BERGMAN v. LEFKOWITZ

Rehearing and Rehearing En Banc Denied February 1, 1978.

FRIENDLY, Circuit Judge:

Bernard Bergman, who had been a prominent figure in the New York nursing home industry, petitioned the District Court for the Southern District of New York for habeas corpus relief from a sentence of one year's imprisonment, consecutive to a previous four months' federal sentence, imposed by a New York state judge on a plea of guilty to making unlawful payments to a state legislator in violation of § 77 of the New York Public Officers Law. He contended that the Special State Prosecutor for Health and Social Services had breached a plea agreement and that he was therefore entitled to relief under Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). After an extensive hearing before Judge Goettel wherein Bergman's counsel was permitted to explore every highway and byway,1 the court denied the petition, and Bergman has appealed. Despite the vehemence of the attack on the trial judge's decision, we affirm.

The Facts

The facts are stated in detail in Judge Goettel's comprehensive opinion, and we shall limit ourselves to what seem to us to be the essential points. As a result of various New York investigations of nursing homes,2 the State created a Special State Prosecutor for Health and Social Services. Charles J. Hynes, Esq., became the Special Prosecutor. Grand jury investigations of Bergman were begun both by Mr. Hynes and by the United States Attorney for the Southern District of New York. Both grand juries indicted Bergman and his son on August 5, 1975, the federal grand jury on three counts involving the filing of false tax returns, three counts of submitting false Medicaid claims, four counts involving fraudulent statements to the Federal Government, and one count of conspiracy to defraud the Government and commit the offenses stated above, the New York grand jury on one count of conspiracy, four counts of filing fraudulent reimbursement claims, four counts of larceny, and one count of obstruction of governmental administration. Extended negotiations with the two prosecutors led to plea agreements, evidenced in separate letters dated March 4 and 8, 1976. The letter of the Special Prosecutor is reproduced in full in the margin;3 paragraphs 4 and 8 are of particular importance to this appeal. The letter of the United States Attorney conformed mutatis mutandis.

On March 11, 1976, Justice Aloysius J. Melia, in the Supreme Court for New York County, accepted Bergman's plea of guilty to a later state indictment charging him with making unlawful payments to a state legislator in violation of § 77 of the Public Officers Law. He explained to Bergman, as he had earlier done to counsel in chambers, that while he ordinarily accepted a prosecutor's recommendation for less than the maximum sentence and saw no reason "at this point in time to believe that I would not do so here," he wanted "it to be very clear to you that on this plea of guilty you could be sentenced to serve up to four years regardless of what sentence is imposed in the Federal Court."4 Not until Bergman thrice acknowledged that he understood this was the guilty plea accepted. On the same day the plea bargain was presented to Judge Frankel in the federal court and the guilty plea was accepted there. Bergman read a written statement in which he admitted knowing that his accountant was withdrawing money from Towers Nursing Home and paying it to his own account; that false information was being given to the Department of Health which got Towers a higher rating than it deserved; that a salary was being paid to Bergman's wife, for which she performed no work; that interest charges for real estate entities in which Bergman had an interest were improperly submitted to the Health Department as costs of Towers; and that he sold partnership interests in Towers to certain persons, caused them to be made partners of a company performing cleaning services for Towers, and failed to disclose the facts of the relationship in his tax returns.

A dispute shortly arose between Bergman and the Special Prosecutor concerning paragraph 8 of the plea bargain, relating to restitution. The Special Prosecutor in May 1975 claimed that Bergman's liability was at least $2,500,000. Bergman attacked that figure, but did not present one himself until criticized by Judge Frankel for the omission on June 10. Four days later defense counsel submitted materials that placed Bergman's liability at only $363,877. Further, the Special Prosecutor insisted that the amount be determined and paid prior to sentencing; Bergman's counsel favored sentence first and payment later. Although the plea bargain was not as specific about this as it should have been, common sense would dictate in favor of the Special Prosecutor's construction that restitution should be provided for, at least before sentencing in the state court; Bergman would have had little incentive to make restitution once he had served his sentence and the prosecutors had carried out the rest of the plea bargain.5 This dispute was brought to the attention of both judges during June. Justice Melia indicated that he would not be prepared to sentence until the differences with respect to restitution were resolved or a machinery for their resolution was established. Any interval between the federal and the state sentencing was a subject of concern to defense counsel.6 When the parties applied for a postponement of the federal sentencing corresponding to any delay in the state sentencing, Judge Frankel declined on the basis that sentencing had already been delayed too long. He noted later that he regarded the restitution problem as a matter solely of state concern and that he would proceed on the assumption that no additional sentence would be imposed by the state court.7

