U.S. Court of Appeals for the Ninth Circuit, 1988

United States v. Todd E. Fisch

U.S. Court of Appeals for the Ninth Circuit · Decided December 21, 1988 · Wright, Norris, Wiggins

863 F.2d 690; 1988 U.S. App. LEXIS 17204; 1988 WL 135647 (Federal Reporter, Second Series)

Counsel

Leon W. Weidman, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee., Fred A. Schwartz, and Alvin E. Entin, Entin, Schwartz, Margules & Schwartz, Miami, Fla., for defendant-appellant.

Cases that cite this one

29 later published cases cite this decision. The 25 that cite it most often are listed here.

United States v. Howard Nelson, Sr., United States of America v. Howard Nelson, Jr. (9th Cir. 1994)
United States v. Tony Jackson (9th Cir. 2022)
United States v. Donovan C. Davis (9th Cir. 1994)
United States v. Ronald J. Dupard (9th Cir. 1994)
United States v. Thomas Lee Myers (9th Cir. 1994)
United States v. Guillermo Guitron-Perez (9th Cir. 1993)
United States v. Jonathan Jay Pollard (D.C. Cir. 1992)
United States v. Sergio Rafael Gonzalez (9th Cir. 1992)
United States v. Eberto Gutierrez (9th Cir. 1992)
United States v. Devon Kauwe (9th Cir. 2019)
United States v. Samuel Camarillo-Tello (9th Cir. 2001)
Deon Gunn v. John Ignacio, Frankie Sue Del Papa (9th Cir. 2001)
United States v. Dennis Guy Clark (9th Cir. 2000)
United States v. Carr (6th Cir. 1999)
United States v. Carr (6th Cir. 1999)
United States v. Gary John William Paulson (9th Cir. 1997)
United States v. Henry E. Singleton (9th Cir. 1995)
United States v. Steven Darrell Diamond (9th Cir. 1995)
United States v. Terrance Tyrell Thomas, United States of America v. Tony Darren Haymond (9th Cir. 1995)
United States v. Derrick Bines, Kenneth Ray Johnson, and Arnold Martin (9th Cir. 1995)
UNITED STATES of America, Plaintiff-Appellee, v. Eugene CAMPER, Defendant-Appellant (9th Cir. 1995)
United States v. Alberto Lopez-Yanez (9th Cir. 1994)
United States v. Terry J. Bender (6th Cir. 1994)
United States v. Larry Gene Eirven (9th Cir. 1993)
United States v. Richard O. Kelly, Sr. (9th Cir. 1993)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

PER CURIAM:

Appellant Todd Fisch (Fisch) appeals the district court’s judgment and sentence following his plea of guilty to charges of fraud and conspiring to defraud the United States. Fisch contends that the government breached their plea agreement. We agree and, accordingly, vacate the sentence and remand to the district court for resen-tencing.

The plea agreement between Fisch and the government obligated the government to inform the sentencing court of all Fisch’s cooperation with authorities. At sentencing, Fisch’s attorney referred generally to several acts of cooperation by Fisch. The prosecutor did not directly respond to this recitation, but acknowledged that Fisch “ha[d] been cooperating in helping prosecute the coconspirators....”

We review de novo Fisch’s claim that the government breached the plea agreement at sentencing. See United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984). The Supreme Court and this court have unequivocally held that prosecuting attorneys must keep promises made in plea agreements. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971); Travis, 735 F.2d at 1132; United States v. Garcia, 519 F.2d 1343, 1345 (9th Cir. 1975). The government argues that this case is similar to United States v. Benchimol, 471 U.S. 453, 105 S.Ct. 2103, 85 L.Ed.2d 462 (1985) (per curiam). The issue here, however, is not whether the prosecutor enthusiastically disclosed Fisch’s cooperation, but whether the prosecutor disclosed all cooperation.

The prosecutor’s bare statement that Fisch had cooperated did not fulfill the government’s obligation under the terms of the plea agreement. The prosecutor did not adopt defense counsel’s recitation of Fisch’s conduct nor did the prosecutor supply any details about Fisch’s cooperation.

“Where the government violates a plea agreement at sentencing, the usual remedy is a remand for resentencing.” Travis, 735 *691 F.2d at 1132. This case does not require a more extraordinary remedy. See United States v. Griffin, 816 F.2d 1, 5 (D.C.Cir. 1987); United States v. Ramos, 810 F.2d 308, 311-13 (1st Cir. 1987); United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979).

We VACATE the sentence imposed by the district court and REMAND for resen-tencing, at which time the government should fulfill its obligation under the plea agreement.

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