U.S. v. Werker

• Decision Date: 11 May 1976
• Docket Number: No. 1110,SANTOS-FIGUEROA,D,1110
• Citation: 535 F.2d 198
• Parties: UNITED STATES of America, Petitioner, v. Honorable Henry F. WERKER, United States District Judge, Respondent. UNITED STATES of America, Plaintiff, v. Harryet al., Defendants. ocket 76-3024.
• Court: U.S. Court of Appeals — Second Circuit

Page 198

535 F.2d 198

UNITED STATES of America, Petitioner, v. Honorable Henry F. WERKER, United States District Judge, Respondent.

UNITED STATES of America, Plaintiff, v. Harry SANTOS-FIGUEROA et al., Defendants.

No. 1110, Docket 76-3024.

United States Court of Appeals Second Circuit.

Argued April 28, 1976.

Decided May 11, 1976.

Henry F. Werker, pro se.

Robert B. Fiske, Jr., U.S. Atty., S.D.N.Y., New York City (Ira H. Block and Howard W. Goldstein, Asst. U.S. Attys., New York City, on the brief), for petitioner, United States of America.

David V. Keegan, Garden City, N.Y. (McCoyd & Keegan, Garden City, N.Y., on the brief), for respondent, Harry Santos-Figueroa.

Gustave Weiss, New York City, for respondent Gregory Johnson.

Before LUMBARD, WATERMAN and MESKILL, Circuit Judges.

LUMBARD, Circuit Judge:

The government petitions for a writ of mandamus, 28 U.S.C. § 1651, ordering the Honorable Henry F. Werker, United States District Judge for the Southern District of New York, to refrain from communicating to any defendant in the pending case of United States v. Santos-Figueroa, et al., prior to the entry of a plea of guilty, the sentence to be imposed upon that defendant if such a plea is subsequently submitted. The petition raises significant questions of the proper exercise of judicial power and the administration of criminal justice in the federal courts that would evade review if not considered at this time. ¹ We therefore consider mandamus to be an appropriate method, of review. United States v. Dooling, 406 F.2d 192 (2d Cir.), cert. denied sub. nom. Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969); International Business Machines Corp. v. Edelstein, 526 F.2d 37, 40 (2d Cir. 1975). While we have no doubt that Judge Werker's proposed procedure was motivated in good faith by concern for the judicious and expeditious resolution of criminal cases, we agree with the government that the promise by a judge of a specific sentence for a subsequent plea of guilty falls within the explicit proscriptions of Rule 11(e) of the recently amended Federal Rules of Criminal Procedure. In addition, in the exercise of our supervisory power, we are of the view that such judicial intervention is inconsistent with the proper administration of criminal justice. We therefore grant the petition as requested.

On February 26, 1976, a grand jury in the Southern District returned a two-count indictment charging Harry Santos-Figueroa, Victor Holmes, and Vincent Hicks ² with attempted armed robbery in violation of 18 U.S.C. §§ 2, 2113(a), (d). According to the government, the testimony would show that Santos-Figueroa and Hicks entered the branch of the Bankers Trust Company at 1770 Madison Avenue on February 17, 1976. In the course of the attempted robbery, Santos-Figueroa allegedly struggled with a bank guard and shot him in the chest while Hicks disarmed another bank guard. The three defendants then fled in a rented automobile driven by Holmes which was speedily pursued by officers of the New York City Police Department. After a brief chase, the defendants' car was involved in a crash, and Santos-Figueroa was apprehended immediately thereafter. An automatic pistol was found in his possession. Holmes and Hicks escaped after the crash. All of the above is merely a recital of what the United States Attorney expects to prove at trial. Holmes was arrested later on the evening of the attempted robbery and Hicks was arrested on March 8 on a charge of committing another armed bank robbery.

Santos-Figueroa and Holmes entered pleas of not guilty at their arraignment on March 1, 1976. Thereafter, pursuant to Fed.R.Crim.P. 11(e), defense counsel for Santos-Figueroa attempted unsuccessfully to obtain from the Assistant United States Attorney in charge of the case an agreement on a recommendation for a maximum ten year sentence instead of the 25 year maximum possible under § 2113(d). ³ In accordance with the longstanding policy of the Southern District, the Assistant United States Attorney refused to discuss any possible recommendation regarding sentence in return for a plea of guilty, which practice is generally recognized as plea bargaining. ⁴ The United States Attorney maintains that in light of the gravity of the offense charged and Santos-Figueroa's major role in the offense, this case would be most inappropriate for deviation from that policy.

