
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 93-1083                              UNITED STATES OF AMERICA,                                      Appellant,                                          v.                                     DAVID WALSH,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                     [Hon. Francis J. Boyle, U.S. District Judge]                                             ___________________                                 ____________________        No. 93-1328                           IN RE UNITED STATES OF AMERICA,                                     Petitioner.                                 ____________________                          ON PETITION FOR A WRIT OF MANDAMUS                                 ____________________                                        Before                                 Stahl, Circuit Judge,                                        _____________                     Aldrich and Campbell, Senior Circuit Judges.                                           _____________________                                 ____________________            Ira Belkin, Assistant  United States Attorney, with whom  Margaret            __________                                                ________        E.  Curran, Assistant United  States Attorney, and  Lincoln C. Almond,        __________                                          _________________        United States Attorney, were on brief for appellant.            Susan M. Carlin with whom Stephen  R. Famiglietti and  Famiglietti            _______________           _______________________      ___________        & Carlin, Ltd. were on brief for appellee.        ______________                                 ____________________                                   October 27, 1993                                 ____________________                      ALDRICH, Senior Circuit Judge.  This case presents,                               ____________________            in the words of the  district court, an issue of  "very first            impression  under  the guidelines."    We  believe the  court            correct  as  to  uniqueness,  but  we  would  not  limit this            description to the guidelines.  Having initiated the vacation            of a negotiated  plea at  the time of  sentencing, the  court            nevertheless left defendant with  the benefit of his bargain,            viz.,  free  from  all   related  charges,  an  immunity  the            government  had granted  as consideration  for the plea.   We            concur  in  the  government's  unhappiness at  this  one  way            street.                      Defendant,  an  officer   of  a  mortgage  company,            allegedly  endorsed  a sizeable  check  so as  to  enable the            company  to receive  its  proceeds instead  of  paying off  a            customer's  mortgage.     The  government   investigated  the            possibility of   mail fraud and  other felonies, but,  before            seeking an indictment, discussed the matter with  defendant's            counsel.   In due course  a plea agreement  in customary form            was worked out and  executed.  Basically, defendant consented            to  an information  charging aiding  and abetting  bank fraud            being  filed to which he  would plead guilty,  and waived any            right to withdraw his plea, once entered; the government,  in            return,  would  recommend  a  low  sentence,  and  would  not            institute any additional  charges for defendant's "previously            disclosed criminal conduct  at Medcon Mortgage Corp."  In due                                         -2-            course, after a  comprehensive examination  of defendant  (16            pages of  transcript that  presented no problems),  the court            accepted  the plea.  Sentencing was twice deferred.  When the            time  came, the  court announced  that it  had read  the pre-            sentence report,  and that  on defendant's interpretation  of            the facts he  was not guilty, and  it would vacate the  plea.            The  government protested,  saying  that  its  interpretation            differed, but the  court was  adamant.  It  is common  ground            that  there  was no  bad faith  in  connection with  the plea            agreement, or any defect  or deficiency in the  acceptance of            the   plea.     Defendant,  however,  accepted   the  court's            suggestion and moved to vacate his plea.  The court did so.                      Whether this was unique -- we will not question the            court's right to vacate  a plea -- the procedure  and outcome            were  entirely so.  Upon the government's stating that on the            vacation of the  plea it would not  be prepared for  trial on            the information, and that it wanted to  go back to square one            and consider  presenting the other  matters to a  grand jury,            the  court responded  that  this would  not  be fair  to  the            defendant.     It  concluded  by  ordering   the  information                                         -3-            dismissed with  prejudice.1  The government  appeals, and, as            a precaution, also seeks mandamus.                      The  court  opened  the  hearing  saying  that   it            understood  the government  did  not  want  to stay  "in  the            position where you end,  but advancing that position somewhat            in  terms  of  possibly   making  more  charges  against  the            defendant."   The government replied that  if the defendant's            undertaking was  off,  so should  be the  government's.   The            court,  evidently troubled,2 responded  that because  of what            it,  the court, had done,  the defendant may  be facing other            charges "in  spite of  the government's prior  agreement with            him."  To the government's statement,                      All we're asking is  that the Court allow                      the government to go back to the position                      it was in before it filed the information                      in reliance upon the agreement.            the court said,                      The  government  made  a  bargain.    The                      defendant made a bargain.   They're going                      to carry it out.            On analysis "they" meant the government.                                            ____________________            1.  We  note in passing that the government at one point said            it  would  move to  dismiss  with  prejudice,  but on  timely            recognizing  that   this  would   be  a  procedural   --  and            substantive -- mistake,  did not do so,  but sought dismissal            without prejudice.  The proceedings were ultimately conducted            on this  later basis.  Defendant's brief  wastes time arguing            the initial non-event.            2.  "I must say the defendant certainly must be wondering how            this  could happen when he's done  nothing to precipitate it.            It's  what  I've   done  that  put  the  defendant   in  this            predicament."                                         -4-                      The court's  reasoning appears to be  that since it            was the  court's fault  that defendant was  in a  predicament            defendant should not  suffer; hence the government  must.  We            do not agree.  In the first place, it was  not, strictly, the            court's  fault.     Although  the  court   prompted  (to  use            defendant's term) him, it was defendant who moved to withdraw            his  plea,  in  violation of  his  agreement.3    He made  no            attempt to  do otherwise.  He could have.  A court may accept            a  plea even when the  defendant denies his  guilt but thinks            the  plea would  be  to his  advantage.   North  Carolina  v.                                                      _______________            Alford, 400 U.S. 25 (1970).  But quite apart from this, there            ______            was  no reason  why the  government, whose  actions had  been            above-board in every respect, should suffer.                      The government  is  rightly apprehensive  that  the            court  has established  a  flaw in  the whole  plea agreement            process.  Make  a routine, fair,  agreement under which  both            parties give up rights;  have it approved by the court  and a            plea entered after an extensive hearing and, suddenly, at the            sentencing  hearing,   the  court  volunteers  doubts  as  to            defendant's  guilt and  releases defendant's  obligation, but            retains  the government's.  Even  as to the  single charge in            the information the government is subject to the Speedy Trial                                            ____________________            3.  "6.  Defendant DAVID  WALSH waives any right that  he may            have to withdraw his plea to the Information once entered."                                         -5-            restrictions that would not have commenced  had it not, based            on defendant's agreement, filed the information.                      A  plea  agreement  is   a  contract,  and  if  the            defendant  violates it  the  government is  no longer  bound.            United  States v.  Gonzalez-Sanchez, 825  F.2d 572,  578 (1st            ______________     ________________            Cir.),  cert. denied sub nom., Latorre  v. United States, 484                    _____________________  _______     _____________            U.S. 989 (1987).   Nor should a court  choose to terminate it            on behalf of the defendant and yet  preserve the government's            obligation.   We can  scarcely accept defendant's  claim that            the government, in asking  for its release, was guilty  of an            "unjustified procedural maneuver" amounting to "prosecutorial            harassment."                      The  court  placed  the  government  in  a  further            difficulty.   If  it  accepted the  court's alternative  from            dismissal with prejudice by proceeding to try the information            and lost, there could  have been a danger of  double jeopardy            as  to  the  other  related  offenses.     United  States  v.                                                       ______________            Blockburger,  284 U.S. 299, 304  (1932).  On  the other hand,            ___________            while there appears to be no law on the point, dismissal with            prejudice  might raise  questions of  double jeopardy  or res                                                                      ___            judicata.   See United States v. Schaffner, 771 F.2d 149, 152            ________    ___ _____________    _________            (6th Cir. 1985).     Defendant   now    contends   that   the            government might  have tested  the court's statement  that it            was bound not to do so, by instituting grand jury proceedings            and  obtaining an indictment.   This would have involved many                                         -6-            resources,  and,  at  a  minimum,  in  view  of  the  court's            pronouncement, serious  criticism  and a  risk of  sanctions.            The suggestion  scarcely fits defendant's  lament below  that            not to dismiss with prejudice "unfairly prolongs the life  of            the cloud under which defendant and his family have existed."            Manifestly defendant's present  contention would have greatly            prolonged that cloud.                      We have  left jurisdiction to the  last because it,            in turn, may depend upon the answers to the questions we have            already  presented.    The  government  can  appeal  criminal            dismissals under 18 U.S.C.   3731 when they are "inextricably            intertwined"  with a  prior order.   E.g.,  United States  v.                                                 ____   _____________            Tane, 329 F.2d 848, 851-52 (2d Cir. 1964).  Defendant insists            ____            there is not such a relationship between the court's vacating            the  plea agreement  and  the dismissal  with prejudice.   We            would  question that.  In any event we believe the government            has  a right to object.   United States  v. Giannattasio, 979                                      _____________     ____________            F.2d 98 (7th Cir. 1992).                      It is ordered that the dismissal of the information            is  affirmed, but  changed to  without  prejudice, and  it is            further ordered  that the government's obligations  under the            plea agreement stand vacated.                                         -7-
