J. MICHAEL SEABRIGHT, District Judge.
Defendant Naeem J. Williams ("Defendant") faces a capital murder charge resulting from the death of five-year old Talia Williams on July 16, 2005. This Order rules on two Motions by Defendant that challenge aspects of a December 6, 2006 plea agreement (the "Plea Agreement") between the United States (the "government") and co-Defendant Delilah S. Williams, seeking various relief regarding that Plea Agreement. The two Motions are Defendant's (1) "Motion for a Finding That Delilah Williams Materially Breached Her Plea Agreement and Allowing Evidence That the Government Recognized the Breach of the Agreement and Nonetheless Decided Not to Seek a Remedy; Motion to Exclude Delilah Williams's Testimony and/or for a Relevance and Reliability Hearing" (the "Material Breach Motion"), Doc. No. 2027; and (2) "Motion for Finding That the Statement of Sentencing Consequences for Delilah Williams in Her Plea Agreement Does Not Comply with the Law and That the Plea Agreement Contains Provisions That Are Illusory and Misleading; in Addition, Motion For Jury Instruction Concerning the Plea Agreement" (the "Sentencing Consequences Motion"), Doc. No. 2028.
Based on the following, both Motions are DENIED, without prejudice for Defendant to raise certain issues (as discussed below) during trial, if appropriate.
The parties essentially agree on the basic factual and procedural background. Certain details of communications between counsel as to Delilah Williams regarding these Motions, although alluded to by Defendant, were not disclosed to (and were not considered by) the court. See, e.g., Doc. No. 2036, Def.'s Mot. at 9 n.1 & 10 n.2. That is, the court bases its ruling on the following undisputed background facts:
The First Superseding Indictment in this case alleges that both Delilah Williams (Defendant's wife) and Defendant caused the death of Talia Williams on or about July 16, 2005. Doc. No. 136, First Superseding Indictment at 2. In particular, as to Delilah Williams,
Id. at 2-3.
On December 6, 2006, Delilah Williams entered into the Plea Agreement with the government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C).
United States v. Austin, 676 F.3d 924, 927 (9th Cir. 2012). That is, unlike more common situations where the court imposes a sentence based upon a consideration of the 18 U.S.C. § 3553(a) factors,
Freeman v. United States, 131 S.Ct. 2685, 2695 (2011) (Sotomayor, J., concurring).
Delilah Williams pled guilty to Count Two (felony murder) in exchange for dismissal of the remaining two Counts against her at sentencing. Doc. No. 187, Plea Agreement ¶ 4(a). Judge David A. Ezra (who formerly served as trial judge in this case, prior to his re-assignment to the Western District of Texas) accepted the Plea Agreement on July 5, 2007. Doc. No. 310. As to her sentence, the Plea Agreement provides: "The parties stipulate that the Court must impose a sentence of 240 months (i.e., 20 years) if it accepts this Agreement." Id. Additionally, the Plea Agreement requires Delilah Williams to provide "full and truthful cooperation regarding the life and death of Talia Williams, including testifying at Naeem Williams's trial (but not the sentencing phase)." Id. ¶ 4(b). In this regard, the Plea Agreement provides:
Id. It further states that if Delilah Williams
Id. ¶ 4(c).
Regarding her maximum sentence, the Plea Agreement provides, in part:
Id. ¶ 7. Similarly, the Plea Agreement later provides regarding Delilah Williams' sentence:
Doc. No. 187, Plea Agreement ¶ 19.
Likewise, paragraph eight of the Plea Agreement begins by stating:
Id. ¶ 8. Paragraphs 8(a) to 8(t) then describe specific facts and circumstances of the charged crimes that Delilah Williams has represented are "completely true and correct." Doc. No. 187, Plea Agreement ¶ 4(b). One detail that is important in understanding the present Motions was described by the government at the July 5, 2007 hearing as follows:
Doc. No. 310, Tr. 4, July 5, 2007.
On several occasions in May 2012, the government met with Delilah Williams. The Federal Bureau of Investigation ("FBI") created detailed records of those meeting on FBI form 302s, which were provided under seal to the court (and earlier to counsel for Defendant) as exhibits to the present Motions. See Doc. Nos. 2037-4 to 2037-6, Def.'s Exs. D, E, F.
According to an FBI 302 documenting a May 30, 2012 interview, Delilah Williams described (among other matters) an incident on July 8, 2005 where she remembers hitting Talia and/or "slapping her in the upper left arm" and "yanking" her up by her left arm. Doc. No. 2037-6, Def.'s Ex. F at 1. That interview also refers to Delilah Williams "smacking" Talia "in the face" on July 8, 2005. Id. at 2. The government does not dispute that these descriptions differ from the statement in her Plea Agreement, which refers to June 29, 2005 as the last day that Delilah Williams struck Talia. Doc. No. 186, Plea Agreement ¶ 8(m).
