Full opinion text
MEMORANDUM OPINION AND ORDER McDONALD, District Judge. I. INTRODUCTION Defendant Bird has moved to dismiss her indictment on the grounds that it is in violation of the Government’s agreement with defendant McBride not to prosecute her. The Government argues that it was induced to enter the agreement by duress and fraud, and that to enforce it would contravene public policy. It also argues that the agreement fails as a contract because of lack of consideration and of performance, and failure of a condition precedent. Defendant Bird, for her part, argues that McBride performed his obligation under the contract in good faith, and that policy considerations mandate the application of contract law and specific enforcement of the agreement. These are difficult issues. They involve the application of contract doctrine outside the commercial milieu to an agreement between the Government and a criminal defendant in the context of the attempted extortion of a major national oil company. They require the court to weigh competing public policies, in favor of protection of criminal defendants and the public interest in safety. The Court finds that the contract was supported by consideration, and not void on public policy grounds, that McBride performed his side of the bargain, and that although the Assistant United States Attorney Murphy entered the contract under duress, he subsequently ratified it. However, the Court concludes the agreement which Murphy entered is not binding on the United States Attorney in this district. Accordingly, defendant Bird’s Motion is DENIED. II. FACTS On September 28,1982, the president and three vice presidents of Gulf Oil Corporation received a letter announcing that “The Gulf Chemical, Cedar Bayou Plant and one other Gulf facility have been sabotaged.” It stated that, [i]n excess of 10 explosive charges have been placed within the Cedar Bayou Plant. These charges are both radio actuated and time actuated. The radio charges may be detonated from any point within a twenty (20) mile radius of this facility. The time actuated charges will self-detonate starting 120 hours after 10:00 a.m. on the morning you receive this letter, the time charges will continue to detonate up to seven days after this time. It stated further that, The purchase price to Gulf for the locations and deactivation sequences for the bombs at Cedar Bayou, and one other plant to be discussed, is $15,000,000.00, a fraction of Cedar Bayou’s value and annual producing income. It continued that “a facility other than Cedar Bayou has also been sabotaged,” that “[s]hould it be necessary for us to destroy Cedar Bayou the purchase price for the second facility will be $30,000,000,” and that both plants were under periodic observation and the bombs would be actuated if Gulf notified outside authorities or media, or attempted to disarm the bombs. The letter concluded: We fully realize that you will use every means possible to find us after your facilities are safe; we accept that risk. However, before you notify outside authorities and media, you may wish to consider the probability of amateurs attempting this same crime, with potentially disastrous results. In conclusion, when you receive this letter, and as you will realize after you examine the sample bomb, we have the means of instantly destroying two of your major facilities. We are determined to receive from you either fifteen or thirty million dollars; that choice is yours. If we receive neither we will destroy many times that amount worth of Gulf facilities, and simply move on to other of your plants; that choice is ours. Gentlemen, THE CLOCK IS RUNNING. The FBI investigated the extortion attempt and on October 1, 1982, arrested co-defendants Theodore Duane McKinney and Michael Allen Worth in Phoenix, Arizona, in the course of arranging by telephone to receive $15,000,000 from a Gulf official. Government agents subsequently traced the plot to Durango, Colorado, arresting Bird, McBride and Justice there on October 3, 1982. Justice described the origins of the extortion attempt as follows. In early August, 1982, Worth, Justice and McKinney made an exploratory trip to Texas to survey potential targets among facilities at Houston and along the Gulf Coast, including both Cedar Bayou and Port Arthur. They discussed a primary and a secondary target at that time. (Ju.T. 3608, 54; 115-6). At a meeting one or two weeks prior to the actual placement of the bombs on September 26, 1982, the five co-defendants met at McBride’s house to discuss their extortion plans, including the placing of bombs at both the Port Arthur and Cedar Bayou (Ju.T. 168). Justice testified that although the original plan for the extortion attempt “pulsated back and forth” with respect to the number and location of bombs, the defendants finally settled on 5 or 6 bombs (Ju.T. 126-7) and decided that it was not necessary to actually plant 10 bombs at another site, since the threat of ten bombs alone would be sufficient. (Ju.T. 137, 168) Approximately one week before this meeting, McBride tested some explosives on Missionary Ridge northeast of Durango and the test did not work. (Ju.T. 67) Justice spent most of Wednesday, September 22,1982, and part of Thursday, September 23, 1982, at Worth’s residence in Durango assisting Worth in construction of the bombs, in particular, testing the circuits (Ju.T. 28). The components of the bombs were scattered over two rooms (Ju.T. 33-5), and Justice and Worth moved from room to room to work on them (Ju.T. 91). Justice himself did not know how many component parts had been obtained in Durango (Ju.T. 59). McBride came to the house at one point to deliver toggle switches and stayed for ten or fifteen minutes to talk about the plan and whether the requisite parts would arrive at the store in Durango in time (Ju.T. 75), but he did not stay there for the completion of the bombs (Ju.T. 34, 35). Justice testified that he does not know whether McBride saw all the devices because they were scattered about (Ju.T. 34), but that he believed McBride knew how many were taken to Houston, and that he saw most of the components on the table in the living room. (Ju.T. 82, 127-8, 130) Worth, Justice and Bird travelled to Houston by automobile. The bombs were transported to Houston in an unassembled condition; the casings, the explosives, and the blasting caps were packed separately (Ju.T. 70-1). Worth packed the car before Justice got in it, so Justice did not see the component parts packed. (Ju.T. 72, 152). Justice testified that five freezer dishes of explosives were taken to Houston but did not know exactly how many devices there were (Ju.T. 13). When he reached Houston Justice realized that they had sufficient components for at least five devices. Justice kept part of the explosives in his room at the motel in Houston (Ju.T. 95) According to Justice, Worth and Justice brought to Houston extra component parts, including 2 to 3 extra cases and “a switch or two” (Ju.T. 89), as substitutions in case any components were faulty. The extra components could also be used for another sixth mock bomb for Port Arthur as indicated in the extortion letter, in the event Gulf did not deliver the 15 million dollars (Ju.T. 169, 174), although if they were, each of the bombs would contain less explosives. However, Justice also testified that placing another bomb would require a trip