482 F.

2d 409

Michael Joseph PARADISO and Anthony Richard Bonnacci,

Appellants,
v.
UNITED STATES of America.
No. 72-1705.

United States Court of Appeals,

Third Circuit.
Submitted April 2, 1973.
Decided July 19, 1973.
As Amended Aug. 1, 1973.

Michael J. Paradiso and Anthony R. Bonnacci, pro se.

Amos Gern, William T. Pizzi, Asst. U. S. Attys., Newark, N. J., for
appellee.
Before ROSENN and HUNTER, Circuit Judges, and BECHTLE, District
Judge.
OPINION OF THE COURT.
ROSENN, Circuit Judge.

This case raises recurring and important problems of what procedure constitutes
compliance with Federal Rule of Criminal Procedure 11 and what
circumstances justify the withdrawal of a guilty plea under federal rules and
Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L.Ed.2d 427 (1972).

Appellants Paradiso and Bonnacci were indicted on April 16, 1969, along with
several others, by a federal grand jury sitting in New Jersey, on a four count
indictment charging conspiracy to possess stolen goods and possession of goods
stolen from interstate commerce. They were later, on January 20, 1970,
indicted by a federal grand jury sitting in the Eastern District of New York for
possession of completely different stolen goods, also shipped in interstate
commerce.

On April 22, 1970, appellants appeared with counsel before Judge Coolahan in
the United States District Court for New Jersey, retracted their original pleas of
not guilty, and entered a plea of guilty to count one (the conspiracy count) of
the New Jersey charges. They also consented to a transfer under F.R.Cr.P. 20 of
the New York indictment and pled guilty to that charge.

Sentencing was scheduled for June 5, 1970, before Judge Whipple.

Immediately after the court sentenced Bonnacci to 5 years on each count, the
sentences to run consecutively, both appellants requested permission to
withdraw their pleas, claiming they were under the impression that their
sentences would be concurrent. The court vacated Bonnacci's sentence, deferred
sentencing both defendants, and ordered adjournment until June 12, 1970.

After hearing argument on the question whether to permit withdrawal of the

pleas, on June 12, 1970, the court denied the defendants' requests and sentenced
both as Bonnacci had originally been sentenced. The court specifically stated to
defense counsel that he had 120 days in which to petition the court for relief
from the sentence. The court dismissed counts 2, 3, and 4 of the New Jersey
indictment against both appellants.

On February 28, 1973, appellants filed motions in the district court under 28
U.S.C. Sec. 2255 challenging their sentences and, alternatively, seeking under
F. R.Cr.P. 32(d) to withdraw their guilty pleas. They appeal the denial of those
motions. We affirm.

Appellants advance several legal theories, each articulating the theme that they
are entitled to relief because they were under the impression at the time they
pled guilty that they would be given concurrent sentences on the two counts.
Essentially three legal bases are offered in support of this claim:

8(1) the due process clause;

9(2) F.R.Cr.P. 11; and
(3) F.R.Cr.P. 32(d).
10
1. DENIAL OF DUE PROCESS.
11
12

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1972),
declared that due process entitles a defendant pleading guilty to performance by
the prosecutor of a promise that induced the plea. As could be expected, in
view of the voluminous litigation in the civil law as to the definition and

operation of a promise, Santobello, in turn, generated further litigation over

what constitutes a promise, whether any promise had been made, and the effect
of advice or assurance given by the defendant's own counsel.
13

In Masciola v. United States, 469 F.2d 1057 (3d Cir. 1972), we held that the
due process lesson of Santobello was inapplicable when no promise or
understanding had been breached by Government prosecution. We rejected the
contention that relief was compelled because there was an "assurance" only by
the defendant's counsel that a sentence would be imposed concurrently with a
sentence Masciola was already serving. We also reasoned that such
"predictions" by defendant's counsel did not render the plea involuntary. Other
courts have faced similar questions and reached varying solutions. Compare
Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970), with Castro v. United States,
396 F.2d 345 (9th Cir. 1968).

