United States v. Ammidown

• Decision Date: 16 November 1973
• Docket Number: No. 72-1694,72-1695.,72-1694
• Citation: 497 F.2d 615
• Parties: UNITED STATES of America v. Robert Louis AMMIDOWN, Appellant. UNITED STATES of America v. Robert L. AMMIDOWN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

497 F.2d 615 (1973)

UNITED STATES of America v. Robert Louis AMMIDOWN, Appellant.

UNITED STATES of America v. Robert L. AMMIDOWN, Appellant.

Nos. 72-1694, 72-1695.

United States Court of Appeals, District of Columbia Circuit.

Argued November 14, 1972.

Decided November 16, 1973.

Rehearing Denied May 10, 1974.

COPYRIGHT MATERIAL OMITTED

Albert J. Ahern, Jr., and Thomas W. Farquhar, Washington, D. C., were on the motion for appellant.

John J. Wilson, Washington, D. C., was on the motion as amicus curiae in support of the District Court.

Harold H. Titus, Jr., U. S. Atty., John A. Terry, and James E. Sharp, Asst. U. S. Attys., were on the motion for appellee.

Before BAZELON, Chief Judge, and TAMM and LEVENTHAL, Circuit Judges.

LEVENTHAL, Circuit Judge:

In this unusual case the trial judge rejected a plea bargain struck between the prosecution and the defense on the ground that the public interest required that the defendant be tried on a greater charge. Under the facts presented, we hold that the trial judge exceeded his discretion and accordingly reverse.

I.

In a case of extraordinary notoriety, Robert L. Ammidown was charged with first degree murder and conspiracy to commit murder in the death of his wife. Ammidown admitted that a month previous he arranged to have her murdered at a parking garage of a Virginia department store. At the last minute he changed his mind, because he did not want his son, who was to accompany his mother on that day, to witness the murder. Subsequently, according to his written confession, Ammidown and an associate, Richard Anthony Lee, devised a plan whereby Lee would abduct Mrs. Ammidown and by threat to her life extort a sum of money to be used by Ammidown and Lee to make the down payment for a club on the Eastern Shore of Maryland. The plan called for Ammidown to take his wife to dinner at the Flagship Restaurant in Southwest Washington. After dinner, as they were departing from the Flagship, Lee would halt Ammidown's car at a specified intersection near the restaurant.

And so it was done. In due course, and at the prearranged spot, Lee jumped into Ammidown's car and directed him to drive to the East Capitol Street Bridge, where Lee dragged Mrs. Ammidown from the car and raped her, as planned, to impress Mrs. Ammidown "with the seriousness of the threat."

What then happened was that Lee killed Mrs. Ammidown. Ammidown did not confess to complicity in the murder.

Just prior to trial, the United States Attorney and Ammidown entered into this agreement: Ammidown would plead guilty to second degree murder, and the first degree murder charge would be dismissed. There was no agreement for the prosecutor to recommend sentence less than the maximum, life imprisonment. Ammidown, then aged 49, had no possibility of being even considered for parole for 15 years. Ammidown agreed to testify in the grand jury proceedings and impending trial of Lee, a much younger man, who was believed by the prosecution to be involved in another murder.

The trial judge, however, refused to approve the agreement and accept the lesser plea. With full understanding of the prosecutor's concern with the importance of Ammidown's agreement in connection with its successful prosecution of Lee,¹ the court nonetheless decided that under Rule 11 of the Federal Rules of Criminal Procedure it had the discretion to refuse the plea when it found that the crime was so heinous and the evidence of guilt so overwhelming that the public interest would be ill-served by a judgment of second degree murder, which it referred to as a "tap on the wrist."² Appellant then pleaded not guilty to first degree and second degree murder; at trial he was convicted of first degree murder and felony murder and sentenced to two terms of life imprisonment, to run consecutively.

Appellant now asserts that the failure of the trial court to accept his proffered plea of guilty to second degree murder constituted reversible error, and asks this court to remand with instructions to enter a judgment of second degree murder. The Government has decided that it could not in good conscience oppose the appellant; consequently, the position of the trial judge has been ably presented by John J. Wilson, Esquire, who was appointed by this court as "amicus curiae for the purpose of filing a memorandum supporting the position taken by the district judge."

II.

