U.S. v. Stemm, 87-1426

• Decision Date: 24 May 1988
• Docket Number: No. 87-1426,87-1426
• Citation: 847 F.2d 636
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul George STEMM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 636

847 F.2d 636

UNITED STATES of America, Plaintiff-Appellee, v. Paul George STEMM, Defendant-Appellant.

No. 87-1426.

United States Court of Appeals Tenth Circuit.

May 24, 1988.

Rehearing Denied June 7, 1988.

Arnold M. Stone, Haight, Dickson, Brown & Bonesteel, Santa Ana, Cal., for defendant-appellant.

Richard L. Hathaway, Asst. U.S. Atty., Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Topeka, Kan., was also on the brief), for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and SEYMOUR, Circuit Judge, and DUMBAULD, District Judge ^*

HOLLOWAY, Chief Judge.

Paul George Stemm (Stemm) filed this direct criminal appeal from a judgment of conviction and sentence entered upon his plea of guilty. Stemm was sentenced by the district court in Kansas to imprisonment for two years and fined $10,000.00 for conspiring with eleven codefendants to commit mail fraud in connection with a business venture.

The district court sentenced Stemm on March 18, 1987, along with other defendants. Stemm contends that the court's underlying error is the denial of a motion filed prior to sentencing, on March 10, which claimed a denial of due process and violation of the plea agreement because of the Government having submitted a detailed version of the facts with culpability ratings included in the presentence report for all defendants and strong statements about their conduct. Stemm also claims there was an inaccurate and unreliable presentence investigation report ("PSI/R" or "Report"). These constitutional and contractual flaws, according to the defendant, were caused by the PSI/R being "largely written by the United States Attorney" rather than the probation officer of the court, as required by Rule 32(c)(1) Fed.R.Crim.P. When Stemm read the PSI/R, he immediately sent a letter on February 28, 1987 to the probation office objecting to the entire report. In his followup motion of March 10, Stemm asked that the court order that the report be quashed and expunged, that sentencing be done by a different judge, and that a new PSI/R be prepared.

Subsequent to the sentencing, the court filed a memorandum and order stating reasons why the March 10 motion was denied. Stemm filed this timely appeal. He contends that (1) the United States (U.S.) Attorney's office breached the terms of the plea agreement by writing a prosecution version of the case and a culpability ranking of the twelve defendants which were included in the PSI/R; and (2) the Report was unreliable due to its inclusion of the prosecutor's account which is contrary to Rule 32(c)(1) and which engendered bias, constituting a denial of due process. The Government contends that neither the U.S. Attorney's office nor the court committed errors which warrant vacating the judgment and granting the relief requested. We affirm.

I

We first consider Stemm's claim that the United States Attorney's office breached the plea agreement through its participation in the preparation of the prosecution's version and the culpability ranking in the PSI/R.

Where the Government obtains a guilty plea which is predicated in any significant degree on a promise or agreement with the U.S. Attorney, such promise or agreement must be fulfilled to maintain the integrity of the plea. See e.g. Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); United States v. Greenwood, 812 F.2d 632, 637 (10th Cir.1987); United States v. Reardon, 787 F.2d 512, 516 (10th Cir.1986). "Plea bargains, like contracts, cannot normally be unilaterally broken with impunity or without consequence." Reardon, 787 F.2d at 516 (citing United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir.1981), cert. denied, 454 U.S. 831, 102 S.Ct. 127, 70 L.Ed.2d 108 (1981)). In considering any claim that the U.S. Attorney has breached a plea agreement, we must first determine the nature of the prosecutor's promise. United States v. Corsentino, 685 F.2d 48, 51 (2d Cir.1982).

The plea agreement which Stemm executed with the U.S. Attorney provided that Stemm would plead guilty to one count of mail fraud in return for which the Government would dismiss all other counts. The written agreement was made pursuant to Rule 11(e)(1)(C), F.R.Crim.P. With regard to the guilty plea, the agreement, accepted by the court, limited the sentence that could be imposed to a term "not to exceed two years." I R.Doc. No. 660, Plea Agreement, December 18, 1986, p 3. Additionally the U.S. Attorney promised to: recommend that Stemm's term of imprisonment, if any, would not exceed any term of imprisonment imposed upon codefendant Larry Huff, if any; "make no other other recommendation whatsoever as to any other aspect of the sentence to be imposed by the Court," including what specific term of imprisonment should be imposed, the amount of any fine, and any amount of restitution; not object to a request by Stemm for probation; and not oppose applications for voluntary surrender and assignment to any particular facility. Id. at paragraphs 3, 4.

