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November 12, 1980

Peter J. SERUBO, W. Thomas Plachter, Jr. and Donald H. Brown

The opinion of the court was delivered by: LORD, III


Defendant Serubo has moved to dismiss counts I, IV, VIII and IX of the indictment. For the reasons which follow, I shall grant this motion.

 I. Preliminary Statement

 The three defendants were indicted on March 13, 1978 for violations of the Internal Revenue Code. *fn1" Plachter and Brown entered Zudick pleas to all counts on September 5, 1978, the day trial was to begin. See United States v. Zudick, 523 F.2d 848, 851-52 (3d Cir. 1975). Serubo chose to be tried. However, on the seventh day of trial, he entered into a plea bargain with the Assistant United States Attorney. He agreed to and did enter a Zudick plea to counts II (personal tax return for 1971), III (personal tax return for 1972), and X (corporate tax return for Plachter-Serubo Cadillac Co. for 1973) of indictment Crim. No. 78-71. In return, the Government agreed to dismiss with prejudice counts I (conspiracy count), IV (personal tax return for 1973), VIII (corporate tax return for Plachter-Serubo Cadillac Co. for 1971), and IX (corporate tax return for 1972).

 The three defendants then appealed their convictions, a right they had expressly reserved in the plea bargain under the Zudick procedure. Compare Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973) ("When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the guilty plea.") with Zudick, 523 F.2d at 851 ("(Zudick ) guilty pleas fall within an exception to the Court's general rule that a voluntary and intelligent guilty plea bars subsequent constitutional challenge to the proceedings.") (citing cases). They contended that prosecutorial misconduct had tainted the grand jury proceedings in the first indictment. The district court, on remand from the Third Circuit, agreed; it therefore dismissed the indictment without prejudice. *fn2" See United States v. Serubo, 604 F.2d 807 (3d Cir. 1980); United States v. Serubo, Crim. No. 78-71 (E.D.Pa. April 29, 1980) (upon remand).

 The present indictment, Crim. No. 80-203, was returned by another grand jury on July 2, 1980. *fn3" It is almost identical to the earlier indictment, Crim. No. 78-71. *fn4" In particular, Serubo is charged with the same tax fraud violations that the Government earlier had agreed to dismiss with prejudice as part of the Zudick plea bargain. He has moved to dismiss these four tax fraud counts because, he argues, he fully performed his part of the Zudick plea bargain by entering a guilty plea; therefore, he contends, the Government must be held to its promise to dismiss the remaining counts with prejudice.

 II. Precedent

 The Government argues that "(w)here a plea bargain results in the dismissal of counts (or reduction of charges), and the plea is later successfully attacked, the Government may reindict and reprosecute on all original charges, including those which were dismissed (or reduced) as part of the bargain." Government's Memorandum of Law in Opposition to Defendant's Motion to Dismiss at 20. The cases cited by the Government do indeed support this rule of law. See Hawk v. Berkemer, 610 F.2d 445 (6th Cir. 1980); Hardwick v. Doolittle, 558 F.2d 292 (5th Cir. 1977); United States v. Johnson, 537 F.2d 1170 (4th Cir. 1976); United States v. Williams, 534 F.2d 119 (8th Cir. 1976); United States v. Anderson, 514 F.2d 583 (7th Cir. 1975); United States v. Rines, supra; United States ex rel. Williams v. McMann, 436 F.2d 103 (2d Cir. 1970); Ward v. Page, 424 F.2d 491 (10th Cir. 1970); United States v. Myles, 430 F. Supp. 98 (D.D.C.1977), aff'd, 186 U.S. App. D.C. 330, 569 F.2d 161 (D.C.Cir. 1978). However, these cases are distinguishable from the present case because none involved Zudick -type conditional guilty pleas where the appeal is part of the bargain. Rather, in each case, the defendant revoked "his part of the bargain," McMann, 436 F.2d at 106, by successfully attacking his conviction on appeal, thereby undermining "the condition precedent to the Government's agreement not to (re-) prosecute." Anderson, 514 F.2d at 587. See, e.g., Hawk v. Berkemer, supra (successful attack of guilty plea because trial judge failed to inquire whether defendant understood the nature of the charge and his fifth amendment right not to testify; the court noted that defendant withdrew from his part of the guilty plea bargain, 610 F.2d at 448).

