APPEAL FROM THE UNION STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Crim. No. 77-77)
Before Aldisert, Van Dusen and Hunter, Circuit Judges.
Title 18 U.S.C. § 1623 was enacted in 1970 as part of the Organized Crime Control Act to provide that one who under oath "in any proceeding before or ancillary to any court . . . of the United States knowingly makes any false material declaration" is guilty of the offense of false declarations. The statute further provides that an indictment alleging that "the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if (1) each declaration was material to the point in question, . . ."*fn1
The question for decision in this appeal following conviction under the Act is whether there was sufficient evidence to convict on the theory that appellant made statements under oath at a Rule 11 guilty plea hearing on June 2, 1975, that were inconsistent with those made at a subsequent proceeding under 28 U.S.C. § 2255 to vacate the guilty plea. In a non-jury proceeding the district court found the statements to be inconsistent and material to the points in question. We affirm.
Although appellant has pressed other arguments, his major contention is that prior to the amendment of Rule 11 on July 31, 1975, establishing a plea agreement procedure,*fn2 there was a widespread practice of " "routinely lying' under oath at Rule 11 colloquies." Appellant's Brief at 19. He argues that it is manifestly unfair to single him "out of the thousands of defendants who took their oaths with crossed fingers and who swore with forked tongues that their guilty pleas had not been induced." Appellant's Brief at 20.*fn3 Distilled to its essence, appellant's argument is that his plea was received before the Rule 11 amendment; that prior to the July 31, 1975 amendment, courts in this circuit were not hospitable to negotiated pleas, and that prosecutors and defendants therefore participated in charades to withhold the realities of negotiated pleas from the courts. Accordingly, he argues that as a matter of law, he could not "knowingly" have made a false declaration at the reception of the guilty plea. It thus becomes necessary to review this court's cases in order to determine whether plea bargaining in the courts of this circuit was on June 2, 1975, in appellant's words, a "freshly minted" judicial experience.
As early as 1966 we noted the practice of plea bargaining in Norman v. United States, 368 F.2d 645, 647 n.8 (3d Cir. 1966). We were hospitable to a habeas corpus contention in 1969 that a "commitment" as to sentence had been breached in a guilty plea received in a state court, United States ex rel. Fink v. Rundle, 414 F.2d 542 (3d Cir. 1969), and two years later we carefully analyzed a colloquy to determine whether there was "a form of implicit plea bargaining." Bannister v. United States, 446 F.2d 1250, 1252-53 (3d Cir. 1971) (in banc, opinion of Biggs, J.). By 1971 the Supreme Court referred to plea bargaining as "an essential component of the administration of justice," stating that "properly administered, it is to be encouraged." Santobello v. New York, 404 U.S. 257, 260, 92 S. Ct. 495, 498, 30 L. Ed. 2d 427 (1971). Thereafter, this court stated, clearly and forthrightly: "There is nothing inherently wrong in honest plea bargaining." United States ex rel. Culbreath v. Rundle, 466 F.2d 730, 735 (3d Cir. 1972). This statement by us was almost three years before the district court accepted appellant's guilty plea on June 2, 1975.
In Masciola v. United States, 469 F.2d 1057, 1059 (3d Cir. 1972), we held that the due process lesson of Santobello was inapplicable where no promise or understanding had been breached by the Government prosecutor, and in Paradiso v. United States, 482 F.2d 409, 413 (3d Cir. 1973), we announced that, as a "prophylactic" measure, plea bargains should be placed on the record. In Moorhead v. United States, 456 F.2d 992 (3d Cir. 1972), we held that a federal defendant was entitled to an evidentiary hearing on an application pursuant to 28 U.S.C. § 2255 in which it was alleged that his counsel had made an actual out-of-court misrepresentation as to a "proposition" or arrangement relating to the guilty plea. Procedures were further refined in United States v. Valenciano, 495 F.2d 585, 587-88 (3d Cir. 1974). United States v. Hawthorne, 502 F.2d 1183 (3d Cir. 1974), reaffirmed the precepts announced in Moorhead and Valenciano, and in United States v. Dixon, 504 F.2d 69, 72 (3d Cir. 1974), we explicitly reaffirmed our statement in Paradiso.
This formidable litany of cases that recognized plea bargaining as early as 1966 and thereafter implemented the procedure as an effective instrument of administering criminal justice compels a rejection of appellant's major contention that prior to the 1975 amendment of Rule 11, the courts in this circuit were inhospitable to plea bargains. Appellant's basic contention flies in the face of irrefragable judicial experience.
We are left to determine whether the appellant's statements were "inconsistent to the degree that one of them is necessarily false" and, if so, whether "each declaration was material to the point in question." 18 U.S.C. § 1623(c). At the guilty plea hearing Stassi testified under oath that no "promises" or "indications" had been made concerning the sentence that would be imposed by the court upon accepting a guilty plea.*fn4 In February 1976, Stassi filed a pro se motion for the withdrawal of his plea, alleging, Inter alia, that "the government did not live up to its plea bargain arrangements, which was a promise of a sentence not to exceed two (2) years." Appendix at 31a. When appellant appeared for the motion, Judge Stern appointed Roger A. Lowenstein, the experienced Federal Public Defender for the District of New Jersey, to represent him. The judge directed counsel's attention to his opinion in Martinez v. United States, 411 F. Supp. 1352 (D.N.J.1976), in which he suggested at length the possibility of perjury prosecution against those who lied during Rule 11 proceedings or in subsequently filed § 2255 actions.*fn5
Emphasizing the views he had previously expressed in Martinez, Judge Stern specifically addressed the Public Defender:
The Court: Now, in fairness to you, I want you to familiarize yourself with that. Finally, I do not know what the defendant intends to do here but I remind you as his counsel that he was under oath at the time of the Rule 11 proceeding and ...