APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 77-288)
Before Aldisert and Higginbotham, Circuit Judges, and Stern, District Judge.*fn*
The major question presented for review is the finality, and therefore the appealability, of a conditional plea of guilty entered by the appellant and accepted by the district court. The government argues, curiously, that because the court erred in accepting the guilty plea, "this case should be remanded to the District Court with instructions that the defendant be afforded an opportunity to move to withdraw his guilty plea." Government Brief at 7. Alternatively, the government asks that we affirm the district court. We hold that because the sentence imposed on the conditional plea constituted a final order, we have jurisdiction. We further determine that the district court did not abuse its discretion in accepting the plea, and affirm on the merits.
Charged in a seven count indictment with mail fraud, 18 U.S.C. § 1341, arising out of claims submitted by him for fire insurance proceeds on property that he allegedly caused to be destroyed by fire, Sigmund Moskow sought by pre-trial motion to suppress certain government evidence. The district court denied the motion. Appellant then entered a plea of guilty to all counts of the indictment, admitting, for the purpose of the plea, his guilt of the offenses charged. But he conditioned the plea with a reservation of his right to appeal to this court, after sentence, the denial of the motion to suppress. Relying on the teachings of United States v. Zudick, 523 F.2d 848 (3d Cir. 1975), the district court accepted the guilty plea, over the objections of the government, and later sentenced the appellant. The appeal, we must emphasize, is taken from the final judgment of sentence.*fn1
In Lefkowitz v. Newsome, 420 U.S. 283, 95 S. Ct. 886, 43 L. Ed. 2d 196 (1975), the Supreme Court held that a plea of guilty did not foreclose federal habeas corpus review of specified constitutional issues where state procedures allowed a defendant to plead guilty without forfeiting his right to review those issues. Drawing upon Lefkowitz, Zudick held that it was permissible for a district court to allow a defendant to enter a plea of guilty although challenging the court's ruling that the prosecution was not barred by the statute of limitations. We noted that
the plea was not to preclude his appealing the statute of limitations issue; if appellate courts ruled that issue could not be presented on appeal following a guilty plea, appellant would be permitted to withdraw the plea; if the limitations issue were decided ultimately in the government's favor, the sentence would stand, and if the government ultimately lost on that issue, the indictment would be dismissed. We endorse this procedure.
Recognizing that our holding in Zudick would have precedential effect, we stated that "we endorse the use of the conditional guilty plea in appropriate circumstances." 523 F.2d at 852. Whether the facts of this case are "appropriate circumstances" is the question presented by the government. It urges us to distinguish between preserving those pre-trial decisions of law which absolutely preclude the possibility of a subsequent trial, as, for example, a Zudick statute of limitation question, and a pre-trial decision where reversal on appeal would permit the withdrawal of the guilty plea and a subsequent trial. It urges us to rule that "appropriate circumstances" are not present in the latter situations. The issue being squarely presented, we now address the facts.
Sigmund Moskow, a South Philadelphia real estate developer and landlord, was charged with seven counts of mail fraud. The indictment alleged that he had caused the destruction by fire of three of his properties and had fraudulently obtained insurance proceeds by misrepresenting his involvement in the fires to the insurance companies. The indictment also charged that he had devised the same scheme for a fourth property and had obtained insurance increases for the purpose of carrying out the scheme.
The fires in question were actually set by Edward Wadley, a co-conspirator and government witness. Wadley was arrested on March 26, 1977 while attempting to set a fire at 2546 South Second Street, Philadelphia, a Moskow-owned property. The government's evidence showed that this arson was attempted at the direction of Moskow, as part of the continuing insurance fraud.
Wadley was discovered shortly after 3:00 A.M., when Philadelphia police responded to the complaint of Robert Offord, a resident of 2548 South Second Street, who had reported hearing noises inside the vacant building next door. On arrival, the officers were advised by Offord that a padlock, which he had seen earlier that day, had been removed from the front door. The officers also detected a strong odor of gasoline coming from the property. After calling for a supervisor, and waiting for his arrival, the police entered the premises where they discovered Wadley in the basement crouched behind the stairs. They also discovered three empty gasoline cans and a disposable lighter, which were seized by a fire marshal.
After his arrest, Wadley told the police that he was in the building to commit a burglary. Yet recognizing the implausibility of this story, he soon confessed his attempt to burn the building and his complicity with Moskow.
Wadley was released on bail. During the first week of June, 1977, he was contacted by Moskow and asked if he would burn 624 Mifflin Street. He told Moskow he would do so, but instead, immediately contacted Detective Wayne McGlotten of the Philadelphia Police Department. McGlotten introduced him to agents of the Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms. Wadley agreed to contact Moskow and to allow conversations between himself and Moskow to be electronically recorded by a hidden monitoring device. As a result, three telephone calls and one meeting were recorded by government agents.
