Petition — Deneen v. United States

fad 2 os 1 2 3 9 yee k ree U.S.

No. JAN 14 1993

Wager L. STEVAS,

CLERK

IN THE

SUPREME COURT

UNITED STATES OF AMERICA

October Term 1982

GARY WAYNE DENEEN,

Petitioner,

-VS-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES

COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Counsel of Record:

EDWARD C. WISHNOW (P22472)

Business Address:

17117 West Nine Mile Road

Suite 1040

Southfield, Michigan 48075

Telephone: (313) 559-8866

AMERICAN PRINTING COMPANY

1200 WEST FORT STREET, DETROIT, MICHIGAN 48226 — (313) 963-9310

QUESTIONS PRESENTED FOR REVIEW.

Was there a violation of a plea agreement entitling

Petitioner to be resentenced where the Prosecution as part

of the plea agreement promised that the Government would

take no position regarding sentence, but at a hearing on

Petitioner's Motion to Reduce Sentence, took a position

requesting that the Court not disturb the nine (9) year

sentence previously imposed on Petitioner.

TABLE OF CONTENTS

1. QUESTION PRESENTED FOR REVIEW....

2.

REPORTS OF OPINIONS DELIVERED

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3. JURISDICTIONAL GROUNDS ..............

4.

5. STATEMENT OF THE CASE............06.

6.

COURT RULES INVOLVED............00:.

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APPENDIX

2.

EXCERPT FROM GUILTY PLEA TRANS-

CRIPT OF SEPTEMBER 25, 1981 ...........

EXCERPT FROM SENTENCING TRANS-

CRIPT OF NOVEMBER 9, 1981 ............

. GOVERNMENTAL MEMORANDUM IN OP-

POSITION TO MOTION FOR SENTENCE

RPI MEUEY va ck obe stv sNi ngs avbeps ctececnss

. EXCERPT FROM PROSECUTOR'S COM-

MENTS AT SENTENCE REDUCTION

HEARING OF NOVEMBER 27, 1981. .......

. EXCERPT FROM DISTRICT COURT

JUDGE'S FINDINGS AND DECISION AT

SENTENCE REDUCTION HEARING OF

PP CREE Rey FUME 665k so satibaaeviesvccsines

. DISTRICT COURT ORDER DENYING RE-

DUCTION OF SENTENCE DATED DE-

CRS Ts APOE: havdeenchenasbabueradeedecd

. ORDER OF THE SIXTH CIRCUIT COURT

OF APPEALS DATED SEPTEMBER 17, 1982

. ORDER DENYING PETITION FOR RE-

HEARING DATED NOVEMBER I8, 1982...

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8a

19a

TABLE OF AUTHORITIES

Supreme Court Cases: Page

Santobello v. New York, 404 U.S. 257, 30 L Ed, 2d

dy ee A ee OP MITRE Gans Se dicewh toy anecss 6, 7, 8

Court of Appeals Cases:

Bergman v. Lefkowitz, 569 F.2d 705 (CA 2 1977)...

)

United States v. Arnett, 628 F.2d 1162 (CA 9 1979) 9

United States v. Avery, 621 F.2d 214 (CA 5 1980).. 7

United States v. Cook, 668 F.2d 317 (CA 7 1982) .. 7

United States v. Crusco, 536 F.2d 21 (CA 3 1976)... 7

United States v. Ewing, 480 F.2d 1141

Seah SOD Se ide abbaa sh eeavelecdneeeawees 6,:7;:3;

United States v. Johnson, 582 F.2d 325 (CA 5 1978)

United States v. Ligori, 658 F.2d 130 (CA 3 1981)..

United States v. Miller, 565 F.2d 1273 (CA 3 1977).

United States v. Mooney, 654 F.2d 482 (CA 7 1981)

wrnvovwvwo

Court Rules:

Federal Rules of Criminal Procedure 35 ........ 7, 8,9

No.

