U.S. v. Coon, s. 85-2498

• Decision Date: 21 November 1986
• Docket Number: 86-1142,Nos. 85-2498,s. 85-2498
• Parties: UNITED STATES of America, Appellee, v. Gordon Wallace COON, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 822

805 F.2d 822

UNITED STATES of America, Appellee, v. Gordon Wallace COON, Jr., Appellant.

Nos. 85-2498, 86-1142.

United States Court of Appeals,

Eighth Circuit.

Submitted June 12, 1986.

Decided Nov. 21, 1986.

Keith E. Uhl, Des Moines, Iowa, for appellant.

John Jarvey, Washington, D.C., for appellee.

Before JOHN R. GIBSON, Circuit Judge, FAIRCHILD, ^* Senior Circuit Judge, and MAGILL, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

The issue in this case is whether the fine imposed upon Gordon Wallace Coon, Jr. following his entry of a guilty plea to a single count of conspiracy to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846 (1982), should be reduced from $100,000 to $25,000. In a letter to Coon's counsel, the Assistant United States Attorney set forth a proposed plea agreement outlining the terms of the government's offer and advising Coon that if he pleaded guilty the maximum sentence was fifteen years' imprisonment or a fine of $25,000 or both. Neither Coon's lawyer nor the Assistant United States Attorney were aware that on October 11, 1984, the maximum fine had been increased to $250,000. The district judge ¹ informed them of the change the day before the entry of the plea. At that point Coon had already been interviewed by the FBI and, as inelegantly described by the agent, had "spilled his guts." In a motion under Rule 35(a) of the Federal Rules of Criminal Procedure, Coon argued that he entered a guilty plea in detrimental reliance on the misinformation and that the fine should be reduced to the amount stated in the plea agreement. The district court rejected Coon's estoppel argument. We affirm.

Coon was arrested by federal officers in connection with a drug transaction, was informed that he would probably be indicted, and was released from custody. Two days later he hired a lawyer, J.E. Tobey, III. On April 25, 1985, Ronald M. Kayser, Assistant United States Attorney for the Southern District of Iowa, wrote Tobey a letter proposing a plea agreement. Under the agreement Coon would (1) plead guilty to a single count of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846, (2) forfeit all property he obtained during the pendency of and as a result of his narcotics trafficking, and (3) give his cooperation to the United States, which included giving truthful testimony before a federal grand jury, at trials, and to federal agents in debriefing sessions against other suppliers, potential defendants and associates, and cooperating with federal authorities in any present or future narcotics investigations. Details concerning Coon's forfeiture and cooperation were spelled out in the agreement. In exchange, the government would not bring any other drug or income tax charges against the defendant based on information he would give during the debriefing sessions, would make no recommendation regarding the sentence to be imposed by the court, would contact the Bureau of Prisons and request that it place Coon in a federal penal prisoner security system for cooperating prisoners, and would make known Coon's cooperation to the United States Parole Commission.

Kayser's letter to Tobey stated:

There are no agreements whatsoever regarding what sentence your client will or should receive. Sentencing will remain in the sole discretion of the trial court.

* * *

* * *

Your client will enter a plea of guilty to a single count United States Attorney Information charging him with conspiracy to distribute cocaine in violation of Title 21, United States Code, Section 841(a)(1), and 846. You are advised that that crime carries a maximum sentence of 15 years imprisonment and a fine of $25,000 or both such fine and imprisonment. As I indicated, the sentence to be adjudged in this case would be within the sole discretion of the trial court.

Clerk's Designated Record at 3-4.

Effective January 1, 1985, the maximum fine for a violation of 21 U.S.C. Sec. 846 was increased to $250,000. 18 U.S.C. Sec. 3571(b)(1)(A). Neither the United States Attorney nor Coon's attorney were aware of the change, although Coon's attorney had researched the penalties that could be imposed under Section 846.

On September 4 and 5, 1985, Coon met with Special Agent Alvin C. Overbaugh and fully cooperated in giving information. At the hearing on Coon's Rule 35(a) motion Coon's counsel testified that, at the time Coon met with Agent Overbaugh, Coon was acting in reliance on the representations made in the plea agreement, including the statement that the maximum fine could not exceed $25,000.

Coon was scheduled to appear in court on October 25, 1985 to enter his plea. A day or two before that the judge received a copy of Kayser's letter, noticed the error concerning the maximum fine, and told Kayser. Kayser in turn told Tobey, who told Coon that the maximum fine was actually $250,000. The next day Coon appeared in court, waived grand jury indictment and entered a guilty plea.

When Coon appeared to enter the guilty plea, he stated that he was told the day before that the maximum fine was $250,000 rather than $25,000 as was stated in Kayser's letter of April 25, 1985. He also stated that he was aware that the maximum term of imprisonment was fifteen years and that there was a $50 assessment for the Crime Victim's Fund. He informed the court that it was his voluntary decision to plead guilty and that nobody had promised him what the sentence would be.

Coon appeared for sentencing on December 6, 1985, and told the court that he remembered the proceedings on October 25, and reaffirmed his guilty plea. His counsel stated that there was no legal reason why sentence should not be pronounced. The court then sentenced Coon to five years in prison and fined him $100,000.

Coon thereafter brought a motion under Rule 35(a) of the Federal Rules of Criminal Procedure seeking to have his fine reduced to $25,000. His contention before the district court was that because the maximum fine was represented to him as, and he believed it to be, $25,000 he decided to accept the plea agreement and perform a substantial part of his end of the agreement by appearing before Agent Overbaugh. He argued that the court was estopped from imposing a fine in excess of $25,000 and that the sentence is illegal to the extent it exceeds that amount. The district court conducted a hearing, and attorney Tobey testified concerning the agreement. Tobey stated that it was his opinion that after his client had appeared before Agent Overbaugh he was "boxed in" and had no choice but to go through with the plea even though he was later told of the higher fine.

The district court ruled that the sentence was not an illegal one, that it was within the statutory maximum, and that when Coon pleaded guilty he knew the statutory maximum and, within that statutory maximum, the sentence was entirely in the discretion of the court. The motion was denied.

In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the Supreme Court sanctioned plea agreements, but cautioned that the conditions for a valid plea "presuppose fairness in securing agreement between an accused and a prosecutor. * * * [W]hen a 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." Id. at 261-62, 92 S.Ct. at 498-99. In Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984), however, the Supreme Court limited the extent to which such contract law standards are applicable to the constitutional analysis of plea agreements. In Mabry, the prosecutor withdrew his first offer and replaced it by a second, less favorable, offer before the defendant could accept the first one. The Court found that the defendant's subsequent plea of guilty was in no sense "induced" by the withdrawn offer, id. at 2548, because at the time the defendant entered his plea he was fully aware that the second agreement controlled. The Court stated that "a plea bargain standing alone is without constitutional significance," id. at 2546, and the defendant has no constitutional right to have a plea bargain specifically enforced. Id. at 2548. Only when the resulting guilty plea is involuntary or when the defendant is not aware of the direct...