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United States v. Avery

United States District Court, D. Alaska

September 11, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK J. AVERY, Defendant.

ORDER REGARDING MOTION AT DOCKET 196.

RALPH R. BEISTLINE, District Judge.

I. PENDING MOTIONS

At Docket 196 Defendant Mark J. Avery filed a Motion to Dismiss (Specific Performance of Agreement), which the Government has opposed.[1] Neither party has requested oral argument, and the Court has determined that oral argument would not materially assist in resolving the issues presented. Accordingly, the matter is submitted for decision on the moving and opposing papers.[2]

II. BACKGROUND

The history of this case is well known to the parties and is repeated here only to the extent necessary to an understanding of this decision. In April 2008, this Court sentenced Avery to 102 months imprisonment on his guilty plea to fifteen counts: five counts of wire fraud (18 U.S.C. §§ 1343, 1346); nine counts of money laundering (18 U.S.C. § 1957(a); and one count of criminal forfeiture (18 U.S.C. § 982(a). Avery waived his right to appeal, and no appeal was filed. In February 2011 Avery sought relief under 28 U.S.C. § 2255, claiming his conviction and sentence were invalidated by the Supreme Court decision in Skilling. [3] This Court denied Avery relief. Upon appeal, the Ninth Circuit, finding that the crime to which Avery pleaded guilty at his plea allocution (honest services fraud) was no longer a criminal offense, reversed and remanded.[4]

As relevant to the motion sub judice, the Ninth Circuit noted:

We note that while Avery is innocent of honest services fraud, as that theory has been defined by the Supreme Court in Skilling, Avery's conduct may still constitute money-or-property based wire fraud. See, e.g., United States v. Pelisamen, 641 F.3d 399, 406 (9th Cir.2011). If this is the case, under the terms of the plea agreement the government may be able to reinitiate criminal proceedings against Avery under the broader money-or-property based wire fraud prosecution theory alleged in the original Information. If criminal proceedings are reinstituted, we leave it to the district court on remand to determine whether Avery's misconduct could trigger liability under core mail and wire fraud jurisprudence.[5]

It further noted:

Because our certificate of appealability is limited to evaluating whether Avery's habeas claim attacking the basis for his honest services fraud conviction was procedurally defaulted, we leave it to the district court on remand to determine what consequences might follow issuance of the writ granting relief under the honest services fraud theory, should the government elect to continue prosecuting this case rather than dismissing the Information.[6]

Consistent with the Ninth Circuit's notes, upon remand the Government sought and the Grand Jury re-indicted Avery on fifteen counts: five counts of wire fraud (18 U.S.C. §§ 2, 1343); and ten counts of money laundering (18 U.S.C. §§ 2, 1957(a)).[7] It is this re-indictment that Avery seeks be dismissed.

III. ISSUE PRESENTED.

In light of the reversal on the basis that the conduct admitted by Avery during the plea colloquy did not constitute a crime, whether, under the terms of the plea agreement, the Government is precluded from re-indicting him.

IV. DISCUSSION

Avery advances two arguments: (1) that in bringing his § 2255 motion, he did not breach the plea agreement; and (2) he is entitled to specific enforcement of the plea agreement, specifically that the government would not initiate or reinstate charges related to the investigation that led to the information ...


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