U.S. v. Ammirato, s. 80-5204

• Citation: 670 F.2d 552
• Decision Date: 15 March 1982
• Docket Number: 80-5667,Nos. 80-5204,s. 80-5204
• Parties: 10 Fed. R. Evid. Serv. 95 UNITED STATES of America, Plaintiff-Appellee, v. Frank AMMIRATO, Defendant-Appellant. . Unit B *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 552

670 F.2d 552

10 Fed. R. Evid. Serv. 95

UNITED STATES of America, Plaintiff-Appellee, v. Frank AMMIRATO, Defendant-Appellant.

Nos. 80-5204, 80-5667.

United States Court of Appeals, Fifth Circuit.

Unit B ^*

March 15, 1982.

John Steven Berk, Fort Lauderdale, Fla., for defendant-appellant in both cases.

William C. Bryson, Diane M. Henson, Dept. of Justice, Washington, D. C., for plaintiff-appellee in both cases.

Berk & Wagner, Fort Lauderdale, Fla., for defendant-appellant in No. 80-5667.

Appeals from the United States District Court for the Southern District of Florida.

Before HILL, Circuit Judge, SMITH ^**, Judge, and HENDERSON, Circuit Judge.

JAMES C. HILL, Circuit Judge:

Frank Ammirato pleaded guilty and was convicted for a number of firearms and narcotics offenses. He was sentenced to a total of 26 years imprisonment. Ammirato now appeals the District Court's denial of his motion for a reduction of sentence, or in the alternative to withdraw his pleas of guilty, and the denial of his motion to vacate sentence under 28 U.S.C. § 2255. The principal issues presented by this appeal are whether the District Court properly accepted Ammirato's guilty pleas, whether the District Court properly admitted hearsay evidence during Ammirato's sentencing hearing, and whether the District Court properly imposed consecutive sentences for separate convictions under the National Firearms Act. We find that the District Court acted properly in all regards, and therefore affirm the denial of Ammirato's motions.

Ammirato was charged in separate indictments filed in the United States District Court for the Southern District of Florida and in the United States District Court for the Northern District of Illinois. The two indictments were for related offenses. In the Southern District of Florida Ammirato and seven co-defendants were named in a 21-count indictment. Ammirato was ultimately charged in the Southern District of Florida with 19 counts for the following offenses: conspiring to distribute controlled substances and to possess, transfer and transport unregistered firearms, in violation of 18 U.S.C. § 371; conspiring to import controlled substances, in violation of 21 U.S.C. § 963; distributing a controlled substance, in violation of 21 U.S.C. § 841(a)(1); possessing with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1); possessing unregistered machine guns, in violation of 26 U.S.C. § 5861(d) and § 5871; transferring unregistered machine guns, in violation of 26 U.S.C. § 5861(e) and § 5871; and shipping firearms in interstate commerce with intent to commit a felony, in violation of 18 U.S.C. § 924(b).

In the Northern District of Illinois Ammirato and two co-defendants were named in a twelve count indictment. Ammirato was charged in ten counts for the following offenses: possessing unregistered firearms, in violation of 26 U.S.C. § 5861(d) and § 5871; transferring firearms out-of-state without a license, in violation of 18 U.S.C. § 922(a)(5) and § 924; delivering a package containing firearms to an airline without notice, in violation of 18 U.S.C. § 922(e) and § 924; transporting firearms in interstate commerce while a convicted felon in violation of 18 U.S.C. § 922(g) and § 924; transferring unregistered firearms in violation of 26 U.S.C. § 5861(e) and § 5871; possessing firearms which were not identified by serial numbers, in violation of 26 U.S.C. § 5861(i) and § 5871; and engaging in business as a dealer of firearms without registering as a dealer, in violation of 26 U.S.C. § 5861(a) and § 5871.

The trial of all the defendants charged in the Florida indictment commenced on May 21, 1979. On May 25, 1979, after four days of trial, counsel for Ammirato informed the district court that Ammirato wanted to change his plea from not guilty to guilty on all counts. The court consequently proceeded to conduct an inquiry to determine the acceptability of Ammirato's guilty plea. The court engaged Ammirato in a dialogue which disclosed the following: that Ammirato's lawyer had carefully explained to Ammirato all of the counts charged against him in the Florida indictment; that Ammirato understood the government's analysis of the indictment as outlined in the government's opening statement; that Ammirato had not been threatened by anyone in order to induce him to plead guilty; and that Ammirato understood that by pleading guilty he was waiving his right to trial.