On August 8, 2012, just before a hearing on an unrelated matter concerning expert witnesses, Judge Ezra had a brief meeting in chambers with government counsel and counsel for Delilah Williams.
Doc. No. 1914, Tr. 4-5, Aug. 8, 2012. Judge Ezra continued:
Id. at 6. He explained:
Id. at 8.
Consistent with those remarks, the government has not sought to withdraw from the Plea Agreement.
On May 23, 2013, Defendant filed the Material Breach Motion, seeking, among other relief, a finding by the court that Delilah Williams materially breached the Plea Agreement. Doc. No. 2027. He also filed the Sentencing Consequences Motion, arguing that the terms of the Plea Agreement regarding Delilah Williams' sentence are wrong or misleading and thus, if the jury receives the Plea Agreement, the court should instruct the jury accordingly. Doc. No. 2028. The government filed its Oppositions on June 28, 2013, Doc. Nos. 2061, 2062, and Defendant filed Replies on July 12, 2013. Doc. Nos. 2080, 2081. The Motions were heard on August 22, 2013.
Defendant's Material Breach Motion has multiple requests. Defendant asks for a judicial finding that Delilah Williams has materially breached the Plea Agreement, and thus seeks to prevent any use of Delilah Williams as a government witness because her testimony is unreliable. Alternatively, he asks for a pretrial hearing to determine the relevance and reliability of Delilah Williams' testimony. He also asks to be allowed to present evidence, or for a jury instruction, that the government met with Judge Ezra to explain the differing factual accounts given by Delilah Williams and decided not to withdraw from the Plea Agreement despite her material breach. This decision not to withdraw despite Delilah Williams' breach, Defendant argues, is a "benefit" given to her in exchange for testimony — a "benefit" that, he further argues, the jury should be told about in evaluating the veracity of her testimony. Doc. No. 2036, Def.'s Mot. at 1. On the present record, however, these requests are all improper.
"Plea agreements are analyzed under contract law principles." United States v. Lee, ___ F.3d ___, 2013 WL 4007795, at *5 (9th Cir. Aug. 7, 2013) (citing United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993)); see also, e.g., United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir. 2001)). The Plea Agreement is between Delilah Williams and the government, and Defendant is obviously not a party. Under well-established contract law principles, "[b]efore a third party [such as Naeem Williams] can recover under a contract, [he] must show that the contract was made for [his] direct benefit — that [he] is an intended beneficiary of the contract." Klamath Water Users Protective Ass'n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999), opinion amended on denial of reh'g, 203 F.3d 1175 (9th Cir. 2000); see also Helfand v. Gerson, 105 F.3d 530, 538 (9th Cir. 1997) (reiterating that courts have extended the right to assert a breach of contract to intended third-party beneficiaries). And because the Plea Agreement contemplates Delilah Williams testifying against Defendant and cooperating with the government in its prosecution of Defendant, Defendant certainly cannot be considered an intended beneficiary of the Plea Agreement. Defendant simply has no standing to challenge the terms of the Plea Agreement, and thus has no standing to argue for a finding that Delilah Williams breached the Agreement.
United States v. Ivy, 83 F.3d 1266 (10th Cir. 1996), explains why this principle is especially applicable when considering a co-defendant's plea agreement. Ivy addressed a similar situation in which the defendants argued that plea agreements entered into by witnesses (co-defendants) who testified against them were invalid. The plea agreements were invalid, the defendants argued, because they materially misstated the amount of drugs at issue, thus rendering the witnesses' testimony inherently unreliable such that their testimony should have been suppressed. Id. at 1282. The Tenth Circuit disagreed, reasoning that the defendants lacked standing to contend that the plea agreements were invalid. See id. ("[W]e agree . . . that [the defendants] lacked standing to contend that government had violated [the testifying witnesses'] rights by using the plea agreement to coerce their trial testimony[.]"). Rather, Ivy approved the district court's decision instead to allow defendants "to cross-examine [the witnesses] regarding the terms of their plea agreements, but that there was no sound basis for preventing them from testifying." Id.
Ivy reasoned that it is improper to allow a co-defendant to challenge the terms of another's plea agreement:
Id. at 1282-83.
