United States v. Jonathan Jay Pollard

1QH Sanchez-Lopez, Applica- 879 F.2d at 559.

tion of the pro- Guidelines’ career offender statutorily heightened

vision to the maxi-

mum sentence for Garrett does not add to penalty by Congress authorized be-

cause it does not increase Garrett’s sen- beyond

tence the maximum authorized 841(b)(1)(B).

subsection We therefore con-

clude that the properly district court calcu-

lated Garrett’s sentence. above,

For the reasons set forth

judgment and sentence of the trial court

are

Affirmed.

UNITED STATES of America

v. Jay POLLARD, Appellant.

Jonathan

No. 90-3276. Appeals,

United States Court of

District of Columbia Circuit.

Argued Sept. 1991.

Decided March 1992. Amending

Order Opinion May regular ratio between cocaine base and upheld cocaine. Circuit has the ratio. United States v. Buckner, properly Because we (8th hold that Garrett was sen- 894 F.2d n. 978-79 Cir. 1990); tenced under the Guidelines’ career offender Cyrus, cf. provision solely possession (D.C.Cir.1989) based (holding on his differential treat base, intent to distribute cocaine regular we need not ment of cocaine base and cocaine does validity drug equivalency address the equal protection principles not violate and does note, however, tables. We do Eighth punishment). not result in cruel and unusual sought

lard to attack his sentence collat- erally by filing a motion under 28 U.S.C. seeking the district approv- court’s al to guilty plea. withdraw his claimed that the obtained his guilty plea improperly unconstitu- —even tionally by linking “wiring” his wife’s — plea to his own. Anne Henderson Pollard had also been arrested in connection with espionage, Olson, Theodore B. with whom John H.

Sturc, Jr., plea agreement refused to enter into a Boutrous, Theodore J. and Ham- with her Fox, III, D.C., pleaded guilty unless he Washington, well. Pol- ilton P. were on lard brief, also asserted that appellant. for plea agreement breached the nature Fisher, Atty., John R. Asst. U.S. (allocution) arguments of its to the district Stephens, Jay Atty., B. whom and, sentencing furthermore, court at Danello, Atty., Elizabeth H. Asst. U.S. Judge Chief Robinson based Pollard’s sen- D.C., brief, Washington, on the were parte tence on ex communications from the appellee. government. Appellant sought hearing Lasson, Baltimore, Md., Kenneth was on on charge this rather dramatic and asked curiae, Professors, the brief amici Law Judge Chief Robinson to recuse himself. al., urging et reversal. attorneys Pollard’s new in pro- ceeding sought high- also access to certain GINSBURG, Before: RUTH BADER ly classified materials the WILLIAMS, SILBERMAN аnd Circuit sentencing. submitted at Judges. recuse, The district declined to de- Opinion for the by Court filed Circuit sentencing nied access to the ma- classified Judge SILBERMAN. terials, and, holding hearing, without re- permit fused to Pollard to his withdraw Dissenting opinion by Judge filed Circuit guilty plea. Pollard, See United WILLIAMS. (D.D.C.1990). F.Supp. appeal This SILBERMAN, Judge: Circuit followed, and we now affirm. Pursuant to an

government, pleaded Jonathan Pollard I. guilty on June 1986 to one count of conspiracy to deliver national defense infor- period approximately eighteen aFor foreign government. mation ato months, through from June 1984 Novem- 794(c). Judge Aubrey U.S.C. Chief E. Pollard, Intelligence ber Jonathan Robinson, Jr. of the district court sen- Specialist Research with the United States tenced him imprisonment. to life Pollard Navy, large highly removed amounts appeal did not his conviction. Pollard later intelligence classified U.S. information made an unsuccessful motion under Fed. office, copied it, from his and delivered it to R.Crim.P. 35 to have his sentence reduced agents government. Initially, of the Israeli and, again, appeal. did not paid, during Pollard was not the last years

Three sentencing, having period, after regu- twelve months of this he met intervening prison, larly served the time in Pol- with his Israeli in handlers order to provides pertinent part: pose 1. 28 U.S.C. § 2255 in such or that the sentence was law, prisoner custody in A excess of the maximum authorized under sentence of a Congress attack, claiming subject court established Act of or is otherwise to collateral right upon ground to be released imposed move the court which the sen- imposed the sentence was in violation of the vacate, tence to set aside or correct the sen- States, Constitution or laws of the United tence. jurisdiction that the court was without to im- diagnosed prior her ar- information, accurately he tasking and specific receive stay jail, in the she $1,500 $2,500 per During rest. her D.C. received between ill, losing forty pounds over a seriously was month for his efforts. February In period of three months. regu- year after the Approximately one on Mrs. Pollard was released bail. agents of the FBI and began, lar deliveries meantime, had, begun plea (NIS) in the Investigative stopped Pollard Service Naval government. He leaving ques- with the work and discussions Pollard as he was minimize his sought plead guilty re- both to concerning the unauthorized tioned him receiving and to chances of a life sentence information from his of classified moval well, interview, plead Anne Pollard to which during Pollard enable office. Twice unwilling to was otherwise permission to call home to received however, government, In let her do. The was wife, Pollard. those Anne Henderson plea agreement conversations, prearranged prepared to offer Pollard a used the he “cactus,” to assist the whereupon only Pol- after Pollard consented Mrs. code word damage assessment and full of classified lard removed a suitcase polygraph examinations and intelligence information from the Pol- submitted agents Depart- FBI apartment and contacted Pollard’s interviews with lards’ attorneys. Accordingly, them that Pollard ment of Justice Israeli handlers to tell months, period of several This her active over trouble. was government investiga- espionage. cooperated with the involvement tion, May in late During days next the FBI and two plea agreement, him ment offered which further of Pol- NIS conducted interviews accepted. Pollard, in the course of these inter- lard. views, keeping interrogators, agreement, lied to his that Pollard By the terms of plead guilty his with the Israelis. count of secret involvement to one was bound time, He stalled for as his Israeli handlers conspiracy national defense infor- to deliver him, (18 had instructed and one of his handlers foreign government mation to a U.S.C. during period managed to leave the 794(c)), prison carried a maximum which country. life, cooperate fully term of and to He government's ongoing investigation. finally arrested on Jonathan Pollard was any informa- promised not to disseminate 21,1985, charged November and with viola- concerning crimes tion his without submit- 794(a) 793(e). tions of 18 U.S.C. and §§ ting pre-clearance by the Director of day arrested a later as an Mrs. agreement further Intelligence. His Naval Pollards, accessory. prior to their ar- provided by failure Anne Pollard to that rests, sought asylum had at the Israeli agreement adhere to the terms of her enti- actually gaining to the embassy, entrance government agreement, his tled the void compound point, embassy at one but the and her contained a mirror-im- Nonetheless, away. Israelis turned them age provision. interviews, during post-arrest his initial protect his Israeli han- Pollard continued to plea, In return for Pollard’s Although he admitted that he had dlers. charge promised ment not to him with addi- lied in his earlier interviews and had fact crimes, plea agree- into a tional entered delivering classified information to a Pollard, ment with Anne and made several foreign government, identify he refused to specific representations very that are much government of the for- names provisions The critical at issue this case. eign intelligence agents controlling him. 4(a) 4(b) paragraphs agree- are departed Pollard’s other Israeli handler the ment, “agree[d] which the during this time. United States as follows”: arrests, (a) Following appears their the Pollards before the When [Pollard] had, jailed sentencing for were without Mrs. Pollard Court for the offense to bail. years, agreed plead guilty, from has for several suffered a debilita- which he ting gastrointestinal bring to the Court’s at- disorder Government will nature, argued tention extent and value of that Pollard had done cooperation testimony. his Because grievous damage to security national of the classified of the informa- nature pursuit interests in the of financial rеward provided tion Mr. Pollard has to the and that Pollard was unremorseful and a Government, partic- it is understood continuing danger security. national representations concerning coop- ular his mentioned that Pollard eration be made to the plea agreement had violated his while in however, general, Court in In camera. prison awaiting sentencing by giving sever- agreed represent the Government has al journalist interviews to a for the Jerusa- pro- Mr. information Pollard has Post, Blitzer, lem Wolf without first sub- vided is of value to considerable the mitting his comments to the Director of damage analy- Government’s assessment Intelligence. Naval again, according This sis, case, investigation of this criminal government, demonstrated that Pol- espionage and the enforcement of the lard could not be trusted to refrain from laws. disclosing the various national secrets in (b) Notwithstanding coop- Mr. Pollard’s possession and that he still considered eration, sentencing at the time himself the best of when to follow Government will recommend rules that imposed upon had been him. In impose Court substantial principal addition to its sentencing memo- period monetary of incarceration and a urging randa impose the district court to right fine. The Government retains full substantial also concerning of allocution at all times highly submitted a classified declaration facts and of the offenses circumstances Secretary of Caspar Defense Weinberger Pollard, committed Mr. and will be cataloguing damage Pollard had done free to correct misstatements of fact opining damage had been sentencing, at the time including rep- “substantial day and irrevocable.” The be- resentations of the defendant and his sentencing place, fore took Secretary Wein- regard counsel to the nature and ex- berger supple- submitted unclassified tent cooperation. of Mr. Pollard’s More- mental response declаration in to Pollard’s over, that, Mr. Pollard understands while stated, in polemi- submissions a rather the Court cooperation his take into tone, Secretary’s cal contentions. in determining account whether or not to impose response In imprisonment, sentence of life submis- agreement sions, argued cannot and does not limit that he had done impose the court’s discretion to the maxi- damage little security to national because mum sentence. misappropriated the information he had had been delivered to one of the United The accepted district court Pollard’s States’ closest allies. He denied that he hearing at a held on June 1986. Chief by greed, had been motivated instead Judge open Robinson addressed Pollard in claiming sought that he had to aid Israel questioned court and him about his under- because he believed that his aid to Israel standing rights surrendering, he was would also security benefit United States’ including potential sentences he faced interests. He stressed the extent and val- and the terms of the plea agreement. Af- ue of cooperation his sincerity being by ter assured both Pollard and his emphasized his contrition. And he spe- attorney that there no reason to be hardships prison cial impose life would on chary plea, accept- the district court him and the psychological and emotional ed it. deterioration he experienced during had Sentencing place took nine months later. confinement. Both the and Pollard sub- mitted pre-sentencing hearing extensive After allocution, memoran- oral the district judge. da to the district general, In judge sentenced prison Pollard to life in might Judge impartiality Robinson’s Pollard Chief years.2 five Pollard to and Mrs. questioned and that reasonably be timely made a Rule appeal not did personal knowledge of dis- possessed judge re- his sentence seeking to have motion might there- puted evidentiary facts and dispropоr- it was ground that on the duced hearing. material witness at the fore be a received other to the sentences tionate sought counsel also access Pollard’s new arguably more espionage was spies whose originally highly materials classified interests. He States’ damaging to United sentenc- government at made at submitted arguments he had repeated the declaration, including Weinberger ing, particular in sentencing and maintained preparation in the in order to aid to take had failed the district court 2255 motion. cooperation. The of his proper account motion, and Pol- court denied district rejected of Pollard’s all district appeal. did not lard hearing, finding that his claims without adequately could resolved parole af- contentions released on Pollard was Anne the case and on files and records of she sub- on the years prison; serving three ter knowledge recollec- judicial August, 1990. the court’s Israel in sequently moved to Pollard, F.Supp. at 801. It earlier, professor at Har- tion. See months Some Dershowitz, complied in School, had Alan whose found vard Law respects in this case with the terms of representative all relevant as Pollard’s role clear, had had asked retired Su- and that entirely Goldberg knowing voluntary. Arthur id. at Justice preme Court life reasons for Pollard’s counsel access investigate the 802-06. It denied Pollard’s Goldberg, according to Pro- sentencing Mr. materials sentence. to the classified affidavit, discussed fessor Dershowitz’s that other courts have the same reasons Judge Robinson. pre- Chief permit matter with refused to access sometimes Goldberg told Mr. Judge purportedly reports: Chief the district court found Israel infor- provided that Pollard merits of Pollard’s substantive knowledge demonstrating American scrutiny” mation “simply claims do not withstand African details of Israeli-South could, of certain new counsel and that Pollard’s this had cooperation and that defеnse event, information from Pol- learn the Der- “weighed heavily” in the sentence. counsel. Id. at lard and his former provided Pollard never claims that showitz to recuse him- The district refused information, so he that sort of the Israelis self, allegations of stating flatly that the ex Goldberg affidavit that Mr. asserts and that parte contacts were untrue government may have inferred knowledge of the personal district court’s improper parte submissions to made ex gained disputed evidentiary facts was Judge Robinson.3 Chief capacity provided and so no basis judicial at 799-801. disqualification. See id. for litigation began in March present The 1990, Pollard filed the motion under when II. guilty 2255 to withdraw his 28 U.S.C. § met at the outset with sought hearing on the alle- We are plea. Pollard argument that some of Pol affida- gations in the Dershowitz contained claims, govern particularly that the vit, Pollard’s claims that the lard’s as as on well agreement by the plea plea ment government and breached violated coerced Judge arguments to Chief plea agreement. He moved nature of its subsequent in a pursu- Robinson, properly before us disqualify Judge Robinson are not to Chief they were not grounds proceeding 455 on the ant to 28 U.S.C. because § § arose, described, he died on Janu- case Dershowitz because It should be noted that this 18, 1990, imposed, prior the effective ary days sentence was after he received a few Sentencing of the United States Guidelines. date Dershowitz in- letter from Dershowitz in which inquiries Der- formed him of the of the results Goldberg prepare his own 3. Mr. was unable showitz had made. testify affidavit or to to the matters Professor sentencing, subsequent in the motion that raised at were not raised sentencing, motion, in a motion, Rule 35 or in appeal Rule 35 and because Pollard did a direct See, from sentencing. govern- e.g., appeal. take direct Theodorou v. States, (7th United essence, F.2d 1338-40 is, ment’s contention that those Cir.1989); States, Williams v. United think, however, claims were waived. We (7th Cir.1986), 1303-06 cert. de argument he uncon- that Pollard’s that was nied, stitutionally plea agreement coerced into a (1987); L.Ed.2d 818 Bay United States v. plea his wife’s was wired with his because lin, (3d Cir.1982); 696 F.2d 1030 properly brought in the first instance Corsentino, States v. 685 F.2d 50-51 since, accepting 2255 motion § (2d Cir.1982). complicate To the matter true, allegations he would have been further, quite even was raising argument from until deterred imprecise proceeding in the regard below way. his wife was out of harm’s If he had ing arguments. waiver It well be plead guilty been induced to because of the that the thus waived its waiver wife, government’s posture vis-a-vis his he Hall, claim. See United expected openly challenge could not be (10th Cir.1988). government, arrangement very as unlawful while sure, repeatedly complained to be that Pol his wife was still vulnerable. If he had lard’s 2255 motion had filed three § prevailed plea agreement was —and years after he was sentenced long af nullified—he would be back in the same ter the basis his claims should have position he was when he was “forced” to apparent him, become and that Pollard’s place. enter into the in the first Sim- protested alleged counsel had not ilarly, Judge the claim that Chief Robinson plea agreement breaches of the at the sen brought considered information to him ex tencing hearing. But the ex ;parte by government, on based as it is plicitly used the term “waiver” “evidence,” newly discovered could not respect to Pollard’s claim govern have been raised before. adequately ment failed describe na Pollard’s claims of breach of the cooperation. ture of Pollard’s agreement stand on somewhat different Ordinarily, obliged would feel we to de- footing. easily We cannot as excuse his cide whether Pollard had waived the breach arguments. failure to raise all of those At plea agreement arguments that he sentencing, the time of such claims would presents (although here we do not see the require specific performance agree- jurisdictional), issue as but because the ment, nullification, not its so his wife’s argu- so unfocused in its alleged vulnerability if the were with- court, ment on issue before the district drawn is not relevant. Pollard did fact reject and because we Pollard’s claims on arguments raise one of his breach at sen- merits, necessary we do not think it tencing again in a Rule 35 motion question resolve difficult of Pollard’s (although appeared to abandon it at right bring all of his claims in a sentencing), perhaps illustrating point. do, proceeding.4 however, give We due (and We note that the law is rather unclear as consideration to Pollard’s his coun- sel’s) to what upon hearing claims can be raised in a reactions dissenting colleague sidesteps knotty concerning 4. Our statement this claim of Pollard’s problems finding preju- involved in cause and said: dice sufficient to excuse Pollard’s failure ob- preserved "We doubt that the defendant has ject sentencing, at he because contends the point explicit- for review. As he raised it government "waived the defense" below. Dis- ly during sentencing hearing, and then Judge sent at 1032. Williams be correct it, abandoned we believe he has waived the issue,” government merely "grazed right argue it on collateral attack under id., claims, as to some of Pollard’s Nonetheless, respond § 2255. we to these directly addressed it as to Pollard’s claims on the merits.” claim that failed to describe Opposition to Defendant’s adequately Motion to Withdraw cooperation. "vague his No mere line,” id., Guilty throwaway His Plea at n. footnote 24 1020 degree kind sentencing in determin- tain would invalidate at