IN THE SUPREME COURT

UNITED STATES OF AMERICA

October Term 1982

GARY WAYNE DENEEN,

Petitioner,

-VS-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NOW COMES Petitioner, GARY WAYNE DENEEN,

by his attorney, Edward Wishnow, and petitions that this

Court issue a Writ of Certiorari to review the judgment

entered by the United States Court of Appeals for the Sixth

Circuit, and in support thereof says:

1. QUESTIONS PRESENTED FOR REVIEW.

Was there a violation of a plea agreement entitling

Petitioner to be resentenced where the Prosecution as part

of the plea agreement promised that the Government would

take no position regarding sentence, but at a hearing on

Petitioner's Motion to Reduce Sentence, took a position

requesting that the Court not disturb the nine (9) year

sentence previously imposed on Petitioner.

2. REPORTS OF OPINIONS DELIVERED IN THE

COURT’S BELOW.

The United States Court of Appeals for the Sixth Circuit

in its Order dated September 17, 1982 (Hoffman', Senior

'Hon. Walter E. Hoffman, Senior Judge, United States District

Court for the Eastern District of Virginia sitting by designation.

2

District Judge, concurring specially) affirmed the judgment

of the District Court in denying Petitioner's Motion for

Reduction of Sentence.

3. JURISDICTIONAL GROUNDS.

The Order sought to be reviewed is an Order of the

United States Court of Appeals for the Sixth Circuit dated

September 17, 1982, which affirmed a Judgment of the

District Court.” Petitioner had taken a direct appeal to the

Court of Appeals from a denial of his Motion for Reduction

of Sentence brought pursuant to Federal Rules of Criminal

Procedure 35.

On November 18, 1982, the Court of Appeals by its

Order denied Petitioner's Petition for Rehearing Pursuant to

Federal Rules of Appellate Procedure 40 and, in the Alter-

native, Suggestion for En Banc Determination Pursuant to

Federal Rule of Appellate Procedure 35.

The jurisdiction of this Court is involked pursuant to 28

USC 1254(1).

4. COURT RULES INVOLVED.

Petitioner’s Motion for Reduction of Sentence brought

in the trial court was pursuant to Federal Rule of Criminal

Procedure 35(b) which provides in pertinent that:

“The court may reduce a sentence within 120 days after

the sentence is imposed, or within 120 days after receipt

by the court of a mandate issued upon affirmance of the

judgment or dismissal of the appeal, or within 120 days

after entry of any order or judgment of the Supreme

Court denying review of, or having the effect of uphold-

ing, a judgment of conviction. The court may also

reduce a sentence upon revocation of probation as pro-

vided by law. Changing a sentence from a sentence of

2 Wendell A. Miles, United States District Judge for the Western

District of Michigan.

3

incarceration to a grant of probation shall constitute a

permissible reduction of sentence under this subdivi-

sion.”’

Petitioner's initial criminal case was disposed of in the

trial court pursuant to a plea agreement taken in conformity

with Federal Rule of Criminal Procedure 11(e) which pro-

vides in pertinent part:

(1) In General. The attorney for the Government and the

attorney for the defendant or the defendant when acting

pro se may engage in discussions with a view toward

reaching an agreement that, upon the entering of a plea

of guilty or nolo contendere to a charged offense or to a

lesser or related offense, the attorney for the govern-

ment will do any of the following:

(A) move for dismissal of other charges; or

(B) make a recommendation, or agree not to oppose

the defendant’s request, for a particular sentence, with

the understanding that such recommendation or request

shall not be binding upon the court; or

(C) agree that a specific sentence is the appropriate

disposition of the case.

The court shall not participate in any such discussions.

5. STATEMENT OF THE CASE.

Petitioner, GARY WAYNE DENEEN, was charged in

a seventeen (17) count indictment in the Western District of

Michigan with mail fraud in violation of 18 U.S.C. 1341,

interstate transportation of stolen money and securities in

violation of 18 U.S.C. 2314, and interstate transportation of

falsely made, forged, altered or counterfeit securities in

violation of 18 U.S.C. 2314. He was also charged in the

Eastern District of Wisconsin in a four (4) count indictment

with interstate transportation of falsely made, forged, al-

tered or counterfeit securities. The Wisconsin case was

4

transferred to the Western District of Michigan pursuant to

Federal Rules of Criminal Procedure 20.

