U.S. v. Horovitz, 76-3287

• Decision Date: 20 November 1978
• Docket Number: No. 76-3287,76-3287
• Citation: 584 F.2d 682
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph HOROVITZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 682

584 F.2d 682

UNITED STATES of America, Plaintiff-Appellee, v. Joseph HOROVITZ, Defendant-Appellant.

No. 76-3287.

United States Court of Appeals, Fifth Circuit.

Nov. 20, 1978.

Melvyn Kessler, Miami, Fla., for defendant-appellant.

Jack V. Eskenazi, U.S. Atty., Michael A. LeVota, Sp. Atty., U.S. Dept. of Justice, Atlee W. Wampler, III, Strike Force Chief, U.S. Dept. of Justice, Miami, Fla., James Roland DiFonzo, App. Sec., Crim. Div., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, RONEY and FAY, Circuit Judges.

PER CURIAM:

We remanded this case to the District Court for further factual determinations, following appropriate evidentiary hearings. United States v. Horovitz, 5 Cir., 1978, 565 F.2d 1295. Those hearings having been held and the factual determinations having been made and certified to us, we now affirm the decision of the District Court sentencing Joseph Horovitz to two years' imprisonment.

Horovitz was indicted for conspiring to transport automobiles in interstate commerce, 18 USCA §§ 371, 2312, and for receiving a stolen automobile knowing that it had been stolen, 18 USCA §§ 2, 2313. Horovitz initially pleaded not guilty to both charges, but he subsequently entered a guilty plea on the substantive count and the conspiracy count was dismissed. When, at the change of plea hearing, the District Judge asked Horovitz if he and the Government had made any agreements with respect to the sentence the Government would request, Horovitz stated that the Government had agreed To recommend probation. Later, however, at the sentencing proceeding itself, the Government told the District Judge that its plea agreement was Not to oppose probation. ¹ On appeal, after the District Judge sentenced Horovitz to a term of imprisonment, Horovitz asserted that the Government had breached its plea bargain. We remanded the case to the District Court to resolve this factual dispute and determine which version of the plea bargain was accurate I. e., to determine whether the Government had agreed to recommend probation or merely to withhold opposition to probation.

Following our remand, the District Court held two evidentiary hearings. At the first of these, the prosecuting attorney testified unequivocally that the Government had never agreed to recommend probation. His testimony was corroborated by his superior, who stated that no such recommendation had been authorized. Significantly, appellant Horovitz and his brother also testified that the Government had agreed not to oppose probation, but they indicated that they interpreted this agreement to be the equivalent of a recommendation of probation. At the second hearing, Horovitz's attorney reaffirmed his position that the Government had agreed to recommend probation. ²

On the basis of these hearings, the District Judge found that of the two conflicting versions of the plea bargain agreement, the Government's version is the correct one. As this finding is not clearly erroneous, we affirm Horovitz's sentence. ³

AFFIRMED.

1 Neither the Government (at the change of plea hearing) nor the appellant (at the sentencing proceeding) contested or objected to the other party's characterization of their plea agreement.

2 Horovitz's attorney also...