from Durango to Houston with additional supplies, and that the plan was that the sixth bomb would be built at McBride’s house and that McBride would spearhead that effort. Finally, he testified that the idea of a secondary target, as a possibility was not discarded until defendants Justice, Worth and Bird reached Houston, and disposed of the extra explosive materials at a car wash in that city (Ju.T. 169, 175). It took an hour and a half for Justice and Worth to assemble the bombs. Justice planted the bombs on September 26 but deviated from the plan once he got inside the plant and found it was not possible to place one of the bombs as planned (Ju.T. 73). On Wednesday evening, September 29, 1982, at the Houston motel, Justice heard a television report that five bombs had been located. Worth subsequently flew to Arizona in order to receive the money from Gulf officials, and Bird and Justice drove back to Durango, Colorado, arriving on Friday, October 1,1982. They went to McBride’s residence. There McBride played an audio tape recording of a television news report of the extortion attempt, twice. Justice’s testimony on this tape was ambivalent. He stated, first, that he believed he told McBride at that time how many bombs he had planted and that McBride knew how many bombs he had taken to Houston; he then testified on direct that the television report stated that officials had found five bombs (Ju.T. 49, 78). On cross-examination, however, he testified that he didn’t remember precisely what the reporter said, that the female reporter was cut off, but he believed she said they had found five bombs (Ju.T. 79), and that, upon hearing the tape, Justice told McBride, not that he had planted five devices, but that he had planted five bombs “in accordance with the plan”. (Ju.T. 81) Finally, on redirect Justice indicated that he did not inform McBride that he had planted five bombs but rather than after Justice heard the taped report that Gulf officials had found “five” devices, he told McBride that they obviously had found all the bombs that defendants had planted, and that McBride responded to him that it didn’t make any difference, because the Gulf and FBI officials still believed there were more bombs. (Ju.T. 133, 156-58) McBride and Bird were arrested by FBI agents on Sunday, October 3,1982. Shortly after the arrest, McBride stated to an agent that he would give the government everything it needed in exchange for the release and non-prosecution of Bird. When questioned by Undersheriff Bell as to how long they had, McBride responded that they were good until the next day. The agent relayed this offer to Assistant United States Attorney Patrick T. Murphy. Murphy had been contacted by the FBI on Saturday, October 2,1982. He had not read the extortion letter, but agents had informed him of its contents, specifically of the 120 hour deadline and with Assistant United States Attorney John 0. Martin, he calculated that it elapsed around noon Sunday, October 3. He did not know the extent of the involvement of Bird. (M.T. 166, 179, 188, 232). He testified that as a result he and Assistant United States Attorney-Martin felt under pressure: We were concerned about the safety of citizens of the State of Texas. We felt that we were kind of in a state of emergency or something. The FBI was certainly very excited about it and Gulf Oil was, and so — we were a middle man trying to negotiate some sort of agreement for the safety of the citizens of Texas. (M.T. 169). Consequently, they sought to keep McBride “willing and interested to give us this information that would clean up the state of emergency in Texas.” (M.T. 174). Murphy received phone calls from the FBI stressing the urgency of an agreement with McBride (M.T. 178). The agents referred to the extortion letter’s threat against another plant, near a major metropolitan area. Mr. Murphy testified that therefore the FBI was “really pushing to get it going,” and that he and Martin kept thinking of [a] sort of mor[al] responsibility that we had in the event that somebody got hurt and we could have prevented it by reaching an agreement with Mr. McBride. I had never been involved in a situation like this before, which I felt if I didn’t take an action as an attorney for the government somebody may really get hurt. It was like a hostage situation. (M.T. 179). Murphy testified further that he felt “an extreme amount of pressure” to make a decision that day. (M.T. 179), that it was “one of the most difficult decisions I have ever made,” and that he “was getting pressure from both sides to get this thing done right away. I was in the middle.” (M.T. 185). Murphy was informed by Auld, McBride’s attorney, that McBride would not agree to give evidence against his co-defendants. Murphy drafted the agreement, rejecting Auld’s requested changes in wording, including his request for statutory immunity. He also told Auld that he thought the agreement would be binding on the United States Attorney in Houston. (M.T. 173, 190). In stating that he would not have entered the agreement had he known that all the bombs had been found and therefore that there was no danger to people in Texas, Murphy testified on redirect that he and Martin felt we weren’t acting as attorneys for the government, we were acting as concerned people who had a moral responsibility to try to prevent somebody from being hurt. And if I wouldn’t have thought there was any possibility of anybody getting hurt, I certainly wouldn’t have entered this agreement . .. because ... McBride had indicated that he had information about an existing threat and something that was going on. We wanted to clean it up. That was the shadow that covered the whole thing. I wasn’t concerned, like you are right now [about] presenting a case in court. I was concerned about somebodies’ lives. FBI agent Brian Jovick, who transmitted McBride’s offer to Murphy, also testified that he would not have entered the agreement had he known there were no additional bombs to be found (J.T. 138). Murphy testified that he telephoned the Assistant United States Attorney’s Office in Houston, Texas, because both Colorado and Texas had jurisdiction over the case and he “wanted a coordinated, cooperative decision made in this thing. I didn’t want Colorado, the left hand, not telling the right hand what was going on ... . ” (M.T. 186). He spoke to Assistant United States Attorney Longoria. Murphy testified that Longoria “agreed to go ahead with this deal”, and that he said that the court would not enforce it because of a duress situation.” (M.T. 186-87). Longoria’s testimony on the agreement was equivocal. He said that he viewed McBride’s offer as coercive, that it seemed to him they were being extorted, and he indicated to Murphy that he believed the agreement was voidable. On the other hand, he testified that he did not express dissatisfaction with approval of the Agreement but, on behalf of the United States Attorney in Houston, agreed that the agreement was a good idea. He testified that the government was getting something in exchange for something: that the something they were getting was the peace of mind that they would have in knowing that there were no more bombing devices in the refinery; and that the government entered the agreement in good faith. He testified that the government’s reputation is only as good as its word, but also that good faith meant