U.S. v. Bean

• Decision Date: 09 December 1977
• Docket Number: No. 77-5110,77-5110
• Citation: 564 F.2d 700
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee BEAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 700

564 F.2d 700

UNITED STATES of America, Plaintiff-Appellee, v. Edward Lee BEAN, Defendant-Appellant.

No. 77-5110.

United States Court of Appeals Fifth Circuit.

Dec. 9, 1977.

Lucien B. Campbell, Federal Public Defender, Edward C. Prado, Asst. Public Defender, San Antonio, Tex., for defendant-appellant.

Jamie C. Boyd, U. S. Atty., LeRoy Morgan Jahn, Asst. U. S. Atty., James E. Bock, Trial Atty., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

On this appeal, defendant Bean raises two contentions: (1) that the district court abused its discretion in refusing to accept a plea bargain entered into by the prosecutor, the defendant and his attorney; (2) that the second count of the indictment should have been dismissed by the district court because as originally written the indictment failed to adequately inform Bean of the offense charged against him.

Bean was charged on October 22, 1976 with theft of property whose value exceeded $100 in violation of 18 U.S.C. § 661 and with burglary of a habitation in violation of V.T.C.A., Penal Code § 30.02 assimilated under 18 U.S.C. § 13, and subsequently was indicted for both offenses. At the initial arraignment, the defendant, Bean, pleaded not guilty to both counts.

On November 30 a rearraignment was held at the defendant's request. At this time the court was informed that a plea bargain had been reached between the government prosecutor, the defendant and his counsel. Bean would plead guilty to the theft count and cooperate with the prosecutor in investigating others involved in the burglary. In return the prosecutor would move for a dismissal of the second count the burglary count. Judge Spears indicated that he was reluctant to accept the plea because the offense of entering a home at night where people were sleeping was a much more serious offense than the theft of an automobile. The theft count carried a maximum sentence of five years whereas the burglary count carried a sentence of between five and ninety-nine years. Bean was allowed to plead guilty to the first count with the understanding that if the plea bargain was ultimately rejected by the court he would be permitted to withdraw his plea. After further consideration Judge Spears notified the parties that he would not accept the plea bargain. On December 12, 1976 Bean was permitted to withdraw his guilty plea.

Defendant's attorney then filed a motion objecting to the denial of the plea bargain. The district court denied the motion, stating that the bargain was "contrary to the manifest public interest." A second motion requested the court to dismiss the second count because the language "felony or theft" failed to adequately inform the defendant of the offense with which he was charged. This motion was also denied with the court instead striking the words "a felony or" from the indictment.

Bean was tried by a jury and convicted on both counts. The trial judge sentenced Bean to serve five years on Count 1 and ten years on Count 2 with the sentences to run concurrently. The court also recommended that Bean receive the benefit of a Drug Abuse Program.

An analysis of the propriety of refusing a plea bargain begins with Rule 11 of the Federal Rules of Criminal Procedure. As enacted in 1966, this Rule attempted to codify existing practices concerning the entry of a plea at arraignment. ¹ As plea bargaining became more common in response While Rule 11(e) provided guidelines for plea bargaining procedure, ³ the Rule does not contravene a judge's discretion to reject such a plea. The Rule itself states that "the court may accept or reject the agreement . . . ." Fed.R.Crim.P. 11(e)(2). Indeed, the judge must refuse the plea in the absence of a factual basis for the plea. See Fed.R.Crim.P. 11(f). The drafters of the Rule intended for the judge to retain discretion in accepting plea bargains. The Notes of the Committee on the Judiciary The plea agreement procedure does not attempt to define criteria for the acceptance or rejection of a plea agreement. Such a decision is left to the discretion of the individual judge.

to the growing caseloads of the courts, the 1974 amendments to the Rule gave explicit recognition to the practice. Rule 11(e) provides a mechanism for sanctioning discussions between the defendant and the prosecutor and for presenting the agreement in open court for approval by the judge. ² House Report No. 94-247, state: "The procedure is not mandatory; a court is free not to permit the parties to present plea agreements to it." 18 U.S.C.A., Federal Rules of Criminal Procedure; Rules 10 to 17.1, at 17. The Notes of the Advisory Committee on Rules also indicate that the acceptance of a plea was a decision for the district judge.

