U.S. v. Corbett, 83-2758

• Citation: 742 F.2d 173
• Decision Date: 05 September 1984
• Docket Number: No. 83-2758,83-2758
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George S. (Joe) CORBETT, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 173

742 F.2d 173

UNITED STATES of America, Plaintiff-Appellee, v. George S. (Joe) CORBETT, Defendant-Appellant.

No. 83-2758

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 5, 1984.

Edward T. McFarland, Lufkin, Tex., for defendant-appellant.

Bob Wortham, U.S. Atty., Beaumont, Tex., William J. Cornelius, Jr., Asst. U.S. Atty., Tyler, Tex., for plaintiff-appellee.

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

Before RUBIN, RANDALL and TATE, Circuit Judges.

PER CURIAM:

George S. (Joe) Corbett pled guilty to two counts of willfully failing to report the death of wild and free-roaming horses to the Bureau of Land Management. In this direct appeal, he complains of the Government's failure to honor portions of its plea agreement and of certain errors in the sentence imposed by the district court. For the reasons set forth below, we vacate Corbett's sentence and remand the case to the district court so that Corbett may replead to the charges against him.

I.

Appellant George S. (Joe) Corbett (Corbett) was charged in a seven-count indictment with violating various provisions of the Wild Horses and Burros Act, 16 U.S.C. Secs. 1331 et seq., and of conspiring to submit false and fraudulently acknowledged documents to the Bureau of Land Management (BLM) in connection with his adoption of certain federally-owned wild horses. The indictment alleged that Corbett adopted a large number of wild and free-roaming horses from the BLM and in connection therewith, along with Thomas Clemens ¹ and others, submitted false information to the BLM on forms fraudulently notarized by Clemens. The indictment further alleged that Corbett conspired to convert the horses that he adopted and that he wrongfully sold, mortgaged and made gifts of certain of those horses. Finally, the indictment alleged that Corbett abandoned and inhumanely treated three of the horses that were entrusted to him under the adoption program.

Pursuant to a written plea agreement, the Government agreed to dismiss the indictment and to refrain from prosecuting Corbett for any other criminal violations arising from his adoption of wild horses in December of 1981 and January of 1982. For his part, Corbett agreed to plead guilty to a two-count information charging him with willfully failing to notify the BLM within seven days of the death of two of the adopted horses. The written plea agreement was, of course, expressly conditioned on the district court's acceptance of Corbett's guilty plea to the information. In addition, the agreement specifically provides that "there is no agreement or representation made regarding the sentence to be imposed by the court...." Record Vol. 1 at 30.

On October 31, 1983, Corbett pled guilty in open court to both counts of the information. After a Rule 11 proceeding, ² the district court accepted the plea and the indictment was dismissed. A sentencing hearing followed on December 5, 1983 at which the court imposed the following sentence:

I'm going to impose sentence on Count 1 of six months, which I'm going to require you to serve, and a fine of $2,000, and on Count 2 the imposition of sentence will be suspended; however, there'll be a $2,000 fine that will not be suspended. You'll be placed on probation for a period of five years, and the sentence on Count 2 to run consecutively to the sentence imposed on Count 1.

Record Vol. 2 at 12. ³

Corbett thereafter filed a notice of appeal ⁴ and moved, pursuant to Rule 35, Fed.R.Crim.P., for reduction of his sentence. The motion was denied, but sentence was stayed pending appeal. Corbett did not, however, complain to the district court that the Government failed to honor the provisions of any plea agreement.

On appeal, Corbett asserts three grounds that he claims vitiate his conviction and sentence: (1) that his guilty plea was induced by the Government's unfulfilled promise to recommend leniency to the Probation Department during presentence investigation; (2) that the district court imposed a general sentence on multiple counts; and (3) that there is a fatal conflict between the sentence imposed in open court and the sentence reflected in the written commitment order. Corbett prays for resentencing before a different judge or for the opportunity to withdraw his guilty plea.

II.

Corbett alleges that his guilty plea was induced, in part, by the promise of Assistant United States Attorney William J. Cornelius to "write a letter to the Probation Department during Pre-Sentence Investigation recommending probation for Appellant [Corbett]." ⁵ Appellant's Brief at 9. He alleges that the letter was never written or, if it was, that it is not contained in the presentence investigation report submitted to the district court. Corbett seeks specific performance of the promise and resentencing before a different judge or, in the alternative, a chance to withdraw his guilty plea.

