UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

No. 95-5977

SUI PING CHEUNG; CHING CHAN

CHEUNG,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Maryland, at Greenbelt.

Peter J. Messitte, District Judge.

(CR-95-245-PJM)

Argued: April 5, 1996

Decided: May 28, 1996

Before MURNAGHAN and LUTTIG, Circuit Judges, and

MICHAEL, Senior United States District Judge for the Western

District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Gerard Patrick Martin, MARTIN, JUNGHANS, SNYDER & BERNSTEIN, P.A., Baltimore, Maryland, for Appellants.

Brent Jefferson Gurney, Assistant United States Attorney, Greenbelt,

Maryland, for Appellee. ON BRIEF: Paul M. Junghans, William S.

Heyman, MARTIN, JUNGHANS, SNYDER & BERNSTEIN, P.A.,
Baltimore, Maryland, for Appellant Sui Pin Cheung; Fred R. Joseph,

JOSEPH, GREENWALD & LAAKE, Greenbelt, Maryland, for

Appellant Ching Chan Cheung. Lynne A. Battaglia, United States

Attorney, Baltimore, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellants challenge the district court's denial of their motion to

dismiss the conspiracy and currency structuring counts of the indictment against them as contrary to the Double Jeopardy Clause because

the same offenses had already served as the basis of a civil forfeiture

settlement. We agree with the district court that appellants essentially

waived any Double Jeopardy claim through the express terms of their

prior settlement agreement, and therefore affirm the judgment of the

district court without reaching the merits of the Double Jeopardy

claim.

I.

Appellants, Sui Ping Cheung and Ching Chan Cheung, own several

restaurants and other small businesses in Maryland and the District of

Columbia. After Mrs. Cheung was observed by a special IRS agent

on a number of occasions depositing $9,000 cash in various branches

of the banks at which the Cheungs maintained accounts, allegedly

structured to avoid currency reporting requirements, law enforcement

officials seized the accounts and other cash in the Cheungs' possession and initiated civil forfeiture proceedings. The Cheungs and the

government ultimately entered into a settlement agreement, whereby

some of the Cheungs' cash was returned, but whereby the Cheungs

disavowed any claim to nearly $65,000, which was forfeited to the

government. The agreement also included the following clause:

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The parties agree that neither party will attempt to use this

agreement and/or the fact of settlement in any future civil or

criminal proceedings.

J.A. at 65.

Subsequently, the government obtained a three-count criminal

indictment charging the Cheungs with conspiracy to defraud by structuring, structuring in excess of $6 million, and criminal forfeiture.

Because of the criminal forfeiture count, the government also filed an

ex parte motion, which the district court granted, for an order restraining all of the Cheungs' assets, including the cash that had previously

been returned to the Cheungs pursuant to the civil forfeiture settlement. The Cheungs moved to dismiss the conspiracy and structuring

counts on Double Jeopardy grounds. The government then obtained

a superseding six-count indictment: conspiracy to defraud the United

States (by structuring), 18 U.S.C. § 371; causing a bank to fail to file

Currency Transaction Reports, 31 U.S.C. §§ 5313, 5322, &

5324(a)(1); and four counts of filing false tax returns. The first two

counts were based on the same allegedly structured transactions at

issue in the civil forfeiture proceedings, and the Cheungs renewed

their Double Jeopardy motion as to those counts. The district court

denied the Double Jeopardy motion, holding that the Cheungs had

waived any such claim by virtue of the settlement agreement.

II.

Settlement agreements, like plea agreements, are ordinarily governed by general contract principles. See, e.g., Byrum v. Bear Investment Co., 936 F.2d 173, 175 (4th Cir. 1991); cf. United States v.

Burns, 990 F.2d 1426, 1433 (4th Cir.), cert . denied, 508 U.S. 967

(1993); United States v. Harvey, 791 F.2d 294, 300 (4th Cir. 1986).

By the plain language of the agreement between the Cheungs and the

government, "neither party" could "use th[e] agreement and/or the

fact of settlement in any future civil or criminal proceedings." J.A. at

65. The Cheungs' use of the agreement to establish prior jeopardy is

therefore foreclosed, and their Double Jeopardy claim necessarily

fails.

The Cheungs' several arguments to avoid the clear import of the

agreement's language are altogether unavailing. First, the Cheungs

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assert that the language was intended only to mean that neither party

could use the agreement as evidence in future proceedings either of

an admission of structuring or as a denial of structuring. The plain

language of the agreement contains no such limitation, however, and

as we held in Burns, if an agreement "`is unambiguous as a matter of

law, and there is no suggestion of government overreaching of any

kind, the agreement should be interpreted and enforced accordingly.'"

Burns, 990 F.2d at 1433 (quoting Harvey, 791 F.2d at 300); see also

United States v. United Medical and Surgical Supply Corp., 989 F.2d

1390, 1400-01 (4th Cir. 1993).

Second, the Cheungs claim that they did not "use" the settlement

agreement, but only the order implementing the settlement agreement,

in their assertion of Double Jeopardy. This is a semantic distinction

bordering on the frivolous, especially given that the agreement by its

express terms bars use both of "the agreement" and of "the fact of settlement."

Third, the Cheungs argue that a waiver is only valid if it expressly

refers to the Double Jeopardy Clause. The cases from the Second and

Tenth Circuits on which they rely, however, involved settlement provisions materially different from the provision at issue here. In United

States v. Morgan, 51 F.3d 1105, 1109 (2d Cir.), cert. denied, 116 S.

Ct. 171 (1995), the settlement contained the following stipulation:

This STIPULATION and CONSENT, the ORDER, and

RESPONDENT'S compliance with the ORDER, do not

compromise, settle, dismiss, resolve, or in any way affect:

. . .

b. any civil or criminal claims, actions, or charges against

or liability of RESPONDENT or any other individual or

entity asserted by any governmental entity other than the

OTS. [Office of Thrift Supervision].

Similarly, the settlement at issue in United States v. Hudson, 14 F.3d

536, 538-39 (10th Cir. 1994), provided:

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[N]othing herein constitutes, nor shall Respondent contend

that it constitutes, a waiver of any right, power, or authority

of any other representatives of the United States, or agencies

thereof, to bring other actions deemed appropriate.

In contrast, the provision at issue in the instant case is the only one

of the three that bars the use of the settlement agreement by either

party in any future proceeding. The Second Circuit's statement in

Morgan that a valid waiver must contain an explicit renunciation "of

a double jeopardy defense against future criminal proceedings," 51

F.3d at 1110, dictum in any event, is contrary to Ricketts v. Adamson,

483 U.S. 1, 9 (1987), in which the Supreme Court held that a Double

Jeopardy claim had been waived by a plea agreement that did not

mention the Double Jeopardy Clause.

Finally, the Cheungs argue that, even if there was a waiver, the settlement agreement is null and void because the government materially

breached it by obtaining an indictment seeking criminal forfeiture of

the very same assets that had been returned to the Cheungs pursuant

to the civil forfeiture settlement agreement, and when it sought, and

obtained, a restraining order on those assets.

The superseding indictment does not, of course, retain the criminal

forfeiture count, but there is nothing in the settlement agreement that

even arguably would prohibit the government from bringing such a

charge. Indeed, future criminal proceedings were expressly contemplated by the settlement agreement. The government did not, therefore, breach the civil forfeiture settlement agreement by initiating a

separate criminal prosecution, even one that included a criminal forfeiture count.

The judgment of the district court is affirmed.

AFFIRMED

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