Petition — Siegel v. New York

82-1108 |

i

eee!

| ALEXANDER L. SIEVAS,

IN THE CLERK

Supreme Court of the United States

October Term, 1982

BENJAMIN SIEGEL,

Petitioner,

Vv.

THE STATE OF NEW YORK and EDWARD J.

KURIANSKY, Deputy Attorney General for

Medicaid Fraud,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

PETITION FOR CERTIORARI

ELeanor Jackson Pre,

Attorney for Petitioner

36 West 44th Street

New York, New York 10036

(212) 575-0797

Of Counsel:

Haro I. CamMMER

Rosert CAMMER

9 East 40th Street

New York, N. Y. 10016

(212) 683-6790

Questions Presented for Review

1. Whether under Santobello v. New York, 404 U.S. 257

(1971) and Blackledge v. Allison, 431 U.S. 63 (1977), fed-

eral due process requires enforcement of a plea bargain

established as entered into but which is not explicitly set

forth on th: allocution record.

2. Whether federal due process as defined by Boykin v.

Alabama, 395 U.S. 257 (1977), prohibits a state from shift-

ing the burden of establishing the voluntariness of a guilty

plea to a defendant and his counsel where the sentencing

judge has failed to make an on-the-record inquiry whether

any promise induced the plea.

3. Whether the Second Circuit’s holding that a state

may apply a ‘‘statute of frauds’’ rule that a judicially

established plea bargain which has not been placed on the

sentencing record by a defendant is unenforceable violates

due process and represents a significant conflict with the

other Circuit Courts of Appeal.

4, Whether, under Sumner v. Mata, 449 U.S. 539 (1981),

the Second Circuit erroneously reversed without explana-

tion the findings of the District Court Judge who complied

with 28 U.S.C. §2254(d) by accepting the fact findings of

the state courts.

TABLE OF CONTENTS*

Questions Presented for Review

Table of Authorities .................... paces ve

Citations to Opinions ........... ta VER Gt RMA ee Te

Jurisdictional Grounds for Review .

Constitutional Provisions and Statutes Involved

Statement of the Case .....................

Reasons for Granting the Writ .................

Point I—The Decision Below Is a Clear Break With

This Court’s Holdings in Santobello, Blackledge,

and Their Progeny, That a Defendant Is Entitled

to His Reasonable cacao Created nd a Plea

Bargain x pte ese ; '

Point II—The ‘‘Statute of Frauds’’ Rule Applied is in

This Case Violates Boykin by Impermissibly

Shifting the Duty of Making a Record Which

Establishes the Voluntariness of a Guilty Plea

from the Court, Where This Court Has Placed It,

to the Defendant

Point I1l—The Holding Below Conflicts With De-

cisions in the First, Third, Fourth, Fifth, Seventh,

HKighth, Ninth, and Eleventh Circuits

Point I[V—The Cireuit Court Below Violated Sumner

v. Mata and Ignored 28 U.S.C. §2254(d) Without

Giving the Required Explanation

Conclusion ................... EERIE ny dS Pe nea

PAGE

ow SO WS KS <

12

14

16

19

* The caption identifies all parties and their alignment in the

district court.

Appendices

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

Iv

October 22, 1982 Decision and Judg-

ment of Second Cireuit Court of

Appeals herein Reversing the Dis-

trict Court and Dismissing Petition/

Complaint (Siegel v. State and Kuri-

ansky)

June 15, 1982 Decision and Order here-

in of the U.S. District Court for the

Southern District of New York

Granting Preliminary Injunction

(Siegel v. State and Kuriansky) ......

December 17, 1980 Opinion and Order of

N.Y. State Supreme Court, Queens

County, Finding and Enforcing Plea

Bargain and Modifying Respond-

ent’s Grand Jury Subpoena (Matter

of Benjamin S. (Kuriansky) )

July 27, 1981 Decision of Appellate

Division Affirming N.Y. State Su-

preme Court, Queens County (Mat-

ter of Benjamin S. (Kuriansky), 83

A.D.2d 630, 441 N.Y.S.2d 698 —

Dept. 1981)) . ee

February 18, 1982 Opinion and Order

of New York Court of Appeals

Reversing Appellate Division (Mat-

ter of Benjamin S. (Kuriansky), 56

N.Y.2d 116, 447 N.Y.S.2d 905, 432

N.E.2d 777 (1982)) ..

PAGE

la

17a

36a

49a

Appendix F March 25, 1982 New York Court of

Appeals Certification of Federal

Question (Matter of Benjamin 8.

