned
to his ‘original position,’ ” we rejected the government’s
argument that the agreement should be rescinded because
there had been a mutual mistake of law.9 Id.
[4] Barron recognizes that our typical practice of constru-
ing plea agreements according to traditional principles of con-
tract law would suggest that a mutual mistake of law could
invalidate the bargain struck by the defendant and the govern-
ment in a plea agreement. Nevertheless, we concluded that it
would be inappropriate to extend the application of ordinary
contract law principles so far as to permit the government to
claim the defense of mutual mistake. We observed:
9As discussed later, Transfiguracion and Dao cannot be restored to their
original positions because they cooperated with the government in reliance
on their plea agreements, providing information pertinent to their prosecu-
tion on the additional conspiracy charges contained in the indictment.
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A plea bargain is not a commercial exchange. It is an
instrument for the enforcement of the criminal law.
What is at stake for the defendant is his liberty. . . .
What is at stake for the government is its interest in
securing just punishment for violation of the law and
its interest that an innocent act not be punished at all.
The interests at stake and the judicial context in
which they are weighed require that something more
than contract law be applied.
Id.
[5] The inability to rescind a plea agreement based on a
mutual mistake of law applies to criminal defendants as well
as to the government. In United States v. Zweber, we rejected
the argument of two criminal defendants who claimed they
were entitled to withdraw their guilty pleas because both they
and the government believed when entering the agreement
that a sentencing reduction would be legally appropriate. 913
F.2d 705, 711 (9th Cir. 1990), superseded by amendment,
U.S.S.G. app. C, amend. 345, as recognized in United States
v. Webster, 996 F.2d 209, 211 (9th Cir. 1993). In Zweber, the
defendants pleaded guilty to drug charges pursuant to a plea
agreement with the government. Id. at 707. As part of that
agreement, the government agreed to recommend a sentenc-
ing reduction for playing a minor role in the offense, as the
defendants were alleged to be minor players in a massive
cocaine distribution network. Id. Because the charge to which
the defendants pleaded guilty was a distribution offense in
which they were the predominate actors, however, the district
court ruled that it would be inappropriate to grant the reduc-
tion, as any such reduction must be based on their roles in the
offense of conviction, not in otherwise extraneous conspiracy
conduct. Id. We affirmed this view, and also concluded that
the mutual misunderstanding of the parties as to the appropri-
ateness of such a reduction did not permit the defendants to
withdraw their guilty pleas.10 Id. at 708-09, 711. We observed
10The United States Sentencing Commission amended the Sentencing
Guidelines to clarify that a determination of the defendant’s role in an
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that “[i]t is unfortunate that the government and defense coun-
sel both erred, but defense counsel are not entitled to rely on
the government’s good faith misunderstanding of the law as
a basis for relief. Analogies to contract law in this setting are
not perfect.” Id. at 711.
[6] We see no basis for reaching a different conclusion on
the mutual mistake issue here than we did in Barron and Zwe-
ber. The nature of a plea agreement is simply too complex to
support the doctrine of mutual mistake.11 With the liberty of
Transfiguracion and Dao at stake and their cooperation having
already occurred, we cannot allow the government to rescind
their plea agreements on the premise that all the parties mis-
takenly thought the defendants were pleading guilty to the
crime of importation. As we stated in Zweber, “[i]t is unfortu-
nate that the government and defense counsel both erred,” id.,
but that error cannot void an otherwise valid plea agreement.
offense is to be based on all relevant conduct, and not simply those acts
associated with the crime of conviction. See U.S.S.G. app. C, amend. 345;
U.S.S.G. ch.3, pt. B, introductory cmt. The substantive ruling in Zweber
is thus no longer good law, but the ruling concerning the continued bind-
ing effect of the plea agreement is.
11This conclusion is buttressed by our recent decision on a slightly dif-
ferent point in United States v. Cardenas, 405 F.3d 1046 (9th Cir. 2005),
in which we concluded that a criminal defendant’s waiver of the right to
appeal contained in a plea agreement was not rendered invalid by the sub-
sequent decision of United States v. Booker, 125 S. Ct. 738 (2005). Fol-
lowing the Supreme Court’s watershed ruling in Booker, we have been
inundated with appeals by criminal defendants claiming that their waivers
were involuntary and unknowing because of the erroneous understanding,
shared by defendants and the government alike, that the Sentencing
Guidelines were mandatory. As we explained in Cardenas, that mistake
does not justify invalidating the waiver of a right to appeal because “a
change in the law does not make a plea involuntary and unknowing.” 405
F.3d at 1048.
