*2
WEIS,
and
Before GIBBONS
Circuit
WHIPPLE,
Judge.*
District
Judges
THE
OPINION OP
COURT
WHIPPLE,
Judge:
District
We review
of the
appeal
on this
the order
district court
Hecht’s mo-
denying appellant
tion to dismiss his
on four
indictment
counts of federal
income tax evasion as
barred
the double jeopardy clause of the
Fifth
This
Amendment.
case raises two
first,
major
jus-,
issues:
when circumstances
tify the vacation of a guilty plea, and
second, the impact
jeopardy
of the double
clause on
of a case once a
prosecution
accepted.
has been
Jurisdiction
1291.
premised
on 28 U.S.C. §
THE FACTS
Appellant John Hecht was indicted on
February
grand jury
by a federal
sitting
Pennsyl
in the Western District
vania on four counts of federal income tax
evasion in violation of 26
7201.1
U.S.C. §
27, 1980, appellant appeared
On March
Teitlebaum,
Judge
before
retracted his ini-
tial
of not
and entered a
promise
guilty to Count II in return for
*
appellant
substantially
Whipple,
under-reported
Hon. Lawrence A.
United States Dis-
had
Judge
Jersey,
trict
for the District of New
sit-
taxable income and therefore the amount of his
ting by designation.
liability.
alleged
deficiencies
in the
$6,205.72
liability ranged
amount of tax
from
essence,
that,
$36,261.72
1.
alleged
year
the four counts
in his
calеn-
for calendar
federal
year
income tax returns
for the calendar
dar
years 1973, 1974,
1976, respectively,
1975 and
con-
guilty plea,
withdrawal of his
dismiss
prosecutor
Government
for trial.
I,
sentencing.
IV after
down of the case
sequent setting
Counts
III and
involves two distinct
Appellant’s claim
April
Sentencing was scheduled
whether, under Rule
questions. The first is
time, appellant, as well as
1980. At that
of Criminal Proce-
11 of the
Rules
Federal
witnesses,
testified in an
three character
set aside. The
*3
dure,
plea
properly
the
im-
effort
the sentence to be
mitigate
to
jeopardy pro-
second is whether the double
posed.
Assistant United
response,
In
States
prevents
of
Amendment
hibition
the Fifth
represented
the
Daley, who
Attorney
the plea.
reprosecution
reimposition
Government,
Gonzalez,
Spe-
Manuel
put
cial
for the Internal Revenue Ser-
Agent
Guilty Plea
The
vice,
At
close of
on the witness stand.
the
withdrew his guilty
that he
Hecht denies
Judge
engaged
this
Teitlebaum
testimony
and fur
sentencing proceeding,
at the
plea
conference
an off-the-record
argues
sentencing court
ther
that the
erred
The
then
judge
officer.
probation
Hecht’s
setting
without his con
plea
aside the
whether there was a
expressed
as to
doubt
question
neces
sent. Consideration
the plea
on the
sufficient factual basis
proposi
well-settled
sarily starts with the
record,
ap-
that
consequently directed
and
defendant “does not
tion that a criminal
be vacated and the case
pellant’s
plea
guilty
under the
right
have an
Constitu
absolute
par-
set for
four counts. Both
trial on all
accepted
plea
have
the
guilty
tion to
his
objected.
ties
Alford,
400 U.S.
court.” North Carolina
trial, appellant
before
Prior
moved
n.11,
25,
27
162
38
91
L.Ed.2d
all
Judge Bloch for dismissal of
four cоunts
Overholser,
705,
369 U.S.
(1970); Lynch v.