(Kuriansky), 56 N.Y.2d 570, 450

N.Y.8.2d 186, 435 N.E.2d 403 (1982) )

Appendix G March 5, 1981 Decision and Order of

the New York State Supreme Court,

New York County, Denying Peti-

tioner’s Motion to Withdraw His

Plea (People of N.Y. v. Siegel)

Appendix H Constitutional Provisions and Statutes

Involved

PAGE

69a

70a

73a

Va

TABLE OF AUTHORITIES

PAGE

Decisions:

Blackledge v. Allison, 431 U.S. 563 (1977) 1, 11, 8, 9-11,

12, 14

Boykin v, Alabama, 395 U.S. 238 (1977) 1, 11, 8, 9, 12,

13, 14, 17

Brady v. United States, 397 U.S. 742 (1970) 13

Chaipis v. State Liquor Authority, 44 N.Y.2d 57, 404

N.Y.S.2d 76, 375 N.E.2d 32 (1978)... 6

Cooper v. United States, 594 F.2d 12 (4th Cir. 1979)... 8,15

Correale v. United States, 479 F.2d 944 (1st Cir. 1973) 14

Edwards v. Garrison, 539 F.2d 1374 (4th Cir. 1975) 15

Fontaine v. United States, 411 U.S. 213 (1973) i:

Geisser v. U.S., 513 F.2d 862 (5th Cir. 1975), on app.

after remand, 554 F.2d 698 (5th Cir. 1977), on

app. after remand, 627 F.2d 745 (5th Cir. 1980) 15

Henderson v. Morgan, 426 U.S. 637 (1976) 12

LaVallee v. Della Rose, 410 U.S. 690 (1972) 17

Lonberger v. Jago, 651 F.2d 447 (6th Cir. 1981) 17

McCarthy v. United States, 394 U.S. 459 (1969)... 12,18

Matter of Benjamin S. (Kuriansky), N.Y. Sup. Ct.

(Queens County) (unreported) ... 2,5

Matter of Benjamin 8S. (Kuriansky), 83 A.D. 2d 630,

441 N.Y.S.2d 698 (2d Dept. 1981) . 2, 4, 5, 17-18

Matter of Benjamin S. (Kuriansky), 55 N.Y.2d 116,

447 N.Y.S.2d 905, 482 N.E.2d 777 (1981) ..............2, 6-7

Matter of Benjamin S. (Kuriansky), 56 N.Y.2d 570,

450 N.Y.S.2d 186, 435 N.E.2d 403 (1981) 2

Mawson v. United States, 463 F.2d 29 (1st Cir. 1972) 14

PAGH

Patrick v. Camden County Prosecutor, 630 F.2d 206

(8rd Cir. 1980, 14

People v. DeForna, 53 N.Y. 2d 1006, 442 N .Y.S.2d 476,

425 N.E.2d 864 (1980) _. 6

People v. Frederick, 45 N.Y.2d 520, 410 N y. S.2d 555,

382 N.E.2d 1332 (1978) | 6

People v. McConnell, 49 N.Y.2d 340, 425 N. Y.S .2d 794,

402 N.E.2d 189 (1980) _.. . 6

People of N.Y. v. Siegel, N.Y. Sup. Ci. (N.Y, County)

I ooo cls pei sn dhsoa caste saciicesaivevssacovs 2,7

People v. Selikoff, 35 N.Y. 2d 297, 360 N.Y.S.2d 623,

318 N.E.2d 784 (1974) 6

People v. Wheaton, 45 N.Y.2d 769, 408 N. y. S. 2d 498,

380 N.E.2d 324 (1978) cee He 6

Rowe v. Griffin, 676 F.2d 528 (11th Cir. 1982) ............ . 16

Santobello v. New York, 404 U.S. 257 (1971) ......1,1m, 5, 8,

9-11, 13, 14, 19

Siegel v. State of New York and Kuriansky (U.S.D.C.

S.D.N.Y. 1982) . ices Fat 1-2, 7,17

Siegel v. State of New York and Kuriansky, se LF, 2d

See I MN UN oes sasccvncdschsasesxovscnph ueviesiscncvesiens passim

Smith v. O’Grady, 312 US. 329 1:7 SES Rd eka eer 12

Sumner v. Mata, 449 U.S. 539 (1981) on rehearing,

yaaa 1, tv, 16-17, 19

United States v. American Bag & Paper Corp., 609

SMe DM CY, PUD oii. cscsscscsnscahgnevensasasesveeesesss 14

United States v. Arnett, 628 F.2d 1162 (9th Cir. 1979) 16

United States v. Blair, 470 F.2d 331 (5th Cir. 1972) 15

United States v. Bowler, 585 F.2d 851 (7th Cir. 1978) 15

United States v. Cook, 668 F.2d 317 (7th Cir. 1982) 15

United States v. Carter, 454 F.2d 426 (4th Cir. 1972) 15

U.S. ex rel. Culbreath v. Rundle, 466 F.2d 730 (3rd

(ye Bae ed Ree Se al ae 14

Viitr

PAGE

United States v. Hammerman, 528 F.2d 326 (4th Cir.