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C.
[7] The government next contends that it may continue to
prosecute Transfiguracion and Dao on the underlying indict-
ment by virtue of paragraph eleven of the plea agreements.
That provision states that “[i]f defendant’s guilty plea is
rejected, withdrawn, vacated, or reversed at any time, the
United States will be free to prosecute defendant for all
charges of which it then has knowledge.” We disagree. That
paragraph allows prosecution on the conspiracy offenses to
proceed only in one of four circumstances: Where defendant’s
plea is “rejected, withdrawn, vacated, or reversed.” An exami-
nation of our prior case law leads us to the conclusion that no
such circumstance obtained here.12
[8] Barron held that a claim that a conviction is invalid
because the underlying acts do not constitute a crime “did not
attack the plea agreement in any way,” including by invalidat-
ing the guilty plea entered pursuant to the agreement. Barron,
172 F.3d at 1158. As we observed in Barron, “[a]s a practical
matter, the guilty plea to criminal acts can remain in force
even as the sentence imposed upon an innocent act is set
aside.” Id. As the sentence just quoted indicates, Barron did
not view the plea as “set aside” or vacated, but only the sen-
tence entered upon it. See also id. at 1159 (characterizing the
defendant’s motion as one to “vacate his conviction” (empha-
sis added)); id. (referring to the “conviction” as “void”
(emphasis added)).13
12Although we find the language of paragraph eleven clear and unam-
biguous, were there any question as to whether this clause supported the
government’s argument, we would, for the reasons discussed earlier,
resolve the ambiguity in favor of the defendants under the contra profer-
entem doctrine.
13As the language quoted in the text indicates, Barron did not draw the
nice distinction between the plea agreement and the plea that the dissent
posits. Part of the plea agreement both in that case and in this one was the
agreement to plead guilty. Without an intact plea to all charges, the plea
agreement would have been voided.
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Barron was not the first case to draw a distinction between
vacating a guilty plea and voiding a conviction or sentence.
United States v. Sandoval-Lopez concerned plea agreements
that did not explicitly prohibit the defendants from moving to
vacate their convictions rendered void by a change in the sub-
stantive law. 122 F.3d 797, 800-01 (9th Cir. 1997). The
defendants made such motions but did not “claim[ ] that their
pleas were not ‘knowing’ or ‘voluntary’ or were otherwise
defective.” Id. at 802. We held that only if there had been
such claims could the court have “vacate[d] or allow[ed]
withdrawal of the guilty pleas and reinstate[d] the dismissed
charges.” Id.
Sandoval-Lopez, like Barron, concerned firearms convic-
tions rendered void as a matter of law by Bailey. When the
defendants filed motions collaterally attacking their convic-
tions under § 2255, id. at 799, the government contended that
the defendants’ actions were a breach of their agreements and
that the government could prosecute the defendants on
charges dismissed pursuant to the plea bargains. Id. at 800.
We held that, by challenging their convictions, the defendants
did not invalidate their agreements or their pleas. Id. at 802.
Rather, the defendants’ motions sought only to void their con-
victions, not their guilty pleas or plea agreements:
The defendants did not attack their plea agree-
ments . . . . Instead, they claimed in their § 2255
motions that, while their plea bargains were know-
ing, voluntary, and in all other respects proper when
made and accepted by the district court, the conduct
to which they pled guilty — the only conduct for
which they were convicted and sentenced — is now
insufficient as a matter of law to support their con-
victions. They did not recant their admissions to hav-
ing committed the acts that formed the basis for the
counts of conviction; they simply claimed, correctly,
that after Bailey those acts were no longer crimes.
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Id. Accordingly, with the plea agreement still in force, the
government was precluded from reinstating the counts that
had been dismissed pursuant to the agreement. Id.
