U.S. v. Roberts, 76-1668

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation187 U.S. App. D.C. 90,570 F.2d 999
Docket NumberNo. 76-1668,76-1668
PartiesUNITED STATES of America v. Winfield L. ROBERTS, a/k/a Win, Appellant.
Decision Date21 December 1977

Roger E. Zuckerman, Washington, D. C., with whom Allan M. Palmer, Washington, D. C., was on the brief, for appellant.

Steven Gordon, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Joseph F. McSorley and Larry C. Willey, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before WRIGHT, ROBINSON and MacKINNON, Circuit Judges.

Opinion for the court filed by MacKINNON, Circuit Judge.

MacKINNON, Circuit Judge:

Following a guilty plea, entered pursuant to an agreement with the Government, appellant Roberts was adjudged convicted of the crime of conspiracy. A week later, when the United States Attorney filed a strongly hostile presentencing memorandum, Roberts contended that the memorandum violated the plea agreement and moved to withdraw his plea. This motion was denied and he was subsequently given a sentence which closely approximated the maximum possible for his offense. He appeals therefrom, and we set the sentence and plea aside principally because the Government had not fully disclosed the details of the plea agreement at the court hearing as required by Rule 11, Federal Rules of Criminal Procedure.


Appellant Roberts and a co-defendant, Thornton, whose case was severed in pretrial proceedings, were arrested on September 5, 1975 and subsequently indicted. Count 1 of the indictment charged conspiracy to distribute heroin and to possess heroin with intent to distribute, 21 U.S.C. §§ 841(a), 846. Four other counts charged unlawful use of a communication facility (a telephone) to commit or facilitate the distribution of heroin, 21 U.S.C. §§ 841(a), 843(b).

Roberts initially pleaded not guilty and thereafter resisted several attempts by the prosecutor to arrive at a plea agreement before trial. However, on March 18, 1976, the day the case was called for trial Roberts was persuaded in a last minute bargaining session to agree to enter an Alford guilty plea, 1 North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). 2 Following the announcement that the accused had agreed to withdraw his not guilty plea and to plead guilty, the trial court, as required by Fed.R.Crim.P. 11, inquired into the circumstances surrounding the agreement and concluded, after questioning which at the time seemed in no way incomplete, 3 that there was a factual basis for the plea and that the plea was voluntary and in conformance with the Rule and all constitutional requirements.

The following excerpts from this Rule 11 hearing are relevant to the issues raised on this appeal:

THE COURT: Except for dismissing the remaining counts of the indictment at the time of sentence, has any promise of any kind been made to induce your plea of guilty?


Tr. I, * 25-26.

THE COURT: All right. We'll take Mr. Roberts' plea to Count 1 of the indictment, which charges conspiracy.

DEPUTY CLERK: Yes, Your Honor.

MR. McSORLEY: Your Honor

THE COURT: Just a minute.

MR. McSORLEY (Assistant U.S. Attorney): Pardon me.

On the matter of promises, we did promise that we would have no objection to the defendant remaining on bond during sentencing, but that that would be a decision of the Court. And I also did represent to both the defendant and Mr. Sacks that the Government would reserve the right to file an allocution in this case.

THE COURT: All right.

You just heard Mr. McSorley's further statement. Do you understand that the Government will not oppose your remaining on bond pending sentence, and also that the Government reserves the right to file a statement of allocution at the time of sentence? Do you understand that?


Tr. I, 26-27 (emphasis added). The court then permitted withdrawal of the not guilty pleas and accepted Roberts' guilty plea to count 1 (the conspiracy count) (Tr. I, 27).

A week later, on March 25, 1976, the United States Attorney filed a strongly worded "Government Memorandum on Sentencing." 4 The representations made therein caused appellant and his counsel immediately to protest and to request that they be allowed to withdraw the plea on grounds that in recommending a severe sentence the Government had violated representations it made to induce appellant's plea, Fed.R.Crim.P. 32(d). 5 Roberts insisted that the prosecutor had promised to forego allocuting for a "substantial sentence" and that he had relied upon this representation in entering the guilty plea he had always previously refused to enter. The U.S. Attorney denied that he ever made any such representations. 6 Roberts' attorney, however, gave insistent and unimpeached testimony that he had informed his client that such a promise had indeed been made and that this representation was crucial to Roberts' decision to plead guilty.

