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,
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,
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."
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
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."
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
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 legislature
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).
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.
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.
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.
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
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.
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.
This will confirm the agreement that has been made between the Office of the Special State Prosecutor and Bernard Bergman and Stanley Bergman in connection with Indictment 3741/75.
1. Bernard Bergman will plead guilty to counts 1 and 3 of The Federal Indictment, 75 Cr. 785, in the United States District Court for the Southern District of New York.
2. Bernard Bergman will plead guilty to a one count State indictment charging him with making unlawful payments to Albert Blumenthal, in violation of Section 77 of the New York Public Officers Law.
3. Following the sentence of Bernard Bergman on this plea to making unlawful payments to Albert Blumenthal, the State of New York will dismiss Indictment 3741/75 against the defendants Bernard Bergman and Stanley Bergman. It is understood that the Special Prosecutor has agreed to the dismissal of this indictment because (1) the charges to which Bernard Bergman has pleaded guilty in the United States District Court and for which he will be sentenced by a United States District Court Judge are similar to those contained in this State indictment; (2) Bernard Bergman has truthfully admitted his actions and pleaded guilty to the charge of violating Section 77 of the Public Officers Law; and (3) Stanley Bergman's role in the events that are the basis of the charges in this State indictment consists of acts done at the general direction of Bernard Bergman, are relatively of an insubstantial nature and the interests of justice would not be served by further prosecution of Stanley Bergman.
4. The Special State Prosecutor will recommend to the Judge of the New York State Supreme Court who will sentence Bernard Bergman on his plea of guilty to making unlawful payments to Albert Blumenthal that, in light of Bernard Bergman having voluntarily disclosed the facts of the crime to the Special Prosecutor and since the Federal Judge will know of these facts when he imposes sentence on the Federal charges, no sentence additional to that imposed by the United States District Court Judge on the federal indictment be imposed here.
5. Bernard Bergman and Stanley Bergman and members of their families will cooperate with the Office of the Special State Prosecutor and the United States Attorney's Office.
6. Bernard Bergman and Stanley Bergman and their immediate families will be forthright, honest, and completely truthful. This entire agreement will become null and void if, in the good-faith judgment of either the United States Attorney's Office or the Office of the Special State Prosecutor, after a full discussion of the matter with counsel for Bernard Bergman and Stanley Bergman, it is determined that either Stanley Bergman or Bernard Bergman or their immediate families have not been forthright, honest or completely truthful.
7. No further criminal prosecution will be brought against Bernard Bergman or his immediate family for any acts occurring prior to the date of this agreement unless such acts involve violence or the sale of narcotics. To this end, Bernard Bergman and his immediate family will be permitted to testify before the Grand Jury without waivers of immunity.
8. Bernard Bergman will pay to the State of New York, voluntarily, without any civil action or litigation of any kind, whatever sums of money are owing to the State of New York from the Towers Nursing Home and any other nursing homes in which he has an interest arising out of Medicaid payments.
This amount shall be determined after consultation and examination of all financial and business records and documents by and between accountants representing the United States, the State of New York, and Bernard Bergman.
9. The sentence of Bernard Bergman on his plea of guilty will take place after the United States District Court Judge has imposed sentence and there is a final judgment of conviction. The parties will seek to have that sentence take place after the termination of all proceedings in which the testimony of Bernard Bergman is required.
10. Consistent with the practice in the Federal Court, the Special Prosecutor and the Federal Prosecutor will not recommend a specific sentence to the Federal Judge or to the Probation Department. However, the Special Prosecutor will make a submission of facts to the Federal Judge and the Probation Department which will set forth all of the testimony and documents relating to the activities of Bernard Bergman that have been revealed by its investigation and will compare this evidence with the factual charges made against Bernard Bergman in 1974 and early 1975. The Special Prosecutor will not make any statement characterizing the crimes to which Bernard Bergman has pleaded guilty. The Special Prosecutor will tell the Federal Judge and Probation Department the nature, extent and value of the cooperation of Bernard Bergman and his family.
Bergman's counsel now suggests that restitution could have been made a condition of probation after the end of any state prison sentence. But this would have led to lengthy hearings on revocation of probation. Moreover, the Special Prosecutor could not have recommended an additional term of probation consistently with the plea agreement.
Appellant also refers to an oral statement by Hynes at the press conference, in response to an undisclosed question, that he considered the plea bargain a nullity and was no longer bound to request that Justice Melia imposed a concurrent sentence, or to refrain from further investigation or from prosecution of Stanley Bergman. We are more confident than Judge Goettel that the question was hypothetical and the response, thus, conditional. Since Hynes had stated in court that the agreement would be a nullity if no further action were taken by Bergman and moved to postpone sentencing to afford an opportunity for such action, it would seem unlikely that he would almost immediately thereafter repudiate the agreement. He testified that he did not do so and that his statement was conditional. Further, none of the newspaper articles introduced by Bergman report an outright repudiation of the agreement. When one radio report replayed the language in question, the lead-in was that Hynes had stated the prosecutor's part of the deal would be off unless Bergman agreed to make restitution, and a television report prefaced the language by noting that the restitution dispute threatened to undo the plea agreement.
Even if the statement is not taken as conditional, Hynes had already made clear in the state court that he considered the plea bargain to have been breached by Bergman's insistence that he owed only $360,000 by way of restitution as against the State's figure of $2,500,000 and persisted in that position until, as appears below, Bergman accepted the State's figure and provided a method of payment under the gun of being sentenced by the state judge, who had expressed distaste at the long delay in settling the restitution issue. This was a tenable position and we thus see no warrant on any basis for appellant's counsel's characterizing Hynes' oral statement at the press conference as "an unmistakeable violation of the plea bargain." (Brief p. 6).