U.S. v. Moscahlaidis

Decision Date09 March 1989
Docket NumberNo. 88-5728,88-5728
Citation868 F.2d 1357
PartiesUNITED STATES of America v. John MOSCAHLAIDIS, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Lawrence S. Goldman (argued), Goldman & Hafetz, New York City, Lawrence S. Horn, Sills, Cummis, Zuckerman, Radin, Tischman, Epstein & Gross, Newark, N.J., Richard M. Steingard, of counsel, for appellant.

Samuel A. Alito, Jr., U.S. Atty., Marion Percell (argued), Asst. U.S. Atty., Newark, N.J., for appellee.

Before HUTCHINSON, SCIRICA, and NYGAARD, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant, John Moscahlaidis, appeals from a final judgment of conviction and sentence rendered by the United States District Court for the District of New Jersey. Appellant claims that the government violated the plea agreement it entered into with appellant. He seeks to have this court vacate his sentence and remand his case for resentencing before a different judge. We agree with appellant that the government violated the plea agreement and vacate his sentence. We remand, however, to the district court for it to determine the appropriate remedy.

I.

On June 27, 1988, the United States Attorney filed a two-count information in the United States District Court in New Jersey charging appellant with violations of 18 U.S.C. Secs. 371 and 545, conspiracy to import contaminated cheese and defraud the United States and fraudulent importation of merchandise contrary to law. On the same date, appellant pled guilty pursuant to a plea agreement. In pertinent part, the plea agreement provides:

It is understood that the sentence to be imposed upon John Moscahlaidis is within the sole discretion of the sentencing Judge, who may impose the maximum sentence. This office cannot and does not make any promise or representation as to what sentence John Moscahlaidis will receive and will not take a position relative to whether or not a custodial sentence shall be imposed on John Moscahlaidis but, pursuant to Federal Rules of Criminal Procedure 11(e)(1)(B), will recommend to the sentencing Judge that if a custodial sentence is imposed on John Moscahlaidis, it not exceed one year. It is understood that the court will not be bound by this recommendation and will be fully free to exercise its discretion in this as in other respects.

Furthermore, this office will inform the sentencing Judge and the Probation Office of: (1) this agreement; (2) the full nature and extent of John Moscahlaidis' activities with respect to this case; (3) the full nature and extent of John Moscahlaidis' cooperation with this office; and (4) all other information, favorable or otherwise, in its possession relevant to the sentence, including the terms of any civil settlement which John Moscahlaidis may effect with Customs. It is understood that the United States specifically reserves the right to correct factual misstatements relating to sentencing proceedings and that this agreement in no way affects or limits this office's right to respond to and take positions on post-sentencing motions which relate to parole or reduction or modification of sentence.

Appellant also agreed to pay a fine of $3,250,000.

On September 2, 1988, the United States Attorney submitted a forty-page sentencing memorandum which contained the following phrases:

Moscahlaidis' ability to distinguish between clean and contaminated cheese sources and his deliberate decision to import and sell contaminated cheese, knowing it to be for human consumption, evidence the depth of Moscahlaidis' greed and moral bankruptcy. Joint App. at 075a, U.S. v. Moscahlaidis (No. 88-5728).

"It is well within the reach of most white-collar criminals to assume an air of irreproachable virtue, especially when they're about to be sentenced." Moscahlaidis cannot maintain even the air of irreproachable virtue with any degree of legitimacy. Moscahlaidis is not just a white-collar criminal. Joint App. at 088a-089a.

This demonic pursuit demonstrates Moscahlaidis' utter contempt for the welfare of his fellow man. Joint App. at 089a.

To preserve his fetid empire, he relentlessly pursued a course of corruption and obstruction of justice. Joint App. at 088a.

Consistent with the conditions undertaken by the government in its plea agreement with this defendant, the United States will make no recommendation as to an appropriate sentence. However, should the court elect to impose a custodial sentence on Moscahlaidis, the United States is bound to recommend that the custodial term not exceed one year imprisonment. This recommendation is part of the plea agreement between the defendant and the United States. It is not binding upon the court. Joint App. 101a.

