ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE.
Adams, Hunter and Becker, Circuit Judges. Adams, Circuit Judge, concurring.
In May, 1981, appellant Herbert Baylin pled guilty to a one-count income tax violation. He entered the plea pursuant to a plea agreement in which the Government promised, inter alia : (1) not to prosecute Baylin, his corporation, or any of its employees, for any of several enumerated offenses; and (2) to "remain silent" in connection with sentence. In July, 1981, Baylin was sentenced to three years in prison.
Baylin then moved, pursuant to 28 U.S.C. § 2255 (1976) and Fed. R. Crim. P. 35, to correct or reduce his sentence. The district court denied his motion. Baylin has appealed,*fn1 renewing the three principal contentions he advanced in the district court in support of his motion. First, Baylin asserts a breach of the substantive terms of the plea bargain, contending: (a) that his plea agreement required that if a sentence of over one year was imposed, he would serve no more than one-third of the sentence; (b) that the application of the U.S. Parole Commission Guidelines, 28 C.F.R. § 2.20 (1982), frustrated the agreement because neither party considered the effect the Guidelines might have had on the agreement; and (c) that, under Fed. R. Crim. P. 11(c), the judge who received the plea should have informed Baylin of the potential impact of the Guidelines on the duration of his incarceration. Second, he asserts that the district court improperly enhanced his sentence on the basis of the United States Attorney's bare promise not to prosecute certain charges, even though: (a) the Government had already abjured possible prosecution of those charges and had claimed not to have any evidence to support them, and (b) the promise not to prosecute was included in the plea agreement at Baylin's own request, and solely for his protection. Third, Baylin contends that the Government breached its promise to "remain silent" when it allowed the probation officer preparing the presentence investigation ("PSI") report to have access to certain Internal Revenue Service ("IRS") investigative reports located in the United States Attorney's files and pertaining to Baylin's involvement in other tax violations. In addition, Baylin has asked that on remand his case be assigned to a different judge, arguing that the original sentencing judge would be unable to escape the influence of his allegedly improper decisions on resentencing. The Government disputes these contentions and argues that Baylin's failure to raise a contemporaneous objection to the claim that the Government breached its promise to remain silent to the contents of the PSI report constituted a waiver of that objection.
For reasons that appear below, we conclude that the substantive terms of Baylin's plea agreement were satisfied; that Rule 11 does not require the court to outline for a defendant the consequences of the Parole Commission Guidelines before accepting his plea; that the district court, in determining Baylin's sentence, drew an impermissible inference from the Government's agreement not to prosecute; and that while Baylin's failure to raise a contemporaneous objection to the contents of the PSI report did not constitute a waiver of that objection, the objection is without merit because the agreement to "remain silent" did not imply that the Government would close its files to the probation office. In light of these conclusions we remand for resentencing, but we reject Baylin's request that we order his case to be assigned to a different district judge on remand.
I. The Proceedings in the District Court
On May 20, 1981, Baylin concluded a plea agreement with the United States Attorney for the District of Delaware. In return for Baylin's plea and his promise to assist the Government in investigating certain diversions of foreign shipments, the Government agreed: (1) not to prosecute Baylin for tax violations other than the one to which he pled; (2) not to prosecute him for any involvement in diverting foreign shipments or receiving stolen goods; (3) to incorporate certain provisions regarding parole into Baylin's sentence;*fn2 and (4) "to remain silent and to make no recommendation . . . as to the nature and length of sentence, if any, to be imposed by the Court upon the Defendant, and . . . not to oppose, or to take any position with respect to, any request which the Defendant may make for a particular sentence." (App. 34). Pursuant to that agreement, the Government filed a one-count information charging Baylin with a violation of 26 U.S.C. § 7206(2) (1976) (assisting a corporation in filing a false tax return) for the fiscal year ending April 30, 1976. Following a hearing on May 20, 1981, the district court approved the plea agreement and accepted Baylin's plea of guilty.
