Sparfven v. United States

• Decision Date: 10 January 1984
• Docket Number: Civ. A. No. 83-0645-S.
• Citation: 577 F. Supp. 1430
• Parties: Michael F. SPARFVEN v. UNITED STATES of America.
• Court: U.S. District Court — District of Rhode Island

577 F. Supp. 1430

Michael F. SPARFVEN v. UNITED STATES of America.

Civ. A. No. 83-0645-S.

United States District Court, D. Rhode Island.

January 10, 1984.

John B. Reilly, Warwick, R.I., for plaintiff.

Seymour H. Posner, Asst. U.S. Atty., Lincoln C. Almond, U.S. Atty., Providence, R.I., for defendant.

OPINION AND ORDER

SELYA, District Judge.

Petitioner, Michael F. Sparfven, filed an application to vacate or set aside his sentence under 28 U.S.C. § 2255, accompanied by a motion for enlargement upon bail pendente lite. Immediately following the government's response, the court heard arguments upon, and denied, the request for release upon bail. Sparfven v. United States, No. 83-0645-S, (D.R.I. Dec. 1, 1983). An evidentiary hearing on the instant application was held on December 5, 1983; the court took the matter under advisement pending submission of briefs (since received).

Travel of the Case

The events underlying Sparfven's application are susceptible to succinct summarization. In 1982, Sparfven and two co-defendants were indicted by a federal Grand Jury in this district for devising and implementing various schemes to defraud, in violation of 18 U.S.C. §§ 2, 1341 and 1343, in connection with the business and affairs of J.K. Chemicals, Inc. (that firm having been adjudicated a bankrupt on July 2, 1980). United States v. Fradin, Kaplan, Sparfven, Cr. No. 82-087 (D.R.I.). The indictment contained thirty-two counts. Early in 1983, Sparfven and three others were indicted for like misconduct in connection with the business and affairs of Francine, Ltd., in violation of 18 U.S.C. §§ 2, 371, 1341 and 1343. United States v. Fradin, Sparfven, Marsella, Broomfield, Cr. No. 83-004 (D.R.I.). The second indictment numbered thirty-one counts. Sparfven originally pled not guilty to all charges.

On February 16, 1983, Sparfven and two of his co-defendants (Fradin and Kaplan) appeared before Chief Judge Boyle of this court. Sparfven was represented by eminent criminal counsel in the person of attorney John F. Cicilline. Sparfven planned to enter a change of plea to Count I of each indictment against him (that being, in each case, the conspiracy count). It was reported to Judge Boyle that, if the change of plea was accepted, the government would recommend, as to Sparfven, concurrent five-year jail sentences on each of the two counts; and would, at the time of sentencing, dismiss the remaining charges against him. Transcript of February 16, 1983 hearing ("FT"), at 2. The court had not participated in the plea agreement, and was in no way bound by the prosecution's recommendation. After conducting the hearing mandated by Fed.R.Crim.P. 11, Judge Boyle agreed to accept the altered pleas, FT at 18-19, and Sparfven pled guilty to the first count of each indictment. FT at 19. Sparfven never moved to withdraw the guilty pleas at any time subsequent to their acceptance.

The petitioner was sentenced by Judge Boyle on May 20, 1983. The sentencing judge imposed two five-year jail terms, to run consecutively; but suspended the second term, conditioned upon a five-year probationary period to commence at the time of Sparfven's release from federal custody on the initial sentence. Sparfven was thereupon incarcerated at the federal prison in Danbury, Connecticut, where he still reposes.

Plainly dissatisfied with his desserts, Sparfven engaged his present counsel and moved, some four months later, for reduction of sentence in accordance with Fed.R. Crim.P. 35. That motion was denied by Judge Boyle, without an evidentiary hearing, in a written memorandum opinion. United States v. Sparfven, Cr. Nos. 82-087, 83-004 (D.R.I. Nov. 18, 1983) ("Sparfven I"). While Sparfven I was still sub judice, the instant application was filed.

Petitioner's asseveration is predicated on two grounds. He alleges, first, that his Rule 11 hearing was deficient; and second, that he did not have efficacious assistance of counsel at divers stages of the proceedings. The court will deal with these contentions seriatim.

