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United States v. Keogh

United States District Court, W.D. Oklahoma

August 29, 2019



          TIMOTHY D. DeGIUSTI Chief United States District Judge

         Currently pending before the Court is Plaintiff's Motion to Find Breach of Plea Agreement [Doc. No. 32].[1] The Motion is fully briefed, including authorized reply and surreply briefs. Upon consideration of the preliminary issue of whether Defendant Daniel Webster Keogh breached a plea agreement with the government, the Court finds that an evidentiary hearing is needed to determine whether the plea agreement was knowingly and voluntarily made or, as Mr. Keogh alleges, was coerced by the government.

         Factual Background [2]

         Mr. Keogh executed a plea agreement and a plea petition in August 2017, for a case that was dismissed after he decided not to enter a guilty plea to a charge of making a false statement to a federal agency, the United States Department of Agriculture (USDA). See United States v. Keogh, Case No. CR-17-191-M (W.D. Okla. Aug. 28, 2017). In that case, Mr. Keogh was charged by information with falsely representing in December 2010 that a $3.2 million loan obtained from First Pryority Bank, and guaranteed by the USDA through a rural development program, would be used to purchase machinery and equipment for one of his companies (Triton Scientific, LLC) when in fact he intended to, and did, use the funds for research and development costs incurred by another company (EMB Energy, LLC). Triton stopped making payments on the loan in 2013. The government states that a criminal investigation into Mr. Keogh's conduct began in January 2013, and he was interviewed numerous times beginning in February 2013 while represented by experienced criminal defense counsel. Two of his current attorneys, Clifford Haines and Ed Blau, have represented him since 2015.

         It appears from the motion papers that the government's 2017 plea offer was presented to Mr. Blau in a meeting on July 25, 2017, in the form of the proposed Information and a draft plea agreement with an acceptance deadline of Friday, August 18, 2017. Before and after the deadline, counsel for Mr. Keogh and an attorney representing Mrs. Keogh met with prosecutors to discuss the government's case, and as a result of negotiations, Mr. Keogh's counsel was presented on August 25, 2017, with a revised plea agreement with a deadline the same day.[3] However, plea discussions continued through the weekend among Mr. Keogh, his attorneys, Mrs. Keogh, and their families. Late Sunday evening, August 27, 2017, Mr. Blau delivered the signed plea agreement and an executed plea petition to government counsel, who executed it the next day (August 28, 2017), and filed the Information. In pertinent part, the agreement provided as follows:

         The parties also recognize that if the Court determines defendant has violated any provision of this Agreement or authorizes defendant to withdraw from his knowing and voluntary guilty plea entered pursuant to this Agreement: (a) all written or oral statements made by defendant to the Court or to federal or other designated law enforcement agents, any testimony given by defendant before a grand jury or other tribunal, whether before or after the signing of this Agreement, and any leads from those statements or testimony, shall be admissible in evidence in any criminal proceeding brought against defendant; and (b) defendant shall assert no claim under the United States Constitution, any statute, Federal Rule of Criminal Procedure 11(f), Federal Rule of Evidence 410, or any other federal rule or law that those statements or any leads from those statements should be suppressed. Defendant knowingly and voluntarily waives the rights described in this paragraph as of the time he signs this Agreement.

Gov't Mot. Ex. 1, [Doc. No. 32-1], Plea Agreement ¶ 13 (emphasis added).

         Standard of Decision

         By its Motion, the government seeks a determination that Mr. Keogh breached the plea agreement by refusing to enter a guilty plea in the 2017 case and that his waiver of evidentiary rights in the quoted paragraph is enforceable at a jury trial in this case. In this circuit, a defendant has a right to “a judicial determination, based on adequate evidence, of a defendant's breach of a plea bargaining agreement.” United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981); accord United States v. Cudjoe, 534 F.3d 1349, 1354 (10th Cir. 2008): United States v. Guzman, 318 F.3d 1191, 1196 (10th Cir. 2003). Further, “[i]f the pleadings reveal a factual dispute on the issue of breach, the district court must hold a hearing to resolve the factual issues.” Calabrese, 645 F.2d at 1390; Guzman, 318 F.3d at 1196.

         Mr. Keogh does not disagree with many of the facts on which the government relies, but he resists a finding that he breached the plea agreement on two principle grounds: A) the plea agreement never became binding and enforceable because it was not approved or accepted by the Court; and B) Mr. Keogh did not enter into the plea agreement knowingly or voluntarily.[4]


         The parties fundamentally disagree on whether the plea agreement, and particularly Mr. Keogh's waiver of rights under Rule 410, took effect immediately upon his signing the agreement or whether the waiver was ineffective because the agreement was never accepted by a judge. Although the emphasized portion of the waiver provision (quoted supra) seems to provide an unambiguous answer this question, Mr. Keogh argues that Tenth Circuit law requires a plea agreement (and any written waivers in it) must be approved and accepted by a judge to become binding and enforceable. He primarily relies on two Tenth Circuit opinions, both of which concern a waiver of the defendant's right to appeal: United States v. Novosel, 481 F.3d 1288, 1292 (10th Cir. 2007); and United States v. Nichols, 267 Fed.Appx. 789, 791 (10th Cir. 2008) (unpublished).

         In Novosel, the defendant pled guilty under a plea agreement that was accepted by the district court, but the question was whether it included a waiver of his appellate rights. The written agreement originally did not contain an appeal-waiver provision; the provision was added at the plea hearing after the judge inquired about its absence and the prosecutor represented that the omission was inadvertent. After the waiver provision was added and the judge made sure the defendant understood and agreed to it, the district court accepted the plea agreement. The defendant later attempted to appeal, but the court of appeals found the waiver was enforceable, reasoning that “at the time Novesel accepted the appeal-waiver modification, not only was the plea agreement wholly executory, it was not yet binding because the district court had not yet accepted Novosel's guilty plea.” See Novosel, 481 F.3d at 1291.

         The Tenth Circuit reached this conclusion based on a statement of the law regarding “formation of a ...

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