UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

AHN, YONG HO


99-3149a

D.C. Cir. 2000


*	*	*


Sentelle, Circuit Judge: Appellant Yong Ho Ahn, a Met- ropolitan Police
officer, pleaded guilty to violating 18 U.S.C.  s 201(c)(1)(B) by
receiving illegal gratuities from massage  parlors that were
flagrantly violating local law. Ahn appeals  from a district court
judgment accepting his guilty plea and  sentencing him to four months
incarceration and two years  supervised release. Appellant contends
that in light of Unit- ed States v. Sun-Diamond Growers, 526 U.S. 398
(1999), the  district court erred in finding that his plea had a
sufficient  factual basis and that he understood the nature of the
charges  against him. Ahn also argues that the Government breached 
its duty of good faith and an implied promise of secrecy by  leaking
information to news media about his arrest, and  submits that the
district court erred in quashing a subpoena  he sought in order to
obtain the confidential sources of the  reporters who broadcast the
story. Finally, Ahn contends  that the Government violated the plea
agreement by making  a witness available at the sentencing hearing and
then ques- tioning the witness, when it had expressly promised not to 
take a position on whether Ahn had obstructed justice.


For reasons more fully set out below, we hold that the  district court
did not err, and affirm Ahn's conviction and  sentence.


I. BACKGROUND


In early September 1997, Lieutenant Yong Ho Ahn, a  fifteen-year
veteran of the Metropolitan Police Department of  Washington, D.C.,
entered a massage parlor and informed a  person associated with the
parlor, a witness cooperating with  the Metropolitan Police Department
("CW-1"), that it "was  not properly licensed." As Ahn knew, the
parlor violated  local law by allowing its female employees to provide
massag- es to male customers, see D.C. Code s 47-2811, and by  serving
as a brothel, where male customers could purchase  sexual acts from
female employees, see id. s 22-2722. On  September 3, 1997, CW-1 gave
Lieutenant Ahn a controlled 


payment of $1,000. Within the following three months, CW-1  gave Ahn
two additional payments--one for $500 and another  for $1,500.


In early December 1997, Ahn visited a second massage  parlor, which
also allowed female employees to provide mas- sages and sexual acts to
male customers. At that parlor,  Lieutenant Ahn informed another
cooperating witness ("CW- 2") that the massage parlor "was not
properly licensed." On  December 23, 1997, CW-2 made a controlled
payment of  $3,000 to Ahn. The following month, Ahn received another 
controlled payment of $2,000 from CW-2.


On February 10, 1998, Lieutenant Ahn was arrested on a  warrant
charging him with receiving a bribe in violation of 18  U.S.C. s
201(b)(2)(C). After a failed plea attempt and a  series of
negotiations, he agreed to plead guilty to receiving  an illegal
gratuity under 18 U.S.C. s 201(c)(1)(B). As part of  his plea
agreement, Ahn agreed to cooperate with the Gov- ernment "whenever,
wherever, and in whatever form" it  deemed appropriate. In exchange,
the Government agreed to  inform the court of Ahn's cooperation and to
abstain from  taking a position at sentencing concerning whether Ahn


On April 28, 1998, while the case was under seal and Ahn  was secretly
assisting the Government in a sting operation  attempting to catch
then-Mayor Marion Barry accepting a  bribe, two televised news reports
described Ahn's arrest.  The sting, set for the following day, was
quickly aborted. In  light of the publicity surrounding his case, Ahn
filed a motion  to withdraw his plea, contending that by leaking
information  about his case the Government had breached its implied 
promise to maintain the secrecy of his cooperation. The  district
court denied Ahn's motion, finding that the plea  agreement contained
no enforceable promise of secrecy and  that, even if there had been
such a promise, Ahn failed to  carry his burden of proving that the
Government breached it.


After the plea hearing, but before sentencing, the Supreme  Court
decided United States v. Sun-Diamond Growers, 526  U.S. 398 (1999),
which interpreted the illegal gratuity statute. 


In light of the Court's interpretation, Ahn filed a second  motion to
withdraw his plea, this time arguing that the  Government's factual
proffer was insufficient to establish his  guilt. Again, the district
court denied his motion.


