*1 is Prudential-Bache’s matter final requests sanctions. for cross-appeal Rule 11 of the Federal under
sanctions against plaintiffs Procedure of Civil
Rules Because the appeal. filing a frivolous
for appeal plaintiffs on
grounds asserted appropri- colorable, are not sanctions
were
ate, request is denied. is AFFIRMED. order
The district court’s America, STATES
UNITED Plaintiff-Appellee, STEMM, George
Paul
Defendant-Appellant.
No. 87-1426. Appeals, Court of
Tenth Circuit.
May 1988.
Rehearing Denied June Stone, Dickson, Haight,
Arnold M. Bonesteel, Ana, Cal., Brown & Santa for defendant-appellant. Hathaway, Atty.,
Richard L. Asst. U.S. Jr., Topeka, (Benjamin Burgess, Kan. L. Kan., Atty., Topeka, on the was also brief), plaintiff-appellee. HOLLOWAY, Judge, Before Chief SEYMOUR, Judge, Circuit * DUMBAULD, Judge District * Dumbauld, Judge The Honorable Western District of Edward United States District for the
637
32(c)(1)
engendered bias,
HOLLOWAY,
Judge.
Rule
and which
Chief
constituting
process.
denial of due
a
(Stemm) filed this
George Stemm
Paul
Government contends that neither the U.S.
judgment of
appeal from a
direct
Attorney’s office nor the court committed
upon his
and sentence entered
conviction
vacating
judg-
errors which warrant
by
guilty.
was sentenced
plea of
Stemm
granting
requested.
ment and
the relief
imprison-
court in Kansas to
the district
We affirm.
$10,000.00
fined
years and
ment for two
to
eleven codefendants
conspiring with
I
with a
fraud in connection
commit mail
business venture.
We first consider Stemm’s claim that the
Stemm
court sentenced
The district
Attorney’s
United States
office breached
18, 1987,
defend-
along with other
March
plea agreement
through
partic-
the court’s un-
ants. Stemm contends
ipation
preparation
prosecu-
in the
denial of a motion
derlying error is the
culpability ranking
tion’s version and the
10,
sentencing, on March
prior
filed
to
the PSI/R.
process and
a denial of due
claimed
which
Where the Government
obtains
plea agreement
because
violation
guilty plea
predicated
any sig
is
which
having
a de-
submitted
degree
promise
nificant
on a
or
of the facts with
tailed version
Attorney,
promise
with the U.S.
such
or
ratings
included
agreement must
fulfilled to
be
maintain the
strong statements
for all defendants and
integrity
plea.
e.g.
See
Santobello
conduct. Stemm also claims
about their
257, 262,
York,
v. New
404 U.S.
92 S.Ct.
pre-
there was an inaccurate and unreliable
495, 498,
(1971);
Pennsylvania, sitting by designation. recom- to: scheme and his role in it in
ly,
several
imprisonment,
term of
respects.
mend that Stemm’s
Then
numerical order the
of im-
exceed
term
any,
if
would not
Government ranked the defendants as to
Lar-
imposed upon codefendant
prisonment
culpability.
vigorously objects
other
Huff,
“make no other
any;
ry
the assessment of his role. An outline was
oth-
whatsoever as
recommendation
given
product
scheme
*3
imposed by
sentence to be
aspect
er
origin
involved and the
of
init
South Afri-
Court,”
term of
including
specific
the
what
ca, and a
history
detailed
of
of
activities
imposed,
the
be
imprisonment should
the
including
various defendants
those of
fine,
amount of
amount of
defendant Stemm. An outline was also
request by
restitution;
object to a
containing
included of
rep-
brochures
false
oppose appli-
probation; and
Stemm for
promises
resentations and false
which were
voluntary
assign-
surrender
cations for
specified. The statement also included in-
¶¶ 3,
facility.
any particular
Id. at
ment to
formation
very large
the
pro-
crime,
of
ceeds
the
which the Government
determining
whether
there was a
attempted
trace,
had
authority
breach
over
funds.
agreement and of the defendant’s reason-
following
Then
the Government’s version
understanding
able
when he entered his
offense,
there were sections of the
Greenwood,
plea,
report
for which the
office was
carefully
must consider
F.2d at
we
apparently responsible. These dealt with
by the
information furnished
pretrial services,
plea agreement,
a vic-
presentence
and included
impact statement,
tim
and other matters.
