Paradiso v. United States

• Decision Date: 19 July 1973
• Docket Number: No. 72-1705.,72-1705.
• Parties: Michael Joseph PARADISO and Anthony Richard Bonnacci, Appellants, v. UNITED STATES of America.
• Court: U.S. Court of Appeals — Third Circuit

482 F.2d 409 (1973)

Michael Joseph PARADISO and Anthony Richard Bonnacci, Appellants, v. UNITED STATES of America.

No. 72-1705.

United States Court of Appeals, Third Circuit.

Submitted April 2, 1973.

Decided July 19, 1973.

As Amended August 1, 1973.

Michael J. Paradiso and Anthony R. Bonnacci, pro se.

Amos Gern, William T. Pizzi, Asst. U. S. Attys., Newark, N. J., for appellee.

Before ROSENN and HUNTER, Circuit Judges, and BECHTLE, District Judge.

OPINION OF THE COURT.

ROSENN, Circuit Judge.

This case raises recurring and important problems of what procedure constitutes compliance with Federal Rule of Criminal Procedure 11 and what circumstances justify the withdrawal of a guilty plea under federal rules and Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L.Ed.2d 427 (1972).

Appellants Paradiso and Bonnacci were indicted on April 16, 1969, along with several others, by a federal grand jury sitting in New Jersey, on a four count indictment charging conspiracy to possess stolen goods and possession of goods stolen from interstate commerce. They were later, on January 20, 1970, indicted by a federal grand jury sitting in the Eastern District of New York for possession of completely different stolen goods, also shipped in interstate commerce.

On April 22, 1970, appellants appeared with counsel before Judge Coolahan in the United States District Court for New Jersey, retracted their original pleas of not guilty, and entered a plea of guilty to count one (the conspiracy count) of the New Jersey charges. They also consented to a transfer under F.R.Cr.P. 20 of the New York indictment and pled guilty to that charge.

Sentencing was scheduled for June 5, 1970, before Judge Whipple. Immediately after the court sentenced Bonnacci to 5 years on each count, the sentences to run consecutively, both appellants requested permission to withdraw their pleas, claiming they were under the impression that their sentences would be concurrent. The court vacated Bonnacci's sentence, deferred sentencing both defendants, and ordered adjournment until June 12, 1970.

After hearing argument on the question whether to permit withdrawal of the pleas, on June 12, 1970, the court denied the defendants' requests and sentenced both as Bonnacci had originally been sentenced. The court specifically stated to defense counsel that he had 120 days in which to petition the court for relief from the sentence. The court dismissed counts 2, 3, and 4 of the New Jersey indictment against both appellants.

On February 28, 1973, appellants filed motions in the district court under 28 U.S.C. § 2255 challenging their sentences and, alternatively, seeking under F. R.Cr.P. 32(d) to withdraw their guilty pleas. They appeal the denial of those motions. We affirm.

Appellants advance several legal theories, each articulating the theme that they are entitled to relief because they were under the impression at the time they pled guilty that they would be given concurrent sentences on the two counts. Essentially three legal bases are offered in support of this claim:

(1) the due process clause;

(2) F.R.Cr.P. 11; and

(3) F.R.Cr.P. 32(d).

1. DENIAL OF DUE PROCESS.

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1972), declared that due process entitles a defendant pleading guilty to performance by the prosecutor of a promise that induced the plea. As could be expected, in view of the voluminous litigation in the civil law as to the definition and operation of a promise, Santobello, in turn, generated further litigation over what constitutes a promise, whether any promise had been made, and the effect of advice or assurance given by the defendant's own counsel.

In Masciola v. United States, 469 F.2d 1057 (3d Cir. 1972), we held that the due process lesson of Santobello was inapplicable when no promise or understanding had been breached by Government prosecution. We rejected the contention that relief was compelled because there was an "assurance" only by the defendant's counsel that a sentence would be imposed concurrently with a sentence Masciola was already serving. We also reasoned that such "predictions" by defendant's counsel did not render the plea involuntary. Other courts have faced similar questions and reached varying solutions. Compare Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970), with Castro v. United States, 396 F.2d 345 (9th Cir. 1968).