[9] Similar circumstances exist in this case: Transfigura-
cion and Dao have not recanted their admissions to the actions
alleged in the informations. Nor have they violated the provi-
sions of their agreements precluding appeal or collateral
attack on their convictions. Instead, they moved to dismiss the
importation informations in the district court because those
charges no longer alleged crimes. Just as “[a] plea agreement
does not waive the right to bring a § 2255 motion unless it
does so expressly,” Pruitt, 32 F.3d at 433, the plea agreements
in this case did not prohibit Transfiguracion and Dao from
moving to dismiss the importation charges based on the
Cabaccang decision. Moreover, the defendants in this case
sought to enforce the plea agreements’ prohibition on prose-
cuting them for other crimes once they cooperated; they did
not act to reject, withdraw, vacate, or reverse the pleas
required by the agreements.14
[10] As the defendants’ actions were permitted under the
terms of their contracts with the government, their motions to
dismiss the informations were not motions to repudiate their
agreements, nor attempts to reject or vacate their pleas. We
cannot take a blue pencil to the contract to add “dismissal of
the information” to the express terms contained in paragraph
eleven.
We note that it was the government, as the drafter of the
contract, that failed adequately to protect itself from a subse-
quent change in the law. We stated in quite plain terms in
14The dissent claims that Barron is inapplicable because the government
is attempting to enforce the plea agreement. As the dissent recognizes,
however, the government’s lead contention on appeal is that it is entitled
to rescind the defendants’ plea agreements based on a mutual mistake of
law.
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Barron that “[t]he drafter of the plea agreement could have
anticipated the contingency that has arisen and included a pro-
vision protecting the government’s interest in the event that
Barron’s conviction was vacated; that the government did not
do so does not justify rescission of the agreement.” 172 F.3d
at 1161. Similarly, in Sandoval-Lopez, we noted that absent
a clause prohibiting the defendants from moving to vacate
their convictions, “the prosecution bore the risk that a change
in the relevant substantive law would afford the defendants
the right to be released.” 122 F.3d at 801. The provision in
paragraph eleven regarding “reject[ing], withdraw[ing],
vacat[ing], or revers[ing]” the defendants’ pleas does not
address that risk.
It is the government, not an individual criminal defendant,
who is the repeat player in the plea bargaining process.
Because all plea agreements are negotiated against the back-
drop that the law can change by way of judicial interpretation,
the prosecution “knew or should have known that comparable
changes in the law occur from time to time.” Id. The failure
of the United States to specify that it could continue to prose-
cute the defendants in the event that the importation informa-
tions were dismissed due to a development in the substantive
law (or for any other reason) is thus a failure to cover a pre-
dictable contingency. Under the canon of expressio unius est
exclusio alterius, the absence of any provision covering that
contingency when others are covered indicates that prosecu-
tion for the conspiracy charges if the informations were dis-
missed was not part of the bargain struck by the parties.15
15We note that the government has apparently devised language
designed to guard against a similar result in subsequent cases. The district
court took judicial notice of the fact that:
the U.S. Attorney has since drafted plea agreements including
language addressing the possibility that in the event there is a
change in law and the defendant cannot proceed to sentencing for
the agreed upon offense the defendant will agree to plead guilty
to another charge encompassing the same or similar conduct.
3821 UNITED STATES v. TRANSFIGURACION

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[11] In sum, we are charged with enforcing the literal terms
of a plea agreement, Packwood, 848 F.2d at 1012. The defen-
dants’ actions were not barred by the agreements’ literal
terms, so the agreements remain in force. It is to construing
the specific terms of those agreements that we now turn.
D.
That task is easier said than done. Three paragraphs in the
plea agreements have something to say about the fate of the
conspiracy charges.
Paragraph one of the plea agreements directly refers to the
indictment in criminal case No. 01-00099 and provides that
the government “will move to dismiss” the conspiracy counts
in the indictment “upon sentencing” of the defendants for the
importation offense. Paragraph two states that in return for the
cooperation tendered by the defendants, the United States will
not prosecute them “for any other non-violent offenses now
known to the government or which [they] reveal[ ] to federal
authorities.” Finally, paragraph nine provides that if the
defendants fail to “fulfill completely each and every one of
[their] obligations,” they may be prosecuted for “other crimes,
and for the counts which were to be dismissed.”16 The hiatus
is that the agreement does not expressly contemplate the situ-
ation that occurred here, where the defendants have provided
the required cooperation and yet will never be sentenced on
the importation charges. Reading the three provisions together
and applying the contra proferentem principle, however, we
conclude that the agreements must be construed to preclude
prosecution under those circumstances.
