United States v. Baylin

• Decision Date: 09 February 1982
• Docket Number: Crim. A. No. 81-22.
• Citation: 531 F. Supp. 741
• Parties: UNITED STATES of America, Plaintiff, v. Herbert BAYLIN, Defendant.
• Court: U.S. District Court — District of Delaware

531 F. Supp. 741

UNITED STATES of America, Plaintiff, v. Herbert BAYLIN, Defendant.

Crim. A. No. 81-22.

United States District Court, D. Delaware.

February 9, 1982.

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Irving Morris and Kevin Gross of Morris & Rosenthal, P. A., Wilmington, Del., and Thomas B. Carr of Miller, Cassidy, Larroca & Lewin, Washington, D. C., for defendant.

Joseph J. Farnan, Jr., U. S. Atty., and John X. Denney, Jr., Asst. U. S. Atty., Wilmington, Del., for plaintiff.

OPINION

LATCHUM, Chief Judge.

On May 20, 1981, Herbert Baylin entered a plea of guilty in this court to a one count information charging him with participating in the preparation of a false corporate income tax return, in violation of 26 U.S.C. § 7602(2). The guilty plea was entered pursuant to a plea agreement executed by Baylin and the United States on that same day. On July 22, 1981, Baylin was sentenced to a term of imprisonment of three years and a fine of $5,000, the maximum penalty allowed under law for the offense charged. Approximately three months after he was incarcerated, Baylin filed a motion for correction and reduction of sentence pursuant to Rule 35, F.R.Cr.P., or alternatively, for habeas corpus relief pursuant to 28 U.S.C. § 2255. The principal thrust of this motion is that: (1) the court which accepted Baylin's guilty plea failed to inform him of certain essential consequences of the plea; and (2) the sentencing court thereafter failed to implement fully the terms of the plea agreement, thus frustrating the sentencing expectations of Baylin, his counsel and the government. Accordingly, petitioner now seeks "specific performance" of the plea agreement as that document is interpreted by him, and requests the Court to reduce or correct his sentence in such a way that he will actually serve no longer than six months total in prison. For the reasons discussed in this opinion, the Court concludes that petitioner's motion will be denied, but that he will be given leave to amend his motion, if he so desires, to allege proper grounds for relief.¹

I. Facts

On May 20, 1981, the United States filed in this Court a one count information charging that the petitioner, Herbert Baylin, as President of the R. Baylin Company, participated in the preparation of a false corporate income tax return for fiscal year ending April 30, 1976, in violation of 26 U.S.C. § 7206(2). (Docket Item "D.I." 2.) The return had grossly overstated the business expenses of the corporation with the result that federal tax liability was understated by approximately $116,000. (Id.). In return for Baylin's plea of guilty to the information and full cooperation with the United States in certain investigations concerning the diversion of foreign shipments, the United States agreed that it would make no recommendation regarding sentencing and would not prosecute petitioner on two other charges of income tax evasion and several other offenses relating to the diversion of foreign shipments and the theft or receipt of stolen goods, for which petitioner was then under investigation. (D.I. 3.) In addition, at the insistence of Baylin's counsel and after extensive negotiations with the government, the following critical clause was inserted into the plea agreement:

3. Pursuant to Rule 11(e)(1)(C) of the Federal Rules of Criminal Procedure, in the event that the Court determines that a period of incarceration should be included in any sentence of the Defendant, then with respect to eligibility for parole:

(a) If the period of incarceration ordered by the Court is less than six months, the Court shall embody in its judgment and sentence a provision stating the period of incarceration that is appropriate;

(b) If the period of incarceration ordered by the Court is not less than six months but not more than one year, the Court shall embody in its judgment and sentence a provision under Title 18, United States Code, Section 4205(f) stating that the Defendant shall be released as if on parole after service of one-third of such period of incarceration notwithstanding the provisions of Title 18, United States Code, Section 4164; and

(c) If the period of incarceration ordered by the Court is more than one year, the Court shall embody in its judgment and sentence a provision under Title 18, United States Code, Section 4205(b)(2) stating that after incarceration, the Defendant shall be immediately eligible for release on parole and shall be released on parole at such time as the United States Parole Commission shall determine.

(D.I. 3 at 2-3) (emphasis added).

