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959 F.2d 1011, 295
U.S.App.D.C. 7 United States Court of
Appeals, District of Columbia Circuit. UNITED STATES of
America v. Jonathan Jay
POLLARD, Appellant. No. 90-3276. Argued Sept. 10, 1991 Decided March 20,
1992. Order Amending Opinion
May 28, 1992. PRIOR HISTORY: U.S. v. Pollard, 747 F.Supp. 797 (D.D.C. Sep. 11, 1990) (No. CR. 86-0207-AER) SUBSEQUENT HISTORY: Certiorari denied: Pollard v. U.S., 506 U.S. 915 Oct. 13, 1992) (No. 92-17) [*1015] [**11] Appeal from the United States District Court for the
District of Columbia (86cr00207-01). COUNSEL: Theodore B. Olson, with whom John H. Sturc,
Theodore J. Boutrous, Jr., and Hamilton P. Fox, III, Washington, D.C., were on
the brief, for appellant. John R. Fisher, Asst. U.S. Atty., with whom Jay B. Stephens, U.S.
Atty., and Elizabeth H. Danello, Asst. U.S. Atty., Washington, D.C., were on
the brief, for appellee. Kenneth Lasson, Baltimore, Md., was on the brief for amici curiae,
Law Professors, et al., urging reversal. JUDGES: Before: RUTH BADER GINSBURG, SILBERMAN and
WILLIAMS, Circuit Judges. OPINION BY: Opinion for the Court filed by Circuit Judge
SILBERMAN. DISSENT BY: Dissenting opinion filed by Circuit Judge
WILLIAMS. SILBERMAN, Circuit Judge: Pursuant to an agreement with the government, Jonathan Pollard
pleaded guilty on June 4, 1986 to one count of conspiracy to deliver national
defense information to a foreign government. See 18 U.S.C.
§ 794(c). Chief Judge Aubrey E. Robinson, Jr. of the district
court sentenced him to life imprisonment. Pollard did not appeal his
conviction. Pollard later made an unsuccessful motion under Fed.R.Crim.P. 35 to
have his sentence reduced and, again, did not appeal. Three years after sentencing, having served the intervening time
in prison, Pollard sought to attack his sentence collaterally by filing a
motion under 28 U.S.C. § 2255 [FN1] seeking the district
court’s approval to withdraw his guilty plea. Pollard claimed that the
government obtained his guilty plea improperly—even
unconstitutionally—by linking or “wiring” his
wife’s plea to his own. Anne Henderson Pollard had also been arrested
in connection with Pollard’s espionage, but the government refused to
enter into a plea agreement with her unless he pleaded guilty as well. Pollard
also asserted that the government breached the plea agreement by the nature of
its arguments (allocution) to the district court at sentencing and, furthermore,
that Chief Judge Robinson based Pollard’s sentence on ex parte
communications from the government. Appellant sought a hearing on this rather
dramatic charge and asked Chief Judge Robinson to recuse himself.
Pollard’s new attorneys in the § 2255 proceeding
also sought access to certain highly classified materials the government had
submitted at sentencing. FN1. 28 U.S.C. § 2255 provides
in pertinent part: A prisoner in custody under sentence of a
court established by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by law,
or is otherwise subject to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the sentence. The district judge declined to recuse, denied access to the
classified sentencing materials, and, without holding a hearing, refused to
permit Pollard to withdraw his guilty plea. See United States v. Pollard, 747 F.Supp. 797
(D.D.C.1990). This appeal followed, and we now affirm. I. For a period of approximately eighteen months, from June 1984
through November 1985, Jonathan Pollard, an Intelligence Research Specialist
with the United States Navy, removed large amounts of highly classified U.S.
intelligence information from his office, copied it, and delivered it to agents
of the Israeli government. Initially, Pollard was not paid, but during the last
twelve months of this period, he met regularly with his Israeli handlers in
order to [*1016] [**12] receive specific tasking information, and he received
between $1,500 and $2,500 per month for his efforts. Approximately one year after the regular deliveries began, agents
of the FBI and Naval Investigative Service (NIS) stopped Pollard as he was
leaving work and questioned him concerning the unauthorized removal of
classified information from his office. Twice during the interview, Pollard
received permission to call home to his wife, Anne Henderson Pollard. In those
conversations, he used the prearranged code word “cactus,”
whereupon Mrs. Pollard removed a suitcase full of classified U.S. intelligence
information from the Pollards’ apartment and contacted
Pollard’s Israeli handlers to tell them that Pollard was in trouble.
This was her only active involvement in Pollard’s espionage. During the next two days the FBI and NIS conducted further
interviews of Pollard. Pollard, in the course of these interviews, lied to his
interrogators, keeping secret his involvement with the Israelis. He stalled for
time, as his Israeli handlers had instructed him, and one of his handlers
during this period managed to leave the country. Jonathan Pollard was finally arrested on November 21, 1985, and
charged with violations of 18 U.S.C. §§ 794(a) and
793(e). Mrs. Pollard was arrested a day later as an accessory. The Pollards,
prior to their arrests, had sought asylum at the Israeli embassy, actually
gaining entrance to the embassy compound at one point, but the Israelis turned
them away. Nonetheless, during his initial post-arrest interviews, Pollard
continued to protect his Israeli handlers. Although he admitted that he had
lied in his earlier interviews and had in fact been delivering classified
information to a foreign government, he refused to identify the government or
the names of the foreign intelligence agents controlling him.
Pollard’s other Israeli handler departed the United States during this
time. Following their arrests, the Pollards were jailed without bail.
Mrs. Pollard had, for several years, suffered from a debilitating
gastrointestinal disorder that had not been accurately diagnosed prior to her
arrest. During her stay in the D.C. jail, she was seriously ill, losing forty
pounds over a period of three months. In February of 1986, Mrs. Pollard was
released on bail. Pollard had, in the meantime, begun plea discussions with the
government. He sought to plead guilty both to minimize his chances of receiving
a life sentence and to enable Anne Pollard to plead as well, which the
government was otherwise unwilling to let her do. The government, however, was
prepared to offer Pollard a plea agreement only after Pollard consented to
assist the government in its damage assessment and submitted to polygraph
examinations and interviews with FBI agents and Department of Justice
attorneys. Accordingly, over a period of several months, Pollard cooperated
with the government investigation, and in late May of 1986, the government
offered him a plea agreement, which he accepted. By the terms of that agreement, Pollard was bound to plead guilty
to one count of conspiracy to deliver national defense information to a foreign
government (18 U.S.C. § 794(c)), which carried a maximum
prison term of life, and to cooperate fully with the government’s
ongoing investigation. He promised not to disseminate any information
concerning his crimes without submitting to pre-clearance by the Director of
Naval Intelligence. His agreement further provided that failure by Anne Pollard
to adhere to the terms of her agreement entitled the government to void his agreement,
and her agreement contained a mirror-image provision. In return for Pollard’s plea, the government promised not
to charge him with additional crimes, entered into a plea agreement with Anne
Pollard, and made several specific representations that are very much at issue
in this case. The critical provisions are paragraphs 4(a) and 4(b) of the
agreement, in which the government “agree[d] as follows”: (a) When [Pollard] appears before the Court
for sentencing for the offense to which he has agreed to plead guilty, the
Government will bring to the Court’s attention [*1017] [**13] the nature,
extent and value of his cooperation and testimony. Because of the classified
nature of the information Mr. Pollard has provided to the Government, it is
understood that particular representations concerning his cooperation may have
to be made to the Court in camera. In general, however, the Government has
agreed to represent that the information Mr. Pollard has provided is of
considerable value to the Government’s damage assessment analysis, its
investigation of this criminal case, and the enforcement of the espionage laws. (b) Notwithstanding Mr. Pollard’s
cooperation, at the time of sentencing the Government will recommend that the Court
impose a sentence of a substantial period of incarceration and a monetary fine.
The Government retains full right of allocution at all times concerning the
facts and circumstances of the offenses committed by Mr. Pollard, and will be
free to correct any misstatements of fact at the time of sentencing, including
representations of the defendant and his counsel in regard to the nature and
extent of Mr. Pollard’s cooperation. Moreover, Mr. Pollard understands
that, while the Court may take his cooperation into account in determining
whether or not to impose a sentence of life imprisonment, this agreement cannot
and does not limit the court’s discretion to impose the maximum
sentence. The district court accepted Pollard’s plea at a hearing held
on June 4, 1986. Chief Judge Robinson addressed Pollard in open court and
questioned him about his understanding of the rights he was surrendering,
including the potential sentences he faced and the terms of the plea agreement.
After being assured by both Pollard and his attorney that there was no reason
to be chary of the plea, the district court accepted it. Sentencing took place nine months later. Both the government and
Pollard submitted extensive pre-sentencing memoranda to the district judge. In
general, the government argued that Pollard had done grievous damage to U.S.
national security interests in the pursuit of financial reward and that Pollard
was unremorseful and a continuing danger to national security. The government
mentioned that Pollard had violated his plea agreement while in prison awaiting
sentencing by giving several interviews to a journalist for the Jerusalem Post,
Wolf Blitzer, without first submitting his comments to the Director of Naval
Intelligence. This again, according to the government, demonstrated that
Pollard could not be trusted to refrain from disclosing the various national
secrets in his possession and that he still considered himself the best judge
of when to follow rules that had been imposed upon him. In addition to its
principal sentencing memoranda urging the district court to impose a
substantial sentence, the government also submitted a highly classified
declaration by Secretary of Defense Caspar Weinberger cataloguing the damage
Pollard had done and opining that the damage had been “substantial and
irrevocable.” The day before sentencing took place, Secretary
Weinberger submitted an unclassified supplemental declaration in response to
Pollard’s submissions that stated, in a rather polemical tone, the
Secretary’s contentions. In response to the government’s submissions, Pollard
argued that he had done little damage to national security because the
information he had misappropriated had been delivered to one of the United
States’ closest allies. He denied that he had been motivated by greed,
instead claiming that he had sought to aid Israel because he believed that his
aid to Israel would also benefit United States’ security interests. He
stressed the extent and value of his cooperation and the sincerity of his
contrition. And he emphasized the special hardships prison life would impose on
him and the psychological and emotional deterioration he had experienced during
confinement. After hearing oral allocution, the district judge sentenced
Pollard to life in prison [*1018] [**14] and Mrs. Pollard to five years. [FN2]
Pollard did not appeal but made a timely Rule 35 motion seeking to have his
sentence reduced on the ground that it was disproportionate to the sentences
received by other spies whose espionage was arguably more damaging to United
States’ interests. He repeated the arguments he had made at sentencing
and maintained in particular that the district court had failed to take proper
account of his cooperation. The district court denied the motion, and Pollard
did not appeal. FN2. It should be noted that this case arose,
and sentence was imposed, prior to the effective date of the United States
Sentencing Guidelines. Anne Pollard was released on parole after serving three years in
prison; she subsequently moved to Israel in August, 1990. Some months earlier,
a professor at Harvard Law School, Alan Dershowitz, whose role as
Pollard’s representative in this case is not entirely clear, had asked
retired Supreme Court Justice Arthur Goldberg to investigate the reasons for
Pollard’s life sentence. Mr. Goldberg, according to Professor
Dershowitz’s affidavit, discussed the matter with Chief Judge
Robinson. The Chief Judge purportedly told Mr. Goldberg that Pollard had
provided Israel with information demonstrating American knowledge of certain
details of Israeli-South African defense cooperation and that this had
“weighed heavily” in the sentence. Dershowitz claims that
Pollard never provided the Israelis that sort of information, so he asserts in
his affidavit that Mr. Goldberg inferred that the government may have made
improper ex parte submissions to Chief Judge Robinson. [FN3] FN3. Mr. Goldberg was unable to prepare his
own affidavit or to testify to the matters Professor Dershowitz described,
because he died on January 18, 1990, a few days after he received a letter from
Dershowitz in which Dershowitz informed him of the results of the inquiries
Dershowitz had made. The present litigation began in March 1990, when Pollard filed the
motion under 28 U.S.C. § 2255 to withdraw his guilty plea.
