UNITED STATES v. SHANAHAN

FAY, Circuit Judge:

Once again we are faced with another "broken pre-plea agreement", which unfortunately seems to be a pattern of practice engaged in by some personnel of United States Attorneys' offices. Usually, one assistant makes an agreement but does not appear at either the plea hearing or sentencing, but rather sends another assistant unfamiliar or in disagreement with the earlier understanding, thus causing confusion or serious breaches. This case adds a new twist.

On July 18, 1977, defendant, John Shanahan, surrendered himself to agents of the Drug Enforcement Administration (DEA) upon learning a warrant had been issued for his arrest for sale of cocaine. Before being formally charged by indictment, the defendant, with the aid of counsel, negotiated a pre-plea agreement under which the government was to file a misdemeanor information and the defendant would plead guilty to the one count information. The information was filed on August 30, 1977, charging defendant along with his co-defendant, Paul Sylver,1 with knowingly and intentionally possessing a controlled substance to wit: cocaine, in violation of 21 U.S.C. § 844(a)2 and 18 U.S.C. § 2. On September 30, 1977, Shanahan changed his plea from not guilty to guilty in accordance with the plea agreement.

Prior to the acceptance of Shanahan's guilty plea, the trial court and the parties had the following colloquy:

R. p. 37-38.

After determining defendant was entering his plea freely and voluntarily, with a full understanding of his rights and that there was a factual basis for the plea, the trial court accepted defendant's guilty plea and requested that a presentence investigation (PSI) be performed.

In the routine course of preparing the report, the probation officer contacted the Assistant United States Attorney handling this case, who thereupon proceeded to outline the pre-plea agreement with a totally new condition:

Supplemental Record, Presentence Investigation Report p. 10. This information was given to the probation officer by the same Assistant United States Attorney who was present at the entering of the guilty plea and who, in said proceeding, outlined the pre-plea negotiations without mentioning any such condition. (R. 37-38).

At the sentencing hearing, defense counsel objected to two portions of the PSI. The first objection involved statements by government agents that through a confidential informant they learned of defendant's alleged "heavy" dealings in cocaine. The second objection was that defense counsel's understanding of the pre-plea agreement was not the same as that set forth by Mr. Galante in the PSI.

The court, thereafter, called Special Agent Michael O'Connor to testify concerning the confidential informant's statements and the condition of the pre-plea agreement that the defendant cooperate. That testimony proceeded as follows:

R. 19-20.

This testimony is a brief excerpt from the lengthy discussion at the sentencing hearing as to whether or not defendant had cooperated with the government.

The principle of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), governs the disposition of this case. That oft-repeated principle provides "that when a [guilty] plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello, 404 U.S. at 262, 92 S.Ct. at 499. See also United States v. Grandinetti, 564 F.2d 723 (5th Cir. 1977). In entering into the agreement articulated by the prosecutor at the change of plea hearing, it was not unreasonable for the defendant to expect the agreement to remain unchanged. This was at least part of the inducement for this defendant's guilty plea. The government's subsequent modification of the terms of the agreement with statements to the trial court through the PSI and by the DEA agent that defendant had not performed as agreed must be considered a breach of that agreement for either of two reasons. First, if there really was no condition that the defendant cooperate in exchange for a misdemeanor information then it was a breach for the government at sentencing to so allege to the court through the PSI and the testimony of the DEA agent. Second, if cooperation was a condition of the pre-plea agreement, this fact should have been brought to the court's attention when the guilty plea was being accepted. It is manifestly unfair to add conditions to a plea bargain after the entry of a guilty plea and then seek a more severe sentence for a breach of such a condition. This record shows just such an effort.

In 1935, the Supreme Court aptly pointed out the United States Attorneys' obligations which still hold true today:

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314, 1321 (1935). The Supreme Court's viewpoint must necessarily extend to the case where improper methods are used to influence the trial court at sentencing. The government's actions simply cannot be tolerated especially since the pre-plea agreement did not require the government to stand mute with respect to a recommendation of sentence. The government could have argued strenuously for the maximum sentence. As a matter of fact, at the sentencing the Assistant United States Attorney who substituted for Galante did argue "We strongly oppose any withholding of adjudication during the period of probation." (R. 17).3 For the foregoing reason we vacate the sentence imposed by the trial court.

Neither the defendant nor the government have requested that the pre-plea agreement be voided or that the defendant be allowed to withdraw his guilty plea. The defendant does request as a remedy that if his sentence is vacated, his case be remanded for resentencing by another district judge. United States v. Grandinetti, 564 F.2d 723, 727 (5th Cir. 1977). An unfortunate problem which cannot help but arise when considering such a request is that we have no way of knowing the effect, if any, the government's misconduct had on the sentence imposed by the district court. Here, the trial judge committed no error, but because of the government's actions we have no alternative but to grant the relief requested by the defendant and remand the case to the district court for resentencing before a different district judge. At that hearing the United States Attorney is expected to abide by the terms of the pre-plea agreement.

Sentence vacated and remanded.