860 F.

2d 981

UNITED STATES of America, Plaintiff-Appellee,

v.
Felix William MARANZINO, d/b/a P & B Sales, DefendantAppellant.
Nos. 87-2561, 87-2885.

United States Court of Appeals,

Tenth Circuit.
Nov. 1, 1988.

James R. Wyrsch and Susan M. Hunt of Koenigsdorf, Wyrsch & Ramsey,

P.C., Kansas City, Mo., for defendant-appellant.
Benjamin L. Burgess, Jr., U.S. Atty., and Robert S. Streepy, Asst. U.S.
Atty., D. Kan., Kansas City, Kan., for plaintiff-appellee.
Before McKAY, SEYMOUR and HIGGINBOTHAM* , Circuit Judges.
PER CURIAM.

The parties to these appeals have waived oral argument. The causes are
therefore ordered submitted without oral argument.

Defendant appeals the district court's denial of his motion to dismiss an

indictment against him. The indictment, filed in 1987, charged defendant with
two counts of making false statements to a federally insured financial institution
in violation of 18 U.S.C. Sec. 1014. Defendant based his motion to dismiss
primarily on double jeopardy grounds, arguing that a 1985 indictment against
him included a similar count under Sec. 1014 and that the similar count was
dismissed by the government in 1985 pursuant to a plea agreement. Defendant
also argued that the government had promised in the 1985 plea agreement not
to pursue further charges arising out of defendant's transactions with the same
bank.

After the district court denied defendant's motion to dismiss, he appealed to this

court in appeal No. 87-2561. Defendant sought a stay pending appeal from the
district court, which was denied. Defendant then sought a stay from this court.
This court also denied defendant's request, whereupon defendant sought
approval from the district court pursuant to Fed.R.Crim.P. 11(a)(2) to reserve
his right to appeal the denial of the motion to dismiss, and entered a conditional
plea of guilty to Count I of the indictment. Defendant's appeal from the district
court's judgment and sentence on Count I is appeal No. 87-2885. The issue in
both appeals is whether the district court erred in denying defendant's motion to
dismiss.
4

Defendant was indicted in 1985 for three counts of making materially false
statements to federally insured banks. Counts I and II charged that defendant
violated 18 U.S.C. Secs. 1010 and 1014 in the course of applying for loans
from the First State Bank. These counts are not at issue in this appeal. In Count
III, the government charged that on May 10, 1982, defendant knowingly made
a false statement in a credit application to the Indian Springs State Bank for the
purpose of influencing the bank to approve a loan. Defendant, the indictment
alleged, knew that the credit application falsely represented defendant's existing
debts and obligations. Defendant pleaded guilty to Count II of the indictment in
exchange for the government's dismissal of Counts I and III.

In the current indictment against defendant, the government charged in Count I

that on October 27, 1982, defendant forwarded to the Indian Springs State
Bank four envelope sight drafts drawn on the Tower State Bank on the account
of Young's Used Cars, made payable to defendant's business, for the purchase
of used cars from defendant. As a result, the Indian Springs State Bank
advanced funds to defendant's account when in fact the used cars did not exist
and the sight drafts had been prepared by Young's Used Cars in reliance on
false information provided by defendant, in violation of 18 U.S.C. Sec. 1014. In
Count II, the government alleged that on November 14, 1982, defendant
committed a similar crime through the use of sight drafts drawn on the Charter
Bank of Belton on the account of Belton Wholesalers. The government
dismissed Count II in exchange for defendant's conditional guilty plea to Count
I.

Defendant argues that his 1985 indictment for making false statements in his
loan application to the Indian Springs State Bank precluded any further charges
arising out of his transactions with the same bank. He theorizes that all of these
transactions were part of a single scheme to defraud the bank. Defendant relies
on United States v. Beachner Construction Company, 729 F.2d 1278 (10th
Cir.1984) (Beachner ), in which the government charged the defendant with
violations of the Sherman Act and with mail fraud in connection with bid-

rigging in Kansas. The defendant in Beachner had previously been acquitted of

conspiracy to commit bid-rigging under the Sherman Act. The district court
found that there was a single ongoing conspiracy to rig bids and that the acts
which formed the basis of the substantive offenses charged were part of the
ongoing conspiracy. The government argued in part on appeal that even if
defendant could not be re-indicted for conspiracy under the Sherman Act, the
United States should be able to indict defendant for the mail fraud violations.
This court held that under these circumstances, the acquittal for conspiracy
precluded any subsequent charge for a substantive offense forming part of the
conspiracy.
7

Beachner is inapposite to the case at bar. In Beachner, the defendant had been
acquitted of a conspiracy charge which included the substantive offenses
forming part of the conspiracy. Here, Count III of the 1985 indictment did not
allege a conspiracy or an overall scheme to defraud the Indian Springs State
Bank, nor was the government required to prove an overall plan as an element
of the charge in Count III.