SU viate ccan 15

United States v. McCord, 618 F. 2d 389 (5th Cir.1980) 15

United States v. Minnesota Mining, ete., 551 F.2d 1106

(8th Cir. 1977) ............ 15

United States v. Runck, 601 F. 2d 968, (8th Cir. 1979) 15

United States v. Scharf, 551 F.2d 1124 (8th Cir.1977) 15

United States v. suet 537 F.2d 1260 wu Cir.

1976) _. chee oh oR nme 16

Constitutional and Statutory Provisions:

U.S. Constitution, Fourteenth ne Section 1 3

28 U.S.C. $1254(1) ........... Joep ine nl a an We tere 3

BENS I a scoacarc; casisnicsadesethonssssnencocn 7

Be Ue EOD ov cccisciscssstccossincgsscvecceaves 1087 4, 8, 16-17, 19

42 U.S.C. §1983 vs yaieveies, ee

N.Y. Constitution, Article VI, §3(a) ssacbaivcuerss a

By ne A a UND ose ousacn teks assess vanmtsncdivisicces teed oeasiooan 3, 5, 6

N.Y. Criminal Procedure Law $§ 440.10(1) (b) and

SED aicsselosscsctvcseves viccet

Other Authorities:

Westen and Westin, A Constitutional Law of Rem-

edies for Broken Plea Bargains, 66 Cal.L.Rev.

te Rr ee et ee Coe en 8

No.

IN THE

Supreme Court of the United States

October Term, 1982

—-—

BensamMin Srece.,

Petitioner,

v.

Tue State or New York and Epwarr J. Kvuriansxy,

Deputy Attorney General for Medicaid Fraud,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

i <o Gmee

PETITION FOR CERTIORARI

Citations to Opinions

The October 22, 1982 decision and judgment of the

United States Court of Appeals for the Second Circuit

sought to be reviewed reversing the District Court and

dismissing the petition/complaint is not yet officially re-

ported and is reproduced in Appendix A.

The June 15, 1982 decision and order herein of the

United States District Court for the Southern District of

2

New York granting petitioner a preliminary injunction is

not yet officially reported and is reproduced in Appendix B,

The opinion and order of New York State Supreme

Court Justice Balbach finding and enforcing the plea bar-

gain herein and modifying respondent's grand jury sub-

poena is unreported and is reproduced in Appendix C,

The opinion of the Appellate Division of the New York

State Supreme Court unanimously affirming Justice Bal-

bach is reported at 83 A.D, 2d 630, 441 N.Y.S, 2d 698 (2nd

Dept. 1981) and is reproduced in Appendix D,

The opinion and order of the New York Court of

Appeals reversing the Appellate Division is reported at

55 N.Y. 2d 116, 447 N.Y.S, 2d 905, 432 N.H.2d 777 (1982)

and is reproduced in Appendix B.

The certification of the New York Court of Appeals

that it passed upon petitioner’s due process claim that his

‘federal constitutional rights ar» violated by the require-

ment that, once a record is made of the terms of a plea

bargaining agreement, all promises made to the pleading

defendant must be made a part of that record before they

will be enforced”’ is reported at 56 N.Y, 2d 570, 450 N.Y.S,

2d 186, 435 N.E.2d 403 (1982) and is reproduced in

Appendix F,

The March 5, 1981 decision and order of the New York

State Supreme Court, New York County, denying peti-

tioner’s motion to withdraw his plea is unreported and is

reproduced in Appendix G,

Jurisdictional Grounds for Review

The judgment of the Second Cireuit Court of Appeals

was entered on October 22, 1982, Appendix A.

A timely petition for rehearing and suggestion for re-

consideration in bane was denied on December 3, 1982,

On November 15, 1982, the Second Cireuit stayed its

mandate pursuant to App, Rule 41(b) pending application

to this Court for a writ of certiorari,

The jurisdiction of this Court is conferred by 28 U.S.C,

§1254(1),

Constitutional Provisions and Statutes Involved

This case involves Section 1 of the Fourteenth Amend-

men to the United States Constitution, 28 U.S.C, §2254(d),

42 U.S.C, §1983, N.Y, Constitution, Article VI, §3(a), N.Y,

Criminal Procedure Law §§ 440,10(1)(h) and 440,20(1),

and N.Y, CPLR 5501(b), (¢).

These provisions are set out verbatim in Appendix H,

Statement of the Case”

In January 1979, petitioner, a wholesale meat salesman,

pleaded guilty in the New York State Supreme Court, New

* The facts here stated are as found by the decisions of the courts

which made fact findings in the litigations between the parties—

see vs cogpene B, C, and D—and in petitioner's unrebutred petition/

complaint and moving affidavits in the District Court, Respondent

has not filed an answer or affidavits to contravene these statements,

On the present record, the constitutional and other issues raised are

therefore unclouded by factual questions,

4

York County, to one count of a multi-count perjury indict-

ment which alleged that, in testifying before a New York

County grand jury, petitioner had falsely denied knowledge

of or involvement in improper payments to the health care

industry.