Rule 11 Claims

Sparfven's Rule 11 challenge asserts, in substance, that Judge Boyle's conduct of the Rule 11 hearing on February 16, 1983 was such that (i) Sparfven's understanding of the charges against him was not assured, see Rule 11(c)(1), (ii) the court did not adequately satisfy itself as to the factual basis for the guilty pleas, see Rule 11(f), and (iii) that the court's warnings to Sparfven were faulty, see Rule 11(c)(5). Since Sparfven did not appeal from the imposition of sentence, the present petition represents a collateral attack upon his guilty plea (and thus, upon his conviction). The law is well settled that, "on direct appeal, the standard of review is more advantageous to the defendant than on collateral appeal." Mack v. United States, 635 F.2d 20, 24 (1st Cir.1980). See also United States v. DiCarlo, 575 F.2d 952, 954-55 (1st Cir.), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 129 (1978). In a collateral proceeding, formalistic violations of Rule 11 avail a defendant nothing; he must show that the error(s) resulted in a total miscarriage of justice or in a proceeding so tainted as to be inconsistent with the basic requirements of fundamental fairness. United States v. Timmreck, 441 U.S. 780, 783-84, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); Marquis v. United States, 698 F.2d 13, 15-16 (1st Cir.1983). Cf. Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). Sparfven cannot, on this record, shoulder such a burden.

The conspiracy counts to which Sparfven pleaded (one in each indictment) were extremely specific. In Cr. No. 82-087, the purpose and scope of the conspiracy is carefully described in the indictment (at 2-3); a detailed (five pages, thirteen paragraphs) recital of the means and methods employed to accomplish the unlawful confederation follows, linking particular defendants to particular maneuvers, id. at 3-7; and an explicit chronicle of the overt acts utilized to effect the objects of the conspiracy is set forth in exquisite detail and at great length (five pages, thirty-two paragraphs). Id. at 8-13. Each overt act is laid at the doorstep of one or more identified defendants, those chargeable against Sparfven being limned in paragraphs 9, 18-19, and 27. Id. Much the same story can be told as to the second indictment, Cr. No. 83-004: the conspiracy is vividly delineated in the indictment (at 1-2); the means and methods are spelled out and particularized with finical precision, id. at 2-5; and the overt acts are meticulously set forth in twenty-six separate numbered paragraphs. Id. at 5-10. Many of these acts are attributed specifically to Sparfven. E.g., id., ¶¶ 1, 3-16, 19, 21-22, 25-26.

At the December 5 hearing, Sparfven testified that he had read each indictment when served; and Cicilline testified that, upon being retained as private counsel, he had reviewed the indictments with his client and explained to Sparfven the charges against him — including the conspiracy charges. While Sparfven contradicted his counsel's testimony in this respect, his denial was not worthy of belief. And, his testimony to the effect that he did not understand the charges was likewise incredible.

Viewed against this backdrop, Judge Boyle's Rule 11 colloquy with the accused was sufficient to insure that Sparfven appreciated the nature of the charges to which he thereafter pled. This is especially so given (i) Sparfven's responses to the court during the February 16 hearing,¹ (ii) the fact that Sparfven was a sophisticated, intelligent fellow, and (iii) the totality of the circumstances, including the questioning and the replies of the other defendants at the multi-party change-of-plea session. It is plain that, taken in the context of what then transpired and what had gone before, Sparfven was placed on notice of the charges against him, and the elements thereof. Cf. Richard v. Callahan, 723 F.2d 1028 at 1033-1034 (1st Cir.1983); McGuirk v. Fair, 622 F.2d 597, 599 (1st Cir.), cert. denied, 449 U.S. 882, 101 S.Ct. 233, 66 L.Ed.2d 106 (1980). Thus, the court holds that the petitioner did, on February 16, 1983, comprehend the charges to which his pleas were entered. See, e.g., United States v. Barker, 514 F.2d 208, 226 (D.C. Cir.) (en banc), cert. denied, 421 U.S. 1013, 95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). Cf. Richard v. Callahan, supra. And, for much the same reasons, Judge Boyle, given the specificity of the indictments, the entire colloquy, and Sparfven's ready acknowledgement of his participation in the twin conspiracies, e.g., FT at 18, cannot fairly be said to have overlooked the factual basis for the guilty pleas.

The final Rule 11 ground urged by Sparfven is that the district judge committed egregious error in the use of language preliminary to the inquiry contemplated by Rule 11(c)(5). Whereas that Rule states that the court should inform the accused "that his answers may later be used against him in a prosecution for perjury or false statement", id., Judge Boyle framed his question to Sparfven, Fradin and Kaplan thusly:

Do each of you understand that having been sworn, your answers to my questions will be subject to the penalties of perjury or of making a false statement if you do not answer truthfully? ...

FT at 6.

The essence of Sparfven's complaint is the failure of the trial judge specifically to mention "prosecution". That argument strikes this court as a distinction searching vainly for a difference. It is hornbook law that Rule 11 does not mandate the magical incantation of language learned by rote. United States v. Gearin, 496 F.2d 691, 696 (5th Cir.1974), cert. denied, 419 U.S. 1113, 95 S.Ct. 789, 42 L.Ed.2d 810 (1975). As Judge Friendly has observed, the Rule "does not say that compliance can be achieved only by reading the specified items in haec verba". United States v. Saft, 558 F.2d 1073, 1079 (2d Cir.1977). Here, the accused was fairly apprised by the district court...