                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2008

Wilson Franco v. Chester Twp Pol Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5133




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                                                    NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 05-5133


       **KRISTEN SENKBEIL WILSON FRANCO,


                             v.


         CHESTER TOWNSHIP POLICE DEPT.;
        THE OFFICE OF DISTRICT ATTORNEY
             OF DELAWARE COUNTY

               Kristen Senkbeil Wilson-Franco;
                      *Frank J. Marcone;
                    *Joseph P. Caranci Jr.,

                                                Appellants

               * (Pursuant to F.R.A.P. 12(a))

       ** (Amended as per the Clerk's 5/22/06 Order)


        On Appeal from United States District Court
          for the District of Eastern Pennsylvania
                    D.C. No. 04-cv-01262
        District Judge: Honorable Thomas N O'Neill


        Submitted Under Third Circuit LAR 34.1(a)
                    January 8, 2008

Before: FISHER, HARDIMAN and ALDISERT, Circuit Judges.

                 (Filed: January 14, 2008)
                                OPINION OF THE COURT



HARDIMAN, Circuit Judge.

       Kristen Senkbeil Wilson-Franco (Wilson) appeals from the District Court’s denial

of her motion to repudiate a “release-dismissal agreement” she entered into with the

Office of the District Attorney of Delaware County. She is joined in this appeal by Frank

Marcone, Esq., who represented Wilson in her federal civil rights suit against Delaware

County, and who is seeking payment of his fees incurred therewith.

                                              I.

       Our review of the validity of Wilson’s release-dismissal agreement is plenary.

Cain v. Darby Borough, 7 F.3d 377, 379 (3d Cir. 1993) (en banc). We exercise plenary

review over the legal issues relating to the appropriate standard under which to evaluate

an application for attorney's fees, but review the reasonableness of a district court's denial

of attorney's fees for an abuse of discretion. County of Morris v. Nationalist Movement,

273 F.3d 527, 535 (3d Cir. 2001).

                                              II.

       Because we write for the parties, we repeat only the facts essential to our decision.

As part of a federal investigation into alleged criminal conduct by Wilson’s son, Chester

Township Police executed a search warrant on a motor home owned by Wilson. After

that search yielded trace quantities of methamphetamine, marijuana, drug paraphernalia,

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and two handguns, Wilson was charged with drug possession, carrying a firearm without

a license, and obstruction of justice. In addition, the officers impounded the motor home

and the District Attorney’s Office filed a motion for forfeiture.

       Wilson responded to the criminal charges and forfeiture motion by filing a federal

civil rights action in the District Court, alleging that the District Attorney’s Office and the

Chester Township Police Department conspired to press frivolous criminal charges in an

effort to acquire her motor home for their use at Philadelphia Eagles football games.

       On the day of her state court criminal trial, Wilson and the District Attorney’s

Office reached a written settlement under which the criminal charges would be withdrawn

in exchange for Wilson’s voluntary dismissal with prejudice of the federal civil rights

complaint. Wilson also waived her right to recover attorney’s fees. The settlement

agreement was drafted by the District Attorney’s Office, and Wilson’s criminal attorney

was permitted to review and suggest changes, as well as to discuss the agreement with

Wilson. Appellant Marcone also was informed of the agreement by Wilson’s criminal

attorney. The state court judge engaged Wilson in a thorough colloquy on the record,

during which the court repeatedly advised her that she was waiving any rights she had

with respect to the federal suit. Deputy District Attorney Katayoun Copeland approved

the settlement agreement after reviewing Wilson’s federal complaint, the police reports,

and the affidavit of probable cause, as well as speaking to the police officers who were to

testify. Although Copeland concluded that Wilson’s federal complaint was frivolous, she



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claims that she agreed to the settlement to avoid the waste of taxpayer dollars on

defending a meritless lawsuit filed by a relatively minor suspect in the investigation.

       Difficulties with the settlement arose, however, when Appellant Marcone refused

to sign papers that Wilson believed were necessary to dismiss the federal case.