Appellant
that
argued
indictment.2
1072,
719,
1063,
On appeal, appellant factual basis for equivocal, a sufficient placed in double unconstitutionally sponte lacking.3 court’s by the district sua jeopardy Ray, re-assigned Judge 2. The case was Bloch for also 3. See Judge 1970). trial because Teitlebaum had read pre-sentence report preparation for sentenc- corporation. corpora- A. The Another careful examination of the After a record, we are satisfied that a sufficient tion. for the was estab
factual basis Q. corporation? A different and therefore the should lished Yes, A. sir. have been vacated.4 Q. your corporation? itWas When, March Hecht tendered his on No, A. of it. part wasn’t read II him guilty plea, the court Count colloquy and conducted an extensive re- Q. you words the money In other used underpinnings the factual for the garding premises? to leаse the following excerpts pertinent: are Well, expression, A. to use the I fi- Q. charge against you. That is the Do nanced it. you charge? understand Q. somebody that bar for You financed Yes, your A. Honor. *4 else? Q. tell me right, you you All will what A. Yes. did, charge? to make of that you guilty Q. But you it was that financed it Honor, Well, A. I your money took as an corporation? not the corporation5 executive of the and used it— right. A. That is say judgment; let’s in bad business and I Q. were it for? you financing Who myself got nothing nothing— of it. I have say my purposes. let’s I used it for own A. It was called Corporation. Jinks Q. You corporate money Q. Yеs, took and used Corporation? but who Jinks it for your purpose own bad making One, A. James Wil- President was investments? liams and later on with fellow another like; Yes, through yes, A. the business Loney. the name of Thomas your Honor. Q. your understanding What was Q. But, you invested it for yourself, not them, if anything? corporation? say A. I invest- making Let’s bad No, your
A. Honor. I invested it not ment, primarily. I used myself, corporation but mon- words, Q. had made the you In other ey to make the investment. trying were you investment and now Q. you And whose name did make the corporate save it with funds? investment? correct, A. That is sir. Well, just A. I used in in own my name. Honor, Your might MR. DALEY: if I
Q. words, In other you invested it in clarify setting. the factual Mr. Hecht was your own name? Manager Vice-President and of a General company; posi- local music and that in that sense, Yes, without any—
A. in a tion, he large money embezzled sums of Q. What you did invest it in? did report on his income tax returns. Coraopolis. A. A bar and hotel in money talking So that is the that he is Q. it was a And leased bar? about. Yes,
A. your Q. honor. happened? Is that what Q. Yes, In whose name was the corporation’s lease? Yours A. I took the money or the corporation’s? to make the investment. specifically
4. We require- note that referring other Compa- 5. Hecht is to Harrison Music regarding validity ments of Rule 11 of a ny, of which he was Vice President and General satisfied, any have been and in Manager. dispute. event are not in officer, probation with Hecht’s But, corporation’s conference Q. you did take the un- tax on it? that he was paying any Judge Teitlebaum stated had committed that Hecht convinced Yes, A. sir. thereupon vacated fraud. He appel- objections albeit over Q. why you make right, All did Government, well as counsel and lant’s plea arrangement? culpability. appellant’s protestations as Well, up- it has say, lеt’s physically, A. excerpts pertinent: following are health hasn’t quite My set me a bit. mental right, going I am THE COURT: All health hasn’t been good. My physical withdrawn be order the good it, and I don’t feel as a net result jury. it up will set for trial and we go through could trauma. correct, this is your if version of Because you, aren’t Q. But, are you any money. You embezzle you didn’t offense? you even receive income and any didn’t Therefore, any you Yes. A. owe taxes. don’t a tax fraud. have committed couldn’t guilty just pleading Q. You are * * * * * * avoid trial? No, Honor. your A. you what are if that version saying, From Later, hearing, April at the as to originally correct —I asked you Hecht introduced three character witnesses money and you whether did embezzle the *5 testimony, ostensibly as well as his own did, have you as I it. I don’t you said recall procure an effort to more lenient sen- here, my recol- transcript the but that taken tence. Hecht reiterated that he had told me you what it That lection of is. cash Harrison and made from Music Co. had violated enough you to indicate that personal to Hecht fur- advances Jinks Co. laws. the tax $10,000 to ther testified that an initial loan now, you is that saying are you What under by Jinks was authorized Harrisоn money; it was bad companies the loaned loan was company practices; normal that understand judgment. business I don’t by made check and recorded on Harrison’s give up would because that why anybody of However, books. that Hecht admitted to policy try to and his insurance his house when it became clear Jinks would not that But, you say is what make restitution. loan, the he repay advanced Harrison’s did, you then you If that what you did. capacity. to it in a personal couldn’t any owe taxes. You don’t deposited he maintained that never saying fraud. I am