WINTER, Circuit Judge:
After his motion to dismiss his ten count indictment was denied without evidentiary hearing, William Eugene Carter was convicted in the Eastern District of Virginia on charges of forgery and conspiracy, 18 U.S.C.A. §§ 495, 371 and 2, and sentenced to an aggregate term of sixteen years. The Virginia prosecution
The correctness of the denial of the motion is the sole issue on appeal. We conclude that the motion should be the subject of evidentiary hearing to determine if a promise was made and, if so, by whom and of what scope. We vacate the judgment and remand the case for further proceedings.
In the posture of this case as it comes to us, defendant alleged that he incriminated himself and others and pleaded guilty to a misdemeanor charge of possession of stolen checks upon the promise of an Assistant United States Attorney for the District of Columbia that, except for the charge to which he pleaded guilty, defendant would not be prosecuted for commission of the crimes he divulged. The sworn statement of his counsel, who negotiated the agreement, was that defendant would not be prosecuted anywhere else for anything having to do with the stolen checks.
It was also alleged, under oath, that defendant fully performed his part of the bargain to the complete satisfaction of the F.B.I. agents in charge of the case and that others were apprehended and convicted on the basis of the information defendant supplied. Defendant pleaded guilty to the misdemeanor charge in the District of Columbia; and, when the extent of his cooperation was made known to the sentencing judge, defendant was placed upon a year's probation.
Defendant further alleged that he was prosecuted in the Eastern District of Virginia only when he refused further cooperation with a Secret Service Agent who was annoyed at the manner in which the F.B.I. had handled the case. The Secret Service Agent, early in his investigation, gained access to the data divulged by defendant to the F.B.I.; but he claimed, in a less than searching interrogation, that he used none of it to build the case against defendant in the Eastern District of Virginia.
At the outset, we recognize that we are dealing with allegations and not facts. We cannot, therefore, make any final disposition of the case. We recognize also with respect to the claim of immunity from further prosecution that ordinarily immunity in the federal system may be granted only with the approval of the court pursuant to express statutory authorization. See, e. g., 18 U.S.C.A. § 2514. Cf. Dixon v. District of Columbia, 129 U.S.App.D.C. 341, 394 F.2d 966 (1968). There is no allegation that the District of Columbia court knew that any promise of immunity had been made to defendant or that the court approved it.
Nonetheless, we conclude that if the promise was made to defendant as alleged and defendant relied upon it in incriminating himself and others, the government should be held to abide by
The only distinction between Paiva and the instant case is that in Paiva the bargain was breached in the district in which it was made while here the bargain was allegedly breached in a neighboring district. We think this a distinction without a difference. The United States government is the United States government throughout all of the states and districts. If the United States government in the District of Columbia, acting through one of its apparently authorized agents, promised that the sole prosecution against defendant would be the misdemeanor charge in that jurisdiction, and defendant relied on the promise to his prejudice—facts which must be proved in the plenary hearing if the indictment is to be dismissed—we will not permit the United States government in the Eastern District of Virginia to breach the promise.
Sound reasons of public policy support this result. Many federal crimes have multistate ramifications and are committed by persons acting in concert. If we hypothesize a single defendant charged with the interstate transportation of a stolen motor vehicle through several states, we would not question that the efficient administration of justice would support the authority of the prosecutor in one of those states to obtain an indictment and bargain for a guilty plea, agreeing that all offenses in the other jurisdictions would be disposed of in the single case. If there is added to the hypothetical codefendants and, if the plea bargain includes a promise of cooperation in their disclosure and/or their prosecution, the desirability of the result we reach becomes more apparent. A contrary result would constitute a strong deterrent to the willingness of defendants accused of multistate crimes to cooperate in speedy disposition of their cases and in apprehending and prosecuting codefendants.
If there be fear that an United States Attorney may unreasonably bargain away the government's right and duty to prosecute, the solution lies in the administrative controls which the Attorney General of the United States may promulgate to regulate and control the conduct of cases by the United States Attorneys and their assistants. The solution does not lie in formalisms about the express, implied or apparent authority of one United States Attorney, or his representative, to bind another United States Attorney and thus to visit a sixteen year sentence on a defendant in violation of a bargain he fully performed. There is more at stake than just the liberty of this defendant. At stake is the honor of the government public confidence in the fair administration of justice, and the efficient administration of justice in a federal scheme of government.