On June 17, 1976, Judge Frankel sentenced Bergman to four months' imprisonment. Bergman distributed to the press on the courthouse steps a prepared statement saying that "Irrespective of whether today's sentencing decisions are resolved favorably or not, I am relieved that this ordeal of more than 1 and 1/2 years is over. It is finally time that the air is cleared and that the truth emerges," and that, "Approximately 99% of the amount charged in the indictments and in other demands made by the Prosecutors concerned matters which I knew nothing about. They were entirely the account[ant]'s own overaccruals and misclassifications." Counsel then returned to Justice Melia. Despite the Justice's statements on June 15 and 16 that he would not sentence while the restitution controversy remained unresolved, Bergman's attorney asked him to do so.8 Justice Melia again refused. He repeated that he had no commitment to follow the Special Prosecutor's recommendations and emphasized that the people were entitled to know "how much money is due and owing to them from these Medicare discrepancies" and "to be paid back that money." He adjourned the sentencing to July 2, 1976. On leaving the state court Hynes answered some questions from reporters and said he would make a formal press statement in his office later in the day. We quote this in full in the margin.9 This statement was reported both on radio and television and in the press, and we have no doubt that Justice Melia became aware of it.

As found by the district judge, "Public response to the sentence was immediate, substantial and generally adverse." The negative response was predictable in view of the widespread publicity concerning grave abuses in nursing homes, see note 2 supra, and was doubtless accentuated by the sentence having followed upon another federal judge's imposition of a suspended sentence, with confinement only on weeknights, on Eugene Hollander, another nursing home proprietor who had figured prominently in the state investigations. The New York Times, which printed a balanced news account along with excerpts from Judge Frankel's sentencing memorandum and the full text of Hynes' press statement, also published an editorial which opined that the sentence made "the odds on white-collar crime look rather good" and could "only reinforce cynicism about the realities of equal justice under law." The New York Post, paying deserved tribute to Judge Frankel as "a thoughtful, conscientious judge," was concerned whether the Hollander and Bergman sentences established "any serious deterrent to new nursing home fraud." The Daily News spoke more raucously of "powder-puff treatment."10 Assemblyman Stein, who had chaired one of the State investigations of nursing homes, voiced his indignation to the press and later wrote and called upon Justice Melia to urge a higher sentence; concededly the Special Prosecutor had no part in this.

On July 2, the Special Prosecutor and Bergman's counsel again appeared before Justice Melia. Mr. Hynes asked the Justice to defer the sentencing since Bergman had not fully complied with the provisions of the plea agreement relating to restitution in respect either of amount or method of payment. The amount Bergman conceded that he owed had inexplicably quadrupled from the $360,000 claimed at the proceedings in mid-June to $1,400,000 but the state was adhering to its figure of $2,500,000 at minimum and to its demand that payment be tendered before sentencing. Defense counsel agreed to submit to a binding determination of the amount due but disclaimed any obligation by Bergman to pay before sentence, which he asked to have imposed immediately. Justice Melia made an extended statement: He reiterated his amazement at learning on June 17 that "nothing had really been accomplished" with respect to restitution. In fairness to the defendant he had then deferred sentence to enable some progress to occur. Later the judge had indicated that he was agreeable to a suggestion that the amount be determined by a top accounting firm, but he had insisted that a substantial down payment be made prior to sentencing. The judge was willing to extend the date of sentencing until September to afford a further time for working out restitution but if Bergman wished to be sentenced immediately, he would proceed forthwith.