Appellant objected to these phrases, as well as many others, and discussed his objections with the United States Attorney's office. In response, the government changed "fetid empire" to "empire," "the United States is bound to recommend" to "the United States recommends" and deleted "this demonic pursuit demonstrates Moscahlaidis' utter contempt for the welfare of his fellow man" and resubmitted its sentencing memorandum. 1 The government's changes did not appease appellant's objections.

At his first opportunity during the sentencing hearing, appellant told the court that he had serious objections to the government's sentencing memorandum. Appellant asserted that "the government's sentencing memorandum violates the letter and spirit of the plea agreement." Joint App. at 185a. Appellant argued that the sentencing memorandum undermined the government's agreement not to take a position relative to whether or not a custodial sentence shall be imposed. The court disagreed with appellant's characterization stating that "I didn't get that impression in reading this government submission." Joint App. at 187a. Appellant's counsel responded that if that was the court's position, he would "not beat a dead horse," and he moved on to other issues. Joint App. at 188a.

As to appellant's cooperation with the government, the sentencing memorandum indicated that appellant "readily admitted to the most heinous aspects of his criminal activities. However, he was unwilling to conclude on other aspect [sic] of his crimes, some of which were comparatively insignificant." Joint App. at 129a. The government did not mention appellant's cooperation in its brief remarks at the sentencing hearing.

II.

In this appeal, appellant presents three issues: first, whether the government breached its promise not to take a position relative to whether appellant should receive a custodial sentence by its sentencing memorandum and conduct at the sentencing hearing; second, whether the government breached its promise to inform the sentencing judge of the "full nature and extent" of appellant's cooperation with the government; and third, if we hold that a breach occurred, whether appellant should be resentenced before a different judge.

The government claims that appellant waived the issue of breach by failing to properly object to it at his sentencing hearing. We disagree. Even if we agree that appellant did not properly object to the plea agreement violation at the sentencing hearing, such failure does not constitute a waiver. United States v. Greenwood, 812 F.2d 632 (10th Cir.1987); United States v. Brody, 808 F.2d 944 (2d Cir.1986); Paradiso v. United States, 689 F.2d 28, 30 (2d Cir.1982), cert. denied, 459 U.S. 1116, 103 S.Ct. 752, 74 L.Ed.2d 970 (1983) ("Ordinarily there is no requirement that a defendant object to the violation of a plea agreement at the time of sentencing, and defendant's claim that his plea agreement was violated is not waived by his failure to raise the issue at sentencing."); United States v. Corsentino, 685 F.2d 48 (2d Cir.1982). See also, United States v. Benchimol, 471 U.S. 453, 457, 105 S.Ct. 2103, 2105, 85 L.Ed.2d 462 (1985) (Stevens J., concurring) ("If the government erred in failing to recommend affirmatively the proper sentence, the time to object was at the sentencing hearing or on direct appeal."). Whether or not appellant raised his objections before the trial court, he does so now on direct appeal.

III.

The government argues that the standard of review should be plain error. It is not. This case presents three questions, each with a different scope of review. First, what are the facts of the case, i.e., what are the terms of the agreement and the conduct of the government; second, whether the conduct of the government violated the terms of the plea agreement; and third, what is the appropriate remedy if the court concludes that a violation occurred. The facts of the case, if disputed, are determined by the district court and our review of those findings is limited to a clearly erroneous standard. United States v. Carrillo, 709 F.2d 35 (9th Cir.1983). Whether the government's conduct violates the terms of the plea agreement is a question of law and our review is plenary. United States v. Miller, 565 F.2d 1273 (3d Cir.1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978); United States v. Crusco, 536 F.2d 21 (3d Cir.1976). As to the third question, the Supreme Court, in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), concluded that once the court finds a breach of the plea agreement by the government the case must be remanded for either resentencing or withdrawal of appellant's guilty plea. Under these standards, we review this case.

IV.

Appellant argues that the government breached its promise not to take a position regarding appellant's sentence by submitting a sentencing memorandum which was "highly critical, opprobrious and inflammatory." Amended Brief for Appellant at 4. He also argues that the government failed to inform the court of the full nature and extent of appellant's cooperation as required under the plea agreement.

The Supreme Court, in Santobello, 404 U.S. 257, 92 S.Ct. 495, held that when a...

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