Correale v. United States

• Decision Date: 06 June 1973
• Docket Number: No. 73-1009.,73-1009.
• Citation: 479 F.2d 944
• Parties: Anthony CORREALE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — First Circuit

479 F.2d 944 (1973)

Anthony CORREALE, Appellant, v. UNITED STATES of America, Appellee.

No. 73-1009.

United States Court of Appeals, First Circuit.

Argued April 9, 1973.

Decided June 6, 1973.

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Richard Cotton, Manchester, N. H., by appointment of the Court, for appellant.

Roger L. Gauthier, Asst. U. S. Atty., with whom William B. Cullimore, U. S. Atty., was on brief, for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

This appeal from a denial of a motion to vacate sentence under 28 U.S.C. § 2255 requires examination of prosecutorial obligations in plea bargaining.

Appellant, incarcerated on October 15, 1970 in state prison under a 4-to-8 year state sentence, was indicted in December 1970 in the District of New Hampshire as an accomplice to a bank robbery. After discussions between appellant's counsel and the United States Attorney, and, of course, conversations between counsel and appellant, he changed his plea to guilty on July 23, 1971, at which time the government made a sentence recommendation which was the inducement for the plea and the subject of the present controversy. After extensive exchanges, including those required by Fed.R.Crim.P. 11, the plea was accepted and, at the government's request, sentencing postponed until after the trial of his co-defendants. On December 10, 1971, after a repetition of the government's position and statements by appellant and his counsel, a sentence of 5 years was imposed by the court under 18 U.S.C. § 4208(a) (2), making the appellant eligible for parole at such time as the Board of Parole may determine.

Promptly after his release, on March 15, 1972, by the state authorities and his transfer to a federal institution, appellant filed the instant motion seeking to withdraw his plea or have his sentence vacated because of the government's alleged breach of what he understood to be the promise. After appointment of counsel, a full hearing was held, as required by United States v. McCarthy, 433 F.2d 591 (1st Cir. 1970). At the hearing, appellant waived his claim for withdrawal of his plea and pressed only his request that the remainder of his sentence be suspended. The government, while opposing that request, did not oppose vacation and resentencing. After finding that neither his counsel nor the United States Attorney misled the appellant and that the latter fulfilled his sentence recommendation promise, the court held that even under the petitioner's own version of the facts, he would not be entitled to relief under 28 U.S.C. § 2255. This appeal followed.

All sides agree that, at a minimum, the United States Attorney promised to make a recommendation that the court impose a sentence that would be effectively concurrent with the state sentence that he was then serving, meaning primarily that he would be eligible for federal parole at the time that he was paroled by the state authorities. Though the appellant claimed that he understood the agreement to be a guarantee that he would in fact be paroled under his federal sentence when paroled by the state, the district court found, based on credible testimony by both the United States Attorney and appellant's counsel at disposition, that the agreement was only the more common and realistic one of a recommendation to that effect.

Appellant's fundamental complaint, however, was not directly dealt with in the district court's opinion, although fully aired at the hearing. It is that the United States Attorney recommended a federal sentence of 4-to-8 years, which, whether designed to effectuate a general promise of an effectively concurrent recommendation or to fulfill what appellant's counsel testified was a more specific undertaking, was an illegal federal sentence, and in any case, one which in fact would not have been effectively concurrent with the one then being served. If the agreement simply was to recommend an effectively concurrent sentence, the 4-to-8 year recommendation clearly failed to implement it. If, on the other hand, the 4-to-8 year recommendation was specifically promised, the defect is equally fatal, it being impossible of fulfillment. Under the circumstances, therefore, there is no point in remanding for further findings as to the relationship of the specific recommendation to the basic plea agreement. We must reverse, not because of any lack of good faith, but only because the most meticulous standards of both promise and performance must be met by prosecutors engaging in plea bargaining.

Plea bargaining is a fundamental part of our criminal justice system as presently structured. It produces prompt adjudication of many criminal prosecutions, thus reducing the period of pre-trial detention for those unable to make bail and permitting more extensive consideration of the appropriate disposition. These benefits flow, however, from the defendant's waiver of almost all the constitutional rights we deem fundamental. There must accordingly be safeguards to insure that the waiver is knowledgeable, Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and voluntary, Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). Though a legitimate prosecution promise does not render a guilty plea legally involuntary, Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), its fulfillment is a necessary predicate to a conclusion of voluntariness when a plea "rests in any significant degree" on it. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).¹

It does not suffice, however, simply to make any promise and fulfill it. The Supreme Court has recognized as much in defining the standard of voluntariness for guilty pleas:

"A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by . . . misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor\'s business (e. g., bribes)." Brady, supra, 397 U.S. at 755, 90 S.Ct. at 1472.

Nor are the obligations to avoid misrepresentations or improper promises limited to good faith efforts. Prosecutorial duties affecting the fairness of trials have never been so restricted. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L. Ed.2d 104 (1972). The same is true of the government's role in plea bargaining. In Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948), a majority of the Court agreed that the guilty plea there would be void if "a member of the prosecution, gave her, however honestly, clearly erroneous legal advice." Id. at 728, 68 S.Ct. at 325.² In Santobello, the Court reaffirmed that view: "That the breach of agreement was inadvertent does not lessen its impact." 404 U.S. at 262, 92 S.Ct. at 499. Prosecutorial misrepresentations, though made in good faith, even to obtain a just, and here a mutually desired end, are not acceptable. Ignorance of the law is no excuse for the government, just as it avails not the defendant. Nor are contradictory or confusing statements of the law adequate. While we do not go so far as to say that minor and harmless slips by prosecutors will void a plea bargain, we hold that, at a minimum, a prosecutor may not, in exchange for a guilty plea, promise and/or make a recommendation of an illegal sentence.³

Here, the United States Attorney, though conscientious and well-intending, did not meet his obligations, whichever view is taken of the exact scope of the plea agreement. The recommendation had three fatal defects. First, a 4-to-8 year sentence is an impermissible federal sentence. 18 U.S.C. § 4208(a) explicitly provides:

"Upon entering a judgment of conviction, the court . . . may (1) designate in the sentence of imprisonment imposed a minimum term at the expiration of which the prisoner shall become eligible for parole, which term may be less than, but shall not be more than one-third of the maximum sentence imposed." Emphasis added.

The recommended sentence, even if specifically promised, was therefore plainly contrary to law. Second, a sentence setting almost any minimum would have prevented concurrent federal parole eligibility since, as defense counsel informed the court at the disposition in December 1971, appellant's case would be considered by the state parole board by February 1972 at the latest. Third, the recommended sentence would not have been concurrent, even in the technical sense, the appellant having already served some 14 months of his state 4-to-8 year sentence by the time of federal sentencing. To make the federal sentence even facially concurrent, 14 months should have been subtracted from the outer recommended limits.

The United States Attorney apparently recognized this final problem at the last moment. At the disposition hearing he stated that: "I think the effect of any sentence to Mr. Correale which was in excess of three years would be to have no chance of a concurrent sentence." At the § 2255 motion hearing, he explained that he had meant that were the federal sentence to be truly concurrent, the federal minimum could not have been more than the roughly three years remaining to be served under the state minimum. He made no effort at sentencing, however, to give this explanation of his cryptic comment or to explain the inconsistency between that comment and his basic 4-to-8 year recommendation. In any event, even this belated observation was completely unresponsive to the almost immediate possibility of state parole, which defense counsel had just mentioned. Nor was the situation cleared up when, after the court's announcement that it would impose a 5-year sentence with immediate parole...