14

At the June 12, 1970, hearing in this case, the court inquired into the facts
underlying appellants' alleged understanding that they would receive concurrent
sentences. Their counsel, Samuel Bozza, testified that he never discussed any
phase of the case with Assistant United States Attorney Koelzer, who
represented the Government at the June 5, 1970, hearing. He explained that he
initially was retained to represent the two defendants on the New Jersey charge.
At that time, Assistant United States Attorney Goldstein, in New Jersey, was
handling the prosecution. Attorney Bozza said he later learned of the New York
charge and then called Assistant United States Attorney Boyd in Brooklyn.
While Boyd did not make any commitment, Bozza alleges he stated that if the
New Jersey charges were transferred to New York the usual policy in the
Brooklyn office would be to recommend 5 year sentences to be imposed
concurrently. Attorney Bozza then spoke to Goldstein, who mentioned that he
had talked to Boyd and both had agreed to have the New York indictment
transferred to New Jersey. Bozza said he assumed, by virtue of Boyd's
conversation with Goldstein, that the New York sentencing policy alluded to by
Boyd would prevail in New Jersey.

15

When appellants asked Bozza what sentence he thought they would receive, he
told them "there was a good probability of getting a concurrent sentence." This
is the sole basis for appellants' claimed understanding. Assistant United States
Attorney Boyd testified at the June 12 hearing that he never made any
representation with regard to the "sentences to be granted to the defendants in
this case."

16

This situation is quite similar to that presented to us in Masciola. Appellants

apparently pleaded guilty in the expectation they would receive concurrent

sentences on the New York and New Jersey indictments. That expectation,
however, was based solely on the advice of their counsel. Thus, the appellants,
unlike the defendant in Santobello, have not been misled by the prosecution in
pleading guilty. Nor did they rely upon an actual understanding or agreement
with Government counsel, the breach of which renders the sentence
fundamentally unfair or which renders their pleas involuntary. For these
reasons, we think appellants have not been denied due process.
17

Nevertheless, we believe that our district courts should take affirmative action
to curb recurring situations which give rise to defendants' misapprehensions,
although created by advice of their own counsel or otherwise, and produce an
unwarranted and unrealized expectation of leniency. In this case, the court, at
the hearing on June 5, inquired of both appellants whether "anybody promised
you any leniency with regard to any sentence that this court might impose" and
both replied in the negative. He further cautioned them:

18they have [promised you leniency] I am putting you on notice right now that it is
If
not binding on this Court. This Court will sentence you according to its own
conscience and following the law, right?
19

The court, thereupon, sentenced Bonnacci to consecutive five year sentences.

Bonnacci immediately stated that he wished to withdraw the plea because:

It was supposed to run altogether; otherwise, I'd go to trial.

20
21

Paradiso, too, quickly gave similar notice that he wanted to withdraw his plea
because he expected to receive concurrent sentences on the two charges.

22

In Walters v. Harris, 460 F.2d 988 (4th Cir. 1972), the Fourth Circuit was also
confronted with appellant's contention that his plea of guilty was induced by an
unkept promise of the Assistant United States Attorney. As a result, it urged
district judges in its circuit thereafter to expand their rule 11 inquiry to ascertain
the presence of plea negotiations, to advise the defendant that plea bargaining
has been specifically approved by the United States Supreme Court, and that he
may truthfully advise the court of any plea negotiations "without the slightest
fear of incurring disapproval of the court." We note that at least one other court
has reacted to the rationale of Santobello by adopting a court rule that plea
negotiations must be plainly made a matter of record. In an effort to meet
realistically this growing practice of plea negotiation, the Supreme Court of
Pennsylvania has adopted a comprehensive rule applicable throughout the
state's judicial system for plea bargaining on the record.1

23

Even prior to Santobello, the California Supreme Court, although not imposing
any specific procedure, required the terms of all plea bargains to appear of
record. People v. West, 3 Cal.3d 595, 91 Cal.Rptr. 385, 477 P.2d 409 (1970).
The desirability of making plea negotiations a matter of record before sentence,
recognized by these courts, is also reflected in the American Bar Association
Minimum Standards on Sentencing Alternatives and Procedures, approved
draft, 1968, Sec. 5.3 and ABA Standards, Pleas of Guilty, approved draft, 1968,
Sec. 1.5 and ABA Standards Relating to The Function of the Trial Judge,
approved draft, 1972, Sec. 4.1(b).

