Benjamin Siegel v. State of New York and Edward J. Kuriansky, Deputy New York Attorney General for Medicaid Fraud
691 F.2d 620
2d Cir.
1982
Check Treatment

*1 GRAAFEILAND, Before VAN PIERCE PRATT, Judges. Circuit *2 PIERCE, which was to be used Judge: tape recordings Circuit Melia the Judge evidence. remarked This case novel of presents the issue disposition suited to a appeared case process requires whether due federal a state negotiated guilty plea. an prosecutor prom- to fulfill 21, 1980, reported in a hear- January On plea bargaining negotiations,1 ise made in court, prosecutor, a ing open Special in the despite York policy New State’s announced assigned General the Deputy Attorney to those enforcing portions of a City regional Hospi- office actually placed which are on the Attorney the Deputy tal Division of Gener- plea proceeding. record at the The United Fraud, appellee Medicaid and the and al for District Court for the Dis- States Southern Melia Judge counsel informed that Sie- his Sweet, trict of New Judge, Robert W. a gel plead guilty single to to prepared was found that a promise such must be enforced perjury in the second de- reduced count of and, enjoined accordingly, the prose- state exchange in gree, felony, a class for dis- E breaching promise. cutor from Because counts and the missal of other we find policy that New York State’s years probation plus five a of a sentence of recognizing only on-the-record bar- ascertaining Siegel After fine. comports with gains process and be- will,” he of his “own free under- acting in plaintiff, offering plea, cause his rights he was waiv- stood the constitutional failed to on the the promise he and that under- ing by pleading guilty, enforce, which he now seeks to we vacate receive, Judge he would stood seiitence injunction and remand to the district accepted Siegel’s guilty plea a sin- Melia court with an instruction dismiss gle degree in the second perjury count complaint. imposed years proba- of five a sentence a fine. tion and $2500 I later, July Long months Six Proceedings A. State Court regional Deputy office Attor- Island Benjamin is a Plaintiff-appellee, Siegel, a Fraud issued ney General for Medicaid 63-year-old wholesale meat salesman. to have him Siegel seeking subpoena March, 1979, Siegel New testified before a grand jury investigating a testify before York County grand jury investigating al- industry. health care Sie- kickbacks leged nursing criminal in the activities County gel Queens Supreme moved in ever industry. Siegel home denied discuss- that, subpoena claiming quash Court ing paying persons or kickbacks to had prosecutor at the time nursing industry, home and he denied an off-the-record made knowledge persons in of other the meat testify the grand would have before industry such paying kickbacks. subject matter of jury concerning George Bal- Following perjury was in- indictment. Justice testimony, bach, assigned, County dicted in York to whom the motion New three counts evidentiary hearing perjury degree, a D an extensive first class conducted surround- felony. regard entered the circumstances guilty. with 21,1979, negotiation Siegel’s guilty plea. Judge Aloysius On November Me- hearing Justice Balbach heard Siegel’s During lia2 denied to dismiss the motion motions, two defense attor- testimony Siegel’s several from indictment and other City and from both granted suppress neys motion one of Judge Melia was a Criminal 1. Both the state trial court and the York, sitting by desig- City findings, of New factual Division made concluded Court, plea bargaining Coun- that a nation existed enforced, basing ty. each result S., Benjamin reasoning. different Matter of 116, 118-20, Long Special Island Deputy Attorneys promise concerning grand jury future ap- handling By General opinion case. dat- unenforceable, pearances was as matter ed December Justice Balbach law, because it was not on the granted Siegel’s motion the extent of guilty plea the time the was en- modifying subpoena to preclude the tered. questioning Siegel about *3 thereafter, Siegel Shortly pursu- moved “those during facts were discussed (McKin- ant art. 440 N.Y.Crim.Proc.Law prior appearance his before the New York ney 1971) reopen plea proceedings his County Jury 13, Grand March 1979.” alleged off-the- Doe, 4164, Matter of John No. slip op. SP at or, alternative, in the for a 17, (Sup.Ct. Queens 1980). Co. Dec. Al- vacatur judgment of conviction. though the prose- found that the support Siegel of this motion contended promise” cutor made “no definite concern- that his and the conviction future grand jury appearances, procured by prose- based thereon were judge found the prosecutor’s that equivocal misrepresentation concerning cutor’s future responses during plea negotiations led Sie- grand jury appearances, in violation of his gel to reasonably believe that he would not process rights. opinion By and order subsequently obliged to testify before a 5,1982, New County dated March grand jury respect State with Court, Term, Trial denied mo- subject previous matter of his New tion, that stating requested the relief York County grand jury testimony. essentially previously identical to the relief In a memorandum opinion July dated rejected by Appeals. the New York Court of Division, the Appellate Second De- Appellate Both the Division and New partment, Benjamin affirmed. Matter of York Court of denied Appeals ap- leave to S., (2d A.D.2d 441 N.Y.S.2d 698 peal. Dep’t 1981). The appellate court found that there support was no record for the lower court’s finding specific that the issue Proceedings B. Below grand of future jury appearances had been 13, 1982, On May Siegel complaint filed a raised negotiations. Nonethe- York, District of Southern less, Appellate Division ruled that alleging his due process rights federal prosecutor’s statements to the effect when violated failed to Siegel would not be required “give infor- fulfill his would not be mation,” about,” questioned “talk or “be required testify grand jury before the about” matters previous covered his concerning prior testimony. The com- grand jury testimony “knowing constituted plaint was founded on federal habeas consent [Siegel] not to be called statute, corpus and the U.S.C. § before a Jury by prosecutor’s] Grand [the forbidding deprivation federal statute office to discuss those matters.” 83 A.D.2d rights constitutional under color of state at 441 N.Y.S.2d at 703. Appellate The law, sought U.S.C. either § specific Division also ruled that perform- an order permitting him withdraw his ance the constructive plea bargain would or, guilty plea alternatively, an order re- impermissibly infringe upon right opening plea proceedings plac- the state Queens County grand gather jury to ing the alleged evidence. the record. In a opinion unanimous February dated 17, 1982, Sweet, May On 18, 1982, the New Appeals York Court of plaintiff’s signed an application, order di-