On the basis of the recorded conversations and Wadley's statements, a warrant was issued authorizing the search of Moskow's office. On June 10, 1977, Moskow was arrested and his office searched pursuant to that warrant. On June 20, government agents executed a second warrant which authorized them to inspect and photograph the property at 624 Mifflin Street. Additional evidence showed that Moskow had increased his insurance coverage on this property from $10,000 to $25,000 in May, 1977.
Moskow moved to suppress Wadley's testimony, claiming that Wadley's arrest was the result of an unlawful search. Moskow's motion to suppress also challenged the physical evidence taken from the building; the recorded conversations between himself and Wadley, on the grounds that the monitoring was not properly authorized by the Attorney General or his delegate and that Wadley's consent was involuntary; and evidence seized from Moskow's office, because the search warrant was procured on the basis of the prior illegal searches and recordings. After a hearing the district court denied the motion in all respects. As previously stated, Moskow then entered a guilty plea conditioned on his right to appeal the denial of his motion to suppress. United States v. Moskow, 443 F. Supp. 571 (E.D.Pa.1977).
Whether there be a generous or a grudging application of the Zudick rule requires an examination of its stated Ratio decidendi. There, our beginning point was a statement of faithful adherence to the general rule that a voluntary and intelligent guilty plea bars subsequent constitutional challenge to the proceedings. Tollett v. Henderson, 411 U.S. 258, 93 S. Ct. 1602, 36 L. Ed. 2d 235 (1973); Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970); McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970); Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970). We then drew upon Lefkowitz v. Newsome, supra, for authority that a defendant's federal constitutional rights could be vindicated when he had attached the preservation of these rights as a condition to the entry of his guilty plea in a state court. As Moskow has done, Newsome had entered a plea of guilty subject to the right to appeal "the denial of his motion to suppress the drugs and related paraphernalia seized at the time of his arrest." Id., 420 U.S. at 285, 95 S. Ct. at 887.*fn2 The court contrasted this type of plea with "the pleas entered by the defendants in the Brady trilogy of cases and Tollett v. Henderson," and observed that "Newsome's plea had legal consequences quite different from the consequences of the pleas entered in traditional guilty-plea cases. (*fn3 ) Far from precluding review of independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of his "guilty plea,' Newsome's plea carried with it the guarantee that judicial review of his constitutional claims would continue to be available to him. In this respect there is no meaningful difference between Newsome's conviction and a New York conviction entered after a trial." 420 U.S. at 290, 95 S. Ct. at 890, paraphrased in Zudick, supra, 523 F.2d at 852.
Although not presented in the context of a state case subject to federal collateral review as in Newsome, a similar issue was presented to us in United States v. D'Amato, 436 F.2d 52 (1970), wherein the defendant entered a guilty plea, reserving the right to challenge 18 U.S.C. § 1952 on the ground that the statute forming the basis of his indictment violated his right to due process as guaranteed by the Fifth Amendment. Without setting forth a statement of reasons, our court, in the Newsome formulation, obviously perceived "no meaningful difference between (D'Amato's) conviction and a (federal) conviction entered after a trial." 420 U.S. at 290, 95 S. Ct. at 890. In so doing, we were following the example of Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968).
Newsome and D'Amato constituted the precedential backdrop to our decision in Zudick, an appeal that presented a reserved point of statutory construction, rather than a question of constitutional law. Recognizing that distinction, we said:
The rule of Newsome obviously does not obtain here; however, the Court's policy rationale provides guidance on the propriety of conditional guilty pleas.
Such pleas fall within an exception to the Court's general rule that a voluntary and intelligent guilty plea bars subsequent constitutional challenge to the proceedings. The reasons for the exception are twofold: (1) in the case of a conditional guilty plea, the prosecution "acquires (no) legitimate expectation of finality in the conviction," Lefkowitz v. Newsome, supra, 420 U.S. at 289, 95 S. Ct. at 889; (2) the conditional plea procedure represents a "commendable (effort) to relieve the problem of congested criminal trial calendars in a manner that does not diminish the opportunity for the assertion of rights guaranteed by the Constitution." Ibid. at 293, 95 S. Ct. at 891. See also United States v. Doyle, 348 F.2d 715, 719 (2d Cir.) (Friendly, J., suggesting the use of conditional guilty pleas), Cert. denied, 382 U.S. 843, 86 S. Ct. 89, 15 L. Ed. 2d 84 (1965). Although the Newsome case dealt with the conditional plea in the context of a constitutional claim, we perceive no meaningful distinction between the policy in constitutional cases, E. g., D'Amato, supra, and the policy in cases, like this one, implicating the construction of statutes.
523 F.2d at 852 (footnote omitted).
It bears emphasis that in Zudick, we did not base our decision on a right of Zudick, constitutional or otherwise, to have the court accept his plea; at bottom, the decision was an approval of the district court's exercise of its broad discretion to ...