United States v. William Eugene Carter

454 F.2d 426, 1972 U.S. App. LEXIS 11600

• Court: Court of Appeals for the Fourth Circuit
• Decided: January 27, 1972
• Docket: 14017
• Status: Published

Opinions

WINTER, Circuit Judge:

After his motion to dismiss his ten count indictment was denied without evi-dentiary hearing, William Eugene Carter was convicted in the Eastern District of Virginia on charges of forgery and conspiracy, 18 U.S.C.A. §§ 495, 371 and 2, and sentenced to an aggregate term of sixteen years. The Virginia prosecution involved stolen Treasury checks, some of which were the object of an earlier prosecution against defendant in the District of Columbia. The motion was grounded upon the assertion that defendant had been promised, in consideration of his help and cooperation in apprehending and convicting other defendants in the District of Columbia, that he would not be prosecuted elsewhere for any crime arising from the stolen checks.

The correctness of the denial of the motion is the sole issue on appeal. We conclude that the motion should be the subject of evidentiary hearing to determine if a promise was made and, if so, by whom and of what scope. We vacate the judgment and remand the case for further proceedings.

I

In the posture of this case as it comes to us, defendant alleged that he incriminated himself and others and pleaded guilty to a misdemeanor charge of possession of stolen checks upon the promise of an Assistant United States Attorney for the District of Columbia that, except for the charge to which he pleaded guilty, defendant would not be prosecuted for commission of the crimes he divulged. The sworn statement of his counsel, who negotiated the agreement, was that defendant would not be prosecuted anywhere else for anything having to do with the stolen checks.¹ There was an unsworn general denial of these allegations.

It was also alleged, under oath, that defendant fully performed his part of the bargain to the complete satisfaction of the F.B.I. agents in charge of the case and that others were apprehended and convicted on the basis of the information defendant supplied. Defendant pleaded guilty to the misdemeanor charge in the District of Columbia; and, when the extent of his cooperation was made known to the sentencing judge, defendant was placed upon a year’s probation.

Defendant further alleged that he was prosecuted in the Eastern District of Virginia only when he refused further cooperation with a Secret Service Agent who was annoyed at the manner in which the F.B.I. had handled the case. The Secret Service Agent, early in his investigation, gained access to the data divulged by defendant to the F.B.I.; but he claimed, in a less than searching interrogation, that he used none of it to build the case against defendant in the Eastern District of Virginia.²

II

At the outset, we recognize that we are dealing with allegations and not facts. We cannot, therefore, make any final disposition of the case. We recognize also with respect to the claim of immunity from further prosecution that ordinarily immunity in the federal system may be granted only with the approval of the court pursuant to express statutory authorization. See, e. g., 18 U.S.C.A. § 2514. Cf. Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966 (1968). There is no allegation that the District of Columbia court knew that any promise of immunity had been made to defendant or that the court approved it.

Nonetheless, we conclude that if the promise was made to defendant as alleged and defendant relied upon it in incriminating himself and others, the government should be held to abide by its terms. United States v. Paiva, 294 F.Supp. 742 (D.D.C.1969) so holds: /“if, after having utilized its discretion--to strike bargains with potential defendants, the Government seeks to avoid those arrangements by using the courts, its decision so to do will come under scrutiny. If it further appears that the defendant, to his prejudice, performed his part of the agreement while the Government did not, the indictment may be dismissed 294 F.Supp. at 747. We approve the molding and direct that it be applied here if the facts alleged be proved. See also, State of Maryland v. Michael Isele, Criminal Nos. 247 and 248 (Circuit Court for Calvert County, Maryland, November 4, 1968).

The only distinction between Paiva and the instant case is that in Paiva the bargain was breached in the district in which it was made while here the bargain was allegedly breached in a neighboring district. We think this a distinction without a difference. The United States government is the United States government throughout all of the states and districts. If the United States government in the District of Columbia, acting through one of its apparently authorized agents, promised that the sole prosecution against defendant would be the misdemeanor charge in that jurisdiction, and defendant relied on the promise to his prejudice — facts which must be proved in the plenary hearing if the indictment is to be dismissed — we will not permit the United States government in the Eastern District of Virginia to breach the promise.

Sound reasons of public policy support this result. Many federal crimes have multistate ramifications and are committed by persons acting in concert. If we hypothesize a single defendant charged with the interstate transportation of a stolen motor vehicle through several states, we would not question that the efficient administration of justice would support the authority of the prosecutor in one of those states to obtain an indictment and bargain for a guilty plea, agreeing that all offenses in the other jurisdictions would be disposed of in the single case. If there is added to the hypothetical codefendants and, if the plea bargain includes a promise of cooperation in their disclosure and/or their prosecution, the desirability of the result we reach becomes more apparent. A contrary result would constitute a strong deterrent to the willingness of defendants accused of multistate crimes to cooperate in speedy disposition of their cases and in apprehending and prosecuting codefendants.

If there be fear that an United States Attorney may unreasonably bargain away the government’s right and duty to prosecute, the solution lies in the administrative controls which the Attorney General of the United States may promulgate to regulate and control the conduct of cases by the United States Attorneys and their assistants. The solution does not lie in formalisms about the express, implied or apparent authority of one United States Attorney, or his representative, to bind another United States Attorney and thus to visit a sixteen year sentence on a defendant in vio-rlation of a bargain he fully performed. There is more at stake than just the liberty of this defendant. At stake is the honor of the government public confidence in the fair administration of justice, and the efficient administration of justice in a federal scheme of government.^

Ill

The judgment of conviction is vacated and the case remanded for evidentiary determination of the issue raised by the motion to dismiss. If the promise was made, relied upon and breached as alleged, the indictment should be dismissed; otherwise, the judgment may be reinstated.

Vacated and remanded.

ADDENDUM

Subsequent to the preparation of the foregoing opinion, the Supreme Court decided Santobello v. New York, 404 U.S. , 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). We deem this decision additional support for the result we reach. “[A] constant factor [in the disposition of charges after plea discussions] is 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.” 404 U.S. at 262, 92 S.Ct. at 499.

1 . Counsel’s affidavit is phrased that he “understood” that this was the agreement. He alleged corroboration of this understanding in the form of a comment from the F.B.I. agent who participated in negotiation of the agreement that, when apprised of the subsequent contemplated prosecution in the Eastern District of Virginia, the agent termed it “unfair” in the light of the previous agreement.

2 . In answer to defendant’s motion to dismiss the indictment, the government alleged only that the evidence to be used in the Virginia prosecution “was gained substantially independent of the statement furnished to the F.B.I. by the defendant.” (emphasis supplied)