Pollard sought a hearing on the allegations contained in the Dershowitz
affidavit, as well as on Pollard’s claims that the government coerced
his plea and breached the subsequent plea agreement. He moved to disqualify
Chief Judge Robinson pursuant to 28 U.S.C. § 455 on the
grounds that Chief Judge Robinson’s impartiality might reasonably be
questioned and that the judge possessed personal knowledge of disputed
evidentiary facts and might therefore be a material witness at the hearing.
Pollard’s new counsel also sought access to the highly classified
materials originally submitted by the government at sentencing, including the
Weinberger declaration, in order to aid in the preparation of the
§ 2255 motion. The district court rejected all of Pollard’s claims
without a hearing, finding that his contentions could be resolved adequately on
the files and records of the case and on the court’s judicial
knowledge and recollection. See Pollard, 747 F.Supp. at 801. It found that the
government had complied in all relevant respects with the terms of the plea
agreement and that Pollard’s plea had been knowing and voluntary. See
id.
at 802-06. It denied Pollard’s counsel access to the classified
sentencing materials for the same reasons that other courts have sometimes
refused to permit access to presentence reports: the district court found that
the merits of Pollard’s substantive claims “simply do not
withstand scrutiny” and that Pollard’s new counsel could, in
any event, learn the information from Pollard and his former counsel. Id. at 807. The district
judge refused to recuse himself, stating flatly that the allegations of ex
parte contacts were untrue and that the district court’s personal
knowledge of the disputed evidentiary facts was gained in a judicial capacity
and so provided no basis for disqualification. See id. at 799-801. II. We are met at the outset with the government’s argument
that some of Pollard’s claims, particularly that the government
violated the plea agreement by the nature of its arguments to Chief Judge
Robinson, are not properly before us in a § 2255 proceeding
because they were not [*1019] [**15] raised at sentencing, or in the subsequent Rule 35
motion, and because Pollard did not take a direct appeal. The
government’s contention is, in essence, that those claims were waived.
We think, however, that Pollard’s argument that he was
unconstitutionally coerced into a plea agreement because his wife’s
plea was wired with his is properly brought in the first instance in a
§ 2255 motion since, accepting Pollard’s allegations
as true, he would have been deterred from raising that argument until his wife
was out of harm’s way. If he had been induced to plead guilty because
of the government’s posture vis-a-vis his wife, he could not be
expected to openly challenge that very arrangement as unlawful while his wife
was still vulnerable. If he had prevailed—and the plea agreement was
nullified—he would be back in the same position he was in when he was
“forced” to enter into the plea in the first place.
Similarly, the claim that Chief Judge Robinson considered information brought
to him ex parte by the government, based as it is on newly discovered
“evidence,” could not have been raised before. Pollard’s claims of breach of the plea agreement stand on
somewhat different footing. We cannot as easily excuse his failure to raise all
of those arguments. At the time of sentencing, such claims would require
specific performance of the agreement, not its nullification, so his wife’s
alleged vulnerability if the plea were withdrawn is not relevant. Pollard did
in fact raise one of his breach arguments at sentencing and again in a Rule 35
motion (although he appeared to abandon it at sentencing), perhaps illustrating
the point. We note that the law is rather unclear as to what claims can be
raised in a § 2255 motion that were not raised at sentencing,
in a Rule 35 motion, or in a direct appeal from sentencing. See, e.g., Theodorou
v. United States, 887 F.2d 1336, 1338-40 (7th Cir.1989); Williams v. United
States,
805 F.2d 1301, 1303-06 (7th Cir.1986), cert. denied, 481 U.S. 1039, 107 S.Ct.
1978, 95 L.Ed.2d 818 (1987); United States v. Baylin, 696 F.2d 1030 (3d
Cir.1982); United States v. Corsentino, 685 F.2d 48, 50-51 (2d Cir.1982). To
complicate the matter even further, the government was quite imprecise in the
proceeding below regarding its waiver arguments. It may well be that the
government thus waived its waiver claim. See United States v. Hall, 843 F.2d
408, 410 (10th Cir.1988). The government, to be sure, repeatedly complained
that Pollard’s § 2255 motion had been filed three
years after he was sentenced and long after the basis for his claims should
have become apparent to him, and that Pollard’s counsel had not
protested the alleged breaches of the plea agreement at the sentencing hearing.
But the government explicitly used the term “waiver” only
with respect to Pollard’s claim that the government failed adequately
to describe the nature of Pollard’s cooperation. Ordinarily, we would feel obliged to decide whether Pollard had
waived the breach of the plea agreement arguments that he presents here
(although we do not see the issue as jurisdictional), but because the
government was so unfocused in its argument on this issue before the district
court, and because we reject Pollard’s claims on the merits, we do not
think it necessary to resolve the difficult question of Pollard’s
right to bring all of his claims in a § 2255 proceeding.
[FN4] We do, however, give due consideration to Pollard’s (and his
counsel’s) reactions upon hearing the government’s [*1020] allocution at
sentencing in determining whether the government’s [**16] allocution breached
the agreement. FN4. Our dissenting colleague sidesteps the
knotty problems involved in finding cause and prejudice sufficient to excuse
Pollard’s failure to object at sentencing, because he contends the
government “waived the defense” below. Dissent at 1032. Judge
Williams may be correct that the government merely “grazed the
issue,” id., as to some of Pollard’s claims, but the
government addressed it directly as to Pollard’s claim that the
government failed to describe adequately his cooperation. No mere
“vague footnote throwaway line,” id., the
government’s statement concerning this claim of Pollard’s
said: “We doubt that the defendant has
preserved this point for review. As he raised it explicitly during the
sentencing hearing, and then abandoned it, we believe he has waived the right
to argue it on collateral attack under § 2255. Nonetheless,
we respond to these claims on the merits.” Opposition to Defendant’s Motion to
Withdraw His Guilty Plea at 24 n. 10. We are also mindful that in a § 2255 collateral
challenge, an appellant, in order to gain relief under any claim, is obliged to
show a good deal more than would be sufficient on a direct appeal from his sentence.
Section 2255 is not a substitute for a direct appeal. See United States v.
Frady,
456 U.S. 152, 165, 102
S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982). As both parties agree, we are
authorized to grant relief only if we determine that the challenged sentence
resulted from “ ‘a fundamental defect which
inherently results in a complete miscarriage of justice,’ or
‘an omission inconsistent with the rudimentary demands of fair
procedure.’ ” Fed.R.Crim.P. 32, Advisory
Committee’s Note on 1983 Amendment (quoting Hill v. United States, 368 U.S. 424, 428, 82
S.Ct. 468, 471, 7 L.Ed.2d 417 (1962)). A. Jonathan Pollard claims that by refusing to offer Anne Pollard a
plea agreement unless he also entered into a plea agreement, the government
overreached; it used improper, indeed unconstitutional, pressure to force him
to plead guilty. We note, however, that Pollard does not contest his guilt. He
does not ask for a new trial to establish his innocence. Cf. United States
v. Barker, 514 F.2d 208, 220 (D.C.Cir.) (en banc) (in deciding whether to
permit withdrawal of a guilty plea, whether defendant claims innocence is an
“important factor” to consider), cert. denied, 421 U.S. 1013,
95 S.Ct. 2420, 44 L.Ed.2d 682 (1975). We are not faced with the prospect that
an innocent man was involuntarily compelled to plead guilty. Still, that is not
dispositive. Government coercion of a certain degree and kind would invalidate
the plea agreement even though Pollard does not contest his guilt. See Fontaine
v. United States, 411 U.S. 213,
214-15, 93 S.Ct. 1461, 1462-63, 36 L.Ed.2d 169 (1973) (per curiam). Pollard first argues that the district judge did not strictly
follow the dictates of Fed.R.Crim.P. 11, which requires a district judge
accepting a guilty plea to advise the defendant in open court of the rights he
is surrendering and to determine that his plea is voluntary and “not
the result of force or threats or of promises apart from a plea
agreement.” Fed.R.Crim.P. 11(c) & (d). Chief Judge Robinson,
although he questioned Pollard at great length as to his understanding of his
rights and the significance of the plea, never in haec verba asked Pollard
whether his plea was voluntary. United States v. Timmreck, 441 U.S. 780, 99 S.Ct.
2085, 60 L.Ed.2d 634 (1979), holds, however, that failure to comply with the
literal language of Rule 11 does not itself constitute the “complete
miscarriage of justice” required before a court will grant a
§ 2255 motion. [FN5] Id. at 784, 99 S.Ct. at 2087. FN5. Pollard further suggests that his
wife’s illness was an “aggravating factor” of the
type the Court suggested in dicta in Timmreck might expand a
§ 2255 court’s scope of review. See Timmreck, 441 U.S. at 784-85,
99 S.Ct. at 2087-88 (“we find it unnecessary to consider”
whether aggravating circumstances might change the result). Case law does not
indicate that her illness is the kind of factor the Court contemplated. Cf. Johnson
v. United States, 805 F.2d 1284, 1287 (7th Cir.1986) (stating that
“aggravating factor,” if it means anything at all, means only
factors that rise to the level of a due process violation); United States v.
Laura,
667 F.2d 365, 379 (3d Cir.1981) (Stern, J., dissenting) (“being
advised by a lawyer with a conflict of interest relating directly to [the]
plea” is an aggravating circumstance). Pollard’s more substantial involuntariness argument is
that wired pleas are unconstitutional. The Supreme Court has specifically
reserved judgment on “the constitutional implications of a
prosecutor’s offer during plea bargaining of adverse or lenient
treatment for some person other than the accused.” Bordenkircher
v. Hayes, 434 U.S. 357,
364 n. 8, 98 S.Ct. 663, 668 n. 8, 54 L.Ed.2d 604 (1978) (emphasis in original).
The circuits that have considered the question, however, while occasionally
expressing distaste for the practice, have uniformly agreed that it does not, per
se,
offend due process or the privilege against compulsory self-incrimination. See United [*1021] [**17] States v.
Marquez,
909 F.2d 738, 742 (2d Cir.1990) (citing cases from First, Fourth, Fifth, Sixth,
Seventh, Eighth, Tenth, and Eleventh Circuits), cert. denied, 498 U.S. 1084,
111 S.Ct. 957, 112 L.Ed.2d 1045 (1991). We agree with our sister circuits that plea wiring does not
violate the Constitution. The question, of course, is whether the practice of
plea wiring is so coercive as to risk inducing false guilty pleas. See Bordenkircher, 434 U.S. at 364 n.