The plea resulted from discussions suggested by the

state trial judge who, in denying petitioner’s motion to dis-

miss for defects in the indictment and in the interest of

justice, said that the case was in ‘‘a gray area’’ and ‘‘ap-

priate for disposition’’ (Appendix D, at 50a),

irom the outset of these discussions, petitioner’s coun-

sel informed the court and respondent special prosecutor

that petitioner would not consider a plea unless he would

not be sentenced to jail and, to allow him to continue to earn

his livelihood in his industry, unless he not be required

again to talk or be questioned about the subjects of his

grand jury testimony; and the prosgcutor assented, The

court accordingly stated that it would accept the plea, See

p. 18, infra, and Appendices C and D,

On the record of the allocution, the court, noting peti-

tioner’s prior ‘‘exemplary’’ record and the problems faced

by one in petitioner’s employment, sentenced him to five

years probation, which he is now serving, and a $2,500 fine,

Although the prosecutor referred to off-the-record dis-

cussions ‘‘at the Bench’’ (Appendix ©, at 42a), the court

made no formal inquiry whether any promises had induced

the plea.* However, the court did not require petitioner to

* The state Appellate Division emphasized as “conspicuously ab-

sent” the “‘oft- + any" whether promises were made to induce

the plea (Appendix D, at 57a)—a constitutionally critical fact not

noted by the Second Circuit 1 below in its otherwise accurate

statement of the facts,

re-appear before the rand jury or to talk to the special

prosecutor as a condition of receiving the sentence. And

although the prosecutor had earlier represented to the court

that petitioner had information important to the govern-

ment, he made no effort to re-call petitioner before the

grand jury or to question him again.

Six months later, another assistant in the Queens County

office of the same special prosecutor, who did not know of

the plea bargain, subpoenaed petitioner to appear before

the Queens County grand jury.

Petitioner moved to quash the subpoena, The Queens

County branch of the New York Supreme Court held a

two-day evidentiary hearing at which petitioner’s counsel

and the assistant prosecutor who had negotiated the plea

testified. That court found that the prosecutor had know-

ingly induced petitioner’s guilty plea on the understanding,

of which the sentencing court was aware, that petitioner

would not again be questioned about the subjects of the

grand jury testimony that led to his indictment. Invoking

Santobello, it accordingly modified the new subpoena to

limit inquiry to matters not covered by petitioner’s New

York County testimony. Appendix C,

These findings were expanded and the result unani-

mously affirmed by the Appellate Division in the exercise

of its statutory power to make its own factual findings.

Appendix D, N.Y. CPLR 5501(c). Appendix H, at 76a.

New York State’s Constitution and statutes deny to

its Court of Appeals jurisdiction to review or modify fact

findings made by an Appellate Division in affirming a trial

court, N.Y. Constitution, Art. XI, §3(a); N.Y. CPLR

5501(b). Appendix H, at 75a.

Without disturbing the fact findings of the state Su-

preme Court in Queens or of the Appellate Division, the

New York Court of Appeals nonetheless reversed on the

ground that the hearing should not have been held (as

‘*unnecessary’’) because petitioner’s counsel had not placed

the promise on the record when the plea was entered.

Appendix 9B.

The state Court of Appeals acknowledged that this was

the first time that it applied such a rule where the plea

bargain was uncontradicted by the record and where the

sentencing judge and the prosecutor complied with the

bargain.” That Court also held it to be a ‘‘mere fact’’ that

the sentencing court, which was aware of and honored the

bargain, had not asked whether any promise induced the

plea, stating that even though in ‘‘every case’’ the judge

should ask that question, the defendant had the ‘‘burden’’

* In two earlier decisions, the New York Court of Appeals ruled

that such a promise could not be asserted to contradict a thorough

Boykin record seg Ly ynudiated the existence of a claimed promise

(People v. Seliko wh .Y.2d 227, 242-43, 360 N.Y.S.2d 623, 49

NE bgp 'g iy cert. den. 419 U.S, 1122 (1974) and Sep Py

Frederick, 4 2d 520, 526-27, 410 N.Y.S.2d 555, 382 E.2d

1332 (1978)). However, it later enforced off-the-record promises

which were not so contradicted (Chaipis v. State Liquor Authority,

44 N.Y.2d 57, 404 N.Y.S.2d 76, 375 N.E.2d 32 (1978) ) and upheld

the right to a hearing to establish off-the-record promises (see Poe or

v. DeForna, 53 N.Y.2d 1006, 442 N.Y.S.2d 476, 425 N.E.2d

(1981); People v. McConnell, 49 N.Y.2d 340, 425 N.Y.S.2d 794,

$02 N.E.2d 133 (1980); and People v. Wheaton, 45 N.Y.2d 769,

408 N.Y.S,2d 498, 380 N.E.2d 324 (1978) ). In this case, the record

neither refutes the plea bargain nor did defendant disclaim one.

