APPEAL FROM A JUDGMENT OF CONVICTION AND SENTENCE OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Criminal No. 74-447).
Gibbons and Garth, Circuit Judges, and Louis C. Bechtle, District Judge.*fn*
This appeal calls into question once again the propriety of a sentence imposed by a judge who, convinced that the defendant has lied, adds additional prison time to the defendant's sentence for that reason. In Poteet v. Fauver*fn1 decided May 7, 1975, this Court held that the sentencing judge may not add a penalty because he believes the defendant lied at the defendant's own trial. In United States v. Grayson,*fn2 that holding was reaffirmed. Because we are satisfied that the circumstances of Moriani's having been charged with lying at allocution during sentencing and as a witness at the trial of his codefendant, (rather than at his own trial) should yield no different result, we reverse as to the sentence imposed and remand for resentencing.
Moriani was indicted with others (including one George Murphy) on two counts of bank robbery under 18 U.S.C. §§ 2113(a) (Count 1) and 2113(d) (Count 2).*fn3 Subsequently, in connection with his guilty plea to Count 1, Moriani agreed to testify truthfully in the trial of his codefendant Murphy. In exchange, the government agreed to move for the dismissal of Count 2 when Moriani was sentenced, and also agreed to inform the sentencing judge of Moriani's cooperation in those cases involving his codefendants that still remained to be tried.
Moriani's plea proceeding was under oath*fn4 and was unexceptional, with the district court judge making the necessary inquiries to assure himself that Moriani's plea was voluntary. See F.R. Crim. P. 11. Moriani acknowledged the conditions specified by the government and that the offense to which he was pleading guilty carried a maximum prison term of 20 years.
After retracting his not guilty plea on March 20, 1975, but before his sentence was imposed, Moriani testified at the trial of George Murphy. Murphy was ultimately convicted on both counts.
Both Moriani and Murphy were sentenced on June 20, 1975. Moriani when asked at that time if any promises as to sentence had been made to him, responded:
"The prosecutor said they would make a recommendation for a very light sentence and it would be served at Lewisburg and you asked the prosecutor and that was verified."
The district court judge determined that Moriani's statement was at variance with the statements made at the plea proceedings and after citing various aspects of Moriani's involvement in the robbery and concluding that Moriani had lied both at Murphy's trial and during his own sentencing proceeding, sentenced Moriani to 20 years in prison.*fn5 This appeal followed.
Two briefs on appeal were filed in support of Moriani's position. A pro se brief filed by Moriani seeks "A three-judge constitutional court to convene and motion for interlocutory injunction and motion for a temporary restraining order . . .", ordering his release from confinement. That brief challenges the constitutionality of 18 U.S.C. § 2113,*fn6 asserting a lack of federal jurisdiction. Moriani in this brief argues that the Federal Deposit Insurance Corporation (FDIC) is a privately owned institution; that the FDIC insures depositors, not banks; that no federal law could be violated, unless and until, by reason of theft, the bank was rendered insolvent (a circumstance which would force the FDIC to make good on its depositors' accounts); and that therefore Congress lacks the power and means to legislate in this area. There is no merit to this argument. United States v. Allen, 458 F.2d 988 (3d Cir. 1972).
Moriani's counsel, on the other hand, by a brief which seeks resentencing, raises the following three points: (a) that the sentencing judge was prejudiced against Moriani by reason of Moriani's testimony in the case of United States v. Murphy ; (b) that the sentencing judge believed Moriani to be a liar and perjurer and improperly considered these factors in the imposition of Moriani's sentence; and (c) that the United States Attorney's Office failed to follow the plea bargain on the strength of which the appellant entered his plea of guilty.
All of the issues raised by Moriani center on three events: Moriani's plea proceeding (March 20, 1975); Moriani's appearance at the trial of his codefendant (April 17, 1975); and Moriani's sentencing (June 20, 1975).
At his plea proceeding on March 20, 1975, Moriani's counsel made the following representation:
We are prepared to come forward at this time and retract a previously entered plea of not guilty and at this time enter a plea of guilty to the first count of the indictment. Your Honor please, we are entering this plea on the strength of a conference that I had with the United States Attorney's office to the effect that at the time of sentencing the second count of the indictment would be dismissed. Also, Your Honor, that if there is any cooperation given by Mr. Moriani in any other cases that may remain, that would be made known to the Court. That is the extent of any kind of pre-negotiations that we had, Your Honor.
Moriani was then sworn. A routine and thorough plea proceeding followed. Then the following colloquy between the court and Moriani took place:
[THE COURT] Q. And are you aware of the fact that this [and is] an offense which carries with it a maximum penalty of 20 years imprisonment, a fine of $5,000 or both?
Q. Now, have any promises been made to you by your attorney or the United States Attorney or anybody at all as to what the sentence of the Court will be?
A. Just what was stated previously, that count 2 will be dropped and a recommendation will be made if I cooperate.
Q. Is that your sole understanding?
A. That is my sole understanding.
THE COURT: Mr. Carlamere, [Moriani's counsel] you have indicated that that is your version of the negotiations you have had ...