At Ahn's sentencing hearing, the district court considered  allegations
included in the presentence report that Ahn asked  CW-1 to tell the
FBI that the money he had taken had been  returned. This allegation
raised questions about whether  Ahn's sentence should be enhanced for
obstructing justice.  At the hearing, the Government made a witness
available to  testify about the facts underlying the allegation. Then,
at the  court's direction, the Government questioned the witness.  Ahn
objected based on the Government's promise not to take  a position on
whether he had obstructed justice, but the court  overruled him.
Ultimately, after finding that Ahn had ob- structed justice and
granting Ahn a downward departure for  his substantial assistance, the
court sentenced Ahn to four  months incarceration and two years of
supervised release and  imposed a special assessment of $100.


On appeal, Ahn contends that: (1) his guilty plea was taken  in
violation of Rule 11 of the Federal Rules of Criminal  Procedure; (2)
the district court erred in finding that his plea  agreement did not
contain an implicit promise of secrecy and  that the Government did
not breach its duty of good faith; (3)  the district court improperly
granted the two television re- porters' motion to quash Ahn's
subpoena; and (4) the Govern- ment breached the plea agreement by
taking a position in  favor of a sentence enhancement for Ahn's
obstructing jus- tice. We address each of these issues in turn.


II. ANALYSIS


A. The Sun-Diamond Decision


A district court "may" grant a defendant's motion to with- draw a
guilty plea "if the defendant shows any fair and just  reason." Fed.
R. Crim. P. 32(e). Although presentence  withdrawal motions should be
"liberally granted," they are  "not granted as a matter of right."
United States v. Ford, 


993 F.2d 249, 251 (D.C. Cir. 1993); United States v. Lough- ery, 908
F.2d 1014, 1017 (D.C. Cir. 1990).


On appeal, a district court's denial of a motion to withdraw  will be
vacated only if "the defendant can show an abuse of  discretion."
Ford, 993 F.2d at 251. In determining whether  the trial court abused
its discretion, this Court considers  three factors: (1) whether the
defendant "asserted a viable  claim of innocence"; (2) whether the
delay between the plea  and the motion to withdraw "substantially
prejudiced the  Government's ability to prosecute the case"; and (3)
"whether  the guilty plea was somehow tainted." Id. (internal quotes 
omitted). Because Ahn does not claim to be innocent and the 
Government has not argued that the delay would prejudice its  ability
to prosecute Ahn, we focus our attention on the third  factor.


If a guilty plea is tainted--that is, if it is " 'entered uncon-
stitutionally or contrary to Rule 11 procedures' "--a court's 
assessment of a motion to withdraw the plea is " 'very le- nient.' "
Id. (quoting United States v. Barker, 514 F.2d 208,  221 (D.C. Cir.
1975) (en banc)). If the plea colloquy was not  conducted in
"substantial compliance" with Rule 11, then the  defendant should "
'almost always' be permitted to withdraw  his plea." Id. (quoting
United States v. Abreu, 964 F.2d 16,  18 (D.C. Cir. 1992) (per


Ahn claims that his plea was tainted in two respects.  First, he argues
that the Government's proffer provided an  insufficient factual basis
for the illegal gratuity charge. Sec- ond, he contends that his plea
was involuntary because he  lacked an understanding of the nature of
the charge against  him. We reject both claims.


Each of Ahn's claims hinges on the meaning of the illegal  gratuity
statute. The statute makes it a crime for a public  official to
receive or accept "anything of value personally for  or because of any
official act performed or to be performed  by such official...." 18
U.S.C. s 201(c)(1)(B). An official  act is defined as "any decision or
action on any ... matter  ... which may at any time be pending ... in
such official's 


official capacity, or in such official's place of trust...." Id.  s
201(a)(3).


Shortly after Ahn pleaded guilty, the Supreme Court decid- ed United
States v. Sun-Diamond Growers, 526 U.S. 398  (1999), which interpreted
the illegal gratuity statute's "for or  because of any official act"
language. The Sun-Diamond  Court held that an illegal gratuity could
not be proved by  merely demonstrating that a thing of value "was
given be- cause of the recipient's official position." Id. at 400.
Rather,  the Government must establish a link between the gratuity 
and "a specific 'official act' for or because of which it was  given."
Id. at 414; accord United States v. Schaffer, 183  F.3d 833, 844 (D.C.
Cir. 1999). In other words, a violation  requires that "some
particular official act be identified and  proved." Sun-Diamond, 526
U.S. at 406. Following Sun- Diamond, this Court held that an illegal
gratuity "can take  one of three forms": (1) a reward for past action,
(2) an  enticement to maintain a position already taken, or (3) an 
inducement to take or refrain from some future official action. 
Schaffer, 183 F.3d at 841-42.


