United States v. Husband

748 F. Supp. 476, 1989 U.S. Dist. LEXIS 17172, 1989 WL 225604
Procedural entryThis page is a short order in United States v. Husband. Read the opinion of the Court — 771 F. Supp. 176
District Court, E.D. Texas·Decided December 13, 1989·No. No. B-89-00100-CR(1)·Published

Opinion

MEMORANDUM OPINION

COBB, District Judge.

In this criminal proceeding, this court set a hearing for September 14, 1989, to hear proposed pleas of guilty for Dave Husband and Buck Husband, both of whom had signed plea agreements with the United States. According to the terms of the agreement, these two defendants were to plead guilty to certain counts of the indictment, with an agreed “cap” upon both their total exposure to imprisonment and their exposure to imprisonment for each count. A third defendant, David Neil Husband, was to plead “true” to several forfeitures alleged in the same indictment.

During the course of the hearing, a question arose as to whether the exposure negotiated in Dave Husband’s plea agreement could be imposed under the Federal Sentencing Guidelines.1 The court recessed the hearing so that a representative from the United States Probation Office could calculate the correct applicable sentence under the Guidelines. After hearing the calculations of the probation officer, it was the conclusion of this court the actual sentence which could be imposed under the plea agreement consistent with the Guidelines was substantially less than the plea agreement indicated upon its face. The plea agreement stated a negotiated maximum sentence of one hundred and forty-four months. This was the “cap” agreed to by the United States Attorney’s office and the defendant Dave Husband. Under the Guidelines, however, if the plea agreement as written was accepted by this court, [477]*477there was a strong possibility the maximum sentence this court could impose would be sixty months.2

Based upon this discrepancy between the maximum Guidelines sentence which could be imposed and the maximum exposure to imprisonment which had been negotiated, this court exercised its discretion and rejected Dave Husband’s plea of guilty. Because the pleas of guilty and true (as to forfeiture) of the other two defendants involved were closely connected with that of the defendant Dave Husband, the court rejected those pleas as well. The defendants Dave Husband and Buck Husband then moved that this court recuse itself from further involvement in this case.

THE DEFENDANTS’ MOTION

First, the court notes that while the defendants’ motion is styled “Motion to Re-cuse”, it apparently encompasses two motions, one for specific performance of the plea agreement, and the other for recusal. The defendants mention at paragraph XII of the Motion to Recuse that they intend to file a motion for specific performance, and in detail proceed to recite the case law and facts they allege would support such a motion. For the sake of clarity, this court renders an opinion both on the question of specific performance and on the motion for recusal.

SPECIFIC PERFORMANCE OF THE PLEA AGREEMENT

The defendants argue that this court should be estopped from refusing to accept the plea agreement because “the defendants’ only viable defense was plea bargaining and because their most valuable bargaining chip has been lost as a direct result of the Court’s [sic] statements to the defendants’ counsel that he would accept the negotiated plea bargain agreement-” Motion to Recuse, para. XII. In support of this argument, the defendants cite Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

Santobello is clearly distinguishable from the instant case. In Santobello, the petitioner was charged with two felony counts involving gambling. Id. at 258, 92 S.Ct. at 497. After negotiation with an assistant district attorney for the State of New York, the petitioner agreed to plead guilty to one count, a lesser-included offense that carried a maximum sentence of one year. In exchange for the plea, the assistant district attorney agreed to make no recommendation as to the sentence to actually be imposed. Id.

At the sentencing hearing, a second district attorney appeared for the State of New York, and recommended the maximum one year sentence. Id. at 259, 92 S.Ct. at 497. The defense attorney object[478]*478ed to the recommendation. The sentencing judge replied that he was not influenced by the assistant district attorney's recommendation, and based upon the probation report, imposed the maximum sentence permissible. Id. at 259-60, 92 S.Ct. at 497-98.

The Supreme Court of the United States held “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.” Id. at 260, 92 S.Ct. at 498. The Court reinforced this point by saying, “[sjtaff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’.” Id. It is clear from Santobello that a prosecutor may not renege upon the promises made in exchange for a plea of guilty. However, the Court also recognized and emphasized a point critical to the applicability of Santobello to the present case. "There is, of course, no absolute right to have a guilty plea accepted. A court may reject a plea in exercise of sound judicial discretion.” Id. (citations omitted). The prosecutors in the instant case held to whatever promises they may have made, and the defendants make no allegation they failed to do so. In fact, the defendants’ entire argument for specific performance rests upon the fact that they do not agree with or approve of this court’s exercise of its discretion.

It is obvious from Santobello that a trial judge has absolute discretion to reject a plea agreement, but' Santobello does not stand alone for this proposition. Fed.R. Crim.P. 11(e)(2) clearly vests in the court the discretion to accept or reject “a plea agreement.” This court also looks to the unequivocal precedent of the Fifth Circuit, which held Santobello inapposite where, as here, “the prosecutor was willing to go through with his part of the bargain, and ... it was the trial judge who rejected the agreement.” United States v. Adams, 634 F.2d 830 (5th Cir.1981). It is well settled that a plea agreement may be accepted or rejected within the sound exercise of the trial judge’s discretion. Adams, 634 F.2d at 835; United States v. Carrigan, 778 F.2d 1454 (10th Cir.1985); United States v. Moore, 637 F.2d 1194 (8th Cir.1981). This alone, without more, is not sufficient to entitle a defendant to specific performance of a plea agreement. Adams.

This court finds that the prosecutor in the instant case did not fail to meet a term of the plea agreement. Accordingly, specific performance of the plea agreement, merely based upon the trial court’s rejection of the agreement, is not appropriate, and if the defendants’ motion is considered as a motion for specific performance, it is denied.

RECUSAL

The defendants argue that this court should recuse itself from this case because “the Court's [sic] statements on the record as well as to Mr. Hawthorn, Mr.

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United States v. Husband, 748 F. Supp. 476, 1989 U.S. Dist. LEXIS 17172, 1989 WL 225604 (E.D. Tex. 1989).

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