The court informed Ammirato that by pleading guilty to all of the charges in the Florida indictment he could be sentenced to a total of 158 years. The court also informed Ammirato that he could be fined approximately $10,000 per count, but that the court would not consider imposing a fine greater than $100,000.

The court emphasized to Ammirato that the purpose of his inquiry was to determine that Ammirato's guilty plea was being given freely and voluntarily. Ammirato assured the court that it was. Ammirato further assured the court that he was pleading guilty to the charges solely for the reason that he was in fact guilty. Counsel for Ammirato stated to the court that he was satisfied that Ammirato's plea was voluntarily made and that there was a sufficient factual basis to support it.

The district court thus accepted Ammirato's plea and found that it was made freely and voluntarily with full knowledge of the probable consequences. The court found further that the government had established a sufficient factual basis for the plea.

Pursuant to Rule 20, F.R.Crim.P. the district court transferred the Illinois case to the Southern District of Florida and on July 3, 1979 held another plea hearing for this case. The inquiry conducted by the court was similar to that conducted in the Florida case. All of the charges in the indictment were explained to Ammirato who stated that he understood them. Ammirato was informed that he faced a maximum sentence of 85 years imprisonment and an $85,000 fine for all the Illinois charges combined. The Court informed Ammirato of his right to a jury trial, and Ammirato indicated that he understood this right and was waiving it. Ammirato also indicated that he was pleading guilty to the charges against him only because he was in fact guilty and not because he had been threatened or promised anything. The court thus accepted Ammirato's plea of guilty to the charges in the Illinois indictment. The court found that there was a factual basis to support the plea and that Ammirato had made it freely and voluntarily with full knowledge of the probable consequences. Counsel for Ammirato again stipulated to the adequacy of the factual basis for the plea.

1. Acceptance of Guilty Pleas

Ammirato now argues that the District Court erred in accepting his guilty pleas because the pleas were not entered voluntarily and intelligently. Ammirato first maintains that he was under the impression that his attorney had negotiated a plea bargain that would result in a sentence of 10 to 12 years rather than the 26 year sentence that was actually imposed. Our review of the record indicates that this argument is without merit. At a hearing on May 25, 1979, shortly before Ammirato entered his change of plea for the charges in the Florida indictment, the prosecutor and counsel for Ammirato specifically indicated to the court that they had been unable to conclude a plea agreement. The prosecutor explained that the Government was unwilling to accede to defense counsel's request that the charges in the Illinois indictment be dropped in exchange for Ammirato's plea of guilty to the charges in the Florida indictment. Counsel for Ammirato expressed to the court his disappointment that a plea agreement could not be worked out, but indicated that, in light of the evidence of substantial guilt, Ammirato was still prepared to plead guilty to all of the charges in both indictments.

It is well established that "no guilty plea which has been induced by an unkept plea bargain can be permitted to stand." Bryan v. United States, 492 F.2d 775, 778 (5th Cir.) (en banc), cert. denied, 419 U.S. 1079, 95 S.Ct. 668, 42 L.Ed.2d 674 (1974). In the present case, however, the record gives no evidence of the existence of a plea agreement, but on the contrary, clearly shows that the parties were unsuccessful in their attempt to conclude such an agreement. As this Court stated in Barnes v. United States, 579 F.2d 364, 366 (5th Cir. 1978), "where, from the transcript, the plea-taking proceedings are clear and regular on their face, a petitioner asserting the existence of a bargain outside the record and contrary to his own statements under oath bears a heavy burden." See United States v. Flores, 616 F.2d 840, 842 (5th Cir. 1980). Ammirato has clearly not met this burden. ¹

Ammirato next argues that his plea to the charges in the Florida indictment was not entered knowingly and intelligently because the District Court failed to inform him of the plea's maximum consequences. Ammirato contends that the District Court erred by not informing him of the maximum penalties on each count of the indictment. He maintains that it was inadequate for the Court to only inform him of the total maximum penalty that could be imposed for all of the counts considered in the aggregate.

We find no merit to this argument. A guilty plea is involuntary if it is made in ignorance of its consequences, including the length of any possible sentence. Cheely v. United States, 535 F.2d 934, 935 (5th Cir. 1976). Rule 11(c)(1) F.R.Crim.P. mandates that before accepting a guilty plea the court must determine that the defendant understands "the maximum possible penalty provided by law." The language of Rule 11(c)(1), on its face, does not require, however, that the District Court provide the defendant with a count by count breakdown of the maximum possible penalties. We find that such an elaboration is unnecessary. By informing Ammirato of the maximum aggregate sentence which he...