mentis allocution though Pollard does plea even ing whether guilt. contest his See Fontaine v. agreement. ‍​‌​​‌‌‌‌​​​​​​‌‌‌‌‌​​​​​‌‌‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‍breached States, 213, 214-15, 93 United U.S. in a also mindful that We are 1461, 1462-63, (1973) 36 L.Ed.2d 169 S.Ct. challenge, appellant, in collateral curiam). (per claim, under is gain order to relief argues that the district Pollard first good more than obliged to show a deal strictly judge did not follow the dictates of appeal from on a direct would be sufficient 11, requires a district which 2255 is not a substi his sentence. Section Fed.R.Crim.P. judge accepting guilty plea to advise the appeal. United States tute for direct rights 152, 165, 1584, open defendant in court of the he Frady, 456 U.S. S.Ct. v. surrendering plea (1982). and to determine 1593, par As 71 L.Ed.2d 816 both voluntary “not the or grant result force agree, we are authorized to re ties promises apart from a threats only if determine that the chal lief we “ (d). agreement.” & from ‘a funda lenged sentence resulted 11(c) Fed.R.Crim.P. Robinson, Judge although ques Chief inherently results mental defect which great length tioned Pollard at as to his miscarriage justice,’ or ‘an complete understanding rights signifi of his and the rudimentary inconsistent with the omission ” plea, cance of the never in haec verba procedure.’ fair demands Fed. 32, asked Pollard whether his was volun Advisory Note R.Crim.P. Committee’s Timmreck, 441 tary. v. (quoting Hill v. United States on 1983 Amendment Unit 2085, 780, States, 424, 428, 468, 99 S.Ct. 60 L.Ed.2d 634 U.S. ed 368 U.S. S.Ct. (1979),holds, however, (1962)). that failure to com 471, 7 L.Ed.2d language

ply with the literal of Rule “complete not itself constitute the does A. miscarriage justice” required before a Pollard claims that re Jonathan grant court will 2255 motion.5 Id. fusing plea agree to offer Anne Pollard a 784, 99 S.Ct. at 2087. ment unless he also entered into a overreached; agreement, Pollard’s more substantial involun unconstitutional, argument pleas is that are improper, used indeed tariness wired has pressure plead guilty. Supreme to force him to unconstitutional. The Court We note, however, specifically judgment on “the con that Pollard does not con reserved implications prosecutor’s of guilt. test his He does not ask for a new stitutional of a during plea bargaining trial to his innocence. fer of adverse or establish Cf. Barker, 208, person 514 F.2d 220 lenient treatment for some other States v. (D.C.Cir.)(en banc) (in deciding whether to than the accused.” Bordenkircher 663, permit guilty plea, Hayes, whether 434 U.S. 364 n. 98 S.Ct. withdrawal (1978) “impor (emphasis in defendant claims innocence is an 668 n. 54 L.Ed.2d 604 consider), denied, original). The circuits that have considered tant factor” cert. however, occasionally question, 44 L.Ed.2d 682 the while (1975). prospect expressing practice, not faced for the We are distaste se, not, involuntarily uniformly agreed per that an innocent man that it does Still, privilege against compelled plead guilty. process that is not offend due or the dispositive. compulsory Government coercion of a eer- self-incrimination. See United States, suggests plated. 5. Pollard further that his wife’s illness Johnson v. United Cf. (7th Cir.1986) "aggravating type (stating “aggravat- was an factor" factor,” all, suggested might ing anything Court in dicta in Timmreck if it means means expand scope §a 2255 court’s of review. See factors that rise to the level of a due 784-85, Timmreck, violation); Laura, process 441 U.S. at 99 S.Ct. at 2087- United States v. 365, J., ("we (3d Cir.1981) (Stern, unnecessary dissenting) 88 find it to consider” wheth- F.2d 379 aggravating might change (“being by lawyer circumstances a a er result). advised conflict of relating directly plea” Case law does not indicate that her interest is an [the] circumstance). aggravating illness is the kind of factor the Court contem-

