U.S. v. Carrigan, s. 85-1530
Decision Date | 03 December 1985 |
Docket Number | Nos. 85-1530,85-1536 and 85-1541,s. 85-1530 |
Citation | 778 F.2d 1454 |
Parties | UNITED STATES, Petitioner, v. Honorable Jim R. CARRIGAN, Respondent. UNITED STATES, Plaintiff-Appellee, v. Daniel G. LANDRY, Defendant-Appellant. UNITED STATES, Plaintiff-Appellant, v. OTIS ELEVATOR COMPANY and Daniel G. Landry, Defendants-Appellees. |
Court | U.S. Court of Appeals — Tenth Circuit |
Thomas O'Rourke, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty., with him on brief), Denver, Colo., for petitioner and plaintiff-appellant U.S.
James E. Nesland of Ireland, Stapleton, Pryor & Pascoe, P.C., Denver, Colo., for defendant-appellant Daniel G. Landry.
Before McKAY, LOGAN and SEYMOUR, Circuit Judges.
The United States (the Government) and Daniel G. Landry appeal from an order of the district court rejecting what the court described as a proposed plea agreement between the Government and a corporate defendant, Otis Elevator Company ("Otis"), and what the Government characterizes as a motion to dismiss defendant Landry. The Government also seeks a writ of mandamus directing the district court to accept the proposed disposition of the case against Landry. The Government claims that the district court exceeded its authority when it rejected the agreement. We disagree and affirm.
On November 24, 1984 a federal grand jury in Colorado returned an indictment against Otis and Landry, an Otis employee. The indictment 1 charged Otis and Landry each with three counts of submitting false claims to the United States government in violation of 18 U.S.C. Sec. 287 (1982). 2 On February 15, 1985 the Government and the two defendants submitted a proposed plea agreement to the district court. The agreement provided that Otis would plead guilty to all three counts and the Government would dismiss the three counts against Landry. 3 The plea agreement also incorporated three settlement agreements between Otis and the United States Departments of Justice, Defense, and Transportation. Copies of these agreements were attached to the plea bargain agreement. The proposed plea bargain agreement was signed by Assistant United States Attorney Thomas O'Rourke, Landry, Landry's attorney James Nesland, and Otis' attorney.
The agreement with the Justice Department provided for the settlement of a civil action based on the false claims that formed the basis of the indictment against Otis and Landry. In exchange for a release from a potential civil claim of $629,000, Otis agreed to pay $900,000 to the United States. The agreements with the Departments of Defense and Transportation bar Otis' Denver division from government contracts with the two agencies for three years, isolate Landry's immediate supervisor from government work, and bar Landry from ever working for Otis or its affiliates. The agreement with the Defense Department also requires Otis to implement specific measures designed to prevent future occurrences of the alleged fraudulent practices underlying the indictment. These measures included a "cost principles awareness program" for Otis' employees and use of independent accountants to review the accounting system of Otis' Denver division.
As part of the proposed plea bargain materials submitted on February 15, the Government included a motion to dismiss the charges against Landry, as required by the plea bargain. 4 The motion to dismiss was presented to the district court along with all of the plea bargain and settlement agreement documents.
On March 22, 1985 the district court held a hearing on the proposed plea agreement. Present at the hearing were Assistant United States Attorney O'Rourke, Landry, and Nesland, who represented both Otis and Landry. The district court expressed concern that, under the terms of the proposed agreement, no individuals were to be prosecuted for the fraud against the Government, which totaled $629,000. The court stated:
Rec., vol. IV, at 5-8.
Attempting to respond to the court's ruling, O'Rourke offered several reasons for the proposed plea agreement. He argued that the Government had already received $900,000 from Otis in the civil settlement, which O'Rourke termed "ample restitution." Id. at 9. He also noted that a trial of Otis would result in "a battle of experts on accounting issues." Id. Finally, he argued that the Government had achieved a significant public interest objective by obtaining a corporate guilty plea to criminal charges of fraud from a corporation. Although O'Rourke admitted "that Mr. Landry acted as the corporation," he defended the dismissal of charges against Landry as a necessary "tradeoff." Id. To this the court responded:
"If you say it's a tradeoff, that may well be, but the problem I am having is the gross disproportion between the $629,000 the government says was taken from the government, and the $30,000 maximum fine for the three charges to which the corporation is going to plead guilty."
Id. at 10. The court refused to reconsider its ruling and reiterated that "the plea agreement, in its present form, is rejected." Id. at 13. At no time during the March 25 hearing did either defendant tender a guilty plea.
On March 27, the parties appeared before the district court for another hearing on the proposed plea agreement. At this hearing the Government and Landry urged the district court to reconsider its March 25 ruling and argued that the proposed dismissal of the charges against Landry constituted a motion to dismiss under Rule 48(a) of the Federal Rules of Criminal Procedure. 5 The district court was troubled by this tactic and expressed its concern with "whether [the Government] can change the authority of the Court to accept a plea agreement or reject a plea agreement under Rule 11(e) by merely invoking Rule 48(a)." Rec., vol. V, at 4. The following exchange then occurred between the court and Landry's attorney Nesland:
Id. at 20-21 (emphasis added). The Court rejected this argument:
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