The Government denies that it promised to send a letter to the probation office recommending probation for Corbett. Appellee's Brief at 3. ⁶ The alleged promise is not mentioned in the written plea agreement. In fact, the agreement, which is signed by the United States Attorney, Corbett and two attorneys for Corbett, provides that "it is expressly agreed and understood that there is no agreement or representations made regarding the sentence to be imposed by the Court, inasmuch as that is a matter which is exclusively the province of this Court." Record Vol. 1 at 30. At the Rule 11 hearing, Corbett testified under oath that he had not been induced or persuaded into pleading guilty and that he was not promised leniency in exchange for his plea. ⁷ Although Corbett moved below for reduction of his sentence, he did not raise the issue of the Government's alleged failure to honor its promise to recommend probation. We are left, then, with Corbett's uncorroborated assertion that the Government committed itself to write a letter to the Probation Office, an assertion that is denied by the Government, refuted by the written plea agreement and arguably contradicted by Corbett's sworn testimony at the Rule 11 hearing. ⁸ With absolutely no factual predicate in the record, Corbett asks us, on the strength of his naked allegation of an unfulfilled prosecutorial promise, to grant him resentencing before a new judge or an opportunity to withdraw his guilty plea.

Corbett relies on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), for the proposition 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." Id. at 262, 92 S.Ct. at 499. We do not doubt the truth of that statement of the law. ⁹ It is, however, irrelevant to this case in its present posture. Santobello was decided on certiorari from a state court decision affirming a conviction based on a negotiated guilty plea. Petitioner complained of the prosecution's failure to honor its agreement to make no recommendation as to the sentence to be imposed. All parties agreed that the prosecution had in fact made the promise and had failed to honor it. Id. at 259, 92 S.Ct. at 497. Santobello, therefore, does not help us in deciding a case where the existence of a prosecutorial promise is disputed and is raised for the first time on direct appeal. Unlike the Court in Santobello, we are faced with a swearing match between briefs as to the very existence of the promise that the Government is accused of breaching.

Corbett's uncorroborated allegations do not warrant the relief he seeks. We must review the propriety of the plea against the only record before us: the Rule 11 transcript and the written plea agreement. ¹⁰ The record contains no evidence of a subsidiary Government promise to write a letter to the probation office. In fact, Corbett's testimony at the Rule 11 proceeding, together with the written plea agreement, negates the existence of any such promise. By accepting Corbett's guilty plea, the district court implicitly found that the plea was not induced by promises other than those contained in the written plea agreement. United States v. Dayton, 604 F.2d 931, 940 (5th Cir.1979) (en banc), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980) (acceptance of plea is viewed as affirmative finding that Rule 11's post-McCarthy requirements are satisfied; reviewed under clearly erroneous standard). On the record before us, we cannot characterize that finding as clearly erroneous. See United States v. Ammirato, 670 F.2d 552, 555 (5th Cir.1982) (no relief for unkept prosecutorial promise where claim was not supported by record). We do not hold that one who has pled guilty may never contradict the record and, after the Rule 11 hearing, assert the existence of a previously undisclosed prosecutorial promise. We simply hold that, having failed to raise the issue below, Corbett may not do so on direct appeal with uncorroborated allegations. ¹¹

III.

Although we decline to grant relief on Corbett's unkept plea bargain claim, we must address a fundamental error that appears on the face of the proceedings below. ¹² The record reveals an entire failure to address one of Rule 11's core concerns. We must, therefore, vacate Corbett's conviction and allow him to replead to the charges against him.

Rule 11 contains a long list of substantive requirements and procedural safeguards that must be observed before a guilty plea is accepted. It is clear, however, that we do not demand "letter-perfect compliance" with each of the rule's many requirements. Dayton, 604 F.2d at 939. See also Fed.R.Crim.P. 11(h) advisory committee note (1983) (Rule 11 "is not to be read as requiring a litany or other ritual which can be carried out only by word-for-word adherence to a set 'script.' "). In Dayton, we recognized that Rule 11 has three core concerns: (1) a guilty plea...