1021 738, (2d Marquez, 909 F.2d 742 We can might States v. understand how it First, Fourth, thought long that a Cir.1990) (citing imprison be threat of cases from one, particularly ment for a spouse, loved Fifth, Sixth, Seventh, Tenth, Eighth, — greater pressure would constitute even on denied, Circuits), Eleventh cert. U.S. a defendant than a direct threat to him. -, 957, 111 112 S.Ct. L.Ed.2d 1045 generalize Whether one could as to that (1991). proposition depends, suppose, we on one’s view of human nature. But it does not agree We with our sister circuits seem widely-shared to be the sort of intui plea wiring does not violate Consti upon tion which a constitutional rule should course, question, tution. The is whether mindful, moreover, be based. We must be practice wiring is so coercive as that if the judiciary were to declare wired inducing guilty pleas. to risk false See pleas unconstitutional, the consequences Bordenkircher, 8, 434 at 364 98 U.S. n. altogether would not be foreseeable and say practice S.Ct. at 668 n. 8. To that a perhaps would not beneficial to defen plea “involuntary” or renders “coercive” Pollard, instance, dants. Would for improper pres means that it creates been better off had he not been able to likely sure that would be to overbear the bargain to aid his wife? Would his wife persons of some innocent will and cause bargain have been better off? Would harm, plead guilty. Only physical them to ing place event, take in but with winks harassment, misrepresentation, threats of writing? and nods rather than in “ ‘promises im that are their nature do Nor we believe that Mrs. having proper proper relationship as no ” Pollard’s medical condition makes an other bribes)’ prosecutor’s (e.g., business acceptable linkage pleas wise of their un guilty plea legally involuntary. render a appropriate dividing constitutional. The States, 742, 750, 397 Brady v. United acceptable line between and unconstitution 755, 1470, 1463, 1472, 25 L.Ed.2d plea wiring depend upon al does not (1970) (quoting 747 Shelton v. United physical personal condition or circum States, 571, (5th Cir.1957) 2 246 F.2d 572 n. defendant; rather, stances of the it de (en banc), grounds, rev’d on other 356 U.S. pends upon government. the conduct of the 563, (1958)). S.Ct. L.Ed.2d 579 Where, here, proba as had anything lawfully power Almost within the prosecute ble cause to arrest and both de prosecutor acting good faith can be crime, fendants a related and there is no exchange guilty plea. offered for a No suggestion that conducted constitutionally impermissible compulsion generate itself in faith in an effort to bad arises, instance, when a defendant is defendant, leverage additional over we possibility forced to choose between the See, think a wired is constitutional. mandatory minimum sentence of ten States, e.g., Politte v. 852 F.2d United years prison goes if he to trial aor (7th Cir.1988)(emphasizing “good faith suspended charge sentence on a reduced if Mohn, prosecution”); Harman v. pleads. Brady, See U.S. at 90 834, (4th Cir.1982)(probable cause and S.Ct. at 1470. In Brady, Supreme good faith); Nuckols, v. United States guilty Court held that “a is not (5th Cir.1979) (same). F.2d Once merely invalid because entered to avoid the probable cause to possibility penalty.” of a death Id. at prosecute Mrs. Pollard and had obtained 90 S.Ct. at 1472. Even where the defen indictment, entitled, despite valid her innocence, dant continues to maintain his illness, prosecute fully her to offer —or having penalty to face the death as the in exchange lenience for her for Pollard’s price of trial does guilty not invalidate a plea. Clark, plea, long as the record contains ade 292, (5th Cir.1991) (plea 294-95 offered quate guilt. evidence of actual man, See North innocence, who maintains his in order Alford, 37-38, Carolina v. 400 U.S. “sick, help pregnant and innocent” 160, 167-68, (1970). S.Ct. 27 L.Ed.2d 162 involuntary); wife held not Bontkowski v. 1022 oc allegedly the breaches (7th years after 306, 313 Cir. States, F.2d United brought must validly indicted 2255 motion (threat A

1988) prosecute curred. § uncon judge not constitute who sen does same district pregnant woman before husband). her stitutional coercion 28 U.S.C. the defendant. tenced him the judge had before 2255. That minimum, argues, wired At Pollard to the he listened agreement when plea coercion, dangers of so special pleas raise at sen original argument plea such a court faced with that a district govern compare the tencing, so he could searching inquiry a more must undertake in the promises arguments with plea than ment’s of the into the voluntariness See, again, in e.g., Looking back required. plea agreement. normally be would motion, if that Nuckols, at 569. Even 606 F.2d response appellant’s the district so, we are satisfied were there was no breach. judge determined obligations discharged its adequately of such a appellate review The standard of the court collоquy between here. employed on di typically determination — there could extensive that Pollard was so sentencing unsettled. appeal from rect —is willingness about Pollard’s be little doubt district court deter circuits review Several opportunities plead. Pollard several agree not a minations whether judge, any misgivings to the but to confess See, e.g., de novo. ment has been breached hint that his gave slightest he never Jimenez, 928 F.2d v. States United voluntary. anything other than plea was — U.S. -, Cir.), denied, (10th cert. fact, Hibey, was Pollard’s In Richard who (1991); L.Ed.2d 129 time, brought to the court’s attorney at the Moscahlaidis, 868 F.2d v. States United plea proceeding at the end of attention (3d Cir.1989). others Several Trial captioned “Waiver of a document finding con court’s set aside a district will had executed. And Jury,” Pollard which only if plea agreement cerning breach stated, so, specifically did when counsel See, e.g., clearly erroneous. United taken care of “I think the Court has [the (4th Conner, 1076-77 930 F.2d v. under Rule 11.” waiver] — U.S. -, denied, Cir.), S.Ct. cert. (1991); v. Raulerson 116 L.Ed.2d B. (11th States, greatest emphasis places Cir.1990); Ataya, United States arguments appeal on (7th Cir.1988). A 1324, 1327 agreement in its ment breached contract, it is a is a form of but agreement Judge Robinson. allocution before Chief contract, judge because rather unusual Pollard, government made According to overseeing per role in plays an active him, them promises to and it broke three judge only does the review Not formance. seek a stated it would all. agreement both accept the and observe incarceration,” period but “substantial agreement, see under the parties’ conduct It agreed for a life sentence. not to ask 11(e), judge’s determina judge the extent agreed to describe Fed.R.Crim.P. ultimate action is the post-arrest cooperation and to tion of Pollard’s “considerable To say explicitly agreement that it was of is directed. to which damage assess- does, govern vаlue” to the argue, as Pollard ment, investigation of this as well as to its through plea agreement ment breached espionage case and enforcement implies that the excessive And, problematic, Pol- perhaps most laws. tolerated, himself presumably allowed government agreed to lard claims that the by, the excessive nature to be influenced to the “facts and circum- limit its allocution appel government’s arguments. The of the offenses committed.” stances words, claim, only that is not lant’s other breached noted, claims of

As these swayed by judge was that the district brought plea agreement ‍​‌​​‌‌‌‌​​​​​​‌‌‌‌‌​​​​​‌‌‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‍were breach of the judge three the breach. sentencing district before

