US v. Chi Keung Chim
| Decision Date | 06 March 1989 |
| Docket Number | No. CR-88-637.,CR-88-637. |
| Citation | 708 F. Supp. 38 |
| Parties | UNITED STATES of America, Plaintiff, v. CHI KEUNG CHIM, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Peter E. Ball, Asst. U.S. Atty., Brooklyn, N.Y., for plaintiff.
John H. Jacobs, New York City, for defendant.
On November 7, 1988, the defendant, together with three others, was indicted for conspiring to import heroin in violation of 21 U.S.C. § 963; knowingly and intentionally importing heroin in violation of 21 U.S. C. § 960(a)(1) and knowingly and intentionally possessing heroin with intent to distribute it in violation of 21 U.S.C. § 841(a)(1). Thereafter, discussions ensued between the defendant and the government with a view towards achieving a more favorable disposition of the charges against him. Those discussions resulted in an offer extended to the defendant by the government to plead guilty to a lesser included offense which would be punishable by a term of imprisonment of not less than five and not more than forty years, rather than a term of not less than ten and not more than life if he were found guilty of the crimes as charged in the indictment. That offer, the defendant was advised, was to remain in effect until January 6, 1989. The case was scheduled for trial at 9:30 a.m. on January 9, 1989.
The court was informed that the defendant would accept that offer and the matter was calendared for 2:15 p.m. on Friday, January 6th at which time the defendant would plead guilty to a superseding information by which he would be charged with the lesser included offense. The court was later advised that the defendant had decided to reject the offer and would go to trial as scheduled on Monday, January 9th. The defendant, together with co-defendant Yong Wei Shi, was present on January 9th and a jury was selected. (It should be noted that co-defendants Kai Ming Cheung and Kenny Chen pleaded guilty on January 3 and January 5, 1989, respectively.) Immediately following the selection of the jury and after being informed that the government would not reinstate its expired offer, the defendant pleaded guilty to the three counts of the indictment. At all times prior to and up to and including the entry of his plea, the defendant was represented by Thomas White, Esq. The trial of co-defendant Shi proceeded and on January 12, 1989 the jury returned a verdict of acquittal on all counts.
Private counsel, John H. Jacobs, was thereafter retained to represent this defendant.1 On February 13, 1989, the defendant filed a motion seeking an order permitting him to withdraw his guilty plea pursuant to Rules 11(c)(1), 11(d) and 32(d) of the Fed.R.Crim.P. and "ordering specific performance of a previously made plea offer." Mr. Jacobs acknowledged that he was in the courtroom and conferred with the defendant immediately prior to the entry of his guilty plea.
Rule 11(c)(1) provides in relevant part that prior to accepting a guilty plea the court must inform the defendant in open court and determine that he understands the nature of the charge to which he offers to plead guilty, the mandatory minimum and maximum penalties provided by law, including the effect of any special parole term. In his affidavit (par. 20) Mr. Jacobs swears that from an examination of the minutes of the proceedings at which the defendant pleaded guilty, it appears that the plea was entered by the defendant without a full understanding of the rights he was waiving and the minimum sentence involved. The length of this opinion will not be expanded by reciting those portions of the minutes of the proceeding which belie that assertion. Suffice it to say that the court has examined the minutes which clearly reflect that the defendant was addressed personally in open court and a determination was made that he understood the nature of the charges to which his plea was offered, the mandatory minimum and maximum penalties provided by law with respect to each charge including the effect of any term of supervised release. (Tr. 2, 5, 6, 8-11).
