2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-8-2008

USA v. Hall

Precedential or Non-Precedential: Precedential

Docket No. 07-2373

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

 

No. 07-2373

 

UNITED STATES OF AMERICA

v.

NEAL HALL,

Appellant

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(E.D.Pa. Crim. No. 06-cr-00160-2)

District Judge: Honorable Paul S. Diamond

 

Submitted under Third Circuit LAR 34.1(a)

December 14, 2007

BEFORE: RENDELL, GREENBERG, and 

VAN ANTWERPEN, Circuit Judges

(Opinion filed February 8, 2008)

 

Peter Goldberger

Pamela A. Wilk

50 Rittenhouse Place

Ardmore, PA 19003-2276

 Attorneys for appellant
2

Patrick L. Meehan

United States Attorney

Robert A. Zauzmer

Assistant United States Attorney

Chief of Appeals

Karen L. Grigsby

Assistant United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

 Attorneys for appellee

 

OPINION OF THE COURT

 

GREENBERG, Circuit Judge.

I. INTRODUCTION

This matter comes on before this court on an appeal from

a judgment of conviction and sentence entered on March 21,

2007, on a plea of guilty in the District Court. The Government

initiated the case on April 5, 2006, when it filed an information

against appellant Neal Hall (“Hall”) and his wife, Blonde

Grayson-Hall (“Grayson-Hall”), charging them each with three

counts of willful failure to file income tax returns in violation of

26 U.S.C. § 7203. On May 16, 2006, Hall and his wife, pursuant

to plea agreements, entered pleas of guilty to each of the three

counts of the information. On March 21, 2007, the District

Court sentenced each defendant to a 12-month custodial term to

be followed by 12-month terms of supervised release. 

Moreover, the court imposed a $20,000 fine on each defendant. 

Hall now challenges the procedure the District Court followed

when he entered his plea and also challenges the sentence the

court imposed. In particular, Hall contends that when he entered

his plea of guilty the court failed to exercise the “special care”

required during colloquies in cases involving tied plea

agreements (usually called “package deal agreements”), the

Government breached its promise in the plea agreement to
3

“[m]ake no recommendation as to the sentence,” and the court

imposed an unreasonably long custodial sentence on him. 

Grayson-Hall has not appealed. 

II. FACTS AND PROCEDURAL HISTORY

Hall, an ophthalmologist, and Grayson-Hall, an attorney,

are residents of Philadelphia, Pennsylvania. During the times

germane to these proceedings Hall operated Ophthalmic

Associates, Inc. d/b/a Flourtown Eye Associates and Milan

Designer Eyewear in Flourtown, Pennsylvania, and Wilmington

Eye Associates in Delaware, and Grayson-Hall practiced law

through Hall & Associates, LLC, a law firm in Philadelphia. In

1986, Hall incorporated Ophthalmic Research Associates

(“ORA”), a non-profit organization in West Chester,

Pennsylvania, with Hall as its chairperson and Grayson-Hall as

its secretary and treasurer. 

The Government’s information charged that defendants

willfully failed to file income tax returns for 1999, 2000, and

2001. After negotiations through separate attorneys, defendants

entered into tied plea agreements with the Government, each

agreement being conditioned on the entry of a guilty plea by the

other defendant. Among other terms the Government’s plea

agreement with Hall included the following provision:

7. At the time of sentencing, the government will:

a. Make no recommendation as to the sentence.

b. Comment on the evidence and circumstances of the case;

bring to the Court’s attention all facts relevant to sentencing

including evidence relating to dismissed counts, if any, and to

the character and any criminal conduct of the defendant;

address the Court regarding the nature and seriousness of the

offense; respond factually to questions raised by the Court;

correct factual inaccuracies in the presentence report or

sentencing record; and rebut any statement of facts made by
4

or on behalf of the defendant at sentencing.

c. Nothing in this agreement shall limit the government in its

comments in, and responses to, any post-sentencing matters.

App. at 5-6. Grayson-Hall’s plea agreement, however, did not

prohibit the Government from making a recommendation as to

her sentence. As will be seen this distinction is at the core of

one of the issues Hall raises on this appeal.

