Politte v. U.S., s. 87-2325
| Decision Date | 05 August 1988 |
| Docket Number | 87-2332,Nos. 87-2325,s. 87-2325 |
| Citation | 852 F.2d 924 |
| Parties | William J. POLITTE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Alex R. Tandy, Grand Prairie, Tex., for plaintiff-appellant.
Clifford J. Proud, Asst. U.S. Atty., Frederick J. Hess, U.S. Atty., East St. Louis, Ill., for defendant-appellee.
Before BAUER, Chief Judge, and FLAUM and KANNE, Circuit Judges.
William Politte was named in two indictments. In the first, he was charged with blowing up a building and in the second, he and his wife were charged with fraud. Politte entered into a plea agreement, pleading guilty to several of the offenses. In return, the government promised to recommend a lenient sentence for his wife. After he received a thirteen-year sentence, William Politte filed a motion to vacate, set aside or correct his sentence, in accordance with Title 28 U.S.C. Sec. 2255, alleging that his plea was not voluntary because it was procured by judicial and familial coercion. The district court summarily denied that motion and Politte appeals. Politte maintains that the district court's denial of his Sec. 2255 motion was clearly erroneous, and that it improperly ruled without conducting a hearing. We find that William Politte's guilty plea was voluntary, and affirm the district court's denial of the post-conviction appeal.
William Politte was indicted in August of 1984 for several crimes, 1 including destroying a union hall by the use of explosives. A second and separate indictment 2 was issued in December of 1984, charging both Politte and his wife, Pamela, with conspiring to defraud an insurance company by falsely reporting the theft of their 1983 Lincoln Continental automobile.
Politte filed a number of pre-trial motions. One motion sought to disqualify United States District Judge William Beatty because he granted an early prison release for Jesse Stoneking, an FBI informant who later gathered evidence on Politte. Another motion sought to suppress the evidence Stoneking obtained. Judge Beatty disqualified himself by granting Politte's motion for recusal. The case was reassigned to Chief Judge James L. Foreman who subsequently denied the remainder of Politte's pre-trial motions.
Thereafter, Politte, represented by two attorneys, entered into a detailed and extensive plea agreement. This agreement clearly stated that:
DEFENDANT is aware ... that he will not be allowed to withdraw his pleas of guilty once they are entered.
The agreement further stipulated that it was "contingent upon co-defendant Pamela Politte's entry of a guilty plea to Indictment II under a separate plea agreement...."
On January 14, 1985, Judge Foreman conducted a hearing in which he questioned Politte about his understanding of the charges against him and his competence to enter into the plea agreement. Complying with Fed.R.Crim.P. 11, the court engaged Politte in the following colloquy:
(Tr. Change of Plea, p. 25). Following this exchange, the court accepted Politte's guilty plea as one voluntarily made.
A month later, at the February 14, 1985 sentencing, one of Politte's attorneys first indicated that Politte felt some pressure to make a deal with the government. In explaining why Politte entered into the plea agreement, Politte's attorney told Judge Foreman:
MR. GITCHOFF: [Attorney for Politte] Because he was dead in the water [on the theft of the automobile and mail fraud charges] and because his wife was also a co-defendant in that particular charge, negotiations were made primarily for the benefit of the wife.
....
I would state to the Court ... that ... the duress that was placed upon Mr. Politte was a serious consideration in order to facilitate the guaranteed or the recommended probation for his wife and that we reluctantly went along with this plea with regard to the explosive indictments.
(Disposition Hearing, p. 11, February 14, 1985).
At the conclusion of the sentencing proceeding, Judge Foreman sentenced William Politte to an aggregated term of imprisonment totalling thirteen years. Later, Pamela Politte received a five-year suspended sentence.
William Politte did not take a direct appeal from the convictions based on his plea of guilty. Under Fed.R.Crim.P. 35(b), he filed a motion for reduction or modification of sentence, requesting leniency from what he contended was excessive punishment for the acts charged. The court denied relief and Politte did not appeal the denial of the Rule 35(b) motion. Instead, he filed a Sec. 2255 motion to vacate, set aside or correct the sentence.