8, 98 S.Ct. at 668 n. 8. To say that a practice is “coercive”
or renders a plea “involuntary” means only that it creates
improper pressure that would be likely to overbear the will of some innocent
persons and cause them to plead guilty. Only physical harm, threats of
harassment, misrepresentation, or “ ‘promises that
are by their nature improper as having no proper relationship to the prosecutor’s
business (e.g., bribes)’ “ render a guilty plea
legally involuntary. Brady v. United States, 397 U.S. 742, 750, 755, 90
S.Ct. 1463, 1470, 1472, 25 L.Ed.2d 747 (1970) (quoting Shelton v. United
States,
246 F.2d 571, 572 n. 2 (5th Cir.1957) (en banc), rev’d on other
grounds, 356 U.S. 26, 78
S.Ct. 563, 2 L.Ed.2d 579 (1958)). Almost anything lawfully within the power of
a prosecutor acting in good faith can be offered in exchange for a guilty plea.
No constitutionally impermissible compulsion arises, for instance, when a
defendant is forced to choose between the possibility of a mandatory minimum
sentence of ten years in prison if he goes to trial or a suspended sentence on
a reduced charge if he pleads. See Brady, 397 U.S. at 751, 90 S.Ct. at 1470. In
Brady, the Supreme Court held that “a plea of guilty is not
invalid merely because entered to avoid the possibility of a death
penalty.” Id. at 755, 90 S.Ct. at 1472. Even where the defendant
continues to maintain his innocence, having to face the death penalty as the
price of trial does not invalidate a guilty plea, as long as the record
contains adequate evidence of actual guilt. See North Carolina v. Alford, 400 U.S. 25, 37- 38, 91
S.Ct. 160, 167-68, 27 L.Ed.2d 162 (1970). We can understand how it might be thought that a threat of long
imprisonment for a loved one, particularly a spouse, would constitute even
greater pressure on a defendant than a direct threat to him. Whether one could
generalize as to that proposition depends, we suppose, on one’s view
of human nature. But it does not seem to be the sort of widely-shared intuition
upon which a constitutional rule should be based. We must be mindful, moreover,
that if the judiciary were to declare wired pleas unconstitutional, the
consequences would not be altogether foreseeable and perhaps would not be
beneficial to defendants. Would Pollard, for instance, have been better off had
he not been able to bargain to aid his wife? Would his wife have been better
off? Would the bargaining take place in any event, but with winks and nods
rather than in writing? Nor do we believe that Mrs. Pollard’s medical condition
makes an otherwise acceptable linkage of their pleas unconstitutional. The
appropriate dividing line between acceptable and unconstitutional plea wiring
does not depend upon the physical condition or personal circumstances of the
defendant; rather, it depends upon the conduct of the government. Where, as
here, the government had probable cause to arrest and prosecute both defendants
in a related crime, and there is no suggestion that the government conducted
itself in bad faith in an effort to generate additional leverage over the
defendant, we think a wired plea is constitutional. See, e.g., Politte v.
United States, 852 F.2d 924, 930 (7th Cir.1988) (emphasizing “good
faith prosecution”); Harman v. Mohn, 683 F.2d 834, 837
(4th Cir.1982) (probable cause and good faith); United States v. Nuckols, 606 F.2d 566, 569
(5th Cir.1979) (same). Once the government had probable cause to prosecute Mrs.
Pollard and had obtained a valid indictment, it was entitled, despite her
illness, to prosecute her fully—or to offer lenience for her in
exchange for Pollard’s plea. See United States v. Clark, 931 F.2d 292, 294-95
(5th Cir.1991) (plea offered by man, who maintains his innocence, in order to
help his “sick, pregnant and innocent” wife held not
involuntary); [*1022] [**18] Bontkowski v. United States, 850 F.2d 306, 313
(7th Cir.1988) (threat to prosecute validly indicted pregnant woman does not
constitute unconstitutional coercion of her husband). At minimum, Pollard argues, wired pleas raise special dangers of
coercion, so that a district court faced with such a plea must undertake a more
searching inquiry into the voluntariness of the plea than would normally be
required. See, e.g., Nuckols, 606 F.2d at 569. Even if that were so, we are
satisfied that the district court adequately discharged its obligations here.
The colloquy between the court and Pollard was so extensive that there could be
little doubt about Pollard’s willingness to plead. Pollard had several
opportunities to confess any misgivings to the judge, but he never gave the
slightest hint that his plea was anything other than voluntary. In fact,
Richard Hibey, who was Pollard’s attorney at the time, brought to the
court’s attention at the end of the plea proceeding a document
captioned “Waiver of Trial by Jury,” which Pollard had
executed. And when counsel did so, he specifically stated, “I think
the Court has taken care of [the waiver] under Rule 11.” B. Pollard places greatest emphasis in this appeal on his arguments
that the government breached the plea agreement in its allocution before Chief
Judge Robinson. According to Pollard, the government made three promises to
him, and it broke them all. The government stated it would seek a
“substantial period of incarceration,” but agreed not to ask
for a life sentence. It agreed to describe to the judge the extent of
Pollard’s post-arrest cooperation and to say explicitly that it was of
“considerable value” to the government’s damage
assessment, as well as to its investigation of this case and enforcement of the
espionage laws. And, perhaps most problematic, Pollard claims that the government
agreed to limit its allocution to the “facts and circumstances of the
offenses committed.” As noted, these claims of breach of the plea agreement were
brought before the sentencing district judge three years after the breaches
allegedly occurred. A § 2255 motion must be brought before
the same district judge who sentenced the defendant. See 28 U.S.C.
§ 2255. That judge had before him the plea agreement when he
listened to the government’s original argument at sentencing, so he could
compare the government’s arguments with the promises in the plea
agreement. Looking back again, in response to appellant’s
§ 2255 motion, the judge determined there was no breach. The
standard of appellate review of such a determination—typically
employed on direct appeal from sentencing—is unsettled. Several
circuits review district court determinations of whether or not a plea
agreement has been breached de novo. See, e.g., United States v. Jimenez, 928 F.2d 356, 363
(10th Cir.), cert. denied, 502 U.S. 854, 112 S.Ct. 164, 116 L.Ed.2d 129 (1991);
United States v. Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir.1989). Several
others will set aside a district court’s finding concerning breach of
a plea agreement only if clearly erroneous. See, e.g., United States v.
Conner,
930 F.2d 1073, 1076-77 (4th Cir.), cert. denied, 502 U.S. 958, 112 S.Ct. 420,
116 L.Ed.2d 440 (1991); Raulerson v. United States, 901 F.2d 1009, 1012
(11th Cir.1990); United States v. Ataya, 864 F.2d 1324, 1327 (7th Cir.1988). A
plea agreement is a form of contract, but it is a rather unusual contract,
because the judge plays an active role in overseeing its performance. Not only
does the judge review and accept the agreement and observe both parties’
conduct under the agreement, see Fed.R.Crim.P. 11(e), the judge’s
determination of the sentence is the ultimate action to which the agreement is
directed. To argue, as Pollard does, that the government breached a plea
agreement through excessive allocution implies that the judge tolerated, and
presumably allowed himself to be influenced by, the excessive nature of the
government’s arguments. The appellant’s claim, in other
words, is not only that the government breached the agreement but that the
district judge was swayed by the breach. [*1023] [**19] We review factual determinations of a district court
(clearly erroneous) more deferentially than legal ones (de novo), in large part
because the judge who hears the evidence and observes the demeanor of witnesses
has a comparative institutional advantage over the appellate court. We think
the same sort of considerations typically make a deferential standard
appropriate in reviewing a district judge’s determination of whether
the government’s allocution violated limitations in a plea agreement.
Such a determination presents a mixed question of law and fact in which the
factual aspects usually predominate. The district judge is surely in the best
position to determine whether the government presented an argument that,
perhaps subtly, exceeded the bounds of the agreement. When a § 2255 motion is presented challenging
the government’s allocution at sentencing, the district judge
inevitably examines the claim in light of his own recollection of how the
government’s arguments struck him at the time they were presented. In
deferring to his judgment, we defer not to his construction of the terms of the
agreement but to his assessment of whether the government’s conduct violated
those terms. The meaning of a plea agreement—at least its facial
meaning—is of course reviewed de novo. Cf. United States v. Western
Electric Co., 900 F.2d 283, 293 (D.C.Cir.1990) (reviewing construction of a
consent decree de novo ). That is strictly a question of law. Once it is
determined, however, that nothing the government said explicitly transgressed
the promises contained in the agreement, the more subtle question, whether an
illegal implicit appeal was made, which could turn on voice inflections or even
facial expressions, is one concerning which we must afford deference to the
district court. It might be thought that the judge would find it difficult
subsequently to recognize as improper an argument by the government that might
have persuaded the judge. But district judges are expected to withstand
improper appeals and, even when they succumb, to exercise the discipline to
recognize them in hindsight. Presumably, the sentencing judge’s unique
vantage point is in part why Congress provided that § 2255
motions were to be brought before the sentencing judge. See Blackledge v.
Allison,
431 U.S. 63, 74 n. 4, 97
S.Ct. 1621, 1629 n. 4, 52 L.Ed.2d 136 (1977) (noting that the district
judge’s “recollection of the events at issue” enable
him to apply the standards for collateral relief “in a somewhat
different fashion” in a § 2255 proceeding). To be
sure, in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427
(1971), the Supreme Court said that resentencing had to take place before a
different judge once it determined the government had plainly breached the plea
agreement, notwithstanding the judge’s statement that he was
unaffected by the government’s argument. See id. at 263, 92 S.Ct. at
499. The extraordinary nature of that relief (disqualification of a judge is
not lightly granted) suggests to us, however, the appropriateness of according
a large measure of respect to the district court’s judgment in
deciding whether a violation occurred in the first place. Reviewing this sort of district court finding only for clear error
is entirely consistent with our approach, and the approach of other circuits,
to the review of other sorts of decrees or orders in which there is substantial
judicial involvement. [FN6] Western Electric held only that
“construction of a consent decree”—in other words
“the meaning of the Decree’s terms”—should
be reviewed de novo. Id. There we rejected a claim for deference based upon the
fact that the district judge “was also the drafter of the language at
issue.” Id. at 294. Where the issue is instead the application of
that language, i.e., violation of the terms of a consent decree, courts [*1024] [**20] typically
review district court findings under a clearly erroneous standard. See, e.g., Kendrick
v. Bland, 931 F.2d 421 (6th Cir.1991); Hayden v. Oak Terrace Apts., 808 F.2d 1269 (7th
Cir.1987); United States v. Lulac, 793 F.2d 636, 643 (5th Cir.1986). Similarly,
numerous courts, including our own, review findings of violations of other
types of court orders in contempt proceedings under a clearly erroneous
standard. See, e.g., Dallas Gen’l Drivers, Warehousemen &
Helpers, Local No. 745 v. NLRB, 500 F.2d 768 (D.C.Cir.1974) (civil contempt
finding by Special Master for violation of NLRB order); Glasser v. A.H.
