U.S. v. Scharf, 77-1055
| Decision Date | 19 April 1977 |
| Docket Number | No. 77-1055,77-1055 |
| Parties | UNITED STATES of America, Appellee, v. Raymond L. SCHARF, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Jay Schwartz, Racine, Wis., filed brief for appellant.
Barry A. Short, U. S. Atty., and Richard D. Billeaud, Asst. U. S. Atty., St. Louis, Mo., filed brief for appellee.
Before LAY, WEBSTER and HENLEY, Circuit Judges.
Raymond L. Scharf, hereinafter called defendant, appeals from an order of the United States District Court for the Eastern District of Missouri 1 denying without an evidentiary hearing a post-sentence motion for relief from a judgment of conviction following the defendant's plea of guilty to a charge of having conspired with one Bonnie Morley to violate 18 U.S.C. § 1951, commonly referred to as the Hobbs Act. The motion was filed pursuant to Fed.R.Crim.P. 32(d) which provides in part that where a sentence has been imposed following a plea of guilty, the court may for the purpose of correcting "manifest injustice" set aside the conviction and permit the defendant to withdraw his plea of guilty.
The indictment returned against the defendant in May, 1976 contained seven counts charging violations of Title IX of the Organized Crime Control Act of 1970, 18 U.S.C. §§ 1961 et seq., and of the Hobbs Anti-Extortion Act, 18 U.S.C. § 1951, obstruction of justice, 18 U.S.C. § 1503, possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d), unlawful carrying and use of an explosive in violation of 18 U.S.C. § 844(h), and unlawful use of an explosive in violation of 18 U.S.C. § 844(i).
Defendant, who was represented by capable counsel of his own choice, originally entered a plea of not guilty to all seven counts of the indictment. However, as a result of a plea bargain struck between defendant's attorney, Mr. Norman London of St. Louis, and Department of Justice Special Attorney Richard D. Billeaud, the member of the St. Louis "strike force" who was handling the case for the government, the defendant by leave of court withdrew The plea was entered on September 20, 1976, and on October 22, 1976 Judge Wangelin sentenced the defendant to imprisonment for a term of ten years. Thereafter, Counts 1, 2, 4, 5, 6 and 7 of the indictment were dismissed by the government in accordance with the plea bargain that has been mentioned.
his plea of not guilty to Count 3 of the indictment and pleaded guilty to that count.
In his motion to set aside his conviction on Count 3 and for leave to withdraw his plea of guilty, which motion was supported by defendant's affidavit, the defendant alleged that the district court had failed to comply in numerous respects with Fed.R.Crim.P. 11, as amended in 1975, 2 when that court permitted the defendant to withdraw his plea of not guilty to Count 3 and accepted his plea of guilty to that count; and defendant also alleged that the plea bargain between his attorney and government counsel had been breached in a material respect to be mentioned.
With respect to his claim of breach of plea bargain defendant requested an evidentiary hearing. That request was not granted, and the district court made no specific finding with respect to the defendant's claim of breach. The district court concluded that it had complied adequately with Rule 11, and that no manifest injustice would result from denial of defendant's motion.
The transcript of the proceedings that took place on September 20, 1976 reflects that in most respects the district court complied adequately with Rule 11. However, it failed to comply as fully as it might have with the portions of the Rule relating to the procedure to be followed where a plea of guilty is entered pursuant to a plea bargain. Specifically, we find that the district court failed to comply with the last sentence of Rule 11(d) and with certain requirements of Rule 11(e) which is entitled "Plea Agreement Procedure." 3 And we have concluded that the order of the district court denying defendant's Rule 32(d) motion must be reversed and the case remanded for further proceedings. We do not reach the question of whether the plea bargain between the government and defense counsel was in fact breached. 4
Controlling facts in the case may be summarized as follows:
The defendant is a St. Louis business man who for a number of years has been engaged in the vending and pinball machine business. The vending machines dispense such items as cigarettes and candy. The machines are located in various retail establishments in and around St. Louis. The pinball machines can be used for gambling in violation of Missouri law.
The first count of the indictment charged that from about 1972 down to the date of the return of the indictment in May, 1976, the defendant had engaged in racketeering activities which subjected him to punishment under 18 U.S.C. § 1962. Had the defendant been convicted on Count 1, he would have been subject to a fine of not more than $25,000.00 or to imprisonment for not more than twenty years, or both, and, in addition, under the provisions of 18 U.S.C. § 1963(a) and (c) defendant's business property would have been subject to forfeiture at the instance of the Department of Justice. And when the indictment was returned, the district court entered an order restraining the defendant from disposing of his assets; the entry of that order was authorized by 18 U.S.C. § 1963(b).
The second and third counts set out the alleged Hobbs Act violations 5 and involved the conduct of the defendant in relation to a business competitor, Cigarette Vending Machine Co., Inc., the stock in which was owned by John Hofstetter.
