Appeal from judgment in the United States District Court for the Eastern District of New York, Henry Bramwell, J., convicting Joseph Burruezo, after a plea of guilty, of three counts of mail fraud in violation of 18 U.S.C. § 1341. Appellant claims that plea should be vacated because district court failed to comply with Fed. R. Crim. P. 11(e). Judgment of district court vacated and case remanded to allow appellant to plead again.
FEINBERG, Chief Judge, CARDAMONE, Circuit Judge, and RE, Chief Judge, United States Court of International Trade.*fn*
Joseph Burruezo appeals from a judgment of conviction in the United States District Court for the Eastern District of New York, Henry Bramwell, J., after a plea of guilty to three counts of mail fraud in violation of 18 U.S.C. § 1341. Burruezo contends that his plea of guilty should be vacated because the district judge failed to comply with the procedural requirements of Fed. R. Crim P. 11(e). The government does not oppose the relief sought. For reasons set forth below, we agree that the plea should be vacated and that Burruezo should be allowed to plead anew.
In August 1981, an indictment (the New Jersey indictment) was filed in the United States District Court for the District of New Jersey, charging Burruezo and another defendant*fn1 with one count of conspiracy and seven substantive counts of mail fraud. Thereafter, in June 1982, a two-count information (the New York information) was filed in the United States District Court for the Eastern District of New York, charging Burruezo and his co-defendant with two counts of mail fraud.
After his arrest, Burruezo apparently began cooperating with federal authorities in their investigation of fraud in the automobile insurance industry. Burruezo appears to have entered into a written plea agreement with the offices of the United States Attorney for the Eastern District of New York and for the District of New Jersey. In that agreement, which is not part of the record on appeal and was not before the district judge, we are told that Burruezo agreed to continue to cooperate with the federal authorities in their investigation. In return for and subject to that cooperation, the government agreed to permit Burruezo to plead guilty to both counts of the New York information and one substantive count of the New Jersey indictment. The pleas would be taken and sentence imposed in the Easteern District of New York pursuant to Fed. R. Crim. P. 20. The government also agreed, among other things, that "any prison sentences imposed on [the] pleas of guilty shall not exceed ten years." While the government made clear that it would not make specific recommendations with respect to sentencing, it agreed to bring Burruezo's cooperation to the attention of the court.
In June 1982, Burruezo appeared before Judge Bramwell for the purpose of pleading guilty. The judge proceeded to question Burruezo to make sure that the pleas to the three counts were voluntary, that Burruezo understood the various constitutional rights he was giving up and that there were factual bases for the pleas. When the judge asked Burruezo whether he had been made any promises which had induced the plea of guilty, the prosecutor requested that the response be given at the sidebar. There, on the record, the prosecutor disclosed to the court the terms of the plea agreement as follows:
MS. GIACALONE [Attorney for the government]: Pursuant to the plea agreements entered between these defendants and the Government, the Government has agreed that, with the Court's consent, of course, they will not be sentence [sic] to more than ten years in jail. That any sentence on the New Jersey indictment would be concurrent with any sentence on the Information filed in this Court, since they are both five year counts.
That there would be therefore, a ten year ceiling. In addition, that the Government dismiss the remainder of Indictment No. 81 CR 689, which is the New Jersey Indictment.
Moreover, the Government has agreed that it will not indict these defendants for any crimes committed in the course of this insurance scheme, which ran approximately one year. Which ran from August of '80 through August of '81. That the defendants agreed to cooperate and that we have agreed to make their cooperation known to the Court.
While the plea agreement was subsequently mentioned during the plea proceeding, the judge did not indicate whether he accepted the terms of the agreement, rejected its terms or believed the terms to be a non-binding recommendation. The judge then accepted Burruezo's plea of guilty to both counts of the New York information and one count of the New Jersey indictment.
Sentencing was adjourned twice. During the first hearing regarding adjournment, a colloquy took place between Judge Bramwell and Burruezo concerning the relevance of Burruezo's cooperation to the ultimate sentencing decision. The colloquy is set forth in the margin.*fn2 In response to the comment of Burruezo's counsel that his client's cooperation was "extensive" and "critical . . . to the government's case," the judge responded that Burruezo's cooperation was with the government and not with the court. He stated that while cooperation was a factor to be considered, "the Court can act independently of whatever arrangements you may make with the Government. . . ." In response to the judge's inquiry, Burruezo replied that he understood what the judge had just said. However, the judge did not ...