USCA1 Opinion

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 93-1083
UNITED STATES OF AMERICA,
Appellant,
v.
DAVID WALSH,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, U.S. District Judge]
___________________
____________________
No. 93-1328
IN RE UNITED STATES OF AMERICA,
Petitioner.
____________________
ON PETITION FOR A WRIT OF MANDAMUS
____________________
Before
Stahl, Circuit Judge,

_____________
Aldrich and Campbell, Senior Circuit Judges.
_____________________
____________________

Ira Belkin, Assistant United States Attorney, with whom Marga

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_____
E. Curran, Assistant United States Attorney, and Lincoln C. Almo
__________
_______________
United States Attorney, were on brief for appellant.
Susan M. Carlin with whom Stephen R. Famiglietti and Famiglie
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_______________________
________
& Carlin, Ltd. were on brief for appellee.
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____________________
October 27, 1993
____________________

ALDRICH, Senior Circuit Judge.

____________________
in the words of the
impression
correct

as

under
to

district court, an issue of

the guidelines."

uniqueness,

but

description to the guidelines.

of a negotiated

This case presents,

plea at

We
we

"very first

believe the

would

not

court

limit this

Having initiated the vacation

the time of

sentencing, the

court

nevertheless left defendant with

the benefit of his bargain,

viz.,

charges,

free

government

from

all

had granted

related

as consideration

an

immunity

the

for the plea.

We

concur

in

the

government's

unhappiness at

this

one

way

street.
Defendant,
allegedly
company

an

endorsed

a sizeable

to receive

customer's

its

mortgage.

possibility of

officer

of
check

mortgage

so as

to

of

The

investigated

government

mail fraud and

In due course

paying off

other felonies, but,

a plea agreement

was worked out and

executed.

to

charging aiding

an information

being

filed to which he

enable the

proceeds instead

seeking an indictment, discussed the matter with

counsel.

company,

would

recommend

defendant's

in customary form

Basically, defendant consented

and abetting

would plead guilty,

institute any additional

disclosed criminal conduct

the

before

bank fraud

and waived any

right to withdraw his plea, once entered; the government,

return,

low

sentence,

and

would

in
not

charges for defendant's "previously

at Medcon Mortgage Corp."

In due

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course, after a
pages of

comprehensive examination

transcript that

of defendant

presented no problems),

(16

the court

accepted
time

the plea.

came, the

court announced

sentence report,
the facts he
The

and that

the

plea.

that

adamant.

bad faith

agreement, or any defect

the pre-

it would vacate the

saying

court was

was no

had read

When the

on defendant's interpretation

government protested,

there

that it

was not guilty, and

differed, but the

that

Sentencing was twice deferred.

in

its
It

is common

connection with

however,

accepted

suggestion and moved to vacate his plea.

plea.

interpretation

or deficiency in the

Defendant,

of

ground
the plea

acceptance of
the

court's

The court did so.

Whether this was unique -- we will not question the

court's right to vacate
were

entirely so.

vacation of the

a plea -- the procedure

Upon the government's stating that on the

plea it would not

be prepared for

the information, and that it wanted to

and consider
the

presenting the other

court responded

defendant.

It

and outcome

that

concluded

by

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go back to square one

matters to a

this would

trial on

not

ordering

grand jury,

be fair
the

to

the

information

dismissed with

prejudice.1

The government

appeals, and, as

a precaution, also seeks mandamus.

The
understood

court

opened

the government

position where you end,

in

terms

of

defendant."

it,

not

want

making

more

off,

so should

the court, had done,

spite of

saying

that

it

to stay

"in

the

charges

The government replied that

be the

evidently troubled,2 responded

charges "in
him."

did

hearing

but advancing that position somewhat

possibly

undertaking was
court,

the

against

the

if the defendant's
government's.

that because

the defendant may

the government's prior

The

of what

be facing other
agreement with

To the government's statement,

All we're asking is that the Court allow
the government to go back to the position
it was in before it filed the information
in reliance upon the agreement.

the court said,

The government made a bargain.
The
defendant made a bargain.
They're going
to carry it out.
On analysis "they" meant the government.
____________________
1. We note in passing that the government at one point said
it would move to dismiss with prejudice, but on timely
recognizing that
this would
be a procedural
-- and
substantive -- mistake, did not do so, but sought dismissal

without prejudice. The proceedings were ultimately conducted

on this later basis. Defendant's brief wastes time arguing
the initial non-event.
2. "I must say the defendant certainly must be wondering how
this could happen when he's done nothing to precipitate it.
It's what I've
done that put the defendant
in this
predicament."
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The court's
was the

court's fault

defendant should not

do not agree.
court's

reasoning appears to be
that defendant was

in a

predicament

suffer; hence the government

In the first place, it was

fault.

that since it

Although

the

must.