16Paragraph nine is not directly implicated in these circumstances
because it is undisputed that both defendants fully complied with the
agreements. Nonetheless, our interpretation takes into consideration the
language of that provision, so as to reach a coherent understanding of the
agreement as a whole.
3822 UNITED STATES v. TRANSFIGURACION

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As mentioned above, as a result of our decision in Cabac-
cang, the “sentencing” contemplated in paragraph one of the
defendants’ plea agreements never occurred and never will.
The government’s argument is that although dismissal of the
importation informations was required because there was,
after Cabaccang, no factual basis underlying the charges, the
indictment need not be dismissed, because the government’s
obligation under the plea agreements to dismiss the indict-
ment upon the sentencing of the defendants on the importa-
tion charges will never arise.17
[12] We may assume that the reasoning of both the govern-
ment and the dissent is correct up to this point — that is, that
the sentencing condition will never arise, so that basis for dis-
missing the indictment does not exist. For several reasons,
however, the failure of the sentencing condition for dismiss-
ing the indictment does not permit the government to proceed
to prosecute the defendants under it.
[13] First, the plea agreements remain binding, as the
defendants did not breach them in any way. See United States
v. Aguilar-Muniz, 156 F.3d 974, 978 (9th Cir. 1998) (“After
a plea agreement has been accepted and entered by the court,
the court may not rescind the plea agreement on the govern-
ment’s motion unless the defendant has breached the agree-
ment.”); United States v. Partida-Parra, 859 F.2d 629, 634
(9th Cir. 1988) (“We conclude that the district court erred by
freeing the government from its obligation under the plea bar-
gain in the absence of a breach by the defendant.”).
[14] Second, although under paragraph one of the agree-
ments the government may be absolved of its obligation to
move to dismiss the conspiracy charges upon sentencing, that
paragraph speaks only to the timetable according to which the
17As noted above, the government did not appeal the rulings of the dis-
trict court dismissing the importation charges.
3823 UNITED STATES v. TRANSFIGURACION

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indictment is to be dismissed if matters proceed as planned.18
Paragraph one does not address whether the prosecution of
those charges remains viable if sentencing never occurs. That
question is answered by other terms of the agreement, to
which the government remains bound. Those terms, as we
shall explain, forbid the prosecution of the defendants on the
conspiracy charges as long as they fully cooperate with the gov-
ernment.19
[15] The meat and potatoes of the plea agreement is con-
tained in the second paragraph. That section provides that, “in
return for [the defendants’] cooperation, the United States
agrees not to prosecute defendant[s] in the District of Guam
or the Northern Mariana Islands for any other non-violent
offenses now known to the government or which [they]
reveal[ ] to federal authorities.” Despite the government’s
argument to the contrary, the meaning of the phrase “other
non-violent offenses” is not difficult to ascertain: Provided
that the defendants cooperate, the government cannot prose-
cute them for any known crimes other than those crimes for
which the defendants have agreed to plead guilty, namely, the
importation charges.
18The point of providing that the conspiracy charges were to be dis-
missed at the time of sentencing, not earlier, was to hold out the possibility
of proceeding on the charges contained in the indictment if the defendants
failed to tender the required cooperation or otherwise violated their agree-
ments. The government reserved this right to proceed upon breach under
the terms of paragraph nine of the plea agreements. The ability to proceed
according to that provision, however, is conditioned on two events — (1)
the indictment had to remain viable and (2) the defendants had to renege
on their promise.
19For this reason, the dissent is incorrect in its reliance on paragraph
one. The agreements begin with paragraph one, but they do not end there.
And, while the agreements state that the indictment must be dismissed
upon sentencing, they do not state that the indictment is to be dismissed
only upon sentencing and not other circumstances. As we show below, the
agreements contain an additional promise on the part of the government
not to prosecute the defendants if they cooperate.