Robins Co., 950 F.2d 147 (4th Cir.1991) (violation of protective order); United
States v. Costa, 947 F.2d 919 (11th Cir.1991) (violation of district court
order); United States v. National Medical Enters., 792 F.2d 906, 911
(9th Cir.1986) (violation of scheduling orders); NLRB v. Bancroft Mfg. Co., 635 F.2d 492 (5th
Cir.) (civil contempt finding by Special Master for violation of NLRB order),
cert. denied sub nom. Croft Metals, Inc. v. NLRB, 452 U.S. 917, 101
S.Ct. 3053, 69 L.Ed.2d 421 (1981). FN6. Indeed, it comports with our review of
ordinary contracts. When issues of interpretation and construction predominate
in an ordinary breach of contract claim, we regard the issue of breach as a
question of law to be reviewed de novo. When, however, a breach determination
rests primarily on an analysis of facts, we will reverse the determination only
if clearly erroneous. See, e.g., ARB, Inc. v. E-Systems, Inc., 663 F.2d 189
(D.C.Cir.1980); W.G. Cornell Co. v. Ceramic Coating Co., Inc., 626 F.2d 990
(D.C.Cir.1980). Here the meaning of the agreement is not in dispute; at least with
respect to the first two of Pollard’s claims of breach, the question
is only whether the government’s arguments transgressed the agreed
norm. As to Pollard’s first claim, it is undisputed that the
government never asked, in so many words, for a life sentence. Pollard
contends, however, that the very force of the government’s allocution
sent the district judge an implicit request for a life sentence. Pollard
particularly objects to the two written submissions by Secretary of Defense
Weinberger which, Pollard claims, contain numerous exaggerations and several
veiled appeals to the sentencing judge to impose the maximum penalty. [FN7] FN7. Pollard, for purposes of this appeal,
received a redacted version of Secretary Weinberger’s classified memorandum. Secretary Weinberger’s public statement asserted that
even in a year in which several spies for the United States’ main
adversaries had been apprehended, it was difficult to “conceive of
greater harm to national security” than that done by Pollard and that
Pollard’s punishment “should reflect the perfidy of his
actions, the magnitude of the treason committed, and the needs of national
security.” (emphasis added). The Secretary had detailed exhaustively
in his classified submission the national security information that Pollard had
compromised, and he urged the court to impose a sentence “commensurate
with the enduring quality of the national defense information he can yet
impart.” Pollard argues that by bringing to bear its
“heaviest artillery”—the nation’s top
national security official—to provide the damage assessment, the
prosecutors suggested to the sentencing judge the government’s
interest in seeing the maximum sentence imposed. It is true that the government pressed its case against Pollard at
sentencing with considerable force. But we do not think that in doing so the
government violated its promise not to recommend a life sentence; certainly we
find no clear error in the district judge’s determination that the
government adhered to its promise. Cf. United States v. Benchimol, 471 U.S. 453, 455, 105
S.Ct. 2103, 2104, 85 L.Ed.2d 462 (1985) (per curiam) (agreement to recommend a
particular sentence does not require the government to do so
“enthusiastically”). We disagree with our dissenting
colleague, who believes that the Weinberger memoranda calling for
“severe punishment”—reflecting the perfidy of
Pollard’s actions and even referring to treason—was
equivalent to an appeal for a life sentence. The Secretary of
Defense’s statement was, in our view, just as consistent with a
request for a long prison sentence that would be short of a life term. The
government did not ask for a “life sentence in all but name,”
Dissent at 32, because it never introduced explicitly or implicitly the notion
or concept of the maximum sentence; nor did it ever use words that could be thought
synonymous with a life term. [*1025] [**21] The plea agreement did not commit the government to treat
Pollard gently or to minimize the extent of the damage that he caused to
national security. It provided: “Notwithstanding Mr. Pollard’s
cooperation, at the time of sentencing the Government will recommend that the
Court impose a sentence of a substantial period of
incarceration……” And the same paragraph of the plea
agreement stressed that “this agreement cannot and does not limit the
court’s discretion to impose the maximum sentence.” Since the
government reserved the right to argue for a substantial period of
incarceration and explicitly preserved the district court’s discretion
to impose a life sentence, Pollard’s argument that the government made
an implicit plea for a life sentence necessarily rests on nuance. In this
regard, we, unlike our dissenting colleague, think it telling that
Pollard’s counsel, who reviewed and responded to Secretary
Weinberger’s submissions in detail and heard the government’s
argument, never claimed an implicit breach of the agreement not to seek a life
sentence. Counsel did dispute Secretary Weinberger’s evaluation of the
gravity of Pollard’s misdeed, but characterized the
Secretary’s words— perhaps accurately—only as
“rank hyperbole.” The district court was, therefore,
justified when it described the government as “argu[ing] for a substantial
term of imprisonment, and no more.” Pollard, 747 F.Supp. at 803. Pollard’s second claim, it will be recalled, is that the
government breached its agreement with him by failing to outline adequately the
extent and value of his cooperation. In paragraph 4(a) of the plea agreement,
the government promised to “bring to the Court’s attention
the nature, extent and value of [Pollard’s] cooperation and
testimony,” which the government would represent was “of
considerable value to the Government’s damage assessment analysis, its
investigation of this criminal case, and the enforcement of the espionage
laws.” In its principal sentencing memorandum, the government began
its discussion of Pollard’s crimes by noting that “[i]n the
numerous interviews of defendant …., defendant has detailed the
origins and scope of the espionage operation.” The government then
devoted twelve pages to a detailed recitation of the conspiracy, which the
government acknowledged was based largely on these interviews. Following this
recitation, Pollard’s cooperation was described further. “The
defendant has submitted to numerous post-plea debriefings……
During those debriefings, defendant revealed a substantial amount of
information regarding the formation, conduct and extent of the espionage
operation which was previously unknown to the government.” The
government then described in general terms the value of Pollard’s
cooperation: “For this reason, defendant’s post-plea
cooperation has proven to be of considerable value to the government’s
damage assessment analysis, and the ongoing investigation of the instant
case.” And in the following paragraph it was acknowledged
“that defendant has been candid and informative in describing his
wrongdoing, and that [the government] has derived benefit from the information
defendant has provided.” Pollard’s claim on appeal is essentially that the
government’s obligation to represent his cooperation as valuable
implied a corollary promise not to discount that cooperation and not to tell
the judge that his cooperation was limited. Pollard accuses the government of
disingenuity by including the bargained-for language describing his cooperation
in a section of the sentencing memorandum entitled “FACTORS COMPELLING
SUBSTANTIAL SENTENCE.” Primarily, Pollard objects to the government
telling the judge that his delay in cooperating with the investigators allowed
the Israeli handlers to escape and also to the government’s suggestion
that Pollard’s motive for cooperating was the desire for leniency in
sentencing, not remorse for his crimes. The government, however, never promised not to give the court a
complete appraisal of its view of Pollard’s cooperation. It was of
considerable value, and the government said so, but it was not wholehearted;
the Israeli handlers were given an opportunity to flee the country. We disagree
[*1026] [**22] with the
dissent’s statement that the government conveyed the impression that
the value of Pollard’s cooperation was only
“slight,” Dissent at 1035; instead, the government
legitimately pointed out that there were certain matters of considerable
importance, i.e., the apprehension of his handlers (which, of course, goes a
long way to deter future espionage) concerning which Pollard did not cooperate.
[FN8] Pollard contends that at the time the plea agreement was reached, the
government well knew the handlers had been given an opportunity to escape, and
by not reserving explicitly the right to mention that to the judge, the
government in effect waived the point. The argument, however, can just as
easily be turned against Pollard. He could have bargained to exclude reference
to the Israeli handlers. And the agreement does provide, in paragraph 4(b),
that the government reserves the right “to correct any misstatements
of fact at the time of sentencing, including representations of the defendant
and his counsel in regard to the nature and extent of Mr. Pollard’s
cooperation.” That provision at least suggests that the parties
anticipated the judge would be given the full story of Pollard’s
cooperation, its value to the country and where it fell short, as well as the
government’s view of Pollard’s motive. FN8. The dissent’s suggestion that
the district judge in the § 2255 proceeding may have
improperly interpreted the plea agreement to have permitted the government to
“convey the message that Pollard’s cooperation, while
containing some elements of considerable value, was on an overall basis not
worth much,” Dissent at 1035, is not a fair reading of the district
court’s opinion. After noting that the government agreed to represent
that Pollard’s cooperation had been of considerable value, see Pollard, 747 F.Supp. at 802,
the district court went on to observe that Defendant claims that by “casting
aspersions” on defendant’s cooperation, the Government completely
undercut the statements it made earlier. For example, the Government noted that
defendant’s delay in cooperating allowed certain co-conspirators to
flee the United States. It was no violation of the plea agreement for the
Government to explain the positive value of the cooperation in one sense
(damage assessment), while also noting that defendant had frustrated Government
efforts in another sense (law enforcement). The record in this case does not
support the contention that the Government failed in its obligation. It did not
dryly recite in a few declarative sentence[s] that defendant had cooperated. It
did much more, as it had said it would. Id. at 804. Nor do we think that the manner of the government’s
description of Pollard’s cooperation or its questioning of his motive
for cooperation is determinative. The form of the memorandum, to be sure,
bespeaks the grudging nature of the government’s compliance, but we do
not believe that the form significantly detracted from the facts presented
regarding the nature of Pollard’s cooperation or from the
government’s explicit statement of its value. And it is normally to be
assumed that a defendant cooperates with the government largely—if not
entirely—in hopes of a reduced sentence. Pollard’s counsel initially objected at sentencing to the
government’s description of his cooperation, but he subsequently
abandoned this objection. See Pollard, 747 F.Supp. at 804 n. 6. Although he
reasserted it in the Rule 35 motion, in neither proceeding did he make the
argument presented here. He did not claim that the plea agreement barred the
government from commenting on Pollard’s motive for cooperation or on
Pollard’s delay that permitted the Israeli intelligence agents to
escape. He contended only that the affirmative value of Pollard’s
cooperation was understated. We think that although the government’s
presentation was certainly not generous—it could well be thought
stingy—it did not explicitly or implicitly violate the plea agreement.
Again, we do not believe that the district court’s ruling on this
point can reasonably be thought clearly erroneous. [FN9] FN9. Although our dissenting colleague agrees
that the district court’s judgment concerning these claimed violations
of the plea agreement must be reviewed for clear error, his application of that
standard appears indistinguishable from de novo review. See Dissent at 31-32. Pollard’s third claim of breach is, as we have indicated,
more troublesome. The plea agreement in paragraph 4(b) includes the statement
that the government “retains full right of allocution at all times
[*1027] [**23] concerning the
facts and circumstances of the offenses committed by Mr. Pollard.”
Pollard argues that by this language the government clearly, if implicitly,
agreed not to comment on his motives for committing espionage or on his
character. On numerous occasions during the sentencing hearing, the government
referred to Pollard’s “arrogance and deception,” and
employed other unfavorable adjectives describing his character, such as
“vengeful,” “unworthy of trust,” or
“contemptuous.” The government consistently suggested,
moreover, that Pollard’s spying had been motivated by greed rather
than ideology. The government disputes the meaning Pollard gives to the sentence;
it claims that the language is not intended to limit the government’s
allocution. The only limitation the government agreed to (which itself is not
explicit in the agreement) was not to ask for a life sentence or a specific
term of years. One difficulty with the government’s position is the
comparison with Anne Pollard’s plea agreement, which, in a parallel
paragraph, states that the government “retains full right of
allocution at all times, including the right to detail the facts and
circumstances of the offenses committed……” (emphasis
added). That language in the Anne Pollard agreement certainly suggests that a
full right of allocution extends to something beyond facts and circumstances.