The court hearing held on April 7, 1976 on the motion to withdraw the guilty plea produced the following testimony significant to the outcome of this appeal:

MR. SACKS (Roberts' attorney, testifying as to the plea bargaining which occurred immediately prior to the Roberts' change of plea):

Mr. McSorely (Assistant U.S. Attorney) spoke directly to the defendant in my presence, and he said that if you enter your plea, first, I will not waive my right to allocution, at which time the defendant turned to me and wanted me to explain what was meant by allocution. I then gave him the best explanation that I could, that the prosecutor was in effect saying that at the time of sentencing he would be able to address the Court as to the crime itself, and as to what he thought the sentence should be.

My further recollection is that Mr. McSorley stated to Mr. Roberts that if you enter this plea I will argue against probation, but I will not ask for a substantial sentence. He then left.

We then discussed the matter, and Mr. Roberts asked me to explain what he meant by arguing against probation. I told him that if I addressed the Court asking that the Court consider probation, he would argue against it, and I said that you're aware of the maximum penalty under the statute, and Mr. McSorely, in effect, is saying that he's going to argue for a sentence, but he isn't going to ask the Court to impose a substantial one. That was my interpretation.

Tr. II, 34-35.

I would have never recommended to this defendant, or even consented as far as counsel was concerned to tell him to enter this plea, if I had been aware that a substantial sentence was going to be asked. 7

Tr. II, 36.

MR. McSORLEY: Yes, Your Honor.

If I may, as I was just about to say, throughout the time that Mr. Sacks was representing Mr. Roberts, and the Government had made an offer in the case of a plea disposition, which is common where any defendant faces multiple charges, our offer throughout each and every negotiation was always the same, we would only take a plea to the lead count, we would retain the right to allocute, and we would forego, if there was a plea, the right to ask for the maximum imposition of sentence, but we would specifically retain the right to ask for a substantial sentence.

THE COURT: Was that point specifically brought out?

MR. McSORLEY: Specifically, Your Honor, and repeatedly and repeatedly, because as Your Honor knows, or at least from the Government's point of view, this was a strong case, we had 44 tapes that we were prepared to introduce, the bulk of which contained Mr. Roberts' voice. We had at least three witnesses who were prepared to identify his voice on tape.

Tr. II, 43-44.

I went into the jury room with Mr. Roberts and Mr. Sacks, the three of us were in there, and I reiterated then essentially what Mr. Sacks has said this morning, but there was one major difference. I specifically, and I have a crystal clear recollection of this, told the defendant that we would reserve the right to allocute. 8

It was at that point that he asked Mr. Sacks about the meaning of an allocution and Mr. Sacks gave the explanation. Right after that I specifically told him we would not ask for the maximum period of time if he pled, but we are going to reserve the right to ask for a substantial sentence, and Mr. Roberts looked at me and he made the remark that I know you have your job to do.

I told him then that we would not have any objection to release on bond pending sentencing, that we would bring to the Court's attention whatever favorable attention the Court would care to give it, the fact that this was a plea and would save the Court and counsel time and money and effort, and that we would have no objection to release pending sentencing. Finally, that we would dismiss the remaining counts at the time of sentencing.

Now, that was about a four point bargain. They mulled it over some more after I left the room, and then we came in. A plea was put down on the record, and as I recall at the appropriate time Your Honor asked me were there any promises or threats or inducements, and I put those on the record. I remember specifically saying to the Court that the Government would specifically retain the right of allocution. 9 All of this was on the record. If there was any misunderstanding at that point about what it was that induced the plea, it was then and there, and counsel for the defendant himself should have brought the matter to the Court's attention. I was under no misapprehension as to what I had said. As I stand here today I have a crystal clear recollection.

Tr. II, 46-47-48. Concerning the file memorandum the U.S. Attorney had dictated "immediately after the plea," he testified:

In there I summarized what had happened, that there was a plea to the first count of the indictment, and in the fourth line it stated that the Government specifically reserved the right to file an allocution. 10 I represented...

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