On Appeal from the United States District Court for the District of New Jersey, D.C. Docket Criminal No. 88-243.
Hutchinson, Scirica, and Nygaard, Circuit Judges.
Appellant, John Moscahlaidis, appeals from a final judgment of conviction and sentence rendered by the United States District Court for the District of New Jersey. Appellant claims that the government violated the plea agreement it entered into with appellant. He seeks to have this court vacate his sentence and remand his case for resentencing before a different judge. We agree with appellant that the government violated the plea agreement and vacate his sentence. We remand, however, to the district court for it to determine the appropriate remedy.
On June 27, 1988, the United States Attorney filed a two-count information in the United States District Court in New Jersey charging appellant with violations of 18 U.S.C. § § 371 and 545, conspiracy to import contaminated cheese and defraud the United States and fraudulent importation of merchandise contrary to law. On the same date, appellant pled guilty pursuant to a plea agreement. In pertinent part, the plea agreement provides:
It is understood that the sentence to be imposed upon John Moscahlaidis is within the sole discretion of the sentencing Judge, who may impose the maximum sentence. This office cannot and does not make any promise or representation as to what sentence John Moscahlaidis will receive and will not take a position relative to whether or not a custodial sentence shall be imposed on John Moscahlaidis but, pursuant to Federal Rules of Criminal Procedure 11(e) (1) (B), will recommend to the sentencing Judge that if a custodial sentence is imposed on John Moscahlaidis, it not exceed one year. It is understood that the court will not be bound by this recommendation and will be fully free to exercise its discretion in this as in other respects.
Furthermore, this office will inform the sentencing Judge and the Probation Office of: (1) this agreement; (2) the full nature and extent of John Moscahlaidis' activities with respect to this case; (3) the full nature and extent of John Moscahlaidis' cooperation with this office; and (4) all other information, favorable or otherwise, in its possession relevant to the sentence, including the terms of any civil settlement which John Moscahlaidis may effect with Customs. It is understood that the United States specifically reserves the right to correct factual misstatements relating to sentencing proceedings and that this agreement in no way affects or limits this office's right to respond to and take positions on post-sentencing motions which relate to parole or reduction or modification of sentence.
Appellant also agreed to pay a fine of $3,250,000.
On September 2, 1988, the United States Attorney submitted a forty-page sentencing memorandum which contained the following phrases:
Moscahlaidis' ability to distinguish between clean and contaminated cheese sources and his deliberate decision to import and sell contaminated cheese, knowing it to be for human consumption, evidence the depth of Moscahlaidis' greed and moral bankruptcy. Joint App. at 075a, U.S. v. Moscahlaidis (No. 88-5728).
"It is well within the reach of most white-collar criminals to assume an air of irreproachable virtue, especially when they're about to be sentenced." Moscahlaidis cannot maintain even the air of irreproachable virtue with any degree of legitimacy. Moscahlaidis is not just a white-collar criminal. Joint App. at 088a-089a.
This demonic pursuit demonstrates Moscahlaidis' utter contempt for the welfare of his fellow ...