Accordingly, Judge Cynthia Rufe of the U.S. District Court for the Eastern District of

Pennsylvania convened an emergency settlement conference with the parties and

counsel.1 According to attorney Marcone’s complaint, Judge Rufe opined that Wilson’s

civil rights claim appeared to have merit and expressed some disappointment that the

settlement did not provide for attorney’s fees. The gravamen of attorney Marcone’s

appeal is that Judge Rufe actually granted his petition for attorney’s fees.

       After meeting with Judge Rufe, Wilson moved to repudiate the settlement

agreement shortly after the settlement conference. The District Court denied both

Wilson’s motion and Marcone’s motion for attorney’s fees.



                                             III.

       “Release-dismissal” agreements such as the one at issue here, are constitutionally

permissible so long as they are executed voluntarily, free from prosecutorial misconduct,

and not offensive to the public interest. Town of Newton v. Rumery, 480 U.S. 386, 398

(1987). Relevant factors in evaluating whether a release is voluntary under Rumery may


       1
        Judge Rufe intervened only temporarily because Judge O’Neill — to whom
Wilson’s federal civil rights suit was assigned — was unavailable.

                                              4
include the knowledge and experience of the defendant, whether the defendant was

represented and whether the attorney drafted the agreement, whether the defendant is in

custody, and whether the defendant had time to consider the agreement. See Burke v.

Johnson, 167 F.3d 276, 279-80 (6th Cir. 1999). The prosecutorial misconduct and public

interest factors are considered together, Cain, 7 F.3d at 380, and require that the facts

known to the prosecutor at the time objectively support the proffered public interest to be

served by the agreement, and that the proffered public interest be the actual reason for the

agreement. Livingstone v. North Belle Vernon Borough, 91 F.3d 515, 527 (3d Cir. 1996).

       After reviewing the record, we are confident that the release-dismissal agreement

in this case satisfies the requirements of Rumery. Wilson was represented by competent

counsel who was permitted to review and alter the agreement and to consult with Wilson

concerning its implications. During the colloquy between Wilson and the state trial court,

Wilson was repeatedly advised that she was waiving her right to pursue her federal suit

and that she signed the agreement fully aware of its terms. Moreover, she is relatively

sophisticated with several years of college education, was not in custody at the time of her

trial, and had many months to become aware of the charges against her and to consult her

attorney. Finally, Deputy District Attorney Copeland appears to have conscientiously

reviewed Wilson’s case and determined that the public interest in prosecuting a minor

drug suspect was outweighed by the need to avoid the substantial financial and practical

burdens of defending a frivolous civil rights suit. We have held that avoiding the burden

of frivolous litigation is a legitimate public interest to be served by release-dismissal

                                              5
agreements, Cain, 7 F.3d at 381, and we find no evidence that the District Attorney’s

Office was motivated by any other concern.

       We are unpersuaded by Wilson’s assertion that she was unfairly compelled to

waive important constitutional rights by the specter of a lengthy prison sentence, a large

fine, and the loss of her motor home. As the Supreme Court emphasized in Rumery,

forcing criminal defendants to make difficult choices does not violate the Constitution,

Rumery, 480 U.S. at 393, and Wilson’s dilemma is no more coercive than those faced by

many other criminal defendants. We are equally unpersuaded by Wilson’s allegations of

prosecutorial misconduct. Her suggestion that the Defendants engaged in a conspiracy to

seize her motor home for their personal recreational use lacks support in the record. And

her assertion that she cannot be prosecuted for the contraband found in her own motor

home if she is not present at the time of the search is incorrect.

       Finally, we have little difficulty in affirming the District Court’s denial of attorney

Marcone’s petition for attorney’s fees. Marcone’s claim that Judge Rufe granted his fee

petition is simply inaccurate. As the District Court rightly pointed out, had Judge Rufe

granted his petition, the local rules would have permitted Judge O’Neill to modify the

order upon his return.

                                             IV.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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