FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 03-10479 Plaintiff-Appellee,

D.C. No.

v.  CR-S-00-434-GEB

NEIL R. BROWN,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, Jr., District Judge, Presiding

Argued and Submitted

September 14, 2005—San Francisco, California

Filed October 4, 2005

Before: Betty B. Fletcher and Marsha S. Berzon,

Circuit Judges, and John A. Houston,* District Judge.

Per Curiam Opinion

*The Honorable John A. Houston, United States District Judge for the

Southern District of California, sitting by designation. 

13791
COUNSEL

Donald S. Frick, Esq., Sacramento, California, for the

defendant-appellant. 

Thomas E. Flynn, Assistant United States Attorney, Sacramento, California, for the plaintiff-appellee.

OPINION

PER CURIAM: 

Pursuant to a plea agreement, defendant-appellant Neil R.

Brown pled guilty to forty-four counts of various fraud

crimes. He claims that the government breached that agreement. He also attacks his sentence on Booker grounds and

claims that the district court abused its discretion in denying

his motion, prior to sentencing, for a continuance to obtain

substitute counsel. We conclude that there was no breach of

the plea agreement. Therefore, his other claims are precluded

by the plea agreement, in which he waived his right to appeal.1

We affirm. 

1Brown asserts that the government has “forfeited any claim” that

Brown waived his right to appeal by failing to raise that claim at the time

that Brown filed his notice of appeal. Appellant’s Reply Brief at 2. Brown

relies upon Hunter v. United States, 160 F.3d 1109 (6th Cir. 1998). The

court in Hunter faced a collateral attack where the defendant was unaware

that he had waived his right to appeal. Id. at 1113-14. We, by contrast, are

confronted by a direct appeal from a sentence where there is no doubt that

Brown knowingly waived his right to appeal. We find that Hunter does

not apply to the facts of this case. 

UNITED STATES v. BROWN 13793
[1] Appellant argues that, because the government was not

explicit in moving to dismiss, as promised in the plea agreement, the remaining counts of the indictment with prejudice,

the government has breached the terms of the plea agreement.

Brown claims that he is, therefore, not bound by the plea

agreement and thus may appeal. While it appears that the

standard form used for dismissals in the Eastern District of

California is imprecise in failing to specify whether a dismissal is with or without prejudice,2

 this technical error does

not constitute a breach of the underlying plea agreement. 

[2] Dismissals by the government are generally presumed

to be without prejudice, United States v. Matta, 937 F.2d 567,

568 (11th Cir. 1991); accord United States v. Ortega-Alvarez,

506 F.2d 455, 458 (2d Cir. 1974), “unless a contrary intent is

clearly expressed.” Matta, 937 F.2d at 568. The intent of the

parties as to the plea agreement — as manifest in the agreement itself — was clearly that the dismissal be with prejudice.

The government’s motion to dismiss and the court’s subsequent dismissal should be construed in light of that intent. 

[3] We follow the First Circuit, which has recognized that

where a dismissal with prejudice is intended but not formally

carried out, an appellate court may clarify the dismissal to

reflect that it is with prejudice. United States v. Raineri, 42

F.3d 36, 43 (1st Cir. 1994). We therefore interpret the district

court’s dismissal in accordance with the parties’ clear intent

that the dismissal be with prejudice. Any attempt to prosecute

any of the dismissed claims in the indictment is thus barred.

We, therefore, find that no breach of the plea agreement

occurred. 

2Had the district court been specific in dismissing the remaining counts

with prejudice, Brown would have had no basis to argue that he was no

longer bound by his plea agreement. To avoid unnecessary appeals, we

suggest that the standard forms used by the district should reflect whether

the dismissal is with or without prejudice. 

13794 UNITED STATES v. BROWN
AFFIRMED. 

UNITED STATES v. BROWN 13795