3824 UNITED STATES v. TRANSFIGURACION

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The government’s reading of paragraph two — that “other
non-violent offenses now known to the government” refers
only to “other crimes known to the government but not
charged” is not tenable. There would have been little reason
for the defendants to agree to plead guilty to the crime of
importation and cooperate with the government in exchange
for an agreement not to prosecute them on other charges if
their immunity for “other non-violent offenses” did not
include the charges that were to be dismissed. Further, if the
government had intended the “other non-violent offenses”
phrase to refer only to uncharged offenses, we would expect
to find the phrase qualified accordingly — e.g., by the addi-
tion of “but not charged.” Such language is absent.20
The agreement to dismiss the conspiracy charges upon sen-
tencing does not take care of the problem of assuring against
prosecution for the dismissed charges because, under para-
graph one standing alone, the government could proceed with
such prosecution in lieu of going forward with the charges in
the information — which would then never reach the sentenc-
ing stage. Alternatively, the government could move to dis-
miss the indictment without prejudice, an action wholly
consistent with paragraph one, and then reindict the defen-
dants on the conspiracy charges, regardless of whether they
had tendered the required cooperation. These perverse results
would be possible because, as the government and the dissent
read paragraph two, the defendants could have been prose-
cuted on the conspiracy charges, even if they fully cooper-
ated.
20The dissent contends that the government’s suggested reading of para-
graph two is confirmed by the provision in paragraph nine that states that
if the defendants do not fulfill all their obligations under the agreement
that they shall “be fully subject to criminal prosecution for other crimes,
and for the counts which were to be dismissed.” Contrary to the dissent’s
assertion, this phrase does not speak to the “language used in paragraph
two,” dissenting op. at 3832, because the words used in paragraph nine —
“other crimes” — is entirely distinct from “other non-violent offenses now
known to the government or which [they] reveal[ ] to federal authorities.”
Also, the context in which the two phrases are used is quite different.
3825 UNITED STATES v. TRANSFIGURACION

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[16] We conclude that the phrase “other non-violent
offenses now known to the government” should be read to
refer to all non-violent offenses known to the government to
which the defendants did not plead guilty, including the con-
spiracy charges contained in the indictment.21
The United States argues that this result deprives the gov-
ernment of the benefit of its bargain, as it was “bargaining for
a conviction.” But that account leaves out half the story: The
government was bargaining for a particular conviction — a
conviction on the crime of importation, not on the conspiracy
charges contained in the indictment. Our decision in Cabac-
cang no doubt resulted in a windfall for the defendants, who,
by virtue of a favorable change in the law, will avoid the
incarceration they expected to serve. That change, however,
does not permit the government to escape its obligation under
the plea agreements not to prosecute the defendants for “any
other non-violent offenses now known to the government” as
long as they fulfilled their cooperation obligation. This they
did: It is undisputed that both defendants provided coopera-
tion to the government in its investigation, as required by the
terms of the agreement. Once the defendants upheld their end
of the agreement, the government did obtain bargained-for
consideration and was therefore precluded from prosecuting
the defendants on the conspiracy charges contained in the
indictment. The language of the plea agreements so recog-
nizes, by providing in paragraph two that the agreement not
to prosecute is “[i]n return for [the defendants’] cooperation.”
Even if considerations of fairness to the government were
pertinent — which they are not, as the terms of the agree-
21Although we do not find the reading of paragraph two proffered by the
government and the dissent persuasive, to the extent that “other non-
violent offenses” is viewed as capable of different interpretations, such a
characterization cuts in favor of the defendants. The government, as the
drafter of the defendants’ agreements, bears the responsibility for any lack
of clarity and, as a result, we would be forced to construe the ambiguity
in the defendants’ favor. Franco-Lopez, 312 F.3d at 989.
3826 UNITED STATES v. TRANSFIGURACION

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ments favor the defendants’ position — we are convinced that
allowing the government to proceed on the conspiracy
offenses would be inequitable. If such a prosecution were to
proceed, the government could, under the last sentence of
paragraph nine of the agreements, use the defendants’
bargained-for cooperation to help convict them of separate
crimes.22
By their very nature, “importation” offenses and “distribu-
tion” offenses require entirely different factual bases to justify
a conviction. Charging the offense of conspiracy adds other
factual elements as well. See United States v. Jackson, 167
F.3d 1280, 1285 (9th Cir. 1999) (“The evidence necessary to
prove conspiracy is clearly distinct from that needed to sus-
tain a conviction for the underlying substantive offense.”).
The defendants agreed to plead guilty to a crime that required
the government to prove only that they “imported” illegal nar-
cotics; that is, that the defendants flew drugs into the country.
See 9TH CIR. CRIM. JURY INSTR. § 9.27 (2000). To prove the
“conspiracy to distribute” offense, in contrast, the government
would be required to prove that the defendants participated in
a scheme to distribute methamphetamine. Id. §§ 8.16, 9.15.
