United States v. William Eugene Carter

BOREMAN, Senior Circuit Judge

(dissenting):

On August 9, 1968, in Washington, D. C., Carter was arrested by special agents of the Federal Bureau of Investigation. At the time of his arrest he was in a car and the agents recovered from the vehicle approximately $156,000 in stolen government checks. Carter had purchased these checks from the actual thief and, when arrested, was attempting to sell them to a third party. In return for information furnished concerning the theft, an Assistant United States Attorney for the District of Columbia agreed to permit Carter to plead guilty to one misdemeanor charge based upon a charge of possession of these checks. As a result of Carter’s cooperation the principal thief was arrested, charged, and pleaded guilty to a felony in the District of Columbia. Carter was placed on probation for one year by the Court of General Sessions of the District of Columbia 1 on his plea of guilty to possession of stolen government property, a violation of the District of Columbia Code.

The conviction which Carter now appeals resulted from his activities in the Eastern District of Virginia in connection with the forging and uttering of stolen government checks other than those he was attempting to sell at the time of his arrest in the District of Columbia. 2 Carter had originally purchased approximately $250,000 in stolen checks. After this purchase, a large quantity of these checks were forged and cashed at Virginia banks pursuant to a conspiracy among Carter and others, most of whom were close friends or relatives of Carter. These crimes were perpetrated through the use of false District of Columbia Department of Sanitation and Engineering identification cards obtained by Carter. Apparently, after his supply of false identification cards was exhausted, Carter began looking for a package deal to get rid of the remaining cheeks and it was while he was in the process of making such a deal that he was arrested in Washington, D. C. The possession charge in the District of Columbia included only those checks found at the time of Carter’s arrest. The Eastern District of Virginia charges relating to forging and uttering, brought subsequent to the negotiations and entry of Carter’s guilty plea in the District of Columbia, were based on criminal activities involving stolen Treasury cheeks other than those which led to the possession charges in the District of Columbia.

Although the F.B.I. passed Carter’s statement on to the Secret Service agent investigating the forging and uttering *430 aspects of the case, from information before us on appeal it is apparent that independently-gathered evidence would, and did, lead the Secret Service to Carter. Carter’s statement was not used against him at the Virginia trial nor were the checks involved or the arrest made in the District of Columbia introduced in evidence by the Government. Carter’s sole contention on appeal is that the Eastern District of Virginia indictment should have been dismissed because both Carter and his attorney “understood” that the Assistant United States Attorney for the District of Columbia, in agreeing to accept a plea of guilty to one misdemeanor, was purporting to grant immunity from further prosecution for any criminal activity concerning the checks which Carter had purchased regardless of where the activity took place.

The majority concludes that the case must be remanded for evidentiary determination of the nature and extent of the plea bargain reached in the District of Columbia. With respect to the promise assertedly made by the District of Columbia Assistant United States Attorney, my brothers in the majority hold that “If the promise was made, relied upon and breached as alleged, the indictment should be dismissed. . . .” This direction is difficult to understand in light of the following colloquy at the hearing on Carter’s motion to dismiss the indictment between the district court and Allan M. Palmer, Carter’s defense counsel in both the District of Columbia and Eastern District of Virginia proceedings:

THE COURT: Are you saying you had an understanding with Mr. Jones [F.B.I. agent] and with Mr. Collins [Assistant U.S. Attorney for the District of Columbia] that if he [Carter] would divulge all he knew, that it not only would wrap up the pending charge in the District, but all possible charges, if any, growing out of his participation with these checks in Virginia and any other state?

MR. PALMER: Let me say this, Your Honor. There was no specific point, there was no agreement in writing.

THE COURT: I did not ask you about an agreement in writing. I asked you if that was your understanding.

MR. PALMER: My understanding included all of these things I knew.

THE COURT: Did Jones tell you? I do not want you to waste my time. Did Jones tell you specifically, if you get this boy [Carter] to talk, there will be no prosecution in Virginia for anything growing out of this? He either did or did not.

MR. PALMER: No. I say no to that.

THE COURT: Did Collins tell you that?

MR. PALMER: No, Your Honor.

