United States v. Jidoefor

97 F.4th 1144

UNITED STATES of America, Plaintiff - Appellee v. Okwuchukwu JIDOEFOR, Defendant - Appellant

No. 22-3235

No. 22-3244

No. 22-3601

United States Court of Appeals, Eighth Circuit

Submitted: October 17, 2023

Filed: April 10, 2024

Appeals from United States District Court for the District of Minnesota

Counsel who presented argument on behalf of the appellant and appeared on the brief was Jordan S. Kushner, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Nathan Hoye Nelson, AUSA, of Minneapolis, MN.

Before SMITH, Chief Judge,¹ LOKEN and COLLOTON,² Circuit Judges.

LOKEN, Circuit Judge

Okwuchukwu Jidoefor, a Nigerian citizen, pleaded guilty to mail fraud in violation of 18 U.S.C. § 1341. In a paragraph of the written plea agreement entitled Collateral Consequences, the U.S. Attorney's Office for the District of Minnesota agreed "to send a letter to the immigration authorities outlining [Jidoefor's] cooperation in prior cases" and to file a copy of the letter under seal at the change-of-plea hearing. The district court accepted the plea. After the sentencing hearing, the lead Assistant U.S. Attorney (AUSA) sent a letter to U.S. immigration authorities detailing Jidoefor's past cooperation with law enforcement, as the plea agreement required (the October 13 letter). After the AUSA retired, an internal mistake in the U.S. Attorney's Office resulted in the U.S. Attorney for the District of Minnesota sending a second letter stating the first letter was not the Office's official position. The mistake was soon discovered, and the U.S. Attorney sent a third letter retracting the second letter and reaffirming the October 13 letter.

Jidoefor moved to remedy the government's breach of the plea agreement. The government admitted the second letter was a breach. The district court³ denied the motion, finding the government's third letter was an adequate remedy. Jidoefor appeals, arguing the district court erred in not providing a remedy. He separately appeals the district court's sentence and its order for restitution. We consolidated the three appeals and will discuss them separately in this opinion as they turn on different facts and legal issues. We affirm.

I. The Breach of Plea Agreement Issue.

In 2012, Jidoefor was convicted of bank fraud for his role in a multi-million dollar scheme. He cooperated with the government's prosecution of several other participants and was sentenced to time served. In August 2017, while serving his five-year term of supervised release for that conviction, Jidoefor was again indicted for fraud in the District of Minnesota. Two counts of a twelve-count superseding indictment against Jidoefor and five others charged him with conspiracy to commit mail and wire fraud and a substantive count of mail fraud. The indictment included forfeiture allegations.

After indictment, Jidoefor failed to appear and a bench warrant issued for his arrest. He was apprehended in New Jersey in June 2020, living under an alias. Back in Minnesota, he rejected multiple plea offers by the prosecution that did not include a government promise to send a letter to immigration authorities that he considered "central" to his efforts to prevent removal.⁴ At a June 14, 2022 pretrial hearing, the government agreed to write a letter; Jidoefor agreed to plead guilty to the substantive fraud charge and to violating a condition of supervised release; the government agreed to dismiss the conspiracy charge; and the parties agreed to recommend a sentence of time served for both the mail fraud offense and the violation of supervised release. At that hearing, the district court made sure Jidoefor understood that the U.S. Attorney cannot tell immigration authorities what to do, as the plea agreement expressly stated. A copy of the promised letter was filed with the court.

The district court held an evidentiary sentencing hearing on October 13, 2022. At its conclusion, the court imposed concurrent prison sentences of time served (27 months) on both counts, with no supervised release to follow, and ordered Jidoefor to pay mandatory restitution of $22,028.02 based on the total loss to a fraud victim, Nationwide Insurance Company (Nationwide). Later that day, AUSA David MacLaughlin -- the lead prosecutor -- sent the agreed October 13 letter to immigration authorities detailing Jidoefor's past cooperation with law enforcement and stating that his "fear of retribution in the event of his removal to Nigeria is not objectively unreasonable." The letter did not state that it was sent pursuant to a plea agreement. Two weeks later, AUSA MacLaughlin retired.