reversed the Division’s order. recting defendants-appellants, Benjamin S., Matter of State 55 N.Y.2d Depu- denied, Kuriansky, N.Y.S.2d New York and Edward J. reh’g General Medic- ty Attorney 435 N.E.2d (1982). alleged Fraud, court ruled that the why they aid to show cause enjoined requir- pact pretrial idleness preliminarily during not be from of enforced confinement;” protects public to be mat- it ing Siegel questioned concerning jury might defendants who commit additional previous grand ters covered trial; jail To the district while released from before testimony. accommodate crimes counsel, prospects it enhances rehabilitative opposing court and State charge agreed shortening would not be- time between be called 261; 498; 16, 1982. Id. see grand jury prior disposition. fore the to June Allison, Blackledge v. opinion dated June the dis- By 1621, 1627-1628, 52 L.Ed.2d 136 granted Siegel’s requested pre- trict court bargaining Because endorsement injunction. Siegel v. of New liminary State agree in securing fairness “presuppose[s] (S.D.N.Y. No. 82 Civ. 3095 June prosecu an accused and a ment between did 1982). apply The district court 261, 92 tor,” Santobello, supra, preliminary injunction Circuit’s settled *4 Supreme requires Court the S.Ct. standard,3 fully finally but discussed and by to safeguards be attended process the to Siegel’s complaint. determined the merits of reasonably what the insure defendant The court stated that action of the “[t]he 262, 92 the Id. at due in circumstances.” served, in Appeals Court of has the view of at 499. S.Ct. court, deprive Siegel proc- of his due Appeals the York Court of plea to enforce his and In right bargain ess a rule promulgating the of It to move challenge plea.” began voluntariness toward promise made enforcement of “[gjiven barring further stated that the resolution the of defendant prosecutor the issue of the existence an off-the- the plea the of the the Division not contained in agreement by Selikoff, 35 People quashing proceeding. its affirmance of the See Court, the writ of N.Y.S.2d 318 N.E.2d subpoena by Supreme the 360 denied, 95 corpus granted (1974), enforce cert. U.S. habeas will be In Seli plea bargain quash subpoe- the and to the L.Ed.2d Id., slip op. jointly na.” 4. Because the district considered Appeals koff the Court of fully adjudicated the finally court has In of those cases the Court three cases. one will an Siegel’s complaint, raised there been claims a claim that had rejected it perma- review the decision as if were a sentence the off-the-record nent, rather than preliminary injunction. years, four because not exceed would record, Part IV explicitly See infra. on had judge, trial would receive stated that defendant II years. 35 N.Y.2d of three to ten sentence York, In v. New Santobello cases, 497-498, refused