have,
seal,
under
the full
further included a statement of
report whose content and substance we
the defendant’s version of the defendants’
opinion,
must not discuss in this
but which
activities, a
single
statement of almost five
panel
thoroughly
has
considered.
spaced typed pages. Lastly,
presen-
suffice, and not violate
will
the confiden-
customary
contained
sections
information,
feel,
tiality
for us to
concerning any prior record, personal and
outline the nature
the information fur-
data,
family
service, health,
military
finan-
nished
the Government.
assets,
cial condition and
concluding
appears
That information
in a detailed
with an
evaluation
officer.
clearly
statement
identified
in-
In determining whether the U.S. Attor-
Attorney’s
formation that the U.S.
office
ney’s
complied
with the terms of the
provided
government
as the
version of the
we must consider the con-
offense. The
appears
ap-
prosecutor
duct of the
in the sentence hear-
proximately thirteen
one-quarter
sin-
ing
written,
and also
presentenc-
the earlier
gle-spaced typewritten pages, commencing
ing statement, discussed above.1 The
summary
with a
of the scheme from its
record shows that at
hear-
inception
years
several
back and ranking
ing the
Assistant U.S.
recom-
respect
culpabili-
defendants with
ty.
mended that
principal
This
is a
Stemm’s sentence
complaint
not exceed
Huff,
76, 77;
defendant Stemm. In
that of
making
codefendant
R.
the rank-
VII
defendants,
response
inquiry
court’s
whether the
says that it considered criteria such as the Government
punishment
wished to address
defendant’s
replied
contribution
the success of
86;
negative,
id. at
and he
parties
disagreed
1. The
Benchimol,
as to whether the
on. United States v.
plea agreement
reasonable
453, 456,
construction of the
2103, 2105,
VII Brief, Appendix: The Appellee’s stated the recommen- also See tence, prosecutor Investigation Report, agreement, im- Publica- Presentence provided dation Division, exceed any, of Stemm not Administrative if tion Probation prisonment, Huff. any, codefendant of the United imposed, Office prosecutor’s (Probation may 77.3 obtain version of offense and defendant’s not a breach that there was conclude We labeled). be so should all of the agreement by or of the complained conduct Government’s judge rejected Lastly, note that the we problems do observe such Stemm. challenged information consideration misunderstandings could be possible sentencing, relied on stated that specific reference by a better avoided version offense the defendant’s to the fact agreements by report, facts asserted Govern prosecu- submitting bewill open court when the defendant and, in offense such tion version aspects changed plea, and those both cases, culpability multiple defendants’ the Government’s version offense go to the court rankings in remaining portions presen- sum, hold reports. challenged by the report not defend that here Stemm’s 1 R. Doc. 782 at 18. ant. VII R. not broken. challenge of light statements the of these is untenable. United defendant Stemm *5 II (10th Green, 483 F.2d v. States argues further denied, Defendant Stemm Cir.), cert. report patently presentence (1973). that the was 38 L.Ed.2d unreliable, preparation violated his process due Defendant’s and Fed.R.Crim.P., there was and that 32(c)(1), unpersua- of error are remaining claims presentencing procedure in the such bias sive. rights process were vio due that Stemm’s lated. Ill agree. provide The rule do not does service” shall make a “probation that the Accordingly judgment the and sentence investigation to the Due to the are AFFIRMED. incarceration provision obviously does not This court. defendant-appellant and time served of go must mean that the sentence, petition rehearing the step repeat investigative each back and filing days after shall be filed within the the and the defendants Government opinion. this by Inclusion of the have taken. statements Government SEYMOUR, dissenting. Judge, Circuit facts and investi- their versions of the their agree information, clearly majority’s here I with much of
gative identified opinion. In thoughtful considered report, not barred and well as to source in the however, my judgment, majority under- not Otherwise rule and could be. effect such a estimates the cumulative critical in to- actions. When large-scale as was involved Government’s viewed scheme in- tality, I that the Government’s available and the result believe not be made could rankings in the “deprive sentenc- clusion of the undoubtedly be pre-sentence kind of information constituted a breach judges of this I penologi- plea agreement. must therefore would undermine modern [which] procedural policies.” spectfully cal New dissent. Williams v. agreement agreement places in two a sim- Huffs stated that stated Defendant may Imprison- "he cap. be sentenced to a term ilar years." to exceed two Defendant majority message that the United became aware of the agree
