Soubry

dissenting.

I disagree with the majority’s conclusion that the plea agreement is ambiguous and reasonably susceptible to both parties’ proffered interpretations. Before turning to any extrinsic evidence concerning the meaning of the plea agreement, the initial question to be answered is whether or not the disputed provision, in which the government agrees “not to file any other criminal charges arising out of the incidents that led to the Indictment filed January 26, 1994,” is even ambiguous. See United States v. Clark, 218 F.3d 1092, 1096 (9th Cir.2000), cert. denied, 531 U.S. 1057 , 121 S.Ct. 668 , 148 L.Ed.2d 569 (2000). “Following traditional rules of contract interpretation, we must examine the plain language of the term in the context of the document as a whole. ” Id. (emphasis added).

The agreement cites the January 26, 1994, indictment for mail fraud, and the allegedly ambiguous paragraph cites only that indictment. 1 Moreover, the facts supporting the guilty plea are relevant only to the mail fraud indictment and, in fact, are quite different from and unrelated to the facts alleged in the superseding indictment. The document therefore mentions only the mail fraud…

MEMORANDUM **

We reject the government’s contention that the district court, in adopting the recommendation and report of the Magistrate Judge, clearly erred in its interpretation and construction of Soubry’s prior plea agreement. The disputed provision, an agreement “not to file any other criminal charges arising out of the incidents that led to the Indictment filed January 26, 1994,” is reasonably susceptible to both parties’ proffered interpretations. See United States v. De la Fuente, 8 F.3d 1333, 1338 (9th Cir.1993). There were actually two indictments filed on January 26, one to which Soubry pled guilty (mail fraud) and one that was dismissed as part of the plea bargain (false statement). As Soubry was only pleading guilty to one charge, it is not surprising that the plea agreement recites only the facts supporting the mail fraud indictment. This does not mean, however, that the provision in question only precluded the government from bringing other mail fraud related charges against Soubry. Under the nar *867 row reading urged by the government and the dissent, the government could have brought other charges relating to the false statement indictment, even though it was…