United States v. Mack

¶4HEANEY, Circuit Judge.

¶5This case involves David Stanley Mack’s attacks, pursuant to 28 U.S.C. § 2255, on the validity of a twenty-year sentence and $5,000 committed fine he received after he pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). The district court denied section 2255 relief. We affirm.

¶6Í

¶7After conducting plea negotiations, an Assistant United States Attorney, Mack and Mack’s retained counsel appeared before United States District Judge Edward J. Devitt on April 26, 1977. The parties proposed a plea bargain to Judge Devitt containing the following conditions: (1) Mack would plead guilty to one of the two bank robberies for which he was charged; (2) the government would recommend a nine-year prison sentence; (3) Mack would return the proceeds of the two bank robberies to the FBI, but it was expressly recognized that Mack did not want to reveal the location of the robberies’ proceeds until Mack was certain the judge would accept the plea bargain; (4) a presentence investigation would be conducted and a report made to the judge before his decision on whether to accept the plea; (5) if the judge accepted the plea, Mack would be interviewed prior to sentencing to ascertain the robbery proceeds’ location (Mack would also be obligated to take any necessary steps to relinquish possession of the robbery proceeds); and (6) Mack would be obligated to take a polygraph test to insure recovery of all the robbery proceeds.

¶8At the plea hearing, Judge Devitt stated that he would read the probation report before deciding whether to accept the plea agreement. The Assistant United States Attorney then asked Judge Devitt to notify the parties if a nine-year sentence was agreeable; if so, the government would “go about getting the money” and sentencing would follow. After an inquiry into the legal consequences of a guilty plea and the factual basis for the plea was conducted by the Assistant United States Attorney, Mack’s counsel questioned Mack: “And you will not disclose to me where the [robbery] funds are until after you determine whether the Court will accept the negotiated plea, is that correct?” Mack answered: “Right.” Mack also expressly recognized that Judge Devitt was free to accept or reject the proposal. Thereafter, the court questioned Mack as to the factual basis for his guilty plea and the terms of the proposed plea agreement. Judge Devitt issued a conditional acceptance of the guilty plea, subject to his reading the probation report and advising the lawyers of his decision. The matter was assigned to the probation office for presentence investigation.

¶9On May 23, 1977, Judge Devitt rejected the proposed plea agreement, essentially because he had previously sentenced Mack for bank robbery and felt nine years was too short of a prison term for Mack. Mack immediately expressed dissatisfaction with the court’s decision. After the court asked why Mack thought he was receiving a “bad deal,” Mack responded, “Well, it’s because I gave all the information that I was requested by the Court which was the money. Now that you got the money you turned around and say you are not accepting the plea.” It was then revealed that Mack had been interviewed by a probation officer and that during the interview, Mack disclosed the whereabouts of the robbery proceeds. Defense counsel commented that Mack was *845upset because he felt he fulfilled his part of the bargain. The Assistant United States Attorney responded that “the plea agreement was that the FBI was not going to interview” Mack until the court told the parties whether the plea bargain was acceptable; the government attorney noted that the FBI never interviewed Mack.1 After the circumstances of the probation interview were discussed, Judge Devitt stated that “it would be a travesty on [sic] justice to give you [Mack] only nine years after your record.” Mack’s defense counsel expressed dissatisfaction with the underlying events:

I think he felt that the request by the Probation Officer for this information was, in effect, a request from the Court. He felt obligated. He never consulted me. He felt obligated to disclose the whereabouts in keeping with his agreements and that is where the misunderstanding arose because technically he had agreed not to disclose these funds until after the Court indicated it was going to accept the plea and I think the record will bear that out.

So I know the Court is not all at fault at all, but I do understand Mr. Mack’s feelings. He felt he kept his end of the bargain, and now the Government is not keeping its end, and I have no answer to the dilemma, Your Honor.

¶10Judge Devitt stated he would assign the matter to another judge and adhered to his decision to reject the plea.

¶11The matter was referred to United States Senior District Judge Earl R. Larson and a hearing was held on July 6, 1977. At that time, Mack’s defense counsel told Judge Larson that Mack’s position was “substantially compromised by the events that led to the taking of the plea and his subsequent interviews.” Counsel further stated that Mack attempted in good faith to fulfill the plea bargain conditions imposed by the government, but the agreement was rejected.