7

of placing the promise on the record, if the court fails to

inquire, at the risk of losing its benefit. Appendix E, at

67a-68a,

Petitioner thereupon moved in the New York County

Supreme Court, where he had been prosecuted, to withdraw

his plea in view of the unenforceability of the agreement by

which it had been induced, That motion was denied as

barred by the ruling of the Court of Appeals, and leave to

appeal was denied. Appendix G.

Having exhausted his state remedies, petitioner brought

this federal habeas corpus proceeding/Civil Rights Act (42

U.S.C. $1983) suit in the United States District Court for

the Southern District of New York and moved for a pre-

liminary injunction against enforcement of the Queens sub-

poena.” As noted (fn., p. 3, supra), respondent did not file

an answer or opposing affidavits.

The District Court (Sweet, J.) granted the injunction

after its own review of the testimony and also because it

found a sufficient basis for the findings of fact of the only

jurisdictionally competent state courts that the claimed

promise had in fact been made and violated. Appendix B.

See 28 U.S.C. §2254(d). Appendix H, at 73a-74a.

A Second Circuit Panel (Judge Pratt, dissenting) re-

versed the injunction and dismissed the petition/complaint

on the ground that previous decisions of the state Court of

Appeals had signalled the state’s intention to adopt a ‘‘stat-

*The District Court's jurisdiction was conferred by 28 U.S.C.

§§2254 and 1343.

ute of frauds’’ rule* for plea bargains and that such a state

rule does not violate federal due process. Appendix A.

The Second Circuit did not address the District Court’s

ruling that, under 28 U.S.C, §2254(d), there was a presump-

tion of correctness for the Queens County and Appellate

Division findings, after a full adversarial hearing, that the

proven plea bargain in this case is entitled to specific per-

formance, The Panel’s dismissal further precluded a hear-

ing on petitioner’s alternate claim to withdraw his plea in

view of its manifest involuntariness if the bargain is not

honored.

Reasons for Granting the Writ

1. The Second Circuit’s decision is inconsistent with the

controlling decisions of this Court in Santobello, Boykin,

Blackledge, and their progeny, that federal due process

requires that a defendant receive his reasonable expecta-

tions in a plea bargain; indeed, under the Second Circuit's

ruling below, Suntobello could not have been decided as it

was;

2. The decision below conflicts with the prior holdings

of this Court that it is the non-delegable duty of the court to

*The Second Circuit's majority opinion introduces this phrase

into the decisional literature of plea bargains. The rule was not so

characterized by the New York State Court of Appeals nor, so far as

our research shows, in any decided case since Santobello. At most,

furthermore, Selikoff and Frederick, supra, state no more than a

_ “parol evidence’’-type rule, not a per se “statute of frauds” rule, that

a defendant may not offer evidence to contradict the terms of a clear

record which disproves a plea bargain, Other authorities reject such

a commercial law analogy in the due process area of Lg bargaining.

Cooper v. United States, 594 F.2d 12, at 16-17 (4th Cir, 1979),

See generally, Westen and Westin, A Constitutional Law of Rem-

edies for Broken Plea Bargains, 66 Cal.L.Rev. 471 (1976).

9

make a full record to establish the voluntariness of a plea

and that its failure to meet its Boykin responsibility leaves

it open to a defendant to show that his plea was not volun-

tary; and

3. The Second Cirevit Panel’s decision below creates a

novel, impractical, and unconstitutional per se ‘‘statute of

frauds’’ rule which conflicts with the decisions of this

Court and of the First, Third, Fourth, Fifth, Seventh,

HKighth, Ninth, and Eleventh Circuits and clouds the law of

plea bargains in derogation of the due process concerns

which justify the plea bargain process in the administration

of criminal justice.

POINT I

The Decision Below Is a Clear Break With This

Court’s Holdings in Santobello, Blackledge, and Their

Progeny, That a Defendant Is Entitled to His Reason-

able Expectations Created by a Plea Bargain.

The present record establishes that the prosecutor made

but later violated the plea bargain that petitioner would

not again be required to talk or to give any information

about the subjects of his grand jury testimony that led to

his prosecution. Correspondingly, in addition to the state

findings, the record below includes petitioner’s unrebutted

affidavit that he would not have pleaded guilty if he had

not relied on the prosecutor’s promise.

This case is indistinguishable from Santobello. Here,

as in Santobello, petitioner was represented by counsel.

