Mosiurchak v. Senkowski, 92 Civ 8092 (VLB).

• Decision Date: 13 December 1993
• Docket Number: No. 92 Civ 8092 (VLB).,92 Civ 8092 (VLB).
• Citation: 839 F. Supp. 1035
• Parties: Alexander MOSIURCHAK, Petitioner, v. Daniel SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

839 F. Supp. 1035

Alexander MOSIURCHAK, Petitioner, v. Daniel SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent.

No. 92 Civ 8092 (VLB).

United States District Court, S.D. New York.

December 13, 1993.

Joel A. Brenner, East Northport, NY, for petitioner.

Bonnie M. Mitzner, Asst. Dist. Atty., Monticello, NY, for respondent.

MEMORANDUM ORDER

VINCENT L. BRODERICK, District Judge.

I

This habeas corpus petition filed pursuant to 28 U.S.C. § 2254 involves the interaction of substantive and implemental justice and the need to honor both, and to protect the public from large-scale criminal activity and its consequences, while assuring protection of the innocent. In order to be effective, law enforcement must be fair; equally in order to be fair it must be effective.¹ In order to fulfill its function law enforcement must protect both defendants and past or potential crime victims.²

The petition also presents the question of the judicial response to a situation in which a plea agreement is negotiated³ but the plea vacated, not at the instance of either party to it, but by a state court over the objection of the prosecution, and the defendant is thereafter tried and convicted on more serious charges.⁴

For the reasons which follow, I deny the petition. I do so on the merits without separately examining the issue of exhaustion of state remedies because the claim that the prosecution violated a plea agreement is one alleging that the state itself is at fault because of malice, as well as being a matter in which the interests of comity and federalism are best served by ruling now on the merits. Washington v. James, 996 F.2d 1442 (2d Cir.1993).

II

The underlying issue in every habeas corpus case whether articulated as such or not, is whether there may have been a miscarriage of justice leading to conviction of the innocent, or to a sentence grossly disproportionate to the underlying conduct. Imprisonment of the innocent or those punished harshly for minor infractions, or failure to protect the public from major orchestrators of large-scale crime both equally constitute miscarriages of justice. See Preamble, Constitution of the United States (to promote "domestic Tranquillity").

Procedural missteps are critical to the extent that they may have led to any of these evils, or go to the core of reliability of the judicial process; otherwise they are, like virtually all procedural matters,⁵ subject to harmless error analysis. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Yates v. Evatt, 500 U.S. 391, 111 S.Ct. 1884, 114 L.Ed.2d 432 (1991); Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); Delaware v. VanArsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946).

III

The event leading to the petitioner's illfated plea agreement and subsequent conviction was discovery on May 28, 1986 of a large quantity of narcotics production material and devices amounting to an ongoing factory-like operation in a house purchased by petitioner and his wife on April 25, 1986.⁶ No one was living in the house and no other activity occurring there was found.

Suspicion was aroused by odors and greatly increased power usage leading to outages at the house. It was bought in an empty condition for $55,000 paid at closing, including $11,000 in currency⁷ and the balance in bank checks. All relevant papers in the house such as deed, routine bills and the like were in petitioner's name. No contract of sale was executed in connection with purchase of the house.⁸ No explanation was provided by any defense witness with respect to actual use or intended use of the house.

Such circumstances are far more powerful than frequently debatable eyewitness testimony⁹ in permitting a jury to infer facts permitting it to find guilt beyond a reasonable doubt. See Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265, 87 L.Ed. 1674 (1943); Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954).¹⁰ In addition to other circumstances, as stated in United States v. Blackman, 904 F.2d 1250, 1257 (8th Cir.1990), ("... large sums of unexplained currency is circumstantial evidence of intent to distribute cocaine") (Western Union transfer of $11,000; money laundering conviction affirmed).

IV

Upon conviction, defendant was sentenced to fifteen (15) years to life pursuant to state statute applicable to A-1 felony charges. This would be out of line for what was in fact a minor offense. The labelling of the crime by preconceived criteria is a limited basis for determining the appropriate, wise or just treatment of an offender. Harsh sentences for what are in fact if not by technical definition small-scale infractions are vulnerable to acid consideration if mechanically adopted as a result of a rigid mandatory minimum sentence from which justice would have dictated departure.¹¹

Avoidance of undue sentences imposed on underlings, at times turned in by higher-ups seeking credit for informing on their former subordinates, is important to the reality and appearance of justice in dealing with criminal activities.