This reasoning is compelling. Applied here, the court agrees that allowing Defendant to challenge whether Delilah Williams breached her Plea Agreement (especially at this stage of the proceedings, before she has even testified) would essentially "require the government to prove the factual representations made" in the Plea Agreement and during Delilah Williams' plea colloquy. Id. at 1283. To assess whether Delilah Williams has "materially breached" the Plea Agreement now would "force the district court . . . to entertain what would essentially be a collateral attack on [her] guilty plea." Id. Consistent with basic contract law principles and Ivy's rationale, the court concludes that Defendant lacks standing to assert that Delilah Williams has materially breached her Plea Agreement.
It is certainly true, as Defendant argues, that Defendant has standing to challenge the reliability of the evidence against him. Ultimately, then, this Material Breach Motion is little more than a novel challenge to the reliability of Delilah Williams. And as is normally the case, her reliability or truthfulness may be challenged by rigorous cross examination. See, e.g., Hoffa v. United States, 385 U.S. 293, 311 (1966) ("The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.").
The government has made timely disclosures of the FBI 302s regarding Delilah Williams — there is no hint of a Brady violation. See Doc. No. 2133, Order Granting in Part and Denying in Part Motion for Discovery. And there is certainly no indication that the government intends to introduce false or perjured testimony. Therefore, rather than allowing a challenge to the Plea Agreement itself, the proper approach is to allow Defendant a full and fair opportunity to cross-examine Delilah Williams, given the statements in the Plea Agreement and the information in the FBI 302s regarding Delilah Williams. As Ivy reasoned, "any prejudice resulting from [Delilah Williams'] plea agreement can be adequately explored and dispelled in this manner." Id. If there are inconsistencies between the Plea Agreement and any relevant statements made by Delilah Williams, the nature of the adversary system allows for cross-examination in the search for the truth. See, e.g., United States v. Yarbrough, 852 F.2d 1522, 1537 (9th Cir. 1988) ("The courts have long allowed [accomplices who have pled guilty] to testify and have relied on cross-examination to uncover any false testimony that might be given.") (citation omitted).
Defendant will certainly be permitted to cross-examine Delilah Williams regarding her inconsistent statements and the terms of the Plea Agreement. Defendant could also elicit — through cross-examination or a request for judicial notice — that the government never sought to withdraw from the plea agreement. Any benefits obtained by Delilah Williams can be explored fully on cross-examination.
For similar reasons, it is improper to allow Defendant to introduce specific evidence of the August 2005 meeting in chambers with Judge Ezra between Delilah Williams' counsel and the government. Essentially, this request seeks to bolster Defendant's position that Delilah Williams is untruthful by presenting evidence that the government itself believes her testimony is unbelievable or untrustworthy. But government counsel's opinions of the reliability of government witnesses is simply not relevant.
United States v. Carpenter, 405 F.Supp.2d 85 (D. Mass. 2005) explains why such testimony is irrelevant:
Id. at 99. The court noted that "[p]lainly the government cannot vouch that a witness's testimony is credible. The defendant proposes a kind of `vouching for incredibility' — that the government should be required to say when it does not believe one of its witnesses." Id. at 99 n.10 (internal citation omitted).
Given that basic foundation of our adversary system, the court thus refuses Defendant's alternative request to allow evidence that "variations in Ms. Williams's accounts caused the Government to meet with the Court and explain that it would not . . . be seeking to try to set aside the plea agreement or otherwise sanction Ms. Williams." Doc. No. 2036, Def.'s Mot. at 1.
Further, even assuming that Defendant had standing to argue (based on a challenge to her reliability) that Delilah Williams has breached the terms of the Plea Agreement, the identified inconsistency between her factual statement in paragraph eight and the recent FBI 302s is insufficient to render her testimony per se unreliable.
There is no indication that Delilah Williams is not competent or that the government intends to introduce false or perjured testimony. The government acknowledges that any inconsistencies between Delilah Williams' statements and her Plea Agreement may be the subject of cross examination. Such circumstances clearly do not warrant a pretrial reliability hearing. Whether Delilah Williams is credible or not is a question for the jury, not this court. See United States v. Bingham, 653 F.3d 983, 995 (9th Cir. 2011).