Further, to sustain a conviction on Count VIII of the indict-
ment, the government would have to prove that Dao conspired
with others to engage in money laundering in violation of 18
U.S.C. § 1956(a)(1)(B)(i).
The relevance of these evidentiary distinctions is that any
effort on the part of the government to proceed with the con-
spiracy charges would involve the use of the defendants’ own
22There is the problem as well that the defendants’ plea agreements only
acknowledged importation of 100 grams of methamphetamine hydrochlo-
ride, while the indictment charges distribution of over 500 grams. At oral
argument the government represented that it would only prosecute the
defendants for conspiracy to distribute 100 grams. The government’s con-
cession that the limited factual basis in the plea agreements has continuing
force is not, however, responsive to the defendants’ contention that they
may not be prosecuted at all under the agreements.
3827 UNITED STATES v. TRANSFIGURACION

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cooperation against them. As part of their plea agreements,
the defendants agreed to provide substantial cooperation to
the government in the investigation of a drug smuggling and
money laundering conspiracy operating in the District of
Guam. And cooperate they did. The conspiracy offenses by
definition involved a confederation with other individuals. By
providing information concerning the actions of others
involved in the same conspiracies, the defendants necessarily
provided the government with a roadmap to their own liability
on those offenses — crimes for which, under the terms of
their plea agreement, they did not expect to be prosecuted.
With the defendants’ having tendered this cooperation, the
law does not permit the government to renege on its deal, as
the defendants have “paid in a coin that the [United States]
cannot refund.” Brown, 337 F.3d at 1161.
When confronted with a situation such as this, where the
government is pursuing a course of action that is tantamount
to a breach, the defendants are entitled to one of two available
remedies — either rescission of the agreement or specific per-
formance. Id. We need not pause long in consideration of this
question, however, as tossing the defendants’ plea agreements
aside would lead to an inequitable result. The defendants have
not only given up their right to remain silent, they have
already tendered their best bargaining chip. This court cannot
fashion relief to undo the current state of affairs. As the gov-
ernment’s request that we return the parties to the status quo
ante is impossible, the only permissible remedy is to order
specific performance of the plea agreements — that is, of the
government’s promise not to prosecute for the conspiracy
charges if the defendants fulfill their promise to cooperate. Id.
[17] In sum, our reading of relevant provisions of the plea
agreements lead us to conclude that the conspiracy prosecu-
tions cannot go forward. Paragraph one does not permit the
government to go forward with prosecutions on the conspir-
acy charges simply because sentencing on the importation
charges did not occur; rather, it specifies one circumstance,
3828 UNITED STATES v. TRANSFIGURACION

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but not the only one, precluding additional prosecution. Para-
graph two bars additional prosecutions once the defendants’
cooperation promise is fulfilled. Accordingly, the blanket
command in paragraph two remains enforceable even if the
indictment is not dismissed pursuant to paragraph one.23
Given that the Transfiguracion and Dao both fulfilled their
end of the bargain by cooperating with the government, they
cannot be prosecuted “for any other non-violent offenses now
known to the government.” As a result, the prosecution of the
conspiracy charges cannot continue.
As a means of effectuating the promise that the conspiracy
prosecutions could not go forward, the district court con-
cluded that dismissal of the indictment against Transfigura-
cion and Dao was the proper remedy. Although this dismissal
was not specified as “with prejudice,” it is evident that the
district court was contemplating a dismissal on the merits,
which “precludes a trial on a reindictment of the same
charge.” United States v. Cejas, 817 F.2d 595, 600 (9th Cir.
1987). In Cejas, we held that a district court’s decision to dis-
miss an indictment on the grounds that the charges contained
therein were barred by double jeopardy was a dismissal on the
merits, and reindictment was therefore precluded. Id. We
view the district court’s decision to dismiss the indictment
against Transfiguracion and Dao, premised on the conclusion
that prosecution on those charges were barred by the terms of
their plea agreements, as sufficiently similar to the dismissal
in Cejas to be considered a dismissal on the merits, thereby
precluding further prosecution.24
23The dissent contends that the “principal object” of the agreements was
to obtain criminal convictions. Dissenting op. at 3830. If that were true,
however, paragraph two, providing for non-prosecution “in return for . . .
cooperation,” would be entirely superfluous. The agreement contemplated
another benefit for the government in addition to the convictions: coopera-
tion in the investigation and prosecution of the co-conspirators.
