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September 10, 1979

Robert FISCHETTI, Louis Pascalli, William David, and Frank La Guardia, Defendants.

The opinion of the court was delivered by: BIUNNO


Despite the elaborate colloquy at the hearing of September 6, 1979, the court was left with the impression that neither the United States nor defense counsel fully understands the legal aspects and implications of the subject discussed. This memorandum is designed to assure that these matters are fully understood.

 The applicable history begins with Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), a case arising out of the New York courts.

 Santobello had been indicted on two felony counts involving gambling in the first degree, and not guilty pleas were entered. After negotiation, the State agreed to allow Santobello to plead guilty to a lesser-included second degree charge which carried a maximum sentence of one year. "The prosecutor agreed to make no recommendation as to the sentence," 404 U.S. at 258, 92 S. Ct. at 497. Plea was accepted and a sentence date was set.

 After motions to withdraw the plea, to renew a withdrawn suppression motion and to inspect Grand Jury minutes were denied, Santobello appeared for sentence. A different prosecutor, unaware of the earlier agreement, recommended the maximum one-year sentence and gave his reasons. The defense objected and sought adjournment to provide proof of the agreement. The court (not the same judge who took the plea) denied the adjournment, stating that it was not at all influenced by the recommendation and proceeded to impose a one-year sentence on the basis of the highly adverse data in the presentence report. The Appellate Division affirmed, and the Court of Appeals denied leave to appeal. The Supreme Court granted certiorari.

 Rather, the court felt that the importance of allowing and encouraging guilty pleas, whether negotiated or not, as an essential tool for judicial administration, required that they be obtained in complete fairness. Otherwise, serious problems of the right to counsel under the Sixth Amendment, and of the right to due process under the Fifth Amendment, would be implicated. To have such problems arise is to frustrate the underlying purpose of allowing and encouraging fair plea agreements. Since a State conviction was involved, the decision necessarily rested on these constitutional grounds, applied to the State through the Fourteenth Amendment.

 The judgment was vacated, and the case remanded so that the state court might consider whether the plea agreement should be specifically enforced by resentence before a different judge, or whether defendant should be allowed to withdraw his plea and stand trial on the original indictment.

 It should be observed that Santobello was decided a year later than North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). In that case the court sustained the constitutional validity of a plea of guilty to a reduced charge of second degree murder, despite defendant's protestations of innocence, when the record showed that defendant intelligently concluded that his interests would be advanced by the plea, and that there was strong evidence of actual guilt.

 Alford did not hold that a defendant has a right to enter a guilty plea to less than that with which he is charged, merely because it was in his interest to reduce the peril of a more severe sentence. It ruled only that when it was clearly in his interest to do so, and when the trial record showed the existence of strong evidence of guilt, there was no constitutional defect in accepting the plea despite defendant's protestation of innocence. Obviously, the trial court could have rejected the plea and put defendant to trial.

 It should be noted at this point that at the time of Santobello, F.R.Crim.P. 11 (referred to by the Santobello court) was silent on the subject of plea agreements. The provisions of the then Rule 11 are now found in Rule 11(a), (b) and part of (d) and (f). All of Rule 11(c), most of Rule 11(d), all of Rule 11(e) and part of Rule 11(f), were added by the 1975 amendments, Pub.L. 94-64, § 3(5) to (10).

 The first decision reported after these changes was U.S. v. Futeral, 539 F.2d 329 (CA-4, 1975). Futeral was indicted for conspiracy to distribute cocaine and possession with intent to distribute. A plea agreement was made. Its terms called for filing of a superceding information charging unlawful use of a telephone in aid of the distribution of cocaine, 21 U.S.C. § 843(b). It called for him to plead guilty to that information. It called for dismissal of the original indictment. It called for a recommendation by the United States that if an active prison sentence was to be imposed, it be for not more than one year.

 Before the plea was tendered, Futeral was informed by his attorney that the prosecutor's recommendation was not binding on the judge, although in 80% To 90% Of such cases, the recommendation was accepted. At the plea, the court informed Futeral that the recommendation was not binding, and that he could impose any sentence up to the maximum. Futeral said he understood this. The plea was then accepted with no indication of accepting or rejecting the recommendation.

 At the later sentence hearing, despite the recommendation, the court imposed a three year sentence with early parole eligibility under former section 18 U.S.C. § 4208(a)(2) (Now 18 U.S.C. § 4205(b)(2)). After denial of motions to reduce sentence (F.R.Crim.P. 35) and for ...

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