U.S. v. Usher, 82-1113

• Decision Date: 10 March 1983
• Docket Number: No. 82-1113,82-1113
• Citation: 703 F.2d 956
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Frank Lee USHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 956

703 F.2d 956

UNITED STATES of America, Plaintiff-Appellee, v. Frank Lee USHER, Defendant-Appellant.

No. 82-1113.

United States Court of Appeals, Sixth Circuit.

Argued Feb. 14, 1983.

Decided March 10, 1983.

Leslie R. Seeligson (argued), Ann Arbor, Mich., for defendant-appellant.

Leonard R. Gilman, U.S. Atty., Christopher Andreoff, Asst. U.S. Atty. (argued), Detroit, Mich., for plaintiff-appellee.

Before KEITH, KENNEDY and WELLFORD, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Appellant Usher appeals from a guilty plea and conviction for possession of a firearm by a felon, 18 U.S.C. App. Sec. 1202(a)(1), and the receipt of ammunition by a felon, 18 U.S.C. Secs. 922(h)(1), 924(a). Appellant claims the District Court erred as a matter of law in determining that his guilty plea, entered into pursuant to a plea agreement was voluntary and that the District Court abused its discretion in denying his motion for leave to withdraw his guilty plea prior to sentencing under Fed.R.Crim.P. 32(d).

Appellant first claims his guilty plea was involuntary under a totality of circumstances because it was a product of coercion. Specifically, appellant claims his plea and that of his wife, who was charged in a separate indictment with the same offenses arising from the same set of facts, were linked and interdependent and that, at the time the plea negotiations took place, his wife would only be allowed to enter into a plea for a reduced period of incarceration on the condition that appellant would waive his right to a jury trial and other constitutional protections and plead also. Appellant claims this condition was created and imposed by the government during the plea bargaining process and that conditioning his wife's ability to plead to a reduced period of incarceration on his plea was, in itself, coercive enough to vitiate his guilty plea.

The Supreme Court has expressly reserved judgment on the constitutional implications of a prosecutor's offer during plea bargaining of adverse or lenient treatment for some person other than the accused. Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 98 S.Ct. 663, 668 n. 8, 54 L.Ed.2d 604 (1978). A number of federal courts, however, have upheld pleas against assertions of involuntariness due to coercion where the prosecution offered lenient treatment to a person other than the defendant. See, e.g., United States v. Tursi, 576 F.2d 396, 398 (1st Cir.1978); United States v. Bambulas, 571 F.2d 525, 526-27 (10th Cir.1978).

Under a totality of circumstances, the District Court did not err in concluding, as a matter of law, that appellant's plea was knowing and voluntary and not coerced. Appellant was familiar with the criminal justice system. See United States v. LaVallee, 348 F.2d 373 (2d Cir.1965). Appellant and his wife were both represented by separate counsel throughout the plea negotiation process and at the time the plea was taken. See Austin v. Perini, 434 F.2d 752, 753 (6th Cir.1970). Accepting the testimony and affidavits favorable to appellant as true, the record reveals that appellant and his attorney were very much aware of the alleged conditional nature of appellant's wife's ability to plead. It was appellant's counsel, along with his wife's counsel, who countered the original government offer with an increased maximum exposure for appellant and a decreased one for his wife, and it was this offer which was accepted by the government and was the basis for the plea. The participation and assistance of counsel over the four-day period of time in which the plea negotiations took place indicates that the plea was the product of a shrewd, intelligent and calculated bargain. LaVallee, supra, 377.

Appellant also asserts that the District Court did not satisfy its obligations under Fed.R.Crim.P. 11(d) and (e). Hayes and other cases indicate that guilty pleas made in consideration of lenient treatment in favor of third persons pose a greater danger of coercion than purely bilateral plea bargaining and that, accordingly, special care must be taken to ascertain the voluntariness of guilty pleas entered in such circumstances. Hayes, supra, 434 U.S. at 364 n. 8, 98 S.Ct. at 668 n. 8; United States v. Nuckols, 606 F.2d 566, 569 (5th Cir.1979).

Appellant's plea agreement with the government was executed orally in open court and in writing. At the plea acceptance hearing the government orally set forth the agreement reached with appellant and indicated that it embodied the full negotiations between the government and appellant. Appellant's attorney responded that the government had "fairly stated the agreement between the U.S. Attorney's office and Defendant, Frank Lee Usher." The District Court then inquired separately of...