United States v. Voccola, Cr. 84-054-015

Decision Date23 January 1985
Docket NumberCr. 84-054-025.,No. Cr. 84-054-015,Cr. 84-054-015
Citation600 F. Supp. 1534
PartiesUNITED STATES of America v. Joseph VOCCOLA. UNITED STATES of America v. Pasquale MANOCCHIO.
CourtU.S. District Court — District of Rhode Island

Don O. Burley, Dept. of Justice, Washington, D.C., Lincoln C. Almond, U.S. Atty., Anthony C. DiGioia, Asst. U.S. Atty., Providence, R.I., for plaintiff.

McKenna, Greenwood & Feinstein, Kevin A. McKenna, Providence, R.I., for defendants.

Memorandum and Order

SELYA, District Judge.

Joseph Voccola and Pasquale Manocchio were charged with assorted violations of 15 U.S.C. §§ 1984, 1988(b), and 1990c in a fifteen count information filed by the United States Attorney for the District of Rhode Island on July 25, 1984. The essence of the charges (all misdemeanors) was that the defendants, as the operators of a proprietorship doing business under the name and style of "Granada Auto Sales," knowingly and wilfully (i) reset and altered odometers so as to reduce the mileage reflected thereon and (ii) prepared and delivered false odometer statements to purchasers of motor vehicles in making the written disclosures required by, inter alia, 49 C.F.R., Part 580. Each defendant pleaded not guilty to all charges on August 6, 1984.

Discussions thereupon ensued between the government attorneys, on the one hand, and the defense team, on the second hand. On September 4, 1984, the court counselled the defendants in open court concerning the risks inherent in their dual representation by a single attorney. See United States v. Martorano, 610 F.2d 36, 39 (1st Cir.1979); United States v. Donahue, 560 F.2d 1039, 1043-44 (1st Cir.1977); United States v. Foster, 469 F.2d 1, 5 (1st Cir. 1972). Each defendant acknowledged that he understood the potential hazards of joint representation, yet wished to proceed. Thereafter, pursuant to a stipulation of facts and a nonbinding plea agreement, Fed.R.Crim.P. 11(e)(1)(B), each defendant pled guilty to the same three counts of the information (counts 3, 6, and 11). The court, after ascertaining that the guilty pleas were freely, voluntarily, and knowingly made, and that they were platformed by an adequate factual underpinning, accepted the pleas and continued the cases for sentencing. (The plea agreements contemplated that sentencing would be deferred until at least December 1, 1984.)

While each defendant entered into a separate written plea agreement, the two are quite similar. Initially, each defendant agreed that an attached stipulation of facts accurately described his engagement in recycling odometers from 1979 forward. The substance of the agreements then detailed an exchange of promises between the parties. The bargains contained in each plea agreement which are central to the issues now sub judice are illustrated by the following excerpts from Voccola's contract:

* * * * * *
4. The defendant agrees to plead guilty to counts 3, 6, and 11 of the Information, and the government agrees (a) that at the time of sentencing, it will drop the remaining counts of the Information, and (b) that it will not prosecute the defendant for any activities set forth in the Stipulation other than the three counts to which the defendant is now agreeing to plead guilty....
* * * * * *
6. At the time of sentencing, the government will make no recommendation concerning what, if any, term of imprisonment should be imposed by the Court.
7. The government reserves the right to recommend to the Court whatever fine it deems appropriate in light of all relevant factors, including the nature of defendant's offenses, the defendant's cooperation, and the defendant's economic circumstances.
8. The government reserves the right, at sentencing or at any other time, to correct any misstatements or misrepresentations made by the defendant and to answer any inquiries of the Court.
9. The government may provide any relevant information it possesses to both the Court and the Probation Service.
* * * * * *
11. The defendant states that he understands that the maximum punishment for this offense is one year imprisonment or $50,000.00, or both, per count, and that the Court will be free to impose any sentence it deems appropriate up to the maximum allowed by law.
* * * * * *
16. The defendant and his attorney both state that this agreement constitutes the entire agreement between the defendant and the government and that no other promises or inducements have been made, directly or indirectly, by any Assistant United States Attorney, any attorney from the Department of Justice, or any other agent of the United States concerning any plea to be entered in this case....

