# Vincent E. Scott v. United States > Court of Appeals for the D.C. Circuit · February 13, 1969 · 419 F.2d 264 URL: https://www.frixlaw.com/law-library/cases/9455100 ## Case - **Full name:** Vincent E. SCOTT, Appellant, v. UNITED STATES of America, Appellee - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** February 13, 1969 - **Citations:** 419 F.2d 264; 135 U.S. App. D.C. 377; 1969 U.S. App. LEXIS 8942 - **Precedential status:** Published - **Opinion:** Concurrence by Wright - **Judges:** Bazelon, Wright, Leventhal - **Cited by:** 125 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9455100 ## How later opinions describe it (automated extraction) - rejecting argument that perjury was probative of appropriate sentence ## Opinion text J. SKELLY WRIGHT, Circuit Judge (concurring): I concur in the result in this case, and in Parts I through IV of Judge Bazelon’s opinion. However, I disagree in some respects with the discussion in Part V of that opinion, and therefore I set forth my own views. In Part V two separate questions are considered: (1) to what extent should the judge become involved in the bargaining; and (2) what bargains by the prosecutor should be allowed. I shall discuss each- separately. I It is clear that if the judge takes his role under Rule 11, Fed.R.Crim.P., seriously he must inquire into the circumstances of the bargaining between the prosecutor and the defendant. It would only heighten the already unfortunate invisibility of the bargaining process — and weaken respect for the courts — if the judge and the parties pretended that no bargaining had occurred when they all knew that it had. However, as Judge Bazelon notes in Part IV of his opinion, the judge cannot be a participant in the bargaining. The question narrows, therefore, to the extent to which the judge should inquire into- and ratify the bargain struck by the prosecutor and the defendant. Judge Bazelon would follow the Second Circuit’s approach in United States ex rel. Rosa v. Follette, 395 F.2d 721 (1968). I disagree with the extensive dicta in that case to the effect that a judge can tell a defendant before the defendant decides to plead guilty that if he so pleads he will be given the sentence offered by the prosecutor as the bargain for the plea. 1 Considering the relative positions of the judge and the accused, I cannot see how ratifying the prosecutor’s bargain is less coercive on the accused than if the judge participated in the bargaining from the beginning. What Judge Weinfeld said in United States ex rel. Elksnis v. Gilligan, S.D. N.Y., 256 F.Supp. 244, 254 (1966), is applicable to such a situation: “The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings'to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A *280 defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. * * Intentionally or otherwise, and no matter how well motivated the judge may be, the accused is subjected to a subtle but powerful influence. A guilty plea predicated upon a judge’s promise of a definite sentence by its very nature does not qualify as a free and voluntary act. * * * “A judge’s prime responsibility is to maintain the integrity of the judicial system; to see that due process of law, equal protection of the laws and the basic safeguards of a fair trial are upheld. The judge stands as the symbol of evenhanded justice, and none can seriously question that if this central figure in the administration of justice promises an accused that upon a plea of guilty a fixed sentence will follow, his commitment has an all-pervasive and compelling influence in inducing the accused to yield , his right to trial. * * * ” (Footnotes omitted.) I would restrict the judge’s role under Rule 11 to determining, by an on-the-record investigation, the voluntariness of the plea bargain. One who is a party to a bargain is hardly in the best position to determine its fairness and voluntariness by making “a penetrating and comprehensive examination of all the circumstances under which such a plea is tendered.” Von Moltke v. Gillies, 332 U.S. 708, 724 , 68 S.Ct. 316, 323 , 92 L. Ed. 309 (1948). II Turning to the question of what bargains should be allowed between the prosecutor and the defendant, I would adopt an approach similar to that taken by Judge Tuttle in Shelton v. United States, 5 Cir., 242 F.2d 101, 115 (dissenting opinion), reversed, 5 Cir., 246 F.2d 571 (1957) (en banc), reversed on confession of error, 356 U.S. 26 , 78 S.Ct. 563 , 2 L.Ed.2d 579 (1958) : “ * * * [A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the * * * prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes). * * * >> I would thus allow the prosecutor to bargain with counsel for the accused. Other than complying with their Rule 11 obligation as indicated in Part I, courts should intervene only where the prosecutor has exceeded “proper” bounds. Judge Bazelon would attempt to narrow the permissible bargains by allowing the prosecutor to offer concessions when based on an estimate of the outcome of a trial, but not allow the prosecutor to offer concessions when based on other motives, for example a desire to unclog overcrowded dockets. I think it unlikely that courts can oversee the motives of the prosecutor to such a refined degree. Further, this would result in the anomalous situation wherein, since greater concessions would be offered only to those defendants with the best chance of acquittal, trials would tend to be limited to open-and-shut cases against the defendants. Judge Bazelon argues that somehow no “cost” is imposed on a defendant who rejects a plea bargain based on estimated trial outcome and goes to trial. I fail to see this. A defendant who rejects the offer to plead guilty to manslaughter and is convicted on the murder charge has obviously paid a price. The fact that the motive behind the prosecutor’s concession is docket-clearing should not preclude bargaining. Defendants, provided they bargain knowingly, and with the effective assistance of counsel, should be allowed to take advantage of this consideration impelling the prosecution to offer leniency. *281 In sum, if the court keeps the prosecutor within proper bounds in the sense discussed above, the parties should be allowed to bargain freely. The judge, by bringing to the surface the conditions of the bargain, can properly oversee the process. The result will be to give the courts a more extensive knowledge of the workings of this heretofore low-visibility process, and thus allow the courts to refine their supervisory standards. . The actual facts in that ease showed that the' defendant had decided to enter his plea before the judge announced that he would follow the prosecutor’s recommended sentence. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9455100. Public record. Not legal advice.