This Motion, similar to the Material Breach Motion, also challenges aspects of the Plea Agreement. In particular, Defendant contends that specific language in the Plea Agreement that the maximum sentence Delilah Williams faces is 240 months is incorrect — she actually faces (or faced) a minimum sentence of life imprisonment under the charges against her in the First Superseding Indictment. Doc. No. 2034, Def.'s Mot. at 2. Defendant argues that because the Plea Agreement "may play a part in dignifying Delila Williams's testimony," id. at 3, the jury requires special instructions because this "type (C)" agreement — having been accepted by the court — leaves no sentencing discretion for the court (such as independently reviewing whether Delilah Williams has actually provided substantial assistance to the government or cooperated fully). The Plea Agreement is misleading, Defendant argues, because it "gives the impression . . . that the maximum sentence faced by Delilah Williams is 240 months," and "creat[es] an illusion for a trial jury that is going to be told that Ms. Williams can only get to her 240 month sentence if she cooperates and is truthful" (where the court will not independently review whether she has "cooperate[d] and is truthful"). Id. at 2-3.
The Sentencing Consequences Motion thus asks the court to find that the Plea Agreement's language is improper, and to instruct the jury generally that (1) the Plea Agreement "bypasses a judicial function [assessing whether a witness has provided `substantial assistance'] that is normally performed by a court," (2) Delilah Williams may only avoid a mandatory minimum sentence of life imprisonment by providing "substantial assistance," and (3) the court "has played no part and will play no part in assessing Ms. Williams's level of cooperation or credibility[.]" Id. at 3.
Initially, upon review of the entire Plea Agreement, the court concludes that it properly states the possible sentencing scenarios for Delilah Williams under Rule 11(c)(1)(C). That is, as a whole, the Plea Agreement is not misleading.
Defendant points to paragraph seven of the Plea Agreement, which provides in pertinent part:
Doc. No. 187, Plea Agreement ¶ 7. This paragraph, standing alone and read in isolation, might plausibly indicate that the maximum statutory penalty "for the offense to which [Delilah Williams] is pleading guilty" is 240 months imprisonment — contrary to 18 U.S.C. § 3559(d), which provides for a life sentence for a violation of 18 U.S.C. § 1111(a) (the offense to which she pleaded guilty).
But single clauses of contracts and Plea Agreements are not read in isolation. Considered in context, paragraph seven is not misleading at all. It properly states the conditions — one of which (acceptance by the court) has already occurred — that will indeed make her maximum sentence 240 months imprisonment. Paragraph seven itself prefaces that "because she is pleading guilty pursuant to this Agreement," the maximum prison sentence she faces is 240 months. Doc. No. 187, Plea Agreement ¶ 7 (emphasis added). And paragraph seven goes on to correctly state that, if the Plea Agreement is not accepted, or if the government withdraws from it, then she faces a mandatory sentence of life imprisonment. Id. As explained above, under a "type (C)" agreement, once accepted and if not withdrawn from by the government, the court has no discretion to sentence otherwise. See, e.g., Austin, 676 F.3d at 927.
Likewise, paragraph 19, in italicized text, emphasizes that "if [Delilah Williams] fully cooperates and otherwise complies with this Agreement," Doc. No. 187, Plea Agreement ¶ 19, then her sentence will be 240 months (rather than the mandatory life sentence that she otherwise would face). The Plea Agreement also correctly sets forth the statutory basis for a "type (C)" agreement, and that the 240-month sentence is conditioned upon the court accepting the Plea Agreement. Paragraph 4(a) provides in part:
Id. ¶ 4(a).
Defendant argues that paragraph 19 is misleading because it refers to 18 U.S.C. § 3553(e) and states that "the prosecution will move the Court to depart from the statutory mandatory sentence of life imprisonment . . . on the ground that [Delilah Williams] has provided substantial assistance to authorities[.] Id. ¶ 19.
Reading the Plea Agreement as a whole, however, the references in paragraph 19 to § 3553(e) and a "motion for departure" do not render the Plea Agreement illusory or misleading. Even under this "type (C)" agreement, the court would be without legal authority to sentence Delilah Williams to a twenty-year term of imprisonment, absent a specific government motion.
Moreover, even if the court were concerned about the wording of the Plea Agreement, it is premature for the court to address specific jury instructions about such concerns. The court can later address whether to include any other specific instructions regarding "type (C)" agreements in general, or this Plea Agreement in particular. (That is, an instruction beyond the court's pattern instruction 17A regarding a witness who has pled guilty.
For these reasons, the Sentencing Consequences Motion is DENIED. The Plea Agreement does not misstate the law and is not misleading. It is premature to rule on any jury instructions regarding her testimony or the Plea Agreement. This denial, therefore, is without prejudice to raising these issues at an appropriate time at trial.
For the foregoing reasons, the Motions, Doc. Nos. 2027 and 2028, are DENIED without prejudice to submitting appropriate jury instructions during trial, after considering the trial testimony of Delilah Williams in context.
IT IS SO ORDERED.
Doc. No. 187, Plea Agreement ¶ 19.
