U.S. v. Frank

• Decision Date: 07 October 1994
• Docket Number: No. 93-10063,93-10063
• Citation: 36 F.3d 898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William J. FRANK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 898

36 F.3d 898

UNITED STATES of America, Plaintiff-Appellee, v. William J. FRANK, Defendant-Appellant.

No. 93-10063.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1994.

Decided Oct. 7, 1994.

Rebecca Donaldson, San Diego, CA, for defendant-appellant.

Reese V. Bostwick and James D. Whitney, Asst. U.S. Attys., Tucson, AZ, for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Alfredo C. Marquez, District Judge, Presiding.

Before: CHOY, LEAVY and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

The only significant issue in this case is whether the district judge participated in plea bargaining in such a manner as to entitle the defendant to withdraw his plea. We decide that he did not.

Facts

Frank was charged with various narcotics offenses and went to trial. On the third day of trial, April 9, 1992, the lawyers were to be in the courthouse at 8 a.m., to appear in court for any matters to be taken up before the jury came in at 8:30. When the lawyers arrived, Frank's attorney, Mr. Polis, approached the Assistant United States Attorney, Mr. Bostwick, and suggested that they discuss a plea bargain. When the clerk asked them if they had anything to take up in court before the jury came in, they told her that they were negotiating a plea agreement. The negotiations were carried on intensely in the corridor, with defense counsel for Frank and his fiancee, Virginia Berry, repeatedly consulting separately with their clients and then negotiating further with the prosecutor. Most of the negotiations had to do with what lenience could be obtained for Berry, for numerous members of Frank's family, and for Berry's father, all of whom were exposed to possible criminal prosecution. Frank had sold large quantities of marijuana for millions of dollars in Arizona and Pennsylvania.

When the clerk told the lawyers that it was time to bring the jury in, they told the clerk not to bring the jury in, because they had a deal. The clerk said they had better tell the judge, because he had said to bring in the jury. The lawyers went into chambers, and told the judge that they had worked out a plea bargain. He said that they had better tell him what it was, so that he could say whether it would be a waste of time and they should just go ahead with the trial. They told him, and he agreed to go into court immediately to put the deal on the record and assure that all parties intended the same thing, send the jury home, arrange the change of plea for the next morning, and tell the jury to be on call for the next day. The judge did not want to tell the jury that a change of plea was proposed, because that would interfere with continuation of the trial if the change of plea did not proceed as expected.

As they were leaving chambers, Mr. Polis, Frank's lawyer, asked the judge what he would have done if Frank had not made a plea agreement. The judge said that he would have sentenced Frank to life imprisonment if he could.

Then they went into court. Frank and Berry had not been in chambers, but they were in the courtroom. The prosecutor recited the terms of the agreement. Frank would plead guilty to continuing criminal enterprise, and be subject to a sentencing range of ten years to life. The judge would have discretion to set the sentence, and Frank would waive his right to appeal the sentence. Frank would also plead guilty to money laundering and tax evasion, with the judge having discretion to sentence up to the statutory maximums for those offenses. The judge would be free to depart upward from the guideline range, and Frank would not be able to appeal. If the government found additional assets which resulted from narcotics activity, it could forfeit them.

Virginia Berry would plead guilty to conspiracy. She would get a cap of five years, the statutory mandatory minimum, which would probably be below the guideline sentence. Neither side would appeal her sentence either.

The government agreed not to charge Frank's ex-wife, Elona Frank, with tax evasion for allegedly fraudulent returns she had signed, or Virginia Berry's father for harboring a fugitive. Frank's son Anthony would get house arrest with work release instead of prison, on a pending probation revocation matter. Frank could approach the government subsequently, and it would consider agreeing to a reduction of his sentence or Berry's under Federal Rule of Criminal Procedure 35, for information leading to the apprehension of two fugitive codefendants. Frank would get a downward adjustment for acceptance of responsibility if his conduct with respect to the pleading and his statements to the probation officer preparing the presentence report warranted such an adjustment.

