United States v. Dennis E. Greenman, 700 F.2d 1377, 11th Cir. (1983)

700 F.
2d 1377
UNITED STATES of America, Plaintiff-Appellee,

v.
Dennis E. GREENMAN, Defendant-Appellant.
No. 82-5119.
United States Court of Appeals,

Eleventh Circuit.
March 25, 1983.
Paul, Landy, Beiley, Harper & Metsch, P.A., Lawrence R. Metsch, Miami,
Fla., and Peter H. Morrison, Morrison, Paul & Beiley, New York City, for
defendant-appellant.
W. Christian Hoyer, U.S. Dept. of Justice, Tampa, Fla., for plaintiffappellee.
Appeal from the United States District Court for the Middle District of
Florida.
Before GODBOLD, Chief Judge, KRAVITCH, Circuit Judge, and
MORGAN, Senior Circuit Judge.
LEWIS R. MORGAN, Senior Circuit Judge:
Appellant seeks to vacate his prison sentence by alleging a broken plea

agreement and failure of the district judge to act impartially during sentencing.
The relevant facts are not in dispute. Between 1977 and 1981, appellant
operated a fraudulent investment scheme which gathered millions of dollars in
investor funds. In April of 1981, he voluntarily reported his illegal activity to
the Department of Justice (DOJ) and the Securities Exchange Commission
(SEC), and both agencies began investigations. After several months of
investigation and plea negotiations, the DOJ and appellant formulated a plea
agreement. This agreement provided that appellant would plead guilty to one
count of fraud in violation of 18 U.S.C. Sec. 2314 and liquidate all of his
personal assets as restitution. In exchange, the DOJ promised not to file
additional charges and promised not to make a sentencing recommendation to
the district judge. After the plea agreement was concluded and submitted to the
district court, SEC officials independently wrote the district judge and
recommended that appellant be given a sufficiently harsh sentence for deterrent
purposes, although a specific sentence was not suggested. Appellant then cited
the SEC recommendation as a breach of the plea agreement and requested that
the district judge ignore the SEC letters and instruct the SEC to obey the
conditions of the plea agreement. He argued that the DOJ's promise to make no
sentencing recommendation bound the entire United States government,
including the SEC. Instead of addressing appellant's argument, the district judge
concluded that the plea bargain was too lenient since it precluded the
government from filing additional charges for a particularly egregious fraud,
and rejected the entire plea agreement, not wishing to give "some sort of
judicial stamp of approval." The district judge acknowledged that the decison to
bring only a one count indictment was solely within the discretion of the
prosecution, but refused to endorse such a decision in this case. Appellant was
then given one week to consider withdrawing his guilty plea. Appellant chose
not to change his plea, and was given the maximum sentence of ten years in
prison and a $10,000 fine. In this appeal, appellant argues that the district court
was without power to reject the plea agreement, and thus the SEC letters were a
breach of that agreement. He also contends that the district judge failed to
remain impartial with regard to sentencing since the judge admitted that he had
decided what the appropriate sentence should be even before reading the SEC
letters and other information contained in the probation officer's report.
Appellant urges us to vacate his sentence for these reasons and remand the case
to another district judge for sentencing in compliance with the original plea
agreement. For the following reasons, we affirm.
2
Appellant's first claim on appeal is that a district court lacks the power to reject
a plea bargain which requires no affirmative action on the part of the district
judge. In other words, if the plea agreement does not require the district judge
to take a particular action in conformity with the plea agreement, then the
agreement cannot be rejected. Therefore, appellant argues, the plea agreement
in this case was improperly rejected and the otherwise valid agreement was
later breached when the SEC recommended a harsh sentence. We need not
decide whether these arguments are correct, however, since we find that
appellant would not be entitled to any relief even if we accepted his position.
Appellant cites numerous decisions which have ordered specific performance
of a broken plea agreement, but all of these cases involved defendants who pled
guilty without knowing that their plea bargain had been or would be breached
by the prosecution. See, e.g., United States v. Block, 660 F.2d 1086 (5th
Cir.1981); United States v. Shanahan, 574 F.2d 1228 (5th Cir.1978); United
States v. Grandinetti, 564 F.2d 723 (5th Cir.1977). See also Santobello v. New
York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In those cases, the
defendants pled guilty and thereby forfeited certain rights in anticipation of the
prosecution's full performance of the terms of their plea agreements. In the
present case, however, appellant chose to plead guilty while fully aware of the
alleged breach of his plea bargain. The district court gave him one week to
consider withdrawing his plea after he objected to the SEC letters. Therefore,
appellant cannot argue now that his guilty plea was conditioned on any
unfulfilled promise of the prosecution. He entered his plea voluntarily and fully
aware of all relevant circumstances and the possible consequences. We can find
no support for the proposition that a broken plea agreement must be
specifically enforced when the guilty plea was entered with knowledge of the
alleged breach. Under the rationale of Santobello v. New York, 404 U.S. 257,
92 S.Ct. 495, 30 L.Ed.2d 427 (1971), the opportunity to replead is a proper
remedy for any possible breach in this case.1
3
Appellant also contends that the district judge failed to remain impartial during
the sentencing proceedings. This argument is based on the following remark
made by the district judge in response to appellant's objections to the SEC
letters: "[I] had already made a decision as to what the sentence should be in
this case...." Appellant believes that this comment evidences an impermissible
bias violative of due process. In support of his argument, appellant relies on
several decisions of the Supreme Court and this circuit which have held that a
sentence should be vacated if the sentencing judge was unalterably predisposed
toward a particular punishment. Green v. United States, 365 U.S. 301, 81 S.Ct.
653, 5 L.Ed.2d 670 (1961); United States v. Long, 656 F.2d 1162 (5th
Cir.1981); United States v. Becker, 437 F.2d 1086 (5th Cir.1971). While this is
true, appellant's argument fails to recognize that these cases all involved
situations where the sentencing judge refused or neglected to hear the
defendant's plea of leniency or to review presentence reports compiled pursuant
to Rule 32 of the Federal Rules of Criminal Procedure. This appeal does not
present a similar situation. When read as a whole, the record indicates that the
disputed remark was merely a response to appellant's assertion of improper
influence by the SEC letters, and not an admission that the judge was
unalterably predisposed to the sentence appellant received. The judge below did
not refuse or fail to consider any evidence or argument favorable to appellant.
He reviewed all relevant reports and gave appellant an opportunity to speak
before imposition of the sentence. In short, nothing in the record of this case
compels us to conclude that the district judge closed his mind to evidence
favorable to appellant before the sentencing proceedings were concluded.
For these reasons, the judgment of the district court is
AFFIRMED.
Of course, had appellant's earlier reliance on the plea agreement prejudiced his
position or given the prosecution an unfair advantage, then we possibly would
order the plea agreement enforced. See United States v. Aguilera, 654 F.2d 352
(5th Cir.1981); United States v. Ocanas, 628 F.2d 353 (5th Cir.1980)

United States v. Dennis E. Greenman, 700 F.2d 1377, 11th Cir. (1983)

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United States v. Dennis E. Greenman, 700 F.2d 1377, 11th Cir. (1983)

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700 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

Appellant seeks to vacate his prison sentence by alleging a broken plea

For these reasons, the judgment of the district court is

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