In determining whether there was a breach by the Government of the plea agreement and of the defendant's reasonable understanding when he entered his plea, United States v. Greenwood, 812 F.2d at 635, we must consider carefully the information furnished by the Government and included in the presentence report. We have, under seal, the full presentence report whose content and substance we must not discuss in this opinion, but which the panel has thoroughly considered. It will suffice, and not violate the confidentiality of the information, we feel, for us to outline the nature of the information furnished by the Government.

That information appears in a detailed statement which is clearly identified as information that the U.S. Attorney's office provided as the government version of the offense. The information appears in approximately thirteen and one-quarter single-spaced typewritten pages, commencing with a summary of the scheme from its inception several years back and a ranking of the defendants with respect to culpability. This ranking is a principal complaint of the defendant Stemm. In making the ranking of the defendants, the Government says that it considered criteria such as the defendant's contribution to the success of the scheme and his role in it in several respects. Then in numerical order the Government ranked the defendants as to culpability. Stemm vigorously objects to the assessment of his role. An outline was given of the scheme concerning the product involved and the origin of it in South Africa, and a detailed history of activities of the various defendants including those of defendant Stemm. An outline was also included of brochures containing false representations and false promises which were specified. The statement also included information concerning the very large proceeds of the crime, which the Government had attempted to trace, and the authority over the funds.

Then following the Government's version of the offense, there were sections of the report for which the probation office was apparently responsible. These dealt with pretrial services, the plea agreement, a victim impact statement, and other matters. The report further included a statement of the defendant's version of the defendants' activities, a statement of almost five single spaced typed pages. Lastly, the presentence report contained customary sections concerning any prior record, personal and family data, military service, health, financial condition and assets, and concluding with an evaluation by the probation officer.

In determining whether the U.S. Attorney's office complied with the terms of the plea agreement we must consider the conduct of the prosecutor in the sentence hearing and also the earlier written, presentencing statement, discussed above. ¹ The record shows that at the sentencing hearing the Assistant U.S. Attorney recommended that Stemm's sentence not exceed that of codefendant Huff, VII R. 76, 77; in response to the court's inquiry whether the Government wished to address punishment he replied in the negative, id. at 86; and he moved to dismiss the remaining counts of the indictment. Id. at 88. The court recommended to the Bureau of Prisons that Stemm's sentence be served at a minimum security institution near his home and that Stemm be allowed a voluntary surrender. Id. at 87. The record does not show that the prosecutor in any way addressed the institutional location and surrender. Finally, the court ordered that Stemm's objections to the PSI/R and a transcript of the sentencing proceeding be made part of the defendant's record for the Bureau of Prisons. Id. at 88, 89. The Government had not responded to the collaborative argument of the defendants that the prosecutor's version of the offense and culpability rating breached the plea agreement, see id. at 5, 22, 27-28, 30, and the record shows no prosecutor response to the court's ordering the objections underlying the legal argument being attached to the defendant's record.

We have carefully considered the conduct of the Government at the sentencing proceeding and in furnishing the "Prosecution Version" of the offense for inclusion in the presentence report. The culpability "Ranking of the Defendants," emphasized by Stemm, presents the most difficult question and Stemm's strongest claim. Information furnished to the probation office here on Stemm is similar to that furnished to the probation office including the Government's view on the defendant's "relative culpability" and the "part each defendant played in the criminal scheme", which was held proper despite a promise to make no recommendation as to sentence in United States v. Michaelson, 552 F.2d 472, 475 (2d Cir.1977). Disclosure of information as to the nature of the offense and each defendant's role is proper and within the Government's duty to provide, despite a promise that the Government would make no recommendation as to sentence. Id. See United...