These remarks, with their evident overtone, provoked a quick reaction. Defense counsel advised the judge that he had suddenly learned that Bergman "is not feeling able to present himself to this Court in the posture he would like to, both physical and psychological reasons." He therefore joined in the Special Prosecutor's application for an adjournment. The judge was understandably puzzled why Bergman should not be ready for sentence if he was "five minutes ago." After a brief recess to permit consultation with Bergman, counsel asserted that he had been at fault in asking for immediate sentence and repeated that he now joined the Special Prosecutor's request for an adjournment. The court agreed. Justice Melia noted that he would require not only a determination of the amount but also a substantial payment and an acceptable program of payment. He made clear that this would be the last adjournment and that he was "not tied to any sentence agreement with anybody." He also revealed that Assemblyman Stein had called upon him and deplored that this had been "trumpeted to the press in advance." Sentencing was set for September 14, 1976.

On September 14 the Special Prosecutor addressed the court. He reported that, with respect to cooperation, see paragraph 5 of the plea bargain, note 3 supra, Bergman had "substantially complied and continued to comply." With respect to restitution there had been more than 30 meetings since July 2. At earlier meetings Bergman's admissions of liability rose from $1,400,000— itself four times his original figure—to slightly more than $2,000,000. Still not satisfied, the Special Prosecutor had obtained the appointment of an accounting firm as arbitrator. "Almost immediately, the defendant agreed to repay $2.5 million . .," now seven times his starting figure and what the State had insisted on from the beginning. Difficulties had persisted, however, on the question of the method of payment. Now, "at the eleventh hour," Bergman had complied with a suggestion of the arbitrator and had signed a confession of judgment for $2,500,000 and assigned all his assets to the State as security. The Special Prosecutor continued:

Hynes then adverted to the difficulties he had encountered in obtaining restitution and warned that if there should be any failure or subversion by Bergman that prevented the State from recovering the full amount owed, he would declare the remaining portion of the plea bargain null and void. He emphasized that Bergman was being sentenced only for violation of § 77 of the Public Officers Law. Finally,

Defense counsel immediately sought a clarification, and the following colloquy occurred:

Counsel proceeded with a plea that Bergman had suffered enough, and Bergman left himself "to the mercy of the Court."

Justice Melia began his sentencing remarks by observing that Bergman was to be sentenced for violation of § 77 of the Public Officers Law, a felony which carried a maximum of four years imprisonment. Sentencing required analysis both of the crime committed, one which "smacks of corruption in that the defendant attempted with corrupt intent to influence a state legislature13 to exert certain pressure to have his Park Crescent Nursing Home application approved for operation"—and of the person who committed it. He referred to the great volume of contradictory recommendations he had received and to the plea agreement. Adverting to the history of the efforts to secure restitution and the previous sentencing hearings which we have recounted, he stated that it was "disconcerting" to him that three months after the guilty plea, the defense had not calculated what was owed. He further characterized the original $364,000 offer as again "a heavy case of foot dragging" and said that he had "not been greatly impressed by the defendant's good faith in the resolution of the issue." His "very strong conclusion" was that a solution "was only brought about as a result of the process and the impending sentence. . . ."

The judge then recounted the Special Prosecutor's recommendations that favorable consideration be given to Bergman for the restitution agreement, that the indictment against Bergman's son be dismissed, that the original state indictment against Bergman be dismissed, that no further prosecutions be brought against Bergman or his family and, most importantly for this appeal, that no jail sentence additional to that fixed by the federal court be imposed. He referred to his own frequent iterations that he had "agreed to give great consideration to the Special Prosecutor's recommendation pursuant to this agreement with the defense but not to be bound by it" and announced that "history and legal tradition impels a court to give a Prosecutor's recommendation for a lesser sentence great weight." He repeated his characterizations of the corrupt nature of the crime and of "what I believe to be shilly shally on the amount of money owed to the People of the State and which was provided to be resolved in the plea bargain. . . ." He found that Bergman showed "little or no remorse" but rather "a consuming interest in the preservation of his unearned gains," and he objected to Bergman's attempt to place the blame on overzealous underlings. Taking into account the recommendation of the Special Prosecutor and the financial arrangements that had been made, in lieu of imposing the maximum sentence of four years the court imposed a sentence of one year, consecutive to the federal sentence.

