U.S. v. Papaleo, 88-1013

• Decision Date: 07 June 1988
• Docket Number: No. 88-1013,88-1013
• Citation: 853 F.2d 16
• Parties: UNITED STATES of America, Appellee, v. Antonio PAPALEO, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 16

853 F.2d 16

UNITED STATES of America, Appellee, v. Antonio PAPALEO, Defendant, Appellant.

No. 88-1013.

United States Court of Appeals First Circuit.

Heard June 7, 1988.

Decided Aug. 1, 1988.

Luis A. Medina Torres, Hato Rey, P.R., by Appointment of the Court, for defendant, appellant.

Jose R. Gaztambide, Asst. U.S. Atty., Criminal Div., with whom Daniel F. Lopez-Romo, U.S. Atty., Hato Rey, P.R., was on brief, for appellee.

Before BOWNES, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

Papaleo was an "in-transit" passenger through Luis Munoz Marin Airport in Puerto Rico, who, on his way to Germany from South America, was arrested for possessing with intent to import and distribute a sizeable quantity of cocaine. He was convicted by a jury on three counts of drug related charges. Papaleo appeals his conviction, claiming the government violated his contractual or constitutional rights when it failed to honor a plea agreement. He also asserts that he was not brought to trial within the requirements of the Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq. We disagree and affirm his convictions.

I

After initially pleading not guilty to all charges, Papaleo and the government signed a plea agreement on or about March 13, 1987 whereby Papaleo agreed to plead guilty to one count in the indictment against him in exchange for the dismissal of the remaining two counts. The court scheduled a hearing for the change of plea for March 16. On that day, however, defendant's counsel filed a motion requesting to withdraw as Papaleo's attorney. Because of counsel's motion, the court cancelled the change of plea hearing. Although the court denied this motion to withdraw, on April 2 it granted a similar motion, filed on March 27.

Meanwhile, the government on March 25 filed an informative motion with the court alleging that Papaleo had violated the plea agreement because "[t]he Change of Plea hearing was cancelled due to problems not related to the Government offer," and that therefore the agreement was withdrawn. ¹ A copy of this motion was never received by defendant's original counsel because it was sent to the wrong address. Papaleo and his new attorney, assigned on May 11, did not learn until May 27 that the government had withdrawn the plea agreement. Papaleo, however, does not assert that he at any time acted to his detriment in reliance on the agreement.

The question, thus, is whether the government can unilaterally withdraw a plea agreement when it has not been approved by the court nor relied upon by the defendant. Papaleo argues that the agreement was a valid contract which the government could not unilaterally breach. It is not clear from his brief or from oral argument whether Papaleo also asserts that breach of the agreement is a violation of his fifth amendment due process rights. In any event, we conclude that the government committed neither a constitutional nor a contractual violation.

A

Plea bargaining is "an essential component of the administration of justice" and should be encouraged by the courts. Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). While courts should play no role in the formulation of plea agreements, Fed.R.Crim.P. 11(e)(1), the judiciary must ensure that such agreements are fair and entered into knowingly and voluntarily. Santobello, 404 U.S. at 261-62, 92 S.Ct. at 498-99. A court may exercise its discretion to reject an agreement and to refuse to accept a plea of guilty. Id. at 262, 92 S.Ct. at 499. Once a court accepts a guilty plea on the basis of an agreement, however, the court can enforce the agreement, requiring the government to perform its promise to the defendant. Id.; United States v. Reckmeyer, 786 F.2d 1216, 1223 (4th Cir.), cert. denied, 479 U.S. 850, 107 S.Ct. 177, 93 L.Ed.2d 113 (1986); United States v. Blackwell, 694 F.2d 1325, 1337 (D.C.Cir.1982). Conversely, the court can also refuse to allow the defendant to withdraw his plea. United States v. Ellison, 798 F.2d 1102, 1104-06 (7th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct. 893, 93 L.Ed.2d 845 (1987); United States v. Khoury, 755 F.2d 1071, 1073 (1st Cir.1985).

