Plea Agreement at 9. Defendant gave the interview without clearing or submitting to Naval Intelligence any of the information he discussed with the reporter.
Defendant characterizes the Government's discussion at sentencing as alleging that he disclosed classified information to the reporter in violation of the agreement. At the hearing, the Court made clear that it understood the Government's argument differently: that the mere fact of the interview revealed defendant's view that his assessment of what could or could not be disclosed should control. See Sentencing Transcript at 60. The episode also was relevant to defendant's veracity. These were certainly factors the Court could consider in imposing sentence. Defendant's counsel contested the idea that the interview revealed classified information, but he agreed fully with the Court that defendant had utterly failed to comply procedurally with the provision quoted above. There was no factual dispute whatsoever in that regard.
The Government's allocution on this point did not breach the plea agreement.
C. The Voluntariness of Defendant's Plea
Defendant claims that his plea was involuntary, since it was "wired" to that of his wife, and that this fact, coupled with the Court's failure at sentencing to directly inquire whether his plea was voluntary, mandates withdrawal. Assuming without deciding that these claims are timely, both must fail. First, although the Supreme Court had reserved judgment on prosecutorial promises of lenient or adverse treatment of third parties in plea negotiations, see Bordenkircher v. Hayes, 434 U.S. 357, 364 n. 8, 54 L. Ed. 2d 604, 98 S. Ct. 663, 668 (1978), the Circuits addressing the issue have approved such arrangements. In Politte v. United States, 852 F.2d 924, 930 (7th Cir. 1988), the court specifically held "that a good faith prosecution of a third party, coupled with a plea agreement which provides for a recommendation of a lenient sentence for that third party, cannot form the basis of a claim of coercion by a defendant seeking to show that a plea was involuntarily made." See also Bontkowski v. United States, 850 F.2d 306, 313 (7th Cir. 1988) (threat of prosecution of wife, previously indicted, "cannot support a claim of coercion"); Harman v. Mohn, 683 F.2d 834, 837 (4th Cir. 1982) (same); United States v. Nuckols, 606 F.2d 566, 569 (5th Cir. 1979) (same; "As a threshold matter, we see no constitutional infirmity in broadening plea negotiations so as to include third party beneficiaries.").
By the same token, the Court's failure specifically to inquire of defendant by rote whether his plea was voluntary neither is cognizable under section 2255 nor constitutes a "fundamental defect which inherently results in a complete miscarriage of justice." See Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962). Rule 11 provides that the Court "shall not accept a plea of guilty or nolo contendere without first, by addressing the defendant personally in open court, determining that the plea is voluntary . . . ." Fed. R. Crim. Pro. 11(d). In United States v. Timmreck, 441 U.S. 780, 60 L. Ed. 2d 634, 99 S. Ct. 2085 (1979), the Supreme Court held that technical violations of Rule 11 are "neither constitutional nor jurisdictional," and foreclosed relief on such complaints under section 2255 altogether. Id. at 784.
Even assuming that the plea agreement provision dealing with defendant's wife created a sufficiently "aggravating circumstance" to avoid this initial hurdle, see id. at 785, no manifest injustice occurred at the sentencing hearing in this case, and no section 2255 relief obtains. The Court satisfactorily determined that the plea was voluntary through a series of questions addressed to defendant and his counsel, including inquiries regarding defendant's understanding of the charge and its consequence, his rights at trial, and the extent to which defendant had discussed all aspects of his actions with his attorney. Defendant's counsel then volunteered that defendant came before the Court "knowingly, and voluntarily enters his plea." Transcript of Plea Proceedings at 7. Shortly thereafter, the Court pointedly inquired of defendant: "Do you know of any reason that I shouldn't accept your plea?" He responded: "No sir, I don't." Id. at 8.
This exchange in open court unquestionably satisfied Rule 11. The Court's questioning of defendant and his counsel formed a perfectly adequate basis for the Court's determination that the plea came voluntarily. Defendant was provided ample opportunity to bring his claimed misgivings to light. Instead, he persuaded the Court that he understood the consequences of his actions, and faced them willingly. The Rule requires nothing more.