that the government would keep its promise all other things being equal, that a lot of factors go into the decision not to prosecute including whether what you’re getting is worth it, and that the government weighs the public interest, and in the case of McBride its paramount interest was in seeing that the bombs that were here were disarmed. Longoria concluded his testimony by stating that the government should honor its agreement, assuming it was valid and the government was going to get what it bargained for. Murphy subsequently talked to James Powers, Chief of the Criminal Division of the United States Attorneys Office in Houston, Texas, who also approved the agreement (M.T. 220-22). With respect to whether he was under duress, Murphy testified that he “[didn’t] know if he was duressed,” but that he “entered th[e] agreement with McBride in good faith” and “still fel[t] that way about McBride.” That Longoria’s position, Murphy testified, “was curious to [him] at the time, that he “never considered it duress the whole time.” That he “never thought about that, rather that he “just thought [he] was just making another arrangement, an agreement.” (M.T. 187). McBride met with FBI agents Defenbaugh, Jovick and Bell, and discussed the location and number of bombs from 6:41 to 8:22 (J.T. 24). Within the first hour of talks, McBride stated that there were no other bombs outstanding (J.T. 142). According to Jovick, when Defenbaugh informed McBride that only five bombs had been found, McBride expressed surprise, stating that six bombs were supposed to be placed (J.T. 79, 14). He then attempted to identify possible locations of the undiscovered sixth device on a map of the facility which one of the agents had (J.T. 81). After talking to Worth on the phone, McBride stated to agents that he might have tested the sixth device and that he could not remember whether he tested one or two devices. McBride described them in such detail that Defenbaugh concluded that McBride had made the bombs. Jovick took a written statement which was not required by the written agreement (J.T. 23), but which he required (J.T. 52). In response to questions about the secondary target, McBride stated that the plan was to place ten devices at Port Arthur the same night that the bombs were placed at Cedar Bayou (J.T. 32, 64). On the following day, Jovick sought and obtained McBride’s consent to telephone defendant Worth to determine the disposition of bombs originally planned for the Port Arthur facility (J.T. 25, 30). McBride subsequently told Jovick that the bombs were thrown “in the bay.” (J.T. 81, 64) Defenbaugh’s interview with McBride began at 6:41 p.m. and continued, with a number of interruptions, until 2:50 a.m., October 4,1982. McBride described the devices involved in the extortion attempt and their components. He originally stated that six devices were going to be sent to Cedar Bayou. At that point Defenbaugh cut short the interview in order to telephone the FBI and Gulf to inform them that another device might remain at Cedar Bayou. After returning to McBride, Defenbaugh found other FBI agents were going to take him to the Needham Way address in Durango to locate explosives he had identified as existing there. The interview resumed at about 10:00 p.m. when McBride returned. McBride gave Defenbaugh extensive detailed information regarding the construction of the six devices and the origin of their components. McBride described the extortion attempt as his brainchild and stated that he purchased the components from Radio Shack beginning in August 1, 1982, and constructed the bombs about that time. He told Defenbaugh that the 120 hours (ransom deadline) was not a true deadline but was used because it sounded like a good period of time in which to get Gulf to produce the money. Defenbaugh testified that during the discussions, McBride determined that he was not positive exactly how many bombs might have actually been placed into the Cedar Bayou facility. He explained that he was positive he had tested at least one of the devices and that another reason he could not recall how many bombs were given to Worth was that he threw away the extra components used during the bomb construction. He stated that he may have thrown two boxes away but stated emphatically that six and only six of the boxes were purchased for use in building the devices. Thus, he could not recall whether he had tested or thrown away one or two boxes. McBride also described the origin and construction of the radio-controlled devices which defendants had planned to place. Defenbaugh testified that he could not determine whether the information McBride provided on the ten devices was true or false. The government, therefore, decided to administer a lie detector test to McBride, and McBride passed it on October 5, 1982. (J.T. 85, 92, 125) As a result, despite the fact that McBride did not identify any bombs that the government did not already know about, Jovick felt at the time that McBride complied with his agreement with the government, in good faith (J.T. 147-8). Murphy testified that although he was not aware of all FBI investigations because his involvement ended when the prosecution of defendants was transferred to Houston and was not sure how many bombs had been located, he felt McBride met the terms of the agreement and on that basis filed a motion to dismiss the complaint against Jill Bird. (M.T. 180-3) [BX # 3] On October 5, Murphy was informed by the agents that they were satisfied with McBride’s compliance with the terms of the agreement. In deciding whether or not to dismiss the complaint against Jill Bird, Murphy testified that he continued to feel under pressure, more precisely that he felt somewhat like a long-tailed cat in a room full of rocking chairs. I was really under the gun in this whole thing from everybody, ... [representatives of] the press were calling me and haunting me and found my home number and were chasing me down ... They were very aggressive in the pursuit of this story. They kept saying, “when is she going to be released?”, so I finally went down and did it and I drafted this one too. (M.T. 191). Subsequently, Murphy did not contact the U.S. Attorney in Houston concerning the decision to dismiss the indictment. Although he was not aware of all the results of the investigation, he filed the motion to dismiss the complaint against Bird because he felt the terms of the agreement had been met. Murphy subsequently began plea bargaining with McBride and offered him a one count information with a maximum of 20 years imprisonment. On October 8, 1982, between 10:30 and 11:00, after meeting with McBride for ten or fifteen minutes, Murphy was informed that Assistant General Jiuliani had decided to prosecute the case in Texas. III. THE APPLICATION OF CONTRACT LAW The parties urge the court to apply contract principles to determine the effect of Assistant United States Attorney Murphy’s agreement not to prosecute Jill Bird. This case, however, involves different considerations than do the commercial agreements commonly the subject of contract law. Therefore, the court will first, in this section, analyze the agreement according to principles of contract law and then, in the next section, in the exercise of its supervisory responsibility for the administration of criminal justice, consider the effect of the agreement on the indictment brought in this district. A. The Agreement Ambiguities in the agreement must be construed against the government, which drafted it. United States v. Sanderson, 498 F.Supp. 273, 277 (S.D.Fla.1980). In this case, although McBride initiated the agreement with his offer to give agents everything they needed, Assistant United States Attorney Murphy drafted the agreement in its entirety rejecting the suggestions of defendant’s counsel. It provided as follows: In exchange for your complete cooperation with the FBI in connection with the locating and disarming of all explosive devices related to the extortion attempt directed at Gulf Oil Company, the United States agrees that the complaint presently “pending against Jill Bird will be dismissed and no further prosecution will be instituted against her” as a result of the Gulf Oil extortion transactions. In order for the agreement to be effective, your cooperation must include: 1. Identification of all explosive devices involved in the Gulf Oil Company extortion attempt. 