U.S. v. Maggio, 74-2629

• Decision Date: 09 June 1975
• Docket Number: No. 74-2629,74-2629
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. MAGGIO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 80

514 F.2D 80

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

No. 74-2629.

United States Court of Appeals Fifth Circuit.

June 9, 1975.

Carl M. Walsh, Chicago, Ill., for defendant-appellant.

Ira Dement, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before GOLDBERG and RONEY, Circuit Judges, and LYNNE, District Judge.

RONEY, Circuit Judge:

Choosing to forego his right to a jury trial, Maggio pled guilty to one count of an eight count mail fraud indictment. After he was sentenced to two years incarceration, he moved to vacate his guilty plea alleging that the plea was involuntary, and that the district court failed to comply with Rule 11, F.R.Crim.P., and with the mandate of this Court in Bryan v. United States, 492 F.2d 775 (5th Cir. 1974) (en banc). The district court denied the motion. We affirm, but not without expressing concern that had the district court followed the spirit of Bryan, this litigation, both in the trial court and here, could have been avoided.

Prior to this case, in December 1972, the defendant Joseph J. Maggio was tried before a jury in the District Court for the Middle District of Alabama with Chief Judge Frank M. Johnson presiding. The jury found him guilty of seven counts of mail fraud, 18 U.S.C.A. § 1341, and one count of conspiracy to violate the laws of the United States, 18 U.S.C.A. § 371. Chief Judge Johnson sentenced Maggio to three years in the custody of the Attorney General. Maggio appealed to this Court where his conviction was set aside because of the improper introduction of some hearsay evidence, telephone company records which had not been properly authenticated. See United States v. Blake, 488 F.2d 101 (5th Cir. 1973). The events ensuing subsequent to that decision give rise to the problems we must now confront. A discussion of the facts in detail, revealed by the testimony at the evidentiary hearing on the Motion to Vacate Sentence, will illuminate the nature of defendant's contentions.

After reversal of the first conviction, the case against Maggio was calendared to be retried by jury, again before Chief Judge Johnson, on May 13, 1974. Approximately ten days or two weeks prior to that trial date, Maggio's counsel, Carl M. Walsh, at Maggio's request, contacted the First Assistant United States Attorney who was going to prosecute the case, D. Broward Segrest, and they had the first of a series of conversations regarding a possible change in Maggio's plea from not guilty to guilty.

During the first couple of conversations, Segrest, in response to queries by Walsh, delineated the Government's position on the negotiations. First, the United States would move to dismiss Counts 2-8 of the indictment if Maggio would plead guilty to Count 1, a mail fraud count. Second, the Government would be willing to recommend a probationary sentence if Chief Judge Johnson would allow any sentence recommendation from the Government.

Segrest made it clear that it was the policy of the District Court for the Middle District of Alabama not to ask for nor to accept sentence recommendations from United States Attorneys in relation to guilty pleas, and therefore, Segrest could not agree to a bargain based on a suggested sentence. The most Segrest could do was to stand mute at time of sentencing and not to insist on a prison sentence, as he had done when Maggio was convicted by the jury. Segrest suggested to Walsh that allocution on behalf of Maggio would be the only chance to seek a more lenient sentence from the court and that Segrest's silence would render Walsh's request unopposed, perhaps resulting in a lighter sentence for Maggio. Segrest did offer, in exchange for a guilty plea, to inform the Probation Office, for inclusion in the presentence investigation report to the judge, that the United States would recommend probation for Maggio.

After these conversations Walsh consulted with Maggio on various occasions and conveyed to him the substance of the negotiations with Segrest. Maggio was unsure of exactly which days the particular information was conveyed to him, except he remembered the conversations of Wednesday, May 8, 1974, and Thursday, May 9, 1974. Nonetheless, he was told everything that transpired between Walsh and Segrest. Maggio initially told Walsh that if Segrest could and would make a probation recommendation in open court, he would be willing to plead guilty to one count of mail fraud.