1. Sufficiency of the Factual Proffer


Ahn argues that the Government failed to proffer any facts  that would
demonstrate a link between the payments he  received and any official
act. He suggests that, instead, the  Government's proffer only
establishes that the massage par- lors paid him solely because of his
position as a police  lieutenant.


According to Rule 11, when considering a plea, the trial  court must
"mak[e] such inquiry as shall satisfy it that there  is a factual
basis for the plea." Fed. R. Crim. P. 11(f). To  establish a
satisfactory factual basis, the Government must  proffer " 'evidence
from which a reasonable juror could con- clude that the defendant was
guilty as charged.' " In re  Sealed Case, 153 F.3d 759, 771 (D.C. Cir.
1998) (quoting Ford,  993 F.2d at 253). Accordingly, the trial court
may draw  reasonable inferences from the facts proffered by the


ment. See United States v. Graves, 106 F.3d 342, 345 (10th  Cir.
1997).


The Government's factual proffer established that Ahn  went to the
massage parlors to tell the cooperating witnesses  that their parlors
were not properly licensed. As a police  officer, Lieutenant Ahn had a
duty to report the licensing  violations and to take "such immediate
and proper police  action as the circumstances may demand."
Metropolitan  Police Dep't Gen. Order 401.4, Part I, s D(2). The
proffer  explicitly described how Ahn accepted payments from two 
cooperating witnesses "associated with The Spa[s]" rather  than
reporting the violations. The proffer expressly defined  "The Spa[s]"
as "business[es] whereby male customers pur- chase massages from
female spa workers ... [and] may also  purchase sexual acts." In the
proffer, the Government identi- fied five different payments from the
cooperating witnesses,  who were, as the proffer makes clear,
associated with "The  Spa[s]," which by the proffer's own unambiguous
definition  were engaged in illegal activity. Consequently, the only 
conclusion that can be drawn from the proffer is that while 
Lieutenant Ahn received payments from the cooperating wit- nesses, the
massage parlors continued to engage in illegal  conduct and Ahn failed
to take any "immediate and proper  police action."


Although Appellant is correct that the proffer does not  explicitly
state a link between the payments and an official  act, it does
provide sufficient " 'evidence from which a reason- able juror could
conclude that the defendant was guilty as  charged.' " In re Sealed
Case, 153 F.3d at 771 (emphasis  added) (quoting Ford, 993 F.2d at
253). A reasonable juror  could interpret the facts proffered by the
Government as  demonstrating that the cooperating witnesses paid Ahn
as a  reward for his not reporting the parlors' violations when he 
first notified them that they were not properly licensed, as an 
enticement to continue failing to report them, and as an  inducement
for not reporting them in the future. Under all  of these reasonable
inferences, the Government has proffered  a sufficient factual basis
to establish the link between the  payments and an identified official
act, or in Lieutenant Ahn's 


case, an official failure to act. See Sun-Diamond, 526 U.S. at  414;
Schaffer, 183 F.3d at 841-42.


We find instructive our recent decision in In re Sealed  Case, 153 F.3d
759 (D.C. Cir. 1998). In that case, the  defendant pleaded guilty to
violating 18 U.S.C. s 924(c)(1),  which establishes minimum sentences
for anyone who "uses  or carries a firearm" during or in relation to a
drug traffick- ing crime. Before the defendant was sentenced, however,
the  Supreme Court held that to establish the "use" of a firearm  the
Government must prove that it was actively employed.  See Bailey v.
United States, 516 U.S. 137, 144 (1995). The  Sealed Case defendant
sought to withdraw his plea based on  this holding, arguing that the
Government's proffer had not  established that he had used or carried
a weapon. Neverthe- less, the proffer did demonstrate that when police
officers  told the defendant to show his hands, he moved them "away 
from his body and toward the corner," where the police found  a gun
moments later. In re Sealed Case, 153 F.3d at 772.  We held that those
facts were sufficient for a reasonable juror  to find that the
defendant had tossed away the gun and  therefore was guilty of
"carrying." See id. Likewise, in  Ahn's case, the Government did not
explicitly state that Ahn  received the payments for or because of an
official act, but  the facts it proffered were sufficient for a
reasonable juror to  infer such a link.