2. A complete description of each device and specific directions regarding the manner in which each device can be disarmed. 3. The precise location of an existing instrument or equipment which could in any manner be used to detonate any of the explosive devices. In the event of any person injured or any property is damaged as a result of any explosive devices this agreement is null and void. The pending complaint against Jill Bird will not be dismissed and the promise not to prosecute Jill Bird will not be effective until all explosive devices are safely located and disarmed and the threat to public safety is ended. This letter consitutes (sic) the sole agreement between the United States and John McBride and no other promises or representations shall have any force and effect. McBride’s cooperation was thus defined to include the identification and complete description of all explosive devices involved in the extortion attempt, specific directions for disarming each, and the location of existing instruments or equipment that could detonate any devices. Significantly, the agreement does not require McBride to identify only explosive devices at Gulf Oil Company plants or only devices which the Government had not yet located. Neither does it require McBride to locate any particular number of devices. The express conditions for the agreement, stated in the third and fourth paragraphs, are the non-injury of persons and non-damage of property, and the location and disarming of all explosive devices. The clear overall thrust of the agreement on its face is the elimination of a threat to public safety. On the other hand, the government’s promise was in general: that the “United States” agreed that the “pending complaint will be dismissed” and that “no further prosecution will be instituted against her.” B. Consideration The Government argues first that the Agreement is void for lack of consideration on McBride’s part. It argues that McBride, in promising to locate and describe explosives, was not furnishing consideration but merely fulfilling a preexisting duty to refrain from criminal activity. Indeed, a promise to fulfill a duty imposed by law is not valid consideration. 1 Williston, Contracts § 132 (3rd Ed.1957). See e.g., U.S. v. Gorham, 523 F.2d 1088 (D.C.Cir.1975). McBride, however, had no duty to provide the Government incriminating evidence. In doing so, he relinquished his rights under the Fifth Amendment to the United States Constitution and thereby suffered a detriment; and he was induced to suffer that detriment by the Government’s promise not to prosecute his codefendant. Thus, McBride’s promise clearly fits the well-established definition of consideration: a promise to act or forebear that is bargained for and exchanged for a return promise. Rest. Contracts (2d), § 71. The Government, alleging that McBride knew at the time of agreement that all bombs placed at oil facilities had been discovered, also argues that McBride actually had nothing to offer the Government and that this too establishes a lack of consideration. First of all, the consideration specified in the contract is not limited to the identification of additional undiscovered bombs at the Gulf Oil plants but is more general: the identification of all explosive devices connected with the extortion plot. More important, in asserting that “McBride failed to perform his promised consideration, thereby breaching the contract,” the Government confuses consideration with the separate principles of performance and fraud. Even if McBride had explicitly promised that he would identify bombs still hidden at the facilities, knowing at that time that there were no more bombs, his promise would nevertheless constitute consideration. Rather, such knowledge on his part would enable the Government to avoid the contract on the ground that, although supported by consideration, the contract was contaminated by fraud, a contention which the Court addresses below. Calamari, Id., § 9-1, p. 261; but see 6 Williston § 814 (3rd Ed.1962). C. Performance The Government argues that it may repudiate the agreement because McBride “backed down” on his promise to locate additional bombs at the Gulf facilities and is guilty of “anticipatory breach.” In considering the merits of the Government’s argument, it is necessary to return to the language of the agreement and its purpose as revealed by the surrounding circumstances. As indicated above, the agreement did not explicitly call for information on a particular set of bombs but was more open-ended, requiring full disclosure of all circumstances endangering the public. McBride complied with the agreement, first, by relaying all the information he had on bombs planned for and planted at the Gulf facilities — information which, as it turned out, although was not essential to avoid destruction, but which did enable the Government to bring an end to what it viewed as an emergency situation. In addition, McBride pointed the Government to the stock of explosives in the Needham Street basement and provided additional information on the construction of the bombs and the extortion plot. In doing so, he satisfied the basic purpose of the agreement, the elimination of danger. Thus, the Government sought not only the urgently needed information on bombs set to explode at the plants, but also information on bombs held in reserve which might be used by co-conspirators still on the loose. Because McBride’s performance fulfilled the essential purpose of the agreement, the Government is not excused on the ground of breach, from its own performance. The law in Colorado is that rescission will be granted and a contract forfeited only when there has been a major breach that goes to the heart of the agreement, has caused the aggrieved party irreparable injury, and involves more than a mere variance of contract terms. See Utah International, Inc. v. Colorado-Ute Electrical Ass’n, Inc., 425 F.Supp. 1093, 1099 (D.Colo.1976). Nor can the Government repudiate on the ground of anticipatory breach, which occurs when a party makes clear, before performance is due, that he will not perform as promised. See 11 Williston, Contracts § 130, p. 77 (3rd Ed.1968). None of McBride’s behavior indicates that he intended to back down at any time: he began to perform promptly after signing the agreement, cooperating in the interview with agents