USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1083
UNITED STATES OF AMERICA,
Appellant,
v.
DAVID WALSH,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
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No. 93-1328
IN RE UNITED STATES OF AMERICA,
Petitioner.
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ON PETITION FOR A WRIT OF MANDAMUS
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Before
Stahl, Circuit Judge,
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Aldrich and Campbell, Senior Circuit Judges.
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Ira Belkin, Assistant United States Attorney, with whom Margaret
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E. Curran, Assistant United States Attorney, and Lincoln C. Almond,
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United States Attorney, were on brief for appellant.
Susan M. Carlin with whom Stephen R. Famiglietti and Famiglietti
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& Carlin, Ltd. were on brief for appellee.
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October 27, 1993
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ALDRICH, Senior Circuit Judge. This case presents,
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in the words of the district court, an issue of "very first
impression under the guidelines." We believe the court
correct as to uniqueness, but we would not limit this
description to the guidelines. Having initiated the vacation
of a negotiated plea at the time of sentencing, the court
nevertheless left defendant with the benefit of his bargain,
viz., free from all related charges, an immunity the
government had granted as consideration for the plea. We
concur in the government's unhappiness at this one way
street.
Defendant, an officer of a mortgage company,
allegedly endorsed a sizeable check so as to enable the
company to receive its proceeds instead of paying off a
customer's mortgage. The government investigated the
possibility of mail fraud and other felonies, but, before
seeking an indictment, discussed the matter with defendant's
counsel. In due course a plea agreement in customary form
was worked out and executed. Basically, defendant consented
to an information charging aiding and abetting bank fraud
being filed to which he would plead guilty, and waived any
right to withdraw his plea, once entered; the government, in
return, would recommend a low sentence, and would not
institute any additional charges for defendant's "previously
disclosed criminal conduct at Medcon Mortgage Corp." In due
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course, after a comprehensive examination of defendant (16
pages of transcript that presented no problems), the court
accepted the plea. Sentencing was twice deferred. When the
time came, the court announced that it had read the pre-
sentence report, and that on defendant's interpretation of
the facts he was not guilty, and it would vacate the plea.
The government protested, saying that its interpretation
differed, but the court was adamant. It is common ground
that there was no bad faith in connection with the plea
agreement, or any defect or deficiency in the acceptance of
the plea. Defendant, however, accepted the court's
suggestion and moved to vacate his plea. The court did so.
Whether this was unique -- we will not question the
court's right to vacate a plea -- the procedure and outcome
were entirely so. Upon the government's stating that on the
vacation of the plea it would not be prepared for trial on
the information, and that it wanted to go back to square one
and consider presenting the other matters to a grand jury,
the court responded that this would not be fair to the
defendant. It concluded by ordering the information
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dismissed with prejudice.1 The government appeals, and, as
a precaution, also seeks mandamus.
The court opened the hearing saying that it
understood the government did not want to stay "in the
position where you end, but advancing that position somewhat
in terms of possibly making more charges against the
defendant." The government replied that if the defendant's
undertaking was off, so should be the government's. The
court, evidently troubled,2 responded that because of what
it, the court, had done, the defendant may be facing other
charges "in spite of the government's prior agreement with
him." To the government's statement,
All we're asking is that the Court allow
the government to go back to the position
it was in before it filed the information
in reliance upon the agreement.
the court said,
The government made a bargain. The
defendant made a bargain. They're going
to carry it out.
On analysis "they" meant the government.
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1. We note in passing that the government at one point said
it would move to dismiss with prejudice, but on timely
recognizing that this would be a procedural -- and
substantive -- mistake, did not do so, but sought dismissal
without prejudice. The proceedings were ultimately conducted
on this later basis. Defendant's brief wastes time arguing
the initial non-event.
2. "I must say the defendant certainly must be wondering how
this could happen when he's done nothing to precipitate it.
It's what I've done that put the defendant in this
predicament."
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The court's reasoning appears to be that since it
was the court's fault that defendant was in a predicament
defendant should not suffer; hence the government must. We
do not agree. In the first place, it was not, strictly, the
court's fault. Although the court prompted (to use
defendant's term) him, it was defendant who moved to withdraw
his plea, in violation of his agreement.3 He made no
attempt to do otherwise. He could have. A court may accept
a plea even when the defendant denies his guilt but thinks
the plea would be to his advantage. North Carolina v.
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Alford, 400 U.S. 25 (1970). But quite apart from this, there
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was no reason why the government, whose actions had been
above-board in every respect, should suffer.
The government is rightly apprehensive that the
court has established a flaw in the whole plea agreement
process. Make a routine, fair, agreement under which both
parties give up rights; have it approved by the court and a
plea entered after an extensive hearing and, suddenly, at the
sentencing hearing, the court volunteers doubts as to
defendant's guilt and releases defendant's obligation, but
retains the government's. Even as to the single charge in
the information the government is subject to the Speedy Trial
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3. "6. Defendant DAVID WALSH waives any right that he may
have to withdraw his plea to the Information once entered."
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restrictions that would not have commenced had it not, based
on defendant's agreement, filed the information.
A plea agreement is a contract, and if the
defendant violates it the government is no longer bound.
United States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st
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Cir.), cert. denied sub nom., Latorre v. United States, 484
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U.S. 989 (1987). Nor should a court choose to terminate it
on behalf of the defendant and yet preserve the government's
obligation. We can scarcely accept defendant's claim that
the government, in asking for its release, was guilty of an
"unjustified procedural maneuver" amounting to "prosecutorial
harassment."
The court placed the government in a further
difficulty. If it accepted the court's alternative from
dismissal with prejudice by proceeding to try the information
and lost, there could have been a danger of double jeopardy
as to the other related offenses. United States v.
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Blockburger, 284 U.S. 299, 304 (1932). On the other hand,
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while there appears to be no law on the point, dismissal with
prejudice might raise questions of double jeopardy or res
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judicata. See United States v. Schaffner, 771 F.2d 149, 152
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(6th Cir. 1985). Defendant now contends that the
government might have tested the court's statement that it
was bound not to do so, by instituting grand jury proceedings
and obtaining an indictment. This would have involved many
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resources, and, at a minimum, in view of the court's
pronouncement, serious criticism and a risk of sanctions.
The suggestion scarcely fits defendant's lament below that
not to dismiss with prejudice "unfairly prolongs the life of
the cloud under which defendant and his family have existed."
Manifestly defendant's present contention would have greatly
prolonged that cloud.
We have left jurisdiction to the last because it,
in turn, may depend upon the answers to the questions we have
already presented. The government can appeal criminal
dismissals under 18 U.S.C. 3731 when they are "inextricably
intertwined" with a prior order. E.g., United States v.
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Tane, 329 F.2d 848, 851-52 (2d Cir. 1964). Defendant insists
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there is not such a relationship between the court's vacating
the plea agreement and the dismissal with prejudice. We
would question that. In any event we believe the government
has a right to object. United States v. Giannattasio, 979
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F.2d 98 (7th Cir. 1992).
It is ordered that the dismissal of the information
is affirmed, but changed to without prejudice, and it is
further ordered that the government's obligations under the
plea agreement stand vacated.
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