1023 might of ment persuaded judge. We review factual determinations a that the erroneous) judges (clearly expected district court more def- But district are to with- (efe novo), erentially and, legal improper appeals than ones stand when even succumb, large part judge they hears to discipline because the who the exercise the to recognize the of hindsight. evidence observes demeanor wit- Presumably, them comparative sentencing judge’s nesses has a institutional ad- the unique vantage appellate vantage point Congress over the court. part why provided We is in that typi- think same of the sort considerations 2255 brought motions were to be before § cally appropri- a sentencing make deferential standard Blackledge See judge. the reviewing determi- Allison, judge’s ate in a district 63, 4, 431 U.S. n. 97 S.Ct. government’s nation whether of the allocu- (1977) 1629 n. 52 L.Ed.2d 136 (noting agree- tion violated limitations in a judge’s that the district of “recollection the Such a presents ment. determination events at issue” him apply enable the question mixed of and fact in which the law standards for relief collateral “in a some- aspects usually predominate. factual pro- what different fashion” in a judge surely position district in the bеst ceeding). sure, in Santobello v. New To be to determine whether York, 404 U.S. 30 L.Ed.2d that, presented argument perhaps an sub- (1971), the Supreme Court said that tly, agreement. of exceeded bounds resentencing place had to take before judge different once it determined the presented When a 2255 motion is plainly breached the challenging government’s allocution at agreement, notwithstanding judge’s sentencing, judge inevitably ex district statement that he was unaffected light claim in amines the of his own recol government’s argument. id. arguments lection of how the extraordinary S.Ct. at 499. The nature of they present struck him at the time were (disqualification judge relief of a is not deferring judgment, ed. In we defer lightly granted) suggests us, however, of to his construction terms appropriateness according large agreement but to his assessment wheth respect measure of district court’s er the conduct violated those judgment deciding whether violation meaning plea agree terms. The place. occurred in first meaning—is ment—at least facial novo. Cf. de course reviewed Reviewing sort of district Co., v. Western Electric F.2d finding only entirely for clear error is (D.C.Cir.1990) (reviewing construc approach, ap our and the consistent with novo). tion of a consent decree efe That is circuits, proach of other the review of question strictly a of law. it is Once deter other of decrees or orders in which sorts mined, however, govern nothing the judicial there is involvement.6 substantial transgressed explicitly prom ment said Western only Electric held that “construc agreement, ises contained more tion of a other words consent decree”—in question, illegal implicit subtle an whether meaning “the Decree’s terms”— made, appeal was which could turn on voice should be reviewed de novo. Id. There expressions, inflections even facial rejected we a claim deference based concerning one which we must def affоrd upon the district fact “was erence district court. language also the issue.” drafter of the Id. at 294. Where the issue is instead the might thought It that the judge would i.e., subsequently recognize application find it violation language, difficult of that improper argument by govem- decree, the terms of a courts consent Indeed, facts, comports analysis primarily with our review of ordi- rests on an we will nary interpretation clearly contracts. When issues of reverse if the determination errone See, ARB, Inc., predominate ordinary e.g., E-Systems, and construction in an ous. Inc. v. claim, regard (D.C.Cir. 1980); breach contract we issue of W.G. Cornell Co. v. question Co., Inc., Coating (D.C.Cir. as a breach law to be reviewed de Ceramic 626 F.2d 990 When, however, 1980). novo. a breach determination greater harm to nation- findings “conceive of un cult to district court typically review See, security” Pollard and e.g., standard. al than done clearly erroneous der a Bland, (6th F.2d 421 931 Cir. reflect punishment v. Pollard’s “should Kendrick that 1991); Apts., 808 actions, v. Oak Terrace Hayden magnitude of perfidy of his Cir.1987); (7th United States v. committed, F.2d needs and the of the treason (5th Cir.1986). Lulac, 636, 643 793 F.2d added). security.” (emphasis The national courts, including Similarly, our numerous exhaustively in Secretary detailed had own, findings of other of violations review security national submission the classified proceed contempt orders in types of court compromised, Pollard had information that standard. clearly under erroneous ings a a sen- urged impose to and he Drivers, See, e.g., Dallas Ware Gen’l enduring with the tence “commensurate Helpers, No. v. Local housemen & defense information quality of the national (civil NLRB, (D.C.Cir.1974) yet impart.” argues he can Pollard finding by for vio contempt Special Master artillery”— bringing to its “heaviest bear order); v. A.H. of NLRB Glasser lation top security national official— the nation’s Cir.1991) Co., (4th Robins assessment, provide damage order); (violation protective United prosecutors suggested sentencing to thе (11th Costa, v. F.2d 919 Cir. States government’s seeing in judge the interest order); 1991) (violation of district court imposed. maximum sentence Medical En National United government Cir.1986)(viola pressed true (9th It is ters., 792 F.2d orders); sentencing against Pollard at scheduling NLRB v. Ban case tion (5th Cir.) (civil Co., not think Mfg. 635 F.2d 492 force. But we do considerable croft contempt finding by Special for doing Master vio so the violated its order), sentence; of NLRB cert. denied sub lation promise not to recommend a life Metals, NLRB, Inc. v. 452 U.S. nom. in the certainly we find no clear error dis Croft (1981). 69 L.Ed.2d govern that the judge’s trict determination promise. to its ment adhered Cf. meaning agree Here the 455, 105 Benchimol, 471 U.S. States v. dispute; respect ment is not at least with 2103, 2104, (1985)(per 85 L.Ed.2d 462 S.Ct. claims of to the first two of Pollard’s curiam) (agreement partic a recommend breach, question whether govern require sentence does not ular arguments transgressed the “enthusiastically”). to do We dis ment so claim, it agreed norm. As to Pollard’s first agree dissenting colleague, with our who undisputed never Weinberger memoranda asked, words, believes that the many life so for a sen contends, however, calling punishment”—reflect for tence. Pollard “severe very ing force perfidy of Pollard’s actions request judge implicit the district equivalent sent referring to treason—was even particularly life for a sentence. Pollard life The Secre appeal to an for a sentence. two objects written submissions was, in our tary of Defense’s statement which, Secretary Weinberger of Defense view, for just request as consistent with claims, exagger contain numerous prison short of long sentence that would be appeals several ations and veiled a life term. The did ask sentencing impose the maximum name,” “life in all but Dis for a sentence penalty.7 it never introduced sent at because implicitly concept or notion or explicitly public Secretary Weinberger’s statement sentence; nor it maximum did ever year that even in a asserted which sever- synon thought that could spies for the main use words al United States’ adver- apprehended, ymous with a life term. saries was diffi- Pollard, purposes appeal, of this memorandum. received a sified Secretary Weinberger’s redacted version clas- scope espionage not commit the operation.” did gently government to treat Pollard then pages devoted twelve damage that he minimize the extent of the detailed recitation of the conspiracy, which provided: It security. caused to national government acknowledged was based “Notwithstanding coopera- Mr. Pollard’s largely on these Following interviews. tion, sentencing at the time Govern- recitation, cooperation was de- im- the Court ment will recommend that scribed further. “The defendant has sub- period pose incarceration_” substantial post-plea mitted numerous debrief- para- And same the ings_ During debriefings, those defen- graph plea agreement of the stressed that dant revealed a in- substantial amount of agreement limit “this cannot and does not regarding formation, formation the conduct impose maxi- court’s discretion to the the espionage and extent of the operation government re- mum sentence.” Since the previously which was unknown to the right argue the to for a served substantial government.” government then de- pre- of period explicitly incarceration and general in scribed terms the value of Pol- the district court’s discretion served cooperation: reason, lard’s “For this defen- argument Pollard’s impose a life post-plea cooperation proven dant’s has government implicit the made an that be of considerable value to the necessarily a life rests on for damage analysis, ment’s assessment and we, regard, In unlike our nuance. this ongoing investigation the of the instant colleague, dissenting telling think it that following case.” And in paragraph the it counsel, who re- Pollard’s reviewed and acknowledged was “that defendant has sponded Secretary Weinberger’s submis- describing been candid and informative government’s sions detail and heard the wrongdoing, government] his and that [the argument, implicit never claimed an breach has derived from benefit the information agreement sen- of the not to seek life provided.” defendant has dispute Secretary Counsel did tence. Wein- appeal essentially on Pollard’s claim berger’s gravity of Pol- evaluation the of government’s obligation that the to repre- misdeed, lard’s but characterized the Secre- cooperation his implied sent as valuable tary’s words—perhaps accurately—only as corollary promise coop- not to discount that was, hyperbole.” “rank The district court judge eration and not to tell the his that therefore, justified it the when described cooperation limited. Pollard accuses was government “argupng] for a substantial of government disingenuity by the includ- imprisonment, of term and no more.” Pol- ing bargained-for describing language the lard, F.Supp. at 803. cooperation in a of the his section sentenc- claim, Pollard’s second bewill ing memorandum entitled “FACTORS recalled, government the that breached COMPELLING SUBSTANTIAL SEN- by failing its him with outline Primarily, objects Pollard to the TENCE.” adequately the extent and value of co his government telling delay the that his 4(a) operation. paragraph In cooperating investigators al- with government agreement, promised to escape lowed the Israeli handlers to and nature, “bring to the Court’s attention the government’s suggestion also that of cooperation extent and value [Pollard’s] cooperating for Pollard’s motive was government testimony,” which the leniency sentencing, re- desire not represent was “of would considerable value for his crimes. morse damage to the Government’s assessment however, government, prom- never analysis, investigation its this of criminal give complete ap- case, ised not court a espionage and the enforcement praisal cooperation. In its view Pollard’s principal sentencing laws.” memo value, randum, government began It was considerable and the its discus so, government by noting sion Pollard’s crimes said but it was not whole- that “[i]n hearted; ..., given were an the numerous interviews defendant Israeli handlers origins country. defendant detailed the dis- opportunity has to flee the We com- government’s nature grudging that statement the dissent’s agree form not believe do but we pliance, impression conveyed facts from detracted significantly was cooperation of Pollard’s value Pollard’s the nature regarding presented instead, 1035; at Dissent “slight,” ex- or from cooperation out pointed legitimately it is And its value. statement plicit of considerable matters certain were there a defendant assumed normally to be of his i.e., apprehension importance, largely cooperates with —if long way course, goes (which, of handlers sen- of a reduced hopes entirely not concerning —in espionage) future to deter tence. Pollard cooperate.8 not did which plea agree- time the sen- objected initially counsel contends well reached, description of tencing ment op- given subsequently had been aban- handlers cooperation, knew reserving Pollard, escape, objection. portunity doned to the Although that he mention reassert- 6. right F.Supp. the at 804 n. explicitly the motion, waived in neither in effect government in the the ed Rule judge, it however, just argument can make the argument, proceeding The did point. the He could Pollard. did claim that against here. He not turned presented easily be the government reference barred the bargained agreement to exclude plea have for does motive agreement commenting And the on Pollard’s handlers. from Israeli govern- per- 4(b), delay the that that or on Pollard’s paragraph cooperation in provide, es- agents correct right intelligence “to the the Israeli reserves mitted ment sen- affirma- only time of the at the fact that cape. He contended misstatements of the un- was including representations cooperation of Pollard’s tencing, tive value although the the regard to in counsel think that and his We derstated. defendant certainly coopera- was Mr. Pollard’s presentation extent of government’s nature thought suggests at least be provision could well generous That not tion.” —it implicitly would judge explicitly or anticipated the not did parties the stingy that —it do coopera- Again, agreement. we story of Pollard’s plea the full the given violate be ruling it country and where court’s the district tion, that its value to not believe thought reasonably short, government’s view as the point as well can fell on this clearly motive. erroneous.9 of Pollard’s is, of breach claim third Pollard’s of the manner that the think do we Nor indicated, troublesome. more coop- as we Pollard’s description of 4(b) in paragraph in plea The his motive questioning of or its eration government that the statement cludes The form determinative. cooperation is at all times of allocution right full sure, bespeaks the “retains memorandum, to be agree- no violation It was States. suggestion the district that dissent’s 8. The posi- explain the Government to for the improperly ment may have proceeding in the cooperation sense in one value of tive permit- agreement to have interpreted assessment), noting that also while (damage message that "convey the government to ted efforts frustrated Government had defendant containing el- some cooperation, while enforcement). (law The another sense in value, was on an overall of considerable ements support con- does case not in this record much," is not at Dissent worth not basis in obli- failed Government that the tention gation. opinion. Af- reading district court’s fair dryly a few declar- not recite It did repre- agreed to noting ter cooperat- had that defendant sentenced] ative con- cooperation had been of that Pollard’s sent more, it as had said would. it It did much ed. Pollard, value, F.Supp. at see siderable at 804. Id. observe that on to went district court agrees colleague dissenting that “casting aspersions” Although by our that claims Defendant concerning these judgment district court’s cooperation, the Government defendant’s on agreement must violations made claimed completely statements undercut error, application of his clear be reviewed for example, the noted Government For earlier. indistinguishable de from appears standard cooperating that delay allowed defendant’s 1035-36. Dissent at review. See novo co-conspirators flee certain concerning the facts and circumstances of at (quoting plea agreement). Id. The committed Mr. Pollard.” the offenses in Moscahlaidis, critical factor however, argues language Pollard case, was own, unlike our government clearly, implicitly, agreed if agreed to take posi- no on his not to comment motives for commit- concerning tion defendant’s ting espionage or his on character. On promise which the Third Circuit held bound “ during sentencing numerous occasions attempt make ‘no ” hearing, referred to Pol- all to influence the defendant’s sentence.’ “arrogance deception,” lard’s em- (quoting Id. United States v. Mil- ployed adjectives other unfavorable de- ler, (3d Cir.1977) (per character, scribing “vengeful,” such as curiam)). It inwas that context that the trust,” “unworthy “contemptuous.” prosecutor’s description of the defendant’s government consistently suggested, The thought character go beyond the moreover, spying that Pollаrd’s had been plea agreement. terms of the by greed ideology. motivated rather than wording of the “facts and circum- government disputes meaning us, contrast, stances” clause before gives sentence; it claims that ambiguous. not, face, It does on its ex- language is not intended to limit the commentary clude on Pollard’s motive for allocution. The limita- committing And, his crime. as the (which government agreed tion the itself correctly points out, ment gener- motive is explicit agreement) in the was not to ally thought any least for crime that —at specific ask for a life sentence or a term of requires go very mens rea—to heart years. difficulty govern- One with the crime, of a and thus is presumably included position comparison ment’s is the in the “facts and circumstances” of the which, plea agreement, Anne Pollard’s in a government’s crime. The discussion of parallel paragraph, states that the is, perhaps, Pollard’s character another right ment “retains full of allocution at all Special protections matter. attend the ad- times, right including the to detail the missibility trial, of character evidence at facts and circumstances of the offenses committed_” see Fed.R.Evid. 404 and and it would added). (emphasis That suppose not be unreasonable to that this language in agreement the Anne Pollard type of allocution is what “facts and cir- certainly suggests right that a full of allo- However, limiting cumstances” excludes. beyond cution extends to something facts government’s the allocution to the facts and circumstances. Pollard also notes that and circumstances of the not offenses does plea agreement paragraph in his own at necessarily preclude any comment on char- 4(c) right reserved its “full acter, because some consideration of char- allocution connection with Rule 35 inseparable acter is from the motivation of motion,” thus indicating parties may сase, instance, In defendant. this it something right have meant less than a full permit would have been artificial to adding the facts and lan- circumstances argue that Pollard commit- guage in the earlier clause. espionage ted his for financial reward but Appellant heavily relies on United States rigidly suggestion exclude the that Pollard Moscahlaidis, (3d v. 868 F.2d Cir. greedy self-regarding. was thus and 1989), support interpretation his of the ambiguity, Given the Pollard contends language “facts and circumstances” as ex agreement strictly should cluding be construed discussion of his motive and charac against government, Moscahlaidis, which drafted ter. In the Third Circuit terms, favor, especially and his since it plea agreement limiting held that a “ operates government’s as a waiver of his constitutional allocution to ‘the full na jury rights. See, e.g., ture and trial extent activi United States [the defendant’s] ” (11th respect Jefferies, ties with v. 908 F.2d Cir. this case’ had 1990); violated when commented Harvey, United States v. length upon 294, 301, (4th Cir.1986). the defendant’s character. On the other ordinarily en guilty plea induced placed be weight must hand, good deal a either review on direct defendant interpretation titles contemporaneous on the resentencing thought and performance specific counsel, apparently who Pollard’s allo- or to withdrawal government’s a different before nothing amiss when ap unflattering presenta- deems the court plea, as guilty included cution York, motive. and v. New character See Santobello propriate. tion 498-99, on those distinguishable 262-63, is 92 S.Ct. Moscahlaidis 404 U.S. in that defendant well. grounds (1971). But all breaches 30 L.Ed.2d sentencing that time of asserted to result case can be said agreements plea breached allocution justice; not all miscarriages of complete ap- a direct took He also agreement. plea See United under call for relief § Moscahlaidis, from his sentence. peal (D.C.Cir. 1, 7 Griffin, F.2d at 1359-60. a clear has been thеre 1987). Only where promise that was whether unnecessary to decide of a definite violation findWe and “facts can inducement significant breached limitation, there because to withdraw prisoner permit circumstances” 2255 court § which against barrier decisive higher and v. United Machibroda plea. See 510, 513, 487, 493, claim breach States, 368 U.S. conclude If we were collides. (1962) (guilty void 7 L.Ed.2d beyond extended promises that by broken induced where thus breach and circumstances” “facts voluntary character it of the deprive think Pollard do not agreement, we ed the act). 2255. It relief under entitled to would colleague suggests that dissenting Our not meant motion is that a is settled defect” “fundamental the notions appeal and for a direct a substitute to be are elastic terms justice” “miscarriage of claimed encompass all does not “it depending on meaning shift sentencing.” in conviction errors (or, more sought accu- relief nature 178, Addonizio, 442 U.S. v. States United Thus, offered). Judge case, rately in this 2239-40, 2235, 60 L.Ed.2d 184-85, 99 S.Ct. he remedy for the that contends Williams in (1979). 805 a new before resentencing provide, would case, if it crossed even Pollard’s under 2255 relief § for the test judge, far short falls plea agreement, of limits a results in (“fundamental sen defect” in Pollard’s defect” of “fundamental a can be miscarriage justice”) of “complete “complete miscar in a tencing resulted than would showing it “an omission nor was a lesser justice”; satisfied riage of rudimentary sought rescission appellant demands if the required inconsistent 428, Hill, at U.S. is so because agreement. 368 This procedure.” fair v. 471; a new resentencing before ordering 82 S.Ct. cf. (D.C.Cir. n. 3 1040 “markedly more burdensome” McKoy, not be would post- for 1981) (“The stringent ap- standard on direct resentencing remedy a than is intend motions plea withdrawal no there is sentence But 1038. Dissent at peal. testing from a defendant prevent accepted ed to it Congress, when indication then punishment, potential weight through Fed. for relief standard this strict the sen if finds withdrawing delegate 32(d),10 meant R.Crim.P. severe.”). unexpectedly tence if the nominal power to lessen it judges particular a government of costs true that It is of course relatively low. thought to be remedy were plea agree keep the government must disqualifica- because the (We say nominal promise a Any breach it makes. ments approved that standard expressly breach of a plea agreement, and all of riage justice of robbing those —without those cases involved clear violations of the words meaning. of all agreement or federal statutes. See Bru Judge Williams, nevertheless, would States, nette v. (8th United 864 F.2d 64 grant resentencing in this if context the Cir.1988); Carbone, United States v. government’s breach “a creates serious (2d Cir.1984); F.2d 45 States v. likelihood judge that a would given have Corsentino, (2d Cir.1982); 685 F.2d 48 harsher sentence” than the without ‍​‌​​‌‌‌‌​​​​​​‌‌‌‌‌​​​​​‌‌‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‍breach. States, Correale v. United 479 F.2d 944 Dissent at 1038-39. That approach would (1st Cir.1973). mood, The appear atmosphere, require to resentencing, regardless of the “rhetoric” of clarity the allocution— alleged or seriousness the of breach, if appellate judges upon believe, which might were to the dissent well relies— for example, that a defendant would justify have relief appeal on direct aof appeal In a direct sentencing judge determina- 11. because the judge did trial the district —as tion, if appellate the court concludes that the by state well that he was unaffected here— government plea agreement, breached arguably the excessive nature the grants appellate relief. The try Santobello, court does not argument. ment's See 404 U.S. at to decide 262-63, the judge whether breach the caused appellate at S.Ct. 498-99. An give greater sentence than obliged weigh would should judge’s not be the trial levied otherwise. As the credibility Santobello Court rec- considering in the course of whether ognized, unprofitable that an inquiry is line оf the breach had effect. stances, justice rigorous it cannot be said that com- unlikely satisfy it is test pletely miscarried. appear It does was III. dealings engaged hard-nosed with in rather case, quite surely the In a unusual appellant. But we think extraordinary ap most by claim raised of the claims of breaches pellant is his contention that the district appear very to us to be agreement, which judge improperly considered information thinking on product much revisionist conveyed parte by govern to him ex counsel, part Pollard and his new are shocking charge ment. This rather is late, brought pro in this collateral far too alleged based on conversation between ceeding, prevail.12 Pollard to Pol to enable Judge Supreme former Chief Robinson and complaining years lard waited three before who, having Goldberg, Court after Justice government’s allocution. The about Dershowitz, by been contacted Professor government arguably promise that set out to determine the reasons for Pol transgressed, to limit its allocution to parte lard’s life sentence. ex informa passed of the offenses “facts and circumstances tion is said to indicate that Pollard demonstrating committed,” ambiguous regard information to the Israelis knowledge cooper United States’ secret types of statements ation Israeli and South African between judge district aware of all made. The was agencies. Judge sup defense Chief plea agreement of the and did the terms posedly Goldberg told Mr. that this infor regard not allocution as “weighed heavily” sentencing in his mation impermissible agreement. under the Even earlier, determination. As noted Arthur if, argues, contemporane dissent Goldberg shortly died thereafter and so response lack judge ous from the district questioned. was But not available to be given weight, no should be see Dissent at Dershowitz, told, we has are determined 1037, the same cannot said of Pollаrd’s be pass did not in fact infor Pollard such counsel, objection also made who no mation to the Israelis and that it was government’s allocution. The sentence summary included within the classified power Pollard received was within presented to Pol district impose, the district court to both sentencing; lard’s Dershowitz counsel he plead terms the statute under which then must deduces guilty explicit ed terms conveyed therefore have this information agreement. Pollard has never denied Judge parte. to Chief Robinson ex guilty he is crimes which he sought hearing Pollard based on the imprisoned. Barker, and, perhaps more im- Dershowitz affidavit (whether defendant asserts factual in Judge portant, asked Chief Robinson to important nocence is an factor Judge recuse himself. The Chief refused deciding permit weighed in whether hearing. to recuse and denied the guilty plea). withdrawal of Nor there claims the district court abused its discre- any allegation guilty plea that Pollard’s very tion. We think little of this claim. promise specific was induced subsequently which did not A judge grant district must a Allison, Blackledge receive. v. 431 hearing 2255 “the prompt under unless § Cf. 63, 1621, U.S. 97 S.Ct. 52 L.Ed.2d 136 motion the files and records of the case and (1977); Machibroda, 1, 368 at 490 n. conclusively prisoner U.S. show that the is enti 82 n. 1. S.Ct. at 511 Under such circum- tled to no relief.” 28 U.S.C. 2255. § judge. agreement 12. Pollard also claims that before Because good implied breached its covenant of duty police faith and was no Pol- under dealing "permitting” fair Pollard to meet compliance agreement, and lard's with the journalist forcing Wolf Blitzer without Pol- because there is no evidence all that permission lard to seek from the Director of bring connived to about this viola- Intelligence, Naval for, as his called tion, any we do not see substance this claim. bringing up violation then this