Jovick, Bell, and Defenbaugh, and continued to perform, substantially complying within the first couple of hours, relaying information as it became available to him during the evening and into the early hours of the morning. D. Conditions Precedent The Government argues next that it may repudiate the contract because a condition precedent to its performance cannot be satisfied, that “[t]he failure of a condition on which the bargain was expressly or impliedly predicated excuses all parties to the contract from performing.” (G. Response, p. 50) Although the Government does not identify the failed condition that allows it to repudiate, the Court surmises that it is the existence, at the time of the agreement, of bombs still undiscovered at Gulf Oil facilities. Again, a look at the agreement and at the law on conditions in Colorado shows that this argument has no merit. A condition is an event, not certain to occur, that gives rise to a duty to perform. Rest. (2d) Contracts, § 224. Where performance is predicated on such a condition, the non-occurrence of that condition excuses performance. North Denver Bank v. Bell, 528 P.2d 413, 414 (Colo.App. 1974); Rest. § 225. Yet conditions are not favored under Colorado law, and for performance to be excused, the intention to create the condition must appear expressly or by clear implication. McMillion v. McMillion, 522 P.2d 125, 128 (Colo.App. 1974). Nowhere in the agreement at bar is the presence of undiscovered bombs identified as a condition precedent to the Government’s performance. Moreover, the agreement already includes a condition subsequent discharging the Government’s duty to perform in the event of an explosion. There is no reason, therefore, in order to preserve the essential purpose of the agreement, to find a condition precedent by process of implication. E. Public Policy The government, relying on language from United States v. Gorham, United States v. Bridgeman, 523 F.2d 1099 (D.C. Cir.1975), and United States v. West, 607 F.2d 300 (9th Cir.1979), argues that the Agreement between Murphy and McBride is void because it is a contract to forebear prosecution and therefore contrary to public policy. In support of its holding that a prison official’s promise not to prosecute rebellious inmates would not be enforced, the court in Gorham stated simply, “because bargains involving the forebearance of prosecution are contrary to public policy, [the promise] would have been nudum pactum.” Id. at 1097. The Court did not explain its reasoning but cited, in footnote 9 of its opinion, 6A Corbin, Contracts § 1421 (1963). The same court in Bridgeman stated, “[w]ere this agreement to be construed as an absolute immunization from prosecution it would be contrary to public policy and nu dum pactum,” and again cited to Corbin. Id. at 1110. The cited section of Corbin’s treatise concerns “bargains for compounding crime or stifling a prosecution.” Corbin explains that, “[t]he ‘compounding’ of a felony was itself a common law crime, and any bargain involving such an offense is necessarily illegal,” and that such bargains “are in various forms, including promises not to prosecute or not to give evidence to the prosecuting officers, promises to conceal evidence, and promises to cause the dismissal of a prosecution already begun.” Corbin points out that “[b]argains to stifle a prosecution are most commonly made by those who have suffered a tortious injury at the hands of a criminal offender,” Id. at 357, and the cases that he cites involve agreements between private parties, see, e.g., Rutherford v. Elliot, 23 F.2d 250, 253 (6th Cir.1928); and are generally attempted settlements of a civil claims that involve dismissals of related criminal charges, see, e.g., Shim v. Kikkoman International Corp., 509 F.Supp. 736 (D.N.J.1981), aff’d sub nom., Woohyung Shem v. Kikkoman International Corp., 673 F.2d 1304 (3rd Cir.1981). The public policy that such agreements violate is the encouragement of disclosure of criminal activity. See, e.g., Lachman v. Sperry Sun Well Surveying Company, 457 F.2d 850, 853 (10th Cir.1972). Surely the government is not compounding a crime whenever it decides not to prosecute someone. It does not take the position that plea bargaining agreements, which may also include promises not to prosecute, are void as “compounding a crime.” Thus, whereas generally the applicability of the law on “compounding a crime” to a governmental grant of immunity is dubious, it is clearly inappropriate in this case where the government, albeit under duress, entered an agreement, precisely in order to obtain information about criminal activity. F. Avoidance 1. Fraud The government also seeks to avoid the agreement on the ground that the authorities in Colorado were induced to enter the agreement by McBride’s fraudulent conduct. It alleges that McBride knew from extensive media coverage of the extortion event before his arrest and imprisonment that the Government had already discovered five bombs at Cedar Bayou, and that he knew there were no other bombs at Cedar Bayou or any other facility. Thus, argues the Government, McBride knew that there was no immediate danger and also knew from statements by the Government agents who negotiated with him that but for their concern about imminent detonation of the bombs they would not have negotiated with McBride. It is undisputed that, while the Government wanted all kinds of information from McBride, including the location of the stored explosives, it would not have entered the agreement had it known that all bombs had been disarmed. It is not clear, however, that the Government was induced into its false expectations by McBride’s behavior. Fraud is a species of misrepresentation, defined as “an assertion that is not in accord with the facts,” which, if it induces the other party to agree to the contract, is ground for that party’s avoidance. Rest. (2d) Contracts §§ 159, 164. McBride made no false assertions before signing the agreement, but said merely, “If you get the charges, against my wife dropped, I’ll give you everything you need.” False “assertions” need not be explicit, however, but may be inferred from the promisor’s nonverbal behavior. Rest. § 159, Comment a. In Colorado, “fraudulent concealment” is a well-established ground for avoidance. Five elements must be established for the aggrieved party to succeed: (1) the concealment of a material existing fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (3) ignorance of that fact on the part of the one from whom the fact is concealed; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages. Ackmann v. Merchants Mortgage & Trust Corp., 645 P.2d 7, 13 (1982) (emphasis added). In the present controversy, the Government has not carried its burden of establishing two of the five elements: McBride’s knowledge of the allegedly withheld information, and his intent to deceive authorities. The testimony, while conflicting, does not show that McBride knew that five bombs had already been found, but rather that until McBride spoke with his co-defendant Mike Worth after the execution of the agreement, he was under the impression that there were undiscovered bombs at Cedar Bayou. That McBride was telling the truth is supported by the testimony of all three of the government officers who negotiated with him that they felt he had acted in good faith. The implication of the testimony of McBride’s co-conspirator Timothy Justice, that McBride knew that all five bombs had been found casts doubt on McBride’s truthfulness, but it is equivocal on the crucial point of whether McBride actually knew that a sixth bomb was never planted at Cedar Bayou. He conceded that McBride may not have known that he and co-conspirators Worth and Bird had taken only five bombs to Houston, and he was unclear himself as to whether in fact they had packed the component parts for the sixth bomb. Thus, the testimony does not establish that McBride himself had the information he is said to have fraudulently withheld from the Government. Consequently, this Court finds that the agreement not to prosecute was not contaminated by fraud or by any other form of misrepresentation. 