Politte contends in his Sec. 2255 motion that he suffered "extreme emotional and psychological stress" and therefore did not voluntarily plead guilty. He alleges that he was told by the government that the only way he could assure himself that his wife would not go to prison would be to accept the government's offer. Without requiring the government to respond, Judge Foreman denied Politte's request for a hearing and then summarily denied the Sec. 2255 motion. 3
Politte appeals that denial, adhering to his assertion that his plea was involuntary. His argument is premised on his contention that Judge Beatty's role in releasing Stoneking constituted judicial coercion and that Pamela's impending sentencing resulted in familial coercion. He also claims that he should have received a hearing on his Sec. 2255 motion. We will address each claim in turn.
Politte claims that Judge Beatty's involvement in Stoneking's release from prison amounted to judicial coercion. 4 Specifically, Politte charges that Judge Beatty conducted a "sham" hearing pursuant to Fed.R.Crim.P. 35(b) and released Stoneking after the expiration of the 120-day jurisdictional limit imposed by the rule. Politte accuses Judge Beatty of lacking the authority to release Stoneking and of violating the Separation of Powers Doctrine by making an illegal contract with Stoneking. To substantiate his claim, Politte points to an ex parte communication in the judge's chambers between Judge Beatty and Stoneking (and two FBI agents). Politte characterizes this meeting as a negotiation for Stoneking's release.
Jurisdiction over Rule 35(b) motions is placed with the district court. It is fundamentally clear that a district judge is vested with discretion as to whether or not to grant a Rule 35(b) motion. Williams v. United States, 805 F.2d 1301 (7th Cir.1986). Judge Beatty had the authority to release Stoneking from federal custody in exchange for his cooperation with the FBI in infiltrating and soliciting incriminating statements from Politte and other individuals under FBI investigation. 5 But Politte specifically charges that Judge Beatty released Stoneking long after the "jurisdictional" 120-day time limitation imposed by Rule 35 had expired. 6
Rule 35 motions are properly directed to the sentencing judge. United States v. Hammer, 496 F.2d 917 (5th Cir.1974). Cf. Rule 4(b), Rules Governing Sec. 2255 Proceedings, 28 U.S.C. Sec. 2255. Therefore, Stoneking's Rule 35(b) motion was presented to Judge Beatty as the only judicial officer who could have reduced Stoneking's sentence in order to free him to do undercover work for the FBI. Under the law as it existed at the time Judge Beatty authorized Stoneking's release, it appeared that a district judge was afforded a "reasonable period" after a timely filed Rule 35(b) motion to grant a reduction in sentence. See e.g. United States v. Krohn, 700 F.2d 1033 (5th Cir.1983). Judge Beatty's order releasing Stoneking preceded this court's decisions in Gaertner v. United States, 763 F.2d 787 (7th Cir.1985) and United States v. Kimberlin, 776 F.2d 1344 (7th Cir.1985). In Gaertner, we did, in fact, hold that 120 days after a Rule 35(b) motion is filed, the district court loses jurisdiction to reduce or modify the conditions of a defendant's sentence. Also, following Gaertner, in Kimberlin, we held that the jurisdictional effect of the 120-day time limit was to be retroactively applied. Id. at 1346.
However, acting in the absence of jurisdiction does not equate with acting illegally. Moreover, the issue of the district court's jurisdiction in Stoneking's Rule 35(b) motion is not a matter subject to collateral litigation. We take those judicial facts as they exist in Stoneking's Rule 35 proceedings. Judge Beatty was vested with general statutory authority to determine any Rule 35(b) motions submitted to him. He acted lawfully but with an apparent lack of jurisdiction. But we do not decide the jurisdiction issue.
As the district court correctly found, Politte lacked standing to challenge the release of another convicted felon. Politte counters by stating that his standing "is derived from his rights to not have illegally obtained evidence introduced against him at trial." This creative stretch of the "fruit of the poisonous tree" doctrine is so tenuous as to be nonexistent. The statutorily authorized judicial act which resulted in Stoneking's release bears no relationship to any rights of Politte. After releasing Stoneking under Rule 35(b), Judge Beatty had no connection with or responsibility for Stoneking's conduct as an FBI informant. 7 Regardless of the basis for Stoneking's Rule 35(b) release, it was not done illegally, Politte's constitutional rights were not implicated, and he has no standing to contest...
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