¶12At a hearing held on July 7, 1977, Mack’s defense counsel repeated the circumstances detailed above and argued that Mack, as a result of his admissions to the parole officer, “lost all the leverage he had in his plea agreement” and “incriminated himself beyond rehabilitation.” Counsel asserted that Mack so seriously impaired his position that the damaging taint could not be avoided in his subsequent criminal trial. Therefore, counsel requested that Judge Larson accept the original plea agreement. Judge Larson responded that Judge Devitt had an absolute right to reject the plea agreement and that he could preclude the government from using any of Mack’s incriminating statements in the criminal trial.

¶13In a July 8, 1977, hearing, defense counsel, among other things, again asked the court to accept the original plea bargain. On July 11, 1977, however, Mack pled guilty — for a second time — to one count of bank robbery. This second guilty plea resulted from renewed discussions between the United States Attorney’s Office and Mack’s defense counsel. At the second guilty plea proceeding, Judge Larson stressed, and Mack expressed his understanding, that the court alone would determine the penalty to be assessed. Judge Larson extensively questioned Mack as to the factual basis for the guilty plea and Mack expressly conceded that the former nine-year plea agreement was no longer in effect. Thus, Mack clearly recognized that the court could choose to sentence Mack to a maximum twenty-year prison term plus a $5,000 fine. Judge Larson accepted the guilty plea and referred the case to the probation office for presentence investigation.

¶14On July 20, 1977, Judge Larson presided over Mack’s sentencing hearing. Defense counsel asked the court to consider the government’s earlier recommendation of a *846nine-year sentence and noted Mack’s disappointment with the previous plea proceedings. After a lengthy colloquy with Mack, Judge Larson imposed a twenty-year prison term plus a $5,000 committed fine.

¶15Mack filed a F.R.Crim.P. 35 motion which was denied in 1977, and he filed the instant 28 U.S.C. § 2255 action in May of 1980. After Judge Larson rejected the three grounds Mack raised in his section 2255 petition, Mack expressly abandoned one ground raised in his petition,2 and now presents two issues for consideration: (1) is Mack’s $5,000 committed fine unconstitutional because of his indigency; and (2) is Mack entitled to specific enforcement of the originally negotiated plea agreement?

¶16II

¶17Mack first argues that because he is indigent, his $5,000 committed fine is unconstitutional under the equal protection clause. He maintains that any incarceration beyond his normal release date solely because of a failure to pay his $5,000 fine is unconstitutional and that 18 U.S.C. § 3569 is unconstitutional on its face.3

¶18The government responds that the issue of whether Mack’s $5,000 committed fine is constitutional is not presently justiciable. The government maintains that Mack’s attack on his committed fine is unripe and merely hypothetical because Mack is not presently incarcerated solely because of his fine and because, under present administrative policies, Mack will never be detained solely for nonpayment of the $5,000 fine.

¶19The district court declined to reach this constitutional issue because the Bureau of Prisons has a formal Policy Statement that recognizes the unconstitutionality of 18 *847U.S.C. § 3569. The court noted that a joint policy statement of the Bureau and the Board of Parole provides a mechanism to ensure that no prisoner will remain incarcerated for a longer period solely because of his inability to pay a committed fine. It concluded that the government should be entitled to a presumption that these administrative regulations would be applied in good faith.

¶20Clearly, an indigent prisoner cannot be subjected to imprisonment for failure to pay a fine for a longer period of time than someone who has ability to pay the fine. United States v. Miller, 588 F.2d 1256, 1264 (9th Cir. 1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979) (citing Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970); and United States v. Estrada de Castillo, 549 F.2d 583 (9th Cir. 1976)).

¶21Therefore, to the extent that 18 U.S.C. § 3659could be applied to extend incarceration for thirty days beyond the normal release date, it is unconstitutional. See United States v. Estrada de Castillo, supra,549 F.2d at 584. However, present administrative policies will preclude an unconstitutional extension of any prison term. We assume these policies will continue to be applied in the future and decline to reach the constitutional issue Mack now presents. See United States v. Glazer, 532 F.2d 224, 230-231 (2d Cir.), cert. denied, 429 U.S. 844, 97 S.Ct. 123, 50 L.Ed.2d 115 (1976).

