The opinion of the court was delivered by: Simandle, Chief Judge:
The United States has indicted Defendant James Pressley in this case for the crime of converting to his own use the money of the United States, namely, Supplemental Security Income ("SSI") benefits payments he received from the Social Security Administration ("SSA") to which he was not entitled due to his concealment of income and resources, in violation of 18 U.S.C. § 641. The sources of allegedly concealed income upon which the indictment was based are set forth in a Bill of Particulars supplied by the Government herein, the largest source being Pressley's receipt of corrupt payments (bribes) totaling $35,800 when he was a member of the Pleasantville Board of Education in 2006. Pressley had previously been indicted, convicted and sentenced in this Court for his receipt of these same bribes, in violation of 18 U.S.C. § 1951(a), pursuant to a written plea agreement. United States v. James Pressley, Crim. No. 07-974 (JBS) (Information filed Dec. 10, 2007). The written plea agreement contained the Government's promise that the U.S. Attorney's Office will not initiate any further charges against Pressley for, between May 2006 and November 2006, demanding and receiving corrupt payments in exchange for his official action and influence as a member of the school board.
Defendant seeks dismissal of the present indictment, alleging that the United States has breached his 2007 plea agreement by initiating charges based largely on his receipt of the same bribes for which he was already prosecuted and sentenced. Defendant argues that a valid plea agreement between himself and the United States Attorney's Office for the District of New Jersey in the prior criminal matter of United States v. James Pressley, Crim. No. 07-974, has been breached by the Government in the present matter, and that such breach warrants dismissal of the indictment. The Government argues that it has not breached Defendant's prior plea agreement, and that in any case, dismissal of the indictment is not warranted even if the Court were to find that the plea agreement has been breached. The principal issues to be decided in this motion are (1) whether bringing the indictment in this matter breached Defendant's prior plea agreement and (2) if so, whether dismissal of the indictment is the appropriate remedy for such breach.
This motion presents a close question in a unique factual situation. However, because the Court concludes that the present indictment, based in substantial part on evidence of Defendant's prior undisclosed income from the 2006 bribes, is inconsistent with what Defendant reasonably understood and expected when he entered into the plea agreement, the Court finds that the indictment constitutes a breach of the plea agreement. Additionally, the Court concludes that the appropriate remedy for this breach is specific performance of the agreement, which requires the dismissal of the instant indictment without prejudice, for reasons now discussed.
II. FACTUAL AND PROCEDURAL BACKGROUND
On several dates in June through September of 2006, Defendant accepted bribes as a member of the Pleasantville, New Jersey, Board of Education, in exchange for his support for obtaining roofing and insurance brokerage services on behalf of parties paying the bribes. December 11, 2007, Transcript of Plea Hearing, 31:4-32:14 [Docket Crim. No. 07-974, Item 17]. The bribes in total amounted to approximately $40,000.*fn1 Id. On September 6, 2007, Defendant was arrested on a one-count criminal complaint alleging that Defendant's accepting of bribes constituted a violation of 18 U.S.C. § 1951(a). On December 10, 2007, upon the filing of an Information, Defendant pleaded guilty to the charge in accordance with a plea agreement with the United States Attorney's Office for the District of New Jersey. [Docket Crim. No. 07-974, Item 15.]
The plea agreement was dated September 11, 2007, but was signed by the parties on December 10, 2007, and it included a waiver of appeal rights. The agreement further set forth, in part:
If James A. Pressley enters a guilty plea and is sentenced on this charge, and otherwise fully complies with all of the terms of this agreement, this Office will not initiate any further criminal charges against James A. Pressley for, between in or about May 2006 and November 2006, demanding and accepting corrupt payments in exchange for his official action and influence as a member of the Pleasantville Board of Education.
Plea Agreement at 1. The agreement further states:
This agreement was reached without regard to any civil or administrative matters that may be pending or commenced in the future against James A. Pressley. This Agreement does not prohibit the United States, any agency thereof (including the Internal Revenue Service) or any third party from initiating or prosecuting any civil proceeding against James A. Pressley.
The parties do not dispute that the Court accepted Defendant's guilty plea, that Defendant fully performed his obligations under the plea agreement, including cooperating with the Government in the prosecution of others, and was sentenced on August 8, 2008 to, inter alia, a custodial sentence of 24 months imprisonment and a three-year period of supervised release. [Docket 07-974, Item 19.] Consistent with his plea agreement, Pressley filed no appeal or motion for post-conviction relief. Pressley has served his sentence of imprisonment and is now serving his term of supervised release.
Defendant asserts in his motion that the Government was aware at the time it drafted the plea agreement that Defendant was receiving SSI benefits, and therefore that the plea agreement implicitly includes an agreement to not prosecute Defendant for receipt of such benefits. In support of this contention, Defendant points to the Pre-Sentence Investigation Report prepared by a U.S. Probation Officer on February 26, 2008, prior to Defendant's sentencing, which noted that Defendant was legally blind. Pre-Sentence Report ¶ 117. Further, Defendant notes that he received notice from the SSA of a possible overpayment determination on December 18, 2007, only eight days following his guilty plea. Defendant later administratively appealed the initial determination, and on September 18, 2008, the SSA Office of Disability Adjudication and Review affirmed the determination of overpayment, explaining that [t]he Social Security Administration discovered that Mr. Pressley was president of the Pleasantville board of Education and had pleaded guilty to taking bribes. Development was initiated to determine if the claimant had resources of $2,000.00 or more and on December 18, 2007, Mr. Pressley was notified that no Supplemental Security Income Payments were due beginning on October 2006 because of resources worth more than $2,000.00 since that month.
Sept. 18, 2008 SSA Opinion, Def.'s Ex. D.
On August 9, 2011, after Defendant had completed his custodial term of imprisonment, a federal grand jury in the District of New Jersey returned the indictment in the instant matter alleging one count of conversion of money of the United States in violation of 18 U.S.C. § 641. The indictment alleges that between January 2003 and December 2007, Defendant collected SSI payments while ...