U.S. v. Hecht, 80-1916
| Decision Date | 23 November 1981 |
| Docket Number | No. 80-1916,80-1916 |
| Citation | 638 F.2d 651 |
| Parties | UNITED STATES of America, v. John M. HECHT, Appellant. |
| Court | U.S. Court of Appeals — Third Circuit |
William C. McClure (argued), McClure & Watkins, P. C., Pittsburgh, Pa., for appellant.
Robert J. Cindrich, U. S. Atty., Paul J. Brysh (argued), Asst. U. S. Atty., Pittsburgh, Pa., for appellee.
Before GIBBONS and WEIS, Circuit Judges and WHIPPLE, District Judge. *
We review on this appeal the order of the district court denying appellant Hecht's motion to dismiss his indictment on four counts of federal income tax evasion as barred by the double jeopardy clause of the Fifth Amendment. This case raises two major issues: first, when circumstances justify the vacation of a guilty plea, and second, the impact of the double jeopardy clause on the prosecution of a case once a guilty plea has been accepted. Jurisdiction is premised on 28 U.S.C. § 1291.
Appellant John Hecht was indicted on February 5, 1980, by a federal grand jury sitting in the Western District of Pennsylvania on four counts of federal income tax evasion in violation of 26 U.S.C. § 7201. 1
On March 27, 1980, appellant appeared before Judge Teitlebaum, retracted his initial plea of not guilty, and entered a plea of guilty to Count II in return for the promise of the Government prosecutor to dismiss Counts I, III and IV after sentencing.
Sentencing was scheduled for April 24, 1980. At that time, appellant, as well as three character witnesses, testified in an effort to mitigate the sentence to be imposed. In response, Assistant United States Attorney Daley, who represented the Government, put Manuel Gonzalez, a Special Agent for the Internal Revenue Service, on the witness stand. At the close of this testimony Judge Teitlebaum engaged in an off-the-record conference with Hecht's probation officer. The judge then expressed doubt as to whether there was a sufficient factual basis for the plea on the record, and consequently directed that appellant's guilty plea be vacated and the case set for trial on all four counts. Both parties objected.
Prior to trial, appellant moved before Judge Bloch for dismissal of all four counts of the indictment. 2 Appellant argued that a trial on Count II would violate his rights under the double jeopardy clause of the Fifth Amendment because jeopardy had attached when the guilty plea was initially accepted by the trial court. Appellant also contended that pursuant to the plea agreement the remaining counts should have been dismissed when he appeared for sentencing before Judge Teitlebaum. Judge Bloch, however, found that appellant had in essence withdrawn his guilty plea at the sentencing proceeding, and thereby removed the jeopardy on Count II himself. Moreover, the judge found that because Hecht had broken his bargain with the government, the government was no longer bound to comply with the terms of the plea agreement to dismiss Counts I, III and IV. Accordingly, Judge Bloch denied the motion. This appeal followed. We reverse and remand for further proceedings in the district court.
On this appeal, appellant argues that he has unconstitutionally been placed in double jeopardy by the district court's sua sponte withdrawal of his guilty plea, and the consequent setting down of the case for trial. Appellant's claim involves two distinct questions. The first is whether, under Rule 11 of the Federal Rules of Criminal Procedure, the plea was properly set aside. The second is whether the double jeopardy prohibition of the Fifth Amendment prevents reprosecution or reimposition of the plea.
Hecht denies that he withdrew his guilty plea at the sentencing proceeding, and further argues that the sentencing court erred in setting aside the plea without his consent. Consideration of this question necessarily starts with the well-settled proposition that a criminal defendant "does not have an absolute right under the Constitution to have his guilty plea accepted by the court." North Carolina v. Alford, 400 U.S. 25, 38 n.11, 91 S.Ct. 160, 168, 27 L.Ed.2d 162 (1970); Lynch v. Overholser, 369 U.S. 705, 719, 82 S.Ct. 1063, 1072, 8 L.Ed.2d 211 (1962).
