Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 86 CR 297-Paul E. Plunkett, Judge.
Cummings, Easterbrook and Manion, Circuit Judges.
In March 1987, Roger Nelson entered a conditional guilty plea to charges that from 1976 to 1984 he engaged in a continuing criminal enterprise ("CCE") in violation of 21 U.S.C. § 848.*fn1 The condition agreed to by the government was that Nelson would be allowed to appeal the ruling of the district court denying his motion to dismiss the CCE indictment. In addition to exercising the agreed condition, this appeal argues for specific performance of an asserted plea agreement and challenges the extent of the forfeiture order entered by the district court in imposing sentence on the conditional plea. We affirm the denial of both the motion to dismiss the indictment and the motion to enforce the plea agreement, and we also uphold the forfeiture order.
Nelson contends that his indictment should be dismissed because the government agreed to grant him immunity. Whether such an agreement exists is a matter of fact and the district court's finding will not be reversed unless it is clearly erroneous. See United States v. Weiss, 599 F.2d 730, 736 (5th Cir. 1979); United States v. Calimano, 576 F.2d 637, 640 (5th Cir. 1978). In Nelson's case, the district court carefully considered the conflicting testimony of Nelson and the Drug Enforcement Administration ("DEA") agents and, crediting part of Nelson's version, found that some kind of agreement existed but that it did not promise immunity. Neither of these findings is clearly erroneous.
The complicated facts behind the relationship between Nelson and the DEA in Miami, Florida, involve prominent figures, undercover activity, an island location, large amounts of drugs, money and violence and a videotape of the action, and resemble an episode of a television serial. These facts, however, are largely unrelated to the primary question of whether the DEA agents promised Nelson immunity. The relevant facts are as follows.
In the summer of 1985, Nelson knew that the U.S. Attorney's office in Chicago, working with the Chicago offices of the DEA and the Internal Revenue Service ("IRS"), was preparing to indict him for income tax violations and a CCE offense based on his alleged drug-smuggling activities in the Bahamas, Florida and Illinois. A grand jury had been considering these charges and Nelson's attorney, Aldo Botti, who had been in contact with the U.S. Attorney's office, knew that a Northern District of Illinois indictment was imminent.
Also in the summer of 1985, F. Lee Bailey of the Massachusetts Bar worked with the Miami DEA to put together a group, later called the Cistern 5, to do undercover investigatory work for the DEA concerning drug-smuggling activities on Cistern Cay in the Bahamas. Nelson was recruited for this group and on August 28, 1985, he and the other members of Cistern 5 met with DEA representatives in Miami to discuss a deal. No promises were made at that meeting, but Nelson did indicate that in return for his cooperation he wanted unindicted co-conspirator status, incorrectly terming it "what [former President] Nixon got." Two days later, the U.S. Attorney's office in Chicago, which had been alerted to Nelson's offer of cooperation with the DEA in Miami, wrote to the U.S. Attorney's office in Miami insisting that no deals could be made with Nelson without the prior approval of the Chicago U.S. Attorney's office.
On September 4, 1985, the members of Cistern 5 met again with the DEA in Miami. Present on behalf of the DEA were agents Billbrough, Chellino and Frankhar; Billbrough and Chellino were the second and third top-ranking officials in the Miami office of the DEA. According to Nelson's testimony, Chellino told the group at the outset that the DEA could not promise them anything except that "at the proper time the proper people will know what you have done, and any judge would be a fool not to listen to what we have to say." To which Nelson says he responded, "we are not going to go back there and risk our lives, our family, our property and our future for nothing. . . . We would have to be fools." Nelson further testified that following this exchange the meeting degenerated into a heated argument with members of the group stating that they would pull out. According to Nelson, the argument ended when Chellino stated "All right. You give me three, three [meaning substantial drug seizures] and this man [pointing to Sam Billbrough, who had been introduced as the second most powerful man in the United States DEA] will go directly to Washington, bypass Chicago, and take care of your problems." Contrary to Nelson's testimony, neither Chellino nor Frankhar recalled any statements concerning bypassing Chicago. After weighing the credibility of the witnesses and the evidence, the district court credited some of Nelson's version and concluded that Chellino did in fact tell Nelson that in return for three seizures DEA Miami would go to Washington on his behalf.
The district court did not, however, find that Chellino's promise to intecede for Nelson in Washington either constituted a grant of immunity or was understood by Nelson as such. In reaching this conclusion, the court took into account the testimony and credibility of the witnesses as well as the position of the parties and their prior and subsequent actions. Specifically, the court considered that although under different circumstances a potential criminal defendant might believe that Chellino had promised him immunity, Nelson was too well informed and too well represented to be misled. At the time of the September 4th meeting Nelson was familiar with the procedures under which he would be indicted and had been advised both by F. Lee Bailey*fn2 and the U.S. Attorney's office in Chicago that no settlement could be made without Chicago's approval. The court also noted that during subsequent meetings with the DEA and U.S. Attorney's office in Chicago, Nelson never claimed that he had been granted immunity by Miami DEA, but instead began the Chicago negotiations with a request that he not receive any jail time and later even agreed to accept a substantial jail sentence.
In light of these considerations, the district court's finding "that Nelson bargained for and received an agreement by the DEA not for immunity but for a spokesman who would go to the highest levels to make his operation known and to make favorable recommendations concerning what charges, if any, were brought against him" is not clearly erroneous. Finally, because we affirm the district court's finding that Miami DEA did not promise Nelson immunity, there is no need to consider what effect, if any, such an unauthorized promise would have had. See Weiss, 599 F.2d at 735 n. 9.
Nelson also argues that if his immunity position is not accepted, we should enforce the plea agreement "promised" by the U.S. Attorney's office in Chicago. This alternative argument fails for the same reason as the first - no such promise exists. The U.S. Attorney's January 8, 1986, letter upon which Nelson relies is not a plea agreement but only a conditional offer to enter into a written plea agreement. The letter states what provisions the plea agreement "would" include and that "before the government would be willing to enter into the written plea agreement with your client we would require a completely truthful proffer from your client." The letter further states that the "U.S. Attorney will be the sole judge of the sufficiency and truthfulness of [Nelson's] disclosures concerning his assets" and that if he determined that Nelson is "not being totally truthful or cooperative, the proffer will be terminated." The U.S. Attorney subsequently found that Nelson was not being truthful and cooperative but that instead was manipulating his assets to avoid forfeiture. Therefore, a February 25, 1986, letter to Nelson's attorney stated: "This letter is to inform you that it has come to our attention that your client is disposing of and disguising his various ...