The opinion of the court was delivered by: BIUNNO
The proceedings began with an examination under oath, including explanations to Sarubbi, all as called for by F.R.Crim.P. 11(c) and (d). From this it appeared that while holding public office in North Bergen, Sarubbi terminated an existing engineering contract for sewers and arranged to award it to one Bernard Kenny and his company. This was done after Kenny had told Sarubbi that the latter would receive campaign contributions in cash. Under local law such contracts need not be advertised and awarded to the lowest bidder. Some of the contract payments went to a New York City firm, cash was generated from the checks, and then paid to Sarubbi by Kenny. Sarubbi admitted to having received $15,000 or $16,000 in this way.
Inquiry was also made, as called for by F.R.Crim.P. 11(e)(2) whether there had been any negotiations as to sentencing, and the court read from F.R.Crim.P. 11(e)(1), listing the 3 kinds of agreement authorized: type A, dismissal of other charges (not involved here); type B, agreeing to recommend, or agreeing not to oppose the defendant's request for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; type C, agreeing that a specific sentence is the appropriate disposition of the case.
The attorney for the government then disclosed that the agreement made was that if defendant pleaded guilty, it would, under B, not oppose any recommendation that defendant's attorney might make as to sentence, with the understanding that the request would not be binding on the court.
Defendant's attorney said that this was not the entire agreement, and that the other part was what his request of the court would be. Further colloquy brought out that he intended to request a non-custodial sentence, and that he had so informed the attorney for the government. It also developed that it is the policy of the U.S. Attorney in this district not to engage in sentence negotiations, or arrive at sentence agreements, beyond agreeing not to oppose whatever request for sentence the defendant wishes to make. This is one of the two kinds of type B agreements the rule authorizes. The policy does not allow making the other kind of type B agreement, namely, an agreement that the government will recommend a particular sentence, with the understanding that the recommendation shall not be binding upon the court.
Thus, the government's undertaking is satisfied, under this kind of type B agreement, when (1) the defendant makes his request to the court and (2) the government does not oppose it, as discussed in Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). A very recent case involving the other kind of type B agreement is U.S. v. Futeral, 530 F.2d 971 (CA-4, Decided November 19, 1975.) There, the government agreed to recommend a sentence of no more than one year. It did so recommend, but the judge imposed a sentence of three years. He then sought to withdraw his plea, and that was denied. On appeal, the ruling was affirmed on the ground that since defendant was fully aware of the risk he ran when he tendered his plea, there was no showing of a want of voluntariness in its submission.
Futeral was decided on the basis of the law before the present rule was adopted, and suggests that under the new rule, there is a right to withdraw a plea when there is a type C agreement and the terms are rejected, while under a type B agreement, where the defendant is clearly told that the recommendation (or request) is not binding upon the court, non-acceptance of the recommendation (or request) may not be a rejection of the bargain entitling defendant to withdrawal of the plea under Rule 11(e)(4). It did not have the question before it, and expressed no opinion on it.
He said he understood all of this, and still wished to plead guilty. The court is satisfied and finds that he did fully understand what was explained and that the plea was voluntary in all respects.
After approving the agreement and accepting the plea of guilty, the court began the process of imposing sentence. The court was aware of counsel's request for a non-custodial sentence, and counsel had nothing to say beyond what was in the presentence report. The court then addressed Sarubbi, pointing out that he had an independent right to speak up before the court decided what sentence should be, reminding him of the statutory maximums.
Counsel then interrupted to present argument that if sentence were other than as requested, there would be a right to withdraw the plea under Rule 11(e)(4) with which view the court disagreed. Counsel then moved for leave to withdraw the plea, and disposition was reserved to allow time for research and briefing, which has now been done.
The newness of the rule means that there are no reported cases on the point, other than the comment (not a ruling) in Futeral. Yet, the court is not without guides.
Campobello endorsed "plea bargaining" and, properly administered, encouraged it. It should be observed that in this district, it is the policy of the U.S. Attorney's Office to engage in plea negotiations, as distinguished from sentence negotiations. It will agree to accept a plea to one or two counts and to dismiss other counts, or other indictments, or not to bring other charges. It will agree to accept a plea to an information charging a ...