U.S. v. McIntosh, 79-5036

• Decision Date: 18 December 1979
• Docket Number: No. 79-5036,79-5036
• Citation: 612 F.2d 835
• Parties: 80-1 USTC P 9147 UNITED STATES of America, Appellee, v. Edgar C. McINTOSH, Jr., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 835

612 F.2d 835

80-1 USTC P 9147

UNITED STATES of America, Appellee, v. Edgar C. McINTOSH, Jr., Appellant.

No. 79-5036.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 4, 1979.

Decided Dec. 18, 1979.

Charles W. Schoeneman, Washington, D. C., for appellant.

Janet Hall, Asst. U. S. Atty. (William B. Cummings, U. S. Atty. and Stephen R. Barnett, Sp. Asst. U. S. Atty., Washington, D. C., on brief), for appellee.

Before HALL, PHILLIPS and MURNAGHAN, Circuit Judges.

K. K. HALL, Circuit Judge:

Edgar C. McIntosh, Jr. appeals his Federal tax evasion convictions for failure to report gambling income under 26 U.S.C. § 7201. He contends that prosecution should be barred because a State prosecutor promised his attorneys that no Federal charges would follow his plea of guilty to gambling charges in State court. The district court conducted an evidentiary hearing and held against appellant, finding that the promise was not made in fact. Also, the district court ruled that even if the promise had been made, it would not be binding on federal prosecutors because there was no authority for the state prosecutor to make it. We agree and affirm.

Appellant was charged in a Virginia court for running a gambling operation on his business premises. Before plea bargaining could be finalized by his first attorney, appellant was arrested a second time and charged with continuing the gambling operations. A second attorney was retained, who, along with the first, accompanied appellant to the courthouse on the day scheduled for his state trial. In a hallway, the defense attorneys and the prosecutor discussed the possibility of entering a plea rather than going to trial. The three attorneys struck a bargain and appellant immediately entered his plea in court.

At the evidentiary hearing conducted on the federal tax evasion charges, appellant attempted to prove the substance of the state court plea bargain. One defense attorney testified that he thought the prosecutor promised to pay $3,000, which had been seized as evidence of gambling, to the Internal Revenue Service, and "to clear (appellant) with the IRS." The other defense attorney testified:

THE WITNESS: (The state prosecutor told) me that Internal Revenue would not get involved with this case only with the exception that they would take the $3,000 and that would consummate the affair and he would not be prosecuted.

THE COURT: (He) told you that he would not be prosecuted by the Federal authorities?

THE WITNESS: I don't know if he used the term federal authorities.

THE COURT: Use the term he told you.

THE WITNESS: By the Internal Revenue.

Appellant testified that his attorneys had "guaranteed" him no federal prosecution would follow his state court plea.

Noticeably absent was any evidence to show there was authority granted by any federal official for the promise. At no time, before or after the plea, did either defense attorney contact a United States Attorney or IRS official about federal charges which might arise out of their client's plea in state court. Also, it is clear that federal authorities had done nothing to imbue the state prosecutor with apparent authority, and there appellant's argument must fail.

Furthermore, here, neither attorney stated whether the prosecutor himself had represented that he might have such authority. One attorney testified that he could not recall whether or not the prosecutor claimed to have had prior negotiations with authorized federal officials, but the attorney remembered the prosecutor said he had a brother-in-law who was a local IRS agent.

The state prosecutor testified that his only call to the IRS concerning appellant was after the plea was entered and it was made to an agent, who was his brother-in-law. He remembered it was made after the plea because it followed a reminder call from one of the defense attorneys.

The IRS agent had no recollection of the date of the call, but he agreed with the state prosecutor's testimony that their discussion was limited to appellant's tax liabilities and whether or not the money seized by the state could be used to satisfy them.

The state prosecutor denied any promise "to clear (appellant) with the IRS" or to have federal authorities forego criminal prosecution. He claimed that he promised the money seized by the state would voluntarily be turned over to the IRS to satisfy any jeopardy assessments arising out of the admitted gambling activities. It is not disputed that the money was released by the state officials.

The district court credited the prosecutor's version of the bargain, and appellant contends his finding, based upon an assessment of the credibility of the witnesses, is clearly erroneous. Also, more importantly for this appeal, he argues that the very fact a state prosecutor might make a promise to prevent federal prosecution is sufficient to bar it so long as the promise was made and was reasonably believed by his attorneys. For this contention, he relies upon Cooper v. United States, 594 F.2d 12 (4th Cir. 1979). His reliance is misplaced.

In Cooper, an Assistant United States Attorney offered a certain plea bargain for federal charges to Cooper's defense attorney, who in turn solicited its acceptance from Cooper. Before Cooper's attorney could convey acceptance to the prosecutor, the offer was withdrawn. We held that the technical rules of offer and acceptance in contract law should not defeat a criminal defendant's personal acceptance, since, under the facts presented, it could irreparably affect the defense attorney's credibility, impairing the effectiveness of his representation.

The issues here do not involve technical rules of contract; they concern the content of the plea bargain and whether...