U.S. v. Yasak

Decision Date06 September 1989
Docket NumberNo. 88-3474,88-3474
Citation884 F.2d 996
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph YASAK, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Thomas M. Durkin and Barbara F. Lazarus, Asst. U.S. Attys., Office of the U.S. Atty., Chris Gair, Chicago, Ill., for the U.S., plaintiff-appellee.

Sam Adam, Chicago, Ill., and Mark Martin, for Joseph Yasak, defendant-appellant.

Before WOOD, Jr., MANION and KANNE, Circuit Judges.

MANION, Circuit Judge.

Joseph A. Yasak was charged in a one-count information with knowingly making a false declaration regarding a material fact while testifying under oath before a grand jury. 18 U.S.C. Sec. 1623. 1 He moved under Fed.R.Crim.P. 12(b) to dismiss the information, claiming that, among other things, his responses to the grand jury's questions were literally true, and thus incapable of constituting perjury; that the grand jury's questions were "fundamentally ambiguous;" and finally, that the wording of the information improperly varied from the relevant grand jury testimony. The district court denied the motion, and Yasak entered a conditional guilty plea under Fed.R.Crim.P. 11(a)(2). We affirm.

I.

Yasak was subpoenaed to appear before the Special October 1983 Grand Jury as a witness in the government's Greylord investigation. Yasak was granted immunity in exchange for his testimony, but was warned that his immunity would not extend to a perjury prosecution. Yasak testified that he had been a Sergeant in the Chicago Police Department assigned, since approximately 1978, as the Supervisor of Traffic Tickets and Accountability in the Records section. The government suspected Yasak had been taking money from people with outstanding parking tickets and splitting it with someone in the City's corporation counsel's office. So far as is relevant here, two exchanges occurred in the grand jury session:

Q. Have you ever taken money from anyone, Mr. Yasak, in order to take care of someone's outstanding parking tickets?

A. [Yasak] In which way do you mean, by taking money?

Q. Have you ever received money from anyone in order to take care of their outstanding parking tickets?

A. Can I go outside and talk to Mr. Walsh [Yasak's attorney]?

Q. Of course you can. Get up and do it.

(Whereupon Yasak left the Grand Jury room to consult with his attorney, and upon his return resumed the witness stand and testified further as follows.) [Upon Yasak's request, the previous question was read by the court reporter.]

A. Yes, I have taken money, and I have turned it over to pay for their traffic citations, and have given it to the Corporation Counsel's Office, for them to pay for it.

* * *

* * *

Q. Do you have any ongoing relationship with anyone, where you accepted tickets from them?

A. What do you mean by ongoing relationship, a continuous thing?

Q. Yes, where it would happen more than once, that you received any benefits from it whatsoever.

A. I would never receive any benefits from any tickets that I would help people take care of.

Q. Not of any sort, not even money, no favors?

A. No, ma'am.

Q. Nothing?

A. No, ma'am.

Over three years later the government charged Yasak with perjury in a one-count information. The information charged that Yasak "knowingly made under oath a false declaration regarding a material fact before the Special October 1983 Grand Jury, in that he testified that he never received any money or benefits from anyone in return for having their parking tickets disposed of, when in fact [Yasak] then and there knew that he had received money and goods from various people and companies in return for disposing of their parking tickets."

Yasak moved to dismiss the information before trial, presenting a host of challenges. Fed.R.Crim.P. 12(b). Only his so-called "Bronston issue" 2 challenge is at issue here, though. Yasak argued his answers were literally true, if misleading; that the information did not track the grand jury testimony; and that the government's questions were "fundamentally ambiguous." The government opposed the motion, contending that, among other things, Yasak's literal truth challenge was a jury question, and thus unable to be resolved by a motion to dismiss. In connection with its argument, the government informed the district court that, at trial, it expected to offer evidence showing Yasak was lying to the grand jury. The government stated there was an assistant corporation counsel who would testify that he and Yasak "participated in a scheme to take money from people with multiple parking tickets and to split that money, with none of the money being turned over to the city for purposes of paying the fine."

