decided as amended november 23 1981.: January 19, 1981.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before Gibbons and Weis, Circuit Judges and Whipple, District Judge.*fn*
We review on this appeal the order of the district court denying appellant Hecht's motion to dismiss his indictment on four counts of federal income tax evasion as barred by the double jeopardy clause of the Fifth Amendment. This case raises two major issues: first, when circumstances justify the vacation of a guilty plea, and second, the impact of the double jeopardy clause on the prosecution of a case once a guilty plea has been accepted. Jurisdiction is premised on 28 U.S.C. § 1291.
Appellant John Hecht was indicted on February 5, 1980, by a federal grand jury sitting in the Western District of Pennsylvania on four counts of federal income tax evasion in violation of 26 U.S.C. § 7201.*fn1
On March 27, 1980, appellant appeared before Judge Teitlebaum, retracted his initial plea of not guilty, and entered a plea of guilty to Count II in return for the promise of the Government prosecutor to dismiss Counts I, III and IV after sentencing.
Sentencing was scheduled for April 24, 1980. At that time, appellant, as well as three character witnesses, testified in an effort to mitigate the sentence to be imposed. In response, Assistant United States Attorney Daley, who represented the Government, put Manuel Gonzalez, a Special Agent for the Internal Revenue Service, on the witness stand. At the close of this testimony Judge Teitlebaum engaged in an off-the-record conference with Hecht's probation officer. The judge then expressed doubt as to whether there was a sufficient factual basis for the plea on the record, and consequently directed that appellant's guilty plea be vacated and the case set for trial on all four counts. Both parties objected.
Prior to trial, appellant moved before Judge Bloch for dismissal of all four counts of the indictment.*fn2 Appellant argued that a trial on Count II would violate his rights under the double jeopardy clause of the Fifth Amendment because jeopardy had attached when the guilty plea was initially accepted by the trial court. Appellant also contended that pursuant to the plea agreement the remaining counts should have been dismissed when he appeared for sentencing before Judge Teitlebaum. Judge Bloch, however, found that appellant had in essence withdrawn his guilty plea at the sentencing proceeding, and thereby removed the jeopardy on Count II himself. Moreover, the judge found that because Hecht had broken his bargain with the government, the government was no longer bound to comply with the terms of the plea agreement to dismiss Counts I, III and IV. Accordingly, Judge Bloch denied the motion. This appeal followed. We reverse and remand for further proceedings in the district court.
On this appeal, appellant argues that he has unconstitutionally been placed in double jeopardy by the district court's sua sponte withdrawal of his guilty plea, and the consequent setting down of the case for trial. Appellant's claim involves two distinct questions. The first is whether, under Rule 11 of the Federal Rules of Criminal Procedure, the plea was properly set aside. The second is whether the double jeopardy prohibition of the Fifth Amendment prevents reprosecution or reimposition of the plea.
Hecht denies that he withdrew his guilty plea at the sentencing proceeding, and further argues that the sentencing court erred in setting aside the plea without his consent. Consideration of this question necessarily starts with the well-settled proposition that a criminal defendant "does not have an absolute right under the Constitution to have his guilty plea accepted by the court." North Carolina v. Alford, 400 U.S. 25, 38 n.11, 91 S. Ct. 160, 168, 27 L. Ed. 2d 162 (1970); Lynch v. Overholser, 369 U.S. 705, 719, 82 S. Ct. 1063, 1072, 8 L. Ed. 2d 211 (1962).
In fact, Rule 11(f) admonishes the trial court that,
Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
Thus, in obedience to Rule 11, we have held that where the factual basis for a guilty plea is seriously undermined, a trial judge may set aside that plea without the consent of the accused, and furthermore require the accused to stand trial. U. S. ex rel. Metz v. Maroney, 404 F.2d 233 (3d Cir. 1968), reh. denied (1968), cert. denied, 394 U.S. 949, 89 S. Ct. 1287, 22 L. Ed. 2d 483 (1969). See also Willett v. Georgia, 608 F.2d 538, 540 (5th Cir. 1979), where the court held that a judge may commit a constitutional error if he accepts a guilty plea when defendant's admission of guilt is equivocal, and a sufficient factual basis for the plea is lacking.*fn3
After a careful examination of the record, we are satisfied that a sufficient factual basis for the guilty plea was established and therefore the plea should not have been vacated.*fn4
When, on March 27, Hecht tendered his guilty plea, the court read Count II to him and conducted an extensive colloquy regarding the factual underpinnings for the plea. The following excerpts are pertinent:
Q. That is the charge against you. Do you understand that charge?
Q. All right, will you tell me what you did, to make you guilty of that charge?
A. Well, your Honor, I took money as an executive of the corporation*fn5 and used it let's say in bad business judgment; and I myself got nothing of it. I have nothing let's say I used it for my own purposes.
Q. You took corporate money and used it for your own purpose of making bad investments?
A. Yes, through the business like; yes, your Honor.
Q. But, you invested it for yourself, not for the corporation?
A. No, your Honor. I invested it not for myself, but I used the corporation money to make the investment.
Q. And in whose name did you make the investment?
A. Well, I just used in in my own name.
Q. In other words, you invested it in your own name?
A. Yes, in a sense, without any
Q. What did you invest it in?
A. A bar and hotel in Coraopolis.
Q. And it was a leased bar?
Q. In whose name was the lease? Yours or the ...