Legal Doc: Judge Stephen Williams Dissenting Opinion

March 20, 1992 - Posted to the web November 23, 2004




WILLIAMS, Circuit Judge, dissenting in part: I agree with the majority that the "plea wiring" was not an unlawful coercion of Pollard's guilty plea and that Chief Judge Robinson did not abuse his discretion in refusing to recuse himself or to conduct a hearing into the claim of ex parte contacts. But because the government's breach of the plea agreement was a fundamental miscarriage of justice requiring relief under 28 U.S.C. § 2255, I dissent.

Before turning to the specifics of the government's failure to behave at sentencing as it had promised, there are some preliminary matters.

1. "Cause and prejudice": Relief is to be granted under 28 U.S.C. § 2255, the statutory replacement of common law habeas, if the petitioner shows a "fundamental defect [resulting in] a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S, 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962). If the petitioner failed to lodge a contemporaneous objection to the challenged ruling, and failed to appeal, then he may also have to show "cause and prejudice", the first to excuse his "double procedural default", the second to show the actuality of injury from the error. See United States v. Frady, 465 U.S. 152, 167-68, 71L. Ed. 816, 102.S. Ct. 1584 (1982). The government argues that Pollard must show cause and prejudice because he failed to object to the government's allocution and to appeal his sentence. Because the majority believes that Pollard has not satisfied even the "fundamental defect" standard, it need not address "cause and prejudice", see Maj. Op. at 10-11, but I must.

As the government at no point below asserted the cause and prejudice standard, it has waived the defense. At best the government may be said to have grazed the issue. In its Opposition to Motion to Withdraw Guilty Plea it noted the three-year delay between sentencing and Pollard's § 2255 motion, id. at 5-6, the failure of Pollard to object to the government's allocution at the sentencing hearing, id., and Pollard's "waiver" of his claim that the government failed to describe his cooperation adequately, id. at 24 n.10. But the government made the first two points solely to boost an argument that Pollard did not at the time of allocution consider its conduct a breach, and it made the last in a vague footnote throwaway line without mention of the "cause and prejudice" standard or citation to any case invoking that standard. A party demanding strict adherence to principles of finality is in a weak position to ask that its own lapses be disregarded, and accordingly the circuit courts have treated government silence as a waiver. See, e.g., United States v. Hicks, 945 F.2d 107,108(5th Cir. 1991); United States v. Hall, 843 F.2d 408, 410 (10th Cir. 1988); United States ex. rel. Bonner v. DeRobertis, 798 F.2d 1062, 1066 (7th Or. 1986); but cf. Titcomb v. Virginia, 869 F.2d 780, 782-84 (4th Cir. 1989) (no waiver where "it would appear" that the state raised the issue in its second response and where the evidence of the procedural default was part of record). Finding waiver is especially sensible where, as here, relief can take the form of an order merely requiring resentencing, not a vacation of the plea, so that the government is most unlikely to suffer any injury from loss of memories or other evidence.

2. Deference: My understanding of the scope of our review is largely similar to the majority's. We review a trial court's interpretation of a plea agreement de novo, just as we review an interpretation of an ordinary contract de novo (unless the interpretation turns on extrinsic evidence). See, e.g., HOH Co. v. Travelers Indem, Co., 284 App. D.C. 191, 903 F. 2d 8, 12 n.6 (D.C. Cir, 1990) (contract interpretation); United States v. Western Electric Co. , 283 App. D.C. 299, 900 F.2d 283, 294 (D.C. Cir. 1990) (interpretation of civil settlement); see also Maj. Op. at 17-18. We review a trial court's findings of pure fact (what happened) under the clearly erroneous standard. And we defer to district court findings even on fact-intensive issues of characterization, such as whether particular conduct, about which there is no factual dispute, violates a norm that courts have defined with as much clarity as they can expect to achieve. Thus in Kendrick v. Bland, 931 F. 2d 421 (6th Cir. 1991), the court applied the clearly erroneous standard to findings as to whether specific conduct by prison officials - e.g., cancellation of club activities - constituted "institution-wide" violations of a consent decree.

