Kingsley v. U.S.

• Decision Date: 05 May 1992
• Docket Number: No. 91-2053,91-2053
• Citation: 968 F.2d 109
• Parties: Michael J. KINGSLEY, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 109

968 F.2d 109

Michael J. KINGSLEY, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 91-2053.

United States Court of Appeals First Circuit.

Heard May 5, 1992.

Decided July 6, 1992.

James L. O'Neill, Providence, R.I., for petitioner.

Kevin O'Regan, Asst. U.S. Atty., with whom Wayne A. Budd, U.S. Atty., Boston, Mass., was on brief for the U.S.

Before SELYA, Circuit Judge, COFFIN and CAMPBELL, Senior Circuit Judges.

LEVIN H. CAMPBELL, Senior Circuit Judge.

In 1987, pursuant to a plea agreement with the government, appellant Michael Kingsley pled guilty to a number of offenses involving narcotics distribution and tax evasion. Four years later, Kingsley brought the present action under 28 U.S.C. § 2255, alleging that the government had violated two provisions of the plea agreement and seeking to withdraw his guilty plea. The district court found a breach of the first provision, but refused the remedy of vacating Kingsley's guilty plea. The district court found no breach of the second provision. We affirm in part and remand for further proceedings.

I.

On July 28, 1986, Kingsley was indicted on twenty-two federal narcotics and tax charges. The indictment alleged that from 1977 through 1985, Kingsley had directed a large scale marijuana and cocaine distribution enterprise. The indictment further alleged that during the years 1981-83, Kingsley had committed various tax offenses, including concealing his income from tax authorities and filing false tax returns.

After lengthy negotiations with the government, Kingsley pled guilty on January 9, 1987. His girlfriend, Kimberly Reynolds (who is not a party to this appeal), also pled guilty to a narcotics offense. At the plea hearing, Assistant United States Attorney Henry L. Rigali orally informed the court that the plea agreement contained the following terms:

1. the government would recommend a sentence of ten years in prison;

2. the government would not seek forfeiture of Kingsley's home or its contents, including a $4,000 stamp collection and a $9,500 diamond ring;

3. the government would not prosecute Kingsley's father or sister for any false statements made to the Internal Revenue Service and a grand jury, respectively;

4. the government would not call Kingsley or Reynolds as witnesses in its case against any remaining co-defendants;

5. the government would not prosecute Reynolds for any other federal offenses she may have committed in connection with her involvement with Kingsley's drug operation;

6. the government would "not object to Kingsley's request that he be allowed to ... serve his imprisonment in a camp facility";

7. the government would allow Kingsley to apply any of his forfeited assets to offset his civil tax liability;

8. the government "intend[ed] to proceed against" approximately $80,000 in debts owed to Kingsley by various associates, applying any funds collected to Kingsley's tax liability.

The last three provisions are at issue in this appeal. Of these, the final two require further explanation. At the time of the plea, the government had in its possession approximately $160,000 of Kingsley's assets, which, it claimed, were forfeitable as proceeds from drug trafficking. In addition, Kingsley had loaned approximately $80,000 to various associates, which funds the government claimed were also forfeitable. It was understood that Kingsley would forfeit the $160,000 in assets and his interest in the loan balances. In return, the government would allow Kingsley to apply the $160,000 in assets, and whatever of the loan funds it was able to recover, to his civil tax liability.

The district court conditionally accepted Kingsley's guilty plea and stated that it would defer consideration of the "actual plea bargains" until it had read the presentence reports. In addition, the court made clear that it had very little control over the facility to which Kingsley would be sent.

Rigali then prepared a letter for Kingsley's counsel outlining the forfeiture provisions of the plea agreement. At a disposition hearing on February 17, 1987, Kingsley's counsel objected to "one clause [in the letter] that makes it look[ ] as if the government may have no obligation to [collect the unpaid debts] and to use [the funds] to satisfy [Kingsley's] tax liability." Kingsley's counsel pointed out that Kingsley had forfeited to the government his interest in the loan balances but, under the letter, had not received any promise that the government would attempt to collect.

Rigali responded that The government will pursue these debts. The government will take all reasonable steps it can in pursuing the debts. On the other hand, if at some point it appears that the debts are uncollectible and that it is imprudent and unreasonable to pursue them, the government retains the discretion not to do so.... [In the event the government decides not to collect] Mr. Kingsley [is] not going to be given a credit for the outstanding debt in reducing his civil tax liability.

