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UNITED STATES v. STOLON

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


January 14, 1983

UNITED STATES of America
v.
Samuel STOLON, Defendant

The opinion of the court was delivered by: PLATT

MEMORANDUM & ORDER

 PLATT, District Judge.

 Defendant moves for an order (i) vacating the sentence imposed herein upon him and directing the reassignment of this case to a different judge of this Court for resentencing *fn1" or, in the alternative, directing the reassignment to a different judge of this Court of defendant's motion dated November 30, 1982, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, to vacate or reduce said sentence, and (ii) directing the government to comply with its obligations pursuant to the plea agreement herein dated November 2, 1982, "on the ground that the government has by its opposition to defendant's Rule 35 motion breached its agreement to take no position with respect to sentencing and irretrievably tainted further proceedings" before the undersigned regarding sentencing.

 On November 5, 1982, following the defendant's plea of nolo contendere to one count of misdemeanor copyright infringement in violation of 17 U.S.C. § 506(a), this Court sentenced the defendant to a one year term of imprisonment and, as indicated, on November 30th defendant served and filed a motion to vacate or reduce his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. Thereafter, on December 3, 1982, the government submitted an eight page letter to the Court in opposition to such motion thereby violating, according to the defendant, paragraph 4 of the plea agreement dated November 2, 1982 between the parties. This paragraph provides:

 

"4. The government shall take no position with respect to sentencing, and shall make no statement, written or oral, prior to the imposition of sentence except to correct alleged inaccuracies or respond to questions."

 The government's position is that paragraph 4 of the plea agreement precluded it from taking any position or making any statement "prior to the imposition of sentence" but did not preclude it from taking any position or making any statement after sentence had been imposed.

 The defendant relies heavily on United States v. Corsentino, 685 F.2d 48 (2d Cir. 1982), where the government made a plea agreement in which it agreed "to take no position at sentence." After imposition of an eight year sentence and a request by defense counsel to impose the same pursuant to 18 U.S.C. § 4205(b), the government, in response to a request by the Court for its view of this request, expressed opposition thereto. Under these circumstances, the Court of Appeals for this Circuit held that the defendant was entitled to a resentencing before another District Judge.

 The Fifth Circuit case of United States v. Ewing, 480 F.2d 1141 (5th Cir.1973), is factually more similar to the case at bar. In that case, at the initial sentencing hearing the government fulfilled its commitment not to oppose a sentence of probation, but at a subsequent hearing on defendant's Rule 35 motion, the government argued strongly in opposition to the defendant's request for probation. On appeal from the District Judge's denial of the defendant's motion, the Court of Appeals for that Circuit held that the defendant was entitled to have his Rule 35 motion submitted to a different judge where the government would be barred from opposing probation.

 The government argues, on the other hand, that the Ewing decision has been severely limited by the Second Circuit in Bergman v. Lefkowitz, 569 F.2d 705 (2d Cir.1977); the Fifth Circuit itself in United States v. Johnson, 582 F.2d 335 (5th Cir. 1978); the Third Circuit in United States v. Ligori, 658 F.2d 130 (3d Cir.1981); and the Ninth Circuit in United States v. Arnett, 628 F.2d 1162 (9th Cir.1979). The Second Circuit apparently distinguished Ewing by noting that in Ewing, "the government agreed not to oppose a probationary sentence and then did precisely that on a Rule 35 motion" 561 F.2d at 716; and the Fifth Circuit did so by stating that "the government violates Ewing only when its opposition violates the essence of the plea bargain." 587 F.2d at 337. The government argues further that its "opposition was based, in large part, on misleading and bad faith arguments, *fn2" defense submissions which would have made it implausible for the government not to oppose it." (Government's Memo at 7).

 This latter argument, of course, would carry much more weight if the words "in large part" *fn3" could honestly be omitted; indeed, it is the "remaining part" that gives rise to the question posed herein. The government did state in its letter of December 3, 1982 that it opposed "a discretionary reduction of sentence" and that "all of the government attorneys responsible for the case always believed that a jail sentence was appropriate -- a one year term is certainly reasonable -- particularly since it (sic) had indicted Stolon on and believed him guilty of, a 20 year racketeering count."

 The question then is whether the intent of the parties in their agreement is so clear that the government may not be said to have violated the "essence" of the plea bargain. This Court thinks not in view of that part of the agreement in which the government agrees that it "shall take no position with respect to sentencing." In addition, the Courts of Appeals for this and the Fifth Circuit seem to indicate that the essence of a commitment by the government of the type made here carries through to and including a Rule 35 motion.

 Furthermore, notwithstanding the fact that this Court (along with all the other federal district court judges) is perfectly capable of ignoring and/or erasing from its consideration the objections submitted by the government on a motion of this type and despite the fact that this Court played no part in the production of the alleged taint, *fn4" at least one (if not both) Court of Appeals seems to believe that the "appearance of justice", 480 F.2d at 1143, might be best served by transferring *fn5" at least the allegedly tainted portion of the proceedings, i.e., in the case at bar this Rule 35 motion, to another judge of the Court.

 Accordingly, even though in this particular case, where all of the facts and circumstances in this protracted criminal case are known to the undersigned and not known to any other judge of this Court, and where, in the opinion of the undersigned, the interests of judicial economy and even the interests of justice may not necessarily be best served by the transfer of this motion to another judge, the undersigned feels compelled *fn6" to do so in view of the above-cited appellate decisions.

 CONCLUSION

 The government, having taken a position with respect to sentencing in its letter addressed to this Court dated December 3, 1982, in apparent violation of its plea agreement dated November 2, 1982, and one or more appellate courts having indicated in other matters that under such circumstances the "appearance of justice" may be best served by transferring a motion such as defendant's Rule 35 motion herein to another judge of this Court, defendant's motion for an order directing the reassignment of defendant's motion dated November 30, 1982, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, to a different judge, must be, and the same hereby is, granted; and

 If no Notice of Appeal or other application is filed by either party with respect to this Order, the Clerk of this Court shall reassign this case pursuant to the random selection wheel for criminal cases to another judge of this Court for the purpose of hearing and deciding defendant's motion herein made pursuant to Rule 35; and

 There shall be withheld from such other judge's consideration (i) those portions of the government's letter dated December 3, 1982 addressed to this Court which takes a "position with respect to sentencing" except as may be said to correct alleged inaccuracies, (ii) copies of this Memorandum and Order, except footnotes 2 and 3, and (iii) any transcripts of hearings in Court which contain any expression of such a position by the government except again as may be said to correct alleged inaccuracies. The parties in the first instance should attempt to stipulate as to these portions of the exhibits and the record, and, if unable to do so, should apply to this Court for assistance.

 SO ORDERED.


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