White v. United States

HARRIS, Associate Judge,

dissenting:

While it is axiomatic that the government has a duty to fulfill its promises in a plea bargain, I disagree with the majority’s conclusion that the government fell impermis-sibly short of the promise it made here. Accordingly, I respectfully dissent.

I

The pertinent portion of the bargain struck by appellant with the government contained the latter’s promise that it would “not oppose a substantial suspended sentence in lieu of incarceration and that [it] would not oppose a residential drug program.” After the court voiced its concern with appellant’s earlier attempts at rehabilitation and his subsequent returns to drug use, it asked counsel for appellant whether he had “considered that matter” and, if so, to respond thereto.1 Defense counsel stated that he could not guarantee appellant’s success in Second Genesis, but noted that the program is not “loosely run” and that, faced with a substantial prison term should he fail, appellant would be motivated to do well.

The court then requested comments from the prosecutor; obviously he had an obligation to respond. He first stated: “In view of the plea agreement, the Government does not oppose this drug rehabilitation program, if the Court so decided at sentence. However, the Government is concerned with what the Court said, that he has [gone] through so many programs.” When defense counsel objected, the prosecutor withdrew that last remark. He then proceeded *621to allocute further as quoted in the majority opinion.

I think it is obvious that the prosecutor’s remarks were addressed — and quite properly so — to the length of appellant’s suspended sentence, and did not constitute any attempt on the part of the government to induce incarceration in violation of the plea agreement. The prosecutor had stated explicitly that the government did not oppose probation with participation in a drug rehabilitation program. He then went on to address the second component of the plea agreement, namely, that the government would not oppose a substantial suspended sentence for appellant in lieu of incarceration. That these remarks were so perceived by appellant and his attorney is clear. Defense counsel neither objected to the prosecutor’s further comments — although, as noted, he had objected to the earlier remark — nor did he move to withdraw appellant’s guilty plea. It is utterly simplistic to conclude, as does the majority, that the trial court was incapable of comprehending that the prosecutor’s comments related to the length of appellant’s suspended sentence (that is, that the sentence should be substantial). The entire plea agreement was before the experienced and able trial judge; that judge should be credited with having the sense to have understood it.

II

With respect to the prosecutor’s objected-to (and expressly withdrawn) comment voicing concern with appellant’s past failures at drug rehabilitation, I cannot agree that the government’s promise not to oppose probation was thereby broken. The government did not promise to recommend a specific disposition. Otherwise, it might have been reasonable to expect that “the government would strongly recommend the agreed to sentence,” United States v. Grandinetti, 564 F.2d 723, 726 (5th Cir. 1977), and to so recommend “with some degree of advocacy.” United States v. Brown, 500 F.2d 375, 377 (4th Cir. 1974). Nor did the government promise not to oppose probation and then turn around and “argue[] strongly in opposition to” it, as occurred in United States v. Ewing, 480 F.2d 1141, 1142 (5th Cir. 1973). In a similar case, United States v. Crusco, 536 F.2d 21 (3d Cir. 1976), the prosecutor promised to take no position at sentencing in exchange for the defendant’s guilty plea. What he thereafter did was to portray the defendant “as a major figure in organized crime who would endanger the community if he were on the streets.” Id., at 26. The prosecutor’s comments thus “suggested the imprisonment of the defendant in the face of his broad commitment to take no position whatsoever.” United States v. Miller, 565 F.2d 1273, 1275 (3d Cir. 1977), cert. denied, 436 U.S. 959, 98 S.Ct. 3076, 57 L.Ed.2d 1125 (1978). In Miller, the court which had authored Crusco limited its application, noting the significant difference between promising to take no position at all, a promise which requires silence, and promising to make no recommendation while reserving the right to comment on the severity of the sentence — as occurred in the instant case. Said the court in Miller: “[T]he crucial holding of Crusco [is] that the Government will be held only to what it has promised.” Id. Here, the government explicitly stated to the court— in accord with its promise to appellant— that, in spite of its reservations, it did not oppose probation. The government’s expression of concern with appellant’s past failures at rehabilitation was in direct response to the trial court’s inquiry on the matter and merely echoed the concern which already had been expressed by the trial court and by counsel for appellant, and which later was conveyed by appellant himself. The prosecutor provided no information to the court which the court did not already have before it. The prosecutor did not argue in opposition to probation, and he had no affirmative obligation to argue in favor of it. By promising not to oppose a substantial suspended sentence, the government did not, as in Crusco, “g[i]ve up its right to fair comment as to the severity of the sentence.” Id. It was proper, therefore, to express concern over appellant’s willingness to cooperate in a drug rehabilitation program in an effort to induce the *622court to back up such a program with the possibility of a substantial prison term.

The trial judge carefully considered the exact arguments now advanced by appellant when she denied the motions to modify sentence. Her three-page written order stated in part:

4. The alleged breach of the plea agreement does not provide a basis for modification of the sentence.
a. Defendant was not promised a suspended sentence with a community-based drug program during the plea negotiations.
b. The remedy for a breach of plea agreement lies in 23 D.C.Code 110 (1973 Ed.), but the Court notes that:
(1) At the time the plea was taken on October 25, 1978, the only sentence representations were the Government’s agreement not to oppose a substantial suspended sentence with a residential drug program. Other allocution was reserved. Transcript of Proceedings, October 25, 1978.
(2) At the time of sentencing on December 6,1978, the Government did not have an affirmative obligation to recommend or support a suspended sentence with a drug program. Its only duty was not to oppose such a sentence. Cf., Snowden v. State, [33 Md.App. 659] 365 A.2d 321 (Md.Ct.Spec.App.1976).
(3)The Government did not violate the letter or the spirit of the plea agreement by stating factors unfavorable to defendant at allocution. The factors cited by the Government were objectively relevant to the length of the suspended sentence and would appear to be consistent with its agreement. Correale v. United States, 479 F.2d 944 (1st Cir. 1973).

So wrote the trial judge whom the majority appears to fear was influenced imper-missibly by the prosecutor’s remarks.2 I find reversal here to be both unwarranted and a pointless drain on limited judicial resources.3

. The presentence report which was before the trial court noted appellant’s multiple prior convictions and drug problems over a period of 25 years, and observed that he had “failed on previous NARA programs, and supervised releases of various kinds.” The report nonetheless recommended probation, with involvement in Second Genesis.

. My colleagues’ reliance upon out-of-context quotations from Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (ante at 618, n.2), is quite misplaced. In San-tobello, a prosecutor as part of a plea bargain “agreed to make no recommendation as to the sentence.” Id., at 258, 92 S.Ct. at 497. When sentencing occurred some time later, a successor prosecutor not only recommended the maximum imprisonment, but also “cited [Santobel-lo’s] criminal record and alleged links with organized crime." Id, at 259, 92 S.Ct. at 497. That, of course, is a far cry from what occurred in this case.

. There also is a practical concern on my part with the efficacy of the relief ordered by the majority. Whichever new judge is assigned this case for resentencing will be aware of the content of the court’s opinion, which, of course, includes the supposedly fatal remarks of the original prosecutor. Certainly it is not our role to put blinders on the trial court; equally certainly it is not our role to inhibit the trial court’s best exercise of its informed discretion in the sentencing process.