U.S. v. Johnson

• Decision Date: 21 January 1993
• Docket Number: No. 92-5172,92-5172
• Citation: 979 F.2d 396
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. William Harold JOHNSON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 396

979 F.2d 396

128 A.L.R.Fed. 779

UNITED STATES of America, Plaintiff-Appellant, v. William Harold JOHNSON, Defendant-Appellee.

No. 92-5172.

United States Court of Appeals, Sixth Circuit.

Argued June 16, 1992.

Decided Nov. 6, 1992.

Rehearing and Rehearing En Banc

Denied Jan. 21, 1993.

Cam Towers Jones, Asst. U.S. Atty. (argued & briefed), Memphis, Tenn., for U.S.

Bruce Brooke (argued & briefed), Neely, Green, Fargarson & Brooke, Memphis, Tenn., for defendant-appellee.

Before: MARTIN and SUHRHEINRICH, Circuit Judges; and WELLFORD, Senior Circuit Judge.

SUHRHEINRICH, Circuit Judge.

Defendant William Harold Johnson pled guilty pursuant to a plea agreement to one count of bank fraud in violation of 18 U.S.C. § 1344, and one count of mail fraud in violation of 18 U.S.C. § 1341. At sentencing, the district court granted a downward departure based on alleged diminished mental capacity due to a mental disorder known as Severe Adjustment Disorder. The government appeals, claiming that the lower court improperly deviated from the written plea agreement; and that the basis for departure, that defendant's actions were "out of character for a person of Mr. Johnson's standing," is not a permissible basis for departure under U.S.S.G. § 5K2.13 p.s. For the reasons that follow, we conclude that while the court did not err in allowing defendant to attempt to establish a downward departure under § 5K2.13 p.s., the circumstances of this case do not warrant one. We therefore VACATE and REMAND for resentencing.

I.

As part of his job duties as Senior Vice President of Information Services at the First Tennessee National Bank in Memphis, Tennessee, defendant was responsible for interbank wire transfers and communications, which gave him access to millions of dollars in the bank's system. Johnson devised a scheme to defraud First Tennessee by submitting fictitious invoices from real and imaginary companies to the bank. Johnson, in his capacity as bank official, would then authorize the requests for payment. The checks were later deposited in one of his accounts at Deposit Guaranty National Bank, Corporate Headquarters, in Jackson, Mississippi.

Two of the names utilized by defendant as authorized signers at Deposit Guaranty were "Eugene Keller" and "Keith Nichols." Johnson claimed that he got the idea to use their names after Keller and Nichols allegedly defrauded defendant in a real estate transaction which resulted in litigation over property lines. Neither individual had authorized Johnson to use their names and neither profited thereby.

First Tennessee eventually learned of the fraud and criminal proceedings were instituted. Defendant entered into a written plea agreement with the government pursuant to Fed.R.Crim.P. 11(e)(1)(B). The district court accepted defendant's guilty plea and the written agreement. A presentence report was prepared, indicating a guideline range of 16, a term of 21 to 27 months imprisonment. Defendant filed a response, stating that the total offense level should be 13, and in combination with a criminal history category of I, a guideline range of 12 to 18 months imprisonment. Attached to defendant's response was the affidavit of psychologist, Dr. John Cooper, who treated Johnson for adjustment disorder.

Dr. Cooper testified at the sentencing hearing on behalf of the defendant. The district court granted a downward departure for defendant's "diminished mental capacity" reducing his sentence below the guidelines range of 21 to 27 months to 12 months, followed by a three-year term of supervised release. The government appeals.

II.

A.

The government contends that the district court's grant of a downward departure was impermissible since the parties had not agreed to such a departure; and that the written plea agreement by its terms did not allow the district court to modify the agreement. The government therefore argues that the district court exceeded its statutory authority under Fed.R.Crim.P. 11(e)(3), ¹ which prohibits a district court from sentencing a defendant to a sentence more favorable than that provided for in the plea agreement and accepted by the court. United States v. Semler, 883 F.2d 832, 833 (9th Cir.1989).