We

not, strictly, the

court

prompted

(to

use

defendant's term) him, it was defendant who moved to withdraw

his

plea,

attempt to
a
the

in

violation of

do otherwise.

plea even when the

plea would

be

no reason

agreement.3

He could have.

to his

why the

advantage.

He made

no

A court may accept

defendant denies his

Alford, 400 U.S. 25 (1970).

______
was

his

guilt but thinks

North Carolina
_______________

v.

But quite apart from this, there

government, whose

actions had

been

above-board in every respect, should suffer.

The government

is

rightly apprehensive

that

the

court

has established

process.

Make

flaw in

a routine, fair,

parties give up rights;

the whole

plea agreement

agreement under which

both

have it approved by the court

and a

plea entered after an extensive hearing and, suddenly, at the

sentencing

hearing,

defendant's
retains

guilt and

the

court

volunteers

releases defendant's

the government's.

Even

as to the

doubts

as

to

obligation, but
single charge in

the information the government is subject to the Speedy Trial

____________________
3. "6. Defendant DAVID WALSH waives any right that he may
have to withdraw his plea to the Information once entered."
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restrictions that would not have commenced

had it not, based

on defendant's agreement, filed the information.

A
defendant

plea

violates it

United States v.
______________
Cir.),

agreement
the

is

contract,

government is

Gonzalez-Sanchez, 825
________________

cert. denied sub nom., Latorre

and

no longer
F.2d 572,

if

the

bound.
578 (1st

v. United States, 484

_____________________
U.S. 989 (1987).

_______

Nor should a court

on behalf of the defendant and yet

obligation.

We can

_____________
choose to terminate it

preserve the government's

scarcely accept defendant's

the government, in asking

claim that

for its release, was guilty

of an

"unjustified procedural maneuver" amounting to "prosecutorial

harassment."
The
difficulty.

court
If

placed

it

the

government

accepted the

in

further

court's alternative

from

dismissal with prejudice by proceeding to try the information

and lost, there could
as

to

the

other

Blockburger,
___________

have been a danger of

related

offenses.

284 U.S. 299, 304

double jeopardy

United States
______________

(1932).

On

v.

the other hand,

while there appears to be no law on the point, dismissal with

prejudice
judicata.
________

might raise

questions of

double jeopardy

or res
___

See United States v. Schaffner, 771 F.2d 149, 152

___ _____________
_________

(6th Cir. 1985).

government might

Defendant
have tested

now

contends

that

the court's statement

the

that it

was bound not to do so, by instituting grand jury proceedings

and

obtaining an indictment.

This would have involved many

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resources,

and,

at

minimum,

pronouncement, serious
The suggestion

criticism

in

view

and a

of

the

risk of

scarcely fits defendant's

court's

sanctions.

lament below

that

not to dismiss with prejudice "unfairly prolongs the life

of

the cloud under which defendant and his family have existed."
Manifestly defendant's present

contention would have greatly

prolonged that cloud.

We have

left jurisdiction to the

last because it,

in turn, may depend upon the answers to the questions we have

already

presented.

The

government

dismissals under 18 U.S.C.

intertwined"

with a

can

appeal

criminal

3731 when they are "inextricably

prior order.

E.g.,
____

Tane, 329 F.2d 848, 851-52 (2d Cir. 1964).

____

United States
_____________

v.

Defendant insists

there is not such a relationship between the court's vacating

the

plea agreement

would
has

and

question that.

the dismissal

with prejudice.

We

In any event we believe the government

a right to object.

United States
_____________

v. Giannattasio, 979
____________

F.2d 98 (7th Cir. 1992).

It is ordered that the dismissal of the information
is

affirmed, but

further ordered

changed to

without

prejudice, and

that the government's obligations

plea agreement stand vacated.

it is

under the

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