On May 16, 2006, the District Court conducted a joint

plea hearing for defendants, who were present and represented

by separate attorneys throughout the hearing, pursuant to Federal

Rule of Criminal Procedure 11. That rule requires that before

accepting a plea of guilty the court must “determine that the plea

is voluntary and did not result from force, threats or promises

(other than promises in a plea agreement).” Fed. R. Crim. P.

11(b)(2). During the hearing, the court engaged in a colloquy

with Hall to determine whether his plea was voluntary that

included the following exchanges:

THE COURT: . . . Do you also understand that

I will ask you questions to satisfy myself that

you are competent and able to enter a plea, and

to satisfy myself that you are knowingly and

voluntarily giving up your rights in entering

this plea?

THE DEFENDANT: Yes.

THE COURT: If at any time you don’t

understand what I’m saying, you want to repeat

anything, please let me know, okay?

THE DEFENDANT: Yes.

THE COURT: And if at any time you want to

speak to your lawyer, Mr. Miller, you let me

know, we’ll take a continuance, and we’ll

recess this matter for as long as you need to
5

speak with your counsel, all right?

THE DEFENDANT: Yes, thank you.

* * *

THE COURT: You have an attorney?

THE DEFENDANT: Yes.

THE COURT: Mr. Miller?

THE DEFENDANT: Yes.

THE COURT: And have you had ample

opportunity to discuss your case with Mr.

Miller?

THE DEFENDANT: Yes.

THE COURT: And are you satisfied with Mr.

Miller’s representation of you?

THE DEFENDANT: Yes.

* * *

THE COURT: . . . Has anyone made any threats

or promises or assurances to you of any kind,

other than what is set forth in the plea

agreement to convince or induce you to plead

guilty in this case?

THE DEFENDANT: No.

* * *

THE COURT: Now, you have heard me discuss

with your wife the Government’s condition of this

case, that it would not negotiate [a] plea agreement
Apparently the parties distinguished between departures 1

and variances by reason of our opinion in United States v. Vampire

Nation, 451 F.3d 189, 195 n.2 (3d Cir. 2006).

6

with only one of you, that either both of you pled

guilty or you both went to trial. You heard me

discuss that with her? 

THE DEFENDANT: Yes.

THE COURT: And you have discussed that with

your counsel?

THE DEFENDANT: Yes.

THE COURT: And are you voluntarily and freely

electing to plead guilty, because you think, after

consulting with your lawyer, it is in your best

interest to do so?

THE DEFENDANT: Yes.

App. at 70, 72, 80-81. Following the District Court’s colloquies

with defendants it accepted their pleas of guilty to the three

counts of willful failure to file income tax returns.

On March 21, 2007, the District Court conducted a

sentencing hearing for both Hall and his wife. After the court

denied each defendant’s motion for a downward departure from

the applicable base offense level, it concluded that both had base

offense levels of 12 which, when combined with their criminal

history categories of I, yielded a sentencing range of 10 to 16

months.

The District Court then considered defendants’ motions

for variances pursuant to 18 U.S.C. § 3553. Grayson-Hall’s 1

attorney began the arguments on the motions by contending that

a variance would be appropriate because defendants had paid, or

were expected to pay, the amounts that they owed in taxes, and
7

they would not in the future fail to file tax returns because they

had implemented a payroll service in their respective businesses

that would withhold taxes. Grayson-Hall’s attorney also referred

to defendants’ lifestyles, stating that “the Halls do not live a

lavish life style,” and that “[t]hey are by no measure wealthy.” 

Supp. app. at 75. After Grayson-Hall’s attorney finished his

remarks, Grayson-Hall made a personal allocution. 

Following Grayson-Hall’s allocution, Hall’s attorney

made his arguments in support of Hall’s motion for a variance. 

He began by referring to his earlier arguments referencing Hall’s

charitable work and Grayson-Hall’s poor health. Hall’s attorney

then argued that a variance would be appropriate because “the

nature and circumstances of the offense” warranted one. Supp.

app. at 77. According to Hall’s attorney:

This is not a case and I think this is important,

because what I’m about to say really takes Dr.