The charges against defendant are instead comparable to those in United States
v. Zwego, 657 F.2d 248 (10th Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct.
1275, 71 L.Ed.2d 460 (1982). In Zwego, the defendant was convicted of
"knowingly making false statements in connection with two applications for
loans to a federally insured bank in violation of 18 U.S.C. Sec. 1014." Id. at
249. The defendant had placed two applications for automobile loans on behalf
of two nonexistent "customers." He argued that two consecutive sentences
based on the two applications placed him in double jeopardy. This court
rejected defendant's argument because defendant had made two separate
applications involving "necessarily different" proof. Id. at 251.

Similarly, here, Count III of the 1985 indictment concerned false information
about defendant's debts and obligations provided in defendant's credit
application to the Indian Springs State Bank. In contrast, the 1987 indictment
charged that defendant provided false information to a purchaser and in turn
relayed the false information to the Indian Springs State Bank by forwarding
incorrect sight drafts. The 1987 indictment thus did not put defendant in
jeopardy for the same offense charged in the 1985 indictment.

10

Defendant urges this court to adopt the "same transaction" test recommended
by Justice Brennan in his concurring opinion in Ashe v. Swenson, 397 U.S.
436, 448-60, 90 S.Ct. 1189, 1196-1203, 25 L.Ed.2d 469 (1970) (Brennan, J.,
concurring). We are bound by the Supreme Court's rejection of that test. See
United States v. Huffman, 595 F.2d 551, 554-55 (10th Cir.1979); United States

v. Addington, 471 F.2d 560, 568 (10th Cir.1973); Birch v. United States, 451
F.2d 165, 167 (10th Cir.1971). Moreover, although defendant alleges that the
charged offenses were part of a single fraudulent scheme, the two offenses do
not appear to be part of the same criminal transaction. Cf. Addington, 471 F.2d
at 567-68 (fraudulent scheme involving two separate grain elevators did not
constitute same transaction for purposes of collateral estoppel or double
jeopardy).
11

Defendant argues that the government should have charged all of these offenses
in the same indictment under Fed.R.Crim.P. 8(a). Rule 8(a), however, does not
require the government to charge all related offenses in the same indictment.
"Two or more offenses may be charged in the same indictment ... if the
offenses charged ... are of the same or similar character or are based on the
same act or transaction or on two or more acts or transactions connected
together or constituting parts of a common scheme or plan." (Emphasis
added.)In district court, defendant sought access to the probation office's
presentence investigation and the prosecution file from 1985 to support his
double jeopardy argument. The district court denied defendant's motion to
compel. Defendant seeks to appeal that denial. The government argues that
defendant forfeited his right to appeal the denial of his motion to compel by not
preserving it pursuant to Fed.R.Crim.P. 11(a)(2) prior to his conditional guilty
plea. Insofar as defendant sought to support his double jeopardy argument
under Beachner, however, even an unconditional guilty plea would not result in
a waiver of the argument. See United States v. Broce, 781 F.2d 792 (10th
Cir.1986). We therefore turn to the merits of defendant's contention that he
should have been permitted access to these government documents to support
his double jeopardy argument.

12

Defendant sought to show that the government had access to information

supporting the 1987 charges against him at the time it initially indicted him in
1985. Defendant also contended that his presentence report, upon which the
district court relied in sentencing defendant in 1985, contained information
about all offenses committed by defendant at the Indian Springs State Bank.
The government apparently conceded the truth of defendant's allegations for
purposes of defendant's motion to dismiss. Defendant therefore did not need
access to these materials to support factually his motion. Moreover, the
government's access to the information would only be relevant if this court had
adopted the "same transaction" test, and the government in turn had responded
that it could not have indicted defendant for all offenses in 1985 because it did
not yet have sufficient proof. See Ashe, 397 U.S. at 453 n. 7, 90 S.Ct. at 1199
n. 7 (Brennan, J., concurring) (previous lack of evidence of other offenses may
operate as an exception to the same transaction test). Since we have concluded

that the same transaction test is inapplicable, the government's early access to
information supporting the 1987 indictment is not relevant. Finally, defendant
offers no support for his argument that double jeopardy attached in 1985 when
the district court read defendant's presentence report and thereby learned of
possible other offenses committed by defendant. Defendant's argument that the
district court should have permitted him to review the presentence investigation
and the prosecution file in order to support his double jeopardy argument is
therefore not persuasive.
13

