Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 CR 577--John A. Nordberg, Judge.
Wood and Flaum, Circuit Judges, and Brown, Senior District Judge.*fn*
This appeal once again requires us to reconstruct the meaning of an ambiguous provision in a plea agreement. Pursuant to a pre-indictment plea agreement with the government, defendant-appellant Edward Fields pleaded guilty to one count of conspiracy to violate the drug laws in violation of 18 U.S.C. § 371 (1982) and one count of filing a false tax return in violation of 26 U.S.C. § 7206(1) (1982). On appeal, Fields does not question the validity of his guilty pleas, but rather challenges the sentences that he received on the ground that they violate the plea agreement. For the reasons set forth below, we affirm.
Beginning in 1980, a joint investigation by several federal agencies uncovered evidence of Fields's involvement in a large-scale cocaine-trafficking conspiracy. Based on this evidence, federal agents discussed the possibility of prosecuting Fields for engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 (1982), an offense that carries penalties of imprisonment for ten years to life, a fine of up to $100,000, and substantial forfeiture of the convicted defendant's assets. In January 1982, a meeting was held between Fields, his counsel Allan Ackerman, and Assistant United States Attorney Jerome Frese, during which Frese expressed his opinion that Fields would be prosecuted under section 848.
Discussions then ensued over a plea agreement that would entail Fields's cooperation with the government in the investigation of others involved in the cocaine-trafficking conspiracy. On January 29, 1982, Field submitted to the government a written proffer detailing his involvement in the conspiracy, but deleting the names of the other persons involved. Sometime in March of 1982, negotiations concluded and Fields entered into the preindictment plea agreement now at issue. The agreement provided generally that Fields would plead guilty to one count of engaging in a drug conspiracy, carrying a maximum penalty of five years imprisonment and a $10,000 fine, and one count of filing a false tax return, carrying a maximum penalty of three years imprisonment and a $5,000 fine. In return, the government agreed to grant Fields immunity from federal prosecution on any other narcotics, customs, banking, and tax offenses that he had committed up to January 29, 1982.
Because the focus of this appeal is on the meaning of the plea agreement, we review both the agreement itself and the various discussions about it in some detail. The most relevant portion of the agreement for present purposes is paragraph 11, in which Fields agreed that he would "fully cooperate with the government in any investigation in which he is called upon to cooperate which is related to or results from the charges in this case." Several specifically enumerated subparagraphs further describe the cooperation required of Fields, and conclude with the subparagraph that has become the center of the instant dispute:
5. The government anticipates that the period of defendant's cooperation by debriefing and in grand jury testimony may extend to approximately six to nine months. The government and the defendant agree that the sentencing court might appropriately consider any such period of cooperation to be equivalent to incarceration of the defendant for sentencing purposes if the sentencing court should determine that the defendant should be incarcerated. (emphasis added)
The agreement also provides in paragraph 17 that "at the time of sentencing, the government shall make known to the sentencing judge the extent of defendant's cooperation, and except for the provisions in paragraph 11(5) above, the government shall be free to make such recommendations regarding sentence as the government deems to be appropriate." Finally, paragraph 19 of the agreement states: "It is understood by the parties that the sentencing judge is neither a party to nor bound by this agreement and is free to impose the maximum penalties [on each of the charges]."
Fields was accordingly indicted on the drug conspiracy and false tax return charges on July 27, 1983. Two days later, a conference was convened in Judge Nordberg's chambers for the purpose of both arraigning Fields and accepting his guilty plea on the charges. The attorneys who personally negotiated the plea agreement (Ackerman and Frese) were not present at this conference; instead, Fields was represented by Royal B. Martin, Jr., and the government was represented by Assistant United States Attorney Joan B. Safford. At the beginning of the conference, the parties agreed to postpone Fields's sentencing until after he cooperated with the government by testifying in a case pending before Judge Hart. Judge Nordberg then reviewed the various provisions of the plea agreement and obtained Fields's acknowledgement that he understood and agreed to these provisions.
With respect to the paragraphs of the agreement governing sentencing, the judge initially asked Fields if he understood that under paragraph 19 the sentencing judge would not be bound by the agreement, and Fields affirmed that he did. In the next passage in the record, however, the judge further stated that he had reviewed the indictments against Fields and had discussed the case with Judge Hart, "so, I do feel that I am sufficiently informed that I can indicate at this time that I would consider myself to be bound, to the limited extent that I would be bound, but in any event, that I would accept the plea agreement that has been entered into between the parties . . . ." The judge then asked Fields whether he understood that a maximum penalty of eight years imprisonment and a $15,000 fine "might be imposed upon you by virtue of your plea of guilty to both counts 1 and 2," and Fields answered that he did.
Lastly, the judge reviewed the language of paragraph 11(5) and explained his understanding of how the period of Fields's cooperation might be considered as "equivalent to incarceration" for sentencing purposes:
My understanding is that the Court normally doesn't have the power to tell the Parole Board or the Bureau of Prisons . . . what time the defendant will be credited with, so, what is really being indicated here is that the Court might articulate that it thought that a sentence of such and such an extended period of time might be appropriate but the Court felt that because of the representations by both counsel for the government and for the defense, the amount of time that the defendant has already spent should be considered as an offset to that, and, therefore, the Court, in effect, would not sentence the defendant for that period of time.
All of the parties, including Fields, agreed to this explanation of the agreement. The judge thereafter accepted Fields's guilty pleas and entered judgments of conviction thereon.
For approximately a year after this conference, Fields continued cooperating with the government. Then, sometime in the summer of 1984, the government filed a presentence submission with the probation officer who was preparing a presentence report on Fields for the court. In this submission, the government first detailed Fields's substantial involvement in a massive cocaine-trafficking conspiracy. By way of contrast, the government then described Fields's "extensive" cooperation in, among other things, helping the government obtain numerous guilty pleas and convictions of others involved in the conspiracy. Based on a balancing of his prior crimes with his subsequent cooperation, the government recommended that the court sentence Fields to the maximum sentence of eight years imprisonment, with the proviso that "the ...