United States v. Thomas J. Bowler

585 F.2d 851, 1978 U.S. App. LEXIS 8115
CourtCourt of Appeals for the Seventh Circuit
DecidedOctober 30, 1978
Docket77-1820
StatusPublished
Cited by114 cases

This text of 585 F.2d 851 (United States v. Thomas J. Bowler) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Thomas J. Bowler, 585 F.2d 851, 1978 U.S. App. LEXIS 8115 (7th Cir. 1978).

Opinions

REYNOLDS, District Judge.

The defendant-appellant Thomas J. Bowler has appealed from one of three sentences imposed upon him after he entered pleas of guilty to three criminal indictments pursuant to a comprehensive plea agreement covering a total of four indictments, on the ground that the Government prosecutor failed to honor'promises made in the plea bargain. In this appeal, the defendant seeks to have this court either order specific performance by the Government of the promises that he claims were made or to reduce the sentence at issue. We vacate that sentence and remand to the district court with instructions that it require the Government specifically to perform the plea agreement and that it resentence the defendant.

I. THE PLEA AGREEMENT

In 1976-1977 Bowler was indicted four times by a grand jury sitting in the Northern District of Illinois. One indictment dealt with the filing of false and fraudulent income tax returns (76 CR 1035) and the other three indictments dealt with antitrust law and mail fraud violations (77 CR 190, 191, 192). After the indictments were handed down the defendant entered into plea negotiations with the Government which resulted eventually in a plea agreement. The only portions of that agreement relevant to this appeal are the provisions contained therein for disposition of two of the four indictments, i. e., 76 CR 1035 and 77 CR 190.

With regard to 76 CR 1035, the agreement provided that the defendant would plead guilty to three counts of the indictment and that the Government would dismiss the remaining counts and would recommend that any period of incarceration imposed run concurrently with any periods of incarceration imposed in 77 CR 190 and 77 CR 191.

With regard to 77 CR 190, the agreement provided that the defendant would plead guilty to two counts of the indictment and that the remaining counts would be dismissed; that the defendant would cooperate with the Government in further prosecution of 77 CR 190 and 77 CR 191 and in existing investigations of violations of federal law; and further, to quote from the agreement:

“2. * * * C. The Government will recommend a maximum period of incarceration for defendant of three years. The Government will further recommend that any periods of incarceration imposed in 77 CR 190, 77 CR 191 and 77 CR 192 [853]*853run concurrently with each other and with any period of incarceration imposed in 76 CR 1035, notwithstanding the fact that the sentences will be imposed by the respective judges to whom the cases are presently assigned. The Government’s recommendations as to incarceration in cases 77 CR 190 and 77 CR 191 may be reduced, based upon the extent of defendant’s truthful cooperation as described in paragraph 2 B above, the condition of his health and other personal factors, and Antitrust Division guidelines which indicate that fines may be substituted for incarceration in appropriate circumstances.”

The defendant was sentenced to concurrent three-year terms on the counts of the indictment to which he pled guilty in 76 CR 1035; to concurrent one-year terms on the counts of the indictment to which he pled guilty in 77 CR 190; and the sentences imposed in the two actions were made to run consecutively to each other, with the result that the total period of incarceration imposed was four years. In making the sentences run consecutively, the district judge rejected the Government’s recommendation that the sentences imposed in the different actions also should be concurrent to each other. This appeal from the sentence imposed in 77 CR 190 followed.1

The issue presented is whether or not the Government failed to honor the plea agreement in making its sentencing recommendation to the sentencing judge in 77 CR 190. Bowler argues that the Government had promised but subsequently failed to consider reducing its recommendation as to incarceration in light of the defendant’s health, cooperation, and the sentencing guidelines of the Antitrust Division.2 The Government disputes that it promised to consider reducing the recommendation, and it also disputes that the recommendation was not in fact reduced. The issue for resolution in this appeal thus involves an interpretation of the language of the plea agreement quoted above.

II. THE GOVERNMENT’S BREACH OF THE PLEA AGREEMENT

An analysis of whether or not a promise made by the Government for the purpose of obtaining a defendant’s plea of guilty to a criminal charge has been fulfilled commences with the rule 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, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). Strict fulfillment of prosecutorial promises emanates as a requirement from the significant consequences of a guilty plea — the waiver of important constitutional rights and the “adjudicative element” that is inherent in the plea. Id.

Unlike Santobello, however, where, there was a clear promise to the defendant and a clear breach of that promise, the instant case involves a facially ambiguous statement by the Government that it may exercise its discretion to consider a reduction of recommended sentence in light of the specified factors. On the face of the statement there is no explicit promise by the Government that it would recommend a reduction, and the Government now argues that the language of the agreement only created a unilateral option for the Government in its discretion to recommend or not to recommend a lesser period of incarceration. The Government argues that there was in fact no promise.

We are of the opinion that the very presence of the statement in the written and executed plea bargain document to [854]*854consider the specific mitigating factors shows that there was an implicit promise by the Government that it would consider these factors and would make a recommendation based on this consideration. The structure of the plea agreement shows that the Government’s promise to consider the defendant’s health and his cooperation and the Antitrust Division sentencing guidelines was intended by the Government, and was understood by the defendant, as an inducement for the defendant’s plea of guilty. The inclusion in the agreement of the language that the “Government’s recommendations as to incarceration * * * may be reduced, based upon” the specified factors would serve no purpose in the plea agreement unless construed to contain an implicit promise to consider the specified factors, for the Government had the authority to consider such mitigating factors even without the assent of the defendant to the language. The Government had no need to secure a “unilateral option” for it to consider such factors with an eye toward reducing its recommendation as to the sentence of incarceration. To construe the plea agreement as not including the Government’s implicit promise to consider the specified factors would be to render the language mere surplusage. The language was included in the agreement as an indication to the defendant that these factors would in fact be considered in arriving at the recommendation as to sentence. The Government will not be allowed to avoid the obligation it thus incurred by claiming now that the language literally promises nothing to the defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
585 F.2d 851, 1978 U.S. App. LEXIS 8115, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-j-bowler-ca7-1978.