This court has consistently held that "a defendant's plea agreement consists of the terms revealed in open court...." Baker v. United States, 781 F.2d 85, 90 (6th Cir.) (where district court followed Rule 11 procedures, defendant was bound by his statements in response to district court's inquiries at sentencing hearing and would not be allowed to attempt to prove that agreement was otherwise than it appeared on unambiguous record), cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986); United States v. Herrera, 928 F.2d 769, 771-72 (6th Cir.1991) (defendant was not allowed to establish existence of separate agreement where neither defendant nor his attorney mentioned any additional terms when asked about their understanding of the written agreement submitted to court; citing Baker). Further, failure to object to a defendant's statements at sentencing constitutes waiver of any objection. Baker, 781 F.2d at 90. See also Herrera, 928 F.2d at 771-72. ²

At the sentencing hearing, the court asked the government to describe the contents of the plea agreement. The government explained that the sentencing would be "within the guideline language." Defense counsel agreed with the characterization, but then asked the court if it had the right to establish a basis for a deviation. The government made no objection to the request. The court allowed defense counsel to proceed with proofs as to defendant's diminished mental capacity. By failing to object at the crucial moment when the trial court inquired as to terms of the agreement, the government has waived its claim. Herrera, 928 F.2d at 772; Baker, 781 F.2d at 90. To rule otherwise would thwart the sentencing court in the proper administration of the plea agreement procedure. Id.

Additionally, we note an ambiguity in the written plea agreement itself. The pertinent language provides:

This Plea Agreement is entered pursuant to the provisions of Rule 11(e)(1)(B) of the Federal Rules of Criminal Procedure, it being the intent of the parties that the Court may accept or reject this agreement immediately or after it has an opportunity to consider the presentence report, but may not modify the agreement.

The defendant will receive a sentence within the range of the Sentencing Guidelines, as established by the Probation Office of the Court.

The government argues that the stated terms in the agreement that the court may accept or reject the agreement operates to make it a Rule 11(e)(1)(C) ³ plea, except that a specific sentence was not agreed upon. On the other hand, the descriptive paragraph of the written agreement characterizes it as a Rule (e)(1)(B) ⁴ agreement, wherein the plea agreement makes a recommendation or agrees not to oppose the defendant's request for a particular sentence with the understanding that such recommendation shall not be binding upon the court. Given the "hybrid" nature of the written agreement, it was not unreasonable for the sentencing court to assume from the government's silence that it had "agree[d] not to oppose the defendant's request for a downward departure." If that were the case, the court would not be altering the terms agreed to by the parties in granting a downward departure.

This ambiguity must be construed against the government. Although plea agreements are contractual in nature, Herrera, 928 F.2d at 771; a defendant's underlying right of contract is constitutional, and therefore implicates concerns in addition to those pertaining to the formation and interpretation of commercial contracts between private parties. United States v. Harvey, 791 F.2d 294, 300 (4th Cir.1986). Therefore,

[b]oth constitutional and supervisory concerns require holding the government to a greater degree of responsibility than the defendant (or possibly than would be either of the parties to commercial contracts) for imprecisions or ambiguities in the plea agreements. See, e.g., United States v. Bowler, 585 F.2d 851, 854 (7th Cir.1978) (plea agreement not appropriate context for "rigidly literal" construction of language); Palermo v. Warden, 545 F.2d 286, 295 (2d Cir.1976) (government invocation of restrictive contract principles "disingenuous"); United States v. Crusco, 536 F.2d 21, 26 (3rd Cir.1976) (government's "strict and narrow interpretation of its commitment ... untenable"); Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973) (government held to "meticulous standards of both promise and performance").

Id. at 300-01 (cited favorably in Herrera, 928 F.2d at 772). See also Carnine v. United States, 974 F.2d 924 (7th Cir.1992) ("Our cases firmly establish an expectation that the government draft plea agreements with particular care and precision to avoid exactly the type of definitional pitfalls we encounter here."). The government in this case has failed to live up to its "primary responsibility of insuring precision in the agreement." Id. at 301. Thus, for the foregoing reasons we hold that the district court did not err in allowing evidence establishing the basis for a downward departure under U.S.S.G. § 5K2.13 p.s.

B.

The government next argues that the district court abused its discretion in making a downward departure for diminished mental capacity under U.S.S.G. § 5K2.13 p.s. At the sentencing hearing defendant introduced the testimony of a psychologist with whom defendant had treated. Dr. Cooper diagnosed Johnson as suffering from Severe Adjustment Disorder, a mental condition brought on by an identifiable psycho-social stressor. Dr. Cooper theorized the psycho-social stressor as the receipt of a registered letter advising Johnson that the cabin he had recently purchased from Nichols and Keller was over the property line. The doctor testified that a personality like Johnson's--...