Even if double jeopardy did not bar the 1987 indictment, defendant alleges that
the government agreed in 1985 not to prosecute defendant for any offenses
arising out of his dealings with the Indian Springs State Bank. In defendant's
reservation of issues for appeal pursuant to Fed.R.Crim.P. 11(a)(2), he stated
only that he was reserving the issue of whether the district court should have
granted his motion to dismiss on double jeopardy grounds. The issue thus arises
whether defendant has effectively preserved this second and separate argument.

14

The district court and the parties have consistently treated defendant's second
argument as though it were part of defendant's double jeopardy argument. The
issues, however, are conceptually different. Nonetheless, although ordinarily
courts will require strict compliance with Rule 11, we will assume but not
decide that in these unique circumstances, where the issues have been
intertwined in the court below, defendant's reservation of the double jeopardy
issue was sufficient to preserve his argument on appeal that his 1985 plea
agreement bars the government's prosecution of the current charges.1

15

Quite apart from the issue of voluntariness of a guilty plea, a defendant may
obtain specific performance of any promises made by the prosecution in
exchange for a guilty plea. Worthen v. Meachum, 842 F.2d 1179, 1184 (10th
Cir.1988); see also United States v. Stemm, 847 F.2d 636 (10th Cir.1988). The
government asserts, however, that defendant's plea agreement and his
statements at his 1985 guilty plea foreclose any further argument. The plea
agreement and defendant's statements under oath at his 1985 Rule 11
proceeding indeed reflect that defendant understood that the government was
agreeing solely to dismiss Counts I and II and to stand mute at sentencing.
However, "[t]he defendant's 'personal responses to Rule 11 inquiries do not
foreclose further investigation into the full terms of the plea bargain.' If the rule
were otherwise, the strong policy favoring full disclosure of plea agreements
could be emasculated by boilerplate answers and assurances that there were no
agreements connected with the plea." United States v. Blackner, 721 F.2d 703,
709 (10th Cir.1983) (quoting United States v. Roberts, 570 F.2d 999, 1007
(D.C.Cir.1977)). Similarly, the written plea agreement does not absolutely

foreclose relief. See United States v. Swinehart, 614 F.2d 853, 858 (3d
Cir.1980), cert. denied, 449 U.S. 827, 101 S.Ct. 90, 66 L.Ed.2d 30 (1980).
16

At the same time, although defendant's statements at his guilty plea that the
government had made no promises other than those in the plea agreement "are
subject to challenge under appropriate circumstances, they 'constitute a
formidable barrier in any subsequent collateral proceedings.' " Worthen, 842
F.2d at 1183-84 (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621,
1629, 52 L.Ed.2d 136 (1977)). While defendant seeks not to undermine the
prior guilty plea (as was the case in Worthen ), but to win specific performance
of an alleged plea agreement, the same analysis should logically apply. Thus,
defendant must overcome this "formidable barrier" to succeed on his claim.

17

The district court, after an evidentiary hearing, found in its memorandum and
order denying the stay pending appeal that any claim of additional promises by
the government was not based in fact. During his testimony in district court,
defendant nowhere mentioned an actual agreement by the government to
include more charges in the plea bargain than those actually listed in the
written agreement. Instead, defendant testified that his defense counsel
explained to him that the government could not return to the counts in the 1985
indictment, and that no one explicitly told him the other transactions were not
included. Thus, defendant has testified to little more than his subjective
expectation in 1985 that the government would not pursue further charges. In
contrast, the plea agreement and defendant's statements at sentencing reflect
that the objective meaning of the plea bargain was that defendant would not be
prosecuted for the remaining two counts in the 1985 indictment; no other
charges were at issue. In light of these clear statements at the time of the plea,
we conclude that the district court's finding on this issue is not clearly
erroneous. See Beachner, 729 F.2d 1278. Defendant's subjective expectation
that the government would not pursue further charges does not call the validity
of the agreement or defendant's statements at the plea proceedings into doubt.
See United States v. Manni, 810 F.2d 80 (6th Cir.1987); United States v.
Gonzalez-Mercado, 808 F.2d 796 (11th Cir.1987); United States v. Flores, 616
F.2d 840 (5th Cir.1980).

