U.S. v. Kurkculer, 89-1266

Citation918 F.2d 295
Decision Date05 October 1990
Docket NumberNo. 89-1266,89-1266
PartiesUNITED STATES, Appellee, v. Ismail KURKCULER, a/k/a George Murphy, Defendant, Appellant. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Ralph J. Perrotta, for defendant, appellant.

Seymour Posner, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., was on brief, for appellee.

Before BOWNES, Circuit Judge, BROWN, * Senior Circuit Judge, and TORRUELLA, Circuit Judge.

JOHN R. BROWN, Senior Circuit Judge.

This case presents the question, left unanswered by the Supreme Court in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), of the appropriate remedy for a breach by the prosecution of a plea bargain agreement. Santobello left the choice of remedy, within certain boundaries, to the discretion of the state court, "which [was] in a better position to decide [what] the circumstances of [the] case require[d]." Id. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433.

Although the Santobello Court did not identify the constitutional basis of the decision, its holdings are clearly of such proportions, since the Court would otherwise have had no jurisdiction over the defendant's sentencing under New York statutes. 1 We see no reason, therefore, to distinguish between the discretion to be afforded state and federal courts in breach-of-plea-bargain cases.

Santobello requires us to reverse and remand for resentencing or a vacated plea and new trial as the circumstances require. Id. Under our own breach-of-plea-bargain cases following Santobello, we find that the circumstances of this case do not require a new trial and that resentencing is an adequate, appropriate remedy.

How It All Began

Appellant Kurkculer was prosecuted for wire fraud in connection with a scheme to defraud merchants by ordering goods COD and paying United Parcel Service with phony certified or cashier's checks.

Kurkculer and the government entered a plea agreement on December 18, 1988, under which Kurkculer was to plead guilty and the government was to recommend sentencing under the guidelines at level 13, and recommend the shortest sentence for that level--12 months--if merchandise valued at $100,000 or more was returned.

Kurkculer pleaded guilty on December 19 to three counts of fraud under 18 U.S.C. 1343, and before sentencing he returned merchandise valued at about $132,500. The probation officer's presentence report, however, suggested that a higher sentence level was warranted. Some of the reasons included evidence that Kurkculer had promoted similar schemes in other jurisdictions, and the probation officer's opinion that, because Kurkculer had bargained for a lower sentence recommendation in exchange for his guilty plea and the return of the merchandise, he had not truly accepted responsibility for his actions.

In the first session of a three-part sentencing hearing on February 15, 1989, the prosecution recommended that Kurkculer be sentenced in accordance with the presentence report. The defense objected to the prosecution's failure to make its recommendations in accordance with the agreement.

The hearing was continued, and on February 22, the defense moved that the matter be assigned to another judge for sentencing and that the prosecution be ordered to keep its agreement. The judge refused to recuse himself from the matter. The prosecution withdrew its original recommendation and now recommended a 12-month sentence under level 13 of the guidelines, as agreed. The defense renewed its motions, contending that the prosecution's new recommendation was ineffective, since the judge had heard the original recommendation and understood that this was the prosecution's "real" evaluation. The judge said that he was unaffected by the prosecution's recommendations, and held that because of the new recommendation there was no breach of the plea agreement. The judge asked if the defendant wished to withdraw his guilty plea, but defense counsel continued to request recusal and specific performance of the agreement.

Finally, on March 3, Kurkculer was sentenced in accordance with the recommendations of the presentence report, to three years in prison on each of the three counts, to run concurrently. The court also increased Kurkculer's sentence beyond the guideline range because of his "frivolous" objection to the presentence report.

Promises, Promises

The Supreme Court's Santobello decision and our own decisions 2 require more than good faith by the government in securing through plea bargaining a defendant's waiver of constitutional rights. The government must keep its promises or the defendant must be released from the bargain. Thus, on remand Santobello's possible remedies for a prosecutor's breached agreement were specific performance or withdrawal of the bargained-for plea.