The judgment of conviction is vacated and the case remanded for evidentiary determination of the issue raised by the motion to dismiss. If the promise was made, relied upon and breached as alleged, the indictment should be dismissed; otherwise, the judgment may be reinstated.
Vacated and remanded.
Subsequent to the preparation of the foregoing opinion, the Supreme Court decided Santobello v. New York, 404 U.S. 257,
BUTZNER, Circuit Judge (concurring specially):
I concur in remanding this case for an evidentiary hearing on the motion to dismiss, but I think we should refrain from making a decision until we know all the facts.
BOREMAN, Senior Circuit Judge (dissenting):
On August 9, 1968, in Washington, D. C., Carter was arrested by special agents of the Federal Bureau of Investigation. At the time of his arrest he was in a car and the agents recovered from the vehicle approximately $156,000 in stolen government checks. Carter had purchased these checks from the actual thief and, when arrested, was attempting to sell them to a third party. In return for information furnished concerning the theft, an Assistant United States Attorney for the District of Columbia agreed to permit Carter to plead guilty to one misdemeanor charge based upon a charge of possession of these checks. As a result of Carter's cooperation the principal thief was arrested, charged, and pleaded guilty to a felony in the District of Columbia. Carter was placed on probation for one year by the Court of General Sessions of the District of Columbia
The conviction which Carter now appeals resulted from his activities in the Eastern District of Virginia in connection with the forging and uttering of stolen government checks other than those he was attempting to sell at the time of his arrest in the District of Columbia.
Although the F.B.I. passed Carter's statement on to the Secret Service agent investigating the forging and uttering
The majority concludes that the case must be remanded for evidentiary determination of the nature and extent of the plea bargain reached in the District of Columbia. With respect to the promise assertedly made by the District of Columbia Assistant United States Attorney, my brothers in the majority hold that "If the promise was made, relied upon and breached as alleged, the indictment should be dismissed. . . ." This direction is difficult to understand in light of the following colloquy at the hearing on Carter's motion to dismiss the indictment between the district court and Allan M. Palmer, Carter's defense counsel in both the District of Columbia and Eastern District of Virginia proceedings:
Thus it appears that no promise purporting to include Virginia prosecutions was expressly made.
My primary concern here, however, is that I do not believe Carter to be entitled to relief in this case under any theory which might be proved in an evidentiary hearing, and that a remand is therefore wholly unnecessary. Even assuming that both Carter and his experienced counsel actually and reasonably understood that the plea bargain reached in the District of Columbia purported to encompass all of Carter's criminal activities concerning the checks, I am persuaded that the United States Attorney's office for the District of Columbia could not enter into a valid plea bargaining agreement to bind the district court and the federal prosecutor in another jurisdiction with respect to separate and wholly different crimes committed outside the District of Columbia. The majority's holding to the contrary judicially expands the jurisdictional powers of federal prosecutors far beyond those reasonably necessary for the performance of their duties while at the same time imposing an unwarranted restriction upon the recognized powers and duties of other prosecutors and of the district courts to deal effectively with crimes committed within their respective jurisdictions.
If courts were permitted to decide cases because of sympathetic considerations I would have no difficulty in agreeing to a remand which included proper and adequate directions to the lower court. But the injustice to Carter here, if any, was accomplished within the District of Columbia by an official of that jurisdiction. The executive officials and courts of the Eastern District of Virginia should not be prevented from seeking to punish crimes victimizing the people of that district because an official elsewhere has overstepped the limits of his power. It can, of course, be contended that the District of Columbia courts can reach only the guilty plea entered by Carter pursuant to the asserted agreement, and that this would not suffice since Carter also gave an incriminating statement which cannot now be withdrawn. The problem thus presented is a real one and is not readily solved. I am convinced, however, that in bending over backward to be fair to this defendant, the majority has overlooked the legitimate interests of the courts, officials and people of the Eastern District of Virginia.
It is possible that an entirely equitable judicial solution may not be found on the facts of this case. Carter might move for reduction of his sentence in Virginia, or, if in fact Carter was misled by, and acted to his prejudice upon, the representations of the District of Columbia Assistant United States Attorney, the case may be appropriate for executive clemency. But the idea advanced and adopted by my brothers, that the
Both Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), and United States v. Paiva, 294 F.Supp. 742 (D.D.C.1969), cited by the majority in support of its decision, involved a plea bargain breached in the district in which it was made. My brothers "think this a distinction without a difference." I cannot agree.
For the reasons stated, I respectfully dissent.