1031 decision whether to do so is committed to For reasons, similar we believe the district court’s discretion. See Machi Judge that Chief Robinson did not abuse broda, 495, 368 U.S. at 82 S.Ct. at 514. In his discretion in denying Pollard’s motion making decision, this judge’s “the recollec disqualification. for argues tion of the events at issue enable him Judge Chief Robinson required was to re summarily to motion”; dismiss a 2255 § cuse himself under 28 U.S.C. 455(b)(1), § indeed, his ability to do so is one because he personal had knowledge of dis advantages of 2255 relative to § habeas puted evidentiary facts concerning the al corpus for prisoners. state Blackledge, leged ex parte contacts; under 4, at 74 n. U.S. 97 S.Ct. n. 4. 455(b)(5)(iv), might § because he have been Only where the 2255 motion raises “de a material witness at a hearing on those tailed specific” allegations factual allegations; and 455(a), under § because requires whose resolution information out deciding his the motion alleging misconduct side of the record judge’s or the “personal part gave on his the appearance of bias. knowledge or recollection” must a hearing The district court did not need to recuse Machibroda, be held. 368 U.S. at 82 itself under 455(b)(1), because only per S.Ct. at 514. if Even the files and records sonal knowledge of disputed evidentiary of the case do not clearly allega rebut the gained facts in an extrajudicial capacity is prisoner, tions no hearing required grounds recusal, for any knowledge where his claims “vague, are conclusory, or Judge Chief Robinson had concerning the palpably incredible.” Id. government’s sentencing submissions came directly from his participation The district in the judge was, case. case course, See United Heldt, States v. intimately familiar with the record (D.C.Cir.1981) (per curiam), and knew as a matter fact cert. de whether or nied, not the U.S. had submitted parte ex (1982). L.Ed.2d Likewise, material him. Judge The Chief district attested court could not be disqualified bias, it not. He accordingly denied the because the bias alleged hearing.13 motion for a “must stem from We believe extrajudicial Judge Chief source and result within in an well his discretion opinion on the merits on do so. The some basis other Dershowitz affidavit was than judge what very par learned from weak It submission. did his not suffice ticipation in the case.” require hearing into question raised, Corp., Grinnell even if S.Ct. district had not 1698, 1710, 16 (1966); L.Ed.2d personally Heldt, aware that Professor Der- 668 F.2d at Finally, showitz’s Chief Judge “deductions” were fallacious. Robinson required was not The affidavit to recuse him no included direct or even self as a hearsay potential witness, evidence material be parte that an ex submis- cause, above, sion we noted had been he acted Furthermore, received. within af- examining denying hearing.15 ter discretion the classified material sub- mitted judge, district we understand * * * * * * subject how the (if of South Africa Jericho missiles affidavit) mentioned in the The issue appellate before us as judges is could have been mentioned in a conversa- not whether life appropri- sentence was tion between the Judge Chief punishment and Arthur ate crime, for Pollard’s still Goldberg, without recourse parte ex less whether we ourselves would im- materials.14 posed such a sentence. It is rather wheth- 13. may The motion have designed primari- 15.Assuming arguendo judge’s the district ly to judge force the to recuse himself. refusal to Attorney direct the United States to provide Pollard’s new counsel with access to the Indeed, pages 14. on 34-36 of Pollard’s own Sec- Weinberger classified submission was errone- ond Memorandum Sentencing, In Aid Of there ous, our examination of the material us satisfies appears a section entitled “The African South that the error was harmless. Affair,” discussing Pollard’s involvement in in- telligence-sharing with South Africa. 1032 point below no government at theAs a sufficient mounted has appellant