18

Defendant also sought access to the presentence investigation and the

prosecution file to support this argument. The government insists that defendant
has forfeited any argument on appeal that the district court should have
permitted access to these documents to support defendant's claim that additional
promises were included in the plea bargain. Defendant's attempt to review these
documents, however, was part of his overall argument that the government had
promised no further prosecution. We will therefore also address on the merits

whether the trial court should have permitted defendant access to these
materials.
19

Rule 16 does not authorize a blanket request to see the prosecution's file. See
Fed.R.Crim.P. 16(a)(2); see also Jencks v. United States, 353 U.S. 657, 667, 77
S.Ct. 1007, 1012, 1 L.Ed.2d 1103 (1957) (expressing disapproval of "any broad
or blind fishing expedition among documents possessed by the Government on
the chance that something impeaching might turn up"). Indeed, internal
government documents made in connection with a prosecution are exempt from
discovery. Fed.R.Crim.P. 16 Advisory Committee Note.

20

Even assuming that some parts of the prosecution file may not be privileged,
defendant did not support his argument that the file was material to his defense
theory. As noted, the district court found that defendant had not supported his
allegation of additional prosecution promises. In light of the clear language of
the 1985 plea agreement, defendant's sworn testimony at his 1985 guilty plea,
and defendant's testimony at the district court's evidentiary hearing, we
conclude that the district court did not abuse its discretion in denying
defendant's request to review the prosecution file. See United States v.
Carrigan, 804 F.2d 599, 602 (10th Cir.1986).

21

The presentence report presents a different set of problems. The Supreme Court
has recently held that a prisoner may obtain his presentence report under the
Freedom of Information Act. United States Department of Justice v. Julian, --U.S. ----, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988). The Court reasoned that the
requirement under Fed.R.Crim.P. 32(c)(3)(E) that defendants return copies of
the presentence report to the probation office after sentencing did not establish
an exemption from disclosure under the Freedom of Information Act. Absent a
Congressional exemption, the prisoners were entitled to obtain their reports
under the FOIA. Defendant in this case is therefore left in the anomalous
position that while he might have obtained his presentence report under the
FOIA, he was not permitted to obtain the same report through discovery.

22

The issue before this court, however, is whether defendant was entitled to see
his presentence report for the purpose of proving his allegation that the current
charges were included in his 1985 plea agreement. Defendant has not
adequately supported his request on this ground. Although defendant alleged in
general terms that all requested materials would help "shed much needed light"
on his arguments, he has not explained specifically how his presentence report,
prepared by the United States Probation Office, would help either to
demonstrate the existence of a plea agreement by the United States Attorney
different than the one presented to the district court, or to interpret the plea

agreement before us.

23

The presentence report is a court document, prepared by the Probation Office

for the court and shown to defendant prior to sentencing. Defendant's argument
that his presentence report would "shed light" on the meaning or existence of an
implied or explicit agreement between defendant and the prosecution, allegedly
unknown to the district court at the time of defendant's 1985 guilty plea, is thus
tenuous at best. Moreover, during his testimony at the district court's
evidentiary hearing, defendant did not buttress his previous general statement
that the report was material with any specific explanation of what helpful
information about his 1985 plea agreement might be contained in the report.
We therefore conclude that the district court did not abuse its discretion in
denying defendant's request. See Carrigan, 804 F.2d at 602; cf. United States v.
Lewis, 743 F.2d 1127 (5th Cir.1984) (where defendant and former defense
counsel had opportunity to read presentence report, district court did not abuse
its discretion in refusing to permit defendant's new attorney to examine
presentence report to support subsequent motion to reduce sentence).

24

The judgment of the United States District Court for the District of Kansas is
AFFIRMED.

Honorable Patrick E. Higginbotham, United States Circuit Judge for the Fifth
Circuit, sitting by designation

The Tenth Circuit has not decided whether an alleged governmental promise
not to prosecute raises an issue which "lies at the heart of the government's right
to institute proceedings against the defendant," and which accordingly cannot
be waived by a guilty plea. See United States v. Gipson, 835 F.2d 1323, 1324
(10th Cir.) (citing United States v. Broce, 781 F.2d 792 (10th Cir.1986), cert.
denied, --- U.S. ----, 108 S.Ct. 2038, 100 L.Ed.2d 623 (1988)