After the agreement was set forth in open court by the prosecutor, the judge told Frank that if he had any questions or disagreed with what the lawyers thought the agreement was, it was important for him to speak up at that time, before the jury was sent home, not the next day.

Frank asked, "Is there a cap on my sentence at all?" The judge answered, "Life." Frank asked what "life" meant. The judge answered, "Life is the rest of your days until you die." Frank replied, "Okay. Thank you." Frank asked what the guidelines were, and the judge answered that he could not make that determination at this time, and all he could assure Frank of was that the maximum to which he would be exposed would be life. Defense counsel calculated an estimated guideline range of 151 to 188 months, but the judge said he could not assure Frank that this would be the applicable range, nor could he assure Frank that the court would not depart upward from the guidelines. The judge asked Frank if he understood all that the prosecutor had said about the sentence, including the waiver of appeal and the possibility of upward departure. Frank said, "No problem."

The judge then set the change of plea for the next morning, when the written plea agreement could be filed. The written plea agreement was signed by all parties and did not differ from the oral agreement put on the record on April 9. The written agreement recited that Mr. Polis had advised Frank of the nature of the charges, and that the court could consider all the evidence from the two days of trial for purposes of a factual basis. It also recited that Frank had received at least $575,000 in 1989 for marijuana and did not file a tax return in 1990 reporting that income. Frank also agreed that he had purchased real estate with narcotics money to disguise the source of the money.

In court, the judge proceeded through the usual Rule 11 colloquy. He did not repeat the careful examination of the terms of the plea agreement which had been performed the day before, but did give Frank another chance to ask any questions he might have, and did advise him of the maximum penalties for the crimes to which he was pleading. Regarding the factual basis, the judge said that he thought the evidence had demonstrated without dispute that Frank had organized five or more people for purposes of the continuing criminal enterprise count. Mr. Polis, Frank's lawyer, said, "No dispute about that.... No dispute he organized at least five people, your Honor." Then the judge gave Frank an opportunity to plead, and accepted his plea of guilty.

At sentencing, Frank had a new lawyer. (The record reflects that seven different lawyers have represented him at various stages in this proceeding). The sentencing hearing was held at the same time as an evidentiary hearing on Frank's motion to withdraw his plea of guilty. His new lawyer, Ms. Thorpe, called as her first witness Mr. Polis, Frank's lawyer when he changed his plea.

Mr. Polis testified that the government's pretrial position had been a minimum of twenty years, not the ten-year minimum in the agreement, and the defense had turned it down. But after two days of increasingly damaging testimony, on his recommendation and with Frank's approval, Mr. Polis approached the prosecutor about a deal. Then, after the negotiations with the prosecutor, counsel went into chambers. Mr. Polis thought this was after the terms had been agreed upon, but he was not sure. He was sure that all the terms had been agreed upon before the judge ever addressed the defendants directly. Regarding the judge's remark about what Frank would have received if he had not made a deal, Mr. Polis said, "I solicited a remark about what would happen in the event we went to trial." Mr. Polis said that the plea was not a package deal--the government would have agreed to a change of plea by either defendant without the other. Mr. Polis had told Frank that two of his sons, the one who got house arrest, and another who was "an extremely loose cannon" and faced perjury charges, would be jeopardized if the trial continued. Frank had told Mr. Polis that he only directly supervised three people, not the five needed for a continuing criminal enterprise, but Mr. Polis explained to him that "he didn't have to directly manage people, but if he managed people who in turn managed people, that was sufficient." Mr. Polis stated: "I thought the deal was a good one and I think that he recognized that by doing so he could save his family and save a lot of grief for--I won't say his in-laws, but all the families." Frank particularly wanted to obtain lenience for his son Anthony. He had also sought to obtain lenience for his fiancee, Virginia Berry, so that she would able to get their child back after she got out of prison. Mr. Polis had moved to withdraw as counsel because he did not feel he could properly argue for withdrawal of the same plea he had urged the court to accept.

Berry's lawyer, Mr. Tandy, testified that Mr. Polis did tell Frank, when they returned to the witness room to talk to their clients, about the judge's remark that if he went to trial and lost, the judge would sentence him to life if he could. Berry was...