In Santobello, a prosecutor inadvertently breached a colleague's earlier agreement to make no sentence recommendation, and instead recommended the maximum sentence. The sentencing judge stated for the record that he was not influenced by the prosecutor's mistaken recommendation but rather by the presentence report, and sentenced the defendant to the maximum prison time.

The Santobello Court held that, "[W]hen 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, 30 L.Ed.2d at 433 (emphasis added).

The Court remanded for the state court "to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be sentenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty." Id. at 263, 92 S.Ct. at 499, 30 L.Ed.2d at 433 (emphasis added). The Court obviously considered withdrawal of the plea--Santobello's preferred remedy--more extreme than resentencing.

It is at least suggested by the use of the word "only" and the phrase "or whether ... the circumstances require," that specific performance by the government of the plea agreement is the minimum acceptable remedy, and it is clear that where specific performance is a sufficient remedy, the Supreme Court has held that such a defendant "should be sentenced by a different judge." Id.

The Revolving Issues

The case at hand revolves around factors which distinguish it from Santobello. It is distinguishable from Santobello by the prosecutor's retraction of his original recommendation followed by an acknowledgement and recitation of the agreed upon recommendation, 3 and by the court's offer to permit the defendant to withdraw his plea. 4

In Kurkculer's sentencing, the prosecution withdrew its first recommendation, which was contrary to the plea agreement, and told the court that it was recommending sentencing in accordance with the agreement. Kurkculer argues that, since the judge was aware of the prosecutor's original recommendation and would consider it as the prosecutor's "real" opinion on the matter, the prosecutor's attempt to remedy its breach was ineffective.

The trial judge stated that he was not influenced by the offending recommendation, and held that the prosecution's retraction not only remedied the breach, but that there somehow was no breach at all. On appeal, it is not disputed that there was a breach. 5

The government contends however, that since the trial court offered Kurkculer the opportunity to withdraw his guilty plea and he declined, Kurkculer has waived all right to any remedy to the prosecution's breach.

The questions then, are whether the prosecutor's belated specific performance before the same judge was a sufficient remedy to his breach, and whether the defendant has waived any relief by declining to withdraw his plea when offered the opportunity to do so.

May a Defendant Choose His Remedy?

While not denying that Santobello affords a remedy for a government breach of a plea bargain, the government argues that Santobello does not afford a defendant a choice of remedy, and so by refusing the offered remedy, Kurkculer has waived any right he had to a remedy.

In his concurrence to Santobello, Justice Douglas recommends that "a court ought to accord a defendant's preference considerable, if not controlling, weight inasmuch as the fundamental rights flouted by a prosecutor's breach of a plea bargain are those of the defendant, not of the State." Santobello, 404 U.S. at 267, 92 S.Ct. at 501, 30 L.Ed.2d at 436. Justice Douglas was the "swing" vote on this issue; three of the seven justices believed the defendant should be entitled to withdraw his plea if he chooses. Id. at 267-69, 92 S.Ct. at 501-02, 30 L.Ed.2d at 436-37 (Marshall, Brennan & Stewart, JJ., concurring in part and dissenting in part). Thus a majority of the Court would afford at least substantial deference to a defendant's preference for vacating a plea. Id. at 268 n. *, 92 S.Ct. at 502 n. *, 30 L.Ed.2d at 437. This arithmetic inference, however, should not be confused with the law of the case, which is that the court, not the defendant, chooses the remedy.

Petitioner cites Correale v. United States, 479 F.2d 944 (1st Cir.1973), apparently to support a preference for the relief requested by the defendant. But in Correale, the defendant abandoned a claim for vacating his plea and such an option was not offered by the trial court. In Correale, we determined that, where the defendant, as here, sought resentencing and not the opportunity to withdraw his plea, specific performance could not always be provided by remanding to a different judge for resentencing. We observed that in Santobello, unlike Correale, the defendant had been released on bail and had not begun to serve his sentence, and that therefore the Court had no reason to consider any other...

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