U.S. v. Harvey, 83-5256

• Citation: 791 F.2d 294
• Decision Date: 22 May 1986
• Docket Number: No. 83-5256,83-5256
• Parties: UNITED STATES of America, Appellee, v. Michael Lee HARVEY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 294

791 F.2d 294

UNITED STATES of America, Appellee, v. Michael Lee HARVEY, Appellant.

No. 83-5256.

United States Court of Appeals Fourth Circuit.

Argued May 11, 1984.

Decided May 22, 1986.

Jonathan Shapiro (Jonathan Shapiro and Associates, P.C., on brief), for appellant.

William G. Otis, Asst. U.S. Atty., (Elsie L. Munsell, U.S. Atty.; Karen P. Tandy, Asst. U.S. Atty., on brief), for appellee.

Before PHILLIPS and ERVIN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

This is an appeal by Michael Harvey from an order denying his motion in this criminal action in the Eastern District of Virginia for enforcement of a plea agreement which he contended barred his prosecution in another district in a related case. The district court denied the motion on the basis that the plea agreement by its terms only prevented Harvey's prosecution in the Eastern District of Virginia. Because we conclude that the plea agreement was, as a matter of law, ambiguous on the point, and that in such a case the ambiguity must be construed against the government, we vacate the order and remand for further proceedings in the district of pending prosecution.

I

This appeal arises out of one of a series of related indictments returned over a two year period, starting in early 1982, in the Eastern District of Virginia, the District of South Carolina, and the Eastern District of North Carolina, respectively. The indictments charged separate drug smuggling and distribution conspiracies and related substantive offenses involving a number of defendants, including Michael Harvey, in one or more of the conspiracies. All of the indictments were based upon a generally related set of drug smuggling and distribution operations carried out by various ones of the defendants extending over the better part of ten years starting in 1974 and over wide reaches of the eastern seaboard. The general scope of these operations, their principal participants, and the interrelation of those operations charged to involve separate conspiracies are outlined in detail in United States v. MacDougall, et al., 790 F.2d 1135 (4th Cir.,1986), also decided this day on consolidated appeals from convictions under one of the related indictments in the District of South Carolina.

Inevitably, the overlapping nature of the separate conspiracies charged--in both personnel, spatial and temporal terms--has spawned questions of double jeopardy as defendants alleged to have been involved in more than one of the conspiracies have been successively prosecuted. Some of the double jeopardy claims have in fact been upheld at the trial court level, while others have been there denied and the denials then affirmed this day on the appeals in MacDougall. We need not recapitulate here either the common factual background or the procedural interrelationships between the indictments as extensively outlined in MacDougall; it suffices here simply to put Michael Harvey's particular situation in the context relevant to his appeal in this case. For his appeal grows out of the very interrelationship between conspiracies above noted, though in this case the problem is not presented as one of double jeopardy but as one of the reach of the "immunity" element of a plea agreement.

Michael Harvey was indicted on conspiracy and related substantive counts in two of the indictments, first in the Eastern District of Virginia (No. 31-A); later in the District of South Carolina (No. 166). The Eastern District of Virginia indictment, out of which this appeal arises, was returned on February 2, 1982. It was an 18-count indictment of Michael and his brother, Leon D. Harvey, an alleged ringleader in several of the separate conspiracies charged. Michael Harvey was charged in nine of the counts with, among other things, a conspiracy to possess and distribute hashish from the Spring of 1980 through January 1981 (Count 16), and two substantive offenses of distribution of hashish (Counts 17 and 18).

Michael first pleaded not guilty. Following hearings on several pre-trial motions, however, Harvey's counsel, Larry Turner, and Assistant United States Attorney Karen Tandy negotiated a plea agreement. Under its terms, Harvey would plead guilty to a single count--Count 7--charging interstate travel with the intent to carry on the illegal activity of possession and distribution of hashish in violation of 18 U.S.C. Sec. 1952(a)(3); in principal exchange, the government would move to dismiss the remaining eight counts against Michael Harvey, and, to an extent now disputed, would abstain from further prosecution of Harvey for "violations" related to those charged in the indictment.

