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United States v. Lombardozzi

decided: September 27, 1972.


Feinberg, Mulligan and Oakes, Circuit Judges.

Author: Oakes

OAKES, Circuit Judge:

Appellant pleaded guilty on March 12, 1969, to a violation of 18 U.S.C. § 371, conspiracy to violate 18 U.S.C. § 2314, by agreeing to transport in interstate commerce a stolen check having a value of more than $5,000. On June 12, 1970, he was sentenced to 2 years in the custody of the Attorney General under 18 U.S.C. § 4208(a)(2). He had moved on February 2, 1970, to withdraw his plea of guilty under Rule 32(d) as not voluntarily made and the motion was denied on June 5, 1970, after hearings in which the Assistant United States Attorney, Daniel P. Holman, and an FBI agent, Daniel Kinally, testified as to circumstances surrounding the guilty plea. His previous appeal from the denial of that motion was denied by this court on January 28, 1971. United States v. Lombardozzi, 436 F.2d 878 (2d Cir.), cert. denied, 402 U.S. 908, 91 S. Ct. 1379, 28 L. Ed. 2d 648 (1971).*fn1 On the basis of the intervening decision in Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971), he renewed his Rule 32(d) motion for the withdrawal of his guilty plea and moved alternatively, pursuant to section 2255 of Title 28, for an order vacating his sentence. From the denial of those motions, he appeals here.

Appellant's main contention is that his plea of guilty was in reliance on a promise by the prosecutor, or rather the prosecutorial "team," that any sentence resulting from his plea would be concurrent with and run no longer than the sentence he was then awaiting on a perjury charge in the New York State Supreme Court, Kings County. On his previous appeal, 436 F.2d at 880, appellant had urged that his plea was involuntary "because the government's promise that his state and federal sentences would be concurrent was the sole motivating factor for his plea . . . ." This court pointed out that the record showed that appellant himself, who was "not an uncounseled, uneducated defendant unfamiliar with the workings of the criminal law," initially approached the Government attorney and said, "I would like to take a plea of guilty to this indictment." He did this only after he had heard the testimony against him of the Government's principal witness. The plea, moreover, was accepted only after three transcribed conferences were held in court, at which the sentencing judge made it clear that he would make no recommendation to the Attorney General and that whether the federal and state sentences would be concurrent would be left wholly to the Attorney General's discretion. 436 F.2d at 881. The sentencing judge in fact followed his pronouncement precisely in sentencing appellant under 18 U.S.C. § 4208(a)(2).

Appellant argues here that under Santobello acceptance of a plea of guilty ". . . must be attended by safeguards to insure the defendant what is reasonably due [under circumstances that will vary], but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262, 92 S. Ct. at 499. In Santobello the original prosecutor promised that there would be no sentence recommendation by the prosecution and that promise was breached by a new prosecutor who recommended the maximum 1-year sentence. In the instant case the Assistant United States Attorney denies making any promise himself, and appellant bases his argument upon assurances he claims were given him by FBI Agent Kinally, who was a member of the prosecutorial team. Appellant relies in this connection upon Giglio v. United States, 405 U.S. 150, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972), which held that the Government's failure to disclose a promise of leniency made to a key witness by one Assistant United States Attorney -- even if unauthorized or if his superiors or associates were uninformed of the promise -- necessitated a new trial under Mooney v. Holohan, 294 U.S. 103, 112, 55 S. Ct. 340, 79 L. Ed. 791 (1935), and related cases.*fn2

The evidence of a promise by Agent Kinally, now deceased, on which appellant relies, is Kinally's own testimony at the evidentiary hearing on the original motion to withdraw the guilty plea as follows:

I was speaking to Mr. Lombardozzi only as a Government agent. I spoke to him and conveyed to him this idea of a concurrent sentence.

Q. There's no question in your mind, Mr. Kinaly [sic], that between the 7th and 12th of March (the date the plea was entered) Mr. Lombardozzi believed that the sentence would run concurrent with the State; isn't that right?

A. Well, that was his understanding. Yes, sir, he told me that.

Q. Did he also tell you that it was his understanding that he wasn't going to serve any more time?

A. Yes.

Appellant in his brief would have us construe this as an admission by Agent Kinally that he did make a "promise" to appellant that he "would serve no time in a Federal institution." We fail to see any such admission. True, Agent Kinally conceded that he convinced appellant that he was speaking for the Assistant United States Attorney when he was not, but this is different from the agent's saying that he tried to convince appellant to this effect. Rather, he was speaking to appellant "only as a Government agent." While Kinally may have "conveyed" the "idea of a concurrent sentence," this falls short of amounting to a promise; he had made a suggestion, not an assurance. Indeed, the transcript of the evidentiary hearing indicates that appellant knew Kinally could not bind the Department of Justice.*fn3 And assuming arguendo that appellant's "understanding," conveyed to the agent, was that the federal sentence would run concurrently with the state and that "he wasn't going to serve any more time," this again falls short of an admission of any promise as such. Indeed, Agent Kinally testified that he never guaranteed anything to appellant and that appellant never requested a guarantee.

There was no finding below of a promise made by Agent Kinally. The court said, in commenting on appellant's counsel's reference to "a deal" between Kinnally and appellant at the conclusion of the evidentiary hearing:

Let me comment specifically on that. I do not think that Mr. Lombardozzi was under any illusion that he was going to avoid ...

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