not committed accоunt, bank but instead money in his own trial, be- out at going to come is what gave acknowl- directly it to Jinks. He also then will be entitled government cause the taking the edged that he in fact admitted side of case. prove to their the Harrison, of and fur- money to the owner house, pension conveyed thermore But, me to I don’t feel it is fair share, to Harrison policy and his insurance said you sentence view of what impose in an at attempt restitution. today. here disposi- Hecht’s statements the regarding Honor, on behalf MR. Your DULAC: were tion of the cash he took Harrison from I client, say, that as only the I would like to Revenue corroborated the Internal stated before— Service called to agent Government see, understand. you You THE COURT: Rather, hearing. at the testify I do it.” but didn’t plead guilty, “I Gonzalez, agent, Mr. testified However, I understand. MR. DULAC: large no receipt any Jinks’ books showed is not guilt admission again, an absolute deposits allegedly cash at the time Hecht what a the close of determinant of Harrison. At the sole embezzled from testimony, and after an off-the-record is. clearly charge THE COURT: There must be a factual falls within the to which he guilt accept basis of for me to plеaded plea hearing, At the guilty. Mr. Hecht has said that he loaned guilty. trial court was satisfied that Hecht’s con- judgment that he used bad money; duct constituted criminal behavior suffi- personal guilty plea, despite that for some reason he used his cient for of a acceptance wealth, it personal money try pay to to that he funneled the Hecht’s assertions But, back. it. really didn’t owe If he money he from Harrison Music Co. “took” it, did owe it wasn’t directly income. to Hecht never deviated Jinks. position sentencing hearing
from this at but in fact and reiterated his admitted questions I ask a few May MR. DALEY: times, several even after the was va- Defendant, you Honor? cated. Hecht’s recharacterization of his THE COURT: Yes. conduct from judg- “embezzlement” “bad Hecht, admit, MR. DALEY: Mr. you do change reality ment” does not what not, you money you the sums of took done, does not afford and therefore from the corporation were the form of good grounds vacating plea. It was cash? therefore incorrect to construe Hecht’s protestations of innocence. statements as THE DEFENDANT: Yes. event, In any protestations even of inno- MR. DALEY: You had authority no guilty plea supported by cence in face of a make beyond loans proce- established strong factual basis do not eviscerate the dures of corporation, required which validity See North Carolina v. recordation of those loans on the books of Alford, 27 L.Ed.2d U.S. corporation? THE I DEFENDANT: admit that. lodges Rule 11 a discretion in the admit that. reject (or court accept whether to in this MR. you DALEY: had no authority So case, vacate) discretion, plea; such how make these so-called loans to the Jenks [sic] ever, must be exercised in relation to the Corporation? composite of factors which constitute the *6 THE DEFENDANT: I admitted that. I States, case. Griffin v. 405 F.2d United had authority degree. within a certain 1378, (D.C.Cir.1968). here, Clearly, 1380 fully apprised charges Hecht was of the THE COURT: Mr. Daley, still him; against competently represent he was doesn’t make it taxable income. He might counsel, by plea ed he tendered his volun have breached his trust with his company. tarily knowledge with full of the conse and But, if actually he took that money and quences, taking the money and admitted gave it to that Company, Jenks and [sic] authority several times. Para See get himself, didn’t it or used it for some States, 409, diso v. 482 F.2d 413-415 United other purpose, it wasn’t taxable income. I (3d 1973); Cir. see also Davis v. United am going not to take plea long as as he (3d 1972). 470 1128 F.2d Cir. says he didn’t get the money. Now, jury the may not believe his ver- The circumstances this case do not of sion, and But, that is a different matter. remotely resemble the extreme situation as far concerned, as I am if he gave mandating vacation of guilty plea the in U. money there was a real embezzle- ex rel. Metz Maroney, supra, S. 404 F.2d —unless ment, (3d unless he defendant, took that and used 233 which the it for personal some purpose, just pled wife, can’t who murdering to sub- guilty take the plea. why vacаting That is I am sequently only asserted that he intended to it. We by will set it jury. himself, down for trial shoot the gun and that went off accidentally.
Notwithstanding any testimony that was adduced at sentencing hearing, the the disingenuously, Somewhat the dissent at- conduct by admitted in this case tempts change to the focus of the relevant
657
tried,
will
twice be
the defendant
not
question
guilty
peal,
whether a
inquiry from the
pro-
put
11
plea
jeop
in a
valid Rule
therefore will not twice be
plainly
entered
and
vacated,
Rather,
a
bar-
ceeding
be
and
the
ardy
should
for the same offense.
undone,
question
the
whether it was
gain
tо
would be reinstated.
jury’s guilty verdict
accept a
an
discretion to refuse to
abuse of
Wilson,
U. S.
Schoen
supra;
see
U. S.
question
is
before
guilty plea. That
not the
(3d Cir.),
hut,
1010,
n.7
cert.
576
1018
F.2d
count was ac-
us. The
to one
guilty
denied,
964,
450,
99
58
439
S.Ct.
U.S.
it,
cepted,
vacating
we review an order
and
(1978).