Pollard also notes that in his own plea agreement at paragraph 4(c) the
government reserved its “full right of allocution in connection with
any Rule 35 motion,” thus indicating the parties may have meant
something less than a full right by adding the facts and circumstances language
in the earlier clause. Appellant relies heavily on United States v. Moscahlaidis, 868 F.2d 1357 (3d
Cir.1989), to support his interpretation of the “facts and
circumstances” language as excluding discussion of his motive and
character. In Moscahlaidis, the Third Circuit held that a plea agreement
limiting the government’s allocution to “ ‘the
full nature and extent of [the defendant’s] activities with respect to
this case’ ” had been violated when the government
commented at length upon the defendant’s character. Id. at 1359 (quoting
plea agreement). The critical factor in Moscahlaidis, however, was that in that
case, unlike our own, the government had agreed to take no position concerning
defendant’s sentence, a promise which the Third Circuit held bound the
government to make “ ‘no attempt at all to influence
the defendant’s sentence.’ ” Id. at 1362 (quoting United
States v. Miller, 565 F.2d 1273, 1275 (3d Cir.1977) (per curiam)). It was in that
context that the prosecutor’s description of the defendant’s
character was thought to go beyond the terms of the plea agreement. The wording of the “facts and circumstances”
clause before us, in contrast, is ambiguous. It does not, on its face, exclude
commentary on Pollard’s motive for committing his crime. And, as the
government correctly points out, motive is generally thought—at least
for any crime that requires mens rea—to go to the very heart of a
crime, and thus is presumably included in the “facts and
circumstances” of the crime. The government’s discussion of
Pollard’s character is, perhaps, another matter. Special protections
attend the admissibility of character evidence at trial, see Fed.R.Evid. 404
and 608, and it would not be unreasonable to suppose that this type of
allocution is what “facts and circumstances” excludes.
However, limiting the government’s allocution to the facts and
circumstances of the offenses does not necessarily preclude any comment on
character, because some consideration of character is inseparable from the
motivation of the defendant. In this case, for instance, it would have been
artificial to permit the government to argue that Pollard committed his
espionage for financial reward but rigidly exclude the suggestion that Pollard
was thus greedy and self-regarding. Given the ambiguity, Pollard contends the agreement should be
construed strictly against the government, which drafted its terms, and in his
favor, especially since it operates as a waiver of his constitutional jury trial
rights. See, e.g., United States v. Jefferies, 908 F.2d 1520, 1523
(11th Cir.1990); United States v. Harvey, 791 F.2d 294, 301, 303 (4th
Cir.1986). On the other [*1028] [**24] hand, a good deal of weight must be placed on the
contemporaneous interpretation of Pollard’s counsel, who apparently
thought nothing amiss when the government’s allocution included an
unflattering presentation of Pollard’s character and motive.
Moscahlaidis is distinguishable on those grounds as well. The defendant in that
case asserted at the time of sentencing that the government’s
allocution breached the plea agreement. He also took a direct appeal from his
sentence. See Moscahlaidis, 868 F.2d at 1359-60. We find it unnecessary to decide whether the government breached
the “facts and circumstances” limitation, because there is a
higher and decisive barrier against which this claim of breach of the plea
agreement collides. If we were to conclude that the government’s
allocution extended beyond “facts and circumstances” and thus
breached the agreement, we do not think Pollard would be entitled to relief
under § 2255. It is settled that a § 2255
motion is not meant to be a substitute for a direct appeal and that “it
does not encompass all claimed errors in conviction and sentencing.” United
States v. Addonizio, 442 U.S. 178,
184-85, 99 S.Ct. 2235, 2239-40, 60 L.Ed.2d 805 (1979). The government’s
allocution in Pollard’s case, even if it had crossed the limits of the
plea agreement, falls far short of a “fundamental defect” in
Pollard’s sentencing that resulted in a “complete miscarriage
of justice”; nor was it “an omission inconsistent with the
rudimentary demands of fair procedure.” Hill, 368 U.S. at 428, 82
S.Ct. at 471; cf. United States v. McKoy, 645 F.2d 1037, 1040 n. 3
(D.C.Cir.1981) (“The stringent standard for post-sentence plea
withdrawal motions is intended to prevent a defendant from testing the weight
of potential punishment, and then withdrawing the plea if he finds the sentence
unexpectedly severe.”). It is of course true that the government must keep the plea
agreements it makes. Any breach of a promise that induced the guilty plea
ordinarily entitles the defendant on direct review either to specific
performance and resentencing before a different judge or to withdrawal of the
guilty plea, as the court deems appropriate. See Santobello v. New York, 404 U.S. 257, 262-63, 92
S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971). But not all breaches of plea
agreements can be said to result in complete miscarriages of justice; not all
call for relief under § 2255. See United States v. Griffin, 816 F.2d 1, 7
(D.C.Cir.1987). Only where there has been a clear violation of a definite
promise that was a significant inducement to the plea can a
§ 2255 court permit a prisoner to withdraw his plea. See Machibroda
v. United States, 368 U.S. 487,
493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962) (guilty plea is void where induced
by broken promises that deprive it of the character of a voluntary act). Our dissenting colleague suggests that the notions of
“fundamental defect” and “miscarriage of
justice” are elastic terms that shift in meaning depending on the
nature of the relief sought (or, more accurately in this case, offered). Thus,
Judge Williams contends that for the remedy he would provide, resentencing
before a new judge, the test for relief under § 2255
(“fundamental defect” that results in a “complete
miscarriage of justice”) can be satisfied by a lesser showing than
would be required if the appellant sought rescission of the plea agreement.
This is so because ordering resentencing before a new judge would not be
“markedly more burdensome” than a resentencing remedy on
direct appeal. Dissent at 34. But there is no indication that Congress, when it
accepted this strict standard for relief through Fed.R.Crim.P. 32(d), [FN10]
meant to delegate to judges the power to lessen it if the nominal costs to the
government of a particular remedy were thought to be relatively low. (We say
nominal because the disqualification [*1029] [**25] of the district judge always carries
immense indirect costs to the judicial system.) Even the appellant, who sought
before the district court and in his opening brief to this court complete
rescission of the plea agreement, seems not to have perceived the
dissent’s distinction. Certainly there is no support in the case law
for such a proposition. FN10. The “complete miscarriage of justice”
standard was originally a judicial gloss on § 2255. See Hill
v. United States, 368 U.S. 424,
428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). When rule 32(d) was amended in
1983, the Advisory Committee Notes expressly approved that standard for
§ 2255 proceedings, and Congress authorized the amendment to
take effect without change. Society’s interest in bringing criminal appeals to an end
is the reason for the high standard for relief in a collateral proceeding. See,
e.g., Timmreck, 441 U.S. at 784, 99 S.Ct. at 2087. This interest in finality is
a good deal broader than merely avoiding the direct costs of supplemental
proceedings. See, e.g., Coleman v. Thompson, 501 U.S. 722, 111 S.Ct.
2546, 2563, 115 L.Ed.2d 640 (1991) (quoting Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct.
1068, 1081-82, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting)). Judge
Williams’ bi-level standard would disserve this interest by making it
considerably more attractive for defendants to pursue collateral attacks on
their sentences, and perhaps would create temptation for appellate judges to
second guess trial judges’ sentencing determinations (especially in
non-Guidelines cases). We think, then, the appellant must meet the statutory
standard for relief, and there is simply no way that Pollard’s sentence,
harsh as it is, can be thought to stem from a fundamental defect that caused a
miscarriage of justice—without robbing those words of all meaning. Judge Williams, nevertheless, would grant resentencing in this
context if the government’s breach creates “a serious
likelihood that a judge would have given a harsher sentence” than
without the breach. Dissent at 34-35. That approach would appear to require
resentencing, regardless of the clarity or seriousness of the alleged breach,
if appellate judges were to believe, for example, that a defendant would have
received (from an untainted hypothetical judge) a prison term of 11 months
rather than a year, 10 years rather than 11, or 40 years rather than life. In
other words, once Judge Williams would conclude that the line of breach is
crossed, no matter how subtly, he would find the “fundamental
defect” and “miscarriage of justice” standard met by
even a minor increase in the sentence over the one that would have been given
by the hypothetical untainted judge. This analytical framework would either
justify § 2255 relief for minor breaches of the plea
agreement or it would invite appellate judges to weigh de novo the severity of
the sentence imposed (or both). [FN11] For those reasons, all the courts that
have considered alleged breaches of plea agreements—in a
§ 2255 context—have thought the statutory standard
could be met only by a showing of clear breach of a significant provision in
the agreement. We are aware of no case—neither appellant nor the
dissent offers any—where relief was granted in a
§ 2255 proceeding based on an allegation that the
government’s arguments amounted to an implicit breach of a partially
ambiguous plea agreement. A survey of nearly one hundred appellate decisions in
§ 2255 cases over the last twenty years reveals only four
decisions granting relief to a § 2255 petitioner based on a
claimed breach of a plea agreement, and all of those cases involved clear
violations of the agreement or federal statutes. See Brunelle v. United
States,
864 F.2d 64 (8th Cir.1988); United States v. Carbone, 739 F.2d 45 (2d
Cir.1984); United States v. Corsentino, 685 F.2d 48 (2d Cir.1982); Correale
v. United States, 479 F.2d 944 (1st Cir.1973). The mood, atmosphere, or
“rhetoric” of the government’s
allocution—upon which the dissent relies—might well justify
relief on direct appeal of a sentence, [*1030] [**26] but it is unlikely to satisfy
the rigorous test of § 2255. FN11. In a direct appeal of a sentencing
determination, if the appellate court concludes that the government breached a
plea agreement, it grants relief. The appellate court does not try to decide
whether the breach caused the judge to give a greater sentence than would have
been levied otherwise. As the Santobello Court recognized, that is an
unprofitable line of inquiry because the trial judge—as did the
district judge here—may well state that he was unaffected by the
arguably excessive nature of the government’s argument. See Santobello, 404 U.S. at 262-63,
92 S.Ct. at 498-99. An appellate court should not be obliged to weigh the trial
judge’s credibility in the course of considering whether the breach
had any effect. It does appear that the government was engaged in rather
hard-nosed dealings with the appellant. But we think that Pollard’s
claims of government breaches of the plea agreement, which appear to us to be
very much the product of revisionist thinking on the part of Pollard and his
new counsel, are brought far too late, in this collateral proceeding, to enable
Pollard to prevail. [FN12] Pollard waited three years before complaining about
the government’s allocution. The promise that the government arguably
transgressed, to limit its allocution to the “facts and circumstances
of the offenses committed,” is ambiguous with regard to the types of
statements the government made. The district judge was aware of all the terms
of the plea agreement and did not regard the government’s allocution
as impermissible under the agreement. Even if, as the dissent argues, the
contemporaneous lack of response from the district judge should be given no
weight, see Dissent at 33, the same cannot be said of Pollard’s
counsel, who also made no objection to the government’s allocution.