The appellate deference in this last category is somewhat anomalous, as the characterization is in a way part of the law-finding process; it answers a normative question (whether the conduct was acceptable or not), and thus in some measure refines the norm. But where the characterization process is extremely fact-intensive, the appellate decision may not yield a useful contribution to the formulation of legal rules, so that appellate judges' duplication of the trial court's effort would consume judicial resources for very little return.1 See Mars Steel Corp. v. Continental Bank, N.A.F. 2d 928, 933-36 (7th.Cir,1989) (en banc) (Easterbrook, J.). By the same token, however, review for clear error cannot fade off into complete deference, else the appellate court's law-finding (or law-forming) function would be disconnected from the real world. Moreover, presumably because of a recognition of the law-forming aspect of fact-intensive characterizations, the decisions on deference appear replete with contradictions and inconsistency. See Wright & Miller, Federal Practice and Procedure §§ 2585-89 (1971 & Supp. 1990). Perhaps one can do no better than to say that there is deference, but that the special character of the practice informs its nature.

1. It could be argued that the interpretation of specific contract language, in the absence of extrinsic evidence, is also a form of fact-specific characterization. But the "product" of interpretation is the articulation of a norm, i.e., a paraphrase of the contract language for application to particular types of conflicts, so that the process would seem to require appellate courts to rule de novo so as to achieve uniform rules as nearly as possible.

Where a defendant claims that the government's allocution breached a plea agreement, there is no deference to the sentencing judge's view of the actual effect of the allocution on him or her (as opposed to the projected or inferred effect on a hypothetical judge). Compare Maj. Op. at 17-18. This is for the simple reason that the actual effect on the actual judge is irrelevant. Santobello v. New York, 404 U.S. 257, 30 L. Ed, 2d 427, 92 S. Ct. 495 (1971), put any such inquiry out of bounds, perhaps because the sentencing judge would be in an awkward position making "findings" about his own state of mind. The Court ordered relief despite declaring that it had "no reason to doubt" the judge's statement that "the prosecutor's recommendation did not influence him". Id. at 262-63.

3. Principles of plea interpretation: The majority correctly notes that Pollard's argument in some respects "rests on nuance", Maj. Op. at 21, and that the government did not ask for a life sentence "in so many words", id. at 20, or use "words . . . synonymous with a life term", id. at 21. Without explicitly setting forth a general approach, the majority appears to apply a principle that the government should be held only to the letter of its bond.

Such an approach puts an impossible burden on contract drafters. A party cannot anticipate every evasive move that another party may make, or every opportunity for evasion. Brittle interpretation makes for long contracts, and even the longest will have loopholes. Accordingly, as with other contracts, courts ordinarily reject literalism and read plea agreements as a reasonable person would understand them. United States v. Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989) (citing cases); United States v. Carbone, 739. F.2d 45, 46 (2d Cir. 1984); United States v. Crusco, 536. F.2d 21, 26 (3d Cir, 1976) (criticizing "stubbornly literal" reading of plea agreement).2 Finding an implicit duty of good faith, though it may sound more drastic, amounts to the same thing if it is understood as "a stab at approximating the terms the parties would have negotiated had they foreseen the circumstances that have given rise to their dispute," Market Street Associates Ltd. Partnership v. Frey, 941 F.2d 588, 595 (7th Cir. 1991). Thus in United States v. Bowler, 585 F.2d 851, 853-54 (7th Cir. 1978}, the court construed a provision that the government's sentencing recommendations "may be reduced, based upon [various] personal factors" to include an implicit promise to consider the factors specified. See also United States V. Brown, 500 F.2d 375 (4th Cir,1974) (prosecutor's statement to the judge that he recommended three years because of the plea agreement, though he had "some problems" with this sentence, violates agreement to recommend no more than three years); Snowden v. State, 33 Md. App. 659, 365 A. 2d 321(Md. Sp. Ct. App. 1976) (promise to recommend probation breached by prosecutor who did so but, when asked by the judge whether he still adhered to this promise, said, "I believe we must, I believe we must").

2. The 9th Circuit commonly says that plea agreements should be interpreted both as a reasonable person would understand them and literally, see, e.g., United States v. Travis, 735. F.2d 1129, 1132 (9th Cir. 1984), despite the apparent contradiction. But the case repeatedly cited in favor of literalness does not support such a view, United States V. Garcia, 519 F.2d 1343, 1344 (9th Cir. 1975) (finding breach of plea agreement because government failed to abide even by the literal terms of the contract - no discussion of whether the violation had to be of the literal terms for it to be remediable), while the case typically cited for the reasonable person standard indeed favors the reasonable person perspective, United States v. Arnett, 628 F.2d 1162, 1164 (9th Cir. 1979) (court looks to the facts of each case to decide what was "reasonably understood by [defendant] when he entered his plea of guilty," quoting Crusco, 536 F.2d at 23, 27, and the terms of agreement are determined by "objective standards").

