7th Circuit: Plea agreement not breached by government

The 7th Circuit Court of Appeals said the government did not breach its plea agreement with a defendant by introducing more victims than were mentioned in the agreement and therefore dismissed his appeal.

In September 2013, a grand jury indicted Vernado Malone on charges of mail fraud, wire fraud and aggravated identity theft stemming from his scheme over multiple years to fraudulently obtain and use credit cards.

Malone entered into a plea agreement, pleading guilty to mail fraud and aggravated identity theft. In exchange, the government agreed to dismiss the wire fraud count and recommend a two- or three-level reduction on his sentence for acceptance of responsibility. During the plea agreement, he waived his right to appeal.

Malone was then sentenced to 37 months in prison for his mail fraud and 24 consecutive months for aggravated identity theft, for 61 months total, followed by two years of supervised release.  

However, Malone appealed anyway, saying the government breached the plea agreement because at trial the government argued there were 28 victims of Malone’s mail fraud scheme, when the agreement just mentioned three. The 7th Circuit disagreed.

Circuit Court Judge Michael Kanne wrote the decision in the case and said nothing in the agreement says the government will limit the evidence it brings against Malone. Instead, it describes “numerous instances of access device fraud” and gives the victims as examples of what he has done. It also says Malone defrauded “several companies.”

Also, the plea agreement contained an integration clause, which said “other than what is contained in this plea agreement, no predictions, promises or representations have been made to me as to the specific sentence that will be imposed or any other matter.” So any other evidence that could support Malone’s contention cannot overcome the clear language of the agreement.

The case is United States of America v. Vernado Malone, 15-2400.