The sentence Pollard received was within the power of the district court to
impose, both by the terms of the statute under which he pleaded guilty and by
the explicit terms of the plea agreement. Pollard has never denied that he is
guilty of the crimes for which he was imprisoned. See Barker, 514 F.2d at 220
(whether defendant asserts factual innocence is an important factor to be
weighed in deciding whether to permit withdrawal of guilty plea). Nor is there
any allegation that Pollard’s guilty plea was induced by the promise
of a specific sentence, which he subsequently did not receive. Cf. Blackledge
v. Allison, 431 U.S. 63,
97 S.Ct. 1621, 52 L.Ed.2d 136 (1977); Machibroda, 368 U.S. at 490 n.
1, 82 S.Ct. at 511 n. 1. Under such circumstances, it cannot be said that
justice completely miscarried. FN12. Pollard also claims that the government
breached its implied covenant of good faith and fair dealing by
“permitting” Pollard to meet with journalist Wolf Blitzer
without forcing Pollard to seek permission from the Director of Naval
Intelligence, as his plea agreement called for, and then bringing up this
violation of the plea agreement before the judge. Because the government was
under no duty to police Pollard’s compliance with the plea agreement,
and because there is no evidence at all that the government connived to bring
about this violation, we do not see any substance to this claim. III. In a quite unusual case, surely the most extraordinary claim
raised by the appellant is his contention that the district judge improperly
considered information conveyed to him ex parte by the government. This rather
shocking charge is based on an alleged conversation between Chief Judge
Robinson and former Supreme Court Justice Goldberg, who, after having been
contacted by Professor Dershowitz, set out to determine the reasons for
Pollard’s life sentence. The ex parte information is said to indicate
that Pollard passed information to the Israelis demonstrating United
States’ knowledge of secret cooperation between Israeli and South
African defense agencies. The Chief Judge supposedly told Mr. Goldberg that
this information “weighed heavily” in his sentencing
determination. As noted earlier, Arthur Goldberg died shortly thereafter and so
was not available to be questioned. But Dershowitz, we are told, has determined
that Pollard did not in fact pass such information to the Israelis and that it
was not included within the classified summary presented to the district judge
and to Pollard’s counsel at sentencing; Dershowitz then deduces that
the government must therefore have conveyed this information to Chief Judge
Robinson ex parte. Pollard sought a hearing based on the Dershowitz affidavit and,
perhaps more important, asked Chief Judge Robinson to recuse himself. The Chief
Judge refused to recuse and denied the hearing. Pollard claims the district
court abused its discretion. We think very little of this claim. A district judge must grant a prompt hearing under
§ 2255 unless “the motion and the files and records
of the case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255. The [*1031] [**27] decision
whether to do so is committed to the district court’s discretion. See Machibroda, 368 U.S. at 495, 82
S.Ct. at 514. In making this decision, “the judge’s
recollection of the events at issue may enable him summarily to dismiss a
§ 2255 motion”; indeed, his ability to do so is one
of the advantages of § 2255 relative to habeas corpus for
state prisoners. Blackledge, 431 U.S. at 74 n. 4, 97 S.Ct. at 1629 n. 4.
Only where the § 2255 motion raises “detailed and
specific” factual allegations whose resolution requires information
outside of the record or the judge’s “personal knowledge or
recollection” must a hearing be held. Machibroda, 368 U.S. at 495, 82
S.Ct. at 514. Even if the files and records of the case do not clearly rebut
the allegations of the prisoner, no hearing is required where his claims are
“vague, conclusory, or palpably incredible.” Id. The district judge in this case was, of course, intimately
familiar with the record and knew as a matter of fact whether or not the
government had submitted ex parte material to him. The Chief Judge attested
that it had not. He accordingly denied the motion for a hearing. [FN13] We
believe the Chief Judge was well within his discretion to do so. The Dershowitz
affidavit was a very weak submission. It did not suffice to require a hearing
into the question it raised, even if the district judge had not been personally
aware that Professor Dershowitz’s “deductions” were
fallacious. The affidavit included no direct or even hearsay evidence that an
ex parte submission had been received. Furthermore, after examining the
classified material submitted to the district judge, we understand how the
subject of South Africa (if not the Jericho missiles mentioned in the
affidavit) could have been mentioned in a conversation between the Chief Judge
and Arthur Goldberg, without recourse to any ex parte materials. [FN14] FN13. The motion may have been designed
primarily to force the judge to recuse himself. FN14. Indeed, on pages 34-36 of
Pollard’s own Second Memorandum In Aid Of Sentencing, there appears a
section entitled “The South African Affair,” discussing
Pollard’s involvement in intelligence-sharing with South Africa. For similar reasons, we believe that Chief Judge Robinson did not
abuse his discretion in denying Pollard’s motion for disqualification.
Pollard argues that Chief Judge Robinson was required to recuse himself under
28 U.S.C. § 455(b)(1), because he had personal knowledge of
disputed evidentiary facts concerning the alleged ex parte contacts; under
§ 455(b)(5)(iv), because he might have been a material
witness at a hearing on those allegations; and under
§ 455(a), because his deciding the motion alleging misconduct
on his part gave the appearance of bias. The district court did not need to recuse
itself under § 455(b)(1), because only personal knowledge of
disputed evidentiary facts gained in an extrajudicial capacity is grounds for
recusal, and any knowledge Chief Judge Robinson had concerning the
government’s sentencing submissions came directly from his
participation in the case. See United States v. Heldt, 668 F.2d 1238, 1274
(D.C.Cir.1981) (per curiam), cert. denied, 456 U.S. 926, 102 S.Ct. 1971, 72
L.Ed.2d 440 (1982). Likewise, the district court could not be disqualified for
bias, because the bias alleged “must stem from an extrajudicial source
and result in an opinion on the merits on some basis other than what the judge
learned from his participation in the case.” United States v.
Grinnell Corp., 384 U.S.
563, 583, 86 S.Ct. 1698, 1710, 16 L.Ed.2d 778 (1966); Heldt, 668 F.2d at
1274. Finally, Chief Judge Robinson was not required to recuse himself as a
potential material witness, because, as we noted above, he acted within his
discretion in denying a hearing. [FN15] FN15. Assuming arguendo that the district
judge’s refusal to direct the United States Attorney to provide
Pollard’s new counsel with access to the Weinberger classified
submission was erroneous, our examination of the material satisfies us that the
error was harmless. * * * * * * The issue before us as appellate judges is not whether a life
sentence was appropriate punishment for Pollard’s crime, still less
whether we ourselves would have imposed such a sentence. It is rather whether
[*1032] [**28] the appellant
has mounted a sufficient challenge to the actions of the government and the
district judge to clear the formidable barriers to relief in a collateral
attack on his sentence under § 2255. We think not.
Accordingly, we affirm the judgment of the district court. It is so ordered. WILLIAMS, Circuit Judge, dissenting in part: I agree with the majority that the “plea wiring”
was not an unlawful coercion of Pollard’s guilty plea and that Chief
Judge Robinson did not abuse his discretion in refusing to recuse himself or to
conduct a hearing into the claim of ex parte contacts. But because
the government’s breach of the plea agreement was a fundamental miscarriage
of justice requiring relief under 28 U.S.C. § 2255, I
dissent. Before turning to the specifics of the government’s
failure to behave at sentencing as it had promised, there are some preliminary
matters. 1. “Cause and prejudice”: Relief is to be
granted under 28 U.S.C. § 2255, the statutory replacement of
common law habeas, if the petitioner shows a “fundamental defect
[resulting in] a complete miscarriage of justice” or “an
omission inconsistent with the rudimentary demands of fair procedure.”
Hill v. United States, 368
U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962). If the petitioner
failed to lodge a contemporaneous objection to the challenged ruling, and
failed to appeal, then he may also have to show “cause and
prejudice”, the first to excuse his “double procedural
default”, the second to show the actuality of injury from the error.
See United States v. Frady, 456 U.S. 152, 167-68, 102
S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982). The government argues that Pollard
must show cause and prejudice because he failed to object to the
government’s allocution and to appeal his sentence. Because the
majority believes that Pollard has not satisfied even the “fundamental
defect” standard, it need not address “cause and
prejudice”, see Maj.Op. at 15-16, but I must. As the government at no point below asserted the cause and
prejudice standard, it has waived the defense. At best the government may be
said to have grazed the issue. In its Opposition to Motion to Withdraw Guilty
Plea it noted the three-year delay between sentencing and Pollard’s
§ 2255 motion, id. at 5-6, the failure of Pollard to object to
the government’s allocution at the sentencing hearing, id., and
Pollard’s “waiver” of his claim that the government
failed to describe his cooperation adequately, id. at 24 n. 10. But the
government made the first two points solely to boost an argument that Pollard
did not at the time of allocution consider its conduct a breach, and it made
the last in a vague footnote throwaway line without mention of the
“cause and prejudice” standard or citation to any case
invoking that standard. A party demanding strict adherence to principles of
finality is in a weak position to ask that its own lapses be disregarded, and
accordingly the circuit courts have treated government silence as a waiver.
See, e.g., United States v. Hicks, 945 F.2d 107, 108 (5th Cir.1991); United
States v. Hall, 843 F.2d 408, 410 (10th Cir.1988); United States ex rel.
Bonner v. DeRobertis, 798 F.2d 1062, 1066 (7th Cir.1986); but cf. Titcomb v.
Virginia, 869 F.2d 780, 782-84 (4th Cir.1989) (no waiver where
“it would appear” that the state raised the issue in its
second response and where the evidence of the procedural default was part of
record). Finding waiver is especially sensible where, as here, relief can take
the form of an order merely requiring resentencing, not a vacation of the plea,
so that the government is most unlikely to suffer any injury from loss of
memories or other evidence. 2. Deference: My understanding of the scope of our review is
largely similar to the majority’s. We review a trial court’s
interpretation of a plea agreement de novo, just as we review an interpretation
of an ordinary contract de novo (unless the interpretation turns on extrinsic
evidence). See, e.g., HOH Co. v. Travelers Indem. Co., 903 F.2d 8, 12 n. 6
(D.C.Cir.1990) (contract interpretation); [*1033] [**29] United States v. Western
Electric Co., 900 F.2d 283, 294 (D.C.Cir.1990) (interpretation of civil
settlement); see also Maj.Op. at 1022-23. We review a trial court’s
findings of pure fact (what happened) under the clearly erroneous standard. And
we defer to district court findings even on fact-intensive issues of
characterization, such as whether particular conduct, about which there is no
factual dispute, violates a norm that courts have defined with as much clarity
as they can expect to achieve. Thus in Kendrick v. Bland, 931 F.2d 421 (6th
Cir.1991), the court applied the clearly erroneous standard to findings as to whether
specific conduct by prison officials—e.g., cancellation of club
activities—constituted “institution-wide” violations
of a consent decree. The appellate deference in this last category is somewhat
anomalous, as the characterization is in a way part of the law-finding process;
it answers a normative question (whether the conduct was acceptable or not),
and thus in some measure refines the norm. But where the characterization
process is extremely fact-intensive, the appellate decision may not yield a
useful contribution to the formulation of legal rules, so that appellate
judges’ duplication of the trial court’s effort would consume
judicial resources for very little return. [FN1] See Mars Steel Corp. v.
Continental Bank N.A., 880 F.2d 928, 933-36 (7th Cir.1989) (en banc) (Easterbrook, J.).
By the same token, however, review for clear error cannot fade off into
complete deference, else the appellate court’s law-finding (or
law-forming) function would be disconnected from the real world. Moreover,
presumably because of a recognition of the law-forming aspect of fact-intensive
characterizations, the decisions on deference appear replete with
contradictions and inconsistency. See Wright & Miller, Federal Practice and
Procedure §§ 2585-89 (1971 & Supp.1990). Perhaps
one can do no better than to say that there is deference, but that the special
character of the practice informs its nature. FN1. It could be argued that the
interpretation of specific contract language, in the absence of extrinsic
evidence, is also a form of fact-specific characterization. But the
“product” of interpretation is the articulation of a norm,
i.e., a paraphrase of the contract language for application to particular types
of conflicts, so that the process would seem to require appellate courts to
rule de novo so as to achieve uniform rules as nearly as possible. Where a defendant claims that the government’s allocution
breached a plea agreement, there is no deference to the sentencing
judge’s view of the actual effect of the allocution on him or her (as
opposed to the projected or inferred effect on a hypothetical judge). Compare
Maj.Op. at 18-19. This is for the simple reason that the actual effect on the
actual judge is irrelevant. Santobello v. New York, 404 U.S. 257, 92 S.Ct.