At a pretrial conference on March 31, 1976, counsel for Santos-Figueroa informed Judge Werker of the government's refusal to agree to recommend ten years as a maximum sentence and requested him to indicate that no greater sentence would be imposed following a guilty plea. Judge Werker then requested, and later obtained, the defendant's permission to inspect a pre-sentence report pursuant to Fed.R.Crim.P. 32(c)(1). ⁵ The judge further indicated that at a later pretrial conference, scheduled for April 22, he would inform Santos-Figueroa of the sentence to be imposed if he were to plead guilty. The government expressed its opposition to this procedure.

After a conference with Judge Werker at which it was agreed that the proposed procedure raised important issues that should be promptly reviewed by this court, the United States Attorney filed this petition for mandamus on April 20th. The pretrial conference at which Judge Werker was to reveal the sentence he would impose has been postponed pending this court's decision.

Judge Werker has submitted an affidavit in support of his procedure. On April 28 we heard oral argument by the United States Attorney and counsel for Santos-Figueroa.

The amendments to Rule 11, Fed.R.Crim.P., which became effective on December 1, 1975, were designed to clarify and regulate the procedure for discussions and agreements regarding pleas of guilty. Rule 11(e)(1) states categorically: "(t)he court shall not participate in any such discussions." The commentaries regarding this injunction, and consideration of its intendment, leave no room for doubt that its purpose and meaning are that the sentencing judge should take no part whatever in any discussion or communication regarding the sentence to be imposed prior to the entry of a plea of guilty or conviction, or submission to him of a plea agreement. See ABA Standards Relating to Pleas of Guilty § 3.3(a), Commentary at 72-74 (1968) which were the model for the 1975 amendments to Rule 11. See also Advisory Committee Notes to Federal Rules of Civil Procedure, 62 F.R.D. at 283-84; President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts 13 (1967); id., The Challenge of Crime in a Free Society 136 (1967); Informal Opinion No. 779 ABA Professional Ethics Committee, 51 A.B.A.J. 444 (1965). ⁶ Those who support a pre-plea revelation of a sentence argue, however, that this disclosure does not constitute "discussion," but merely provides the government and defense counsel with additional data that they may properly use to reach an authorized plea agreement. We believe that the circumstances in which the judge would elicit the information necessary to formulate a pre-plea sentence and the consequences of the offer of that sentence would create the very dangers that the proscription in Rule 11 was intended to avoid. We therefore conclude that Rule 11 prohibits the practices proposed in this case.

The primary concern of those who would dissociate the judge from the plea bargaining process has been that judicial intervention may coerce the defendant into an involuntary plea that he would not otherwise enter. See, e.g., Brown v. Peyton, 435 F.2d 1352 (4th Cir. 1970). The defendant may fear that rejection of the plea will mean imposition of a more severe sentence after trial or decrease his chances of obtaining a fair trial before a judge whom he has challenged. The concern that these fears may be translated into an involuntary plea have been admirably expressed in an often-quoted statement by Judge Weinfeld:

"The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. One facing a prison term, whether of longer or shorter duration, is easily influenced to accept what appears the more preferable choice" (footnote omitted).

United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244, 254 (S.D.N.Y.1966).

It is contended that these concerns do not affect the present case because Judge Werker has indicated that the sentence he discloses prior to entry of a guilty plea will also be binding for purposes of a trial if Santos-Figueroa refuses to plead guilty. Equipped with the knowledge of the full implications of his plea, it is argued, the defendant's decision will be more likely to comport with the requirement of an informed plea. See Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747, 756 (1970).

These arguments fail to consider, however, that quite apart from the sentencing process, the defendant may in fact be prejudiced or believe himself to be prejudiced if he does not plead guilty in response to the judge's proposed sentence. The defendant must view the judge as the individual who conducts the trial and whose rulings will affect what the jury is to consider in determining guilt or innocence. The defendant may therefore be reluctant to reject a proposition offered by one who wields such immediate power. Regardless of the judge's objectivity, it is the defendant's perception of the judge that will...