A written memorial of the negotiated plea agreement, set out in full in the margin because of its critical importance on this appeal, ¹ was prepared by Ms. Tandy following completion of the plea negotiations. According to defense counsel's uncontradicted testimony, a copy was given him only ten minutes before the commencement of the Rule 11 guilty plea proceeding at which the agreement was to be proffered. At the outset of that proceeding on October 6, 1982, Ms. Tandy presented the agreement to the court by reading it aloud, verbatim. Following this presentation, the district court carefully examined Harvey in unchallenged accordance with the Rule 11 requirements. Among other things of importance to this appeal, Michael Harvey, responding to direct questions by the court, indicated that he had heard the "representations of the Assistant United States Attorney with regard to the plea agreement"; that it was "a fair representation"; and was the "entire understanding."

No further representations about the parties' specific understanding of the agreement were made, nor were any questions raised about its meaning by either counsel, the court, or the defendant during the rest of this proceeding. At the conclusion of the proceeding, the court found that the proffered guilty plea was voluntarily and understandingly made and had a basis in fact, and therefore accepted the plea. Sentencing was deferred pending receipt of a presentence report, and Harvey remained released on bond.

At the sentencing hearing approximately one month later, Attorney Turner for the defendant and Assistant United States Attorney Tandy for the Government engaged in allocution. Concluding his, Turner, in Ms. Tandy's presence, asserted to the court, "I don't think Michael Harvey will be back in this court or any other court. I think he is through, I think this court can rely upon that." Following this, Harvey himself asserted to the court, "I promise you will never see me in this courtroom again."

For the Government, Ms. Tandy then began by conceding that Harvey had "never been caught previously for any criminal offenses" and that "he was influenced in this case by an older brother who was very heavily involved in marijuana and hashish smuggling." But she then emphasized that Michael was nevertheless heavily involved in relatively high level aspects of the charged activities and that the fact that there were mitigating factors "does not clear the slate for his substantial involvement in this organization for the two or three years that he was involved at the level that he was involved." She then referred to the presentence report as a sufficient source for the court's consideration of the extent of Michael Harvey's involvement. She concluded by urging that because of the level of his involvement, Harvey "should be sentenced to a substantial term of years, including up to the maximum of five." In the presentence report considered by the court, there were references to drug smuggling and related activities by Michael Harvey in operations that occurred outside the Eastern District of Virginia as well as within it, specifically including acts in South Carolina.

In sentencing Harvey at the conclusion of this sentencing hearing, the court made a number of observations which, along with the sentence itself, are relevant to this appeal. Prefacing the imposition of sentence, the court stated that although it considered Harvey's involvement to have been a knowledgeable one, so that "normally [the court] would feel that a substantial jail sentence was warranted," that the court "also [felt] ... an obligation to society to try to salvage young people like you" and that for this reason the court would impose a split sentence. Thereupon the court gave Harvey a six-months active sentence with probation on conditions for the remainder of a five year term. The court then admonished Harvey in these words:

Now, I want you to understand before you leave here today, that should you violate your probation or any of the conditions of it, and you come up for a revocation of probation, that you will probably wind up serving in a prison the balance of your sentence.

I want you to also know that I have been very lenient with you here today. And if you get back in drugs and ever come before another judge for sentencing, I can pretty well assure you that you are probably going to get the maximum term that is available.

Now, you have an opportunity to turn your life around. And I am impressed that you are sincere, that you have new obligations in life, and that you want to measure up to these, but you won't be given any more opportunities in life to turn the corner and do right. And I hope you understand that before you leave here.

At no time during this sentencing proceeding was any direct question raised or any direct representation made by defense counsel, government counsel, the court, or Harvey about the possibility of further prosecution of Harvey in connection with past drug smuggling or distribution.

Harvey then served his six months active sentence. Within a few days after his release from prison, in May of 1983, he was arrested on charges contained in two counts (later expanded to four) of a multi-count federal indictment in the ...