The district court denied Yasak's motion. The court found no significant difference between the grand jury testimony and the language used in the information. It also rejected Yasak's contention that the government's questions were fundamentally ambiguous, holding that the questions could be reasonably understood, and that it was for a jury to decide whether Yasak's answers were false. Finally, concerning Yasak's assertion that his answers were literally true, the court held Yasak did

"not explain how [his] statement [was] literally true. There [was] no argument that payments were on occasion, legitimately relayed from him to the corporation counsel's office to the appropriate city employee to receive payment. Therefore, he was not telling the truth if whenever he forwarded a payment to a corporation counsel it was for the purpose of being kept by himself and/or the corporation counsel."

II.

We must first address a procedural problem before reaching the merits of Yasak's appeal. This appeal purports to be based on a conditional guilty plea entered pursuant to Fed.R.Crim.P. 11(a)(2). That rule provides in part that "[w]ith the approval of the court and the consent of the government, a defendant may enter a conditional plea of guilty ... reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified pretrial motions" (emphasis added). Here, there was no written reservation of Yasak's right to review the district court's denial of his motion to dismiss; however, all parties and the district court believed this was to be a conditional plea. On appeal, both the government and Yasak agree the plea was conditional, and argue that we may hear this appeal even without a written reservation of Yasak's right to appeal.

The requirement that the conditional plea put in writing a reservation of the right to appeal from a specified adverse pretrial motion is to ensure that careful attention will be paid to any conditional plea. Fed.R.Crim.P. 11, Notes of Advisory Committee on Rules, 1983 Amendment. It also identifies precisely what pretrial issues have been preserved for appellate review. Id. And the added step will further prevent entry of a conditional plea "without the considered acquiescence of the government." Id. Rule 11(a)(2), then, represents a departure from cases like United States v. Burke, 517 F.2d 377, 379 (2d Cir.1975), which held that the government's mere silence in the face of an expressed desire to conditionally plead guilty was sufficient to constitute its assent; now the rule requires "unequivocal government acquiescence." United States v. Carrasco, 786 F.2d 1452, 1454 n. 3 (9th Cir.1986). Finally, the rule ensures that conditional pleas will be allowed only when the appellate court's decision will completely dispose of the case. Notes of Advisory Committee, 1983 Amendment; see also United States v. Wong Ching Hing, 867 F.2d 754, 758 (2d Cir.1989).

When there is no special written reservation of the right to appeal, the parties' statements regarding the plea are ambiguous, and the government declines to assent to an appeal, there is not a valid conditional plea under Fed.R.Crim.P. 11(a)(2). Carrasco, 786 F.2d at 1454. See also United States v. Rinaldi, 808 F.2d 1579, 1582-83 n. 3 (D.C.Cir.1987); United States v. Echegoyen, 799 F.2d 1271, 1276 (9th Cir.1986). But although the Carrasco court characterized Rule 11's writing requirement as "jurisdictional," we think it is more in the nature of a right which can be waived; however, it only can be waived expressly. And it is exclusively within the government's power to waive it. Cf. United States v. Fisher, 772 F.2d 371, 374 (7th Cir.1985) (per curiam) (government can refuse to assent to a conditional plea for any reason or no reason; Rule 11(a)(2) creates no enforceable right to enter a conditional plea).

Even if the government assents to a conditional plea, however, a court need not accept the plea unless assured that the decision of the court of appeals will dispose of the case. U.S. v. Wong Ching Hing, 867 F.2d at 758. There, the defendant entered a conditional plea of guilty, reserving (though not in writing) the right to appeal the denial of his motion to suppress certain statements made to law enforcement officers. Despite the government's assent, the court of appeals held it was inappropriate for the government to have consented to the conditional plea, and for the district court to have accepted it, because it was unclear whether the court of appeals' holding would completely dispose of the case. Id. at 758. If it were to suppress only some of Wong's statements but not others, the court explained, it could not be sure whether its holding would allow Wong to withdraw his guilty plea--something Rule 11(a)(2) expressly provides for in the event a defendant successfully appeals. Fed.R.Crim.P. 11(a)(2) ("[a] defendant who prevails on appeal shall be allowed to withdraw the plea"). A written reservation of Wong's right to appeal could have cleared up the confusion. Thus, in the absence of a writing the court was constrained to vacate the district court's judgment.

Fortunately, in this case we face no such obstacles. While there is no special writing reserving...

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