Rule 11 of the Federal Rules of Criminal Procedure³ governs pleading in criminal cases; but we would err were we to circumscribe our inquiry so narrowly. Plea bargaining telescopes into one transaction three distinct stages of the criminal proceeding: plea to one charge; dismissal of a greater one; and sentencing. The formal plea of guilty is often the manifestation of assent to a bargain whereby a charge is dismissed, normally a matter almost exclusively within the discretion of the prosecutor, in order to secure for the defendant a less severe range of sentencing alternatives, normally the exclusive province of the judge. We begin our decision with a discussion of the responsibilities of judge and prosecutor in the component stages of the process.

A.

By its terms, Rule 11 deals with the moment when the accused stands before the judge to enter his plea. Although the rule provides that a trial court "may refuse to accept a plea of guilty," it fails to delineate the circumstance under which it may do so. The rule requires a court accepting a plea to determine whether it has been voluntarily tendered and whether there is a factual basis for the plea. Ordinarily the concern of Rule 11 is with the propriety of the waiver of the right to trial. See 1 Wright, Federal Practice and Procedure §§ 171-72 (1969). Much of the litigation surrounding guilty pleas bears on these and related questions. See, e. g., Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). One line of cases has concerned the freedom of the trial judge to prohibit the waiver of trial where the defendant has protested his innocence while proclaiming his readiness to plead. The Supreme Court has concluded that a plea tendered under these circumstances is valid where there is strong evidence of the defendant's guilt, North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Earlier rulings of lower courts had disagreed on the question whether the trial judge may refuse a plea in this situation. Compare Griffin v. United States, 132 U.S.App.D.C. 108, 405 F.2d 1378 (1968); with United States v. Bednarski, 445 F.2d 364 (1st Cir. 1971); McCoy v. United States, 124 U.S.App.D.C. 177, 363 F.2d 306 (1966).

There are no precedents on the problem before us, whether the plea, endorsed by the prosecutor, may nonetheless be rejected by the trial judge because of his conclusion that the defendant should be tried on the higher charge. Rule 11 and the existing case law seem to provide no guide, although one does find in the commentaries isolated phrases voicing the fear that the judge should not permit the plea bargain to become the means whereby the hardened criminal escapes justice.⁴ Neither is there any scholarly discussion of a conflict between the authority of the prosecutor and the trial judge to accept pleas to lesser included offenses in the interests of justice. Discussion of the roles of judge and prosecutor has most often concerned the area of dismissals of criminal indictments.

B.

The element in a plea bargain of dismissal of the charge of the greater offense leads us to consider Rule 48(a) of the Federal Rules of Criminal Procedure,⁵ which requires the prosecutor to obtain leave of court in order to terminate a prosecution by dismissal of an indictment. Rule 48(a) does not apply as such to the case at bar, but study of the judicial role in dismissals illuminates our course. As proposed by the Advisory Committee this provision would have adopted the common law rule that the power of the prosecutor to enter a nolle prosequi in a criminal case was unrestricted,⁶ and added only the requirement, prevalent in state practice, that the prosecutor state his reasons for seeking dismissals. See 3 Wright, Federal Practice and Procedure § 812 n.13 (1969). However, when this rule was promulgated by the Supreme Court in 1944, it substituted the requirement that dismissal be obtained only by leave of court. The Supreme Court did not state reasons for its action. The primary concern, at least as discerned by subsequent decisions of other federal courts, was that of protecting a defendant from harassment, through a prosecutor's charging, dismissing without having placed a defendant in jeopardy, and commencing another prosecution at a different time or place deemed more favorable to the prosecution.⁷ A similar concern had been voiced prior to Rule 48(a), in the rare instances when the prosecutor sought court sanction though not required by law, and on occasion courts prevented dismissals pregnant with the possibility of harassment.⁸

A distinctly different situation is presented when the defendant concurs in the dismissal but the court is concerned whether the action sufficiently protects the public. As to this, while there is a paucity of authority, some principles do emerge. First, Rule 48(a)'s requirement of judicial leave, theretofore known in state practice, gives the court a role in dismissals following indictment.⁹ Second, in the exercise of its responsibility, the court will not be content with a mere conclusory statement by the prosecutor that dismissal is in the public interest, but will require a statement of reasons and underlying factual basis.¹⁰ Third, the court does not have primary responsibility, but rather the role of guarding against abuse of prosecutorial discretion. The rule contemplates exposure of the reasons for dismissal "in order to prevent abuse of the uncontrolled power of dismissal previously enjoyed by...