Judicial insistence on a reasonable and not a niggling interpretation for plea agreements is hardly surprising. The defendant has given up his right to a trial that satisfies due process, so if a plea rests "in any significant degree on a promise or agreement of the prosecutor . . . such promise must be fulfilled." Santobello, 404 U.S. at 262. If fulfillment of the promise is to mean anything, it cannot refer only to the promise pared to its literal bone. While the government is a repeat player in this field and has an interest of its own that its word be good, experience in the commercial world shows that even repeat players lapse. Here, too, reasonable judicial enforcement not only assures fairness to the individual who may be the victim of a slip-up or of an agent's excessive zeal, but also makes it easier for the government to build confidence in its word.

* * *

Pollard's plea agreement required him to plead guilty and to cooperate. On its side, the government made three promises of significance here. First, it would bring to the court's attention "the nature, extent and value of [Pollard's] cooperation and testimony" and would represent that the information supplied was of "considerable value to the Government's damage assessment analysis, its investigation of this criminal case, and the enforcement of the espionage laws." Maj. Op. at 5. Second, it would not ask for a life sentence (this promise was implicit but is not contested by the government), though it would be free to recommend a "substantial period of incarceration". Id. at 5-6. Third, the government limited its reserved right of allocution to "the facts and circumstances" of Pollard's crimes. Id. at 6. The government complied in spirit with none of its promises; with the third, it complied in neither letter nor spirit.

Though the government obligated itself to call attention to the "considerable value" of Pollard's cooperation, in its principal sentencing memorandum it buried its sole discussion of that cooperation in a section entitled "FACTORS COMPELLING SUBSTANTIAL SENTENCE". The first paragraph of this section discussed the extent of Pollard's offense, saying that he had compromised "thousands of pages of classified documents", and recommended a "substantial period of incarceration". J.A. 160. The second paragraph called Pollard's activities a "flagrant breach of . . . trust", a breach "all the more venal in that [despite Pollard's contrary claims] it is clear that the money and gifts provided by the Israelis were significant, if not the primary factors motivating defendant". Id. at 161. The third paragraph said that Pollard "will undoubtedly urge the Court also to consider his post-arrest conduct, i.e., [his] submission of a plea of guilty and his cooperation . . .," and noted the obvious point that plea bargaining and cooperation "may be considered by courts at the time of sentencing." Id. In paragraph four the government provided nominal compliance with its promise, saying that Pollard "revealed a substantial amount of information regarding . . . the espionage operation which was previously unknown to the government" and that this cooperation "has proven to be of considerable value to the government's damage assessment analysis, and the ongoing investigation of the instant case".3 Id. at 162. In the fifth paragraph, though acknowledging that the defendant had been candid and informative, the government told the court that Pollard delayed his cooperation in order to assist the escape of three coconspirators, devoting more space to this caveat than to its favorable words for Pollard's cooperation. Id. The rest of the section, of course, went on with further denunciations.

3. Note the omission of any reference to the value of Pollard's cooperation to "the enforcement of the espionage laws", the only broad purpose mentioned by the plea agreement.

Thus the government came forth with the magic words "of considerable value", and it even mentioned two of the three general areas of inquiry, specified by the agreement, to which Pollard's cooperation contributed. But by placing the discussion square in the middle of its reasons why the sentence should be substantial, and by its heavy stress on the cooperation's imperfections, it succeeded in conveying the impression that, overall, the value was not "considerable" but slight. Perhaps the value was slight, but if so, then the government should not have embraced an obligation to say the contrary. In United States v. Fiscn, 863 F.2d 690 (9th Cir. 1988), the court found a plea agreement violated where the government, though obliged to tell the court of defendant's cooperation, neither offered details on its own nor endorsed the defense account, saying only that defendant had "been cooperating in helping prosecute the coconspirators". The government's breach here is no less.

It is not clear from the district court's rejection of this claim whether the court construed the agreement as leaving the government free to convey the message that Pollard's cooperation, while containing some elements of considerable value, was on an overall basis not worth much, or whether the court found that the government had said that the cooperation was of considerable value overall. See United States v. Pollard, 747F. Supp. 797, 804 (D,D,C, 1990). If the first, I think the contract interpretation was wrong; if the second, I believe the finding was clear error.