260-61, of the other court 30 L.Ed.2d In one an (1971), the Court to enforce endorsed object not to defend process an would plea bargaining only plea prison if a to set aside “highly but also a desirable” ant’s motion “essential” had imposed where defendant of criminal term component administration no which, administered, there was justice if the record “[pjroperly stated on non prosecutor’s than the Plea other encouraged.” bargaining ... is to be inducement imprison no binding promise be- to recommend society benefits both the accused 241-42, N.Y.S.2d 35 N.Y.2d at disposi- cause it leads and final ment. prompt of his cases; At close it im- 318 N.E.2d 784. avoids “the corrosive tion of hardships tipping decid- preliminary injunction to in this tion and a balance of 3. For a issue prelimi- Circuit, party requesting plaintiff edly show: must toward the nary relief. (b) (a) irreparable harm either City Corp. Friarton Estates (1) merits or likelihood of success 1982). (2d Cir. F.2d n.2 (2) sufficiently questions going to the serious litiga- ground to make a fair for merits them court, an opinion for unanimous Chief Appeals The New York is, essence, Breitel noted that rule of Selikoff and Frederick future many problems attending plea bargain a “statute of frauds” rule plea bargaining courts, cases, ing: except in rare could be eliminated will placing the entire only bargain enforce on the rec the record and the court plea. ord at the time Stated differ refusing recognize any purported other cases, ently, exception with the unusual agreement except “the most unusual cir- promises prose made cumstances.” 35 N.Y.2d at 360 N.Y. and, or the are a nullity cutor court accord S.2d 318 N.E.2d 784. ingly, may reasonably defendant Frederick, 520, 410 People them; rely defendant is entitled (1978), 382 N.E.2d 1332 rely promises. recorded court informed defendant at the New York state ful- foregoing policy promises being allocution that no important objectives. fills three policy As made concerning the sentence to be im below, it detailed increases the likelihood posed. The acknowledged defendant guilt proffered plea that factual underlies trial court’s accept statement the court it guilty; integrity enhances the later, plea. Eighteen ed months process; bargaining and it assures fi- prior sentence, imposition but defend nality convictions. ant’s alleged counsel that at the time of the promised the court had the defendant A. Guilt Enhancing Certainty of off-the-record that it would allow the de *5 procedural guaranteed The rights fendant plea to withdraw his if the sen by accused the United States Constitu tence exceeded the prosecutor’s recommen high premium tion reflect our nation dation. trial The court denied making such places upon preventing persons innocent a rejected statement and defendant’s mo or being falsely wrongly convicted. tion to guilty plea. withdraw his Thereaft protect falsely To the defendant from ac er, having considered the prosecutor’s rec cusing proc himself by pleading guilty, due ommendation of a term of probation, requires ess an affirmative that a showing court sentenced defendant to an indetermi plea guilty intelligently voluntarily is year prison nate four term. The Court of Alabama, Boykin entered. v. conviction, Appeals affirmed stating 1709, 1711-1712, 89 S.Ct. 23 L.Ed.2d that court had indeed assured de “[i]f States, (1969); Brady see United fendant’s it counsel that would follow the 742, 758, 1463, 1474, 90 S.Ct. 25 L.Ed.2d prosecution’s sentence recommendation dur (1970). conference, an bench it pleas respect nego- With offered after upon incumbent attorney defendant’s or tiations and in reliance on inducements place promise, in unmistakable promises, the of false possibility convictions terms, on the record.” 45 at greater respect is than with non-induced 410 N.Y.S.2d 382 N.E.2d 1332. Like may The pleas. offer an inno- Selikoff, Judge Chief Breitel in Jasen cent defendant an inducement so attractive opinion ended unanimous by Frederick may be in perceive the defendant it to stressing importance placing “the of to make false confession self-interest a entire reached by parties Westin, of A guilt. See Westen & Constitu- through plea negotiations on the record.” tional Law of Remedies for Broken Plea 45 N.Y.2d at (1978). Bargains, 66 493-98 Cal.L.Rev. McConnell, Accord, People rule, recognizing 49 N.Y.2d The New York N.Y.S.2d (1980) (dicta); People N.E.2d 133 those inducements that are Da enforceable Form, (1st judge, 73 A.D.2d the record before trial aff’d, Dep’t 1980), complete more gives judge opportuni- 442 N.Y. a S.2d 425 N.E.2d 864 determine whether the defendant’s ty to very high percent- voluntarily light beneficial in intelligently entered. plea is are in New New York cases York age the defendant in a court criminal Since by plea than necessarily disposed on the record rather place that his failure to knows has relied will re- promises upon which he trial. promises, those in non-enforcement of