er the standard, prejudice and the cause government asserted of the actions challenge to the the At best the defense. the formid- waived to clear it has the district and grazed the may said to have attack be in a collateral relief to able barriers think to Opposition We to Motion With 2255. In its under issue. § on his judgment three-year the the Guilty affirm Plea it noted Accordingly, we draw not. sentencing and court. Pollard’s delay district between 5-6, motion, the failure of id. 2255 so ordered. .It is allo- object Pollard id., hearing, and dissenting sentencing Judge, WILLIAMS, at the cution Circuit his claim that of “waiver” part: Pollard’s coopera failed to describe “plea majority agree with the I 10. But the 24 n. adequately, id. at tion coercion of unlawful not an wiring” was points the first two sole government made Judge Chief plea and that guilty Pollard did argument that an ly to boost his discretion abuse did not Robinson consider time of allocution not at the a or to conduct himself refusing to recuse breach, the last in a it a and made conduct parte ex contacts. claim of hearing into the throwaway line without vague footnote of breach government's But because prejudice” stan of the “cause and mention mis- agreement was fundamental invoking that any case or citation to dard 28 relief under requiring carriage justice of demanding strict adher party A standard. 2255, I dissent. U.S.C. § finality is in a of weak principles ence to specifics of turning to the Before lapses be dis its own to ask that position at sentenc- to behave government’s failure courts accordingly circuit and regarded, some there are ing promised, as it had as a government silence waiv treated have matters. preliminary Hicks, See, v. 945 e.g., United States er. is to prejudiceRelief 1. “Cause and Cir.1991); 107, (5th States United F.2d 2255, the 28 U.S.C. granted under Cir.1988); (10th Hall, v. law ha- of statutory replacement common v. DeRober ex rel. Bonner States United a “fundamen- beas, petitioner if shows Cir.1986); (7th tis, F.2d complete miscar- [resulting tal defect in] 782- Virginia, v. cf. Titcomb inconsist- or “an omission riage justice” “it Cir.1989) (no waiver where (4th of fair rudimentary demands ent with raised the appear” state would States, 368 procedure.” v. United Hill response and where in its second issue 468, 471, L.Ed.2d 82 S.Ct. part default procedural evidence lodge failed to petitioner If (1962). especially record). Finding waiver objection to the contemporaneous chal- where, here, can take the relief sensible appeal, then ruling, failed lenged merely requiring resen- of an order form preju- show “cause also plea, so that tencing, not vacation proce- “double dice”, excuse his the first to unlikely to is most suffer default”, ac- second show the dural or other injury loss memories from See Unit- tuality injury from error. evidence. 152, 167-68, Frady, 456 U.S. ed States understanding My 1584, 1594-95, L.Ed.2d 816 Deference: largely similar scope our review Pol- argues that (1982). court’s inter- review a trial majority’s. We prejudice be- cause lard must show novo, agreement de pretation object he failed to cause an interpretation just sen- as we review appeal his and to ment’s (unless the inter- de novo ordinary contract majority believes that Because tence. See, evidence). turns extrinsic pretation on the “funda- not satisfied has even Co., 903 e.g., Travelers Indem. standard, ad- HOH Co. v. need not mental defect” (contract in- (D.C.Cir.1990) 12 n. 6 at F.2d Maj.Op. see prejudice”, dress “cause and v. Western terpretation); 1019-20, I but must. Co., 283, (D.C.Cir. Electric 900 F.2d special character practice in- 1990) (interpretation settlement); of forms civil its nature. Maj.Op. see also at 1022-23. We review a Where a defendant claims that findings (what trial court’s pure of fact breached a happened) clearly under erroneous agreement, there is no deference to the standard. And defer to we district court sentencing judge’s of view the actual effect findings even on fact-intensive issues (as allocution on him her opposed or characterization, such as whether particu to the projected or inferred effect on a conduct, lar about hypothetical which there is no factual judge). Compare Maj.Op. at dispute, violates a norm that 1022-23. This is for simple courts have reason that the actual effеct on clarity defined with as the actual they much as can irrelevant. York, Santobello v. New expect to achieve. Thus in Kendrick v. 257, 92 S.Ct. 30 L.Ed.2d 427 Bland, (6th Cir.1991), 931 F.2d 421 (1971),put any inquiry such bounds, out of applied clearly erroneous stan perhaps because the sentencing judge findings dard to specific toas whether con would position an awkward making by prison duct e.g., cancellation officials — “findings” about his own state of mind. of club activities—constituted “institution- The Court ordered despite relief declaring wide” violations of a consent decree. that it had “no reason judge’s doubt” appellate deference in this last cate- prosecutor’s statement that “the recom- gory anomalous, is somewhat as the char- mendation did not influence him”. Id. at way acterization is in part a of the law- 262-63, 92 at S.Ct. 498-99. finding process; it answers a normative Principles plea interpretation: (whether question the conduct accept- majority correctly notes that Pollard’s not), able thus in some measure argument in some respects “rests on refines the norm. But where the charac- nuance”, Maj.Op. and that process terization is extremely fact-inten- government did not ask a life for sive, appellate yield decision “in many words”, so id. at or use useful contribution formulation synonymous “words term”, ... awith life legal rules, appellate so judges’ dupli- explicitly id. 1024. Without setting cation of the trial court’s effort con- would general forth a approach, majority ap- judicial sume very resources for little re- pears apply principle that the turn.1 See Corp. Mars Steel v. Continen- ment should be held letter of its N.A., (7th tal Bank F.2d 933-36 bond. (en Cir.1989) banc) (Easterbrook, J.). By approach puts Such impossible an bur token, however, the same review for clear den on party contract drafters. A cannot error cannot complete off into fade defer- anticipate every evasive move that another ence, else the aрpellate law-finding court’s party may make, or every opportunity for (or law-forming) function would be discon- evasion. interpretation Brittle makes for nected from Moreover, the real pre- world. long contracts, longest and even the will sumably because of a recognition of the have loopholes. Accordingly, as with other law-forming aspect of fact-intensive charac- contracts, reject courts ordinarily literalism terizations, the decisions on ap- deference plea agreements and read as a reasonable pear replete with contradictions incon- person would understand them. United sistency. Wright Miller, & Federal Moscahlaidis, 1357, 1361 States v. Practice and (1971 Procedure (3d 2585-89 & Cir.1989) (citing cases); §§ United States Supp.1990). Perhaps one can Carbone, do better (2d no Cir.1984); 739 F.2d say deference, than to that there is Crusco, States v. argued