In contrast, in cases in which courts have held that there  was an
insufficient factual basis for a defendant's plea, the  government has
offered no evidence to support an element of  the charge. For example,
the defendant in United States v.  Ford pleaded guilty to possessing a
weapon while under  indictment for a felony, see 18 U.S.C. s 922(n),
and the  government "omitted the fact that a gun was recovered from 
[the defendant's] bedroom"--the key fact necessary to estab- lish that
he possessed a gun. Ford, 993 F.2d at 253.


Similarly, in United States v. Sawyer, 74 F. Supp. 2d 88 (D.  Mass.
1999), on which Appellant relies, the government's  proffer was
insufficient to establish a factual basis for a  violation of a
Massachusetts illegal gratuity statute similar to 


the one at issue here.1 In Sawyer, the government only  demonstrated
that the defendant gave "free golf and other  entertainment to
Massachusetts legislators." Id. at 93 n.6.  The court properly ruled
that the government failed to allege  any link between the
entertainment and an "identifiable,  specific, official act." Id. at
103. More significantly, howev- er, the government failed to identify
any official act, instead  wholly relying on the fact that gifts were
given to state  legislators.


Ahn argues that in his case, as in Sawyer, the Government  believed
that it could prosecute him based solely on his status  as a police
officer. Even if Ahn is correct, this belief is not  fatal because the
Government here, unlike the prosecution in  Sawyer, proffered
sufficient evidence linking the payments  Ahn received to an official
act. The record reveals that the  district court substantially
complied with the dictates of Rule  11(f), that the factual proffer
provided sufficient evidence to  establish a violation of the illegal
gratuity statute, and, there- fore, that the court did not abuse its
discretion in denying  Ahn's motion to withdraw his guilty plea.


2. Voluntariness of the Plea


Ahn next contends that his plea was involuntary because he  did not
understand the nature of the charge against him. He  suggests that, at
the time of his plea, he understood that he  was being charged with
accepting payments because of his  position as a police officer, not,
as Sun-Diamond later re- quired, because of any official act.




__________

n 1 In Sawyer, the defendant pleaded to guilty to mail fraud in 
violation of 18 U.S.C. ss 1341, 1346. See Sawyer, 74 F. Supp. 2d at 
92 & n.5. To establish federal mail fraud as alleged in that case, 
the prosecution was required to prove that the defendant used the 
postal system to violate Massachusetts law. The prosecution stated 
that the defendant had violated the state's illegal gratuity statute, 
which, like the federal statute, prohibits people from giving a public
 official--and a public official from receiving--anything of substan-
tial value "for or because of any official act performed or to be 
performed." Mass. Gen. Laws ch. 268A, s 3.


Before accepting a guilty plea, the trial court must engage  in a
colloquy with the defendant to determine that he under- stands "the
nature of the charge to which the plea is offered,"  Fed. R. Crim. P.
11(c)(1), and, therefore, that it is voluntary,  see id. 11(d). For a
plea to be voluntary under the Constitu- tion, a defendant must
receive " 'real notice of the true nature  of the charge against him.'
" United States v. Dewalt, 92  F.3d 1209, 1211 (D.C. Cir. 1996)
(quoting Henderson v. Mor- gan, 426 U.S. 637, 645 (1976) (internal
quotes omitted)). Real  notice is that which is "sufficient to give
the defendant 'an  understanding of the law in relation to the facts'
of his case."  Id. at 1212 (quoting McCarthy v. United States, 394
U.S. 459,  466 (1969)). In assessing whether the defendant has such an
 understanding, the record of the plea colloquy must, based on  the
totality of the circumstances, " 'lead a reasonable person  to believe
that the defendant understood the nature of the  charge.' " Id.
(quoting United States v. Frye, 738 F.2d 196,  201 (7th Cir. 1984),
and citing United States v. Musa, 946 F.2d  1297, 1304 (7th Cir.
1991)); see also Roberson v. United  States, 901 F.2d 1475, 1477 (8th
Cir. 1990) (explaining that a  defendant is "entitled to relief if the
totality of the circum- stances indicates that he did not understand
the nature of the  charges to which he entered a plea of guilty").


