United States v. Spilmon, Bryan E. ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3750
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRYAN E. SPILMON, et al.,
Defendants-Appellants.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:04-CR-70—Allen Sharp, Judge.
____________
ARGUED APRIL 12, 2006—DECIDED JULY 19, 2006
____________
Before POSNER, RIPPLE, and MANION, Circuit Judges.
POSNER, Circuit Judge. Bryan Spilmon, a dentist, was
indicted for defrauding Medicaid by submitting claims
for work that he had not performed, billing for unneces-
sary procedures, concealing overpayments to him by
Medicaid, and committing related offenses. He agreed to
plead guilty and receive a 57-month sentence. As part of the
plea agreement, the government dismissed charges against
his wife. A couple of months after the district judge ac-
cepted the guilty plea in a hearing in which Spilmon
admitted his guilt, Spilmon moved to withdraw his plea.
The judge denied the motion without an evidentiary hearing
2 No. 05-3750
and sentenced Spilmon to the 57-month prison term to
which he had agreed in the plea agreement (plus three years
of supervised release) as well as to pay restitution in excess
of $2.4 million. Spilmon appeals from the judgment, arguing
that the district judge should have allowed him to withdraw
his guilty plea.
His main ground is that the plea was coerced: he says that
he believed (in fact knew) all along that he was innocent but
that his love for his wife had moved him to admit his guilt
so that the charges against her would be dropped. “Pack-
age” plea agreements in which dismissal of charges against
a spouse or other family member of the principal malefactor
is part of the deal are common. They are not improper or
forbidden. E.g., Politte v. United States, 852 F.2d 924, 929-
30 (7th Cir. 1988); United States v. Marquez, 909 F.2d 738, 741-
43 (2d Cir. 1990); United States v. Mescual-Cruz, 387 F.3d 1, 7-
8 (1st Cir. 2004); United States v. Hodge, 412 F.3d 479, 490-
91 (3d Cir. 2005). It would be in no one’s interest if a
defendant could not negotiate for leniency for another
person. From the defendant’s standpoint the purpose of
pleading guilty is precisely to obtain a more lenient out-
come than he could expect if he went to trial. It is a detail
whether the leniency he seeks is purely selfish or encom-
passes additional persons, provided that his plea is not
coerced.
A number of cases state that such “package deals” require
special scrutiny “because they present unique opportunities
for coerced pleas.” United States v. Bennett, 332 F.3d 1094,
1100 (7th Cir. 2003); see also, e.g., United States v. Mescual-
Cruz, supra, 387 F.3d at 7; United States v. Abbott, 241 F.3d 29,
34-37 (1st Cir. 2001); United States v. Carr, 80 F.3d 413, 416
(10th Cir. 1996); United States v. Caro, 997 F.2d 657, 659 (10th
Cir. 1993). Some cases, such as Mescual-Cruz, rightly empha-
No. 05-3750 3
size the risk that the defendant may be agreeing to a
package deal under threats or other improper pressure from
the beneficiary of the deal. Others suggest that “a threat of
long imprisonment for a loved one, particularly a spouse,
would constitute even greater pressure on a defendant than
a direct threat to him.” United States v. Pollard, 959 F.2d 1011,
1021 (D.C. Cir. 1992). These cases do not, however, suggest
an empirical basis for believing that the typical criminal is
so altruistic that he is likely to sacrifice himself impulsively
for another person. It could be argued that the decision to
sacrifice oneself for another is more likely to be carefully,
even agonizingly, considered than to be impulsive.
Not all cases endorse a double standard whereby package
deals receive stricter scrutiny than other plea agreements. In
Johnson v. Trigg, 28 F.3d 639, 645 (7th Cir. 1994), for example,
we said that “the only arguably improper pressure that the
police exerted to get Norman to confess—once the alleged
promise to release his mother is set aside as having been
acknowledged by Norman himself not to have been an
inducement—was to arrest his mother. While her arrest
may, despite what the state trial judge appears to have
thought, have played a role in Norman’s decision to confess,
there is no basis in the record to conclude that it prevented
him from making a rational decision whether to confess.”
This is not to deny that a package deal, like any other plea
agreement, could be coercive, in the sense of elicited by
improper pressure. Suppose Spilmon were innocent, and
knowing this but wanting to convict him anyway the gov-
ernment told him that unless he pleaded guilty it would
prosecute his wife—whom it also knew to be innocent. The
couple could of course reject the package deal, hoping to be
acquitted (being by hypothesis innocent), but given the
inherent uncertainties of the trial process they might be
4 No. 05-3750
afraid to do so, and the result would be a plea of guilty that
resulted in the conviction of an innocent person (the hus-
band). That would be a case of duress, see Politte v. United
States, supra, 852 F.2d at 930—that is, of pressure exerted to
obtain a result to which the party applying the pressure had
no right, e.g., Resolution Trust Corp. v. Ruggiero, 977 F.2d 309,
313-14 (7th Cir. 1992); Sheehan v. Atlanta Int’l Ins. Co., 812
F.2d 465, 469 (9th Cir. 1987). And likewise if the government
threatened to prosecute the defendant’s wife knowing that
she was innocent. United States v. Wright, 43 F.3d 491, 498-
99 (10th Cir. 1994); Martin v. Kemp, 760 F.2d 1244, 1248-
49 (11th Cir. 1985). But it is not duress to offer someone a
benefit you have every right to refuse to confer, in exchange
for suitable consideration. That is all that happened here.