  In the ordinary case, allowing reprosecution on all original charges, after a defendant has successfully attacked his guilty plea conviction, remedies the defendant's breach of his "contract," cf. Government of Virgin Islands v. Scotland, 614 F.2d 360, 364 (3d Cir. 1980) (analogizing the plea bargaining process to contract principles), with the prosecutor. Indeed, the Supreme Court has encouraged the use of guilty pleas in the criminal process in part because they "lead to prompt and final disposition" of criminal cases. Santobello v. New York, 404 U.S. 257, 261, 92 S. Ct. 495, 498, 30 L. Ed. 2d 427 (1971). See also Scotland, 614 F.2d at 364 ("prompt punishment"). Expedited prosecution saves prosecutorial resources. Id. When, however, a defendant takes a non-Zudick appeal from his conviction, the prosecutor loses the benefit of the bargain. If reprosecution were barred after such a successful appeal, this "would encourage gamesmanship of a most offensive nature. Defendants would be rewarded for prevailing upon the prosecutor to accept a reduced charge and to recommend a lighter punishment in return for a guilty plea, when the defendant intended at the time he entered that plea to attack it at some future date." McMann, 436 F.2d at 106-07.

 By contrast, there are different considerations in a Zudick situation, for appeal of this guilty plea is both foreseeable and part of the bargain. When a defendant has fully performed his obligations, the need to deter offensive "gamesmanship" disappears. Therefore the cases relied upon by the Government are inapposite. It is one thing to penalize for breach of contract; it quite another to penalize for strict adherence to the terms of the contract.

 III. General Principles

 The issue, then, is whether successful appeal of a conditional guilty plea precludes reprosecution of those counts that the Government agreed to dismiss with prejudice as part of the plea bargain. Neither the research of counsel nor ours has revealed any case on point. However, the federal courts have not been loathe to order performance of plea bargain agreements by the government, e.g., Correale v. United States, 479 F.2d 944 (1st Cir. 1973), even if this compelled dismissing an indictment, e.g., United States v. Lieber, 473 F. Supp. 884 (E.D.N.Y.1979); United States v. Phillips Petroleum Co., 435 F. Supp. 622 (N.D.Okl.1977); United States v. Minnesota Mining & Manufacturing Co., 428 F. Supp. 707 (D.Minn.1976). "The most meticulous standards of promise and performance must be met by prosecutors engaged in negotiating such agreements." Phillips Petroleum, 435 F. Supp. at 640, citing Correale, supra.

 Santobello, 404 U.S. at 263, 92 S. Ct. at 499, recognized the power of trial courts to order specific performance of plea agreements. Such judicial power does not violate the doctrine of separation of powers, because it derives from the court's exercise of its supervisory powers. United States v. Paiva, 294 F. Supp. 742, 745-47 (D.D.C.1969). See Zudick, 523 F.2d at 852 ("We have not hesitated in the past to express, in the exercise of our supervisory powers, what would best further the administration of criminal justice within this Judicial Circuit."); United States v. Lieber, 473 F. Supp. at 895; see also, e.g., Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); United States v. Criden, 633 F.2d 346 at 354, (3d Cir. 1980). Indeed, " "our supervisory powers must be used to protect the purity of the Government and its process.' " Paiva, 294 F. Supp. at 746, quoting Dixon v. District of Columbia, 129 U.S. App. D.C. 341, 394 F.2d 966, 970 (D.C.Cir.1968).

 Therefore, if it appears that the defendant performed his part of the agreement while the Government did not, the indictment may be dismissed in the discretion of the trial court, Paiva, 294 F. Supp. at 747, for "the government should not be allowed simply to renege in its promises." Lieber, 473 F. Supp. at 894-95. See also United States v. Carter, 454 F.2d 426 (4th Cir. 1972) (en banc). Although some cases have suggested that actual prejudice to the defendant is the touchstone of the remedy of specific performance of the plea bargain, e.g., Paiva, supra, other cases suggest that defendant need not meet such a high standard, e.g., Lieber, 473 F. Supp. at 894-95. The ...

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