United States of America, Appellee, v. Leroy Jackson, Appellant, 563 F.2d 1145 (4th Cir. 1977)

The issue on this appeal as framed by both counsel for the defendant and the Government is whether the trial court's refusal to consider a plea agreement which includes a sentence recommendation by the attorney for the Government constitutes an abuse of discretion which would permit the defendant to withdraw his plea of guilty. While we doubt that on the facts of this case the issue is of such dimensions, we will dispose of the appeal on that basis.

The defendant, Leroy Jackson, was indicted by a federal grand jury for operating a lottery or numbers game in violation of 18 U.S.C. § 1955. Thereafter, counsel for the defendant and an assistant U. S. Attorney entered into negotiations resulting in a plea bargain which was confirmed by a letter dated October 20, 1976, from the U. S. Attorney's office to defense counsel. Under the bargain, Jackson was to enter a plea of guilty to the charge in the indictment and the Government was to recommend a sentence of one year with the designation that it be served at a state penal institution which, of course, would have the effect of making the federal sentence run concurrently with that imposed by a state court.¹ 

The case had been set on the docket of the Newport News division which is ordinarily presided over by one of the three judges who have their official station in that area. In the letter of October 20th, the assistant U. S. Attorney advised defense counsel that he did not know which of the three judges would be in Newport News on the date set for arraignment, and alerted him to the fact that Judge Clarke, one of the three judges, had indicated on other occasions that he did not care to have recommendations for sentences from the U. S. Attorney's office.

On October 22, 1976, Judge Clarke was presiding in Newport News when Jackson's case was called for arraignment. The court inquired about the plea bargain and the assistant U. S. Attorney advised that it was set forth in the letter directed to defense counsel. The district judge stated that it was his practice not to accept a specific recommendation and in the ensuing colloquy between the court and counsel it was quite clear that the judge would give no consideration to the recommendation in the plea agreement. The court then suggested that counsel for the defendant discuss these developments with Jackson, and a recess was called for that purpose. Thereafter, Jackson and his counsel returned to court, and after Judge Clarke had meticulously complied with the requirements of Rule 11, Jackson entered his plea of guilty. Disposition of the case was continued for one month for preparation of a presentence report, and on November 22, 1976, Jackson was sentenced to a term of three years with the provision that it should run consecutively to the state sentence he was serving.

Upon this appeal, Jackson does not contend that the Government failed to live up to the plea bargain which it had made with his counsel, cf. Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971); nor does Jackson contend that there were any covert assurances or other arrangements which misled him or influenced him to enter his guilty plea, cf. Allison v. Blackledge, 533 F.2d 894 (4 Cir. 1976), aff'd sub nom Blackledge v. Allison, 431 U.S. 63, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977). On the contrary, counsel concedes that Jackson's plea was entered after he had been fully advised that the district judge had rejected the plea bargain in its entirety and declined to accept any recommendation with respect to a proposed sentence. In the light of these concessions it is clear that Jackson's plea was entered voluntarily and intelligently and with a full understanding of the consequences thereof. Under these circumstances we find Jackson's challenge of his guilty plea solely on the ground that the district court arbitrarily declined to consider any plea bargain to be without merit.² 

Plea bargaining which had long lurked in the shadows of criminal jurisprudence was finally brought into the open and recognized in Santobello v. New York, supra, where the Court stated:

"The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called 'plea bargaining,' is an essential component of the administration of justice. Properly administered it is to be encouraged. * * *

Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons." 404 U.S. at 260, 261, 92 S. Ct. at 498.

Santobello made clear, however, that any plea bargain and all of its details should be disclosed to the court and placed on the record. "The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known." 404 U.S. at 261, 262, 92 S. Ct. at 498. It was largely responsive to these observations of the Court that Rule 11 of the Federal Rules of Criminal Procedure, was amended in 1975 by expanding the scope of the court's inquiry in subdivision (d) and the addition of subdivision (e).³ 

Subdivision (e) of Rule 11 spells out the guidelines to be observed by the court and counsel in plea agreement procedures, but the Rule leaves to the court the option of whether it will accept or reject the plea agreement.⁴  While the Rule is silent with respect to the authority of the court to decline to countenance any plea bargaining whatever, such a prerogative was recognized by the Congress in its consideration of the Federal Rules of Criminal Procedure Act of 1975, P.L. 94-64, 89 Stat. 370. The proposed subdivision (e) had been criticized by some federal judges who read it to mean that consideration of plea agreements was mandatory. However, in their testimony before the Congressional committee, the members of the Advisory Committee on Criminal Rules stressed that the Rule does not require that a court permit any form of plea agreement to be presented to it. On this point the report of the House Judiciary Committee stated:

"Rule 11(e) as proposed permits each federal court to decide for itself the extent to which it will permit plea negotiations to be carried on within its own jurisdiction. No court is compelled to permit any plea negotiations at all. Proposed Rule 11(e) regulates plea negotiations and agreements if, and to the extent that, the court permits such negotiations and agreements."

(Emphasis Supplied). H.Rep. No. 94-247, 1975 U.S.Code Cong. & Admin.News p. 678.

In our opinion each individual judge is free to decide whether, and to what degree, he will entertain plea bargains, and his refusal to consider any plea bargaining whatsoever will not vitiate a guilty plea which has otherwise been knowingly and voluntarily entered.

It should be noted, however, that Rule 32(a) (1), after providing a right of allocution to a defendant and his attorney, states: "The attorney for the Government shall have an equivalent opportunity to speak to the court." In the instant case the record shows that after the defendant had entered his plea, and after the probation officer had made his presentence report, the attorney for the defendant made an appropriate statement and the defendant was given an opportunity to speak. It does not appear that the attorney for the Government was offered such an opportunity. If such a request had been made and refused, it might be necessary to strike the sentence and remand the case for the imposition of sentence after the attorney for the Government had been afforded an opportunity to speak to the court. However, it does not appear that either the attorney for the Government or the attorney for the defendant requested that the attorney for the Government be asked if he had anything to say. Under these circumstances, the judgment, including the sentence, must be affirmed.

We can appreciate the dilemma of the U. S. Attorney and defense counsel in conducting plea negotiations where there is a marked divergence among the several judges in one division with respect to plea bargains. It would, of course, be highly desirable for all of the judges in a multi-judge division to adopt a uniform policy with respect to plea bargaining, but this is a matter that lies solely within the discretion and good judgment of the district judges.

The judgment of conviction is affirmed.

AFFIRMED.