On July 8, 1981, Baylin's counsel received a copy of the PSI report. Included in that report was information that the probation officer had obtained from the United States Attorney's files, including information from an IRS investigation concerning Baylin's involvement in tax violations for years other than 1976. Nonetheless, Baylin raised no objection to the contents of the report at that time or when he appeared for sentencing on July 22, 1981.*fn3
At the sentencing hearing, Baylin sought a lenient sentence, relying primarily upon his extraordinarily fine reputation in the Wilmington community and his impressive record of community service. The court, however, rejected Baylin's request for leniency and imposed the maximum available sanction -- three years in prison and a $5,000 fine. In its statement prior to sentencing, the district court observed that the case was "the worst [tax evasion] case that I have seen." The court acknowledged its reliance upon the information in the PSI report concerning other tax violations.*fn4 Finally, the court took "judicial notice" that the agreement not to prosecute Baylin for receiving stolen goods or for diverting foreign shipments "reflect[ed] adversely" on Baylin's character.*fn5 In accordance with the plea agreement, the court made Baylin immediately eligible for parole under the terms of 18 U.S.C. § 4205(b) (2) (1976).*fn6
Baylin began serving his sentence on August 8, 1981. In September, 1981, the Parole Commission reviewed his sentence and determined that he should not be paroled outside his guideline range (24-36 months). This decision effectively insured that Baylin would serve most of his three-year term.*fn7
On November 13, 1981, represented by new counsel, Baylin filed the first of his two post-sentence motions. This initial motion urged two related grounds for relief. First, Baylin asserted that both he and the Government had intended that he should serve no more than one-third of any sentence imposed in excess of one year, and that this intention had been embodied in the plea agreement. Second, Baylin urged that the judge who had accepted his plea at his Rule 11 hearing had violated Rule 11(c) (1)*fn8 by failing to inform him that the Parole Commission Guidelines would most likely determine how long he would be incarcerated.
The district court rejected both contentions. United States v. Baylin, 531 F. Supp. 741 (D. Del. 1982) (" Baylin I "). The court first noted that by sentencing Baylin under section 4205(b) (2), thereby making him immediately eligible for parole, it had fulfilled the written plea agreement. Because Baylin had admitted at his Rule 11 hearing that the written agreement (quoted supra at note 2) embodied the entire agreement between him and the Government, the court concluded that its sentence satisfied the terms of the agreement. The district court rejected Baylin's second claim on the ground that Rule 11 requires the court to inform the defendant only of the maximum possible and mandatory minimum terms of years associated with his plea.*fn9
Baylin then filed an amended motion raising two additional claims. First he argued that the Government, by giving the probation officer access to its files for compiling a PSI report, had violated its agreement to "remain silent." Second, he contended that the sentencing judge improperly inferred from the mere agreement by the Government not to prosecute that Baylin was involved in receiving stolen goods and diverting foreign shipments. Baylin again asked for resentencing, and requested that he be resentenced by a different judge.*fn10
The district court did not decide whether the Government's agreement "to remain silent" required it to prevent any information in its files from reaching the sentencing judge by way of the PSI report. Instead the court concluded that the public policy expressed in 18 U.S.C. § 3577 (1976) (quoted infra at p. 1040) imposes a duty on the United States Attorney to make all information about a defendant available to a sentencing judge, and that any agreement by the Government to withhold the IRS material would therefore be void and unenforceable. United States v. Baylin, 535 F. Supp. 1145 (D. Del. 1982) (" Baylin II ").
To justify its consideration of the Government's agreement not to prosecute as a factor in determining Baylin's sentence, the court relied upon the case law affording broad discretion to a sentencing judge to consider all information it deems appropriate short of misinformation or unreliable data. The court stated that the agreement "certainly gives rise to a permissible inference that Baylin may have participated in certain of these illicit activities," and that its conclusion that this was "a negative reflection on Baylin's character . . . is not so inconceivable as to constitute 'misinformation of constitutional magnitude. ' . . ." Baylin II, at 1153-1154 (quoting United States v. Tucker, 404 U.S. 443, 447, 30 L. ...