495, 30 L.Ed.2d 427 (1971), put any such inquiry out of bounds, perhaps because
the sentencing judge would be in an awkward position making
“findings” about his own state of mind. The Court ordered
relief despite declaring that it had “no reason to doubt” the
judge’s statement that “the prosecutor’s
recommendation did not influence him”. Id. at 262-63, 92 S.Ct.
at 498-99. 3. Principles of plea interpretation: The majority correctly notes
that Pollard’s argument in some respects “rests on
nuance”, Maj.Op. at 21, and that the government did not ask for a life
sentence “in so many words”, id. at 20, or use
“words …. synonymous with a life term”, id. at 20. Without
explicitly setting forth a general approach, the majority appears to apply a
principle that the government should be held only to the letter of its bond. Such an approach puts an impossible burden on contract drafters. A
party cannot anticipate every evasive move that another party may make, or
every opportunity for evasion. Brittle interpretation makes for long contracts,
and even the longest will have loopholes. Accordingly, as with other contracts,
courts ordinarily reject literalism and read plea agreements as a reasonable
person would understand them. United States v. Moscahlaidis, 868 F.2d 1357, 1361
(3d Cir.1989) (citing cases); United States v. Carbone, 739 F.2d 45, 46 (2d
Cir.1984); United States v. Crusco, 536 F.2d 21, 26 [*1034] [**30] (3d Cir.1976)
(criticizing “stubbornly literal” reading of plea agreement).
[FN2] Finding an implicit duty of good faith, though it may sound more drastic,
amounts to the same thing if it is understood as “a stab at
approximating the terms the parties would have negotiated had they foreseen the
circumstances that have given rise to their dispute.” Market Street
Associates Ltd. Partnership v. Frey, 941 F.2d 588, 595 (7th Cir.1991). Thus in United
States v. Bowler, 585 F.2d 851, 853-54 (7th Cir.1978), the court construed a
provision that the government’s sentencing recommendations
“may be reduced, based upon [various] personal factors” to
include an implicit promise to consider the factors specified. See also United
States v. Brown, 500 F.2d 375 (4th Cir.1974) (prosecutor’s statement to
the judge that he recommended three years because of the plea agreement, though
he had “some problems” with this sentence, violates agreement
to recommend no more than three years); Snowden v. State, 33 Md.App. 659, 365
A.2d 321 (1976) (promise to recommend probation breached by prosecutor who did
so but, when asked by the judge whether he still adhered to this promise, said,
“I believe we must, I believe we must”). FN2. The 9th Circuit commonly says that plea
agreements should be interpreted both as a reasonable person would understand
them and literally, see, e.g., United States v. Travis, 735 F.2d 1129, 1132
(9th Cir.1984), despite the apparent contradiction. But the case repeatedly
cited in favor of literalness does not support such a view, United States v.
Garcia,
519 F.2d 1343, 1344 (9th Cir.1975) (finding breach of plea agreement because
government failed to abide even by the literal terms of the
contract—no discussion of whether the violation had to be of the
literal terms for it to be remediable), while the case typically cited for the
reasonable person standard indeed favors the reasonable person perspective, United
States v. Arnett, 628 F.2d 1162, 1164 (9th Cir.1979) (court looks to the facts of
each case to decide what was “reasonably understood by [defendant]
when he entered his plea of guilty,” quoting Crusco, 536 F.2d at 23, 27,
and the terms of agreement are determined by “objective
standards”). Judicial insistence on a reasonable and not a niggling
interpretation for plea agreements is hardly surprising. The defendant has
given up his right to a trial that satisfies due process, so if a plea rests
“in any significant degree on a promise or agreement of the prosecutor
…., such promise must be fulfilled.” Santobello, 404 U.S. at 262, 92
S.Ct. at 498. If fulfillment of the promise is to mean anything, it cannot
refer only to the promise pared to its literal bone. While the government is a
repeat player in this field and has an interest of its own that its word be
good, experience in the commercial world shows that even repeat players lapse.
Here, too, reasonable judicial enforcement not only assures fairness to the
individual who may be the victim of a slip-up or of an agent’s
excessive zeal, but also makes it easier for the government to build confidence
in its word. * * * * * * Pollard’s plea agreement required him to plead guilty and
to cooperate. On its side, the government made three promises of significance
here. First, it would bring to the court’s attention “the
nature, extent and value of [Pollard’s] cooperation and
testimony” and would represent that the information supplied was of
“considerable value to the Government’s damage assessment
analysis, its investigation of this criminal case, and the enforcement of the
espionage laws.” Maj.Op. at 13. Second, it would not ask for a life
sentence (this promise was implicit but is not contested by the government),
though it would be free to recommend a “substantial period of
incarceration”. Id. at 12-13. Third, the government limited its
reserved right of allocution to “the facts and circumstances”
of Pollard’s crimes. Id. at 13. The government complied in spirit
with none of its promises; with the third, it complied in neither letter nor
spirit. Though the government obligated itself to call attention to the
“considerable value” of Pollard’s cooperation, in
its principal sentencing memorandum it buried its sole discussion of that
cooperation in a section entitled “FACTORS COMPELLING SUBSTANTIAL
SENTENCE”. The first paragraph of this section discussed the extent of
Pollard’s offense, saying that he had compromised “thousands
of pages of classified documents”, and recommended a
“substantial [*1035] [**31] period of incarceration”. J.A. 160. The
second paragraph called Pollard’s activities a “flagrant
breach of …. trust”, a breach “all the more venal in
that [despite Pollard’s contrary claims] it is clear that the money
and gifts provided by the Israelis were significant, if not the primary factors
motivating defendant”. Id. at 161. The third paragraph said that
Pollard “will undoubtedly urge the Court also to consider his
post-arrest conduct, i.e., [his] submission of a plea of guilty and his
cooperation ….,” and noted the obvious point that plea
bargaining and cooperation “may be considered by courts at the time of
sentencing.” Id. In paragraph four the government provided nominal
compliance with its promise, saying that Pollard “revealed a
substantial amount of information regarding …. the espionage operation
which was previously unknown to the government” and that this
cooperation “has proven to be of considerable value to the government’s
damage assessment analysis, and the ongoing investigation of the instant
case”. [FN3] Id. at 162. In the fifth paragraph, though acknowledging
that the defendant had been candid and informative, the government told the
court that Pollard delayed his cooperation in order to assist the escape of
three coconspirators, devoting more space to this caveat than to its favorable
words for Pollard’s cooperation. Id. The rest of the
section, of course, went on with further denunciations. FN3. Note the omission of any reference to the
value of Pollard’s cooperation to “the enforcement of the
espionage laws”, the only broad purpose mentioned by the plea
agreement. Thus the government came forth with the magic words “of
considerable value”, and it even mentioned two of the three general
areas of inquiry, specified by the agreement, to which Pollard’s
cooperation contributed. But by placing the discussion square in the middle of
its reasons why the sentence should be substantial, and by its heavy stress on
the cooperation’s imperfections, it succeeded in conveying the
impression that, overall, the value was not “considerable”
but slight. Perhaps the value was slight, but if so, then the government should
not have embraced an obligation to say the contrary. In United States v.
Fisch,
863 F.2d 690 (9th Cir.1988), the court found a plea agreement violated where
the government, though obliged to tell the court of defendant’s
cooperation, neither offered details on its own nor endorsed the defense
account, saying only that defendant had “been cooperating in helping
prosecute the coconspirators”. The government’s breach here
is no less. It is not clear from the district court’s rejection of
this claim whether the court construed the agreement as leaving the government
free to convey the message that Pollard’s cooperation, while
containing some elements of considerable value, was on an overall basis not
worth much, or whether the court found that the government had said that the
cooperation was of considerable value overall. See United States v. Pollard, 747 F.Supp. 797, 804
(D.D.C.1990). If the first, I think the contract interpretation was wrong; if
the second, I believe the finding was clear error. On the promise not to ask for a life sentence, the government
coupled its adherence to the letter with an even more flagrant violation of the
agreement’s spirit. It presented memoranda from Secretary of Defense
Weinberger saying that “no crime is more deserving of severe
punishment than conducting espionage activities against one’s own
country”, J.A. 467, that “it is difficult for me ….
to conceive of a greater harm to national security than that caused by the
defendant”, id. at 263, and that “the punishment imposed should
reflect the perfidy of [his] actions, the magnitude of the treason committed,
and the needs of national security”, id. at 264. While these remarks did not expressly endorse a life sentence (or
use a synonym, compare Maj.Op. at 20-21), the repeated use of superlatives
implied an appeal for the maximum. Weinberger’s reference to treason
took the point further. Whereas treason carries the death penalty, 18 U.S.C. § 2381,
and involves aiding the nation’s enemies, U.S. Const., Art. III,
§ 3, cl. 1, Pollard was charged with espionage, carrying a
maximum of life imprisonment and [*1036] [**32] encompassing aid even to friendly
nations—here, Israel. Of course the sentencing judge knew the
difference, but the government’s barrage expressed a viewpoint that
the government had promised not to express. Weinberger’s subtext was
that the heaviest possible sentence was the lightest that was just. The trial
court’s conclusion to the contrary, 747 F.Supp. at 803, was clearly
erroneous. That the government had reserved the right to seek “a
substantial period of incarceration” does not change the analysis.
Compare Maj.Op. at 13. Of course the government remained free to lay out the
details of the crime and its impact on national security. These, coupled with
an explicit plea for a substantial sentence, might well have secured the
government’s objective. But the availability of these methods scarcely
entitled it to wheel out the heaviest rhetorical weapons, calling for a life
sentence in all but name. Finally, despite its agreement to confine its allocution to
“the facts and circumstances” of the offenses, the government
told the district judge that Pollard’s expressions of remorse were
“both belated and hollow”, J.A. 371, and “grounded
in the fact he was caught” (emphasis in original), id.; that Pollard was a
“recidivist” who was “contemptuous of this
Court’s authority” and “unworthy of trust”,
id.
at 359; that Pollard felt “blind contempt” for the U.S.
military, id. at 318, and had a “warped” and
“skewed” perspective, id. at 319; that Pollard was
“traitorous”, id. at 369, “arrogant [and]
deceitful”, id. at 315 (and see id. at 316, 320), “without
remorse”, id. at 179 (and see id. at 163), and “literally
addicted to the high lifestyle funded by his espionage activities”, id. at 167. The
assistant U.S. Attorney noted that he (the assistant) had been brought up to
regard two sins as “unforgivable”, arrogance and
deception—id. at 313, precisely the two sins that he repeatedly
imputed to Pollard. Pollard’s “loyalty to Israel transcends
his loyalty to the United States,” said Secretary Weinberger. Id. at 265. The
government devoted much space to marshalling evidence that Pollard was driven
by greed (“enamored of the prospect for monetary gain”, id. at 165; motivated by
“the lure of money”, id. at 168), and not materially affected
by anti-terrorist concerns, id. at 164-69, or, by implied extension, by any
sympathy for Israel. The government contends that in the phrase by which it retained
“full right of allocution at all times concerning the facts and
circumstances of the offenses”, the limiting reference to
“facts and circumstances” was a nullity. This is hard to swallow.
