United States District Court, W.D. Oklahoma
TIMOTHY D. DeGIUSTI Chief United States District Judge
pending before the Court is Plaintiff's Motion to Find
Breach of Plea Agreement [Doc. No. 32]. 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.
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.
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. 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:
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
Gov't Mot. Ex. 1, [Doc. No. 32-1], Plea Agreement ¶
13 (emphasis added).
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.
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
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).
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.
Tenth Circuit reached this conclusion based on a statement of
the law regarding “formation of a ...