sult Finality more to C. likely and his counsel will be

he agree- the entire judge the trial apprise supra, Blackledge, The greater ais Consequently, ment. there 1627-1628, noted 431 U.S. at will be aware judge likelihood that trial the plea system— “the virtues of chief when called plea agreement the entire finality” under- economy, and speed, —are evaluate the voluntariness of upon to pro- post-conviction cut indiscriminate plea. Under these circumstanc- defendant’s 83-84, ceedings. also id. See es, accurately more de- the trial can J., (Powell, concurring) (stressing whether the inducements offered termine jus- finality system importance of attractive, compared to the risk so when are complies tice). a defendant who Because trial, as to override even proceeding is, York rule in all but with to stand trial.4 person’s an innocent decision instances, rarest unable claim the benefit words, rule, by New York In other fol- purported entire requiring parties rule lowing acceptance agreement on the record before the collateral serves to the number of reduce judge, allows the trial court fuller guilty pleas. based on attacks convictions objectively determine opportunity Consequently, promotes rule intelligently whether the and, thus, strength- finality judgments, made, independent voluntarily by an i.e., efficacy process. ens the agreement, review of the rather complete goal. important thus an societal rule serves reliance the statements solely than fos policies of the salutary view may, for various rea- of the defendant who rule, cannot tered the New sons, be inclined to conceal inducements the constitutional conclude that it offends rule, then, from the court. The New *6 contrary, To the concept process. of due ability judge the to the enhances court’s and openness, certainty, promotes the rule intelligence and of a voluntariness defend- Furthermore, finality plea proceedings. and, plead thereby, to guilty, ant’s decision is that off- assuming aware the defendant the of false convictions. reduces likelihood the are by prosecutor the-record promises Integrity assumption giv of Process B. void—not an unreasonable right to at en the counsel defendant’s requiring The New York rule that Mempa Rhay, plea proceeding, see fully on the bargains be disclosed 256-257, U.S. 88 S.Ct. atmosphere” eliminates “clandestine in (1967) L.Ed.2d 336 memorialization —the previously plea bargain- which attended the which he promises upon all record of Frederick, supra, 45 ing process. See post- the defendant’s protect relies will best 382 N.E.2d expectations. conviction integrity 1332. The rule furthers the of the the entire process by requiring agree- that Ill by on treat- ment be the record case, that the Siegel claims present void. In the off-the-record as promises bargain found constructive integrity and of off-the-record resulting enhancement should be honored Division integrity particularly is appearance possesses no abso- defendant court that the inducements L.Ed.2d 427. A If the trial found accepted. right guilty plea Id. patently overwhelming, reject lute to have a it could were Overholser, Lynch (citing plaintiffs plea guilty 369 U.S. in the exercise sound (1962)). judicial 8 L.Ed.2d 211 82 S.Ct. discretion. Santobello v. 495, 498-499, 30 92 S.Ct. judge inquire judge appellee because trial failed to that he informed would inducements, as explicitly any probation years aside sentence him to five promise imprisonment, upon impose Siegel responded no a fine. then af- relied. firmatively question: trial court’s you everything “And do understand stated, a previously judge As is re- happened today?” Throughout has here quired to ascertain that a defendant’s colloquy, Siegel experienced and his two voluntarily intelligently is made attorneys made no mention on the record of Alabama, accepting Boykin before it. require alleged agreement not to testi- 23 L.Ed.2d 274 subject mony prior about the matter of his (1969). According Boykin, a case in grand jury testimony, though Siegel even questions put which no to the defend- prom- later asserted that the off-the-record judge pleaded ant at the time he plead was to his decision to ise critical guilty, the thrust of the trial inquiry court’s circumstances, guilty. In these we conclude directed toward defendant’s promise non-enforcement against waiver his privilege self-incrimi- deprive Siegel does not nation, right trial, jury to a and his process. due right to confront witnesses. Id. at Boykin S.Ct. at 1712. Neither nor oth- represented in this case Since er Supreme Court or Second Circuit case counsel throughout plea bargaining that deals with process requirements due process proceeding, and the and since applicable (as opposed the states to the the opportu- both and his counsel had specific requirements applicable made nity place the off-the-record 11) federal criminal cases Fed.R.Crim.P. record, requires, New York law has that a explicitly held court must ask a find, on the facts of this case that due guilty plea defendant whether his is en- claim process Siegel’s was satisfied.6 any promises tered as a result of or induce- were not promises considered part ments prosecutor.5 Rath- prevailing unenforceable under er mandating specific catechism, than law the time