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United States v. Merlo

United States District Court, D. South Carolina, Columbia Division

October 15, 2019

UNITED STATES OF AMERICA
v.
STEVEN MERLO, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S MOTION TO ENFORCE PLEA OFFER

          MARY GEIGER LEWIS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Pending before the Court is Defendant Steven Merlo's (Merlo) motion to enforce a plea offer from the government. Having carefully considered the motion, the response, the reply, the arguments at the hearing, the record, and the applicable law, it is the judgment of the Court Davis's motion to enforce a plea offer will be denied. The Court, however, strongly expresses its dissatisfaction with the actions of the government in this case.

         II. PROCEDURAL HISTORY

         The grand jury indicted Merlo on one count of conspiracy to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and one count of money laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i). On May 8-9, 21018, Merlo gave a proffer to the government concerning the allegations in the indictment pursuant to a Proffer Agreement dated April 30, 2018 (Proffer Agreement).

         On July 5, 2018, Sandra Strippoli (Strippoli), a Special Assistant United States Attorney from the Northern District of Georgia, took control of Merlo's case after a recusal by the United States Attorney's office for the District of South Carolina, which had previously been handling the case. Merlo filed the immediate motion over one year after the prosecutorial replacement. The government responded and Merlo filed a reply. The Court held a hearing on the motion.

         III. STANDARD OF REVIEW

         “[J]udicial interpretation of plea agreements is largely governed by the law of contracts.” United States v. Martin, 25 F.3d 211, 216-17 (4th Cir. 1994). The Fourth Circuit, although still allowing for the existence of oral plea agreements, strongly “suggest[s] that lower courts require all . . . plea agreements be reduced to writing.” United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997).

         “The essence of contract formation is . . . a meeting of the minds of the contracting parties.” Charbonnages de France v. Smith, 597 F.2d 406, 415 (4th Cir. 1979); see also Restatement (Second) of Contracts § 17 (“[T]he formation of a contract requires a bargain in which there is a manifestation of mutual assent to the exchange.”).

         IV. DISCUSSION AND ANALYSIS

         As a preliminary matter, Merlo's claim he relied on a purported agreement between the parties in deciding to proffer is unavailing. To start, the motions title seems to undermine this argument. On its face, the motion intends to enforce a plea offer, not an agreement. Because the government can change the terms of a plea offer until acceptance, only a finalized agreement can be enforced. Thus, the Court will construe the motion as one to enforce a plea agreement.

         The motion is unmerited for at least three reasons. First, Merlo failed to provide sufficient evidence an enforceable agreement existed with the government. Merlo, through his brief and an affidavit submitted by his attorney, asserts the United States Attorney's office for the District of South Carolina represented to him an offer for a specific range under the United States Sentencing Commission Guidelines Manual (Sentencing Guidelines) as part of a plea agreement in exchange for his proffer to the government. Merlo and his attorney were under the impression this purported representation by the government created a plea agreement between the parties and purportedly participated in the proffer based on the representation. No written agreement between Merlo and the government has been produced to the Court.

         Merlo provides no evidence of a definitive offer by the government, nor mutuality between the parties, other than assertions by his counsel in a declaration. This is insufficient to establish a contract, as Merlo presented no evidence of a “meeting of the minds” between the parties. Charbonnages de France, 597 F.2d at 414.

         Merlo's counsel's subjective belief an agreement existed is insufficient to make it so. Further, although not determinative, the government affirmatively represented-in the declaration filed by Strippoli-the Assistant United States Attorney ...


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