Imposition of adequate sentences upon masterminds using skilled maneuvering to unleash evils associated with large-scale illegal drug manufacturing and distribution is equally important to concern with fairness to all, be they participants in criminal activities at varying levels, or present or potential future victims of them.

On the assumption, which I find reasonable, that the jury properly found petitioner to have carefully planned and sought to insulate himself from, a massive narcotics production operation to be carried out in part for his benefit and under his absent but controlling supervision, a substantial sentence was justified and its precise scope was properly determined by state courts under state law. It is precisely where one is necessarily deeply involved in substantial concealed drug production activities that higher ranges of sentence are justified.

I am entitled in this civil proceeding which does not determine guilt and cannot impose punishment, but protects the People from abuses of criminal justice, to draw an adverse inference from petitioner's failure to explain the circumstances as discussed in part III¹² and from petitioner's admission of guilt which not wiped out as a statement or event by the vacatur of his plea.¹³ I need not and therefore have determined not to draw such an inference. The circumstances themselves, including the accelerated purchase without contract, payment on the spot, including use of $11,000 in currency, presence of paperwork in petitioner's name in the house, and drug use so soon after purchase combine unless explained, to support an inference of petitioner's profound large-scale involvement.

V

It is important to the functioning of government, including ability to negotiate guilty pleas in proper circumstances,¹⁴ that the Government's solemn promises be reliable unless plainly unauthorized. See United States v. Sears, Roebuck & Co., 778 F.2d 810 (D.C.Cir.1985); see also 28 USC 1346 (Tucker Act providing for suits against the United States under most federal contracts).

If a party cannot be held to its bargains, few will enter into agreements with that party. This is one reason why the right to be sued is as important as the right to sue. See J. Goebel, Cases and Materials on Legal Institutions 553-68 (1946) (plight of married women in the nineteenth century who could neither sue nor be sued concerning business matters); Labor-Management Relations Act of 1947 (Taft-Hartley Act) § 301, 29 U.S.C. § 185 (establishing trade unions' rights to sue and be sued).

If the Executive Branch with which a person has entered into a contract such as a plea agreement, reneges on that contract, and the defendant had relied on it in ways which might arguably have been detrimental, the courts can and should find a way to enforce that contract. See Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); Petition of Geisser, 554 F.2d 698 (5th Cir.1977); United States v. Mozer, 828 F.Supp. 208 (S.D.N.Y.1993); Palermo v. Oswald, 412 F.Supp. 935, 943 (S.D.N.Y.), aff'd 545 F.2d 286 (2d Cir.1976).

If, on the other hand, the plea is vacated over the objection of the prosecutor, the situation is akin to one in which parties may agree to a disposition of a litigation which requires judicial approval, and even implement part of their agreement, yet the court declines to adopt it. See Fed.R.Civ.P. 23(e) (settlements of class actions); NLRB v. Brooke Industries, 867 F.2d 434, 435 (7th Cir.1989). Settlements may be illegal, as held by the state court here, even though entered into by the parties. See Duplan Corp. v. Deering Milliken, 444 F.Supp. 648 (D.S.C.1977), aff'd in part, rev'd in part 594 F.2d 979 (4th Cir.1979), cert. denied 444 U.S. 1015, 100 S.Ct. 666, 62 L.Ed.2d 645 (1980). Agreements can also be challenged by third parties, resulting in their modification or vacatur, see Martin v. Wilks, 490 U.S. 755, 109 S.Ct. 2180, 104 L.Ed.2d 835 (1989). The result is akin to that produced by some other unforeseen intervention, sometimes characterized as force majeure. See Smit, "Frustration of Contract," 58 Colum L Rev 287 (1958).

Varying departments of the Executive Branch may be considered as a single party for numerous purposes. See United States v. AT & T, 461 F.Supp. 1314 (D.D.C.1978) (discovery). At the same time, the separation of powers among the three Branches is "the heart of the Constitution," Buckley v. Valeo, 424 U.S. 1, 120, 96 S.Ct. 612, 682, 46 L.Ed.2d 659 (1976). The independence of the judiciary, particularly in regard to sentencing, is important at the state as well as federal level.

The judiciary was not a party to the plea...