there- determining intelligence, voluntariness and his counsel could not have known of his fore process due requires only that the courts the record burden provide safeguards sufficient “to insure the relied, which he is without merit. As reasonably defendant what above, discussed Selikoff Frederick Santobello, circumstances.” supra, 404 U.S. —which were decided 1974 and 92 S.Ct. at 498-499. Siegel’s plea in Janu- respectively prior — Here, promises 1980—held that ascertained, ary the trial Siegel’s would not be enforced where an through affirmative inconsist- responses to questions, ent on the or where court’s Siegel under *7 pleaded stood the defendant at the time he rights constitutional he was waiv stated Further, by pleading guilty. Siegel re that no other had been made. In promises sponded affirmatively explicit holdings, to the court’s in to their both addition Seli- quiry: you that, “Are pleading guilty this made it clear to be koff Frederick your crime enforceable, own agreement normally free will?” The trial a plea had Though upon offering plea 5. promises dicta in Hill United States ex rel. relied in is Ternullo, (2d 1975), 510 holdings F.2d 845 n.1 Cir. consistent with Court suggests Boykin states, imposed upon that, attacks, the context federal collateral process, requirements as a of due voluntarily matter intelligently is entered so surrounding Fed.R.Crim.P. discussion in long upon compe- as it is based the advice that case concerned the waiver of consti counsel, if successful defenses to the tent even rights, regard tutional a matter with to which Henderson, charges Toilett v. 411 existed. U.S. properly was informed. (1973); L.Ed.2d Richardson, McMann v. 397 U.S. Placing competent 6. on the defendant and his (1970). 25 L.Ed.2d putting counsel the burden of on the record all Indeed, injunction a preliminary permanent to be on the record. Frederick ex- as a noting the case here pressly injunction, had the that —as is stated defendant nothing preliminary to be —“there seems placing promises burden of on issued” and about the order that was upon he relied and he would which which suggestion parties no “[tjhere was N.Y.2d at seek enforce in future. 45 or return to the court with further evidence 555, 382 N.E.2d 1332.7 might lead to modification argument Thus, counsel, knew, through his or Siegel, case, In the district injunction.” this known, at the should have time of the final its order is court rendered relief and unen- promises permanent injunction. properly considered forceable, he and therefore have un- understanding dertaken to his entire plaintiff- we have Since concluded plea bargain record for the alle- is entitled no relief on appellee trial judge’s possible ap- review —as well as complaint, and the district gations of pellate or collateral review. fully ad- opportunity has had an complaint, merits of the we be- dress the conclusion, In promise because the relied final relief appropriate lieve it is to direct was not the record injunction time. Accordingly, and, hence, nullity time the was at the is is the action entered below vacated and accepted, Siegel’s on that reliance to the district court with instruc- remanded promise was unreasonable and is entitled and enter complaint tions to dismiss recognition.8 no of this Non-recognition judgment final defendants. by the New courts and the appellants proc- did not violate federal PRATT, Judge, dis- C. Circuit GEORGE counsel, Siegel, through ess since knew or senting: should have known that Accordingly, was unenforceable. might point as it be from the Desirable neither entitled to vacatur of his administering is criminal cases view of off- specific performance courts, nor that the “stat- state I do not believe the-record constructive found rule the New adopted ute of frauds” Division. Appeals approved Court York State permissible under majority Santo- IV 92 S.Ct. bello v. New Blackledge (1971), 30 L.Ed.2d supra, As end I stated at the of Part Allison, 431 U.S. 97 S.Ct. although the district order was cast court’s Therefore, respectful- I L.Ed.2d 136 injunction, as a un preliminary that court ly dissent. equivocally adjudicated the merits of complaint and entered what is in effect a

permanent injunction. In Almenares 1971),

Wyman, (2d 453 F.2d Cir. denied,

cert. 92 S.Ct. (1972), Judge treated Friendly

L.Ed.2d 815 bring Predictably, Appeals the state’s the defend- the New York ion that Benjamin cooperation the State S. that the Selikoff Matter of held the attention ant’s holdings applied Authority Liquor where the de- Frederick the record. expressly event, that no other Chaipis fendant had not stated in fact had promises inducements were made. Liquor Authority or of defendant’s informed *8 N.Y.2d at 447 N.Y.S.2d cooperation. Siegel’s purported on the Chaipis Liquor reliance 8. Because State contends Authority, constructive found law, (1978), Selikoff-Fred- matter of N.E.2d 32 shows unreasonable as a Division was part thus erick rule was not well established be cannot “be said to reasonably could have been known to must ... [which] or consideration inducement pleaded guilty. This is time he Santobello, counsel at the fulfilled.” First, Chaipis predated Frederick. so. at 498-499. Further, reported opin- it is not clear