2. Mutual Mistake Although the Government does not make the argument, the facts before the Court are more suggestive of the contract theory of “mutual mistake” than of misrepresentation. At first glance, it appears that both McBride and the Government mistakenly assumed, on entering the agreement, that more than five bombs had been placed at Gulf plants. It is well established in Colorado that: A party may rescind a contract when, at the time the contract is made, the parties make a mutual mistake about a material fact, the existence of which is the basic assumption of the contract. Beals v. Tri-B Associates, 644 P.2d 78, 80 (Colo.App.1982), citing Rest. (2d) Contracts § 152 (1981). A material fact is one that figures strongly in the inducement to and substance of the contract. 13 Williston Contracts § 1544, pp. 94-100 (3rd Ed.1980). The mistake as to the number of bombs planted was clearly material, for the testimony of the Government agents shows that but for their belief that there were more bombs to be found and disarmed they would not have entered the agreement at all. Nevertheless, the Government may not repudiate its agreement on the ground of mutual mistake, because it entered the agreement consciously uncertain as to the number and distribution of explosives and the exact nature of the information it would get from McBride. The state court in Beals held that parties mistaken as to the course of future events could not rescind for, “[i]ndeed a contract often functions primarily to insulate the parties from uncertainty.” Id., 644 P.2d at 80. The Restatement extends the definition of uncertainty to all cases in which the party seeking to repudiate is “consciously ignorant” on entering the contract yet treats his own limited knowledge as sufficient; such a person is said to bear the risk of the mistake. Rest. (2d) Contracts, § 154(b) and comments c and d (1981). This broader exception from the doctrine of mutual mistake for uncertainty is adopted by the Colorado Supreme Court in Halpern v. Dryden, 154 Colo. 231 (1964), 389 P.2d 590 (Colo.1964): Where an alleged mistake of fact is but a contingency which the parties foresaw was liable to arise from their want of personal knowledge, such contingency forming a basis, in part, of the contract, it is not a ground for rescission. Id. 389 P.2d at 593, (citing 12 C.J.S. Cancellation of Instruments § 27, p. 978.) In the case at bar the Government wisely acted on the assumption that additional bombs were set to explode at the Gulf facilities. Nevertheless it entered the agreement conscious of its own uncertainty as to the existence and number of such bombs and thus chose to make an open-ended request for information rather than to specify the information it needed most. Consequently, the Government bore the risk of its own uncertainty and may not now repudiate the agreement because the exchange was not as valuable as it had hoped. 3. Duress The Government also urges as a ground for avoiding its agreement with McBride that it entered the agreement under duress “in order to save thousands of lives and billions of dollars from the imminent destruction of the Gulf plants (one in a metropolitan area) and the threatened destruction of many times that amount.” (G’s Response, p. 6) It cites cases of prison uprisings in which federal courts have held agreements by the Government to forego prosecution against individuals, in exchange for the release of hostages, to be voidable for duress. United States v. Gorham, 523 F.2d 1088, 1094 (D.C.Cir.1975); United States v. Bridgeman, 523 F.2d 1099, 1110 (D.C.Cir.1975); United States v. West, 607 F.2d 300, 303-304 (9th Cir.1979). In Gorham, “[t]he DC Corrections Director was compelled by threats and by physical violence which ultimately sent him to the hospital to sign an agreement not to take retributive action against prisoners involved in that uprising.” The agreement promised “no reprisals of any kind” and no “court action against any of the inmates involved ...” United States v. Gorham, at 1094. The court held that the Corrections Director had not promised inmates immunity from prosecution, and that he and the district court which ordered, in a civil case involving conditions at the jail, that no action to injure or harass inmates be taken by officials because of action arising out of the disturbance, did not have the authority to preclude the United States Attorney from prosecuting the inmates because the inmates did not come within the purview of federal statutes authorizing immunity to witnesses. The court added that its “conclusion [was] further buttressed by elementary principles of contract law ...” including that “a promise that prosecution would not ensue ... would have ... been voidable because of inducement by duress.” It cited 5 Williston, Contracts § 1605 (rev. ed. Williston & Thompson 1937), for the proposition that, [t]he tendency of the modern cases, and undoubtedly the correct rule is that any unlawful threats which do in fact overcome the will of the person threatened, and induce him to do an act which he would not otherwise have done, and which he was not bound to do, constitute duress.... In Bridgeman, involving the same rebellion the Court of Appeals relied on its earlier conclusions in Gorham holding that, among other contractual defects, “[t]he promise [the Director of Corrections] offered in exchange was secured through the most patent sort of duress and thus was voidable.” United States v. Bridgeman, 523 F.2d at 1110. Similarly, in United States v. West, 607 F.2d 300 (9th Cir.1979), inmates attacked, bound and gagged two prison guards and demanded that prison officials provide them with a car for escape. The associate warden refused to negotiate until the hostages were released, but a few hours later agreed to amnesty and safe conduct for all involved if the hostages were freed unharmed. The hostages were freed and the inmates returned to their cells. The district court, relying on Gorham, held the agreement was not binding on the government because it was induced by duress, refusing to admit evidence presented by the prisoners that the offer of amnesty was not made under duress. The Court of Appeals upheld the lower court, noting that even though the associate warden testified that the inmates had never told him they would harm the hostages unless amnesty was granted, nevertheless “in light of such threats made in connection with other demands it is clear that under the circumstances such a threat was understood.” Id. at 304, n. 3. The prison uprisings in these cases involved an immediate form of physical duress on an individual government