The court then expressed its understanding that "the government will make every effort to collect," but Kingsley's counsel continued to protest, arguing that Kingsley should be given a right to attempt to collect himself if the government's efforts failed. At this point, the district court stated that it was unwilling to get involved in the plea negotiations, and that if the parties could not agree the case should go to trial. At the request of Kingsley's counsel, court was then recessed in order to continue negotiations.

That afternoon court was resumed, and Kingsley's counsel informed the court that all parties had signed a letter agreement concerning forfeiture. The letter provided that:

As regards the unpaid balance of [the loans] ... the government retains complete discretion in the collection process. This includes making the practical determination to forgo collection.

If the government abandons its efforts to collect the debts ..., defendant shall have the right to use whatever legal process that he may have available to him to collect said debts himself, at his own expense, but any amounts so collected shall be applied to reduce defendant's outstanding liability to the Internal Revenue Service.

The court then sentenced Kingsley to ten years in prison, having made clear that it would not recommend a camp facility.

In April 1987, Rigali wrote to the Bureau of Prisons that, because of the seriousness of Kingsley's offense and the possibility of confrontation with others also serving prison time, it would be "highly inappropriate" for Kingsley to serve his sentence in a camp facility. In June 1987, the government stated in a motion opposing Kingsley's motion to reduce his sentence that it "[took] great exception to the fact that the Bureau of Prisons has designated Kingsley to serve time in a camp ... facility." The government's motion was signed by Assistant United States Attorney Mary Elizabeth Carmody "for" Rigali, and a copy was sent by Rigali to the Bureau of Prisons. Shortly thereafter, Kingsley was moved from a prison camp to the Federal Correctional Facility at Otisville, New York.

Almost four years later, on March 4, 1991, Kingsley filed a pro se motion pursuant to 28 U.S.C. § 2255 in the District Court for the District of Massachusetts. ¹ Asserting that the government had breached the plea agreement by 1) opposing Kingsley's attempts to serve his sentence in a camp facility and 2) "by not making any serious attempt to collect the debts," the motion asked the court to vacate the judgment and allow Kingsley to withdraw his guilty plea.

The motion was referred to the same judge who had presided over the entry of Kingsley's guilty plea. The court found the government to have breached its promise not to oppose placement in a camp facility, but denied Kingsley's request to withdraw his guilty plea as a remedy. Instead, the court ordered the government to write to the Bureau of Prisons indicating that it did not oppose Kingsley's designation to a camp facility. With regard to the debt collection promise, the court held that "the fact that the government exercised its discretion and did not collect the funds ... is not a breach of the agreement...." We affirm the district court's remedy for breach of the first promise but remand for further proceedings as to the second promise.

II.

A. Facility Designation

Kingsley argues that the district court's remedy for the government's breach of its promise not to oppose camp designation is inadequate. Rather than order specific performance of the agreement in the future, he says, the court should either have allowed him to withdraw his guilty plea or reduced his sentence.

The government does not dispute that a breach occurred. Indeed, it seems clear that Rigali, shortly after making an explicit promise to Kingsley not to object, reneged on the promise on at least two occasions. While the government's repudiation of its pledged word is shocking, we believe that the remedy imposed was reasonable. ²

The government's breach of a plea agreement is ordinarily remedied either by specific performance of the agreement or by allowing the defendant to vacate his guilty plea. Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971); United States v. Canada, 960 F.2d 263, 271 (1st Cir.1992). The choice between these two remedies is not up to the defendant; rather, it rests with the court. Canada, 960 F.2d at 271; United States v. Kurkculer, 918 F.2d 295, 299 (1st Cir.1990).

In choosing a remedy, a court must exercise its "sound discretion ... under the circumstances of each case." United States v. Garcia, 698 F.2d 31, 37 (1st Cir.1983); see also Kurkculer, 918 F.2d at 299 (" 'what is reasonably due in the circumstances ... will vary' ") (quoting Santobello, 404 U.S. at 262, 92 S.Ct. at 499). Specific performance, the less extreme remedy, is preferred. Kurkculer, 918 F.2d at 298 and 300.

In the present...