1. It could be interpretation phrase language application of the contract specific language, conflicts, particular contract types in the absence so that evidence, extrinsic fact-specific is also a process require form of appellate would seem courts "product" interpre- characterization. But to rule novo so as de to achieve uniform rules as norm, i.e., tation para- nearly possible. articulation 1034 re- that even world shows the commercial “stubbornly liter- Cir.1976) (criticizing (3d too, Here, reasonable Finding lapse. peat players agreement).2 plea of ‍​‌​​‌‌‌‌​​​​​​‌‌‌‌‌​​​​​‌‌‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‍reading al” fair- faith, only it though not assures enforcement good judicial duty of implicit an be the drastic, to amounts who to the individual more ness

may sound have Partnership judge whether cumstances er, dispute.” Market approximating sonal ise because had “some violates same Cir.1991). (4th to recommend cutor who did promise, than also United has ments we not a Md.App. “may significant must be ment of the fies bonе. While promise fer player its own that Judicial to consider judge that must”). given up due Cir.1974) negotiated had three thing niggling factors” to be construed F.2d agreement to recommend fulfilled.” reduced, process, to the hardly surprising. said, 659, insistence Thus United if it is understood degree years); problems” States that its word 851, 853-54 v. prosecutor his 365 A.2d mean sentencing recommendations interpretation for “I believe probation breached he recommended field and has so Frey, 941 (prosecutor’s plea promise pared 498. If fulfillment of he still right so based include but, government is a terms on a v. Street Santobello, factors Snowden anything, it cannot if a agreement, they foreseen the be on a reasonable Brown, provision when with given rise to upon good, we promise (7th plea ..., F.2d a trial that satis- adhered Associates States (1976) (promise specified. See must, I The defendant this implicit prom- an interest parties would asked Cir.1978),the [various] statement such rests “in as “a stab 500 F.2d experience 588, v. three 404 U.S. plea agree- though State, 33 by prose- v. Bowl- no more promise to this believe by repeat agree- literal years their Ltd. per- (7th and cir- re- he at at in fied victim information government plead significance the court's testimony” and would value sive promise was nage laws.” inal and would by the ment tencing memorandum incarceration”. free to recommend to call its neither of Pollard’s of Pollard’s cussion of Pollard’s STANTIAL graph of this section entitled compromised “thousands Though promises; case, zeal, documents”, value of # analysis, its guilty and to the Government’s attention not ask letter government), of that “FACTORS and ^[*] plea slip-up cooperation, to build supplied was here. attention SENTENCE”. complied “the facts limited offense, saying implicit but is not the enforcement crimes. Maj.Op. also nor [Pollard’s] to the “considerable agreement Id. for a life made Sjt cooperation investigation of this spirit. makes it First, or of a “substantial coоperate. at 1016-17. confidence its reserved COMPELLING recommended though discussed “the at 1017. third, Id. at 1017. and circumstances” represent three J¡C spirit in its buried an it would of cooperation and required damage assess- obligated pages of classi- nature, extent The first agent’s easier for it “considerable principal in a with promises ^[*] it would of in its word. On its complied in the extent Second, it Third, the contested period of bring to right of sole its none of he a “sub- section him to value” exces- ^[*] espio- itself crim- SUB- para- side, (this sen- dis- be of had to be the violation says whether commonly discussion Circuit 2. The 9th remediable), while be it to terms for interpreted rea- the literal both as a agreements should per- typically for the reasonable cited lit- the case them person would understand sonable per- Travis, favors the reasonable indeed see, son standard F.2d erally, e.g., States v. United Arnett, 628 F.2d v. States Cir.1984), apparent perspective, son United (9th despite the Cir.1979) (court (9th looks repeatedly cited But case contradiction. was "reason- decide what each case support facts such does favor of literalness view, en- Garcia, ably when [defendant] understood Crusco, quoting guilty,” Cir.1975) (finding tered (9th breach of are the terms government failed to abide agreement because standards"). by “objective determined terms of contract —no even literal period stantial of incarceration”. J.A. 160. plea agreement found a violated where the paragraph The second called Pollard’s ac- government, though obliged to tell the “flagrant trust”, tivities a breach of ... cooperation, of defendant’s neither “all the more [despite breach venal that offered details on its own nor endorsed the contrary Pollard’s it is clear that account, claims] defense saying only that defen- money gifts provided by the and the Israel- dant had “been cooperating helping pros- significant, is were if primаry the coconspirators”. ecute the govern- motivating factors defendant”. Id. at 161. ment’s breach here is no less. paragraph The third said that Pollard “will It is not clear from the district court’s undoubtedly urge the Court also to consid- rejection of this claim whether the court conduct, i.e., post-arrest er his submis- [his] construed the leaving the guilty sion of a cooperation and his government free convey message the point ...and noted the obvious cooperation, that Pollard’s while containing bargaining cooperation and “may be con- value, some elements of considerable was by sidered courts at the time of sentenc- on an much, overall basis not worth ing.” paragraph govern- Id. In four the whether the court found that the provided compliance ment nominal with its ment had said cooperation was of promise, saying that Pollard “revealed considerable value overall. See United substantial amount of regard- information Pollard, States v. F.Supp. ing espionage operation ... the which was (D.D.C.1990). first, If the I think the con- previously government” unknown to the interpretation tract wrong; was if the sec- cooperation proven and that this “has to be ond, finding I believe the was clear error. considerable value to the damage analysis, ongo- assessment and the promise On the not to ask for a life ing investigation of the instant case”.3 Id. government coupled its at 162. In the paragraph, though fifth adherence to the letter with an even more acknowledging that the defendant had been flagrant agreement’s violation of the spirit. informative, candid and presented It memoranda from Secretary of told the court that delayed coop- his Weinberger Defense saying that “no crime eration order escape to assist deserving is more punishment of severe coconspirators, devoting three space more conducting espionage than activities to this cаveat than to its favorable words against country”, one’s own J.A. for cooperation. Pollard’s Id. The rest of “it is difficult for me ... to conceive of a section, course, went on with further greater harm to security national than that denunciations. defendant”, by caused id. at Thus the came forth with punishment imposed that “the should re- magic value”, words “of considerable actions, perfidy flect the magni- [his] and it even mentioned two of the three committed, tude of the treason and the general inquiry, specified areas of by the security”, needs of national id. 264. agreement, to cooperation which Pollard’s expressly While these remarks did not by placing contributed. But the discussion (or endorse a life synonym, use a square in the middle of its why reasons 1024-25), compare Maj.Op. repeated substantial, sentence should be superlatives implied use of heavy appeal cooperation’s stress on the imperfec- tions, Weinberger’s it succeeded in maximum. reference to conveying impres- that, overall, sion point treason took the value was not “con- further. Whereas slight. siderable” but Perhaps penalty, treason carries the death value U.S.C. so, slight, was if aiding but then the and involves the nation’s enemies, should not obligation Const., Ill, have embraced an Art. cl. say contrary. In charged espionage, carry- v. Pollard Fisch, (9th Cir.1988), 863 F.2d 690 ing imprisonment the court a maximum of life laws", 3. Note the espionage omission of reference to the ment of the broad cooperation value of Pollard’s purpose agreement. "the enforce- mentioned Israel tran- “loyalty to Pollard. friendly na- even aid encompassing States,” to the United loyalty scends the sentenc- course here, Of Israel. tions— Id. at Weinberger. Secretary said difference, knew ing judge space much government devoted a view- expressed barrage driv- Pollard was marshalling evidence promised point prospect for (“enamored of the greed by en was Weinberger’s subtext express. to not 165; by motivated at monetary gain”, id. the sentence was possible the heaviest that 168), and not at money”, id. of “the lure court’s The trial just. was lightest that con- by anti-terrorist affected materially F.Supp. at contrary, to the conclusion or, implied 164-69, by exten- cerns, at id. clearly erroneous. was sion, any sympathy Israel. by the had reserved government the That in the contends government incar- period of “a substantial right to seek right of “full retained by which phrase analysis. change the not does ceration” concerning the facts at all times the allocution 1017. Of at course Maj.Op. Compare offenses”, the the of and circumstances the lay to out free remained government and circum- to “facts limiting reference na- impact on its the crime and details hard to nullity. This was a stances” an coupled with These, security. tional out, points the majority the sentence, As swallow. for a substantial explicit in Anne Pol- language the with contrast government’s the secured might well here suggests that agreement lard’s availability of these objective. But other- some to exclude intended parties out it to wheel scarcely entitled methods of an allocution. elements acceptable calling for wise weapons, rhetorical heaviest Maj.Op. at 1027. See name. in all but a life “facts and majority that agree I with confine agreement to despite its Finally, going to matters include circumstances” circum- facts and “the to its allocution can address But one motivation. Pollard’s offenses, government stances” leaving the specifics, detailing by expres- motive judge that the district told alone, to be legal conclusions moral and and “both belated were sions remorse is the line This judge. by the in the settled “grounded hollow”, and J.A. in Moscahlaidis. by court original), drawn (emphasis caught” he fact was obliged by its was government There “recidivist” who id.; Pollard was on position” no tо “take agreement Court’s authori- of this “contemptuous was “the speak of 359; but was allowed trust”, at id. “unworthy of ty” and defendant’s] extent and [the full nature contempt” for the felt “blind that Pollard case”. respect this activities had and at military, id. found that at 1359. The at F.2d id. perspective, “skewed” “warped” and from as- barred “traitorous”, agreement at id. 319; Pollard was char- the defendant’s serting opinion of deceitful”, its at 315 369, “arrogant id. [and] (for alluding example) phrases re- acter with 316, 320), “without (and at id. see and moral greed depth 163), to “the [his] and (and at morse”, see id. id. at de- pursuit “demonic bankruptcy” lifestyle high to the “literally addicted contempt for utter activities”, monstrating] at id. espionage [his] by his funded man”, 1362. at id. his fellow welfare Attorney noted assistant U.S. 167. structure Though the brought up assistant) (the had he Pollard’s, Third Cir- from was different “unforgivable”, arro- sins as regard two opinion— fact and cuit’s line—between precisely at deception gance and —id. here.4 sense equal to makes imputed repeatedly sins that the two constraint, might left it free well have this tion" relied in Moscahlaidis Although court in 4. circum- anything. the "facts say Here having obliged itself government’s part on the narrower, and, true as was language hardly sentencing, stances" position" on no "take Moscahlaidis, its extent” Maj. nature and Compare of "full irrelevant. the decision makes Op. obligation meaning a related allowing is shaded language 1027. There the —not passage two also the life sentence. to seek a paragraphs commentary full broader—“the was below, noting synergies in the activities”. of [defendant's] and extent nature promises. posi- no the “take Without F.2d at So the was free to relate not assumes that the was unaffected intelligence implications Pol- disparage efforts to Pol- acts, lard’s supporting character, but also details lard’s thereby resolving an unan- question inference that his swerable pecuniary. motive and perhaps violating Sаntobello, But if anything, the limit meant which it could ordered relief despite judge’s the trial allow the wrap accepted by raw assertion — Court—that improper rhetoric, facts in an inflammatory endlessly not influenced him. 404 U.S. alluding (necessarily subjective) opin- S.Ct. at 498. ions that Pollard immoral, was greedy and depicting his conduct apogee as the espi- Do the breaches amount “complete onage, naming traitor, him a delivering miscarriage justice” required for relief a tirade “arrogance on his and deceit”. under 2255? The cases under § 2255 § (and 2254),5 quite frankly, gap § leave together, government’s Taken three between two patterns clearly vio —conduct promises worked a substantial restraint on lating even the literal language of the allocution. Its commit- agreement (eliciting relief), and conduct ments to restrict itself to facts and circum- varying agreement from the only trivially stances, and to assess cooperation (eliciting none). Typical of the pattern first having value, considerable closed off a is Brunette v. States, 64, United 864 F.2d means might which it demand a life (8th Cir.1988), 65 where despite agree an sentence in all but Safely name. after the ment to recommend “unspecified an peri fact, briefing here under- od”, expressly suggested commitment, mines its isolating compo- the maximum. See also United States v. nents promise in order to conceal Birdwell, (5th 887 F.2d Cir.1989) 643 synergies. their (where incorporation of a state agree Is troubling it that the breaches involve ment into a federal one induces defendant matters of means, rhetoric? It course, of accept latter, the state authorities’ the violation cannot be measured failure through to follow undermines the mathematically. But that is often true in plea); federal Blackburn, Smith v. 785 disputes contract obviously whenev (5th Cir.1986)(state’s —most F.2d 545 promise that er courts express implied enforce duties defendant would upon be parole released of pеrformance. Further, “reasonable” parole breached denied); when Car courts frequently draw the line between bone, 739 (prosecutor’s 45 objection F.2d legal facts and or moral conclusions in clas request defendant’s allowing for sentence sifying testimony lay of witnesses. early parole promise to violated make no 701; See Fed.R.Evid. compare recommendation); United United States v. Mer Slade, States v. 293, (D.C.Cir. cer, (7th 305 Cir.1982) (failure 691 F.2d 343 1980)(finding lay references to defendant’s court to plea, allow defendant to withdraw drug “organization” equivalent when specified conditions agreement improper occurred, assertion as permitting withdrawal conclusion that it re quired was conspiracy) plea); with vacation Enterpris Williams Correale v. Unit es, States, (1st ed Cir.1973) Inc. 479 F.2d 944 Co., v. Sherman R. Smoot 938 (where prosecutor 230, promised (D.C.Cir.1991) 233-34 to recommend (permitting sentence that lay would make testimony eligi defendant by insurance broker on rela parole ble for federal when he tion received between accident and insured’s in parole under state noncomplying premium). creased Is rhetoric simply too promise recommendation breached and en say trivial? would, think, To so I buck titled defendant under to resentenc- 2255 § prevailing views of human psychology. ing). When majority relies on the district judge’s to note failure a breach at the time On the other side is States v. allocution, see Maj.Op. 1029-30, at Benchimol, 453, 105 it 471 U.S. S.Ct. discrepancy 5. The majority’s account, between the survey only, which is illustrative is that cases, 1029-30, one Maj.Op. hundred at majority leaves out the § 2254 cases. actionable when damages and not tiff seeks (1985),where L.Ed.2d 462 See, e.g., Restate- injunction. an he seeks and, probation, agreed to recommend c comment (Second) & of Torts ment informed the counsel defense when be withheld (1979) relief should (injunctive attor- the assistant U.S. agreement, hardships where balance for nuisances representa- said, accurate “That is an ney damages to be dictates, though are even so S.Ct. Id. at tion.” Dickey awarded); v. W.S. Harrisonville under upset refused Court Co., 289 U.S. Manufacturing Clay case where 2255, viewing it as a (same); (1933) L.Ed. 1208 S.Ct. impression ... simply “left an prosecutor P.2d 529 Stallings, 217 Or. York lenien- support for less-than-enthusiastic Co., Inc. (same); Stuttgart (1959) Electric (inner at 2105 cy.” Id. 108, 802 Co., Ark.App. Seed v. Riceland scarcely omitted). Benchimol quotations (encroachment (1991) warrants S.W.2d is one much here. It helps In injunction). damages, not of remedy of need thing say that (the parallel law closest ordinary contract gusto, or with obligations its with fulfill rules), obligee who plea agreement voice, quite another to right tone of im- protest a breach appellant fails to like ar- may fill say to cancel mediately may right lose wholly undermine dent declamations plea) (paralleling vacation compliance. any nominal (paralleling damages right to not his but 2-711, See, 2- e.g., resentencing). UCC §§ is closest case Moscah- the facts the On delivery of re- option upon has (buyer similarly laidis, where the nonconforming goods or of obtain- jecting inflammatory its loaded time after ing damages; within reasonable with the reasonable rhetoric inconsistent damages). may obtain delivery he p. 1036 agreement. See meaning of the may have Further, exactly phrase same the court, appeal, or- on There the above. the same meanings even within different “miscarriage jus- relief. As the dered review all appellate courts rule. While demanding the is more than tice” standard courts under findings of district factual appeal, on Moscahlaidis standard review standard, whether “clearly erroneous” in even this case not control would evidence”, documentary oral or on “based should much more Third how Circuit. But 52(a), also instructs the Rule Fed.R.Civ.P. things the required? In the nature be given to regard shall be that “due It elusive. is difference standards of the trial opportunity witnesses”, moreover, giving arises, fact credibility out of the of the status. special evidence prior type the defendant’s latter ordinary habeas case any remedy more object makes failure to Advis- that as the suggests majority have system for the than it would costly amend- on the 1983 Argued Feb. 1992. palter sense; That with us in a double Decided March 1992. keep That promise the word of to our ear, hope.

