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United States v. Bizor

United States District Court, W.D. Kentucky, Louisville Division

September 24, 2019



          DAVID J. HALE, JUDGE

         Defendant Averic Lyle Bizor contends that the United States breached its plea agreement with him in an earlier case by pursuing the charge in the current indictment. (Docket No. 20) Bizor argues that he relied on the United States’ promise not to prosecute that charge when signing the plea agreement. (Id., PageID # 38) Bizor now seeks dismissal of the indictment (D.N. 1) pursuant to the Due Process Clause, arguing that the plea agreement should be enforced and the government should be estopped from pursuing the current charge. (D.N. 20, PageID # 37, 39) The issue was briefed and the Court held oral argument on August 7, 2019. (D.N. 28) No. supplemental briefs were filed. For the reasons explained below, the Court will deny Bizor’s motion.


         In 2017, Bizor was charged with three counts of being a felon in possession of firearms and ammunition. (D.N. 20) On January 19, 2018, the United States sent an email to Bizor’s counsel which included a draft plea agreement and plea supplement for those three charges. (D.N. 20-1) In the email, the Assistant United States Attorney advised Bizor’s counsel that the United States was also contemplating adding a fourth charge for an additionally discovered firearm. (Id.) The AUSA noted that this fourth firearm may have been used in a murder, and that the government could therefore request a cross-reference to the homicide guidelines at sentencing, raising Bizor’s guideline range. (Id.) He stated that the United States would not include the fourth firearm in the indictment, however, if Bizor agreed to plead guilty to the three charges. (Id.) The prosecutor noted that it would be “important” for Bizor to understand that he would need to be fully debriefed about any crimes he committed or knew about “or the deal is off.” (Id.) The email also explained that it was just “a preliminary offer subject to formal approval by the United States Attorney.” (Id.) Bizor did not accept the cooperation condition included in the January draft plea agreement, however. (D.N. 24-2, PageID # 99) Instead, Bizor pleaded guilty to the three charged offenses in a later plea following a change-of-plea hearing before Magistrate Judge Colin H. Lindsay on July 25, 2018. (D.N. 21-3; D.N. 24)

         During the change-of-plea hearing, the AUSA stated that he would like to put a modification to the plea agreement on the record. (D.N. 24-2, PageID # 94-95) The United States and Bizor’s counsel had come to an agreement prior to the hearing that the AUSA would state publicly the government’s promise not to seek the homicide cross-reference in order to enhance Bizor’s sentence. (Id.) Accordingly, the AUSA stated that the “United States has agreed that [it] will not seek to apply the cross-reference to the homicide guideline” and that he was speaking on the record “to avoid any confusion about the guidelines that would apply to that.” (Id.) Bizor’s counsel concurred, stating that the parties’ agreement “was that [the United States] would not attempt to increase the guidelines through the homicide statute.” (Id., PageID # 96) The AUSA noted that if Bizor were to ultimately be charged, “it would be a separate and distinct case subject to completely new analysis and would not have anything to do with the guidelines in this case. (Id.) Judge Lindsay then asked whether the following characterization of the in-court modification was correct: “The agreement relates to the cross-reference and sentence in this case. It’s not an agreement not to investigate or prosecute anything else-some crime not yet charged.” (Id., PageID # 97) Bizor’s counsel and the AUSA agreed. (Id.) Judge Lindsay asked Bizor if he agreed with that description of the plea agreement, and Bizor replied in the affirmative. (Id.) Finding that Bizor understood his plea and entered into it voluntarily, Judge Lindsay recommended that Bizor’s guilty plea be accepted. (Id., PageID # 98-99) U.S. District Judge Rebecca Grady Jennings then accepted Bizor’s guilty plea pursuant to his plea agreement. No. 3:17-cr-120-RGJ (D.N. 33)

         On April 2, 2019, the United States returned the indictment at issue charging that fourth firearm offense which was not included in the 2017 indictment. (D.N. 1)

         Bizor asserts that the January 2018 email was a memorialization of previous settlement negotiations and that he relied on the government’s assurance when pleading guilty to the three charged offenses. (D.N. 20, PageID # 38) Bizor argues that by pursuing this charge, the United States breached the July 2018 plea agreement. (Id., PageID # 38; D.N. 21-3) He suggests that the current charge is a “stopgap” to hold him in federal custody because he is a suspect in an unrelated state murder investigation. (Id.)

         The United States maintains that the email was a preliminary offer, conditioned on Bizor’s cooperation with the United States. (D.N. 21, PageID # 43-44) Because Bizor did not accept the cooperation condition, the United States contends that this preliminary offer is therefore void. (Id.)


         On a motion to dismiss an indictment, “the [c]ourt must view the [i]ndictment’s factual allegations as true, and must determine only whether the [i]ndictment is ‘valid on its face.’” United States v. Musgrave, No. 3:11-cr-183, 2012 U.S. Dist. LEXIS 130461, at *3 (S.D. Ohio Sept. 13, 2012) (citing United States v. Campbell, No. 02-80863, 2006 U.S. Dist. LEXIS 16779, at *2 (E.D. Mich. Apr. 6, 2006)). “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for trial of the charge on the merits. The Fifth Amendment requires nothing more.” United States v. Costello, 350 U.S. 359, 363 (1956).

         Acceptance of a plea agreement “must be attended by safeguards to insure the defendant what is reasonably due in the circumstances.” Santobello v. New York, 404 U.S. 257, 261 (1971). “Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. “The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be known.” Mabry v. Johnson, 467 U.S. 504, 509 (1984).

         Once the district court has accepted the plea agreement, the Sixth Circuit has traditionally regarded the agreement as a type of contract and “has analyzed the respective obligations of the prosecution and the defendant under general principles of contract law.” United States v. Skidmore, 998 F.2d 372, 375 (6th Cir. 1993). “In determining whether a particular plea agreement has been breached, the Court looks to ‘what the parties to th[e] plea agreement reasonably understood to be the terms of the agreement.’” Id. at 375 (internal citations omitted).

         Bizor does not dispute that the terms of the written plea agreement do not preclude the government from prosecuting the present offense. He asserts instead that the January 2018 email is part of the plea agreement because it induced him to plead guilty. (D.N. 20, PageID # 37-38) Bizor argues that by proceeding with prosecution, the government breached the plea agreement. (D.N. 38) Prosecution of the current charge is not, however, inconsistent with Bizor’s plea agreement because the agreement ...

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