At the June 12, 1970, hearing in this case, the court inquired into the facts underlying appellants' alleged understanding that they would receive concurrent sentences. Their counsel, Samuel Bozza, testified that he never discussed any phase of the case with Assistant United States Attorney Koelzer, who represented the Government at the June 5, 1970, hearing. He explained that he initially was retained to represent the two defendants on the New Jersey charge. At that time, Assistant United States Attorney Goldstein, in New Jersey, was handling the prosecution. Attorney Bozza said he later learned of the New York charge and then called Assistant United States Attorney Boyd in Brooklyn. While Boyd did not make any commitment, Bozza alleges he stated that if the New Jersey charges were transferred to New York the usual policy in the Brooklyn office would be to recommend 5 year sentences to be imposed concurrently. Attorney Bozza then spoke to Goldstein, who mentioned that he had talked to Boyd and both had agreed to have the New York indictment transferred to New Jersey. Bozza said he assumed, by virtue of Boyd's conversation with Goldstein, that the New York sentencing policy alluded to by Boyd would prevail in New Jersey.

When appellants asked Bozza what sentence he thought they would receive, he told them "there was a good probability of getting a concurrent sentence." This is the sole basis for appellants' claimed understanding. Assistant United States Attorney Boyd testified at the June 12 hearing that he never made any representation with regard to the "sentences to be granted to the defendants in this case."

This situation is quite similar to that presented to us in Masciola. Appellants apparently pleaded guilty in the expectation they would receive concurrent sentences on the New York and New Jersey indictments. That expectation, however, was based solely on the advice of their counsel. Thus, the appellants, unlike the defendant in Santobello, have not been misled by the prosecution in pleading guilty. Nor did they rely upon an actual understanding or agreement with Government counsel, the breach of which renders the sentence fundamentally unfair or which renders their pleas involuntary. For these reasons, we think appellants have not been denied due process.

Nevertheless, we believe that our district courts should take affirmative action to curb recurring situations which give rise to defendants' misapprehensions, although created by advice of their own counsel or otherwise, and produce an unwarranted and unrealized expectation of leniency. In this case, the court, at the hearing on June 5, inquired of both appellants whether "anybody promised you any leniency with regard to any sentence that this court might impose" and both replied in the negative. He further cautioned them:

If they have promised you leniency I am putting you on notice right now that it is not binding on this Court. This Court will sentence you according to its own conscience and following the law, right?

The court, thereupon, sentenced Bonnacci to consecutive five year sentences. Bonnacci immediately stated that he wished to withdraw the plea because:

It was supposed to run altogether; otherwise, I\'d go to trial.

Paradiso, too, quickly gave similar notice that he wanted to withdraw his plea because he expected to receive concurrent sentences on the two charges.

In Walters v. Harris, 460 F.2d 988 (4th Cir. 1972), the Fourth Circuit was also confronted with appellant's contention that his plea of guilty was induced by an unkept promise of the Assistant United States Attorney. As a result, it urged district judges in its circuit thereafter to expand their rule 11 inquiry to ascertain the presence of plea negotiations, to advise the defendant that plea bargaining has been specifically approved by the United States Supreme Court, and that he may truthfully advise the court of any plea negotiations "without the slightest fear of incurring disapproval of the court." We note that at least one other court has reacted to the rationale of Santobello by adopting a court rule that plea negotiations must be plainly made a matter of record. In an effort to meet realistically this growing practice of plea negotiation, the Supreme Court of Pennsylvania has adopted a comprehensive rule applicable throughout the state's judicial system for plea bargaining on the record.¹

Even prior to Santobello, the California Supreme Court, although not imposing any specific procedure, required the terms of all plea bargains to appear of record. People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970). The desirability of making plea negotiations a matter of record before sentence, recognized by these courts, is also reflected in the American Bar Association Minimum Standards on Sentencing Alternatives and Procedures, approved draft, 1968, § 5.3 and ABA Standards, Pleas of Guilty, approved draft, 1968, § 1.5 and ABA Standards Relating to The Function of the Trial Judge, approved draft, 1972, § 4.1(b).

We believe that it is appropriate at this time for the district courts of this circuit to take similar prophylactic measures to cope with this problem. In connection with their rule 11 inquiry on a plea of guilty, district judges should in essence inform the defendant that plea bargaining is specifically approved by the court and that he may truthfully inform the court of any plea negotiations "without the slightest fear of incurring disapproval of the court." Inquiry should also be made of counsel for the parties...