U.S. v. Griffin

• Decision Date: 14 April 1987
• Docket Number: No. 86-3058,86-3058
• Citation: 816 F.2d 1,259 U.S. App. D.C. 383
• Parties: UNITED STATES of America v. Christopher E. GRIFFIN, a/k/a Chris E. Griffin, Chris Griffin, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1

816 F.2d 1

259 U.S.App.D.C. 383

UNITED STATES of America v. Christopher E. GRIFFIN, a/k/a Chris E. Griffin, Chris

Griffin, Appellant.

No. 86-3058.

United States Court of Appeals, District of Columbia Circuit.

Argued March 6, 1987.

Decided April 14, 1987.

Appeal from the United States District Court for the District of Columbia (Criminal No. 85-00293-01).

G. Allen Dale, Washington, D.C., for appellant.

Susan A. Nellor, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Michael W. Farrell, Mary Ellen Abrecht and Darryl W. Jackson, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before WALD, Chief Judge, EDWARDS and D.H. GINSBURG, Circuit Judges.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

Appellant Christopher E. Griffin pled guilty to one count of mail fraud, was sentenced to five years' imprisonment, and was ordered to pay restitution to the victim in the amount of $62,500. He subsequently moved the District Court to set aside his guilty plea, vacate his sentence, and grant him a jury trial. Griffin alleged that his plea was involuntary because it was induced by promises by his attorney and the prosecutor that he would not be incarcerated, that the prosecutor's comments during the sentencing hearing breached the plea agreement, that his plea was not made knowingly and voluntarily because he was not fully informed by his attorney regarding the count of the indictment to which he was to enter his plea, and that he was not given adequate time before sentencing in which to review the presentence report. The District Court rejected all of these claims and denied the motion. 641 F.Supp. 1546, 1547 (D.D.C.1986). For the reasons set forth below, we affirm.

I. BACKGROUND

A seven-count indictment filed on August 8, 1985 charged Griffin with two counts of mail fraud (18 U.S.C. Sec. 1341), two counts of wire fraud (18 U.S.C. Sec. 1343), and three counts of interstate transportation of money obtained by fraud (18 U.S.C. Sec. 2314). Griffin's trial was scheduled to begin on January 23, 1986. After a jury had been selected and sworn, but before any evidence had been presented, Griffin's counsel, Mr. Charles Halleck, informed the court that a plea agreement had been reached. Transcript of Plea Proceeding ("PT") at 6. The agreement provided that Griffin would plead guilty to one count of his choice in exchange for the government's promise to dismiss the remaining counts, to forego prosecution of Griffin for related offenses involving victims in Ohio and New York, to waive its right to argue that Griffin be incarcerated pending sentencing, to waive its right to allocute at sentencing except to request that the court order restitution in the amount of $62,500, and to recommend that any penalty imposed by the court not exceed three years. In addition, Griffin agreed to execute a promissory note for the balance of the $62,500 not paid at the time of sentencing. PT at 6-8. Griffin's counsel first stated to the court that Griffin intended to plead to count five of the indictment, which charged interstate transportation of money obtained by fraud. PT at 6. After the prosecutor responded to the court's inquiry concerning the maximum penalty for count five, Griffin's counsel indicated that he had erred and that Griffin actually intended to plead guilty to count two of the indictment, mail fraud, which carried a maximum penalty of five years' imprisonment, a $1,000 fine, or both. PT at 8-9.

Griffin was then sworn, and the court proceeded to question him as to his understanding of the plea, as required by Rule 11 of the Federal Rules of Criminal Procedure. Griffin stated that he wished to plead guilty to count two of the indictment and that he understood the terms of the plea agreement. PT at 10-12. Griffin acknowledged that the court could impose the maximum sentence of five years, $1,000, or both, and could also order him to make restitution. PT at 13-14. The following exchange then took place:

The Court: Has your plea of guilty this afternoon been tendered or offered to the court by virtue of any representation by Mr. Halleck, or anyone else, including the prosecutor, as to what the actual sentence will be imposed by the court?

The Defendant: No.

Mr. Halleck: I have indicated what I think, but I have indicated to him I can't make any promises about what the court will do.

The Court: That is exactly right. You understand that, do you not?

The Defendant: Yes.

The Court: Do you understand the court has total discretion and it could sentence you to a maximum term of imprisonment of up to five years in jail and fine you $1,000, or both?

The Defendant: Yes, sir.