After serving his federal sentence Bergman appealed his state sentence to the Appellate Division, claiming that Hynes had not complied with his recommendation that there be no additional sentence. The Appellate Division affirmed unanimously without opinion, 57 A.D.2d 749, 395 N.Y.S.2d 872 (1977); leave to appeal to the Court of Appeals was denied, 42 N.Y.2d 890, 397 N.Y.S.2d 1031, 366 N.E.2d 885 (1977).14

The final act in the state courts was an application by Bergman for a reduction in sentence pursuant to C.P.L. § 430.10. The Special Prosecutor opposed this and Justice Melia denied it on June 23, 1977. After Mr. Justice Marshall had denied an application for a stay or bail under the state sentence, the petition for federal habeas was filed on July 8, 1977. Bergman has been allowed to remain at large pending its consideration in the district court and here.

Discussion

Bergman's contention that the Special Prosecutor violated the plea bargain has three facets, the first two being closely related. First, it is claimed that Hynes' conduct immediately after the federal sentence and the publicity attendant on it destroyed his ability to comply in good faith with his obligation to recommend that the state judge impose no additional sentence. Second, it is contended that in fact he did not make a good faith recommendation at the hearing before Justice Melia on September 14, 1976. Finally, it is claimed that the opposition to Bergman's motion to reduce the sentence was a further breach of the agreement.

Admittedly the plea bargain did not expressly prohibit the Special Prosecutor from commenting on the federal sentence.15 Still it is not unreasonable to read into the agreement an implied term that the Special Prosecutor would not comment on the federal sentence in a manner that would constitute a reneging on his obligation to recommend that the state judge impose no additional sentence or make it practically impossible for the state judge to accept such a recommendation. He did neither. Nothing in the press release or in other statements to the press, see note 9 supra, afforded any indication that Hynes would not perform his agreement to recommend no additional sentence if Bergman complied with the as yet unperformed covenant to make restitution or that he hoped the state judge would reject any such recommendation. Indeed the press statement makes no reference at all to the forthcoming state sentence.

While the release surely did nothing to dampen the media's criticism of the federal sentence, there is no proof that it significantly contributed to this. The sentencing had been widely attended by the press and, for reasons already indicated, its reaction was expectable. If there were any intimations in the release that Hynes might no longer be bound by the plea agreement, they were founded on Bergman's foot-dragging with respect to restitution—a position Hynes had every right to take.16

This brings us to the second argument. Admittedly Hynes made the recommendation he had promised to make. The claim is that he did this grudgingly or, as Judge Goettel stated, "tepidly". This is said to follow from his use of the words "I have the obligation to fulfill my commitment" and "I made the recommendation that I was required to make."

We perceive no dispositive significance in this. In almost all cases where a prosecutor agrees in a plea bargain to make a sentence recommendation, he is recommending not what he wants but something less, which the agreement requires. This is the very essence of the bargain and the sentencing judge is well aware of it. We thus see nothing sinister in Hynes' stating that he was acting in pursuance of the plea agreement unless something in his facial expression or his tone indicated to the judge that he would prefer not to have his recommendation accepted. There is no evidence to that effect. Moreover, the best proof that this did not occur is defense counsel's expression of thanks for Hynes' statement. Any reservations expressed by the Special Prosecutor related to Bergman's tergiversations about restitution; these having been resolved at the eleventh hour, Hynes proceeded to do what he had agreed to do. The judge, who had made clear from the outset that he would not be bound by the Special Prosecutor's recommendation, indicated three times at the sentencing that he was giving it substantial weight. His stated reasons for imposing a sentence additional to the federal sentence were not at all a view that the latter was inadequate for the federal crimes to which Bergman had pleaded guilty, a matter which he apparently and properly considered not to be his concern, but his belief in the seriousness of the state crime to which the federal judge admittedly had given little consideration, see note 7 supra, and developments subsequent to the federal sentence, namely, Bergman's efforts to avoid restitution, of which the federal judge in the nature of things could not have been aware.

