United States Court of Appeals For the Eighth Circuit ___________________________ No. 21-3690 ___________________________ United States of America Plaintiff - Appellee v. Marlin Santana Thomas Defendant - Appellant ____________ Appeal from United States District Court for the Southern District of Iowa - Central ____________ Submitted: September 27, 2022 Filed: January 24, 2023 ____________ Before GRUENDER, SHEPHERD, and ERICKSON, Circuit Judges. ____________ GRUENDER, Circuit Judge. Marlin Thomas appeals his 2021 conviction for various sex-trafficking offenses. He argues that the Government was prohibited from prosecuting him based on a “No Further Prosecution” clause in a prior 2018 plea agreement that resolved heroin-related charges against him. We conclude that the prior plea agreement’s promise of no further prosecution encompasses the sex-trafficking convictions appealed here. We therefore reverse the denial of Thomas’s motion to dismiss the indictment and vacate his conviction. I. In May 2018, Thomas pleaded guilty in the Southern District of Iowa to one count of conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. In exchange, the Government agreed to dismiss the other four counts of the indictment. The plea agreement also contained a “No Further Prosecution” clause, which stated: The Government agrees that Defendant will not be charged in the Southern District of Iowa with any other federal criminal offense arising from or directly relating to this investigation. This paragraph and this Plea Agreement do not apply to (1) any criminal act occurring after the date of this agreement, (2) any crime of violence, or (3) any criminal offense which Defendant did not fully disclose to law enforcement during Defendant’s interviews pursuant to any proffer or other agreements with the United States. Thomas’s appeal concerns the scope of this clause, and interpreting it requires background on that earlier case. More specifically, his appeal hinges on whether “any other federal criminal offense arising from or directly relating to this investigation” encompasses the sex-trafficking charges that led to his present conviction.1 1 Before the district court, the Government argued that the sex-trafficking charges were “crimes of violence” within the plea agreement’s exception. The district court disagreed and declined to deny dismissal on that ground. The Government did not appeal that ruling. Nor does the Government argue on appeal that any of the exceptions apply to permit prosecution of the sex-trafficking offenses. Indeed, the Government conceded at oral argument that the clause’s three exceptions are not at issue. We therefore deem any argument that the three exceptions might apply to the sex-trafficking charges waived. See United States v. Greene, 513 F.3d 904, 906-07 (8th Cir. 2008) (finding that the government had waived an argument -2- The federal investigation into Thomas began in early 2018. 2 It was carried out with the assistance of the Des Moines Police Department (“DMPD”) following a tip that Thomas was dealing heroin. The principal federal prosecutors were Assistant United States Attorneys (“AUSA”) Amy Jennings and Virginia Bruner. At the time, Thomas faced Iowa state charges for human trafficking of a minor, G.M. DMPD interviews with …
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