The Government lived up to its obligations under the plea agreement. It refrained from advocating a life sentence, limited its allocution to the facts and circumstances of defendant's crimes and adequately advised the Court of defendant's cooperation. The Government's discussion of defendant's failure to comply with the plea agreement in granting a media interview, as the Court understood it, was directly relevant to sentencing. Lastly, the provision for joint pleas by defendant and his wife did not render defendant's plea involuntary, and the Court adequately determined the voluntariness of that plea as required by Rule 11. Defendant's motion to withdraw Guilty Plea will therefore be denied.
III. Defendant's Motion for Access to the Classified Weinberger Declaration
On the assumption that classified portions of the Weinberger Declaration would bolster defendant's claim that the Declaration implicitly argued for a life sentence, defendant's newly-retained counsel received a security clearance and sought access to the document as well as other classified sentencing memoranda. The Government resisted, and defendant filed a motion for an order permitting him to review it. The Court holds that the materials need not be provided to defendant's counsel to assist his section 2255 effort.
There are analogous cases dealing with requests for access to presentence reports to support motions to reduce sentence. In United States v. Lewis, 743 F.2d 1127 (5th Cir. 1984), the Fifth Circuit upheld the District Court's refusal to allow access to a presentence report, citing a number of factors: (1) the defendant "alleged no facts to show that the sentence was a gross abuse of discretion" -- his claims were "wholly conclusory;" (2) lack of access did not prevent his counsel from presenting the information contained in the presentence report -- defendant's background and record; (3) "Furthermore, [defendant] himself has read the report, and he and his prior counsel commented upon it at sentencing" -- there was no allegation that prior counsel was unavailable or incompetent, or that defendant did not remember or understand the report. According to the court in Lewis, refusal to supply the report post-sentence was no due process or Sixth Amendment violation. Id. at 1129. Similarly, United States v. Bernstein, 546 F.2d 109, 110 (5th Cir. 1977) held that it was no error to withhold a presentence report from new counsel seeking a Rule 35 reduction in sentence. See also United States v. Buckley, 847 F.2d 991, 1003 (1st Cir. 1988), cert. denied, 488 U.S. 1015, 109 S. Ct. 808, 102 L. Ed. 2d 798 (1989).
Each of the factors identified in Lewis apply with some force here. As pointed out in section II.A, supra, defendant's claims of exaggeration and inaccuracy in the unclassified portion of the Weinberger Declaration simply do not withstand scrutiny. The sentence here was well within the Court's discretion. Defendant's current counsel has access both to defendant and, presumably, prior counsel and his files. More importantly, defendant's previous attorney, who was quite competent, commented extensively on the Weinberger Declaration and other classified submissions. There is no allegation that either defendant or prior counsel cannot recall the substance of these materials.
Defendant attempts to distinguish this line of cases by casting the Declaration in particular as a "pleading," to which he believes he should be given automatic access. The prosecution did not prepare the Declaration; instead, the Secretary of Defense prepared it. While the Secretary may not have been neutral and detached, his submission is analogous to a presentence report. Both types of material are evidentiary in nature and designed to assist the Court in sentencing by providing context for a given crime which at points is unavoidably subjective. Moreover, defendant's claim to other classified sentencing material relies completely on perceived exaggeration and inaccuracy in the Weinberger Declaration. This perception is totally unfounded and defendant has made no showing to justify access to these sensitive documents.
Defendant's Motion for Access to Materials Presented at Sentencing will be denied.
An appropriate Order accompanies this Memorandum.
ORDER - September 11, 1990, Filed
Upon consideration of Defendant's Motion to Recuse the Court under 28 U.S.C. § 455, Motion to Withdraw Guilty Plea, Supplemental Memorandum in Support of Motion to Withdraw Guilty Plea and Motion for Access to Materials Presented at Sentencing, the Government's opposition thereto and the entire record in this matter, and in accordance with the Memorandum entered this date, it is by the Court this 10th day of September, 1990,
ORDERED, that Defendant's Supplemental Memorandum in Support of Motion to Withdraw Guilty Plea, and related pleadings, and Defendant's Motion to Recuse the Court under 28 U.S.C. § 455 and related pleadings, be and hereby are UNSEALED, and the Clerk shall file them on the public record; and it is
FURTHER ORDERED, that Defendant's Motion to Recuse the Court under 28 U.S.C. § 455 be and hereby is DENIED; and it is
FURTHER ORDERED, that Defendant's Motion to Withdraw Guilty Plea be and hereby is DENIED; and it is
FURTHER ORDERED, that Defendant's Motion for Access to Materials Presented at Sentencing be and hereby is DENIED.