United States v. Bednarski, No. 7706.

• Decision Date: 22 July 1971
• Docket Number: No. 7706.
• Citation: 445 F.2d 364
• Parties: UNITED STATES of America, Appellee, v. I. James BEDNARSKI, Jr., Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

445 F.2d 364 (1971)

UNITED STATES of America, Appellee, v. I. James BEDNARSKI, Jr., Defendant, Appellant.

No. 7706.

United States Court of Appeals, First Circuit.

July 22, 1971.

Sebastian J. Ruggeri and Marguerite M. Dolan, Greenfield, Mass., on brief for appellant.

Herbert F. Travers, Jr., U. S. Atty. and Wayne B. Hollingsworth, Asst. U. S. Atty., on motion for summary disposition, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

The basic question in this case, whether a court may be required to accept a plea of guilty, calls for a rather detailed statement of the facts. The defendant, who operated a nursing home, was indicted on six counts for fraudulent income tax returns. After extensive discovery and pre-trial proceedings counsel notified the court that defendant was willing to plead guilty to count 5, the United States Attorney stating that upon such a plea he would dismiss the other counts. Pursuant to F.R.Crim.P. 11 the court addressed the defendant and inquired if any threats or promises had been made. He replied in the negative. In the light of the government's statement of its intent with regard to the other counts, this would seem a little less than accurate, but at least the inaccuracy was manifest. What was not manifest was that the government had privately said that it would recommend a one month sentence and a $1,000 fine — at least defendant so states in his brief. If that was true we cannot too strongly condemn all parties involved, the defendant, his counsel and the United States Attorney. Any attorney, knowing that a promise has been made, even in so relatively small an area as a recommended sentence, who allows, in silence, a defendant in effect to deny the fact to the court, must face disciplinary action.

Before any occasion for sentencing arose, however, the proceedings aborted. In the course of examining the defendant the court inquired whether he had knowingly understated his tax. Defendant denied knowledge of the falsity at the time of filing his return. Whether this was for tactical reasons bearing on his tax penalties does not appear, but when the court said it would not accept the plea in the face of the denial, defendant reasserted his lack of knowledge. Counsel made no protest. Thereafter defendant was tried and found guilty on all six counts. The court sentenced him to four months concurrent, on each, and imposed a $1,500. fine on each, a total of $9,000. So far as the fines are concerned, this was more than could have been imposed under count 5, so, quite apart from the four month versus possibly one month sentence, defendant is worse off than if his original plea had been accepted and the other counts had been dismissed. He appeals.

Defendant relies upon the principle most recently announced in North Carolina v. Alford, 1970, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162, that a court may accept a guilty plea if satisfied that there was strong evidence of guilt, even though the defendant, while offering to plead, denies that he was in fact guilty. We find nothing in Alford that obliges the court to accept a guilty plea merely because it was warranted in so doing. Indeed, in dicta the Court explicitly rejected such a proposition. 400 U.S. at 38 n. 11, 91 S.Ct. 160. See also Lynch v. Overholser, 1962, 369 U.S. 705, 719, 82 S.Ct. 1063, 8 L.Ed.2d 211. Nor do we find such a requirement in Rule 11.¹ The first portion is clearly "may," not "shall." The "shall" portion imposes a condition, for the protection of an ignorant defendant, see Advisory Committee Note, F.R.Crim.P. 11 (1966), not an obligation to accept the plea.

We see at least two reasons why the court must have discretion whether or not to accept a plea even though a strong case may be made as to its voluntariness. The first is that a conviction affects more than the court and the defendant; the public is involved. However legally sound the Alford principle, which of course we do not dispute, the public might well not understand or accept the fact that a defendant who denied his guilt was nonetheless placed in a position of pleading guilty and going to jail. Particularly may this be so in income tax cases.² A judge may properly not wish to put the court in the position of being an apparent partner to a circumstantial web woven by the Internal Revenue Service to fine and jail a person who has not been tried and who protests his innocence.

Defendant's view...