Here, as in Santobello (404 U.S. at 259), the ‘‘second prose-

cutor, apparently ignorant of his colleague’s commitment,

10

argued that there was nothing in the record to support peti-

tioner’s claim of a promise. ...’’ (In this case, unlike Santo-

bello, the prosecutor, at the sentencing proceedings, specifi-

cally referred to an off-the-record ‘‘conference at the

Bench’’.) And on the unrebutted record, as in Santobello

(404 U.S. at 262-63), the ‘‘plea rests [to a] significant de-

gree on a promise or agreement of a prosecutor, so that it

can be said to be part of the inducement... .’’

The Second Circuit holding invites a prosecutor to in-

duce a plea then to violate his commitment because a defend-

ant has not volunteered an answer to a question the judge

did not ask because the judge knew and approved of the

answer without asking. However, Santobello requires only

that ‘‘the essence of the promise must in some way be made

known’’ (404 U.S. at 261; emph. added); it does not hold

that the defendant is required to put the promise on the

record when the court and prosecutor know of and comply

with it.

In Blackledge this Court rejected the very rule the Sece-

ond Circuit has now endorsed for New York. Said Justice

Stewart, ‘‘. . . the federal courts cannot fairly adopt a per

se rule excluding all possibility’? that what a defendant

later says concerning the circumstances of the plea must

be disregarded, 431 U.S. at 75, citing (431 U.S. at 73-74)

Fontaine v. United States, 411 U.S. 218 (1973).

Contrary to Santobello and Blackledge, the court below

has endorsed a ‘‘statute of frauds’’ rule which, it says

(Appendix A, at 1la-12a),

‘*furthers the integrity of the process by requiring that

the entire agreement be placed on the record and by

treating off-the-record promises as void’’

11

‘*In view of the salutary policies fostered by the New

York rule [the statute of frauds applied to plea bar-

gains] we cannot conclude that it offends the consti-

tutional concept of due process.’’*

This holding, however, does nothing to effectuate the

policies it states:

The failure to fulfill the bargain obviously does nothing

to enhance the likelihood of petitioner’s guilt. To the con-

trary, its effect is to brand one in petitioner’s circumstances

a felon without the benefit of the bargain on the basis of a

plea to an indictment of questionable validity where it was

the judge who initiated the plea discussions because, in his

words, the case was in a ‘‘gray area’’. Nor does the ma-

jority decision of the Panel encourage more openness than

there was in the negotiations in this case, of which the

sentencing court was fully aware. And finality was

achieved but for the chance intrusion six months later of

another assistant who was a stranger to the promise.

* As Judge Pratt succinctly said (Appendix A, at loa): “De-

sirable as it may be from the point of view of administering cases in

the state courts, I do not believe the ‘statute of frauds’ rule adopted

by the New York Court of Appeals and re by the majority

1d mpage under Santobello v. New York |citation], and Black-

ge Vv. Allison [citation].”

12

POINT II

The “Statute of Frauds” Rule Applied in This Case

Violates Boykin by Impermissibly Shifting the Duty

of Making a Record Which Establishes the Voluntari-

ness of a Guilty Plea from the Court, Where This

Court Has Placed It, to the Defendant.

The New York Court of Appeals decision, approved

here by the Second Circuit, held:

‘The court should, in every case, ascertain on the

record that no other promises have been made en which

the defendant might be relying. If the court fails to

make this determination, however, it is nevertheless

the defendant’s burden, on pain of losing the claimed

promise, to inform the judge accepting the plea of all

promises that were made to induce his plea that are

not otherwise revealed.’’ (Appendix FB, at 67a-68a)*

This ruling, as now approved by the Second Circuit,

violates a long line of cases in this Court which emphasize

that due process requires that a sentencing court take pains

to assure that a waiver of the basic constitutional rights

effected by a plea of guilty is knowingly and understand-

ingly made. E.g., Henderson v. Morgan, 426 U.S. 637, 645

n. 13 (1976); Smith v. O’Grady, 312 U.S. 329 (1941); Me-

Carthy v. United States, 394 U.S. 459 (1969).

This Court in Boykin made it the constitutional respon-

sibility of the judge, not of a defendant or his counsel, to

make a complete record to do this. The objectives of assur-

* A supposed exception for the “rare case” (see Appendix A, at

9a and 12a, and Appendix E, at 67a) is meaningless since the fact of

the bargain, established after a full hearing actually held, makes this

a “rare case.” Nor is this a post-Blackledge situation where a de-

fendant has disavowed the existence of a promise.

13

ing guilt, avoiding secretiveness, and achieving finality are

hindered, not furthered, if the penalty for the judge’s fail-

ure to perform his Boykin duty is shifted to the defendant,

who is least able and has least reason to correct the judge’s

default. (Even if it were in a defendant’s interest to put

the promise on the record, it might not be of equal advan-

tage to either the prosecutor or the court, for example, in a

case of a negotiated light sentence to a particularly violent

or serious crime.)