The gist of the indictments were that DENEEN overfi-

nanced the purchase of tow trucks by inflating the purchase

price of the trucks and attached towing equipment through

the use of fraudulent documents.

DENEEN ultimately pled guilty to one (1) count each of

mail fraud, interstate transportation of stolen money and

securities, and interstate transportation of falsely made,

forged, altered or counterfeit securities. In exchange for the

guilty plea, the Government agree to dismiss the remaining

counts of the two (2) indictments and to take no position

regarding the sentence to be imposed.’

At the sentencing date, but prior to imposition of the

sentence, the Government again reiterated that the plea

agreement involved the Government taking no position.‘

The District Court sentenced DENEEN to concurrent terms

on the three (3) counts of five (5) years, nine (9) years, and

nine (9) years réspectively.

Within a few days of sentencing, DENEEN moved

pursuant to Federal Rules of Criminal Procedure 35 for a

reduction of sentence.

At the Rule 35 hearing, the Government submitted a

written Memorandum in Opposition to Motion for Sentence

Reduction. At the Rule 35 hearing, the Prosecutor further

stated that DENEEN had freely lied, cheated and stole and

3 September 25, 1981, plea transcript page 7, by Martin Palus,

Assistant United States Attorney: ‘It's also a part of the plea agreement

as we understand it, your Honor, that the Government has agreed that it

will take no position regarding the sentence to be imposed by the Court

upon Mr. Deneen.”’

* November 9, 1981, sentence transcript, page 6, by Martin Palus,

Assistant United States Attorney “It was part of the plea agreement that

the Government would make no comment or recommendation regarding

sentence.”

5

that the Court had shown mercy in originally sentencing

him and that the original sentence should remain.*

The Court in ruling against DENEEN’S Motion for

Reduction in Sentence appeared to place great reliance on

the Prosecutor’s comments.® On December 7, 1981, the trial

court entered an Order denying the reduction of sentence.

DENEEN took a direct appeal from this Order to the

United States Court of Appeals for the Sixth Circuit.

On September 17, 1982, the Court of Appeals by its

Order affirmed the District Court’s denial of a reduction of

sentence. On September 25, 1982, DENEEN filed a Petition

for Rehearing pursuant to Federal Rule of Appellate Proce-

dure 40 and, in the Alternative, Suggestion for En Banc

Determination Pursuant to Federal Rules of Appellate Pro-

cedure 35. The Court of Appeals pursuant to its Order

dated November 18, 1982, denied DENEEN’S petition.

This proceeding is a Petition for Writ of Certiorari to

United States Court of Appeals for the Sixth Circuit.

6. ARGUMENT.

It is widely acknowledged that the vast majority of

federal criminal cases are disposed of by way of guilty pleas

at the trial court level.” The question presented for review

by this Petition is an important question of Federal law

which has not been, but should be, settled by this Court as

plea bargaining and sentencing procedures occur in the

majority of criminal cases brought in the United States

‘ November 27, 1981, hearing transcript pages 74, 75 and 76.

* November 27, 1981, hearing transcript page 85, Hon. Wendell A.

Miles, *‘The United States Attorney has put his finger on it...”

7 In 1964, guilty pleas accounted for 90.2% of all criminal convictions

in United States district courts. Ibid. In fiscal 1970, of 28,178 convictions

in the 89 United States district courts, 24,111 were by pleas of guilty or

nolo contendere. Report of Director of Administrative Office of U.S.

Courts, for Period July 1 through Dec. 31, 1980, Table D-4, p. A-26.

Santobello v. New York 404 US 257, 30 L Ed 2d 427, 92 S Ct 495 (1971),

(Douglas, J., concurring) at 263 n.1.

6

District Courts and the issue here presented is thusly sig-

nificant and applicable to general federal criminal jurispru-

dence. Intertwined with this question is whether the ques-

tion presented for review in this Petition conflicts with the

decision of this Court in Santobello v. New York, 404 US

257, 30 L Ed 2d 427, 92 S Ct 495 (1971).