24Even if the dismissal orders of the district court could be considered
unclear as to the possibility of future prosecution on the charges contained
in the indictment, we would exercise our power as an appellate court to
“clarify the dismissal to reflect that it is with prejudice.” United States v.
Brown, 425 F.3d 681, 682 (9th Cir. 2005) (per curiam).
3829 UNITED STATES v. TRANSFIGURACION

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IV.
The plea agreements insulate Transfiguracion and Dao
from prosecution on the charges contained in the indictment.
The bargain the government struck bars the prosecution of the
defendants for the conspiracy offenses. The district court’s
interpretation of the plea agreements was correct and, there-
fore, its decision to dismiss the indictment against Trans-
figuracion and Dao, thereby precluding prosecution on the
charges contained therein, was not an abuse of discretion.
AFFIRMED.
GIBSON, Circuit Judge, dissenting:
In United States v. Barron, 172 F.3d 1153 (9th Cir. 1999)
(en banc), this Court held the government to the terms of a
plea-bargain that failed to provide for the event that the con-
duct pleaded to would later turn out to be legal. The govern-
ment learned its lesson and drafted a plea agreement
providing that in such an event, the government could prose-
cute the defendant on the remaining counts. Transfiguracion
and Dao signed on to such an agreement, but today the Court
has moved the goal-post and the government loses once again.
The Court asserts that the cooperation clause1 is the “meat
and potatoes of the plea agreement,” supra at 3824, and holds
that once the defendant has cooperated, the punishment aspect
of the agreement can go by the board. My study of the plea
agreement leads me to believe that its principal object was to
obtain a conviction for participation in a drug ring, and the
defendant’s cooperation did not extinguish the government’s
right to keep trying for a conviction and sentence.
1I, too, will discuss only Dao’s agreement, since the two are identical
in material respects.
3830 UNITED STATES v. TRANSFIGURACION

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This case is about the government’s obligation to dismiss
the counts not pleaded to. That obligation is set forth in para-
graph one, in which Dao agrees to plead guilty to importation
of methamphetamine. The second sentence of the paragraph
contains the agreement to dismiss Counts I, VI, and VIII of
the indictment “upon sentencing.” (emphasis added). This
language shows that obtaining a conviction and punishment is
the government’s primary object in agreeing to dismiss the
other counts. The government’s obligation to dismiss does not
ripen until the defendant is meted out her punishment. Since
that will never happen in this case, the government is not
obliged to dismiss. However, the Court reads this important
language out of the agreement, stating that “upon sentencing”
refers only to the “timetable” of sentencing, supra at 3823. A
timetable that specifies “never” negates the promise itself.
The second paragraph contains the cooperation agreement,
in which Dao agrees to cooperate in investigation of the drug
ring and to testify in proceedings against her co-conspirators.
In return, the United States agrees to make her cooperation
known to the district court before sentencing. This quid pro
quo shows that the cooperation clause is integrally connected
to the principal object of the agreement—punishment of Dao.
However, the Court today reads the second part of the
cooperation agreement as somehow able to stand alone from
the rest of the agreement. In this part of the cooperation para-
graph, the government reserves the right to prosecute Dao for
any non-violent crime of which “she does not fully advise the
United States, or for any material omissions in this regard,”
but it also agrees “not to prosecute defendant in the District
of Guam or the Northern Mariana Islands for any other non-
violent offenses now known to the government or which she
reveals to federal authorities.” The Court today reads the
words “other non-violent offenses” as pertaining to the
already-indicted conduct, which puts those words at war with
paragraph one. Such a reading would mean that if Dao coop-
erated, the government could not prosecute her for the con-
3831 UNITED STATES v. TRANSFIGURACION

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duct indicted but not pleaded to, regardless of whether the
government obtained a conviction and sentence for the impor-
tation count pleaded to. A far more sensible reading of the
cooperation clause is that “other non-violent offenses” refers
to conduct “other” than that in the indictment, rather than to
indicted conduct that has already been specifically dealt with
in paragraph one.