On the promise not to ask for a life sentence, the government coupled its adherence to the letter with an even more flagrant violation of the agreement's spirit. It presented memoranda from Secretary of Defense Weinberger saying that "no crime is more deserving of severe punishment than conducting espionage activities against one's own country", J.A. 467, that "it is difficult for me . to conceive of a greater harm to national security than that caused by the defendant", id. at 263, and that "the punishment imposed should reflect the perfidy of [his] actions, the magnitude of the treason committed, and the needs of national security", id. at 264.

While these remarks did not expressly endorse a life sentence (or use a synonym, compare Maj. Op. at 21), the repeated use of superlatives implied an appeal for the maximum. Weinberger's reference to treason took the point further. Whereas treason carries the death penalty, 18 U.S.C, §2381, and involves aiding the nation's enemies, U.S. Const., Art. Ill, § 3, cl. 1, Pollard was charged with espionage, carrying a maximum of life imprisonment and encompassing aid even to friendly nations - here, Israel. Of course the sentencing judge knew the difference, but the government's barrage expressed a viewpoint that the government had promised not to express. Weinberger's subtext was that the heaviest possible sentence was the lightest that was just. The trial court's conclusion to the contrary, 747 F. Supp. at 803, was clearly erroneous.

That the government had reserved the right to seek "a substantial period of incarceration" does not change the analysis. Compare Maj. Op. at 21. Of course the government remained free to lay out the details of the crime and its impact on national security. These, coupled with an explicit plea for a substantial sentence, might well have secured the government's objective. But the availability of these methods scarcely entitled it to wheel out the heaviest rhetorical weapons, calling for a life sentence in all but name.

Finally, despite its agreement to confine its allocution to "the facts and circumstances" of the offenses, the government told the district judge that Pollard's expressions of remorse were "both belated and hollow", J.A. 371, and "grounded in the fact he was caught" (emphasis in original), id.; that Pollard was a "recidivist" who was "contemptuous of this Court's authority" and "unworthy of trust", id. at 359; that Pollard felt "blind contempt" for the U.S. military, id. at 318, and had a "warped" and "skewed" perspective, id. at 319; that Pollard was "traitorous", id. at 369, "arrogant [and] deceitful", id. at 315 (and see id. at 316, 320), "without remorse", id. at 179 (and see id. at 163), and "literally addicted to the high lifestyle funded by his espionage activities", id. at 167. The assistant U.S. Attorney noted that he (the assistant) had been brought up to regard two sins as "unforgivable", arrogance and deception - id. at 313, precisely the two sins that he repeatedly imputed to Pollard. Pollard's "loyalty to Israel transcends his loyalty to the United States," said Secretary Weinberger. Id. at 265. The government devoted much space to marshalling evidence that Pollard was driven by greed ("enamored of the prospect for monetary gain", id. at 165; motivated by "the lure of money", id. at 168), and not materially affected by anti-terrorist concerns, id. at 164-69, or, by implied extension, by any sympathy for Israel.

The government contends that in the phrase by which it retained "full right of allocution at all times concerning the facts and circumstances of the offenses", the limiting reference to "facts and circumstances" was a nullity. This is hard to swallow. As the majority points out, the contrast with the language in Anne Pollard's plea agreement suggests that here the parties intended to exclude some otherwise acceptable elements of an allocution. See Maj. Op. at 25-26.

I agree with the majority that "facts and circumstances" include matters going to Pollard's motivation. But one can address motive by detailing specifics, leaving the moral and legal conclusions alone, to be settled by the judge. This is the line drawn by the court in Moscahlaidis. There the government was obliged by its agreement to "take no position" on the sentence, but was allowed to speak of "the full nature and extent of [the defendant's] activities with respect to this case". 868 F.2d at 1359. The court found that the agreement barred the government from asserting its opinion of the defendant's character with phrases alluding (for example) to "the depth of [his] greed and moral bankruptcy" and a "demonic pursuit demonstrating [his] utter contempt for the welfare of his fellow man", id at 1362 Though the structure of the agreement was different from Pollard's, the Third Circuit's line -between fact and opinion - makes equal sense here.4

4. Although the court in Moscahiaidis relied in part on the government's having obliged itself to "take no position" on sentencing, this hardly makes the decision irrelevant. Compare Maj. Op. at 26. There the language allowing government commentary was broader - "the full nature and extent of [defendant's] activities". 868 F.2d at 1362. Without the "take no position" constraint, this might well have left it free to say anything. Here the "facts and circumstances" language is narrower, and, as was true of "full nature and extent" in Moscahiaidis, its meaning is shaded by a related obligation - not to seek a life sentence. See also the passage two paragraphs below, noting the synergies in the government's promises.