Certiorari should also be granted in this case because

the decision of the Court of Appeals for the Sixth Circuit is

in conflict with a decision of the Court of Appeals for the

Fifth Circuit in United States v. Ewing, 480 F.2d 1141 (CA

5, 1973).

The focal point for an analysis of the impotance of the

question presented for review in this Petition must be the

Santobello case, supra. \n Santobello, the petitioner pled

guilty to a gambling offense. The Prosecutor agreed to make

no recommendation as to the sentence. On the date set for

sentencing, a new Prosecutor appeared and recommended

the maximum one (1) year sentence. Over the defendant's

objection that this was a violation of the Prosecution’s

promise, the Judge, nevertheless, sentenced the petitioner,

indicating that he would not take into consideration what

the Prosecutor said.

Prefatory to its holding, this Court commented on the

importance of guilty pleas in the administration of justice

when it stated:

The disposition of criminal charges by agreement bet-

ween the Prosecutor and the accused, sometimes

loosely called ‘plea bargaining’, is an essential compo-

nent of the administration of justice. Properly adminis-

tered, it is to be encouraged."’ at 260.

This Court held that ‘‘when a plea rests in any signific-

ant degree on a promise or agreement of the Prosecutor, so

that it can be said to be part of the inducement or consider-

ation, such promise must be fulfilled.’’ at 262. This Court

remanded the case back to the state court for a determina-

tion as to whether there should be specific performance of

7

the agreement on the plea, in which case the petitioner

should be resentenced by a different Judge or whether

petitioner should be given the opportunity to withdraw his

guilty plea.

Here, the Government by stating that : ould take no

position regarding sentence made a stronger, more binding

and more enforceable promise then in Santobello, where

the prosecution had promised to make no recommendation

as to sentence. The appellate courts that have considered

the applicability of Santobello to this distinction in promises

made by the Prosecution, are uniform in holding that the

promise of taking no position is fully enforceable against the

Government notwithstanding the consequences. United

States v. Crusco, 536 F.2d 21 (CA 3 1976), United States v.

Cook, 668 F.2d 317 (CA 7 1982); Cf. United States v.

Miller, 565 F.2d 1273 (CA 3 1977) and United States v.

Avery, 621 F.2d 214 (CA 5 1980).

It is indisputable that had the Prosecutor in the instant

case made his comments at Petitioner's sentencing, there

would have been a breach of the plea agreement and

DENEEN would be entitled to relief. The question pre-

sented by this Petition is whether there exists a breach of a

plea agreement when the Prosecutor speaks out contrary to

his agreement not to take a position at sentencing, not at

the original sentencing, but at a motion to reduce sentence

pursuant to Federal Rules of Criminal Procedure 35.

In the Ewing case, supra, the Court of Appeals for the

Fifth Circuit found a violation of a plea agreement where

the Government, although fulfilling its promise not to op-

pose probation at sentencing, opposed probation at a Rule

35 motion for reduction of sentence. Ewing had pled guilty

to two (2) counts of aiding and abetting the interstate trans-

portation of stolen motor vehicles in return for the Gov-

ernment’s promise to dismiss the remaining three (3) counts

of the indictment and not oppose a probation sentence. The

court sentenced Ewing to four (4) years and three (3) years

on the two (2) counts, the sentences to run consecutively.

Ewing then filed a motion for reduction of sentence pursuant

to Rule 35 of the Federal Rules of Criminal Procedure.

At the Rule 35 hearing, the Government was represented by

a different prosecutor who opposed Ewing's request for

probation. The trial court stated that it would not be influ-

enced by the recommendations of the Government, but

nevertheless, denied defendant's motion to reduce sentence.

The Court of Appeals found guidance for its decision in

the Santobello case, supra, which involved, like the Ewing

case, an apparent inadvertent breach of the Government's

promise, as in both cases a second and different prosecutor

arypeared at the contested sentencing hearing. The Ewing

court held, as this Court held in Santobello, that it was

immaterial whether the violation of the Prosecution’s prom-

ises was intentional or unintentional. It should be noted

that in the instant case, the same Prosecutor appeared at

_ Petitioner's guilty plea, original sentencing, and Rule 35

hearing. In Ewing, the court found that the breach having

occurred at the hearing on Ewing's Rule 35 motion as

opposed to the initial sentencing hearing was of little dis-

tinction as:

‘Both of these proceedings were integral parts of the

sentencing process in this case. Surely when Ewing

obtained the Government's promise not to oppose prob-

ation in exchange for his plea of guilty, he did so in the

expectation that the benefits of that promise would be

available throughout the proceedings relevant to the

determination of his sentence. The Government was

obligated to fulfill its commitment at least until the

question of the Ewing sentence was finally resolved by

the sentencing judge."’ at 1143.