¶22Ill

¶23The Supreme Court has held that “when a [guilty] 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). It has also recognized that the “plea bargaining” process, during which an agreement between the accused and the prosecutor is consummated, must be conducted fairly. Id. at 261, 92 S.Ct. at 498.4 “There is no doubt that the essential terms of a plea bargain, once reached, must be honored by the prosecution.” United States v. McClintic, 570 F.2d 685, 692 (8th Cir. 1978) (citing Santo-bello) (emphasis added).. In addition to the Rule 11 requirements, this Court requires additional safeguards in the plea bargaining process:

(1) Prosecutors must avoid mischarging, overcharging and threats of heavier sentences for those who do not plead guilty.

(2) Judges are to require the agreement to be disclosed in open court at the time the plea is offered and require that the reasons for reaching the agreement be set forth in detail. (3) Judges are not to participate in the bargaining; their role is to be limited to acceptance or rejection of agreements after a thorough review of all relevant factors. They must independently satisfy themselves that acceptance of the agreement adequately protects the rights of the defendant and the interests of justice, and they must set forth their reasons for accepting or rejecting the plea. (4) Defendants must be given an opportunity to withdraw the plea if the bargain is rejected by the judge. In such event, evidence of the plea is not admissible in any civil or criminal proceeding against the person who made the plea or the offer.

¶24United States v. Gallington, 488 F.2d 637, 640 (8th Cir. 1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974) (emphasis added) (footnotes omitted). See also United States v. Williams, 627 F.2d 154, 157 (8th Cir. 1980) (citing Gallington, this Court stated that the district court’s role in plea bargaining is limited to accept-*848anee or rejection of the plea agreement). “The law is settled that breach of a plea bargain requires permitting the defendant to plead anew or demand specific performance.” United States v. Runck, 601 F.2d 968, 970 (8th Cir. 1979), cert. denied, 444 U.S. 1015, 100 S.Ct. 665, 62 L.Ed.2d 644 (1980).

¶25Here, the basic question is whether the mistake that allowed the probation officer to successfully question Mack as to the whereabouts of the robbery proceeds entitles Mack to specific performance of the original plea bargain. The district court recognized that the robbery proceeds interview was to be conducted only after acceptance of the plea agreement, but it declined to order specific performance. The court reasoned that Mack’s belief that the plea agreement had been accepted, thus prompting disclosure of the robbery proceeds’ whereabouts, was unreasonable. The court concluded: “Petitioner [Mack] could not have had a reasonable expectation [when the probation interview was conducted] … that the agreement had been accepted and his revealing the location of the stolen proceeds to the probation officer could not bind the judge to an acceptance of the initial plea agreement.”

¶26In our view, Mack had a reasonable expectation that the original plea agreement had been accepted, thus prompting disclosure of the robbery proceeds’ whereabouts to the probation officer. The district court’s finding to the contrary is simply not supported by the evidence. Because Mack’s expectations were reasonable, his revelations to the probation officer would not have been admissible had Mack chosen to go to trial on the robbery charges.

¶27We conclude, however, that the second guilty plea proceeding cured the difficulties that resulted from Mack’s premature revelations. In our view, it is significant that Mack pled guilty a second time after his protestations concerning the original plea proceedings were fully aired and rejected by the district court. At the second guilty plea hearing, Mack clearly expressed his understanding that the original plea agreement recommending nine years was no longer in effect. Mack also expressed his understanding that Judge Larson could sentence him to a maximum of twenty years and a $5,000 fine. As a result, the second guilty plea proceeding removed any prejudicial taint that arose from the previous plea proceedings. In addition, it is important that Mack does not allege, and the record does not indicate, that the prosecution acted in bad faith.

¶28In summary, we conclude that Mack’s constitutional attack on 18 U.S.C. § 3569 is not ripe and reject his request for specific performance of the original plea agreement. We accordingly affirm the district court’s denial of 28 U.S.C. § 2255 relief.