United States v. George Khoury

concurring and dissenting:

I agree that the district court did not err when it replaced one juror with an alternate. However, I do not agree that the government was vindictive and that the district court might well have departed if the government had made a motion to depart.

While it can be argued that the government walked close to the line, I cannot agree that its failure to make a departure motion vindictively penalized Mr. Khoury for exercising his trial rights. It seems obvious to me that every plea bargaining suggestion asks the defendant to give up his trial rights in exchange for something else. Mr. Khoury now argues that the something else cannot be a refusal to make a downward departure motion. Perhaps in some circumstances that would be true. However, as the government has pointed out, Mr. Khoury’s activities— such as intimidating witnesses — made his cooperation rather useless. It is particularly noteworthy that even when it was bound by the plea agreement and made a departure motion the government argued for a 17-year sentence. Even now, Mr. Khoury’s sentence is less than 17 years. I would reject Mr. Khoury’s suggestion that he should get the benefit of his plea…

Opinion by Judge McKAY; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

Appellant, George Khoury, after revoking an earlier plea agreement, was convicted in a jury trial of manufacturing methamphetamine and sentenced to 188 months. He raises two issues on appeal.

On October 31, 1990, Mr. Khoury, along with several co-conspirators, was indicted on drug charges. On January 14, 1992, Mr. Khoury entered into a plea agreement in which he agreed to cooperate with the authorities. Paragraph 10 of the plea agreement acknowledged, “Defendant has already provided information to the Government that has led to the arrest of a fugitive.” In its presentence report, the probation department calculated Mr. Khoury’s guideline range of 235 to 293 months and recommended a sentence at the high end of the range. At sentencing, the government made a U.S.S.G. § 5K1.1 substantial assistance motion. The sentencing judge exercised his discretion, granted the motion, and departed downward, sentencing Mr. Khoury to 144 months.

A few weeks before being sentenced, Mr. Khoury moved to withdraw his guilty plea. This motion was denied. After sentencing, he appealed this denial. Before the appeal…

62 F.3d 1138 64 USLW 2147 , 95 Cal. Daily Op. Serv. 6115 , 95 Daily Journal D.A.R. 10 ,470 UNITED STATES of America, Plaintiff-Appellee, v. George KHOURY, Defendant-Appellant. No. 94-50394. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1995. Decided Aug. 3, 1995. Michael J. McCabe, San Diego, CA, for defendant-appellant. Amalia L. Meza, Asst. U.S. Atty., and Marietta I. Geckos, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before: McKAY, * REINHARDT, and FERNANDEZ, Circuit Judges. Opinion by Judge McKAY; Partial Concurrence and Partial Dissent by Judge FERNANDEZ. McKAY, Circuit Judge: 1 Appellant, George Khoury, after revoking an earlier plea agreement, was convicted in a jury trial of manufacturing methamphetamine and sentenced to 188 months. He raises two issues on appeal. 2 On October 31, 1990, Mr. Khoury, along with several co-conspirators, was indicted on drug charges. On January 14, 1992, Mr. Khoury entered into a plea agreement in which he agreed to cooperate with the authorities. Paragraph 10 of the plea agreement acknowledged, "Defendant has…