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    United States v. David Walsh, 1st Cir. (1993)

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    This case concerns a defendant who pleaded guilty pursuant to a plea agreement but later moved to withdraw his plea at sentencing. The district court vacated the plea over the government's objection, but dismissed the information with prejudice, preserving the defendant's benefit from the agreement while releasing the government's obligations. The appeals court found that this was unfair to the government and established a problematic precedent. It affirmed the dismissal but changed it to without prejudice, vacating the government's obligations under the plea agreement.

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    Public Domain
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    United States v. David Walsh, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    70 views10 pages
    This case concerns a defendant who pleaded guilty pursuant to a plea agreement but later moved to withdraw his plea at sentencing. The district court vacated the plea over the government's objection, but dismissed the information with prejudice, preserving the defendant's benefit from the agreement while releasing the government's obligations. The appeals court found that this was unfair to the government and established a problematic precedent. It affirmed the dismissal but changed it to without prejudice, vacating the government's obligations under the plea agreement.

    Original Description:

    Filed: 1993-10-27 Precedential Status: Precedential Docket: 93-1083

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    This case concerns a defendant who pleaded guilty pursuant to a plea agreement but later moved to withdraw his plea at sentencing. The district court vacated the plea over the government's objection, but dismissed the information with prejudice, preserving the defendant's benefit from the agreement while releasing the government's obligations. The appeals court found that this was unfair to the government and established a problematic precedent. It affirmed the dismissal but changed it to without prejudice, vacating the government's obligations under the plea agreement.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    70 views10 pages

    United States v. David Walsh, 1st Cir. (1993)

    Uploaded by

    Scribd Government Docs
    This case concerns a defendant who pleaded guilty pursuant to a plea agreement but later moved to withdraw his plea at sentencing. The district court vacated the plea over the government's objection, but dismissed the information with prejudice, preserving the defendant's benefit from the agreement while releasing the government's obligations. The appeals court found that this was unfair to the government and established a problematic precedent. It affirmed the dismissal but changed it to without prejudice, vacating the government's obligations under the plea agreement.

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    of 10

    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 Marga


    __________
    _____
    E. Curran, Assistant United States Attorney, and Lincoln C. Almo
    __________
    _______________
    United States Attorney, were on brief for appellant.
    Susan M. Carlin with whom Stephen R. Famiglietti and Famiglie
    _______________
    _______________________
    ________
    & Carlin, Ltd. were on brief for appellee.
    ______________
    ____________________
    October 27, 1993
    ____________________

    ALDRICH, Senior Circuit Judge.


    ____________________
    in the words of the
    impression
    correct

    as

    under
    to

    district court, an issue of


    the guidelines."

    uniqueness,

    but

    description to the guidelines.


    of a negotiated

    This case presents,

    plea at

    We
    we

    "very first

    believe the

    would

    not

    court

    limit this

    Having initiated the vacation

    the time of

    sentencing, the

    court

    nevertheless left defendant with

    the benefit of his bargain,

    viz.,

    charges,

    free

    government

    from

    all

    had granted

    related

    as consideration

    an

    immunity

    the

    for the plea.

    We

    concur

    in

    the

    government's

    unhappiness at

    this

    one

    way

    street.
    Defendant,
    allegedly
    company

    an

    endorsed

    a sizeable

    to receive

    customer's

    its

    mortgage.

    possibility of

    officer

    of
    check

    mortgage

    so as

    to

    of

    The

    investigated

    government

    mail fraud and

    In due course

    paying off

    other felonies, but,

    a plea agreement

    was worked out and

    executed.

    to

    charging aiding

    an information

    being

    filed to which he

    enable the

    proceeds instead

    seeking an indictment, discussed the matter with


    counsel.

    company,

    would

    recommend

    defendant's

    in customary form

    Basically, defendant consented


    and abetting

    would plead guilty,

    institute any additional


    disclosed criminal conduct

    the

    before

    bank fraud

    and waived any

    right to withdraw his plea, once entered; the government,


    return,

    low

    sentence,

    and

    would

    in
    not

    charges for defendant's "previously


    at Medcon Mortgage Corp."

    In due

    -2-

    course, after a
    pages of

    comprehensive examination

    transcript that

    of defendant

    presented no problems),

    (16

    the court

    accepted
    time

    the plea.

    came, the

    court announced

    sentence report,
    the facts he
    The

    and that

    the

    plea.

    that

    adamant.

    bad faith

    agreement, or any defect

    the pre-

    it would vacate the

    saying

    court was

    was no

    had read

    When the

    on defendant's interpretation

    government protested,

    there

    that it

    was not guilty, and

    differed, but the


    that

    Sentencing was twice deferred.

    in

    its
    It

    is common

    connection with

    however,

    accepted

    suggestion and moved to vacate his plea.

    plea.

    interpretation

    or deficiency in the

    Defendant,

    of

    ground
    the plea

    acceptance of
    the

    court's

    The court did so.