Petitioner contends that it was the understanding and intent of all the parties to the agreement that if he were sentenced to a period of incarceration for longer than one year, by virtue of Paragraph 3(c) above, he would not actually serve more than one-third of the sentence imposed in prison. (D.I. 17 at 15.) The government, on the other hand, maintains that Paragraph 3(c) only guaranteed immediate "eligibility" for parole and did not establish any entitlement to release by a date certain. (D.I. 20 at 4.)

On the same date that the information was filed, Baylin appeared before the Court and entered his guilty plea. Pursuant to Rule 11, F.R.Cr.P., the Court addressed the petitioner in open court and explained in depth the nature of the charge to which the plea was offered, the mandatory maximum penalty provided by law for the offense charged and the legal rights which petitioner would waive by pleading guilty. (D.I. 12 at 3-15.) Petitioner does not now claim that he was not adequately informed of, or failed to understand, any of the foregoing elements. The Court then asked Baylin's counsel to describe the salient points of the plea agreement. With respect to the parole provisions, the attorney stated:

There are also rather complex agreements with respect to the way in which the sentence will be imposed, the thrust of which is to enable Mr. Baylin to apply for probation or parole at the earliest possible moment in the event there is any period of incarceration imposed in this particular case.

(D.I. 12 at 16) (emphasis added).

Immediately thereafter, the Court closely questioned Baylin concerning his knowledge of the charges and the terms of the agreement, and engaged in the following colloquy:

The Court: Aside from the promises that have been related in the plea agreement and spelled out by Mr. Carpenter, have any other promises, agreements, representations, or understandings been made which are related in any way to your desire to plead guilty?

Baylin: No, your Honor.

The Court: Have any threats been made to you by anyone to induce you to plead guilty?

Baylin: No threats have been made, your Honor.

The Court: Do you believe that at this time it is already known what your sentence will be with respect to this offense if you should plead guilty?

Baylin: I have no idea what it will be.

The Court: There have been occasions in the past when people have come back to the Court and they have said that there were other items that were included in the plea agreement which were not mentioned at the proceeding where the plea was taken, and when asked why those other items or promises were not mentioned they have sometimes said, "Well, my lawyer said I shouldn't mention them" or "It was part of the agreement that they shouldn't be mentioned." This is not this case, is it?

Baylin: No, it is not, your Honor.

The Court: You have told me all there is to know about the plea agreement?

Baylin: I have.

The Court: Do you understand that you may not at some later time contend that any promise, representation, agreement, understanding or threat was made by anyone other than set forth today in open court?

Baylin: I do, your Honor.

(D.I. 12 at 18-19.) After further examination concerning the factual predicate underlying the offense, the Court concluded that Baylin's plea of guilty was voluntarily and intelligently made and the terms of the plea agreement were accepted. (D.I. 12 at 23.)

About July 8, 1981, two weeks prior to the sentencing date, Baylin received from his counsel a copy of the pre-sentence report prepared by the Probation Office. Included within the report was a parole prognosis formulated under the Parole Commission Guidelines ("Guidelines"), which identified a range of time to be served before release on parole in all likelihood would be granted if Baylin received a prison sentence. Under the Guidelines, the offense committed by a defendant is assigned a "severity" rating, ranging from "low" to "greatest II." Each defendant is then given a "salient factor score" between 0 and 11, which quantifies the offender's particular characteristics, i.e. the age at which the defendant committed the offense, his employment background, his criminal record, if any, his use of drugs, if any, and any previous parole revocations. The higher the offender's salient factor score, the more favorable the parole prognosis would be. Although Baylin's salient factor score, as calculated by the Probation Officer, was 11, because the offense severity was categorized as "very high" the pre-sentence report indicated that "based on the Parole Commission's guidelines, the defendant would serve between 24-36 months before being paroled."

In a letter to Baylin's counsel accompanying the pre-sentence report, the Probation Officer explained his application of the Guidelines to the facts of Baylin's case and stated that the probable period of confinement was computed to "give the sentencing Judge a general approximation of the amount of time the defendant may be required to serve before parole, in the event he is sentenced to a prison term in excess of the guidelines." (D.I. 17, ex. 6.) The officer cautioned Baylin's attorney, however, that the "guidelines are only guidelines," and that the assessment of time Baylin would remain confined under the Guidelines would rest with the Parole Commission and not with the preparer of the pre-sentence report. (Id.).

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