United States v. David Walsh

• Court: Court of Appeals for the First Circuit
• Decided: October 27, 1993
• Docket: 93-1083
• Status: Published

Opinion

USCA1 Opinion

United States Court of Appeals
                            United States Court of Appeals
                                For the First Circuit
                                For the First Circuit
                                 ____________________

        No. 93-1083

                              UNITED STATES OF AMERICA,

                                      Appellant,

                                          v.

                                     DAVID WALSH,

                                 Defendant, Appellee.
                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF RHODE ISLAND

                     [Hon. Francis J. Boyle, U.S. District Judge]
                                             ___________________
                                 ____________________

        No. 93-1328

                           IN RE UNITED STATES OF AMERICA,

                                     Petitioner.
                                 ____________________

                          ON PETITION FOR A WRIT OF MANDAMUS
                                 ____________________

                                        Before

                                 Stahl, Circuit Judge,
                                        _____________
                     Aldrich and Campbell, Senior Circuit Judges.
                                           _____________________
                                 ____________________

            Ira Belkin, Assistant  United States Attorney, with whom  Margaret
            __________                                                ________
        E.  Curran, Assistant United  States Attorney, and  Lincoln C. Almond,
        __________                                          _________________
        United States Attorney, were on brief for appellant.
            Susan M. Carlin with whom Stephen  R. Famiglietti and  Famiglietti
            _______________           _______________________      ___________
        & Carlin, Ltd. were on brief for appellee.
        ______________
                                 ____________________

                                   October 27, 1993
                                 ____________________

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.
                                                      _______________

            Alford, 400 U.S. 25 (1970).  But quite apart from this, there
            ______

            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
            ______________     ________________

            Cir.),  cert. denied sub nom., Latorre  v. United States, 484
                    _____________________  _______     _____________

            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.
                                                       ______________

            Blockburger,  284 U.S. 299, 304  (1932).  On  the other hand,
            ___________

            while there appears to be no law on the point, dismissal with

            prejudice  might raise  questions of  double jeopardy  or res
                                                                      ___

            judicata.   See United States v. Schaffner, 771 F.2d 149, 152
            ________    ___ _____________    _________

            (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.
                                                 ____   _____________

            Tane, 329 F.2d 848, 851-52 (2d Cir. 1964).  Defendant insists
            ____

            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
                                      _____________     ____________

            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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