Appeal from an order of the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, specifically enforcing an off-the-record plea agreement that plaintiff would not be required to testify before a New York State grand jury with regard to certain matters and, accordingly, enjoining defendants from so questioning plaintiff. Injunction vacated and cause remanded with an instruction to dismiss the complaint.
Van Graafeiland, Pierce and Pratt, Circuit Judges. Pratt, Circuit Judge, dissenting.
This case presents the novel issue of whether federal due process requires a state prosecutor to fulfill an off-the-record promise made in plea bargaining negotiations,*fn1 despite New York State's announced policy of enforcing only those portions of a plea agreement which are actually placed on the record at the plea proceeding. The United States District Court for the Southern District of New York, Robert W. Sweet, Judge, found that such a promise must be enforced and, accordingly, enjoined the state prosecutor from breaching the promise. Because we find that New York State's policy of recognizing only on-the-record plea bargains comports with due process and because the plaintiff, in offering his plea, failed to place on the record the promise which he now seeks to enforce, we vacate the injunction and remand to the district court with an instruction to dismiss the complaint.
A. State Court Proceedings
Plaintiff-appellee, Benjamin Siegel, is a 63-year-old wholesale meat salesman. In March, 1979, Siegel testified before a New York County grand jury investigating alleged criminal activities in the nursing home industry, and he denied any knowledge of other persons in the meat industry paying such kickbacks.
Following his testimony, Siegel was indicted in New York County on three counts of perjury in the first degree, a class D felony. Siegel entered a plea of not guilty. On November 21, 1979, Judge Aloysius Melia*fn2 denied Siegel's motion to dismiss the indictment and several other motions, and granted a motion to suppress one of the tape recordings which was to be used as evidence. Judge Melia remarked that the case appeared suited to disposition by a negotiated guilty plea.
On January 21, 1980, in a reported hearing in open court, the prosecutor, a Special Deputy Attorney General assigned to the New York City regional office of the Hospital Division of the Deputy Attorney General for Medicaid Fraud, and the appellee and his counsel informed Judge Melia that Siegel was prepared to plead guilty to a single reduced count of perjury in the second degree, a class E felony, in exchange for dismissal of the other counts and the promise of a sentence of five years probation plus a fine. After ascertaining that Siegel was acting of his "own free will," that he understood the constitutional rights he was waiving by pleading guilty, and that he understood the sentence he would receive, Judge Melia accepted Siegel's guilty plea to a single count of perjury in the second degree and imposed a sentence of five years probation and a $2500 fine.
Six months later, on July 22, 1980, Long Island regional office of the Deputy Attorney General for Medicaid Fraud issued a subpoena to Siegel seeking to have him testify before a grand jury investigating kickbacks in the health care industry. Siegel moved in Queens County Supreme Court to quash the subpoena claiming that, at the time of the plea, the prosecutor had made an off-the-record promise that Siegel would not have to testify before the grand jury concerning the subject matter of his perjury indictment. Justice George Balbach, to whom the motion was assigned, conducted an extensive evidentiary hearing with regard to the circumstances surrounding the negotiation of Siegel's guilty plea. During this hearing Justice Balbach heard testimony from Siegel's two defense attorneys and from both the New York City and the Long Island Special Deputy Attorneys General handling the case. By opinion dated December 17, 1980, Justice Balbach granted Siegel's motion to the extent of modifying the subpoena to preclude the prosecutor from questioning Siegel about "those facts which were discussed during his prior appearance before the New York County Grand Jury on March 13, 1979." Matter of John Doe, SP No. 4164, slip op. at 16 (Sup. Ct. Queens Co. Dec. 17, 1980). Although the trial judge found that the prosecutor made "no definite promise" concerning future grand jury appearances, the judge found that the prosecutor's equivocal responses during plea negotiations led Siegel to reasonably believe that he would not subsequently be obliged to testify before a New York State grand jury with respect to the subject matter of his previous New York County grand jury testimony.
In a memorandum opinion dated July 27, 1981, the Appellate Division, Second Department, affirmed. Matter of Benjamin S., 83 A.D.2d 630, 441 N.Y.S.2d 698 (2d Dep't 1981). The appellate court found that there was no record support for the lower court's finding that the specific issue of future grand jury appearances had been raised in the plea negotiations. Nonetheless, the Appellate Division ruled that the prosecutor's statements to the effect that Siegel would not be required to "give information," "talk about," or "be questioned about" matters covered in his previous grand jury testimony constituted "knowing consent that [Seigel] was not to be called before a Grand Jury by [the prosecutor's] office to discuss those matters." 83 A.D.2d at 633, 441 N.Y.S.2d at 703. The Appellate Division also ruled that specific performance of the constructive plea bargain would not impermissibly infringe upon the right of the Queens County grand jury to gather evidence.
In a unanimous opinion dated February 18, 1982, the New York Court of Appeals reversed the Appellate Division's order. Matter of Benjamin S., 55 N.Y.2d 116, 447 N.Y.S.2d 905, 432 N.E.2d 777, reh'g denied, 56 N.Y.2d 570, 450 N.Y.S.2d 186, 435 N.E.2d 403 (1982). The court ruled that the alleged promise concerning future grand jury appearances was unenforceable, as a matter of law, because it was not placed on the record at the time the guilty plea was entered.
Shortly thereafter, Siegel moved pursuant to N.Y. Crim. Proc. Law § 440 (McKinney 1971) to reopen his plea proceedings and place on the record the alleged off-the-record promise or, in the alternative, for a vacatur of the judgment of conviction. In support of this motion Siegel contended that his plea of guilty and the conviction based thereon were procured by the prosecutor's misrepresentation concerning future grand jury appearances, in violation of his due process rights. By opinion and order dated March 5, 1982, the New York County Supreme Court, Trial Term, denied the motion, stating that the relief requested was essentially ...