I indirectly ment had plays impor conveyed Attorney’s Office court. States preparation complete in the tant role parties Where the radically differ- agree pre-sentence reports. also accurate ent views about the role the Government general neither the inclusion play particular will under a report of a Government’s version of the plea agreement, this court has stated that necessarily nor a “we look to what the reasonably defendant as to sen constitutes recommendation understood when he entered guilty differ, however, agreements tence. Plea plea.” importance as do the extent and pre-sentence Government’s contributions agreement in this case went much further reports. important interests served simply stating than that the Government pro prosecution’s participation would make no sentence recommendation. cess, duty even the Government’s specifically prohibited office, provide information to the making any from recommendation as to simply justify upholding any aspect cannot a sentence of sentence whatsoever. It also reasonably interpreted particular listed a factors, the defendant number of pref- agreement qualifier aced “including”, to forbid the Government that the promised not to contributing pre-sentence from re address. The phrasing agreement suggests port particular fashion. See United ways Government was limited in Cook, (7th Cir. specifically set out 1982). agreed Government also oppose pro- not to out, majority correctly points As the bation. A entering defendant such an analyzed must be “[e]ach reasonably could believe that parties what themselves thereby promising Government was on.... The court cannot condone the to take stand on incarceration. accomplishing through indi- particular, under this a defend- rect means what it not to do ant could reasonably believe *6 directly where the facts so demonstrate.” agreed convey had not to its view, Maj. op. my at 638 n. 1. In this is a impression to the directly court or indirect- case accomplished where ly that punish- defendant deserved harsher indirectly through its contribution to the ment than other defendants. To conclude pre-sentence report precisely what it reasoning otherwise would contradict our agreed do, i.e., convey message not to “plea agreement in Greenwood that a is to the court that Stemm should be sent to appropriate not an context for the Govern- prison. rigidly approach ment to resort to a literal language.” in the construction of Id. To arguments The record presented me, prosecution’s statement that to us make clear that the Government highly culpable Stemm was is tantamount knew the time of the punish- to a statement that he deserves role it play preparing pre-sen- opposed probation. ment as Stemm, however, was un- aware that the Government intended to majority say does not directly rank the defendants culpability. as to their interpretation Several factors indicate that Stemm’s mis- indirectly, was unreasonable. It does so understanding did in fact exist and was not however, by relying on United v. (1) unreasonable: pre- different districts (2d Cir.1977) Michaelson, pare pre-sentence reports in different (finding argument “frivolous” defendant’s ways; Stemm submitted an affidavit participation pre- that Government asserting that even a former U.S. plea agreement). breached in Kansas did not know about case, however, the Govern- distinguish- The instant practice ranking defendants; ment’s Michaelson, able. the Government (3) Stemm immediately objected when he to make no sentence recommenda- objected to the
tíon, the defendant probation of- furnishing HEALTH PUEBLO NEIGHBORHOOD Government’s Government had CENTERS, INC., al., information fice “with et and Oliver P. played in defendant Pacheco, al., Plaintiffs-Appellees, part each et as to the has Stemm admit- scheme.” merely had ted that LOSAVIO, Jr., al., Joseph E. et sentence recommen- no make promised to Defendants-Appellants. given its simply had dation and 86-1171, Nos. 86-1172. office, he no would have breach. Govern- meritorious Appeals, United States Court however, considerably more here. ment, did Tenth Circuit. above, plea agree- this IAs discussed May fairly characterized as a stan- ment is agreement. recommendation” “no dard however, the Govern- importantly,
More a detailed statement of the prepared
ment appear in the it knew would report, preceded the.
pre-sentence and it ranking order
statement culpabili- of their
of the Government’s view
ty in described scheme. top at the of this list. placed itself, that the Govern-
By I do not believe version of the
ment’s submission breach
crime constituted however, my opinion, direct Government’s
combination highly incriminating of a state-
contribution the facts and the
ment of culpable the most defendant con-
Stemm as indirect recommendation that
stituted an prison sentenced to a term and
Stemm be his sentence be more severe than the certainly It most
other defendants. a recommendation
tantamount appropriate
Stemm was not candidate *7 probation. vacate the sentence and remand permit instructions to Stemm with- or to be
draw resentenced an- judge upon pre-sentence
other based
port prepared conformity with the