421
L.Ed.2d
it. Nor
refusing
not
order
hypothetical
rationale,
Under
reinstate
are we
the author of
as convinced as
plea following
the cor
guilty
ment
of
dissent
the vacation
appears
be
law in the case
of an error of
sub
rection
in the defendant’s
done
judice would
violate the constitutional
ruling
of that
best
Thе effect
interest.
against
Unde
jeopardy.
double
strictures
to charges for
expose
the defendant
be
niably,
defendant
considered to
con
three
than the one to
years
rather
guilty
of
just
entry
victed
which
No
pleaded guilty.
doubt
guilty
a verdict of
jury
if a
found
as
had
if
is concerned that
he must
defendant
him,
therefore at
jeopardy
against
is found
plead guilty, or
on three
guilty plea.
of his
acceptance
taches
rather than
his civil tax difficul-
years
one
600
Jerry, 487 F.2d
States v.
ties
well.
magnified
be
as
1973). When this “conviction”
erroneous
in va-
the trial court erred
Accordingly,
court, however,
ly
overturned
the trial
cating
guilty
and the
the “conviction” or
reinstatement of
Count II
should
reinstated.
“to
subject
will
the defendant
Double Jeopardy
embarrassment,
expense and ordeal and
Reinstatement of the
continuing
compelling him to live
state
will not
jeopardy prohibi
violate
double
anxiety
insecurity, as well as en
tion of
Fifth
Amendment.
Su hancing
though
that even
possibility
preme
object
early
Court
observed
he may
guilty.”
innocent
be found
Green
protect
double
clause is to
jeopardy
S.,
184, 187-88,
221,
78
v. U.
355
S.Ct.
U.S.
defendant who
been once convicted and
223-224, 2
199 (1957).
L.Ed.2d
also
See
punished
crime
particular
from the
661,
S.,
651,
97
v. U.
Abney
431 U.S.
S.Ct.
being
possibility
punishment by
of further
651
52 L.Ed.2d
again tried or sentenced for the
of
same
(18
fense. Ex
163
parte Lange,
U.S.
(cid:127)Nor
a remand for resentenc
does
Nielsen,
Wall.),
(1874); In
L.Ed. 872
re
right
to have his
violate
ing
defendant’s
True,
gle proceeding Alford, 25, 400 38 U.S. for the same North Carolina reprosecution example, n.11, 160, 27 162 n.11, L.Ed.2d 91 168 where the defendant S.Ct. permitted is offense repeated in holding was Santo (1970). of a conviction. This appeal a on wins reversal 257, 92 York, S.Ct. v. New 404 U.S. Ball, 163 bello U.S. United States [16 (1971), where the Chief 495, 1192, (1896); see 30 L.Ed.2d 41 L.Ed. S.Ct. 300] reject wrote, 184, “A court 189 Justice v. United 355 U.S. Green discretion.” judicial the exercise of sound 221, 224, 2 L.Ed.2d 199] [78 at 498. 92 S.Ct. reprosecution to allow Id. at The determination judg- reflects the in these circumstances not discretion have The limits of this jeopar- double ment that the defendant’s any great law to in the case bеen delineated defined, go interests, do dy however so, appellate to do attempting extent. to so mobilize compel society far as to so pow- acknowledge the awesome courts must it will decisionmaking resources that its judges to district entrusted er of to assure the defendant prepared responsibility placed on and the tremendous gov- free from harmful single proceeding manipulation of the court’s prevent them to error. judicial ernmental or is punishment agonizing Imposing process. clear. Moreover, require enough dismissal of II when evidenсe Count a district has doubts about misgivings that the But when appellant’s because of tri- culpability, appellate an in the dis a defendant’s “atmosphere” proceedings of the must be im- recon bunal’s directive that sentence capable trict not be “may court theAs particularly troublesome. posed struction at a later time and before Appeals Eighth on Court of for the Circuit appellant second tribunal” would bestow Bettelyoun, v. Mar remarked in an undeserved windfall. Cf. U. S. (8th “we are in an tinez, 1973).6 F.2d necessarily the district court area where guilty plea places Reinstatеment of the because of greatest discretion possesses the quo in the status ante that existed case guilty plea the need for assurance vacated. erroneously before the safeguarded to completely proceeding be agreement negotiated The terms of the Id. at unknowing defendant.” protect the provided Government 1336-37. that in return for Hecht’s indictment, majority Count II the Govern The holds defendant’s ment, because sentencing, after to dis should not have vacated would move a sufficient factual basis it is “satisfied that remaining Accordingly, miss the counts.7 established,” Majori- the order from will be reversed for the appealed and the with instructions to court case remanded the district ty Opinion at Alford construing sentence on it to be an reinstate and to erred in Moreover, majority id. at 656-657. Count II. rejecting an of discretion finds an abuse Alford WEIS, Judge, dissenting. Circuit of the record convinces me the well-settled A review majority concedes plea because he
proposition judge rejected does district that a criminal defendant basis in fact. right to was not satisfied it had a have an absolute constitutional *8 Martinez, pleaded, guilty plea with remand for sentenc- on the count 6. In U. S. v. defendant’s ing had that count alone. to one count of a four count indictment on court, rejected by the trial and defendant by jury subsequently a sever- Government, was convicted on having what it received 7. The trial for, al counts. The Fifth held that the obligation Circuit bargained to dismiss is under an guilty rejected court had not the defendant’s sentencing remaining on the counts after the reason,” plea “good accordingly York, di- 404 U.S. New Santobello v. See guilty rected the trial court to set aside the 495, (1971). 257, 427 L.Ed.2d 92 30 S.Ct. adjudication verdict and substitute an of
