The opinion of the court was delivered by: JOHN F. GRADY
Oloko was arrested on February 5, 1992, in connection with a Government investigation into a conspiracy to import heroin into the United States from the Philippines. At the time of his arrest, investigators recovered $ 87,118 in small bills from a shoe box found in Oloko's apartment. They also recovered $ 3,490 in small bills from the glove box of Oloko's automobile. These two sums comprise the approximately $ 90,000 in cash that is the subject of this civil forfeiture action. In May 1992, Oloko told the investigators that from May 1991 to January 1992, he engaged in numerous heroin transactions in which he personally received a total of $ 77,000 in cash, mostly in small denominations. Government's Verified Complaint for Forfeiture, Affidavit of Owen J. Putman, P 12. Oloko provided the information pursuant to a proffer agreement, which is at the root of Oloko's motion to exclude from this forfeiture action his statements regarding the $ 77,000.
In return for Oloko's proffered information, the Government extended a sort of use immunity, promising not to use the information in the proffer against Oloko "in the government's case-in-chief, or in aggravation of [Oloko's] sentence," but reserving the right to make derivative or impeachment use of the information if Oloko were to "testify contrary to the substance of the proffer, or otherwise present a position inconsistent with the proffer." Claimant's Memorandum in Support of Motion in Limine, Exhibit A. Ultimately, Oloko pleaded guilty in the criminal case on June 9, 1992, to a charge of conspiring to import heroin into the United States from the Philippines.
In this related but separate civil forfeiture case, Oloko claims legitimate ownership of the $ 90,000, which the Government seeks to have forfeited as drug proceeds under 21 U.S.C. § 881(a)(6). Oloko's motion in limine aims to prevent the Government from using, in the forfeiture action, his statements about having received $ 77,000 in cash related to heroin transactions.
I. Scope of the Proffer Agreement
Oloko essentially asks the court to read the proffer agreement as encompassing not only the criminal proceedings, but this civil forfeiture action as well. In the alternative, Oloko suggests that the proffer agreement was sufficiently ambiguous so that it should be construed against the Government. In any event, he wants the court to enforce the agreement by excluding the proffered information from evidence in the forfeiture. Both Oloko and the Government agree that the proffer agreement's scope should be determined in accord with principles of contract law.
Contractual language that lends itself to one reasonable interpretation is not ambiguous and can be construed as a matter of law. Ooley v. Schwitzer Div. Household Mfg., Inc., 961 F.2d 1293, 1298 (7th Cir.), cert. denied, 121 L. Ed. 2d 148, 113 S. Ct. 208 (1992). In the context of plea agreements in criminal cases, courts generally hold the Government to a strict duty to draft the agreements with care. United States v. Ataya, 864 F.2d 1324, 1330 (7th Cir. 1988). The Government may not rely on courts to salvage a poorly drafted agreement. United States v. Fields, 766 F.2d 1161, 1168 (7th Cir. 1985).
In this case, however, the court has little difficulty determining that the proffer agreement was not ambiguous and that its promise of use immunity did not extend to a civil forfeiture action that would not be filed for more than a year. The agreement, outlined in a March 16, 1992, letter to Oloko's counsel from Assistant United States Attorney Thomas J. Scorza, made no mention whatsoever of the civil forfeiture proceeding, which at that time did not exist. The Government did not file the civil forfeiture action until May 24, 1993. Scorza's letter referred to Oloko's criminal case by name and number. The fact that Scorza mentioned the case name and number in the last paragraph without placing it atop the letter's text does not render the letter ambiguous.
No other promise or agreement exists between you or your client and this office regarding the proffer. Specifically, the government intends to proceed in the prosecution of your client, in United States v. Abiodun Oloko, No. 92 CR 85, and the government makes no promises to your client, Abiodun ...