So the government was free to relate not only the intelligence implications of Pollard's acts, but also details supporting an inference that his motive was pecuniary. But if the limit meant anything, it could not allow the government to wrap the raw facts in an inflammatory rhetoric, endlessly alluding to its (necessarily subjective) opinions that Pollard was greedy and immoral, depicting his conduct as the apogee of espionage, naming him a traitor, and delivering a tirade on his "arrogance and deceit".

Taken together, the government's three promises worked a substantial restraint on the government's allocution. Its commitments to restrict itself to facts and circumstances, and to assess Pollard's cooperation as having considerable value, closed off a means by which it might demand a life sentence in all but name. Safely after the fact, the government's briefing here undermines its commitment, isolating the components of the promise in order to conceal their synergies.

Is it troubling that the breaches involve matters of rhetoric? It means, of course, that the violation cannot be measured mathematically. But that is often true in contract disputes -most obviously whenever courts enforce express or implied duties of "reasonable" performance. Further, courts frequently draw the line between facts and legal or moral conclusions in classifying the testimony of lay witnesses. See Fed. R. Evid. 701; compare United States v. Slade, 200 App. D.C. 240, 627 F.2d 293, 305 (D.C. Cir. 1980) (finding lay references to defendant's drug "organization" to be equivalent of improper assertion of conclusion that it was conspiracy) with Williams. Enterprises Inc. V. Sherman R. Smoot Co., 290 App. D.C. 411, 938 F.2d 230, 233-34 (D.C. Cir. 1991) (permitting lay testimony by insurance broker on relation between accident and insurer's increased premium). Is rhetoric simply too trivial? To say so would, I think, buck prevailing views of human psychology. When the majority relies on the district judge's failure to note a breach at the time of the allocution, see Maj. Op. at 31, it assumes that the judge was unaffected by the government's efforts to disparage Pollard's character, thereby resolving an unanswerable question and perhaps violating Santobello, which ordered relief despite the trial judge's assertion -accepted by the Court - that the improper allocution had not influenced him. 404 U.S. at 262.

Do the breaches amount to the "complete miscarriage of justice" required for relief under § 2255? The cases under § 2255 (and § 2254),5 quite frankly, leave a gap between two patterns - conduct clearly violating even the literal language of the agreement (eliciting relief), and conduct varying from the agreement only trivially (eliciting none). Typical of the first pattern is Brunelle v. United States, 864 F.2d 64, 65 (8th Cir. 1988), where despite an agreement to recommend an "unspecified period", the government expressly suggested the maximum. See also United States v. Birdwell, 887 F.2d 643 (5th Or. 1989) (where incorporation of a state plea agreement into a federal one induces defendant to accept the latter, the state authorities' failure to follow through undermines the federal plea); Smith v. Blackburn, 785 F.2d 545 (5th Cir. 1986) (state's promise that defendant would be released upon parole breached when parole was denied); Carbone, 739 F.2d 45 (prosecutor's objection to defendant's request for sentence allowing early parole violated promise to make no recommendation); United States v. Mercer, 691 F.2d 343 (7th Cir. 1982) (failure by court to allow defendant to withdraw plea, when conditions specified in the agreement as permitting withdrawal occurred, required vacation of plea); Correale v. United States, 479 F.2d 944 (1st Cir. 1973) (where prosecutor promised to recommend sentence that would make defendant eligible for federal parole when he received parole under state sentence, non-complying recommendation breached promise and entitled defendant under § 2255 to resentencing).

5. The discrepancy between the majority's survey of one hundred cases, Maj. Op. at 30-31, and this account, which is illustrative only, is that the majority leaves out the § 2254 cases.

On the other side is United States v. Benchimol, 471U.SL, 453, 85 L. Ed, 2d 462, 105 S. Ct. 2103 (1985) where the government had agreed to recommend probation, and, when defense counsel informed the court of the agreement, the assistant U.S. attorney said, "That is an accurate representation." Id. at 455. The Court refused to upset the sentence under § 2255, viewing it as a case where the prosecutor simply "left an impression . of less-than-enthusiastic support for leniency." Id. at 456 (inner quotations omitted). Benchimol scarcely helps the government much here. It is one thing to say that the government need not fulfill its obligations with gusto, or with the right tone of voice, and quite another to say that it may fill its allocution with ardent declamations that wholly undermine any nominal compliance.