In fact, Rule 11(f) admonishes the trial court that,
Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
Thus, in obedience to Rule 11, we have held that where the factual basis for a guilty plea is seriously undermined, a trial judge may set aside that plea without the consent of the accused, and furthermore require the accused to stand trial. U. S. ex rel. Metz v. Maroney, 404 F.2d 233 (3d Cir. 1968), reh. denied (1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969). See also Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979), where the court held that a judge may commit a constitutional error if he accepts a guilty plea when defendant's admission of guilt is equivocal, and a sufficient factual basis for the plea is lacking. 3
After a careful examination of the record, we are satisfied that a sufficient factual basis for the guilty plea was established and therefore the plea should not have been vacated. 4
When, on March 27, Hecht tendered his guilty plea, the court read Count II to him and conducted an extensive colloquy regarding the factual underpinnings for the plea. The following excerpts are pertinent:
Q. That is the charge against you. Do you understand that charge?
A. Yes, your Honor.
Q. All right, will you tell me what you did, to make you guilty of that charge?
A. Well, your Honor, I took money as an executive of the corporation 5 and used it let's say in bad business judgment; and I myself got nothing of it. I have nothing let's say I used it for my own purposes.
Q. You took corporate money and used it for your own purpose of making bad investments?
A. Yes, through the business like; yes, your Honor.
Q. But, you invested it for yourself, not for the corporation?
A. No, your Honor. I invested it not for myself, but I used the corporation money to make the investment.
Q. And in whose name did you make the investment?
A. Well, I just used in in my own name.
Q. In other words, you invested it in your own name?
A. Yes, in a sense, without any
Q. What did you invest it in?
A. A bar and hotel in Coraopolis.
Q. And it was a leased bar?
A. Yes, your honor.
Q. In whose name was the lease? Yours or the corporation's?
A. The corporation. Another corporation.
Q. A different corporation?
A. Yes, sir.
Q. Was it your corporation?
A. No, I wasn't part of it.
Q. In other words you used the money to lease the premises?
A. Well, to use the expression, I financed it.
Q. You financed that bar for somebody else?
A. Yes.
Q. But it was you that financed it and not the corporation?
A. That is right.
Q. Who were you financing it for?
A. It was called Jinks Corporation.
Q. Yes, but who was Jinks Corporation?
A. One, the President was James Williams and later on with another fellow by the name of Thomas Loney.
Q. What was your understanding with them, if anything?
A. Let's say I was making a bad investment, primarily.
Q. In other words, you had made the investment and now you were trying to save it with corporate funds?
A. That is correct, sir.
MR. DALEY: Your Honor, if I might clarify the factual setting. Mr. Hecht was Vice-President and General Manager of a local music company; and that in that position, he embezzled large sums of money he did not report on his income tax returns. So that is the money that he is talking about.
Q. Is that what happened?
A. Yes, I took the corporation's money to make the investment.
Q. But, you did take the corporation's money without paying any tax on it?
A. Yes, sir.
Q. All right, why did you make that plea arrangement?
A. Well, let's say, physically, it has upset me quite a bit. My mental health hasn't been good. My physical health hasn't been good as a net result of it, and I don't feel I could go through the trauma.
Q. But, you are guilty, aren't you, of the offense?
A. Yes.
Q. You are not pleading guilty just to avoid a trial?
A. No, your Honor.
Later, at the April 24 sentencing hearing, Hecht introduced three character witnesses as well as his own testimony, ostensibly in an effort to procure a more lenient sentence. Hecht reiterated that he had taken cash from Harrison Music Co. and made personal advances to Jinks Co. Hecht further testified that an initial $10,000 loan to Jinks was authorized by Harrison under normal company practices; that loan was made by check and recorded on Harrison's books. However, Hecht admitted that when it became clear that Jinks would not repay the loan, he advanced Harrison's money to it in a personal capacity. Hecht maintained that he never deposited this money in his own bank account, but instead gave it directly to Jinks. He also acknowledged that he in fact admitted taking the money to the owner of Harrison, and furthermore conveyed his house, his pension share, and his insurance policy to Harrison in an attempt at restitution.
Hecht's statements regarding the disposition of the cash he took from Harrison were not corroborated by the Internal Revenue Service agent called by the Government to testify at the sentencing hearing. Rather, Mr. Gonzalez, the agent, testified that Jinks' books showed no receipt of any large cash deposits at the time Hecht allegedly embezzled from Harrison. At the close of this testimony, and after an off-the-record conference with Hecht's probation officer, Judge Teitlebaum stated that he was unconvinced that Hecht had committed tax fraud. He thereupon vacated the guilty plea, albeit over the objections of appellant's counsel and the Government, as well as appellant's protestations of culpability....
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