24

We believe that it is appropriate at this time for the district courts of this circuit
to take similar prophylactic measures to cope with this problem. In connection
with their rule 11 inquiry on a plea of guilty, district judges should in essence
inform the defendant that plea bargaining is specifically approved by the court
and that he may truthfully inform the court of any plea negotiations "without
the slightest fear of incurring disapproval of the court." Inquiry should also be
made of counsel for the parties as to any plea negotiations. Should inquiry
reveal the presence of plea negotiations, counsel for the parties should be
required to state plainly the terms of record and the defendant should state of
record whether he understands them and concurs. The court, of course, is not
obligated to accept any recommendation or bargain reached by the parties, and
it should so inform the defendant when any bargain is disclosed. Compliance
with this procedure should avoid ostensible claims by defendants of unfairness
in the guilty plea process and minimize the escalating number of cases
complaining of aborted plea bargains, involuntary pleas, or frustrated plea
expectations.

2. COMPLIANCE WITH RULE 11.

25
26

This case also presents issues relating to the requirements of rule 11 and the
proper role of a reviewing court in implementing them. Rule 11, in part states:

27 court may refuse to accept a plea of guilty, and shall not accept such plea . . .
The
without first addressing the defendant personally and determining that the plea is
made voluntarily with understanding of the nature of the charge and the
consequences of the plea. . . . The court shall not enter a judgment upon a plea of
guilty unless it is satisfied that there is a factual basis for the plea.
28

After a careful examination of the record we are satisfied that rule 11 was
complied with under the standards we enunciated in United States v. Davis, 470
F.2d 1128 (3d Cir. 1972). In explaining the nature of the charges, the court read
the substance of the indictments to which the defendants were pleading.2 This

is the procedure that we approved in Davis. In Woodward v. United States, 426

F.2d 959 (3d Cir. 1970), this court stated:
29 satisfy itself that the defendant actually does comprehend the charges, the court
To
must explain the meaning of the charge and what basic acts must be proved to
establish guilt.
30

Id. at 962. That mandate does not preclude an explanation by reading the
indictment. The district court should exercise its discretion in determining when
additional explanation of the charge is necessary.3

31

We are also satisfied that the trial court made an adequate inquiry into the
voluntariness of the plea. At the April 22, 1970, hearing, the court first
questioned the defendants about the New Jersey indictment. Judge Coolahan
explained to Bonnacci that he was entitled to a jury trial at which the
Government would have to prove its case beyond a reasonable doubt; and that
the guilty plea waived those rights. Similarly, he asked whether there were any
promises or inducements or assurances of any sort, and whether the pleas were
voluntary and of defendant's own free will. Bonnacci responded specifically to
each inquiry, satisfying the court that the plea was freely and voluntarily made.
The court then asked Paradiso whether he heard the questions addressed to
Bonnacci and whether his plea was of his own free will. Paradiso replied "yes"
to both. The court then asked similar questions of both defendants with regard
to the New York indictment.

32

As to the New York indictment, the court again at the hearing on June 5, 1970,
advised the defendants of their rights to a jury trial and proof beyond a
reasonable doubt. He also asked them whether there were any pleas,
inducements, or other sort of coercion motivating their pleas. Again, each
replied in the negative. At this point the court told defendants that it would not
be bound by any agreement as to sentence or promise of leniency.

33

The trial court also made an adequate inquiry into the defendants'
understanding of the consequences of the pleas. At the April 22, 1970 hearing,
the trial court asked both defendants whether they understood that the
maximum possible sentence on count 1 of the New Jersey indictment was 5
years and a $10,000 fine. They both said "yes." Similarly, both at that hearing
and at the June 5 hearing, they said they understood that the maximum
sentence on the New York charges was 10 years and a $5,000 fine.

34

We do not think rule 11 requires an explicit admonition by the court that

sentences may be imposed consecutively. This power is implicit in the separate

explanation of the possible sentence on each count. To avoid any possible
misunderstanding and to minimize unnecessary appeals, it would be advisable
for district courts to explicitly state that sentences can be consecutive; but we
will not impose any rigid rule to that effect.
35

Rule 11 does not impose any requirement that the defendant be informed prior
to the acceptance of his plea of the actual sentence he will receive. No question
of ineligibility for probation and parole is raised in this case. See Berry v.
United States, 412 F.2d 189 (3d Cir. 1969).

