Eighth Circuit Reverses Conviction Based on "No Further Prosecution" Clause: Thomas

United States v. Thomas, No. 21-3690 (8th Cir. 2023)

Facts:  Defendant Signs Plea Agreement with "No Further Prosecution" Clause, is Further Prosecuted

In May 2018, Thomas pled guilty in the Southern District of Iowa to one count of conspiracy to distribute heroin in violation of 21 U.S.C. 841, 846. In exchange for his guilty plea, the government agreed to dismiss the other four counts of the indictment. The plea agreement also contained a “No Further Prosecution” clause which stated:

“The Government agrees that Defendant will not be charged in the Southern District of Iowa with any other federal criminal offense arising from or directly relating to this investigation. This paragraph and this Plea Agreement do not apply to (1) any criminal act occurring after the date of this agreement, (2) any crime of violence, or (3) any criminal offense which Defendant did not fully disclose to law enforcement during Defendant’s interviews pursuant to any proffer or other agreements with the United States. Thomas was sentenced to 48 months imprisonment for the drug conviction.”

In August 2020, Thomas was indicted on seventeen counts related to sex trafficking, facilitating prostitution, and drug offenses. Thomas moved to dismiss the indictment arguing that all counts arose from or directly related to the 2018 investigation and were barred by the previous plea agreement.

The district court entered a preliminary order finding that the language of the plea agreement’s No Further Prosecution clause was ambiguous. It held an evidentiary hearing to admit parol evidence to determine the scope of the clause. The district court determined that the plea agreement’s reference to “this investigation” meant only a separate heroin investigation and that a reasonable person in Thomas’ position would have believed that “this investigation” only referred to information gathered by the government related Thomas’ drug activity. Thomas ultimately pled guilty but reserved the right to appeal the denial of his motion to dismiss. He was sentenced to life imprisonment for each count.

Appeal Holding:  The Facts of this Case Mandate Dismissal of the "Further Prosecution"

On appeal, the Eighth Circuit found that the plea agreement does not expressly define “this investigation,” so the court gave the term its plain language meaning. The court concluded that the investigation referred to in the plea agreement encompassed the intertwined heroin and sex-trafficking conduct leading up to his May 2018 guilty plea. Moreover, the Eighth Circuit found that even if the phrase was ambiguous, the district court was bound to construe the agreement against the government.

The court concluded that all undismissed counts arose from or directly related to the same investigation that led to the heroin charges. The two cases shared prosecutors, officers, witnesses, and subject matter.

In sum, the Eighth Circuit concluded that the 2020 counts were squarely barred by the plea agreement’s broad No Further Prosecution clause. However, the court emphasized that its holding is on the facts specific to this case, and that other plea agreements that employ similar language must be construed according to their respective factual contexts.

Lastly, the court turned to the remedy available when the government breaches a plea agreement. There are typically two potential remedies: specific performance or withdrawal of the guilty plea. The court would ordinarily remand the question of remedy so that the district court could address it in the first instance. However, the court found specific performance warranted here and reversed the denial of the motion to dismiss the indictment.