This reading is confirmed elsewhere in the agreement. In
paragraph nine, the agreement discusses the consequences if
Dao commits one of several kinds of missteps. It says that “in
addition to standing guilty of the matters to which she has
pled pursuant to this agreement, [Dao] shall also be fully sub-
ject to criminal prosecution for other crimes, and for the
counts which were to be dismissed.” Thus, the agreement dis-
tinguishes between “other” crimes (“other” being the same
language used in paragraph two), and the indicted counts
which the government agreed in paragraph one to dismiss
upon sentencing.
Moreover, paragraph nine further refutes the idea that the
cooperation agreement stands alone so that cooperation
releases Dao without regard to the rest of the agreement. Para-
graph nine states that if Dao engages in criminal conduct after
the entry of the plea agreement but before sentencing, she will
lose all the benefit of the plea agreement (presumably includ-
ing the benefits conferred in paragraph two) notwithstanding
her cooperation. Cooperation was not intended to trump the
government’s other objectives in entering the plea agreement.
Finally, and most importantly, the government tried to pro-
tect itself in the event that it failed to obtain a conviction on
the pleaded count, which is what has happened here. Para-
graph eleven provides: “If defendant’s guilty plea is rejected,
withdrawn, vacated, or reversed at any time, the United States
will be free to prosecute defendant for all charges of which it
then has knowledge, and any charges that have been dis-
missed will be automatically reinstated . . . .” The Court today
3832 UNITED STATES v. TRANSFIGURACION

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holds that the guilty plea was not rejected or vacated, but what
else was the dismissal of the importation count to which Dao
had pleaded?
By focusing on the continuing validity of the plea agree-
ment, the Court avoids recognizing that the plea itself has
been rejected. The Court relies on Barron, a habeas case, to
say that Dao has not repudiated her plea agreement. Supra at
3818. That is not the point. Barron did hold that engaging in
a collateral attack on a conviction obtained pursuant to a plea
agreement did not amount to a repudiation of the plea agree-
ment, which meant that the plea agreement was still enforce-
able. That holding is irrelevant here, since the government is
trying to enforce the plea agreement in this case.2 The plea
agreement before us says that the deal to dismiss remaining
counts is off if the plea, not the plea agreement, is rejected or
vacated. Here, the district court correctly refused to convict
on the plea, so the plea was either rejected or vacated. The
plea agreement anticipated such a situation and the parties
agreed that if it happened, Dao could be prosecuted on the
remaining counts.
The Court stretches Barron further than it will go, by con-
tending that Barron holds that the guilty plea was not set
aside when the conviction was vacated in response to Bar-
ron’s habeas petition. Both Barron and United States v.
Sandoval-Lopez, 122 F.3d 797 (9th Cir. 1997), considered
whether a defendant’s habeas petition to vacate a conviction
breached a plea agreement, not whether vacatur of the convic-
tion amounted to vacatur or rejection of the guilty plea.3 Nei-
2The government’s attempt to enforce paragraph nine of the agreement
is, of course, an alternative argument in case the government lost its bid
to rescind the agreement, which I agree it must.
3Language in the Court’s opinion that seems to say the plea is “in force”
even though the district court has rejected it was taken out of context from
Barron: “[T]he guilty plea to criminal acts can remain in force even as the
sentence imposed upon an innocent act is set aside.” Supra at 3818 (quot-
ing Barron, 172 F.3d at 1158). Barron was making the point that all the
3833 UNITED STATES v. TRANSFIGURACION

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ther Barron nor Sandoval-Lopez reached the latter question
because the plea agreements in those cases did not give the
government a remedy in the event of vacatur or rejection of
the plea or conviction. See Barron, 172 F.3d at 1161;
Sandoval-Lopez, 122 F.3d at 802. The agreement in this case
does.
The plain language of the plea agreement permits the gov-
ernment to prosecute Dao and Transfiguracion on the counts
not pleaded to. Contra proferentem does not simply mean,
“The government loses.” I therefore must respectfully dissent.
counts of conviction based on a guilty plea need not be vacated simply
because one of the counts of conviction has to be set aside. Barron had
pleaded to three counts, one of which was set aside on habeas, but he did
not want to disturb the disposition of the other two counts because he
would have received a longer sentence the second time around. Here, the
plea to the only count of conviction was rejected. No guilty plea was left
“in force.”
3834 UNITED STATES v. TRANSFIGURACION

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