And break it to our V, vii,

Macbeth 48-51.

ORDER

May GINSBURG,

Before: B. RUTH

SILBERMAN, WILLIAMS, Circuit

Judges. ORDERED, court,

It by is Dershowitz,

motion of Esq., Alan M. appearance granted,

leave to enter an is

and the Clerk directed to so note the lodged

docket and to file his Motion to

Alter or Amend Opinion. Upon considera- thereof,

tion it is ORDERED, court, by

FURTHER granted, Opinion

that the motion is and the by Judge

filed Circuit Silberman on March

20, 1992, is amended as follows: standard, objective 6. Measured prison Santobello’s have received ... a term of 11 months particular sentencing year”, Maj.Op. reference to the rather than a miscon- judge. my position. Deciding ceives whether government’s breach created a serious likeli- majority’s 7. The hypothetical statement that this test would hood of an effect on a completely independent require resentencing penalty imposed. where "a defendant would Notes justice” stan- mittee miscarriage of "complete 10. Congress autho- proceedings, and gloss 2255. judicial §on 2255 originally § a for was dard 424, 428, States, 82 effect without U.S. to take 368 the amendment Hill United rized 468, 471, (1962). rule When 417 change. 7 L.Ed.2d S.Ct. Advisory Com- 32(d) in was amended tion of the judge always district (from carries received an hypothetical untainted immense indirect judicial costs to the sys- judge) prison term of 11 months rather tem.) appellant, Even the sought who be- year, years than a rather than or 40 fore the district court and his opening years rather than life. In words, other brief to this complete rescission of Judge once Williams would conclude that plea agreement, seems per- not to have the line crossed, breach no matter how ceived the dissent’s Certainly distinction. subtly, he would find the “fundamental there is no support the case law for such defect” and “miscarriage justice” stan proposition. dard met by even a minor increase in the Society’s interest in bringing ap criminal sentence over one that would have been peals to an end is the reason for high given by the hypothetical judge. untainted standard ‍​‌​​‌‌‌‌​​​​​​‌‌‌‌‌​​​​​‌‌‌​‌‌​​​​‌‌‌‌‌‌​‌‌‌​​​​‍for relief in a proceed collateral This analytical framework jus would either See, ing. Timmreck, e.g., 441 U.S. tify 2255 relief for minor § breaches of the 99 S.Ct. at This finality interest in plea agreement or it would appellate invite good deal broader than merely avoiding judges weigh de novo the severity of the the direct costs of supplemental proceed imposed (or both).11 For those — ings. See, e.g., Coleman v. Thompson, reasons, all the courts that have considered U.S. -, 2563, 115 S.Ct. L.Ed.2d alleged breaches agreements (1991) (quoting Sanders v. United —in States, thought context—have 1, 24-25, § statu 1081-82, tory (1963) standard (Harlan, L.Ed.2d 148 J., only by could be met a show dissenting)). Judge ing Williams’ bi-level stan clear significant breach of a provi dard would disserve interest mak sion in agreement. We are aware of no ing considerably more attractive for de case—neither appellant nor the dissent of to pursue fendants collateral attacks on fers relief granted in a —where sentences, their and perhaps would create proceeding based on allegation § temptation appellate for judges to second arguments amount guess judges’ trial sentencing determina ed implicit to an breach partially (especially tions cases). non-Guidelines ambiguous plea agreement. survey A think, then, We appellant must meet nearly appellate one hundred decisions the statutory relief, standard and there 2255 cases over the twenty years last is simply way no reveals granting four decisions relief is, harsh as it thought can be to stem from petitioner to a based on a claimed a fundamental defect that caused a miscar

Notes

notes ory Committee trial, government will in a new 32(d) been: endorsed the Fed.R.Crim.P. ment to staleness of its evidence miscarriage hobbled standard justice” be “complete reject acquittal 2255, Congress’s will failure the risk of erroneous for § 2255. view of affirms that remedy is mark- amendment not higher. be Where argument is 1028 n. 10. The Maj.Op. at have than it would edly more burdensome withdrawals, persuasive as quite in- (resentencing only), the appeal on 32(d) Rule subject of the sole which are defect” implicit in “fundamental crement discussion, (therefore) the Committee’s correspondingly modest. should be evi- little sequence surely affords exact hardly surprising that It either the Congress addressed dence that defect” “fundamental stringency of the requests for resen- standard vary with the should context. standard “funda- of the the character tencing, or right may turn on the scope of a applied to such standard as mental defect” remedy sought. Much then, character resen- Here, remand for as a relief. equitable remedies revolves relief plea, law of preserve tencing would government’s mis- if point given that courts treat around the should be gap between plain- conduct allocution—the conduct as actionable when the same promised actual and its so conduct—was Note: Amendments included [Editor’s great as to create a serious likelihood that publication bound volume opinion.] judge6 given would a harsher sen- gap easily tence.7 The here seems broad enough to create that risk. Pollard’s sentence should be vacated and resentencing. the case remanded for This occur judge, should before a new as Santo- indicates, though bello even “the fault here COMPANY, MATSON NAVIGATION prosecutor, on the rests on the sentenc- INC., Petitioner, ing judge.” 404 U.S. at 92 S.Ct. at Moscahlaidis, 499. See also 868 F.2d at FEDERAL MARITIME COMMISSION (same); Corsentino, 1363 n. 7 685 F.2d at America, and United States of Respondents,

[*]

[*] #

[*]

[*]

[*] Though I do not wish to be too critical of Hawaii, Department State of of Com- government, though analogy Affairs, merce and Consumer Division points, on inexact some the case does re- Advocacy, of Consumer Mr. Tobias E. against mind me of Macbeth’s curse Seaman, Intervenors. promises sophis- whose witches their —and No. 91-1176. interpretations tical of them—led him to doom: United States Appeals, Court of juggling And these fiends no more District of Columbia Circuit. believ’d,

Case Details

Case Name: United States v. Jonathan Jay Pollard

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 28, 1992

Citation: 959 F.2d 1011

Docket Number: 90-3276

Court Abbreviation: D.C. Cir.