UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PEAPACK
UNITED STATES OF AMERICA
Plaintiff,
v.
MAX FISHER,
Defendant.
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Docket No. _____________
PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO
DISMISS INDICTMENT AND ENFORCE PLEA AGREEMENT
Plaintiff United States of America (“United States”) moves the Court in opposition of motion to
dismiss indictment and enforce plea agreement brought by Defendant Max Fisher (“Defendant”) as the
plea agreement for the Western District of Peapack is non-binding upon the Eastern District of
Peapack.
INTRODUCTION
Defendant believes that his plea agreement made the Assistant United States Attorney in the
Western District of Peapack (“Western District”) for crimes that he committed to that district should
relieve him from being prosecuted for the crimes he has committed in the Eastern District of Peapack
(“Eastern District”). The defendant willfully engaged in stealing money from citizens of the Eastern
District at the same time as he committed similar crimes against the Western District. The defendant
was not indicted for the crimes against the Eastern district, only for the crimes to the Western District.
Defendant's plea agreement makes no mention of it precluding other districts from prosecuting the
Defendant for crimes arising from this matter. It only states that the Western District would not
prosecute him.
Even if the agreement could be construed to mean this, it is non-binding upon the Eastern
District because an Assistant United States Attorney does not have the authority to bind other districts.
Nor because the crimes dismissed by the agreement are those against the Western District. The
defendant has stolen money from several different districts, only one of which was the Western
District.
STATEMENT OF FACT
The defendant was first indicted by the Western District upon two counts for soliciting money
with the intent to steal and trying to conceal the violation through financial transactions in the Western
District. Defendant committed these crimes via an Internet website, which solicited donations to help
tsunami victims. This website guiled citizens from several districts, including the Eastern District and
Western District of Peapack, into donating money. The Western District's Assistant United States
Attorney entered into a plea agreement with the defendant, in which it was agreed that the Western
District would dismiss Count One of its indictment if the defendant plead guilty to Count Two.
Now, the United States desires to prosecute the defendant for the crimes he has committed
against the citizens of the Eastern District. One count has been brought against the defendant for
soliciting money from the Eastern District with the intent to steal. Although this crime occurred
concurrently with those of the Western District, they are not the same.
ARGUMENT
A. THE PLEA AGREEMENT WAS NON-BINDING UPON OTHER DISTRICTS.
The plea agreement created by the Western District does not bind the courts of other districts.
The 2nd Circuit Court has ruled that “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. Annabi, 771 F.2d 670 (2d Cir. 1985). The Court
looked at the agreement as a narrowly viewed contract, thus if the agreement did not appear to
contemplate “broader restriction,” by stating so within the agreement that it will bind all other districts.
Defendant Fisher's agreement does not make any mention to binding the courts of other districts.
In
fact the document is unambiguous in that it refers to the Western District Court by name: “Attorney for
the Western District of Peapack will not bring any further charges against the defendant relating to the
matters involved.” “Attorney's Office for the Western District of Peapack will move to dismiss Count
One of the Indictment.” See Stipulation – Plea Agreement ¶2. The document only has one use of an
ambiguous term, “government,” which will be explained below. The document, thus does not
contemplate any broader restrictions than those imposed against the Western District, and does not bind
the Eastern District from pursuing the indictment.
The plea agreements use of “government” cannot be construed as meaning all districts as the
entire document consistently states that it is the Western District that is being bound by the agreement.
The Court has stated in United States v. Laskow that the mere fact that a plea agreement contains the
word “government” does not qualify as an affirmative appearance, as put forth in United States v.
Annabi. United States v. Laskow, 688 F. Supp. 851, 853 (E.D.N.Y. 1988), aff'd, 867 F.2d 1425 (2d Cir.
N.Y. 1988). United States v. Sertich, 1995 U.S. App. LEXIS 31276, 5-6 (9th Cir.) (The single
usage of “the government” in a paragraph regarding no other agreements does not create an
ambiguity, citing United States v. Ingram, 979 F.2d 1179, 1185 n.7 (7th Cir. 1992) ). The court again
construed plea agreements in the narrow sense when there are no ambiguities. Thus in the agreement at
hand, the phrase “the Government agrees to move to dismiss the remaining count of the Indictment and
further agrees not to prosecute Max Fischer for any other possible violations of criminal law arising
from the facts that led to Indictment Criminal No. WD-05-27” is in reference to the Western District
only. The entire document makes several reference to only the Western District, thus the use of
“government” was in meant to mean the Western District.
B. THE ASSISTANT UNITED STATES ATTORNEY DID NOT HAVE THE AUTHORITY
TO BIND OTHER DISTRICTS.
Even if the plea agreement could be construed as having the ability to bind all other districts,
the plea agreement is non-binding as the Assistant United States Attorney does not have the authority
to bind other districts. The Trial Court, under the 10th Circuit, has stated that agreements made in one
District by an AUSA bind only the office of the United States Attorney in that District” unless there is
a broader intended scope in the agreement. US v. Crobarger, 343 F. Supp. 2d 1048, 1061 (Utah 2005),
aff'd, 2005 U.S. App. LEXIS 26842 (10th Cir. 2005).
This case centered around an agreement made by an Assistant United States Attorney that he
would have the length of the sentence shortened for his cooperation with stopping a planned jail escape
while he was incarcerated in another district. The defendant filed suit to compel the district to follow
the agreement set up in the other district. The discussion covers several theories proposed by the
defense, the most relevant of these is that an Assistant United States Attorney has the authority to bind
other districts, just as the United States Attorney does. The court held it would not extend the power of
the United States Attorney, granted by 28 USCS §547, it found that unless it was the intended scope of
the agreement it would not bind. Defendant's plea agreement in the present case, does not promote the
notion that it's intended scope was to be all districts, nor was it ratified by the Eastern District, which
may demonstrate that they understood it to bind them. Thus the Assistant United States Attorney could
not have bound the other districts, as he lacked the authority to do so.
C. POLICY CONSIDERATION:
Finally, to hold that the plea agreement created by the Assistant United States Attorney is
binding upon all districts would encourage the United States Attorney's offices to pursue a quick
conviction, no matter what is conceded through plea agreement, to ensure that it is the district that sets
the terms of the agreement, knowing that all other districts would be bound by that agreement. Thus
the interests of other districts would not be served and the increased incentive to move quickly through
trial would lend itself to errors.
CONCLUSION
For all of the reasons stated above, Plaintiff respectfully moves that the Court deny Defendant's
Motion to Dismiss.