U.S. v. Vidakovich, 89-8096

• Decision Date: 24 August 1990
• Docket Number: No. 89-8096,89-8096
• Citation: 911 F.2d 435
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John L. VIDAKOVICH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 435

911 F.2d 435

UNITED STATES of America, Plaintiff-Appellee, v. John L. VIDAKOVICH, Defendant-Appellant.

No. 89-8096.

United States Court of Appeals, Tenth Circuit.

Aug. 24, 1990.

David B. Hooper of Hooper Law Associates, P.C., Riverton, Wyo., for defendant-appellant.

Francis Leland Pico, Asst. U.S. Atty. (Richard A. Stacy, U.S. Atty., with him on the brief), D. Wyo., Cheyenne, Wyo., for plaintiff-appellee.

Before McKAY, SETH and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Pursuant to a plea bargain with the government, John L. Vidakovich pled guilty on May 18, 1989, to a three-count information filed in the United States District Court for the District of Wyoming charging him with bank fraud. Specifically, count one charged Vidakovich, the owner of the Yellowstone State Bank, with the misapplication of monies belonging to the Yellowstone State Bank, which was insured by the Federal Deposit Insurance Corporation, in violation of 18 U.S.C. Sec. 656. In count two, he was charged with the making of false entries in the books and records of the Yellowstone State Bank for the purpose of injuring and defrauding the bank, the Federal Deposit Insurance Corporation, and examiners of the Federal Reserve Bank of Kansas City, Missouri, in violation of 18 U.S.C. Sec. 1005. In count three Vidakovich was charged with the obstruction of justice by knowingly, and with an improper motive, failing to produce documents in his possession for inspection and use by a Grand Jury, in violation of 18 U.S.C. Sec. 1503.

Some five months after pleading guilty to the charges described above, Vidakovich filed a motion on October 24, 1989, to withdraw his plea of guilty to each of the three counts of the information. As reason therefor, Vidakovich asserted: (1) that his guilty pleas were involuntary and coerced; (2) that he had a valid defense to each of the charges; and (3) that the government had breached the plea bargain when it asked the district court to enter a restitution order as a part of its sentence.

Acting pursuant to a local rule of court, the case was reassigned to a United States District Court Judge for the District of New Mexico who, after hearing, denied the motion to withdraw the guilty pleas previously made by Vidakovich. The same judge then sentenced Vidakovich to four years imprisonment on each of the three counts, to be served concurrently. As part of his sentence, the district judge further ordered that Vidakovich make restitution to the United States Department of Justice in the amount of $1.25 million. ¹ Finally, the district judge ordered a special assessment in the amount of $50 for each count, pursuant to 18 U.S.C. Sec. 3013. Vidakovich appeals the district court's order denying his motion to withdraw his pleas of guilty. We affirm.

A few background facts will place the matter in focus. Vidakovich, a lawyer, was the owner of the Yellowstone State Bank in Lander, Wyoming. His wife, as well as two children, also had an interest in the bank. The bank had been closed by federal and state authorities on November 1, 1985, and thereafter had been the subject of a Grand Jury investigation for several years. On May 17, 1989, Vidakovich appeared under subpoena before the Grand Jury. Vidakovich, who had an attorney, testified most of that day before the Grand Jury. Negotiations between the government and Vidakovich and his attorney took place during the late afternoon and evening on May 17, 1989, and culminated in a plea bargain whereby Vidakovich appeared in district court the next morning, May 18, 1989, and pled guilty to the three-count information referred to above.

As indicated, after the Grand Jury adjourned on May 17, 1989, Vidakovich's counsel contacted government counsel to discuss the situation. Although there is some dispute as to the sequence of events, we will assume that the government indicated that it was preparing a multi-count indictment against Vidakovich and members of his family for bank fraud. Vidakovich's counsel indicated that a "deal" might be possible. After conferring with Vidakovich, his counsel indicated that he might be willing to plead guilty to one count. Government counsel indicated that Vidakovich would have to plead guilty to three counts.

At this juncture, it became apparent that any plea bargain must be conditioned on the government's promise not to pursue any additional claims against Vidakovich, any members of Vidakovich's family, or his former law partner. Counsel was advised that it would be unacceptable to the court, and to the government, if Vidakovich were to plead guilty simply to prevent his wife and children from being prosecuted. Vidakovich's attorney explained that Vidakovich would be pleading guilty only because he was in fact guilty, adding that any actions of his wife and children relating to their interest in the bank were at Vidakovich's direction. In any event, and disregarding who said what and when at these discussions, as an outgrowth of that meeting it was agreed that Vidakovich would plead guilty the next morning to a three-count information, and that the government would not seek a Grand Jury indictment against Vidakovich, his family, or his former law partner.

As indicated, on May 18, 1989, Vidakovich pled guilty to all counts in a three-count information and sentencing was delayed for a pre-sentencing investigation and report. The transcript of the hearing when Vidakovich pled guilty indicates that both counsel agreed that they, by their plea bargain, could not interfere with the discretion vested, by statute, in the district court in its imposition of sentence. The United States Attorney agreed that he would not request imposition of a fine, which would leave the matter to the district court. As concerns a restitution order, it is true, as counsel points out, that the district court inquired of the United States Attorney as to whether there are "going to be issues with regard to restitution...." The United States Attorney replied, "None that I'm aware of at this time...." The district court was then advised that the Federal Deposit Insurance Corporation had already filed civil suits against Vidakovich in state court "attempting to recoup through civil action." In response to this limited colloquy, the district court responded as follows:

It is my understanding with regard to the disposition in this case that the Court is not bound to any agreement and will independently make determination as to what is an appropriate disposition and sentence in this matter.

To the foregoing statement by the court, Vidakovich personally replied, "I understand that."

At the outset, we reject the suggestion that by filing a motion to require restitution to the Federal Deposit Insurance Corporation the government breached the plea bargain with Vidakovich. This line of argument is without merit for several reasons. The record before us contains a so-called "sworn statement" of Vidakovich, made during the plea bargaining process, wherein the government, in return for Vidakovich's pleading guilty to a three-count information, "promised" Vidakovich four things: (1) The government would not file any additional charges against Vidakovich based on his operation of Yellowstone State Bank; (2) the government would not file any charges against any member of Vidakovich's family based on their activities at the bank; (3) the government would recommend to the district court that Vidakovich be placed on a "signature bond" pending sentencing; and (4) the government would not file any criminal charges against any other officer or director of the bank, or John Pappas, Vidakovich's former law partner. After itemizing these promises, Vidakovich indicated quite clearly that these were the only promises made him by the government.

At the hearing on the following day, May 18, 1989, when Vidakovich pled guilty to the three-count information, the district court was advised of the terms of the plea bargain. There was colloquy between the court and counsel regarding a "fine" and "restitution." It was at that time that the United States Attorney agreed that as a part of the plea bargain he would not request a fine which, of course, would have left the matter to the discretion of the judge. ²

The colloquy between the court and counsel regarding restitution has been set forth above. It is true that in response to an inquiry by the court, the United States Attorney stated that "at this time" there apparently would be no issue regarding restitution since the Federal Deposit Insurance Corporation had already brought civil action against Vidakovich to recover monies misapplied by Vidakovich. Any possible misunderstanding by Vidakovich of the response made by the United States Attorney was immediately clarified by the district judge when he stated, in direct response to the restitution colloquy between the court and government counsel, that in imposing a sentence he was "not bound by any agreement" and that he would...