The opinion of the court was delivered by: The Honorable Manuel Real United States District Judge
ORDER DENYING DEFENDANT'S MOTION TO COMPEL SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT CONCERNING THE 2005 INDICTMENT (Doc. No. 611) AND FINDINGS THERETO
Having heard from plaintiff, the United States of America, by and through its counsel of record, the United States Attorney for the Central District of California, and defendant JOSE ALFARO, by and through the authorized representative of his counsel of record, James Cooper, at a hearing held before this Court on September 16, 2010, and good cause appearing, the Court hereby FINDS AS FOLLOWS
1. The Court read and considered Jose Alfaro's Motion for Specific Performance of the Plea Agreement (Doc. No. 611), and the government's opposition thereto.
2. The Court, after carefully considering the pleadings, declarations and documents filed by the parties, as well as the argument presented at the hearing, orally denied the defendant's Motion for Specific Performance of the Plea Agreement. This Order will supplement the Court's oral ruling denying the motion. In connection with this Order, the Court makes the following Findings of Fact and Conclusions of Law.
3. On September 16, 2010, this Court held a hearing on the motion. Defendant appeared in person with his counsel of record. After affording the parties opportunity for argument, the Court denied defendant's Motion for Specific Performance of the Plea Agreement.
4. The Court finds that the plea agreement entered into between the government and the defendant in 2005 stipulated that the defendant would not be further prosecuted for violations of Title 21 United States Code §841(a)(1) arising out of the possession of the additional controlled substances seized from the defendant's home on the day of his arrest, September 7, 2005.
5. The Court finds that Alfaro was neither charged with, nor pled guilty to, any conspiracy charges in the prior indictment. Further, the plea agreement specifically stated that the government was free to prosecute defendant for any past unlawful conduct.
6. The Court considered United States v. Persico, 774 F.2d 30 (2nd Cir. 1985) and finds that the government was under no obligation to advise the defendant about an ongoing racketeering investigation. The government was only required to advise the defendant of the direct consequences of a guilty plea to the charges to which he was pleading guilty.
7. The Court considered United States v. Bogart 783 F.2d 1428 (9th Cir. 1986) and finds that to warrant a due process dismissal, the government's conduct must be so grossly shocking and so outrageous as to violate the universal sense of justice.
8. The Court finds that defendant has pointed to no conduct on the part of the government that meets this standard. The Court further finds that disclose of the government's investigation would not only have compromised an ongoing investigation, but also would have serious safety implications for its informants and those involved.
THEREFORE, FOR GOOD CAUSE SHOWN: IT IS HEREBY ORDERED that defendant Jose Alfaro's Motion to Compel Specific Performance of the Plea Agreement is denied.
Presented by: Kevin L. Rosenberg ...