Id. at 26. Those cases that have previously considered courts' refusals to accept plea bargains have found that the judge has discretion in accepting pleas. See, e. g., United States v. Ellis, 5 Cir., 1977, 547 F.2d 863; United States v. Bisco, 1 Cir., 1975, 518 F.2d 95; United States v. Navedo, 2 Cir., 1974, 516 F.2d 293. See also Hoffman, Pleas of Guilty in the Federal Courts, 22 Prac.Law. 11 (Sept. 1976).

While appellate courts have reviewed the refusals of plea bargains, little attention has been given to the formulation of a standard for the district court's exercise of discretion. ⁴ The cases that have occurred often involve the specific requirements found in the Rule itself. Most cases have been concerned with the acceptance of pleas where a doubt exists about the defendant's actual guilt. See, e. g., United States v. Bisco, 1 Cir., 1975, 518 F.2d 95; United States v. Navedo, 2 Cir., 1974, 516 F.2d 293. A particularly difficult line of cases are those where the defendant wishes to plead guilty while maintaining his innocence. See, e. g., North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Other cases have concerned the ability of a court to refuse a plea bargain because the plea was not entered in accordance with the time deadlines established by the court. See, e. g., United States v. Ellis, 5 Cir., 1977, 547 F.2d 863.

In considering plea bargains, courts may be governed by the same broad standards that apply in sentencing. The trial court's control over the length of sentence is analogous to that in plea bargains since in plea bargaining the defendant is ultimately concerned with the duration of imprisonment. Even when the agreement relates to the dismissal of some of the charges, the primary effect is to limit the punishment which the court may impose. See Alschuler, The Trial Judge's Role in Plea Bargaining, Part I, 76 Colum.L.Rev. 1059, 1074 (1976). Consistently, this circuit, as well as other circuits, has permitted the decision of the trial court as to sentencing to prevail except in extreme circumstances.

A sentencing court exercises broad discretion which is not subject to appellate review "except when arbitrary or capricious action amounting to a gross abuse of discretion is involved." United States v. Weiner, 5 Cir., 1969, 418 F.2d 849.

United States v. Gamboa, 5 Cir., 1976, 543 F.2d 545, 546. See also United States v. Bernstein, 5 Cir., 1977, 546 F.2d 109, 110

(district judge's sentence upheld in the absence of "gross or outrageous abuse of sentencing"). Such abuse of discretion has usually been found when the sentencing decision jeopardizes a constitutional right, such as the right to an appeal or to a jury trial, or contains an error of statutory procedure. See U.Cin.L.Rev. 195, 197-98 (1972).

As Rule 11 provides for plea bargains including the dismissal of charges as well as recommendations of length of sentences, another possible analogy is found in Federal Rule of Criminal Procedure 48(a), which pertains to the dismissal of indictments by the Attorney General or the United States Attorney. Traditionally, prosecutors were able to dismiss indictments at any time. See United States v. Cowan, 5 Cir., 1975, 524 F.2d 504, 505. While Rule 48(a) requires leave of court to grant a dismissal, appellate review of these refusals has been more stringent than review of sentencing. See, e. g., In re Washington, 5 Cir., 1976, 544 F.2d 203 (en banc ) rev'd on other grounds sub nom. Rinaldi v. United States, --- U.S. ----, 98 S.Ct. 81, 54 L.Ed.2d 207 (1977); United States v. Cowan, supra. However, since the counts dismissed pursuant to plea bargains often carry heavier penalties than the counts for which a guilty plea is entered, a plea bargain to dismiss charges is an indirect effort to limit the sentencing power of the judge. See Alschuler, supra at 1074, 1136-37. Because the judge's discretion over the duration of imprisonment is being limited, the standard for review of refusal of plea bargains should be closer to the standards for review of sentencing than for review of a dismissal which does not involve a plea bargain under Rule 48(a).

Without deciding what unusual circumstances may result in the refusal of a plea bargain being an abuse of discretion, we find that Judge Spears' action in this case was well within the scope of his discretion. A decision that a plea bargain will result in the defendant's receiving too light a sentence under the circumstances of the case is a sound reason for a judge's refusing to accept the agreement. The amendment to Rule 11 does not compel a judge to impose an inappropriate sentence. See Hoffman, supra at 17. Rule 11(e)(2) explicitly states that the court "may defer its decision as to the acceptance or rejection (of the plea bargain) until there has been an opportunity to consider the presentence report." If the court did not have discretion to refuse a plea bargain because the agreement is against the public interest in giving the defendant unduly favorable terms, this provision would be largely unnecessary. Further, as we have...