official. McBride’s case presents a distinctly different set of facts: the narrow context of the contract was that the United States, represented by Assistant United States Attorney Murphy, felt pressured to enter a contract with a single individual whom it held in custody and who offered, without any threat of harm to FBI agents, Assistant United States Attorney Murphy, or anyone else, to provide information in exchange for the release of his wife. McBride did not threaten the Government that the plot would go through as planned unless it promised not to prosecute Bird; he said simply, “If you let Jill go, I’ll tell you everything I know.” However, the broader context, — an extortion attempt communicated by a letter (set forth in Appendix A) which threatened immediate and extreme physical harm to numerous individuals as well as economic harm by the destruction of property, through time actuated explosive charges which were due to self-detonate — gave the government little choice but to accept McBride’s offer. Duress has generally been defined to include: threats of personal injury, .. . threats of destroying, injuring, seizing land or other things, ... or any other wrongful acts that compel a person to manifest apparent assent to a transaction ... or cause such fear as to preclude him from exercising force, will and judgment in entering into a transaction. 13 Williston, Contracts § 1603, p. 661-3 (3rd ed. Williston & Jaeger 1970). In addition, [t]he test is subjective and the age, sex, capacity, relation of the parties, and all the attendant circumstances must be considered. This follows the analogy of the modern doctrine of fraud which tends to disregard the question of whether misrepresentation were such as would have deceived a reasonable person, ... (emphasis added). Id. at 669. Williston at § 1605, p. 670-1, quoting Lewis v. Fahn, 113 Cal.App.2d 95, 247 P.2d 831, 834 (1952), as leading precedent, which quoted 17 Am. Jur., Duress & Undue Influence, 882-885, duress is to be tested, not by the nature of the threats, but rather by the state of mind induced thereby in the victim. The means used to produce that condition, the age, sex, state of health, and mental characteristics of the alleged injured party, are all evidentiary, merely, of the ultimate fact in issue, of whether such person was bereft of the free exercise of his willpower. Williston, at section 1604, states that “the facts must indicate that [the party claiming duress] was actually induced by the duress ... to give his consent and would not have done so otherwise.” Id. at 664. The courts in Colorado have adopted the rule that To establish duress as ground for the avoidance of a contract, ... it is not alone sufficient to show the exertion of pressure by threats or even by physical compulsion, but it must also clearly appear that the force or threats employed actually subjugated the mind and will of the person against whom they were directed, and were thus the sole and efficient cause of the action which he took .... Wiesen v. Short, 43 Colo.App. 374, 604 P.2d 1191 (Colo.App.1979), quoting Hastain v. Greenbaum, 205 Kan. 475, 470 P.2d 741, 747 (1970). The conduct of the Defendants, including McBride, in sending the extortion letter to Gulf Oil and planting bombs at the Gulf facilities, clearly constituted duress. It unequivocally threatened both loss of life and destruction of property. The testimony of Assistant United States Attorneys Murphy, Longoria and Powers was that the Government felt compelled to assent to the agreement with McBride as a result of the extortion letter, and that none of them would have entered into the agreement if they had not believed the letter that bombs remained to be found at the Gulf facilities. Agents Jovick and Lisotto testified to the same motivation. The source of their belief was the letter and the results of the investigation which it set in motion. The object of the threats in the letter was Gulf Oil Company and indirectly Texas citizens. The fact that a third person, Gulf and Texas citizens, was threatened does not detract from the duress. See 13 Williston, Contracts §§ 1602, 1622A, pp. 657, 769. In this case, the government represented the interests of threatened Texas citizens. Although the threats in the letter were made, not with the intent of procuring Bird’s release, but rather with the aim of procuring 15 or 30 million dollars, it is clear that the original threats continued to exist at the time McBride negotiated the agreement with the government, and that he continued to benefit from those threats. Where duress is alleged, the Court is compelled, as the Court of Appeals did in West, to view the defendant’s actions in light of other threats, to determine whether under the circumstances a threat was understood, to look at “all the attendant circumstances.” See, 13 Williston, § 1603, at 669. McBride’s earlier threats against people and property shaped his dealings with the government. To enforce the resulting agreement simply because the magnitude of the impact of the original extortion letter enabled McBride to adopt a cooperative and benign attitude toward officials once he was in custody, would be to permit him and Defendant Bird to profit from their earlier criminal behavior. The duress Mr. McBride intended to cause and did cause Gulf Oil and indirectly American citizens, compelled the Government to draft and sign the non-prosecution agreement. Therefore, the Court concludes that the agreement is voidable for duress. 4. Ratification of Duress Bird argues that even if the government entered the agreement under duress, it ratified the contract when it dismissed the complaint against Jill Bird. The essential elements of ratification are the removal of duress and an intent to ratify. See e.g. Barnett v. Wells Fargo Nevada Nat’l Bank, 270 U.S. 438, 46 S.Ct. 326, 70 L.Ed. 669 (1912); Green v. Hopper, 278 S.W. 286, 287 (Tex.Civ.App. — Eastland, 1925). Ratification may be manifested in one or more of several ways: a party may ratify, first, by intentionally accepting benefits under the contract; second, by remaining silent or acquiescing in the contract for a period of time after he has the opportunity to avoid it; and third, by recognizing its validity of the contract by acting upon it, performing under it, or affirmatively acknowledging it. See Gallon v. Lloyd-Thomas Company, 264 F.2d 821 (8th Cir.1959); Carter v. Couch, 84 F. 735 (5th Cir.1897); (deed to Texas lands made to discharge indebtedness, under duress of imprisonment, was ratified when donor delayed ten years before bringing action for false imprisonment); Barnett v. Wells Fargo Nevada Nat. Bank, 270 U.S. at 445-6, 46 S.Ct. at 328-29 (1926) (failure of the party under duress to act for more than three years to disaffirm and reliance on that in action by parties whose rights would be divested by disaffirmance); Yingling Aircraft, Inc. v. Budde, 208 F.Supp. 773, 776 (D.Col.1962) (in action on notes given in connection with the purchase of an airplane, a defendant’s repeated affirmances of the contract by retaining the airplane, exercising dominion over it, and participating in the sale of it, had “the legal consequence of loss of power of avoidance.”) In the instant case, the duress ended when the government, on October 5, 1982, determined, following the administration of a polygraph, that McBride had fulfilled his obligations under