Ahn's contention rests solely on the following statements  made by the
Government during the plea hearing:


I would further proffer to the Court that [defense coun- sel] and I
have had a number of discussions about the  illegal gratuity and
bribery statute. And we have dis- cussed that under certain
interpretations, it is unneces- sary to show the payments were
earmarked for a partic- ular purpose, but rather payments can be made
to an  individual because of his capacity or his particular status 
within the Government.... Certainly in this case the  Government has
discussed with counsel is not charging  Mr. Ahn with a quid pro quo,
but rather more of a theory  of his job.


Transcript of Plea Hearing, Mar. 11, 1998, at 26. Appellant  argues
that these statements suggest that Ahn understood 


that the Government only needed to prove that he accepted  payments as
a public official. When viewed in isolation, his  argument seems
colorable. But when considered in light of  the record of the plea
hearing as a whole, it falls short.


Initially, in considering the Government's statement itself,  it
appears possible that the prosecutor and defense counsel  agreed that
the Government only needed to establish that  Ahn received payments as
a police officer. Yet, even the  Government's statement is
inconclusive. In the first part of  its statement, the prosecution
only said that "under certain  interpretations" the Government did not
need "to show the  payments were earmarked for a particular purpose."
It  never said that in this case the Government need not show  such a
purpose. In fact, as explained above, the Government  proffered
sufficient facts to reasonably demonstrate a particu- lar
purpose--that Ahn did nothing about the massage parlors'  flagrant


The second half of the prosecution's statement is equally 
inconclusive. The Government correctly points out that it  was "not
charging Mr. Ahn with a quid pro quo"--if it had  been, then it would
have been charging him under the bribery  statute, a charge to which
Ahn already refused to plea guilty.  Cf. Sun-Diamond, 526 U.S. at 405
(explaining that, in con- trast with an illegal gratuity, "only a
bribe requires proof of a  quid pro quo"); Schaffer, 183 F.3d at 841
(noting that the  bribery and illegal gratuity statutes differ because
"bribery  requires a quid pro quo"); United States v. Tomblin, 46 F.3d
 1369, 1379 (5th Cir. 1995) ("Under the bribery statutes, the 
government must prove a quid pro quo."). Although it is  plausible to
read the "theory of the job" statement to mean  that the Government
was charging Ahn with receiving a  payment because of his position,
such a reading ignores the  contrast the prosecution seemed to be
drawing between "the  illegal gratuity and bribe statute." In context,
a reasonable  person could have understood that the prosecution's
reference  to a "theory of the job" meant that the Government was 
charging Ahn for receiving payments that were linked to his  failure
to uphold the duties of his job--that is, his failure to  report the


The critical inquiry is whether Ahn understood the nature  of the
charges against him. The record of the plea hearing  reveals that a
reasonable person would have believed that he  did. Throughout the
hearing, the court asked Ahn a series of  questions focused on the
nature of the crime. Significantly,  at no point during this colloquy
did the court or Ahn state  that he was being charged merely for
receiving payments  because he was a police officer.


First, the district court asked whether Ahn "did either  seek, or
receive, or accept, or agree to receive something of  value from two
witnesses, who are cooperating with the  Government ... because of
formal official acts performed by  you." Transcript of Plea Hearing,
Mar. 11, 1998, at 14  (emphasis added). Moments later, after giving
Ahn a chance  to compose himself, the Judge again asked if he
"understood  the nature of the charge against [him], ... the receipt
of  illegal gratuities, something of value to perform an official  act
or not." Id. at 15 (emphasis added). Ahn responded, "I  understand,


Later in the colloquy, the Judge asked Ahn, "[Y]ou are  charged ...
with receipt of illegal gratuities in that either you  received
directly or indirectly or demanded and/or agreed to  receive, accept
cash from two individuals because of official  acts to be performed or
not performed by you; is that true,  sir?" Id. at 23 (emphasis added).
Ahn answered, "Yes, Your  Honor." Id. at 24.


In each of these exchanges, the court spoke about Ahn's  receiving
payments for performing official acts, not for being  a public actor,
and in each exchange, Ahn replied that he  understood. Based on this
colloquy, a reasonable person  could believe that Ahn understood the
relationship between  the law and the facts.