The Boykin responsibility must therefore necessarily

rest upon, and only upon, the trial judge because a guilty

plea induced by an unfilled promise is not voluntary. Brady

v. United States, 397 U.S. 742 (1970) ; Santobello, supra, at

262-263, 266. Therefore such a plea may not be accepted

without the constitutionally required determination by the

court ‘‘that a defendant’s guilty plea is truly voluntary.’’

McCarthy v. United States, supra, at 465-66,

This determination must be made by the court because

‘*by personally interrogating the defendant, not only

will a judge be better able to ascertain a plea’s volun-

tariness, but he will develop a more complete record to

support his determination in a subsequent post-convic-

tion attack.’’ Jd. at 466,

14

POINT III

The Holding Below Conflicts With Decisions in

the First, Third, Fourth, Fifth, Seventh, Eighth, Ninth,

and Eleventh Circuits.

Post-Santobello decisions in other circuits uphold a de-

fendant’s right to a hearing to establish a plea bargain

when the sentencing court fails to make a record which

clearly refutes its making. As required hy Santobello,

Blackledge, and Boykin, these Circuits thus recognize the

due process right to a hearing, even in the face of contra-

dictory statements in the allocution record, if a defendant

makes a factual showing to support his claim—something

petitioner actually did at a hearing held, the results of

which the court below denies him:

First Circuit: Correale v. United States, 479 F.2d 944

(1st Cir. 1973) (defendant entitled to resentencing to con-

form, so far as then possible, to possibly misunderstood

unfulfilled prosecution promise to defendant and his attor-

ney). See also Mawson v. United States, 463 F.2d 29 (1st

Cir. 1972).

Third Circuit: Patrick v. Camden County Prosecutor,

630 F.2d 206 (3rd Cir. 1980) (violation of plea bargain by

state prosecutor entitled defendant to relief, but remedy re-

ferred to state court). Cf., United States v. American Bag

& Paper Corp., 609 F.2d 1066, 1068 (3rd Cir. 1979); U. 8.

ex rel. Culbreath v. Rundle, 466 F.2d 730 (3rd Cir. 1972)

(ambiguous on-the-record reference at time of plea to pre-

cise terms of off-the-record agreement between counsel).

15

Fourth Circuit: United States v. Hammerman, 528 F.2d

326, 331-32 (4th Cir. 1975) (despite record denial that he

was promised a no prison sentence, in view of imprecise

on-the-record interrogation to exclude claimed unfulfilled

promise, defendant entitled to a hearing). See also, United

States v. Carter, 454 F.2d 426 (4th Cir. 1972), cert. den. 417

U.S. 933 (1974); Edwards v. Garrison, 539 F.2d 1374 (4th

Cir. 1975); Cooper v. United States, supra (enforcement

merely on basis of defendant’s reasonable expectations).

Fifth Circuit: United States v. McCord, 618 F.2d 389,

392-93 (5th Cir. 1980) (hearing granted despite sentencing

record which clearly contradicted claimed bargain) ; Geisser

v. U.S., 513 F.2d 862 (5th Cir. 1975), on app. after remand,

554 F.2d 698 (5th Cir. 1977) and, again, 627 F.2d 745 (5th

Cir. 1980) (government must specifically perform plea bar-

gain it repudiated because such a bargain ‘‘fits well within

the realm of enforceable constitutional rights’’). See also

United States v. Blair, 470 F.2d 331 (5th Cir. 1972) (plea

vacated as involuntary because trial judge did not inform

defendant on-the-record of maximum sentence).

Seventh Circuit: United States v. Cook, 668 F.2d 317,

319-21 (7th Cir. 1982) (plea withdrawal permitted because

of reliance on unfulfilled promise). See also, United States

v. Bowler, 585 F.2d 851 (7th Cir. 1978).

Eighth Circuit: United States v. Minnesota Mining,

etc., 551 F.2d 1106, 1110-11 (8th Cir. 1977) (inviolability of

government’s promise which induced plea). See also

United States v. Runck, 601 F.2d 968 (8th Cir. 1979);

United States v. Scharf, 551 F.2d 1124 (8th Cir. 1977), cert.

16

den, 434 U.S. 824 (1977) (court’s failure to develop terms

of plea bargain on-the-record).

Ninth Circuit: United States v. Arnett, 628 F.2d 1162

(9th Cir. 1979) (defendant entitled to evidentiary hearing

to establish alleged plea bargain), holding (at 1164), con-

trary to the ruling below herein:

‘*What the parties agreed to in instant plea bargain

is a question of fact.... Resolution of the good faith

disputes over the terms of an agreement should be made

by the district court, to whom the plea was originally

submitted, on the bassi of adequate evidence,’’

citing United States v. Simmons, 537 F.2d 1260 (4th Cir.

1976).

Eleventh Circuit: Rowe v. Griffin, 676 F.2d 524, 528

(11th Cir. 1982) (federal court injunction against state

prosecution in violation of oral immunity agreement).