36

The final element of rule 11, ascertainment of the factual basis for the plea, was
also sufficiently met. At the April 22 hearing, immediately after reading count
1 of the New Jersey indictment to Bonnacci, the court asked him whether he
understood that in entering a guilty plea he admitted guilt to that count. There
was no specific questioning of Paradiso on this point with regard to the New
Jersey charges, but the judge did ask Paradiso whether he had heard all the
questions asked Bonnacci. That count did recite the facts of the alleged offense.
At that same hearing both defendants, after having the New York indictment
read to them, including its recitation of the facts of the offense, said that they
understood that a guilty plea meant they admitted that they did the things
charged in the indictment.

37

As the Supreme Court noted in McCarthy v. United States, 394 U.S. 459, 467
n. 20, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), and this circuit has previously
affirmed, the inquiry required by rule 11 must necessarily vary from case to
case, and "'[m]atters of reality, and not mere ritual, should be controlling."' See
United States v. Davis, 470 F.2d at 1131. Reviewing the proceedings in this
case, we are satisfied that there was an adequate inquiry into the factual basis
for the plea. We decline to follow the precedents in several other courts that
seem to indicate that a plea is invalid under rule 11 if the trial court does no
more than read the indictment.4 The adequacy of reading from the indictment
will depend on the facts of the particular case.5

38

We do not reach the question whether the court's possession of Bonnacci's

presentence report at the sentencing hearing on June 5, 1970, would be
sufficient compliance with the rule requirement that the court satisfy itself of
the factual basis for the plea.

3. WITHDRAWAL OF PLEA UNDER RULE 32(d).

39
40

Paradiso and Bonnacci also argue that they are entitled under rule 32(d) to

40

Paradiso and Bonnacci also argue that they are entitled under rule 32(d) to
withdraw their pleas. That rule provides:

41 Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or of nolo

(d)
contendere may be made only before sentence is imposed or imposition of sentence
is suspended; but to correct manifest injustice the court after sentence may set aside
the judgment of conviction and permit the defendant to withdraw his plea.
42

This circuit has established that different standards are to be applied in

determining whether a plea may be withdrawn prior to sentencing than are to be
applied to a request for withdrawal after the sentence. "In weighing motions for
withdrawal of a guilty plea before sentencing, the test to be applied by the trial
courts is fairness and justice." United States v. Stayton, 408 F. 2d 559, 561 (3d
Cir. 1969). On the other hand, "a post-sentence motion should be denied unless
'manifest injustice' to the defendant will result." Id. Thus, although both
determinations are committed to the discretion of the district court, the standard
by which a post-sentence motion is judged is more rigorous. The more severe
standard is applied to avoid motions for withdrawal based on disappointment in
the terms of the sentence. Id. at 560. In light of this purpose, although
appellants have made an effort to cast this question in terms of pre-sentence
standards, we believe the trial court properly applied the post-sentence
standard. The reason for the request in this case was clearly disappointment in
the sentence the appellants expected the trial court to impose. We find no abuse
of discretion in its conclusion that "manifest injustice" would not result from a
denial of the requests to withdraw the pleas.

43

In light of our disposition of the merits, we need not consider the Government's
contention that appellants waived their right to challenge their plea by failing to
file an appeal within the 120 day time period that the court specified at the June
12, 1970, hearing. We note, however, that there is serious question whether the
principle of United States ex rel. Callahan v. Follette, 418 F.2d 903 (2d Cir.
1969), applies because of Bonnacci's absence at the time the statement was
made.

44

The judgment of the district court will be affirmed.

Rule 319(b) of Pennsylvania Rules of Criminal Procedure, 19 P.S.Appendix,

adopted October 3, 1972, provides:
(1) The trial judge shall not participate in the plea negotiations preceding an
agreement.

