U.S. v. Brown
| Decision Date | 18 July 1974 |
| Docket Number | No. 73-2046,73-2046 |
| Citation | 500 F.2d 375 |
| Parties | UNITED STATES of America, Appellee, v. Robert Nathaniel BROWN, Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
John F. Kelly, Landover, Md. (Court-appointed counsel), for appellant.
Russell T. Baker, Asst. U.S. Atty. (George Beall, U.S. Atty., on brief), for appellee.
Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.
Indicted by a grand jury for forgery and possession of stolen mail matter in violation of 18 U.S.C. 495 and 1708, Robert Nathaniel Brown initially pleaded not guilty to both counts. Thereafter, he entered into a plea bargain whereby he pleaded guilty to the charge of possession in consideration of dismissal of the charge of forgery and a recommendation by the government that he received a sentence of three years to be served at Lorton concurrently with the unexpired portion of a sentence to be served after revocation of parole. He was, instead, sentenced to a term of four years without recommendation that it be served at Lorton.
Because we conclude that the plea bargain was not carried out by the office of the United States Attorney, we vacate the sentence and remand for defendant to be resentenced by another district judge.
After the plea bargain was struck between defendant's attorney and the prosecutor, the defendant tendered a change of plea from not guilty to guilty on the charge of possession of stolen mail matter. Before accepting the change of plea at rearraignment, the district judge engaged in a thoroughgoing exploration of the voluntariness of defendant's guilty plea. The terms of the plea bargain were spread upon the record, and they provided that the prosecutor would recommend at sentencing (1) that the court sentence the defendant to a term not to exceed three years, (2) that the court make the sentence run concurrently with an outstanding sentence in the District of Columbia if parole was revoked there, as was expected, (3) that the court sentence the defendant to the District of Columbia's institution at Lorton, which would determine his eligibility for parole, (4) that the court continue bond pending preparation of the presentence report, and (5) that the forgery count would be nol prossed. After advising the defendant that the court was not bound by the prosecutor's sentencing recommendations and that the maximum sentence possible was two thousand dollars and/or five years in prison, the district judge heard evidence from the prosecutor and the defendant personally which apparently satisfied him that there was a 'factual basis' for the guilty plea. See Rule 11, F.R.Cr.P. He then accepted the guilty plea and ordered a presentence report.
Approximately two months later, at sentencing, a different Assistant United States Attorney appeared for the United States. At that time the following colloquy ensued:
After defendant's attorney had presented his argument on sentencing and the defendant had exercised his right of allocution, the district court sentenced the defendant to four years' imprisonment, expressly declining to make the arrangements necessary for incarceration at the Lorton Reformatory.
Disposition of this case is governed by Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). As was recognized there, guilty pleas induced by a plea bargain may be accepted by a trial court and a sentence thereon imposed provided that certain substantive principles of fairness are observed and the necessary procedural protections are followed. One substantive safeguard to which a criminal defendant is always entitled is that when a guilty plea 'rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.' Santobello, supra, 404 U.S. at 262, 92 S.Ct. at 499.
In the instant case, we believe that the government failed to keep its bargain. We have no occasion to consider the propriety of sentence, or recommendation as to sentence, as an element of a plea bargain, but it is manifest that the consideration which induced defendant's guilty plea was not simply the prospect of a formal recitation of a possible sentence, but rather the promise that an Assistant United States Attorney would make a recommendation on sentencing. This could reasonably be expected to be the sound advice, expressed with some degree of advocacy, of government officer familiar both with the defendant and with his record and cognizant of his public duty as a prosecutor for the United States.
Undoubtedly the district court had this understanding of the role of an Assistant United States Attorney at sentencing when he sought the prosecutor's recommendation. Certainly he was entirely correct in inquiring into the basis of the recommendation to aid him in the exercise of his sentencing discretion. Whether the prosecutor's halfheartedness in presenting the recommendation was a factor in the district court's imposing a sentence more severe than that 'recommended' is a matter into which we need not inquire. In Santobello, where one prosecutor had promised not to make a sentencing recommendation at the time of plea bargaining and then another prosecutor had called for the maximum punishment at the time of sentencing, there was a strong, unequivocal statement by the trial judge that his sentence was not affected in any way by the prosecutor's recommendation but rather was based on a highly adverse presentence report, parts of which he read into the record. Stating that they had 'no reason to doubt' the trial judge's statement 'that the prosecutor's recommendation did not influence him,' the Court nonetheless reversed and remanded, 'emphasiz(ing) that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.' 404 U.S. at 262-263, 92 S.Ct. at 499. The question of the effect on the district court of the prosecutor's noncompliance with the plea bargain was thus deemed irrelevant. The sentence was vacated and the case remanded in the 'interests of justice' and in order to enforce 'the duties of the prosecution in relation to promises made in the negotitation of pleas of guilty.' 404 U.S. at 262, 92 S.Ct. at 499.
In determining the significance of the prosecutor's failure to fulfill the promise contained in the plea bargain in Santobello, the Supreme Court did not inquire into the reasons for the breach; nor do we. We have no reason to...
To continue reading
Request your trial
-
U.S. v. Pollard
...based upon [various] personal factors" to include an implicit promise to consider the factors specified. See also United States v. Brown, 500 F.2d 375 (4th Cir.1974) (prosecutor's statement to the judge that he recommended three years because of the plea agreement, though he had "some probl......
-
State v. McDonnell
...the judge but, instead, is required to support it. See, e.g., United States v. Crusco, 536 F.2d 21 (3d Cir.1976); United States v. Brown, 500 F.2d 375 (4th Cir.1974); cf. United States v. Ammidown, 497 F.2d 615 (D.C.Cir.1973); Correale v. United States, 479 F.2d 944 (1st Cir.1973). The invi......
-
State ex rel. Morris v. Mohn
...1978); United States v. Grandinetti, 564 F.2d 723 (5th Cir. 1977); Palermo v. Warden, 545 F.2d 286 (2d Cir. 1976); United States v. Brown, 500 F.2d 375 (4th Cir. 1974); Dublin v. United States, 388 A.2d 461 (D.C.App.1978); Morrow v. State, 219 Kan. 442, 548 P.2d 727 (1976); Blaikie v. Distr......
-
Palermo v. Warden, Green Haven State Prison
...requires relief when the prosecutor fails to fulfill promises within his power made in negotiating a plea bargain. United States v. Brown, 500 F.2d 375 (4th Cir. 1974); United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973). We believe that the reasoning underlying Santobello applies no less......