U.S. v. Bohn

• Decision Date: 19 March 1992
• Docket Number: D,Nos. 545,685,s. 545
• Parties: UNITED STATES of America, Appellee, v. Edward BOHN and Maxine Heckroth, Defendants-Appellants. ockets 91-1443, 91-1444.
• Court: U.S. Court of Appeals — Second Circuit

Page 389

959 F.2d 389

UNITED STATES of America, Appellee, v. Edward BOHN and Maxine Heckroth, Defendants-Appellants.

Nos. 545, 685, Dockets 91-1443, 91-1444.

United States Court of Appeals, Second Circuit.

Argued Dec. 12, 1991.

Decided March 19, 1992.

Nicholas M. DeFeis, New York City (Milbank, Tweed, Hadley & McCloy, New York City, Martin I. Saperstein, Goodman, Saperstein, & Steinitz, Garden City, N.Y.), for defendants-appellants.

Jonathan D. Polkes, Asst. U.S. Atty., Brooklyn, N.Y. (Andrew J. Maloney, U.S. Atty., Emily Berger, Asst. U.S. Atty., on the brief), for appellee.

Before: FEINBERG, NEWMAN, and CARDAMONE, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal in a criminal case poses, in a novel context, the issue of what options are open to a defendant and a sentencing judge on remand when a sentence exceeds a sentence bargain that specified only one component of the sentence. The issue arises on an appeal by Edward Bohn and Maxine Heckroth from judgments entered July 12, 1991, in the District Court for the Eastern District of New York (Thomas C. Platt, Chief Judge), convicting them on their pleas of guilty to mail fraud, in violation of 18 U.S.C. § 1341 (1988), and, in Bohn's case, also to money laundering, in violation of 31 U.S.C. § 5324(3) (1988). We conclude that the District Judge must either permit withdrawal of the guilty pleas or conform his sentence to the sentence bargains; that, if the pleas stand, the sentencing judge has discretion to increase the components of the sentence that were not included in the sentence bargains; and that the defendants have an additional option to withdraw this appeal now that they are aware that their appellate "victory" risks consequences that they might well regard as adverse.

Facts

Both appellants were charged with mail fraud offenses and Bohn was charged with money laundering offenses arising out of their telemarketing of computer office supplies. Both pled guilty on October 5, 1990, pursuant to plea bargains. Bohn agreed to plead guilty to one count of mail fraud and one count of money laundering, and Heckroth agreed to plead guilty to two counts of mail fraud. Both defendants agreed to cooperate with the Government in its ongoing investigation, and the Government agreed to make a motion for a cooperation departure under section 5K1.1 of the Sentencing Guidelines. An unusual aspect of the plea agreements and the one out of which these appeals arise is that each agreement specified the amount of the fine but were silent on all other aspects of the sentence. See Fed.R.Crim.P. 11(e)(1)(C). Bohn's agreement specified a fine of $125,000, and Heckroth's agreement specified a fine of $50,000. Both agreements specified these fine amounts, but neither contained any language limiting the sentence to a fine. Thus, both agreements permitted the sentencing judge to include a term of imprisonment.

At defendants' sentencing on June 28, 1991, the District Judge asked the prosecutor whether he recommended probation. The prosecutor replied that he had no objection to probation. Chief Judge Platt said he understood that reply to be a recommendation for probation. The Judge sentenced Bohn to five years' probation and a fine of $500,000. He specifically stated that he was going to impose a fine "in light of the fact that I am not going to sentence you to jail." The Judge sentenced Heckroth to five years' probation and a fine of $250,000. In both cases, the fines exceeded the amounts specified in the sentence bargains.

Discussion

On appeal, the defendants and the Government are in agreement that both judgments must be remanded for resentencing and that, on remand, the District Judge should be directed to reduce the fines to the amounts specified in the sentence bargains. The parties disagree, however, as to what should happen to the remainder of the judgments. The defendants contend that the remainder of each judgment, notably the component imposing a sentence of probation, should not be changed. The Government contends that the District Judge should have the option of replacing the sentences of probation with terms of imprisonment, up to the statutory maximums. These conflicting contentions frame the principal issue, but do not exhaust the complexities of this appeal.