There is no suggestion that the government believed either
Spilmon or his wife to be innocent or that it lacked probable
cause to prosecute either of them.
Just the other day, in United States v. Miller, 2006 WL
1541426, at *2 (7th Cir. June 7, 2006), citing Johnson v. Trigg,
supra, we explained (citations omitted) that “an objectively
unwarranted threat to arrest or hold a suspect’s paramour,
spouse, or relative without probable cause could be the
sort of overbearing conduct that society discourages by
excluding the resultant statements. Miller has not given us
any reason to doubt that the police accurately stated what
they would do if he clammed up, and he does not deny that
the Constitution would have allowed them to carry out that
plan, for they had probable cause to arrest both Miller and
his girlfriend.”
Any prosecution of a person that the prosecutor believes
to be innocent is coercive; the expected penalty is positive
(the chance of conviction may be small, but it is still a
chance) and may thus induce a guilty plea. It is a detail
whether the prosecutor increases the expected punishment
No. 05-3750 5
of an innocent person by piling on the charges against him
or by threatening to prosecute another innocent person.
It is a detail but not an unimportant one. The cases that
express particular concern about package deals
operationalize their concern by requiring that the existence
of such a deal be disclosed to the judge so that he can
determine its voluntariness. United States v. Bennett, supra,
332 F.3d at 1100-01; United States v. Abbott, supra, 241 F.3d at
34; United States v. Holland, 117 F.3d 589, 594 (D.C. Cir.
1997); cf. United States v. Clements, 992 F.2d 417, 419 (2d Cir.
1993). We have no quarrel with the requirement or with
the cases that say that such deals must be viewed with
caution by the judge; we add only that this is true of all plea
deals. The requirement was satisfied in this case. The plea
agreement stated that Spilmon’s guilty plea was conditional
on the dismissal of the indictment against Mrs. Spilmon.
The district court confirmed the condition with both the
government and Spilmon at the plea hearing—during
which, moreover, the judge four times asked Spilmon
whether he was pleading guilty voluntarily and each time
Spilmon answered in the affirmative without hesitation. He
swore that he had not been “improperly threatened or
intimidated into pleading guilty.”
The failure of Spilmon’s duress argument dooms his other
argument—that his lawyer in the district court
was ineffective in not demanding access to or copies of
Spilmon’s billing and other records, which the government
had seized for use in evidence. Spilmon argues that the
records prove his innocence. But with duress as a ground
for withdrawing his guilty plea eliminated, we have simply
a case in which a defendant seeks to withdraw his guilty
plea on the ground that he committed perjury when he
told the judge under oath that he had indeed committed the
6 No. 05-3750
criminal acts with which the government had charged him.
United States v. Schuh, 289 F.3d 968, 975 (7th Cir. 2002);
United States v. Stewart, 198 F.3d 984, 986-87 (7th Cir. 1999).
It would not be perjury had he believed when he pleaded
guilty that he was guilty and only later discovered that,
having misunderstood the law or the facts, he had a good
defense. United States v. Gomez-Orozco, 188 F.3d 422, 426-
27 (7th Cir. 1999); United States v. Groll, 992 F.2d 755, 759-
60 (7th Cir. 1993). But there is no suggestion of that here. He
testified under oath at his plea hearing that he was satisfied
with his lawyer’s representation of him. The records he says
his lawyer should have made copies of or looked at more
closely were his own records and he must have known at
least approximately what they contained. If he thought them
exculpatory—if he thought they included records of the
very dental procedures that the government contended he
had not performed, or described other procedures that the
government was wrong to think unnecessary—he would not
have testified under oath that he was guilty. A confessed
perjurer, he is fortunate that the government has not agreed
to his withdrawing his plea so that it can seek a heavier
sentence. He has no consistent story of how after pleading
guilty he suddenly discovered that his own records proved
him innocent.
When he first moved to withdraw his plea, he argued only
that though he had known all along that he was innocent, he
had decided to fall on his sword to save his wife even
though if he was innocent so was she. Later he embroidered
his motion to intimate that he might have forgotten what
was in the records and that they proved his innocence. He
must know whether he’s innocent or not, so he would need
access to the records only if he thought the evidence against
him so overwhelming that unless the records contained
No. 05-3750 7
exculpatory evidence he would be certain to be convicted.
He was permitted to spend five days reviewing and copying
records with the aid of his lawyer, and he was offered three
more days to do this and turned that offer down, demand-
ing unlimited access. The court did not abuse its discretion
in refusing that demand. It is apparent from the defendant’s
failure to employ the three additional days to look for
exculpatory materials that his request for unlimited access
was a stalling tactic.
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-19-06