The remedy that the Ewing court found appropriate was

that since the Government breached its promise at the

sentence reduction hearing, Ewing was not entitled to have

his plea set aside but should be given the opportunity to

9

have the same motion for reduction of sentence submitted

to a different Judge before whom the Government would be

precluded from opposing probation.

The circuits that have declined to follow Ewing have

found distinguishing facts so as to not find a breach of a

plea agreement at a Rule 35 motion. In Bergman v. Lef-

kowitz, 569 F.2d 705 (CA 2 1977), and United States v.

Mooney, 654 F.2d 482 (CA 7 1981), the Second and Seventh

Circuits, respectively, found that the plea agreement did not

breach the Rule 35 motion as there was no explicit promise

in the plea agreement not to oppose a Rule 35 motion to

reduce sentence. In United States v. Ligori, 658 F.2d 130

(CA 3 1981), the Third Circuit found that the plea agree-

ment covered only the original sentencing as the Govern-

meni as part of the agreement reserved the right to correct

any factual inaccuracies contained in the presentence report

or that might be made at allocution.

The Fifth Circuit itself found Ewing distinguishable in

United States v. Johnson 582 F.2d 335 (CA 5 1978), where

the court found that the Government did not breach its

bargain not to make a sentence recommendation when, at a

Rule 35 hearing, it responded to misinformation concerning

the availibility of treatment at various federal correctional

facilities submitted by the defendant. The Ninth Circuit in

United States v. Arnett, 628 F.2d 1162 (CA 9 1979), appears

to reputiate the law of Ewing but then went on to remand

the case to the district court for a resolution as to what was

actually the terms of a plea bargain where the Government

had promised to ‘“‘take no position as to the appropriate

sentence”.

The Sixth Circuit in the instant case found that the

Government kept its bargain when it agreed to ‘take no

position regarding the sentence to be imposed"’ as there

was no evidence that the Government agreed not to com-

ment at any post-sentence proceeding. Of course, there is

no evidence contrariwise that the Government agreed that it

19

could comment at any post-sentence proceedings. It ap-

pears to be inimical to due process in criminal jurisprudence

to allow a plea agreement to stand by what was not said.

An analysis of the foregoing cases reflects that the lower

courts decisions and attitudes towards this important ques-

tion of federal law are in a state of conflict and uncertainty.

As plea agreements and their ramifications come in to play

countless times every day in the Federal system, the ques-

tion presented for review in this Petition is one of great

importance to federal criminal jurisprudence.

Moreover, the instant case is an appropriate case for

this Court's analysis of this important question of federal

law. In the instant case, the same Prosecutor appeared at

Petitioner's plea, sentence and sentence reduction motion.

A plea agreement was explicitly stated on the record at

Petitioner's plea and was reiterated at Petitioner's sentenc-

ing. Lastly, the Prosecutor's comments in opposition to a

sentence reduction went squarely to the merits of the sen-

tence, and not any collateral matters or misinformation

presented by Petitioner. It is also noteworthy that the

sentencing Judge in denying the sentence reduction request

stated that the Prosecutor's comments had great merit, It

thus appears, that the instant case is a clean and approp-

riate case to resolve this important issue of federal criminal

jurisprudence that arises daily in every district of the fed-

eral juciciary,

Respectfully submitted,

BORNSTEIN, WISHNOW,

SHAYE & SCHNEIDERMAN

By: Edward Wishnow (P22472)

Attorney for Petitioner

Business Address:

17117 West Nine Mile Road

Suite 1040

Southfield, Michigan 48075

Telephone: (313) 559-8866

Dated: January 7, 1983