Rule 11(d) provides in relevant part that prior to accepting a plea of guilty the court must determine that the plea is voluntary and not induced by force or threats or of promises apart from a plea agreement. "The court shall also inquire as to whether the defendant's willingness to plead guilty ... results from prior discussions between an attorney for the government and the defendant or the defendant's attorney." The minutes of the proceeding clearly reflect that the defendant entered his plea of guilty voluntarily and not as a result of force or threats. And when the court inquired whether the plea was in consideration of any agreement between the defendant and the government, the defendant's attorney responded "No, your Honor"; the government attorney responded "Absolutely no agreement, your Honor." and when the defendant was asked whether "anybody made any promise to you as to what your sentence will be", he responded, "No promise at all." The defendant does not and cannot assert that his plea of guilty was in reliance upon any agreement.
In his sworn affidavit, Mr. Jacobs asserted that the defendant informed him that when being advised of the minimum and maximum penalties during the plea allocution, Mr. White In response to an inquiry by the court as to whether he inquired of Mr. White as to the truth of that statement prior to preparing his affidavit, Mr. Jacobs replied that he did not. Mr. Jacobs called Mr. White as a witness at the hearing on this motion and Mr. White unequivocally denied making such a statement. It bears repetition to note that the defendant stated that no promise was made to him regarding his sentence and that he had previously been advised by the court that he was sworn to tell the truth and that false answers to the court's questions might subject him to a charge of perjury. (Tr. 2-3). The defendant did not elect to testify at the hearing and the court credits the sworn testimony of Mr. White.
The defendant also asserts that his plea was flawed by the failure of the court to explore with him at the time discussions regarding cooperation he apparently had with the United States Attorney. There was, indeed, references to cooperation during the colloquy between counsel and the court during the course of the plea allocution. The minutes reflect that the United States Attorney would listen to such information as the defendant was willing to impart as he would with anybody else. (Tr.4). The defendant makes no claim that he offered to cooperate or to impart valuable information to the government which the government rejected.2
Needless to say, the worth of any information imparted rests entirely with the government as does the determination whether or not to move the court to consider a downward departure from the sentencing guidelines. Guideline 5K1.1. It is plain, however, that the defendant understood that he had no agreement of any kind with the government and that no promise had been made to him regarding his sentence.
Turning to the defendant's contention that a plea agreement did exist between the government and the defendant which the court should direct the government to specifically perform, that contention lacks merit for the following reasons: "While plea agreements are a matter of criminal jurisprudence, most courts ... have held that they are also subject to contract principles." United States v. Papaleo, 853 F.2d 16, 19 (1st Cir.1988). It would be an affectation of research to cite cases for the hornbook principle that, questions of consideration aside, an enforceable contract requires an offer and acceptance. "The offer creates a power of acceptance permitting the offeree by accepting the offer to transform the offeror's promise into a contractual obligation." Calamari and Perillo, The Law of Contracts, § 2-5 (2d ed. 1977). The power to accept an offer may be terminated by the lapse of time. That is to say, if the offeror states that acceptance must be on or before a given day, the power to accept will lapse at the end of that day. Calamari and Perillo, supra, § 2-23(a). Those elementary principles are precisely applicable here. The plea offer extended to the defendant fixed a specific time for its acceptance and any effort to accept it at a later date was ineffective. The defendant's notice of motion quite correctly seeks specific performance "of a previously made plea offer." Nowhere do his moving papers suggest that the offer, while it was still viable, was ever accepted.
"A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of ... any ... constitutionally protected interest." Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984). In Mabry, a prosecutor proposed to defendant's attorney that in exchange for a plea of guilty to a specified offense, a sentence of 21 years to be served concurrently with other sentences would be recommended. That offer was communicated to the defendant who agreed to accept it and his acceptance was communicated to the prosecutor who then advised counsel that a mistake had been made and the offer was withdrawn. The prosecutor proposed instead, that in exchange for a guilty plea he would recommend a stated sentence to be served consecutively to the defendant's other sentences. The defendant rejected the new offer and stood trial. After a mistrial was declared, plea negotiations resumed resulting in the acceptance of the second offer. In deciding that the plea cannot be collaterally attacked and dismissing a petition for a writ of habeas corpus unde...
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