PT at 21. Finally, Griffin stated that he understood that if the court accepted his guilty plea, he would not be allowed to withdraw the plea. PT at 28. The court then accepted Griffin's guilty plea to one count of mail fraud. PT at 29.

At the sentencing hearing, which was held on February 27, 1986, Griffin and his counsel requested the court to impose probation or a suspended sentence. Transcript of Sentencing Hearing ("ST") at 15-27. The prosecutor then addressed the court, stating that "[t]he government will limit its allocution, pursuant to the plea agreement between it and the defendant, to its concern with the actual restitution in the amount of $62,500." ST at 28. The prosecutor indicated that the victim, Ms. Joan Pierotti, had given Griffin $62,500, which she obtained by borrowing money from a friend and by taking out a second mortgage on her house. Ms. Pierotti believed that Griffin's life would be endangered if he were unable to obtain his release from prison, and the money she gave Griffin was ostensibly to be used by him to post bond and to pay legal fees. ST at 28-29. The prosecutor argued that Griffin had sufficient assets to enable him to make full restitution, noting that Griffin had filled out an application for a Swiss bank account in October of 1984, had sent $30,000 to his brother, and had once boasted about owning three fur coats. ST at 29-31. Finally, the prosecutor quoted from a decision of an Illinois court, which stated, in sentencing Griffin for a prior conviction:

Defendant is certainly a young man, but in a short period of life, adulthood, he has been able to circumvent the law. He has used people, he has taken advantage of people, he has used cunningly his abilities, and they are great abilities.... This man is a cunning man. He has used his wits, he has used his charm, and he has abused the general public by using these matters. Certainly this is not a crime of passion, this is not a violent crime, but his conduct is such that as far as this court is concerned he can very well be construed as coming within the realm of taking advantage of people and using people for his own benefit and for his own needs and desires, whatever they may be.

ST at 32 (quoting People v. Griffin, 113 Ill.App.3d 184, 68 Ill.Dec. 778, 446 N.E.2d 1175 (1982)). After reading this excerpt, the prosecutor stated, "Your honor, we simply ask, in terms of ordering restitution, the court not be further manipulated to the extent that such manipulation may take place and that the court order full restitution from the defendant to the complainant in the full amount of $62,500." ST at 32-33. The prosecutor concluded his allocution by stating that "[a]s a part of our plea agreement, the government would recommend that any penalty imposed not exceed three years and we will dismiss all other counts after the sentence is imposed by the court." ST at 33. The prosecutor then indicated that Ms. Pierotti "would like to address some brief remarks to the court." ST at 38. Ms. Pierotti was sworn, questioned by the court, and cross-examined by Griffin's counsel. ST at 38-46. At the conclusion of the hearing, the court sentenced Griffin to five years' imprisonment and ordered him to pay restitution in the amount of $62,500. ST at 52.

Halleck stated at the sentencing hearing that Griffin had given him $5,400 to be paid immediately as partial restitution. ST at 23, 48. When Halleck did not tender the $5,400 after the hearing, the government sought to have Griffin held in contempt of court. On March 5, 1986, the court ordered Griffin to show cause why he should not be held in civil contempt of court. At the show cause hearing on March 10, Halleck stated that he was refusing to relinquish the $5,400 because it had been given to Griffin by his fiancee, who now wanted the money returned to her. Transcript of Show Cause Hearing ("SCT") at 2-8. At the conclusion of the hearing, the court took the matter under advisement. SCT at 28-29.

On April 15, 1986, Griffin moved the District Court to allow him to withdraw his guilty plea. A hearing on this motion, along with a further hearing on the order to show cause why Griffin should not be held in contempt, was held on May 22-23, 1986. Griffin, Halleck, and the prosecutor each testified concerning the circumstances surrounding the negotiation of the plea agreement. Griffin testified that he was promised, both by Halleck and by the prosecutor, that he would be placed on probation or given a suspended sentence if he agreed to make full restitution to Ms. Pierotti. Transcript of Hearing on Motion to Withdraw Guilty Plea ("MT") at 137, 144, 147-48. The prosecutor testified that he did not make any promises to Halleck or to Griffin concerning the sentence Griffin would receive, and that Halleck made no such promises to Griffin while he (the prosecutor) was present. MT at 166. Halleck's account was at odds with both the prosecutor's testimony and with Griffin's. Halleck testified that "I didn't promise [Griffin] that he would get probation, but I did promise him that he wouldn't get more than three years." MT at 193. Halleck explained that he had told Griffin that the judge might place him on probation or sentence him to a period of incarceration up to three years, "[b]ut the one thing I told...