The second count charged that on or about August 10, 1973 the defendant planted a bomb under an automobile belonging to Cigarette Vending Machine Co., Inc., while the vehicle was parked in front of Hofstetter's home, and detonated the bomb for the purpose of so frightening Hofstetter that he would go out of business. The third count charged that between about August 1 and August 15, 1973 the defendant and an unindicted coconspirator, Bonnie Morley, conspired to practice extortion upon defendant's competitor above identified.
A conviction of the defendant on either the second or the third count would have entailed a maximum punishment of a fine of not more than $10,000.00 or imprisonment for not more than twenty years, or both. It should be observed that § 1951 does not contain a criminal forfeiture provision comparable to that which appears in § 1963.
During at least part of the period covered by the indictment the defendant was having serious tax problems with the Internal Revenue Service. In connection with his tax difficulties the defendant was represented by St. Louis tax attorneys, and he had litigation pending in the Tax Court of the United States.
Very shortly after the indictment in the instant case was returned, the defendant was indicted in the district court on a number of felony charges of having wilfully failed to collect, account for and pay over to the government federal withholding taxes. 26 U.S.C. § 7202. That case was assigned to District Judge John K. Regan.
The tax case was tried to a jury, and on September 16, 1976 the defendant was found guilty in that case. Four days later the defendant entered his plea of guilty in this case.
On October 22, 1976 the defendant was sentenced in this case by Judge Wangelin to imprisonment for ten years with the stipulation that the sentence run concurrently with the sentence to be imposed by Judge Regan in the tax case, and Judge Regan in that case imposed a sentence of imprisonment for ten years. Execution of both sentences was stayed until January 17, 1977 in order to enable the defendant to get his affairs in order before going to prison.
Later on the same day, the Internal Revenue Service levied upon and seized assets of the defendant to satisfy his alleged tax liabilities, and efforts of his tax lawyers to obtain a release of the levy were not successful. Plaintiff's claim of breach of plea bargain is based on the fact that his assets were seized by the IRS after his plea of guilty in this case was entered.
When Count 1 of the indictment was dismissed, that automatically eliminated the possibility that defendant would forfeit his business assets under § 1963, and there is no question that dismissal of Count 1 was part of the plea bargain.
The defendant, however, has assumed and now maintains the position that the plea bargain went further than a mere dismissal of all counts of the indictment except Count 3, and that it included a promise The defendant in November, 1976 filed a motion in the district court for what amounted to specific performance of his version of the plea bargain. That motion was denied, and defendant appealed; the appeal was docketed here but was voluntarily dismissed by the defendant.
that in exchange for his plea there would be no seizure of any of his property by any agency of the government, including the Internal Revenue Service.
The motion with which we are concerned was filed on December 22, 1976. This was during the stay period allowed by Judges Wangelin and Regan, and when the motion was filed defendant was at large on bail.
On January 12, 1977 Judge Wangelin entered his order denying the motion, and on January 14, 1977 notice of appeal was filed. 6 Defendant has been permitted to remain free during the pendency of the appeal. 7
Before discussing the question of whether the district court complied with those portions of Rule 11 which relate to bargained pleas, we deem it well to say that defendant does not contend that any representative of the government ever made him the promise that he postulates; as a matter of fact, he did not participate in the plea bargaining between his then lawyer, Mr. London, and government counsel, Mr. Billeaud. In his...
To continue reading
Request your trial
-
U.S. v. Stirling
...on the agreement to protect himself. See Santobello v. New York,404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States v. Scharf,551 F.2d 1124, 1126 n. 4 (8th Cir.), cert. denied, --- U.S. ----, 98 S.Ct. 70, 54 L.Ed.2d 81 (1977) ("There is no question that a breach of a plea barga......
-
State v. Lucero
...The trial court did not make the separate and distinct inquiry required by the second sentence of Rule 21(f). See, United States v. Scharf, 551 F.2d 1124 (8th Cir. 1977). We adopt the exposition of our Rule 21(f) found in the federal decisions we have cited on federal Rule 11(d), and impose......
-
Keel v. U.S.
...v. Coronado, 5 Cir. 1977, 554 F.2d 166, 173-74, Cert. denied, 1977, 434 U.S. 870, 98 S.Ct. 214, 54 L.Ed.2d 149; United States v. Scharf, 8 Cir. 1977, 551 F.2d 1124, 1129, Cert. denied, 1977, 434 U.S. 824, 98 S.Ct. 70, 54 L.Ed.2d 81.2 See United States v. Yazbeck, 1 Cir. 1975, 524 F.2d 641, ......
-
U.S. v. Adams
...States v. Journet, 2 Cir. 1976, 544 F.2d 633, 637 n.6; United States v. Saft, 2 Cir. 1977, 558 F.2d 1073, 1080; United States v. Scharf, 8 Cir. 1977, 551 F.2d 1124, 1130.The Supreme Court announced in 1969 that "any noncompliance with Rule 11 is reversible error". McCarthy v. United States,......