At Walsh's request, Segrest personally approached Chief Judge Johnson, and asked him if he would make an exception and accept a recommendation from the Government on Maggio's sentence. Segrest was told that the judge would neither allow nor accept a sentence recommendation in this case inasmuch as the judge did not want the defendant to be misled as to the effectiveness of such a recommendation.

Segrest telephoned Walsh and told him that Chief Judge Johnson would not allow the United States to recommend a sentence. Walsh told Segrest that under that circumstance, the Government would probably have to try Maggio, but that he would consult with Maggio and let Segrest know his decision definitely by the Wednesday before the trial was to be held on Monday, May 13. Walsh informed the defendant that the Court would not allow the Government to recommend a sentence, and Maggio told Walsh that he wanted to be tried. Walsh telephoned Segrest on Wednesday, May 8, 1974, and told him of Maggio's decision.

After he had directed Walsh to inform Segrest that a trial would be necessary, Maggio unilaterally began reconsideration of his decision and ultimately changed his mind without further consultation with Walsh. Defendant detailed why he decided to plead guilty. He testified that generally the "sequence of events" in the various telephone conversations made him feel that he would receive a light sentence, probably probation, but at most four months incarceration. He said he thought that since he had received only three years after being convicted by a jury of eight counts, he would probably get much less for only one count. He viewed the prosecution's change from insisting on incarceration at his first trial to standing mute at his second sentencing as a good indication he would receive leniency from the court. The fact that he would save the Government the time and expense of a jury trial would also be in his favor, Maggio believed. But neither his own lawyer, the United States Attorney nor the Court ever made any promise to him regarding a probable sentence. Maggio also related reasons other than his anticipation of leniency which induced him to change his mind and plead guilty. He figured that if he had to have any "blemish on his record," he would be better off if it was for only one count than if it was for eight counts, and he felt that a guilty plea to one count would be easier on his family and would save him some money.

Having reached his decision, Maggio contacted Walsh on Thursday afternoon, May 9. Walsh contacted Segrest and told him that Maggio would plead guilty to Count 1 in exchange for the Government's dismissal of the other seven counts. Segrest agreed. After some negotiations between Walsh and Segrest regarding when the plea could be taken, Segrest informed the court of Maggio's decision and was given permission to notify the Government's witnesses that they need not come to court for the scheduled trial.

Maggio's case was called Monday, May 13, 1974, at approximately 10:00 a. m. With Chief Judge Johnson presiding, Walsh moved to change his client's plea to Count 1 from not guilty to guilty. The court then proceeded to hold a non-Bryan type guilty plea hearing, similar to those held when plea bargaining was an under-the-counter process requiring denial in open court. The defendant was not placed under oath. The court did not state that plea agreements are permissible and that defendant and all counsel have a duty to disclose the existence and details of any agreement which relates to the plea tendered. The court did, however, address the defendant personally and determined, to its satisfaction, that the plea was made voluntarily with understanding of the nature of the charge and the consequences of the plea.

The court asked Maggio if he concurred in the motion, and the defendant responded, "Yes, sir." After some discussion, the court asked if there had been any agreement between the Government and the defendant in this case. Segrest informed the court that the only agreement was that if there was a guilty plea to Count 1, the Government would not insist on the other counts. The court asked both Walsh and Maggio if this was the only agreement that either of them knew about and both responded that it was.

The court then directed a number of questions to Maggio: (1) had anyone promised him anything other than the dropping of seven counts in order to induce him to plead guilty in this case; (2) had anyone told him what his sentence would be if he pled guilty; (3) had he received any threats or promises of any kind, other than the dropped charges, in order to have him plead guilty. To each question Maggio responded, "No, sir."

The court next informed the defendant of the maximum sentence possible for the count to which he was pleading guilty and asked Walsh if that was what he had previously advised his client. Walsh said it was. Chief Judge Johnson then accepted the guilty plea and, at the request of defendant's counsel, set sentencing for 5:00 p. m. the same day. Subsequently, Segrest moved to dismiss the other seven counts against Maggio, and the court granted the motion.

After the plea session, but before sentencing later that same day, Segrest received a telegram from Assistant United States Attorney Frank Murtha, Jr., of Chicago, Illinois. The telegram stated that Maggio had provided...