Cases in this Circuit that have held that a defendant did  not
understand the nature of the charges to which he pleaded  guilty were
based on substantially more compelling circum- stances than the
instant case. In Ford, the district court did  not "elaborate the
charges beyond" asking the defendant  whether he had seen and read the
indictment, discussed it 


with his attorney, and understood it. Ford, 993 F.2d at 253.  In
addition, the court referred to the wrong charge twice and  neglected
to "inform[ ] the defendant of the material details of  the charges
against him." Id. at 254. In United States v.  Dewalt, 92 F.3d 1209,
1212 (D.C. Cir. 1996), the court never  mentioned that the defendant
was pleading guilty to a charge  concerning possession of a weapon.
Furthermore, the court  only asked whether the defendant had received
a copy of and  understood the indictment, not even asking whether he
had  read it. See id.; see also Henderson v. Morgan, 426 U.S.  637,
642-43, 647 (1976) (holding that defendant's plea to  second degree
murder charges was involuntary when he was  a nineteen-year-old man
with "substantially below average  intelligence," the trial court had
not discussed the elements of  the crime, and the trial court had made
no reference to the  requirement that the defendant must have intended
to cause  the victim's death).


In light of the record before us, it reasonably appears that  Ahn
understood the nature of the charges against him and  therefore that
his plea was voluntary. Accordingly, we hold  that the trial court did
not abuse its discretion in denying  Ahn's motion to withdraw his


B. The Publicity of Ahn's Case


After two television stations broadcast reports detailing  Ahn's
arrest, Ahn moved to withdraw his plea, claiming that  the Government
had breached the plea agreement by leaking  information to the
reporters. The district court denied this  motion, ruling that Ahn had
not proved the Government  expressly or impliedly had promised to keep
Ahn's coopera- tion secret, that Ahn failed to establish that the
Government  had leaked the information, and that any harm to Ahn was 
speculative. Ahn appeals from this denial.


We review a district court's factual determinations concern- ing a plea
agreement, including its determination of whether  a breach occurred,
for clear error. See United States v.  Pollard, 959 F.2d 1011, 1023-24
(D.C. Cir. 1992). In consid- ering whether a plea agreement has been
breached, we look 


to principles of contract law. See United States v. Jones, 58  F.3d
688, 691 (D.C. Cir. 1995). "Although reducing an agree- ment to a
writing which in view of its completeness and  specificity reasonably
appears to be a complete agreement  creates a presumption that the
agreement is integrated, the  ultimate determination of integration is
a question of fact to  be determined in accordance with all relevant
evidence."  Bowden v. United States, 106 F.3d 433, 439-40 (D.C. Cir. 
1997) (cites and internal quotes omitted). Likewise, as in all 
contracts, plea agreements are accompanied by "an implied  obligation
of good faith and fair dealing." Jones, 58 F.3d at  692. In the
context of plea agreements, the defendant main- tains the burden of
proving that the agreement has been  breached. See United States v.
Kilroy, 27 F.3d 679, 684  (D.C. Cir. 1994).


On appeal, Ahn argues that his plea agreement included an  implied
promise by the Government that it would maintain  the secrecy of his
arrest. According to Ahn, the Government  breached this promise by
leaking the circumstances of his  arrest and plea to two television
reporters. Ahn also alleges  that the Government violated its duty of
good faith through  the leak.


It is clear from the record that Ahn desired to keep his  plea and
cooperation secret in order to shield himself, his  family, and the
Korean community. The Government's desire  for secrecy is equally
clear--secrecy was imperative for suc- cessfully executing the sting
on then-Mayor Marion Barry.  Nevertheless, as the district court
found, these desires do not  constitute implied promises.


Ahn acknowledges that a promise of secrecy was not  expressed in the
plea agreement. The agreement did, howev- er, include an integration
clause, which specifically stated that  no other agreements or
promises existed between the parties.  Standing alone, such a clause
would be strong evidence that  no implied promises existed--after all,
integration clauses  "establish that the written plea bargain was
'adopted by the  parties as a complete and exclusive statement of the
terms of  the agreement.' " United States v. Fentress, 792 F.2d 461,