the contract. The government released Bird, and Assistant United States Attorney filed that day a Motion to dismiss the complaint against Bird [BX # 3] which stated in order to assure that any threat to the public safety had ceased, the United States agreed to dismiss the complaint against JILL BIRD in exchange for certain information to be provided by others, that information has now been provided and evaluated, and it appears that such a threat no long exists. Accordingly, the United States in fulfillment of its obligation under said agreement, requests dismissal of the complaint against JILL BIRD. The government neither accepted benefits under the contract nor remained silent after the duress was removed. However, Assistant United States Attorney Murphy did intentionally affirm the contract by performing under it in dismissing the complaint. That it was Murphy’s intent to affirm the contract is clear from language of his motion. IV. EFFECT OF THE AGREEMENT ON THE INDICTMENT IN THIS DISTRICT Having found that Assistant United States Attorney Murphy ratified his agreement with McBride by performing under it after the duress was removed, the remaining question for the Court is whether that agreement requires the dismissal of the indictment against defendant Bird in the Southern District of Texas. Defendant Bird urges that the application of contract principles requires enforcement of the agreement by this court. She relies on the fact that United States Supreme Court has applied principles of contract law and in requiring the enforcement of plea bargains. Noting that “ ‘plea bargaining’ is an essential component of the administration of justice” and “to be encouraged,” id. 404 U.S. at 260, 92 S.Ct. at 498, the court stated: This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is 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. Santobello v. New York, 404 U.S. 257, at 261, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). The application of contract principles to agreements by the government derives from the court’s supervisory responsibility for the administration of criminal justice, McNabb v. United States of America, 318 U.S. 332, 340, 63 S.Ct. 608, 612, 87 L.Ed. 819 (1943). It is not automatic but depends on whether it will further public policy. As stated by the District Court in United States v. Lieber, 473 F.Supp. 884 (E.D.N.Y.1979), in discussing plea bargains, the question of whether principles of contract law should be applied to plea agreements turn[s] on public policy considerations. It would be inappropriate for the criminal law to totally embrace principles of contract law ... The purpose to be served, [in that case] i.e., the encouragement of dispositions through plea agreements, is not lessened if the remedy [of specific performance, for example] is not available to the Government. We believe that contract principles need be adopted insofar as their utilization will “insure the defendant what is reasonably due in the circumstances.” Id. at 891, quoting Santobello (emphasis added). Similarly in Acosta v. Turner, 666 F.2d 949, 958 (5th Cir.1982), which involved an agreement between defense counsel and the trial court regarding defendant’s competency to stand trial, the United States Court of Appeals for the Fifth Circuit, in requiring enforcement of promises by the trial courts was guided by the relevant policy considerations. It held that because competency to stand trial is of fundamental importance to the criminal justice system, the “proper administration of criminal justice and principles of due process therefore require no less adherence to the state’s agreements in this context than in the area of guilty pleas.” This case involves not a plea bargaining agreement but a prosecutor’s promise not to prosecute one defendant in exchange for cooperation by another defendant. The power to prosecute and to grant immunity from prosecution resides in the legislative and the executive branches of the government. Thus, a formal grant of immunity from criminal prosecution in the federal system can only be made by the Attorney General of the United States with approval of the court pursuant to express statutory authorization, 18 U.S.C. §§ 2514; 6001, et seq. The courts have no independent authority to bestow immunity. See, e.g., United States v. Gorham, 523 F.2d 1088, 1096 (D.C.Cir.1975). United States v. Carter, 454 F.2d 426 (4th Cir.1972). In this case, McBride’s attorney requested, but was denied, statutory immunity for defendant Bird. Nevertheless, courts have held prosecutors to informal promises of immunity made in exchange for guilty pleas or the cooperation of a defendant either in the exercise of the court’s supervisory power over the administration of criminal justice, or alternatively on the basis of the doctrine of “equitable immunity.” For example, in United States v. Paiva, 294 F.Supp. 742 (D.D.C.1969), in considering dismissal of an indictment brought in breach of an agreement between defendant and the United States Attorney, the court stated that “the judiciary may exercise supervisory powers which affect the executive” and that immunity from prosecution had been granted in entrapment cases, for example, “ ‘to deter blatant government misconduct ... to protect “the purity of the Government and its processes.” ’ ” The court reasoned that when the conduct of an officer of the executive branch becomes enmeshed in the judicial process, the courts have the power and resulting duty to supervise that conduct to the extent it uses the judicial administration of justice .... [I]f, after having utilized its discretion to strike bargains with potential defendant, the Government seeks to avoid these arrangements by using the courts, its decision so to do will come under scrutiny. If it further appears that the defendant, to his prejudice, performed his part of the agreement while the Government did not, the indictment may be dismissed. Id. at 747 (emphasis added). Other courts have relied on the doctrine of “equitable immunity” which derives from The Whiskey Gases, 99 U.S. 594, 25 L.Ed. 399 (1878). There, the Supreme Court held that although defendants could not by law plead an agreement by the district attorney that if they testified in behalf of the United States and pled guilty to one count of a pending indictment, then no additional charges would be brought against them, in bar of any indictment against him, they had an equitable title to the mercy of the Executive,” and the court could receive applications to postpone trials in order to give defendants time to apply to the executive for immunity. The doctrine has been subsequently modified and used interchangeably with the doctrine of the court’s supervisory powers. See e.g. United States v. Donahey, 529 F.2d 831, 832 (5th Cir.1976). United States v. Sanderson, 498 F.Supp. 273, 276 (S.D.Fla.1980). The United States Courts of Appeals for the Fifth Circuit, although it has not applied the doctrine of equitable immunity to dismiss an indictment, has indicated that it might do so in appropriate circumstances. See United States v. Weiss, 599 F.2d 730 (5th Cir.1979), (where the court held there was neither a plea bargain nor “promises held out to which the government, as a matter of fair conduct, might be bound”, id. at 738, and noted in dicta that an immunity agreement which was not in compliance with statutory procedures w