* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

SEP 9 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

PATRICK J. McGRAW, a/k/a P.J.

McGRAW,

Defendant-Appellant.

No. 98-3008

(D.C. No. 97-CR-20037)

(D. Kan.)

ORDER AND JUDGMENT *

Before BRORBY, McKAY, and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument. 
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Defendant Patrick J. McGraw operated an adult entertainment club called

Shadows in Kansas City, Kansas. He also owned Shadows’ parent corporation,

McGoo’s. During an investigation of defendant, the government estimated

defendant’s corporate income by reviewing invoices from liquor distributors and

estimating the number of drinks per bottle and price per drink. In 1994,

defendant and the government entered into a plea agreement under which

defendant agreed to waive indictment and plead guilty to one count of tax evasion

for the tax year ending March 31, 1993, based on an understatement of corporate

income. The agreement specified, in part, that defendant would file amended

corporate tax returns for prior years, pay additional tax, and assist the government

in its investigation of others. The agreement specified that the government would

recommend a sentence of probation, but if the district court did not accept that

recommendation, defendant would be allowed to withdraw his guilty plea and the

government would be allowed to “seek an indictment on the instant charge and

any other additional charges it so desires.” Appellee’s Suppl. App. at 5. The

district court did not accept the recommended sentence. Defendant withdrew his

guilty plea, but paid additional tax and filed amended tax returns for the specified

years. The information was dismissed.

In 1997, defendant was indicted for filing false tax returns for the same tax

years for which he filed amended returns. He filed a motion to dismiss the
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indictment, arguing that the 1994 plea agreement estopped the government from

proceeding with the 1997 prosecution. He also argued that the government

violated Fed. R. Crim. P. 11(e)(6) by using statements made during the 1994 plea

negotiations in forming the 1997 indictment. The district court denied the motion

to dismiss. Defendant then entered a plea of guilty conditioned on bringing this

appeal. See Fed. R. Crim. P. 11(a)(2). The district court sentenced him to eight

months’ incarceration and a $10,000 fine. We have jurisdiction under 28 U.S.C. §

1291.

Whether the government has violated a plea agreement is a question of law

which we review de novo. See United States v. Cooper , 70 F.3d 563, 565

(10th Cir. 1995). Plea agreements are governed by contract principles. See id.

When defendant withdrew his guilty plea, he rescinded the plea agreement and it

ceased to bind him or the government. Cf. Santobello v. New York , 404 U.S.

257, 269 (1971) (stating 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”); United States v.

Brye , 146 F.3d 1207, 1210 (10th Cir. 1998) (holding that appeals court examines

“the nature of the government’s promise” in plea agreement and “defendant’s

reasonable understanding . . . [when] the guilty plea was entered”). The cases

defendant cites as authority for his position are inapposite because they are all
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premised on a guilty plea actually being entered. Moreover, the agreement in this

case warned defendant that if he should withdraw his plea, the government would

be free to pursue indictment on any matter. Defendant has not shown that the

government relied on any statements made by him during plea negotiations in

forming the basis for the 1997 indictment.

The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

Entered for the Court

Wade Brorby 

Circuit Judge