464 (4th Cir. 1986) (quoting Restatement (Second) of Con- tracts s 210
(1981)); accord United States v. Hunt, 205 F.3d  931, 935 (6th Cir.
2000) (holding that a merger clause "normal- ly prevents a criminal
defendant, who has entered into a plea  agreement, from asserting that
the government made oral  promises to him not contained in the plea
agreement itself");  United States v. Alegria, 192 F.3d 179, 185 (1st
Cir. 1999)  ("Where, as here, an unambiguous plea agreement contains 
an unqualified integration clause, it normally should be en- forced
according to its tenor."); United States v. Doyle, 981  F.2d 591, 594
n.3 (1st Cir. 1992) (explaining that this rule "has  particular
applicability when, as in this case, the plea agree- ment itself
specifically states that 'there are no further or  other agreements,
either express or implied,' other than those  explicitly set forth in


But the integration clause does not stand alone; there is  substantial
evidence that the agreement did not contain an  implied promise of
secrecy, the most damning of which comes  from the Appellant himself.
In accepting the agreement, Ahn  "reaffirm[ed] that absolutely no
promises ... have been made  or entered into in connection with my
decision to plead guilty  except those set forth in this plea
agreement." At the plea  hearing, Ahn again recognized that no promise
had induced  him to plead guilty other than those promises made in the
 plea agreement. See Transcript of Plea, Mar. 11, 1998, at 22.


As a veteran of the police force represented by experienced  defense
counsel, Appellant was aware that he could have  bargained for
specific terms in the plea agreement. Yet he  knew that secrecy was
not an explicit term. In fact, he  agreed to a merger clause stating
that there were no other  promises made. During the hearing on the
withdrawal mo- tion, there was no testimony from the law enforcement
offi- cers who investigated Ahn's crime that the Government  would--or
could--guarantee secrecy to him. See, e.g., Tran- script of
Proceedings on Defendant's Motion to Withdraw  Guilty Plea, Oct. 6,
1998, at 110. Likewise, the FBI transla- tor who spoke to Ahn when he
was arrested did not know of  any such promise. See Transcript of
Proceedings on Defen- dant's Motion to Withdraw Guilty Plea, Oct. 8,


Based on this record, the district court found that the  Government had
not impliedly promised Ahn that it would  guarantee his cooperation
would be kept secret. Because the  defendant failed to carry his
burden of proof, these findings  were not in clear error. Certainly,
"when a plea rests in any  significant degree on a promise or
agreement of the prosecu- tor, so that it can be said to be part of
the inducement or  consideration, such promise must be fulfilled."
Santobello v.  New York, 404 U.S. 257, 262 (1971). Yet, "[w]hile the
govern- ment must be held to the promises it made, it will not be 
bound to those it did not make. To do otherwise is to strip  the
bargaining process itself of meaning and content." Fen- tress, 792


The district court likewise did not plainly err in finding that  Ahn
failed to carry his burden of proving that the Govern- ment caused the
leak and consequently breached its obli- gation of good faith. All of
the agents who had access to the  information testified under oath or
by affidavit that they did  not divulge anything about Ahn's case to
the media. Ahn  failed to present a single witness or any evidence to
contra- dict the agents' sworn statements. As the district court 
noted, numerous people outside the prosecution team could  have given
the information to the television reporters, from  police officers in
Ahn's district who knew about the massage  parlor investigation, to
massage parlor operators who "knew  about Mr. Ahn," Transcript of
Proceedings on Defendant's  Motion to Withdraw Guilty Plea, Oct. 6,
1998, at 124, to court  personnel who had access to information about


Ahn contends that only one way exists for him to prove  that the
Government caused the leak and thereby breached  its duty of good
faith: by subpoenaing the reporters to reveal  their sources. When Ahn
sought to subpoena the reporters,  they filed a motion to quash
arguing that reporters possess a  qualified privilege not to disclose
confidential sources. Cf.  Branzburg v. Hayes, 408 U.S. 665 (1972)
(addressing whether  requiring reporters to testify before grand
juries concerning  their confidential sources' criminal conduct
violates the First  Amendment). The district court found that the
reporters'  testimony was not "essential and crucial" to Ahn's case


was not relevant to determining Ahn's guilt or innocence.  Therefore,
the court concluded that Ahn had not demonstrat- ed that the
reporters' qualified privilege should be overcome.  In granting the
motion to quash, the district court did not  focus on the government's
duty of good faith, yet it was  plainly aware of that duty. Because we
agree that Ahn failed  to carry his burden, we hold that the district
court did not  make an error of law or abuse its discretion in
granting the  reporters' motion.