Each plea contract was signed by the prosecutors, the defendant, and defense counsel. The parties did not purport to bind the court in regard to imposition of sentence. In view of the near-identity of the plea agreements, the court will sometimes, for each in reference, allude to Voccola's plea agreement (Agreement) only.

Following some procedural skirmishing anent the nature, scope, and contents of the presentence report (not directly material to this discussion), a sentencing hearing was conducted on January 3, 1985. After an extended allocution, the court sentenced Voccola to one year in prison on each of counts 3 and 11 (to be served concurrently); imposed a commited fine of $25,116 on count 3 as well1; and, as to count 6, sentenced him to one year in prison (consecutive to the sentences levied on counts 3 and 6), but suspended the imposition of that sentence in lieu of a three year probationary period. Manocchio received an almost consubstantial sentence. The principal difference was that the fine, as to him, was imposed on count 6, to be payable over the probationary period. Execution of sentence was stayed until February 4, 1985. All of the remaining counts of the information were dismissed.

On January 14, 1985, the defendants filed the instant joint motion to vacate the sentences imposed on January 3 and for resentencing before a new judge. The gist of the motion is the asseveration that the prosecutor, though giving lip service to his agreement to "make no recommendation concerning what, if any, term of imprisonment should be imposed," Agreement at ¶ 6, undercut the bargain by "clearly, if obliquely, indicating that the government felt a jail sentence was appropriate." Defendants' Memorandum at 6. The defendants had interposed no objection on this ground to the prosecuting attorney's summation at the time of sentencing. A hearing on the motion was commenced on January 18, 1985 and completed on January 22.2 Decision was reserved. As the gravamen of the motion is that the sentences were for this reason handed down in an illegal manner, the motion appears to be timely. Fed.R.Crim.P. 35(a).3

The yardstick by which the prosecutor's conduct must be measured is well defined. The Supreme Court has explicitly cautioned that principles of fundamental fairness must attend the implementation of a plea agreement:

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971).

The court's inquiry is one of objective fact, not of subjective intent: whether the plea agreement has been violated vel non. "That the breach of agreement was inadvertent does not lessen its impact." Id. And, it is irrelevant to the inquiry whether or not the sentencing judge was influenced in any degree by the prosecutor's comments. Id. at 262-63, 92 S.Ct. at 498-99; United States v. Brown, 500 F.2d 375, 377-78 (4th Cir.1974).4 It is likewise immaterial that, at the sentencing, the defendants were offered the opportunity to withdraw their guilty pleas, yet eschewed that course. If the prosecutor has strayed from the confines of the plea agreement, the defendants may well be entitled to specific performance of the bargain which they had struck, that is, resentencing before a different judge (but see note 2, ante) in a proceeding cleansed of the interdicted prosecutorial misconduct. Santobello, 404 U.S. at 263, 92 S.Ct. at 499; United States v. Corsentino, 685 F.2d 48, 52 & n. 2 (2d Cir.1982); United States v. Block, 660 F.2d 1086, 1090 (5th Cir.1981), cert. denied, 456 U.S. 907, 102 S.Ct. 1753, 72 L.Ed.2d 164 (1982); United States v. Shanahan, 574 F.2d 1228, 1231 (5th Cir. 1978). And, Santobello and its progeny proscribe not only explicit repudiation of the government's assurances, but must in the interests of fairness be read to forbid end-runs around them.

The defendants place primary reliance on United States v. Brown, supra, a decision by a divided panel of the Fourth Circuit. But, Brown is plainly distinguishable. There, the prosecution had agreed to make a particular recommendation — and did so; but the government immediately took away with the left hand what it had given with the right. After parroting the stipulated recommendation, the prosecutor informed the court that he had "some problems with it." Id., 500 F.2d at 377. The Brown majority noted that the defendant had a reasonable expectancy that a prearranged recommendation would be expressed to the sentencing judge "with some degree of advocacy," id., and that the standard was not met by what it termed the prosecutor's "halfheartedness." Id.

Unlike Brown, however, the case at bar was not one involving an affirmative suggestion. The government, as to incarceration, had agreed only to "make no recommendation concerning what, if any, term of imprisonment should be imposed." Agreement at ¶ 6. The prosecutor so noted, and did not at any...

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