As the majority points out, the contrast with the language in Anne
Pollard’s plea agreement suggests that here the parties intended to
exclude some otherwise acceptable elements of an allocution. See Maj.Op. at 23.
I agree with the majority that “facts and
circumstances” include matters going to Pollard’s motivation.
But one can address motive by detailing specifics, leaving the moral and legal
conclusions alone, to be settled by the judge. This is the line drawn by the
court in Moscahlaidis. There the government was obliged by its agreement to
“take no position” on the sentence, but was allowed to speak
of “the full nature and extent of [the defendant’s]
activities with respect to this case”. 868 F.2d at 1359. The court found
that the agreement barred the government from asserting its opinion of the
defendant’s character with phrases alluding (for example) to
“the depth of [his] greed and moral bankruptcy” and a
“demonic pursuit demonstrat[ing] [his] utter contempt for the welfare
of his fellow man”, id. at 1362. Though the structure of the
agreement was different from Pollard’s, the Third Circuit’s
line—between fact and opinion—makes equal sense here. [FN4] FN4. Although the court in Moscahlaidis relied
in part on the government’s having obliged itself to “take no
position” on sentencing, this hardly makes the decision irrelevant.
Compare Maj.Op. at 23. There the language allowing government commentary was
broader—“the full nature and extent of [defendant’s]
activities”. 868 F.2d at 1362. Without the “take no
position” constraint, this might well have left it free to say
anything. Here the “facts and circumstances” language is
narrower, and, as was true of “full nature and extent” in
Moscahlaidis, its meaning is shaded by a related obligation—not to
seek a life sentence. See also the passage two paragraphs below, noting the
synergies in the government’s promises. [*1037] [**33] So the government was free to relate not only the
intelligence implications of Pollard’s acts, but also details
supporting an inference that his motive was pecuniary. But if the limit meant
anything, it could not allow the government to wrap the raw facts in an
inflammatory rhetoric, endlessly alluding to its (necessarily subjective)
opinions that Pollard was greedy and immoral, depicting his conduct as the
apogee of espionage, naming him a traitor, and delivering a tirade on his
“arrogance and deceit”. Taken together, the government’s three promises worked a
substantial restraint on the government’s allocution. Its commitments
to restrict itself to facts and circumstances, and to assess Pollard’s
cooperation as having considerable value, closed off a means by which it might
demand a life sentence in all but name. Safely after the fact, the
government’s briefing here undermines its commitment, isolating the
components of the promise in order to conceal their synergies. Is it troubling that the breaches involve matters of rhetoric? It
means, of course, that the violation cannot be measured mathematically. But
that is often true in contract disputes—most obviously whenever courts
enforce express or implied duties of “reasonable”
performance. Further, courts frequently draw the line between facts and legal
or moral conclusions in classifying the testimony of lay witnesses. See
Fed.R.Evid. 701; compare United States v. Slade, 627 F.2d 293, 305
(D.C.Cir.1980) (finding lay references to defendant’s drug
“organization” to be equivalent of improper assertion of
conclusion that it was conspiracy) with Williams Enterprises, Inc. v.
Sherman R. Smoot Co., 938 F.2d 230, 233-34 (D.C.Cir.1991) (permitting lay testimony
by insurance broker on relation between accident and insured’s
increased premium). Is rhetoric simply too trivial? To say so would, I think,
buck prevailing views of human psychology. When the majority relies on the district
judge’s failure to note a breach at the time of the allocution, see
Maj.Op. at 25-26, it assumes that the judge was unaffected by the
government’s efforts to disparage Pollard’s character,
thereby resolving an unanswerable question and perhaps violating Santobello,
which ordered relief despite the trial judge’s
assertion—accepted by the Court—that the improper allocution
had not influenced him. 404 U.S. at 262, 92 S.Ct. at 498. Do the breaches amount to the “complete miscarriage of
justice” required for relief under § 2255? The cases
under § 2255 (and § 2254), [FN5] quite
frankly, leave a gap between two patterns—conduct clearly violating even
the literal language of the agreement (eliciting relief), and conduct varying
from the agreement only trivially (eliciting none). Typical of the first
pattern is Brunelle v. United States, 864 F.2d 64, 65 (8th Cir.1988), where
despite an agreement to recommend an “unspecified period”,
the government expressly suggested the maximum. See also United States v.
Birdwell, 887 F.2d 643 (5th Cir.1989) (where incorporation of a state plea
agreement into a federal one induces defendant to accept the latter, the state
authorities’ failure to follow through undermines the federal plea); Smith
v. Blackburn, 785 F.2d 545 (5th Cir.1986) (state’s promise that
defendant would be released upon parole breached when parole was denied); Carbone, 739 F.2d 45
(prosecutor’s objection to defendant’s request for sentence
allowing early parole violated promise to make no recommendation); United
States v. Mercer, 691 F.2d 343 (7th Cir.1982) (failure by court to allow defendant
to withdraw plea, when conditions specified in the agreement as permitting
withdrawal occurred, required vacation of plea); Correale v. United States, 479 F.2d 944 (1st
Cir.1973) (where prosecutor promised to recommend sentence that would make
defendant eligible for federal parole when he received parole under state
sentence, noncomplying recommendation breached promise and entitled defendant
under § 2255 to resentencing). FN5. The discrepancy between the
majority’s survey of one hundred cases, Maj.Op. at 25-26, and this
account, which is illustrative only, is that the majority leaves out the
§ 2254 cases. On the other side is United States v. Benchimol, 471 U.S. 453, 105 S.Ct.
[*1038] [**34] 2103, 85
L.Ed.2d 462 (1985), where the government had agreed to recommend probation,
and, when defense counsel informed the court of the agreement, the assistant
U.S. attorney said, “That is an accurate representation.” Id. at 455, 105 S.Ct. at
2104. The Court refused to upset the sentence under § 2255,
viewing it as a case where the prosecutor simply “left an impression
…. of less-than-enthusiastic support for leniency.” Id. at 456, 105 S.Ct. at
2105 (inner quotations omitted). Benchimol scarcely helps the government much
here. It is one thing to say that the government need not fulfill its
obligations with gusto, or with the right tone of voice, and quite another to
say that it may fill its allocution with ardent declamations that wholly
undermine any nominal compliance. On the facts the closest case is Moscahlaidis, where the
government similarly loaded its allocution with inflammatory rhetoric
inconsistent with the reasonable meaning of the agreement. See p. 32 above.
There the court, on appeal, ordered relief. As the “miscarriage of
justice” standard is more demanding than the standard of review on
appeal, Moscahlaidis would not control this case even in the Third Circuit. But
how much more should be required? In the nature of things the difference in
standards is elusive. It arises, moreover, out of the fact that in the ordinary
habeas case the defendant’s prior failure to object makes any remedy
more costly for the system than it would have been: in a new trial, the
government will be hobbled by the staleness of its evidence and the risk of an
erroneous acquittal will be higher. Where the remedy is not markedly more
burdensome than it would have been on appeal (resentencing only), the increment
implicit in “fundamental defect” should be correspondingly
modest. It is hardly surprising that the exact stringency of the
“fundamental defect” standard should vary with the context.
The scope of a right may turn on the character of the remedy sought. Much of
the law of equitable remedies revolves around the point that courts may treat
the same conduct as actionable when the plaintiff seeks damages and not
actionable when he seeks an injunction. See, e.g., Restatement (Second) of
Torts § 941 & comment c (1979) (injunctive relief should
be withheld for nuisances where balance of hardships so dictates, even though
damages are to be awarded); Harrisonville v. W.S. Dickey Clay Manufacturing
Co., 289 U.S. 334, 53 S.Ct.
602, 77 L.Ed. 1208 (1933) (same); York v. Stallings, 217 Or. 13, 341 P.2d
529 (1959) (same); Stuttgart Electric Co., Inc. v. Riceland Seed Co., 33 Ark.App. 108,
802 S.W.2d 484 (1991) (encroachment warrants remedy of damages, not of
injunction). In ordinary contract law (the closest parallel to plea agreement
rules), an obligee who like appellant fails to protest a breach immediately may
lose his right to cancel the agreement (paralleling vacation of the plea) but
not his right to damages (paralleling resentencing). See, e.g., UCC
§§ 2-711, 2-714 (buyer has option upon delivery of
rejecting nonconforming goods or of obtaining damages; within reasonable time
after delivery he may only obtain damages). Further, exactly the same phrase
may have different meanings even within the same rule. While appellate courts
review all factual findings of district courts under the “clearly
erroneous” standard, whether “based on oral or documentary
evidence”, Fed.R.Civ.P. 52(a), the Rule also instructs that
“due regard shall be given to the opportunity of the trial court to
judge of the credibility of the witnesses”, giving the latter type of
evidence a special status. The majority suggests that as the Advisory Committee notes on the
1983 amendment to Fed.R.Crim.P. 32(d) endorsed the “complete
miscarriage of justice” standard for § 2255,
Congress’s failure to reject the amendment affirms that view of
§ 2255. Maj.Op. at 24 n. 10. The argument is quite persuasive
as to plea withdrawals, which are the sole subject of Rule 32(d) and
(therefore) of the Committee’s discussion, but the sequence surely
affords little evidence that Congress addressed either the standard for
§ 2255 requests for resentencing, or the character of the
“fundamental defect” standard as applied to such relief.
Here, then, as a remand for resentencing would preserve the plea, that relief
should be given if the government’s misconduct in allocution—the
gap between its [*1039] [**35] actual and its promised conduct—was so great as to
create a serious likelihood that a judge [FN6] would have given a harsher
sentence. [FN7] The gap here seems easily broad enough to create that risk. FN6. Measured by Santobello’s
objective standard, not by reference to the particular sentencing judge. FN7. The majority’s statement that
this test would require resentencing where “a defendant would have
received …. a prison term of 11 months rather than a year”,
Maj.Op. at 25, misconceives my position. Deciding whether the
government’s breach created a serious likelihood of an effect on a
hypothetical judge is completely independent of the penalty imposed. Pollard’s sentence should be vacated and the case
remanded for resentencing. This should occur before a new judge, as Santobello
indicates, even though “the fault here rests on the prosecutor, not on
the sentencing judge.” 404 U.S. at 263, 92 S.Ct. at 499. See also Moscahlaidis, 868 F.2d at 1363 n.
7 (same); Corsentino, 685 F.2d at 52. * * * * * * Though I do not wish to be too critical of the government, and
though the analogy is inexact on some points, the case does remind me of
Macbeth’s curse against the witches whose promises—and their
sophistical interpretations of them—led him to doom: And be these juggling fiends no more
believ’d, That palter with us in a double sense; That keep the word of promise to our ear, And break it to our hope. Macbeth V, vii, 48-51. ORDER May 28, 1992. Before: RUTH B. GINSBURG, SILBERMAN, and WILLIAMS, Circuit Judges. It is ORDERED, by the court, that the motion of Alan M.
Dershowitz, Esq., for leave to enter an appearance is granted, and the Clerk is
directed to so note the docket and to file his lodged Motion to Alter or Amend
Opinion. Upon consideration thereof, it is FURTHER ORDERED, by the court, that the motion is granted, and the
Opinion filed by Circuit Judge Silberman on March 20, 1992, is amended as follows: [Editor’s Note: Amendments included in bound volume
publication of the opinion.] |