(2) When counsel for both sides have arrived at a plea agreement they shall
state on the record in open court, in the presence of the defendant, the terms of
the agreement. Thereupon the judge shall conduct an inquiry of the defendant
on the record to determine whether he understands and concurs in the
agreement.
(3) If the judge is satisfied that the plea is understandingly and voluntarily
tendered, he may accept the plea. If thereafter the judge decides not to concur
in the plea agreement, he shall permit the defendant to withdraw his plea.
2

On April 22, 1970, the court first accepted guilty pleas to both counts. The
judge addressed Bonnacci as to the New Jersey charges as follows:
The Court: Well, Count I of the indictment states that on or about the 21st day
of May, 1968 and continuously thereafter, up to and including the 1st day of
April, 1969, in this district, you, together with others named in the indictment
did willfully and knowingly conspire and agree together with each other and
with other persons whose names to the Grand Jury are unknown to commit an
offense against the United States, that is to knowingly have in their possession
good [sic] and chattels valued in excess of $100, knowing said goods and
chattels to have been stolen. The said goods and chattels having been stolen and
carried away from motor trucks while moving as being part of and constituting
an interstate state shipment of freight, in violation of Section 659, Title 18 of
the United States Code.
In furtherance of said conspiracy and to effect the objects thereof, the
defendants did commit the following overt acts.
On April 1, 1969, the defendants Anthony Richard Bonnacci, Michael Joseph
Paradiso and George Vincent Remini met at a warehouse located at 421
Schiller Street, Elizabeth. That on March 29th, 1969, the defendants Anthony
Richard Bonnacci and George Vincent Remini, and others came to a warehouse
located at 429 Schiller Street, Elizabeth, New Jersey, in violation of Section
371 of Title 18 of the United States Code.
Now, in entering a plea of guilty, Mr. Bonnacci, you admit that you were guilty
to this first count, do you understand that?
Defendant Bonnacci: Yes.
The court then asked Paradiso whether he heard all the questions asked of
Bonnacci, to which Paradiso responded in the affirmative and said that he had
nothing to say with regard to the questions.

The court addressed both defendants with regard to the New York charges as
follows:
The Court: Do you understand that this indictment charges both of you that on
or about the 13th day of December, 1969, within the Eastern District of New
York, the defendant, Michael Paradiso, and the defendant, Anthony Bonnacci
and other named defendants therein had in their possession approximately 100
unfinished pieced goods and cut goods and various cartons and packages
valued in excess of $100 which merchandise then stolen was moving as and
constituted an interstate shipment of freight from New York to Miami, Florida,
the defendants knowing the same to be stolen, and in violation of Title 18,
United States Code, Section 659 and 2.
Now, gentlemen, you understand that if the Court accepts this transfer, the only
thing for you to do is enter a plea of guilty to this indictment which your
counsel has indicated that you intend to do. Do you understand that?
Both defendants responded affirmatively.
3

At least one other circuit has approved the procedure of reading the indictment
in order to satisfy this element of rule 11. See Kress v. United States, 411 F.2d
16, 21 (8th Cir. 1969). Two circuits seem to say that reading the indictment is
not enough to satisfy the requirement that the trial court ascertain the factual
basis of the plea. See Majko v. United States, 457 F.2d 790, 791 (7th Cir.
1972); United States v. Cody, 438 F.2d 287 (8th Cir. 1971). There is, however,
no indication that they would extend this holding to the element of the
defendant's understanding of the nature of the charges. Halliday v. United
States, 380 F.2d 270 (1st Cir. 1967), relied upon by appellants, is inapposite
because the court did not in that case read the indictment in open court. Rather,
it appears that the court merely determined that the defendant's counsel had
reviewed the indictment with him

See, e. g., Majko v. United States, 457 F. 2d 790, 791 (7th Cir. 1972); United
States v. Cody, 438 F.2d 287 (8th Cir. 1971); United States v. Steele, 413 F.2d
967 (2d Cir. 1969)

In Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427
(1972), the Supreme Court stated in dictum that rule 11 "makes clear that the
sentencing judge must develop on the record, the factual basis for the plea, as,
for example, by having the accused describe the conduct that gave rise to the
charge." Although the suggested example is not compulsory, its merits are
obvious and such procedure is highly desirable