U.S. v. Thomas, s. 77-1383

• Decision Date: 15 September 1978
• Docket Number: Nos. 77-1383,77-1384,s. 77-1383
• Citation: 580 F.2d 1036
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jerry Wayne THOMAS and Sherry Lynn Waters, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1036

580 F.2d 1036

UNITED STATES of America, Plaintiff-Appellant, v. Jerry Wayne THOMAS and Sherry Lynn Waters, Defendants-Appellees.

Nos. 77-1383, 77-1384.

United States Court of Appeals Tenth Circuit.

Argued and Submitted May 9, 1978.

Decided Aug. 9, 1978.

Rehearing Denied Sept. 15, 1978.

John E. Green, Acting U. S. Atty., Oklahoma City, Okl., for plaintiff-appellant.

Jack T. Barragree, Oklahoma City, Okl. (Beaven & Barragree, Oklahoma City, Okl., on the brief), for defendants-appellees.

Before McWILLIAMS, BREITENSTEIN, and LOGAN, Circuit Judges.

McWILLIAMS, Circuit Judge.

The question to be resolved is whether a misunderstanding on the part of all concerned at sentencing in a criminal case is ground for dismissal of an indictment subsequently returned by a grand jury against the same defendant. The trial court concluded that it was, and the Government now appeals.

Jerry Wayne Thomas was charged in the United States District Court for the Western District of Oklahoma with unlawfully having in his possession the contents of a parcel stolen from the United States mail. 18 U.S.C. § 1708. Shirley Lynn Waters had been charged in the same court with uttering a forged United States Treasury check and having in her possession a United States Treasury check which had been stolen from the United States mail. 18 U.S.C. § 495. Both Thomas and Waters initially pled not guilty. Later, both changed their plea to one of guilty. The circumstances surrounding each change of plea generate the present controversy.

At his change of plea hearing Thomas indicated to the trial court that he was concerned that "more charges" were to be filed against him, and that he wanted "to plead guilty to all these at one time." Accordingly, Thomas asked that the "sentencing thing (be) set off until they were all accumulated." The judge who accepted the change of plea, but who did not later impose the sentence, promised, "on behalf of the judiciary," that Thomas would not be sentenced "until after all of these other charges are filed and you have pled guilty to them." The prosecuting attorney present at Thomas' change of plea acquiesced in the "promise" of the trial court.

Two months later Thomas came on for sentencing before a different judge and with a different prosecuting attorney present, neither of whom knew of the earlier promise "on behalf of the judiciary." Thomas, however, was represented by the same counsel who had represented him at his change of plea. At that time Thomas was sentenced to a term of three years imprisonment. As of that date there were no outstanding indictments, and there was no mention of the possibility that another indictment might be returned. However, two days later Thomas was indicted for violations of 18 U.S.C. §§ 2, 495, 1708, 2314 and 371. Counsel then filed a motion to dismiss the newly returned indictment on the ground that the Government had reneged on representations and promises which it had previously made to Thomas and which the latter had relied on to his detriment. After hearing, the trial court granted the motion and dismissed the indictment. The Government here appeals that dismissal.

Waters' case represents a slightly different situation. At her change of plea hearing nothing was said by Waters, her lawyer, the Government attorney, or the trial court concerning the possible filing of other charges. However, it is Waters' position that there was nonetheless an informal understanding between her lawyer and the prosecuting attorney that she too would not be sentenced until any additional indictments had been returned. Waters was sentenced by the judge who accepted her change of plea, and who was, incidentally, the same judge who sentenced Thomas. At this proceeding nothing was said by anyone concerning the possibility of other indictments being returned. Waters was then sentenced to a term of thirteen months imprisonment. As indicated, two days after sentencing, an indictment was returned against both Waters and Thomas, as codefendants. Waters, like Thomas, moved to dismiss on the ground of unkept promises by the prosecuting attorney. The trial judge, who had not participated in any of the prior proceedings against either Thomas or Waters, granted the motion and dismissed the indictment against Waters. The Government also appeals that dismissal.

An event which in our view sheds light on the present controversy involves an action brought under 28 U.S.C. § 2255 by Thomas to vacate, set aside, or correct the three-year sentence which he had received in the earlier proceeding. This action was instituted by Thomas, pro se, After, of course, he had been given the three-year sentence, and After the later indictment had been returned against him, but Before he had filed any motion to dismiss the later indictment on the ground of unkept promises by the Government attorney. In the 2255 action Thomas alleged that his guilty plea in the first proceeding was premised on an understanding that he would not be sentenced in that proceeding until all indictments had been returned. By response in the 2255 proceeding the Government stated, Inter alia, that it had no objection to vacating the sentence previously imposed since it was understood by Thomas that sentencing in the first proceeding would not take place until all indictments were returned. The Government in its response also stated that no additional indictments,...