Thus it appears that no promise purporting to include Virginia prosecutions was expressly made. 3 The real nature of Carter’s contention, as I understand it, is rather that while the scope of the agreement reached during the plea bargaining was never precisely delineated, defense counsel actually “understood” that the agreement encompassed all of Carter’s activities connected with all of the stolen checks Carter had purchased and not merely the possession of those particular checks which were the subject of the then pending District of Columbia charges. Since it was determined by the district court that there was no express promise made affecting federal prosecution in Virginia, which determination finds support in the record as noted above, a remand for a redetermina *431 tion of that same question appears to me to be wholly without justification. If the purpose of the remand is to ascertain, in the light of representations actually made, whether there was any reasonable basis for such an understanding on the part of Carter and his counsel as claimed by them, then the premise (“If the promise was made . . .”) of the majority’s holding as to Carter’s entitlement to relief from his Virginia conviction does not seem to reach this question. This and other difficult legal questions may confront the district court after full factual development. It is possible, for example, that Carter and his counsel jumped to the conclusion that the scope of the agreement extended beyond the District of Columbia charges but it is further possible that the evidence would support a finding that the representations of the Assistant United States Attorney were not reasonably susceptible to such a broad and all-encompassing construction. Such possibilities would support different arguments bearing on considerations of “the honor of the government, public confidence in the fair administration of justice, and the efficient administration of justice in a federal scheme of government,” factors which are said by the majority to be “at stake” in the decision of this case. The majority opinion does not deal adequately with such possibilities and some clarification would be helpful to the district court on remand.

My primary concern here, however, is that I do not believe Carter to be entitled to relief in this case under any theory which might be proved in an evidentiary hearing, and that a remand is therefore wholly unnecessary. Even assuming that both Carter and his experienced counsel actually and reasonably understood that the plea bargain reached in the District of Columbia purported to encompass all of Carter’s criminal activities concerning the checks, I am persuaded that the United States Attorney’s office for the District of Columbia could not enter into a valid plea bargaining agreement to bind the district court and the federal prosecutor in another jurisdiction with respect to separate and wholly different crimes committed outside the District of Columbia. The majority’s holding to the contrary judicially expands the jurisdictional powers of federal prosecutors far beyond those reasonably necessary for the performance of their duties while at the same time imposing an unwarranted restriction upon the recognized powers and duties of other prosecutors and of the district courts to deal effectively with crimes committed within their respective jurisdictions.

If courts were permitted to decide cases because of sympathetic considerations I would have no difficulty in agreeing to a remand which included proper and adequate directions to the lower court. But the injustice to Carter here, if any, was accomplished within the District of Columbia by an official of that jurisdiction. The executive officials and courts of the Eastern District of Virginia should not be prevented from seeking to punish crimes victimizing the people of that district because an official elsewhere has overstepped the limits of his power. It can, of course, be contended that the District of Columbia courts can reach only the guilty plea entered by Carter pursuant to the asserted agreement, and that this would not suffice since Carter also gave an incriminating statement which cannot now be withdrawn. The problem thus presented is a real one and is not readily solved. I am convinced, however, that in bending over backward to be fair to this defendant, the majority has overlooked the legitimate interests of the courts, officials and people of the Eastern District of Virginia.

It is possible that an entirely equitable judicial solution may not be found on the facts of this case. Carter might move for reduction of his sentence in Virginia, or, if in fact Carter was misled by, and acted to his prejudice upon, the representations of the District of Columbia Assistant United States Attorney, the case may be appropriate for executive clemency. But the idea advanced and adopted by my brothers, that the *432 District of Columbia Assistant United States Attorney could bind federal prosecutors and courts in Virginia with respect to separate offenses committed in that jurisdiction, is unacceptable to me.

Both Santobello v. New York, 404 U.S. 257 , 92 S.Ct. 495 , 30 L.Ed.2d 427 (1971), and United States v. Paiva, 294 F.Supp. 742 (D.D.C.1969), cited by the maj'ority in support of its decision, involved a plea bargain breached in the district in which it was made. My brothers “think this a distinction without a difference.” I cannot agree.

For the reasons stated, I respectfully dissent.

. The Court of General Sessions of the District of Columbia has undergone changes due to the July 1970 reorganization of the courts in the District of Columbia. In 1968, at the time Carter was prosecuted in the District of Columbia, that court had criminal jurisdiction of violations of the District of Columbia Code. The charges leading to the instant appeal, which, as hereinafter exxilained in the text arose in the Eastern District of Virginia, were based on violations of general federal law.

. The majority’s statement that “The Virginia xmoseeution involved stolen Treasury checks, some of which were the object of an earlier imoseeution against defendant in the District of Columbia,”, is somewhat misleading, according to my understanding of the facts of this case.

. The district court found, at the close of the hearing on Carter’s motion, that: Your motion to dismiss [on] the arrangement he allegedly had is denied on two grounds. First, you have not satisfied the Court you had an arrangement that would affect prosecution in Virginia, and, secondly, even if you had, the Court would not honor an arrangement made by a D.C. District Attorney.