"A plea bargain, standing alone, is without constitutional significance...." Mabry v. Johnson, 467 U.S. 504, 507, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984); see also Spann v. Wainwright, 742 F.2d 606, 607 (11th Cir.1984), cert. denied, 474 U.S. 830, 106 S.Ct. 95, 88 L.Ed.2d 77 (1985). However, when the court approves a plea of guilty pursuant to a plea agreement, thus depriving a defendant of his or her liberty without a trial, the constitution is implicated. 467 U.S. at 507-08, 104 S.Ct. at 2546-47. Due process concerns may also arise prior to the entry of a guilty plea when the defendant detrimentally relies upon the government's promise. See Government of Virgin Islands v. Scotland, 614 F.2d 360, 365 (3d Cir.1980); United States v. Hammerman, II, 528 F.2d 326 (4th Cir.1975); cf. United States v. Abou-Saada, 785 F.2d 1, 5-7 (1st Cir.) (if government agreed not to arrest and prosecute defendant, court may grant defendant post-trial, "appropriate relief" if he relied upon such an agreement), cert. denied, 477 U.S. 908, 106 S.Ct. 3283, 91 L.Ed.2d 572 (1986). But see United States v. McGovern, 822 F.2d 739, 746 (8th Cir.) (defendant not justified in relying substantially on plea agreement until agreement and guilty plea are accepted by the court), cert. denied, --- U.S. ----, 108 S.Ct. 352, 98 L.Ed.2d 377 (1987).

In the case before us, Papaleo did not enter a guilty plea, did not forgo a jury trial on any charge, and did not otherwise detrimentally rely on the government's promise to drop two charges. He is in no worse position than if no offer had ever been made by the government. See Scotland 14 F.2d at 365 ("no rational basis for holding ... that a trial is sufficient for the defendant who has not been offered a plea and insufficient for the one who has"). Therefore, even if Papaleo had accepted the government's plea agreement offer, such an act, alone, would not have created a constitutional right to have that bargain enforced.

B

While plea agreements are a matter of criminal jurisprudence, most courts, including this one, have held that they are also subject to contract principles. United States v. Kingsley, 851 F.2d 16, 21 (1st Cir.1988) (using contractual analysis to enforce plea agreement and award "benefit of the bargain"); United States v. Read, 778 F.2d 1437, 1441 (9th Cir.1985) ("plea bargain is contractual in nature and is measured by contract-law standards"), cert. denied, 479 U.S. 835, 107 S.Ct. 131, 93 L.Ed.2d 75 (1986); United States v. Baldacchino, 762 F.2d 170, 179 (1st Cir.1985) ("plea bargains are subject to contract law principles insofar as their application will insure the defendant what is reasonably due him"); United States v. Fields, 766 F.2d 1161, 1168 (7th Cir.1985) ("plea bargain is a contract"); see Correale v. United States, 479 F.2d 944, 947 (1st Cir.1973) ("most meticulous standards of both promise and performance must be met by prosecutors engaging in plea bargaining"); see also United States v. Hembree, 754 F.2d 314, 317 (10th Cir.1985) (immunity agreement as "simply a contract"). ² A contractual approach to plea agreements ensures not only that constitutional rights are respected, but also that the integrity of the criminal process is upheld as plea agreements are respected as "pledges of public faith." See J. Bond, Plea Bargaining & Guilty Pleas, 7-56 to -57 (1983) and cases cited therein. We agree that, to the extent such an agreement satisfies general requirements of contract law and does not violate constitutional principles, statutes, or public policy, it should be enforced. ³

The plea agreement here at issue stated in pertinent part that "in exchange for defendant's ... plea of guilty as to count one of the indictment, the Government at the time of sentencing will move for the dismissal of counts two and three." Papaleo argues that these somewhat ambiguous words constitute a bilateral contract and not merely an offer. We thus must determine whether the agreement is an exchange of promises or only an offer by the government for a unilateral contract--an offer which the government could withdraw any time before Papaleo started to perform by pleading guilty.

We note that nowhere in the plea agreement is there an explicit promise by Papaleo to do anything. This is understandable in light of the fact that a court cannot force a defendant to plead guilty because of a promise in a plea agreement. See Fed.R.Crim.P. 11(c)(3). Unless and until a court accepts a guilty plea, a defendant is free to renege on a promise to so plead.

We recognize that two parties may enter into a contract, even though the agreement lacks "mutuality of obligation" because one party's promise is unenforceable by rule of law. See Restatement (Second) of Contracts 17(1), 78, 79. We must assume, however, that the government acted rationally in light of these elementary principles of contract and criminal law when it proposed its plea agreement. Absent more explicit promissory language, we will not read the ambiguous language of the "agreement" as containing bilateral promises such as to bind the government to a contract unenforceable against the other party. Thus, pursuant to general contract principles, see id. Secs. 35(2), 36(1)(c), 45(1), 50(1) & (2), we hold that a plea agreement of this type is no more than an offer by the government: if the defendant pleads guilty and if that plea is accepted by the court, then the government will perform as stipulated in the agreement. Until performance took place by Papaleo, the government was free to withdraw its offer.

II

The Speedy Trial Act, 18 U.S.C. Sec. 3161 et seq, requires in most cases that a defendant's trial begin within seventy days after the date of indictment. 18 U.S.C. Sec. 3161(c)(1). Delays in the commencement of...