The case thus differs totally from Snowden v. State, 33 Md.App. 659, 365 A.2d 321 (1976), where a presentence report proposed a higher sentence than had been bargained for and the prosecutor did not sufficiently indicate his disagreement with the proposal and even subtly promoted it, and from other state and federal cases in which the prosecutor promised to make no sentence recommendation but then proceeded to condemn the defendant's conduct.17 It differs equally from our decision in Palermo v. Warden, 545 F.2d 286 (2 Cir. 1976), cert. dismissed, 431 U.S. 911, 97 S.Ct. 2166, 53 L.Ed.2d 221 (1977), where, as the district court was held to have permissibly found, the prosecutors induced the defendants to plead guilty to a robbery charge by representing that they would receive parole after one year in prison; that the prosecutors knew they had no such assurances from the Parole Board; and that the prosecutor not only breached his agreement to take all possible steps to achieve an early parole but took steps that diminished the chance of this. Bergman's experienced trial counsel had full knowledge that Justice Melia would not agree to be bound by the Special Prosecutor's recommendation of no additional sentence; Hynes' obligation was simply to urge this in good faith. The only decision that gives Bergman even a modicum of support is Judge Winter's opinion for a divided panel in United States v. Brown, 500 F.2d 375 (4 Cir. 1974). This, like Santobello, was a case where at the sentencing hearing the Government was represented by a prosecutor different from the one who had negotiated the agreement, which had been fully explained to the judge when taking the guilty plea. Judge Winter regarded the new prosecutor's statement that he had "some problems" with the plea agreement and his inability to explain it to the judge as having "effectively undercut the agreement before defense counsel even began to speak." 500 F.2d at 378. Here we see no more basis for concluding that Hynes "effectively undercut" his agreed recommendation than did defense counsel who thanked him for it. If counsel had wished Hynes to add some adverbs such as "unreservedly," see Chief Judge Haynsworth's dissent in Brown, 500 F.2d at 379, or "sincerely" or "unequivocally," we have no doubt he would have done so, but there was no need for this. We would not regard a rule permitting a plea bargain to be avoided as a denial of due process because of lack of adequate gusto in a prosecutor's recommendation, particularly when this is discerned by defense counsel only after a disappointing sentence, as promoting the sound administration of criminal justice.18

Finally we reject the contention that at the September 14 sentencing Justice Melia was necessarily hearing not what Hynes was saying to him in open court but what Hynes had said to the press after Judge Frankel's sentence three months before. There is no need to repeat our previous discussion beyond stating that Hynes had said nothing to the press which either expressly or by fair inference conveyed the idea that, because of his disappointment with the federal sentence, he would renege on the plea agreement if Bergman complied with it; that he labored mightily to secure such compliance; that once he had brought this about, he lived up to his agreement to recommend no further sentence; and that there is not a shred of evidence that anyone in the September 14 proceedings gave weight to what had transpired three months before.

Bergman's third argument, that the Special Prosecutor violated the plea agreement by opposing the motion to reduce sentence after the affirmance by the Appellate Division, requires little discussion. The plea agreement bound the Special Prosecutor to recommend in good faith that Justice Melia impose no additional sentence. Before accepting the agreement the judge had placed everyone on notice that he might decide not to follow that recommendation, and the agreement did not require the Special Prosecutor to join in any appeal or postconviction proceeding with respect to any additional sentence so imposed. Bergman's entitlement in such proceedings was simply that the Special Prosecutor should not cast doubt on his recommendation; Hynes did not. The case is thus readily distinguishable from United States v. Ewing, 480 F.2d 1141 (5 Cir. 1973), where the Government agreed not to oppose a probated sentence and then did precisely that on a Rule 35 motion.

In view of our holding that the Special Prosecutor committed no breach of the plea agreement, we have no occasion to consider the State's contention that if Bergman considered the plea bargain to have been breached by Hynes' press release and conference, he should have moved immediately for leave to withdraw his guilty plea or Bergman's arguments against this. We likewise need not consider whether on any view we could grant what counsel terms "specific performance" of the agreement, namely, the voiding of any additional state sentence, as distinguished from what the Supreme Court evidently meant by that phrase, see Santobello, 404 U.S. at 263, 92 S.Ct. 495, resentencing by another state judge.

The judgment denying the petition for a writ of habeas corpus is affirmed.