After sentencing, Jidoefor was transferred to the custody of Immigration and Customs Enforcement (ICE), a division of the Department of Homeland Security (DHS), pending removal proceedings. In mid-November, ICE denied Jidoefor's application to stay those proceedings. He filed motions to stay removal and reopen the removal proceedings with the Board of Immigration Appeals (BIA). Meanwhile, DHS's Civil Division chief in Minnesota contacted the U.S. Attorney's Office regarding the October 13 letter because of other pending civil litigation with Jidoefor. Unaware of Jidoefor's plea agreement to the contrary, the U.S. Attorney's Office management incorrectly concluded the now-retired AUSA sent the letter "in his personal capacity." On November 14, U.S. Attorney Luger responded to the DHS inquiry with a letter stating:

I write concerning the October 13, 2022 letter written to your office by former AUSA David MacLaughlin. In the letter, Mr. MacLaughlin described his understanding of Mr. Jidoefor's role as a cooperator in various cases handled by this office. He also provided his personal opinion regarding the potential implications of that role with respect to Mr. Jidoefor's removal. I write to clarify that Mr. MacLaughlin's October 13th letter reflects his personal opinion only, and is not the position of this office.

Two weeks later, when the U.S. Attorney's Office learned that AUSA MacLaughlin sent the October 13 letter pursuant to the government's plea agreement with Jidoefor, U.S. Attorney Luger immediately sent DHS a third letter stating:

I write regarding my letter dated November 14, 2022. The November 14, 2022 letter was issued due to a miscommunication in my Office, and I hereby retract it. This Office confirms its commitment to the plea agreement with Mr. Jidoefor and AUSA MacLaughlin's October 13, 2022 letter. We will file this letter dated November 28, 2022 on the docket today in United States of America v. Jidoefor, 16-cr-340-MJD-TNL.

Also on November 28, Jidoefor filed a motion in the district court seeking "an Order providing appropriate relief for the government's bad faith violation of the parties' plea agreement," and arguing the government's November 14 retraction letter "deliberately negated the [immigration] benefit that it agreed to provide to Mr. Jidoefor as part of its plea agreement with him." The government responded, explaining that the breach was inadvertent, stating that the government stood behind its promises made in the plea agreement, and arguing that any short-lived breach had been remedied. The government attached a copy of the November 28 letter and noted that DHS had filed a supplemental brief in the removal proceeding "withdrawing" the November 14 letter and providing the BIA a copy of the November 28 letter.

On December 8, the BIA denied Jidoefor's motion to stay removal proceedings. This ruling made him subject to immediate removal, and he was removed to Nigeria in January 2023.⁵ On December 14, the district court denied Jidoefor's motion to remedy breach of the plea agreement. The court agreed with the parties that the November 14 letter was a breach and noted that "the government's material breach of the plea agreement" after the guilty plea has been accepted "violates the defendant's due process rights," quoting United States v. Mosley, 505 F.3d 804, 809 (8th Cir. 2007). However, the court noted, "some breaches may be curable upon timely objection -- for example, where the prosecution simply forgot its commitment and is willing to adhere to the [plea] agreement," quoting Puckett v. United States, 556 U.S. 129, 140, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (emphasis omitted). Here, Jidoefor received the sentencing benefits of the plea agreement. While the promised October 13 letter was important to his decision to plead guilty, the court found that the government had sufficiently explained the origin of the November 14 letter, and the November 28 letter was a timely retraction of that mistake.

On appeal, Jidoefor argues the district court erred in denying him a remedy for the government's breach of the plea agreement. The parties agree the November 14 letter was a breach of the plea agreement. The question is whether the district court erred in determining that the government's November 28 letter was an adequate remedy. When the government's alleged breach of the plea agreement "directly affects the lawfulness of the sentence,"

[t]here are two potential remedies . . . remand for specific performance and withdrawal of the guilty plea. The decision as to which to grant rests in the sound discretion of the [district] court. Specific performance is the preferred remedy.

United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir. 1996) (quotation omitted). Those two remedies derive from Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the leading case dealing with the government's obligation to comply with plea agreement commitments. In Santobello, the government agreed not to make a sentencing recommendation. At sentencing, the government instead recommended the maximum sentence, a breach that directly affected the sentence to be imposed. The district court in imposing the recommended maximum sentence explicitly stated it would have imposed that sentence regardless what the government...