659
(1976),
violation
26 U.S.C.
7201
the
§
he understood
misconception;
There was no
McCarthy
v. Unit
coupled
charged
a
with a
accept
he
same offense
could
459,
1166,
any
States,
As with
oth-
89
22
protestation of innocence.
ed
394 U.S.
S.Ct.
however,
There,
judge
(1969).
reviewing
er
the district
guilty plea,
L.Ed.2d 418
requirement
Supreme
was
the factual basis
Court
bound
Rule ll’s
the
requirements,
11(f).
said,
‘that the
judge
Fed.R.Crim.P.
must determine
“The
admits consti
conduct
the defendant
which
testimony, I
studying the
conclude
After
charged in the indictment
tutes the offense
in finding
not err
judge
that the district
did
included there
or information or an offense
the
For this
factual basis
insufficient.
pleaded
in to which the defendant
reason,
question
the
we should
reach
”
1171,
467,
quot
at
Id. at
89
guilty.’
S.Ct.
accepted, al
plea
when an Alford
must be
Here, too,
Notes.
ing Advisory Committee
major
the
my
I state
views because
though
judge
required
the
determine
district
my judgment,
it.
the
ity has addressed
admitted violat
whether
Hecht
the conduct
construing
did not err in
judge
district
Practice
8 Moore’s Federal
ed
7201. See
§
to be an Alford
and did
abuse
(1980).
11.03[3],
¶
at 11-72
it.1
rejecting
discretion in
(1)
are
The
of a
7201 offense
elements
§
Although the trial court has discretion to
willfulness,
a tax defi
(2) the existence of
sentencing judge
a
the
accept
rejеct
plea,
constitut
ciency,
(3) an affirmative act
upon
judgment
guilty
not enter
“should
[a
attempted
inquiry
ing
as
an evasion or
evasion
plea]
making
such
shall
is a factual basis for
tax.
v. United
380 U.S.
satisfy
that there
Sansone
[him]
Thus,
11(f).
343, 351,
1004, 1010,
the
Fed.R.Crim.P.
re
good reject reason of innocence. Cf. Griffin claim
defendant’s (D.C.Cir. F.2d 1378 v. United Davis, v.
1968); States United States v. 1975). But see (D.C.Cir.1973). Gaskins, 485 F.2d therefore, support courts, would
These in his exercise of discretion
district
this case. an
In to the inno- addition concern sentenсed, not be courts must person
cent finality of guilty the need
recognize for
pleas. If the factual basis on the demonstrated satisfactorily
record, having thoughts second a defendant decision, with his
about his or dissatisfied
sentence, judg- attempt will Bednarski,
ment aside. United set Carter, 619
supra. F.2d In United States district we called necessity compli- for
courts’ attention finality. with Rule 11 to I fear
ance assure majority here does not opinion aims we there. expressed
further the I summary, believe district abuse in de-
judge did not his discretion agree and I with his view
clining present- factual was not proper basis
ed. affirm the Accordingly, would order court. the district CORPORATION,
TRIO PROCESS
Appellee, SONS,
L. INC. and Metal GOLDSTEIN’S America, Inc., Appellants.
Bank of
No. 78-2566. Appeals, United States Court Lewis & Kittredge, Morgan, Thomas M. Third Circuit. Bockius, Pa., appellants; Philadelphia, Dec. 1980. Submitted Calimafde, Lieberman, Hopgood, Arthur M. Lieberman, New York Kalil, & Blaustein Decided Jan. City, of counsel. Jr., Washington, Ferrill, Fort Thomas M. Jr., Fer- Pa., Logan, John W. appellee;