U.S. v. Helmandollar, 87-5175

• Decision Date: 29 July 1988
• Docket Number: No. 87-5175,87-5175
• Citation: 852 F.2d 498
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wick HELMANDOLLAR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 498

852 F.2d 498

UNITED STATES of America, Plaintiff-Appellee, v. Wick HELMANDOLLAR, Defendant-Appellant.

No. 87-5175.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 8, 1988.

Decided July 29, 1988.

Stephen B. Sadowsky, Talcott, Lightfoot, Vandevelde, Woehrle & Sadowsky, Los Angeles, Cal., for defendant-appellant.

Thomas A. Hagemann, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before TANG, FARRIS and KOZINSKI, Circuit Judges.

TANG, Circuit Judge:

Wick Helmandollar appeals his conviction, pursuant to a conditional plea of guilty, for possession of $3,700,000 in counterfeit government currency in violation of 18 U.S.C. Sec. 472. Helmandollar contends the district court erred in denying his motion to enforce the terms of an alleged plea agreement entered into by himself and agents of the Secret Service. We affirm.

I

On February 20, 1987, a federal grand jury returned a three-count indictment against Helmandollar and his co-defendant Harold Cecil Cooper for conspiracy, transfer and possession of counterfeit currency. At his arraignment on March 2, 1987 Helmandollar entered a plea of not guilty. He subsequently, on March 20, 1987, filed a motion to change his plea to guilty and to enforce the terms of the alleged post-arrest, pre-arraignment plea agreement. Helmandollar's motion asserted that after his arrest, agents of the Secret Service promised him a non-custodial, probationary sentence ("time not counts") in exchange for his cooperation with respect to the extent of the counterfeiting operation.

On April 7, 1987, the district court held a hearing to accept Helmandollar's guilty plea and to determine what, if any plea agreements had been agreed upon. Based on the declarations and exhibits submitted, the district court ruled that Helmandollar had made out "a prima facie case for a plea bargain" and ordered him to call his witnesses. At the evidentiary hearing, the court heard testimony from four witnesses: Assistant United States Attorney John Feiner and three Special Agents of the United States Secret Service: Charles Harrison, Frank O'Donnell, and Albert Joaquin.

The evidence received at the hearing established that Helmandollar and his co-defendant were arrested at approximately 11:00-11:30 a.m. on February 5, 1987 in Industry, California. The defendants were attempting to negotiate the sale of counterfeit currency with undercover agents of the United States Secret Service. Two suitcases containing a total of $3.7 million in counterfeit currency were seized from the defendants' possession. Helmandollar was advised of his Miranda rights, and upon the agents' questions concerning the extent of the operation, asserted his right to counsel.

Helmandollar was taken to the offices of the Secret Service in downtown Los Angeles at approximately 12 noon on February 5, 1987. He was not taken before a Magistrate until 3:00 p.m. the next day, approximately 28 hours after his arrest. At the Secret Service offices, Helmandollar was questioned by different agents and combinations of agents until 9:00 p.m. that night. ¹ He continued to assert his right to counsel, but none was provided that day.

The information the agents sought from Helmandollar included the identity of the printer of the counterfeit currency, the location of the plates, and the whereabouts of additional counterfeit currency. The record confirms that the agents viewed their interrogation of Helmandollar with a sense of urgency, fearing the printer and equipment might disappear if not immediately located and apprehended. The record also indicates that the agents understood that their continued interrogation of Helmandollar given his assertion of the right to counsel was unlawful. Thus, in the declaration of Agent Harrison:

Helmandollar continued to assert his rights, but Secret Service considered it to be of primary importance to continue its investigation, i.e., to attempt to identify the scope of the counterfeiting operation and to determine immediately whether any further action needed to be taken, and was willing to give up the admissibility in evidence of any statement obtained from Helmandollar.

Later in the afternoon of February 5, 1987, at approximately 4:00 p.m., Agent Cohen telephoned Assistant United States Attorney (AUSA) John Feiner seeking authorization to negotiate a plea agreement directly with Helmandollar. Based on Cohen's representations, ² Feiner consulted with his supervisor in the U.S. Attorney's office and authorized Cohen to offer Helmandollar the following "deal": if Helmandollar would (1) identify the printer and assist the agents in locating the plant and any additional counterfeit money; (2) give truthful and complete information; and (3) testify in court or before a grand jury, then Secret Service would make his cooperation known to the United States Attorney's Office, the probation office, and the court and charge him with only one count of counterfeit possession under 18 U.S.C. Sec. 472. Cohen extended this offer to Helmandollar. Helmandollar rejected the offer because he wanted assurances concerning the length of time he could serve in jail and not the number of counts.

At approximately 6:00 p.m. that evening, Agent Albert Joaquin questioned Helmandollar. Joaquin had been informed by Cohen that Helmandollar and Cooper had been "uncooperative and were unwilling to provide information on the manufacture of the counterfeit currency"; Joaquin had also been told Helmandollar was "desirous of an attorney." According to Helmandollar's declaration, Joaquin represented that if he cooperated with the agents, Helmandollar would not have to spend one day in jail. Joaquin, on the other hand, testified that at no time did he make any promises to Helmandollar concerning his sentence or how much time he might spend in prison. After speaking with Joaquin, Helmandollar agreed to cooperate. From the information provided, the Secret Service recovered an additional $17,000,000 in counterfeit currency.

Based on the evidence presented, the district court ruled that there was no plea bargain, except for a possible agreement that the court would be made aware of Helmandollar's cooperation and for the government's agreement, now moot, to dismiss two of the three counts against Helmandollar. On June 1, 1987 the district court sentenced Helmandollar to a period of two years on count three. Helmandollar timely appeals.

II

We first consider what standard of review is applicable to the district's determination that there was no plea agreement between Helmandollar and the United States. Helmandollar argues that the existence and terms of the agreement presents a mixed question of fact and law subject to the three-tiered analysis of United States v. McConney, 728 F.2d 1195, 1200-03 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The government contends the inquiry is essentially factual and therefore subject to the more deferential, clearly erroneous standard.

We disagree with Helmandollar's contention that the existence and terms of the agreement is subject to de novo review. What the parties agreed to in any given case is preeminently a question of fact, to be resolved by the district court. United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985), cert. denied, 479 U.S. 835, 107 S. Ct. 131, 93 L.Ed.2d 75 (1986). The inquiry in this case, whether agents of the Secret Service promised Helmandollar probation, turns principally upon an assessment of the credibility of the various witnesses, an issue best resolved by the court in the "superior position" to make such determinations. See McConney, 728 F.2d at 1201. Accordingly, we review the district court's findings as to the existence and terms of the alleged plea agreement for clear error. Read, 778 F.2d at 1441; United States v. Krasn, 614 F.2d 1229, 1233 (9th Cir.1980). Under this standard, we must affirm the trial court's determinations unless we are left with "the definite and firm conviction that a mistake has been committed." McConney, 728 F.2d at 1200.

III

The conduct of the government agents in this case is deeply troubling. The record clearly shows that by their continued interrogation of Helmandollar, despite his repeated requests for an attorney, the agents wilfully and deliberately denied Helmandollar his constitutional right to counsel as articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and subsequent cases...