C. The Sentencing Hearing


Ahn's final contention stems from his sentencing hearing,  during
which, he argues, the Government breached its plea  agreement.
According to the presentence report, Ahn ap- proached CW-1 and asked
her to tell the FBI that Ahn had  returned the payments he had
received. As a result, Ahn  faced the possibility of having his
sentence enhanced for  obstructing justice. See United States
Sentencing Guide- lines s 3(c)1.1.


In the plea agreement, the Government had promised Ahn  that it would
not take a position on whether he should receive  an obstruction
enhancement. At the sentencing hearing,  Appellant's counsel pointed
to this provision of the agree- ment, suggesting that the court would
have no evidence on  which to base such an enhancement. The Government
re- sponded by informing the court that it could "make a case  agent
available to the Court should the Court want to hear  that agent"
testify. The court assented, stating that it want- ed to "hear from
the agent." The Government then asked,  "Does the Court wish the
prosecutor to inquire?" The court  did, so the Government questioned
the agent about the  allegations in the presentence report.


Appellant now argues that the Government breached the  plea agreement
by taking a position on the obstruction en- hancement. According to
Ahn, the Government, while not  explicitly advocating an enhancement,
effectively took a posi- tion by not only questioning the agent, but
"rehearsing" that 


testimony before the hearing. This argument is unpersua- sive.


Determining whether a plea agreement was breached  "presents a mixed
question of law and fact in which the  factual aspects usually
predominate." Pollard, 959 F.2d at  1023. Accordingly, we review the
district court's legal conclu- sions de novo and its factual findings
for clear error. See id.  Of course, the district court is "in the
best position to  determine whether the government presented an
argument  that, perhaps subtly, exceeded the bounds of the agreement."
 Id. Therefore, in cases such as the one before us we employ  a more
deferential standard of review.


At Ahn's sentencing hearing, the Government had a duty to  provide
relevant information about whether Ahn obstructed  justice, even
though it had agreed not to take a stand on  whether he should receive
a sentence enhancement. See  United States v. Mata-Grullon, 887 F.2d
23, 24 (1st Cir. 1989)  (per curiam) ("[T]he government must bring all
relevant facts  to the judge's attention."); United States v. Perrera,
842 F.2d  73, 75 (4th Cir. 1988) (explaining that the Government has
"a  duty to bring all relevant information ... to the court's 
attention at the time of sentencing"). Under the circum- stances, we
hold the Government acted appropriately in in- forming the court that
a witness was available to recount the  facts underlying the
presentence report. Cf. United States v.  Griffin, 816 F.2d 1 (D.C.


Furthermore, the prosecution did not violate the plea  agreement by
questioning the witness as instructed by the  court. Cf. United States
v. Goodman, 165 F.3d 169, 173 (2d  Cir. 1999). The court specifically
directed the Government to  "just ask [the witness] the basic
questions." By limiting its  questions to factual material, the
Government merely facili- tated the agent's providing the court with
relevant back- ground on whether Ahn obstructed justice. As the court 
explained at the sentencing hearing, the prosecution's ques- tioning
simply allowed the court "to find out what happened."


The court undoubtedly understood the nature and purpose  of this
questioning. Throughout the hearing, it repeatedly 


recognized that the Government was taking no position on the 
obstruction enhancement. See, e.g., Transcript of Sentencing,  Nov.
16, 1999, Record Material for Appellee at 7 (recognizing  that the
Government "agreed not to take a position"); id. at  12 ("The
Government takes no position."); id. at 13 ("[Y]ou're  [i.e., the
Government] not taking a position."). Additionally,  the court
unambiguously declared that whether Ahn's sen- tence would be enhanced
was "strictly up to the Court to  decide." Id. at 12; see also id. at
19 (explaining that the  court would "make an independent judgment" on
the en- hancement). Like the trial court in United States v. Griffin, 
"the District Court was clearly informed of the terms of the  plea
agreement and of what the government's recommenda- tion on penalty was
to be." Griffin, 816 F.2d at 7. Accord- ingly, the court did not
clearly err in allowing the Govern- ment to make a witness available
to recount the facts of Ahn's  obstruction, and the Government did not
breach the plea  agreement by questioning that witness.


III. CONCLUSION


For the reasons stated above, the district court's judgment  is


Affirmed.