POINT IV

The Circuit Court Below Violated Sumner v. Mata

and Ignored 28 U.S.C. §2254(d) Without Giving the

Required Explanation.

In habeas proceedings, 28 U.S.C. §2254(d) requires a

federal court to presume state court findings of fact to be

correct unless it explains the reasons for departing from

them. Sumner v. Mata, 449 U.S. 539, 546-50 (1981), after

rehearing, —— U.S. ——, 71 L.Ed2d 840 (March 22, 1982).

Based upon its review of the full record of the state

court proceedings, including the record of the Queens

17

County evidentiary hearing and the subsequent proceeding

under N.Y. Criminal Procedure Law §§ 440.10 and 440.20,

the District Court, in accord with 28 U.S.C. §2254(d)(8),

found that ‘‘[a] review of the record presented to [Queens

County Supreme Court] Judge Balbach establishes that the

findings of the state court are supported by the record.’’

(Appendix B, 30a-33a, at 32a.)

In view of the two-day hearing record, these findings

were not clearly erroneous. They therefore must be affirmed

by this Court. ZaVallee v. Della Rose, 410 U.S. 690, 692,

695 (1972).

While this case is unusual (the Second Circuit called it

‘*novel’’) in that it was the prosecutor who disputed and

the Second Circuit which upset the finality of these undis-

turbed state court findings of fact, 28 U.S.C. §2254(d) never-

theless prohibits relitigation of such findings unless, as

was not here the case, the merits were not resolved or the

hearing was otherwise unfair. 28 U.S.C. §2254(d)(1)-(7).

The Second Circuit ruling below did not even consider

the requirement that it state its reasons for disregarding

the undisturbed state findings of fact in this case. See Lon-

berger v. Jago, 651 F.2d 447 (6th Cir. 1981) (defendant

represented by ‘‘competent and capable counsel’’ but writ

issued because court failed to make a satisfactory Boykin

record) ; Sumner v. Mata, supra.

The Appellate Division (Appendix D, at 57a) found:

‘¢ .. based upon both our review of the record and the

findings of Criminal Term, including its implicit find-

ings with respect to credibility of witnesses, we con-

18

clude that when the prosecutor indicated his assent

that under the plea bargain petitioner would not be

required by his office to ‘give information’, ‘talk about’

or ‘be questioned about’ matters covered in his Grand

Jury testimony, he thereby gave his knowing consent

that petitioner was not to be called before a Grand Jury

by his office to discuss those matters.’’

In giving the background for this conclusion, that court

observed (id., at 54a):

‘*. . . the plea bargain provided that, as a result of

petitioner’s having agreed to a felony, he would not be

required to ‘give information’, ‘talk about’ or ‘be

questioned about’ the matters covered in his perjury

indictment. To petitioner’s counsel this bargain barred

any future Grand Jury testimony by petitioner con-

cerning such matters. According to them, their client’s

primary concern throughout the plea negotiations had

been to insure that he would be shielded from having

to give any information, whether before a Grand Jury

or otherwise, concerning his dealings with customers

and others in the health care industry. This concern

arose from petitioner’s fear that if it ever became

known that he had given such information he would be

unable to continue to work as a commission meat sales-

man, his sole occupation for at least the preceding 18

years. Thus, petitioner’s counsel portrayed the plea

bargain, in essence, as one in which petitioner, who

had no prior criminal record, and a good reputation,

agreed to forego a possibly successful defense to the

prosecution and to accept the ignominy of a felony

conviction in return for being permitted to avoid giv-

ing information by which he would severely jeopardize

his livelihood.’’

The Second Circuit, ignoring these findings and those of

the District Court, instead said that the promise ‘‘. . . was

19

a nullity at the time the plea was accepted’’ and ‘‘ therefore

[petitioner’s] reliance on the promise was unreasonable

and is entitled to no recognition.’’ Appendix A, at 15a.

By footnote, the court added, in patent double-speak, that

‘*Because Siegel’s purported reliance on the con-

structive promise found by the Appellate Division was

unreasonable as a matter of law, the promise cannot

‘be said to be part of the inducement or considera-

tion... [which] must be fulfilled. Santobello, 404 U.S.

at 262.’ ’’ Id.

But as this Court has said in Sumner v. Mata, —— US.

——, 71 L.Ed2d 480, at 486 (1982) :

‘* . . the federal court may give different weight

to the facts as found by the state court and may reach

a different conclusion in light of the legal standard.

But the questions of fact that underlie this ultimate

conclusion are governed by the statutory presumption

as our earlier opinion made clear.’’

In the case at bar, the Second Circuit has paid less atten-

tion to the mandate of Section 2254(d) as applied by this

Court than did the Ninth Circuit in Sumner.

Conclusion

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Eveanor Jackson Pre.

Attorney for Petitioner

Of Counsel:

Harotp I. CaMMER

Rosert CAMMER

December 29, 1982