    Whether this was unique -- we will not question the


    court's right to vacate
    were

    entirely so.

    vacation of the

    a plea -- the procedure

    Upon the government's stating that on the

    plea it would not

    be prepared for

    the information, and that it wanted to


    and consider
    the

    presenting the other

    court responded

    defendant.

    It

    and outcome

    that

    concluded

    by

    -3-

    go back to square one

    matters to a

    this would

    trial on

    not

    ordering

    grand jury,

    be fair
    the

    to

    the

    information

    dismissed with

    prejudice.1

    The government

    appeals, and, as

    a precaution, also seeks mandamus.


    The
    understood

    court

    opened

    the government

    position where you end,


    in

    terms

    of

    defendant."

    it,

    not

    want

    making

    more

    off,

    so should

    the court, had done,


    spite of

    saying

    that

    it

    to stay

    "in

    the

    charges

    The government replied that


    be the

    evidently troubled,2 responded

    charges "in
    him."

    did

    hearing

    but advancing that position somewhat

    possibly

    undertaking was
    court,

    the

    against

    the

    if the defendant's
    government's.

    that because

    the defendant may

    the government's prior

    The

    of what

    be facing other
    agreement with

    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
    was the

    court's fault

    defendant should not


    do not agree.
    court's

    reasoning appears to be
    that defendant was

    in a

    predicament

    suffer; hence the government

    In the first place, it was

    fault.

    that since it

    Although

    the

    must.

    We

    not, strictly, the

    court

    prompted

    (to

    use

    defendant's term) him, it was defendant who moved to withdraw


    his

    plea,

    attempt to
    a
    the

    in

    violation of

    do otherwise.

    plea even when the


    plea would

    be

    no reason

    agreement.3

    He could have.

    to his

    why the

    advantage.

    He made

    no

    A court may accept

    defendant denies his

    Alford, 400 U.S. 25 (1970).


    ______
    was

    his

    guilt but thinks

    North Carolina
    _______________

    v.

    But quite apart from this, there

    government, whose

    actions had

    been

    above-board in every respect, should suffer.


    The government

    is

    rightly apprehensive

    that

    the

    court

    has established

    process.

    Make

    flaw in

    a routine, fair,

    parties give up rights;

    the whole

    plea agreement

    agreement under which

    both

    have it approved by the court

    and a

    plea entered after an extensive hearing and, suddenly, at the


    sentencing

    hearing,

    defendant's
    retains

    guilt and

    the

    court

    volunteers

    releases defendant's

    the government's.

    Even

    as to the

    doubts

    as

    to

    obligation, but
    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
    defendant

    plea

    violates it

    United States v.
    ______________
    Cir.),

    agreement
    the

    is

    contract,

    government is

    Gonzalez-Sanchez, 825
    ________________

    cert. denied sub nom., Latorre

    and

    no longer
    F.2d 572,

    if

    the

    bound.
    578 (1st

    v. United States, 484

    _____________________
    U.S. 989 (1987).

    _______

    Nor should a court

    on behalf of the defendant and yet


    obligation.

    We can

    _____________
    choose to terminate it

    preserve the government's

    scarcely accept defendant's

    the government, in asking

    claim that

    for its release, was guilty

    of an

    "unjustified procedural maneuver" amounting to "prosecutorial


    harassment."
    The
    difficulty.

    court
    If

    placed

    it

    the

    government

    accepted the

    in

    further

    court's alternative

    from

    dismissal with prejudice by proceeding to try the information


    and lost, there could
    as

    to

    the

    other

    Blockburger,
    ___________

    have been a danger of

    related

    offenses.

    284 U.S. 299, 304

    double jeopardy

    United States
    ______________

    (1932).

    On

    v.

    the other hand,

    while there appears to be no law on the point, dismissal with


    prejudice
    judicata.
    ________

    might raise

    questions of

    double jeopardy

    or res
    ___

    See United States v. Schaffner, 771 F.2d 149, 152


    ___ _____________
    _________

    (6th Cir. 1985).


    government might

    Defendant
    have tested

    now

    contends

    that

    the court's statement

    the

    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

    minimum,

    pronouncement, serious
    The suggestion

    criticism

    in

    view

    and a

    of

    the

    risk of

    scarcely fits defendant's

    court's

    sanctions.

    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

    dismissals under 18 U.S.C.


    intertwined"

    with a

    can

    appeal

    criminal

    3731 when they are "inextricably

    prior order.

    E.g.,
    ____

    Tane, 329 F.2d 848, 851-52 (2d Cir. 1964).


    ____

    United States
    _____________

    v.

    Defendant insists

    there is not such a relationship between the court's vacating


    the

    plea agreement

    would
    has

    and

    question that.

    the dismissal

    with prejudice.

    We

    In any event we believe the government

    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

    further ordered

    changed to

    without

    prejudice, and

    that the government's obligations

    plea agreement stand vacated.

    it is

    under the

    -7-

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