On the facts the closest case is Moscahlaidis, where the government similarly loaded its allocution with inflammatory rhetoric inconsistent with the reasonable meaning of the agreement. See p. 10 above. There the court, on appeal, ordered relief. As the "miscarriage of justice" standard is more demanding than the standard of review on appeal, Moscahlaidis would not control this case even in the Third Circuit. But how much more should be required? In the nature of things the difference in standards is elusive. It arises, moreover, out of the fact that in the ordinary habeas case the defendant's prior failure to object makes any remedy more costly for the system than it would have been: in a new trial, the government will be hobbled by the staleness of its evidence and the risk of an erroneous acquittal will be higher. Where the remedy is not markedly more burdensome than it would have been on appeal (resentencing only), the increment implicit in "fundamental defect" should be correspondingly modest.

It is hardly surprising that the exact stringency of the "fundamental defect" standard should vary with the context. The scope of a right may turn on the character of the remedy sought. Much of the law of equitable remedies revolves around the point that courts may treat the same conduct as actionable when the plaintiff seeks damages and not actionable when he seeks an injunction. See, e.g., Restatement (Second) of Torts § 941 & comment c (1979) (injunctive relief should be withheld for nuisances where balance of hardships so dictates, even though damages are to be awarded); Harrisonville v. W.S. Dickey Clay Manufacturing Co. , 289 U.S. 334, 77 L. Ed. 1208, 53 S. Ct. 602 (1933) (same); York v. Stallings, 217 Ore. 13, 141 P.2d 529 (Or 1959) (same); Stuttgart Electric Co., Inc. v. Riceland Seed Co., 33 Ark. App. 108, 802 S.W.2d 484 (Ark. App. 1991) (encroachment warrants remedy of damages, not of injunction). In ordinary contract law (the closest parallel to plea agreement rules), an obligee who like appellant fails to protest a breach immediately may lose his right to cancel the agreement (paralleling vacation of the plea) but not his right to damages (paralleling resentencing). See, e.g., UCC.§§ 2-711, 2-714 (buyer has option upon delivery of rejecting nonconforming goods or of obtaining damages; within reasonable time after delivery he may only obtain damages). Further, exactly the same phrase may have different meanings even within the same rule. While appellate courts review all factual findings of district courts under the "clearly erroneous" standard, whether "based on oral or documentary evidence", Fed. R. Civ. P. 52(a), the Rule also instructs that "due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses", giving the latter type of evidence a special status.

The majority suggests that as the Advisory Committee notes on the 1983 amendment to Fed. R. Crim. P. 32(d.) endorsed the "complete miscarriage of justice" standard for § 2255, Congress's failure to reject the amendment affirms that view of § 2255. Maj. Op. at 29 n.10. The argument is quite persuasive as to plea withdrawals, which are the sole subject of Rule 32(d) and (therefore) of the Committee's discussion, but the sequence surely affords little evidence that Congress addressed either the standard for § 2255 requests for resentencing, or the character of the "fundamental defect" standard as applied to such relief. Here, then, as a remand for resentencing would preserve the plea, that relief should be given if the government's misconduct in allocution - the gap between its actual and its promised conduct - was so great as to create a serious likelihood that a judge6 would have given a harsher sentence.7 The gap here seems easily broad enough to create that risk.

6. Measured by Santobello's objective standard, not by reference to the particular sentencing judge.

7. The majority's statement that this test would require resentencing where "a defendant would have received . a prison term of 11 months rather than a year", Maj. Op. at 30, misconceives my position. Deciding whether the government's breach created a serious likelihood of an effect on a hypothetical judge is completely independent of the penalty imposed.

Pollard's sentence should be vacated and the case remanded for resentencing. This should occur before a new judge, as Santobello indicates, even though "the fault here rests on the prosecutor, not on the sentencing judge." 404 U.S. at 263. See also Moscahlaidis, 868 F.2d at 1363 n.7 (same); Corsentino, 685 F.2d at 52.

Though I do not wish to be too critical of the government, and though the analogy is inexact on some points, the case does remind me of Macbeth's curse against the witches whose promises - and their sophistical interpretations of them - led him to doom:

And be these juggling fiends no more believ'd,
That palter with us in a double sense;
That keep the word of promise to our ear,
And break it to our hope.
Macbeth V, vii, 48-51.

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