We begin our analysis, as the parties do, with the undisputed fact that as to both defendants the fines imposed exceed the sums specified in the sentence bargains. When a plea bargain, or in this case, a sentence bargain, has not been honored, the remedy is either to enforce the bargain or to afford the defendant an opportunity to vacate the guilty plea. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). It is not entirely clear who is entitled to exercise the Santobello option--the court or the defendant. See id. at 263, 92 S.Ct. at 499 (leaving choice to state court on remand); United States v. Kurkculer, 918 F.2d 295, 298-302 (1st Cir.1990) (remanding for imposition of specified sentence); United States v. Burruezo, 704 F.2d 33, 38-39 (2d Cir.1983) (requiring opportunity to withdraw plea, where such relief unopposed by prosecution). We think that initially the option lies with the District Judge, at least in a case such as this that does not involve lack of compliance by the prosecution. Thus, on remand, Chief Judge Platt must initially determine whether he wishes to accept the sentence bargains. If he accepts the bargain in either defendant's case, he must conform the sentence to that bargain by reducing the fine to the bargained amount. If, instead, he prefers in either defendant's case to retain the authority to impose a fine greater than the bargained amount, then he must afford that defendant the opportunity to withdraw the guilty plea.

The Government contends that only the option of enforcing the sentence bargains should now be available because the Government would be prejudiced by having to reassemble its trial evidence more than a year after the guilty pleas were entered. We think the Government has lost the opportunity to make that complaint in this Court by virtue of its failure to alert the District Judge to the fact that his sentences exceeded the sentence bargains. Had the Government pointed this out at sentencing, the District Judge could then have determined whether to adhere to the sentence bargains or to permit the defendants to withdraw their pleas. The Judge's sentencing options should not be restricted by a sentence bargain he is entitled to reject, see Fed.R.Crim.P. 11(e)(4), just because the Government neglected to call his attention to a provision of the bargain. Of course, the Government is free to argue to the District Judge that the burdens it faces in reassembling its trial evidence weigh in favor of a decision by the Judge to exercise his discretion to accept the sentence bargains and conform his sentences to their terms.

The more substantial issue is whether on remand the sentencing judge, if he elects to accept the sentence bargains, may impose a sentence of imprisonment in lieu of the sentence of probation, once he lowers the fines to the bargained amounts. This issue comprehends several questions.

The first question is whether we should determine the Judge's authority at this point, or simply remand and consider the issue on a subsequent appeal in the event that he accepts the sentence bargains and elects to impose sentences of imprisonment. Though withholding rulings until events require them is normally sensible appellate practice, it would be unfair to the defendants to follow that course in this case. If the Judge has the option to impose prison sentences, the defendants are entitled to know that before they have irrevocably placed themselves in a position where their appellate "victory" in challenging the fines exposes them to the prospect of adverse consequences.

The second question is whether the Government may be heard in support of the option of imprisonment without having taken a cross-appeal. It is a familiar rule that an "appellee may not attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary, whether what he seeks is to correct an error or to supplement the decree with respect to a matter not dealt with below." United States v. American Railway Express Co., 265 U.S. 425, 435, 44 S.Ct. 560, 564, 68 L.Ed. 1087 (1924). An appellee who wishes to augment a judgment in some respect is normally obliged to file a cross-appeal and proceed as a cross-appellant. See 9 Moore's Federal Practice, p 204.11 (1991).

Whether a cross-appeal is required where an appellee wishes a component of the judgment increased only in the event that another component is decreased on appeal is a matter of some uncertainty and surprisingly little authority. See Hartford Accident and Indemnity Co. v. Sullivan, 846 F.2d 377, 385 (7th Cir.1988) (Posner, J.) (whether cross-appeal rule applies "where the modification is conditional on the appellate court's rejecting other parts of the district court's decision is a question on which we can find no authority"), cert. denied, 490 U.S. 1089, 109 S.Ct. 2428, 104 L.Ed.2d 985 (1989). Three decisions of the Supreme Court, all in the civil context, shed some light on the problem. In Alexander v. Cosden Pipe Line Co., 290 U.S. 484, 487, 54 S.Ct. 292, 293, 78 L.Ed. 452 (1934), the Court ruled that, at least in Supreme Court practice, a party that had suffered adverse outcomes in the Court of Appeals on two distinct portions of a judgment in a suit for wrongful collection of taxes could not, in the absence of a cross-petition for certiorari, obtain review of those adverse rulings in response to a successful effort by the tax collector to increase two other portions of the judgment. In Helvering v. Pfeiffer, 302 U.S. 247, 250-51, 58 S.Ct. 159, 160-61, 82 L.Ed. 231 (1937), the Court applied the Cosden approach to bar the Commissioner of Internal...