U.S. v. Kobrosky, 83-1304
| Decision Date | 05 July 1983 |
| Docket Number | No. 83-1304,83-1304 |
| Citation | 711 F.2d 449 |
| Parties | UNITED STATES of America, Appellee, v. Milton L. KOBROSKY, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Philip Lauro, Springfield, Mass., for defendant, appellant.
C. Brian McDonald, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before CAMPBELL, Chief Judge, McGOWAN, * Senior Circuit Judge, and SELYA, ** District Judge.
Dr. Milton L. Kobrosky appeals from the district court's refusal, on two separate occasions, to permit him to withdraw his plea of guilty to twenty-four counts of mail fraud, conspiracy, and obstruction of justice. For the reasons set forth herein, we affirm the successive decisions of the district court refusing Kobrosky permission to withdraw his plea. We do so, however without prejudice to the appellant's right to apply for an immediate hearing in the district court, pursuant to 28 U.S.C. § 2255, on his claim of ineffective assistance of counsel.
Appellant Kobrosky was a physician licensed to practice in the Commonwealth of Massachusetts. He maintained an office in the north end of Springfield, Massachusetts. On February 25, 1982, he was arrested and charged with violating 18 U.S.C. § 1503, obstruction of a grand jury witness. The formal indictment, handed up on March 16, 1982 (the "March Indictment"), charged that Kobrosky had committed both the substantive offense itself, and, together with Howard J. Cotter (a disbarred attorney) and Robert C. McCarthy (a practicing lawyer), had conspired to violate section 1503, in violation of 18 U.S.C. § 371. The charges arose from a federal grand jury investigation of possible mail fraud in connection with insurance claims purportedly prepared and submitted by the named defendants.
Kobrosky was tried on this indictment, with his co-defendants, in August, 1982. Neither charge against Kobrosky reached a jury. The district court entered a judgment of acquittal on the conspiracy charge, pursuant to Fed.R.Crim.P. 29(a), and declared a mistrial as to the remaining charge.
The past, however, proved but a pale pastiche of events to follow; on October 19, 1982, the grand jury returned a superseding indictment (the "October Indictment") against Kobrosky, Cotter, McCarthy, and a pharmacist, Leo Norkin. The October Indictment charged Kobrosky with two counts of obstruction of justice in violation of 18 U.S.C. § 1503, 1 with one count of conspiracy to commit mail fraud in violation of 18 U.S.C. § 371, and with fifty-four substantive counts of mail fraud, in violation of 18 U.S.C. §§ 1341 and 1342.
On November 16, 1982, Kobrosky entered a plea of not guilty to all counts of the October Indictment. After several delays, a trial date was fixed, which was subsequently postponed to February 24, 1983. On that date, Kobrosky changed his plea to guilty to one count of conspiracy, twenty-one counts of mail fraud and the two counts of obstruction of justice. The government then dismissed the remaining counts against him. Co-defendant Cotter pled guilty on this date as well. Co-defendants McCarthy and Norkin entered their respective guilty pleas on the following day.
Kobrosky's plea was accepted following a hearing held in accordance with Fed.R.Crim.P. 11(c). The district judge before whom the plea was entered was thoroughly familiar with material portions of the factual predicate as he had presided over the 1982 trial on the March Indictment. At the hearing, Kobrosky, in response to detailed questioning from the district judge, acknowledged that he was aware: (i) that he was waiving his constitutional right to a speedy and public trial by jury with the assistance of counsel; (ii) that the maximum agglomerate sentence which could be imposed under the counts to which he was pleading guilty (the "uncontested offenses") was one hundred twenty years imprisonment and fines aggregating $41,000.00; and (iii) that the court had not yet decided on the sentence to be imposed. Kobrosky affirmed that he had discussed all of the facts of the case with his attorney, Efrem A. Gordon; that no threats or inducements had been made to euchre a guilty plea; and that his capitulation was entirely free and voluntary. Finally, Kobrosky responded that he had sufficiently discussed both the case and his plea with Gordon, and that Gordon's representation had been satisfactory.
Throughout the proceedings, Kobrosky made it clear that he was entering his guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). In Alford, the Supreme Court recognized that "[a]n individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." 400 U.S. at 37, 91 S.Ct. at 167. Significantly, the Supreme Court further stated, in language which seems tailor-made for the case at bar, that there was no "material difference between a plea that refuses to admit commission of the criminal act and a plea containing a protestation of innocence when, as in the present case, a defendant intelligently concludes that his interests require entry of a guilty plea and the record before the judge contains strong evidence of actual guilt." Id. The district court accepted the plea on this basis. Following a reading of the pertinent descriptions of the uncontested offenses as set forth in the October Indictment, the following exchange took place:
The plea was accepted, and case was thereupon continued for preparation of a pre-sentence report and imposition of sentence.
On March 14, 1983, Kobrosky filed his first motion for permission to withdraw the plea (the "March 14 motion"). He appended thereto his own affidavit and the affidavits of six secretaries who had worked for Kobrosky, Cotter and-or McCarthy. The grounds alleged in support of plea withdrawal were the recent discovery of supposedly exculpatory evidence and of evidence putatively corroborative of Kobrosky's theory of the case, namely, that his signature had been forged on many of the medical reports submitted with the insurance claims. The government vigorously disputed the March 14 motion, contending inter alia that the evidence presented with the motion had been known or available to Kobrosky, had due diligence been exercised, throughout the discovery period.
The trial judge denied Kobrosky's motion on March 17, 1983, following oral argument. The court left no doubt but that it understood Kobrosky's Alford plea to be a plea of guilty, made for the purpose of asseverating his innocence:
After discussing the affidavits submitted with the March 14 motion, and reviewing the history of the litigation, the district court concluded:
For this court to allow a plea of guilty to be withdrawn and to allow that particular defendant to thereafter go to trial, it must be of such serious nature and in the best interest of justice not only is the court's board discretion tested, but the aspect upon which this defendant's guilt is determined.
You either allow a manifest injustice to go forward, if you see it, or just the opposite, you find that the plea itself was made voluntarily, knowingly and intelligently and make your decision accordingly.
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I have seen nothing here that makes me feel other than perhaps there might be some mitigation that perhaps could be argued by Doctor Kobrosky at the time of disposition, but certainly nothing to make me feel that there would be manifest injustice, as I say, if I did not allow this plea to stand on its own merits.
The doctor is a professional man, he is an intelligent man, he understood clearly what this trial and case meant to him, and he knew what it might mean to his professional career if he pled under any conditions, and in spite of all that and with the aid and assistance of one of this area's noted criminal lawyers who had all the time necessary to give him proper advice, he did plead.
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... I am satisfied that the doctor understood, and ... I find no reason to make me feel that this plea should be withdrawn.
I also do believe that the government had made a point ... namely, the government claims its prosecution has now been dismantled and if they decided to...
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