Hall and for the [sic] matter, takes Mrs. Hall

outside the heartland of offenders who really

seek to cheat the Government out of taxes. This

is not a case about greed. This is not a case

about willful evasion. There is no evidence in

the record that any of the money that should

have gone to pay taxes was spent on luxury

items. Was spent on vacations or clothing or

cars or anything like that. That’s simply not the

case with both defendants.

Quite to the contrary, they live a very modest

life style. They have old cars, old clothes, a

home in need of repair. They’ve taken one

vacation in the last ten years. This is simply not

a case about greed. And for that matter, I

believe they fall outside, certainly Dr. Hall and

Mrs. Hall, for that matter, fall outside the

heartland of offenders who are seeking to cheat

the Government out of taxes, your Honor.
8

Id. Hall’s attorney also argued that a variance was appropriate

based on Hall’s payments of the taxes that he owed and his

acceptance of responsibility for his crimes. 

After Hall’s attorney completed his argument, Hall gave

his allocution following which the Government responded to

both defendants’ arguments. Without specifying at the outset the

defendant to whom it was referring, the Government made the

following statement:

[Section] 3553(a) compels that we first look at

the nature and circumstances of the offense. 

And make no mistake here, the offense is failure

to file returns. This is not a case before your

Honor of people who are being charged with

failure to pay all they owed, having filed a

return. People who couldn’t because of

juggling financial responsibilities, come good

on April 15th. This is a case where for ten

years, no tax returns were filed. This isn’t a

case of miscalculation. We filed a return. We

innocently thought that travel and entertainment

and car expenses were deductible and so we

deducted it in good faith. But it turns out, no,

that’s wrong, so we didn’t pay them. 

This is a case where, for ten years, no tax

returns were filed. No taxes were paid. And

not just federally. No city wage, no state tax. 

The only tax that has been paid here is property

tax, because otherwise, the bank comes and

takes your property. 

A decision not to file a return is a decision that

you make every single day for ten years. Every

April 15th, when all your friends and colleagues

are talking about having to file, it’s a decision

that you know you are making. So, I think, first

of all, it’s important to look at the offense and

what the offense is. And the offense is fairly
9

stark.

Supp. app. at 82-83. 

At this point, the Government distinguished between Hall

and his wife by stating: “addressing Blonde first and again, I will

just say for the record that my comments concerning Neal Hall

will be very limited, because I do not want to run afoul of

[United States v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998)].” 

Supp. app. at 83. The Government proceeded to discuss

Grayson-Hall’s assets. During that discussion, it stated:

I believe, she and Neal, between them have

either [sic] or nine accounts that have been

charged off and 11 that are in collection status

or vice versa. It’s a huge number of creditors

who have been stiffed, just like the

Government. It is a choice on their part. It is a

choice to own property and not pay taxes. It is a

choice to have hundreds of thousands of dollars

of income and not pay taxes.

Supp. app. at 84-85. The Government then prefaced its

subsequent arguments with the words “as to Blonde Hall,” supp.

app. at 85, and described Grayson-Hall’s educational and

professional background. The Government challenged her claim

that she did not know she owed taxes, arguing that “if she didn’t

believe she owned [sic] money . . . [she could have] file[d] the

tax returns showing no liability,” and that “[s]he didn’t do that,

because she knew she did owe [taxes] and she knew that the IRS

would reject her return as bogus.” Supp. app. at 86. 

After arguing that Grayson-Hall’s statements concerning

her lack of knowledge were not credible, the Government

addressed defendants’ arguments concerning their charitable

works. The Government specifically addressed ORA, arguing:

ORA was this charity that Neal and Blonde Hall

started. And I think, significantly, in terms of

understanding that charity, it should be
10

understood that Neal acquired a building in his

name in West Chester, in his personal name. 

The Halls, Blonde in particular, well, the Halls

then solicited donations for the renovation of

the building for the work of ORA. But they did

not disclose to the foundations and private

contributors, that this building was owned in his

name. So, in essence, they are getting charitable

contributions to improve a facility that he – a

building that he owns in his own name.

Supp. app. at 88. The Government argued that “what this money

did, they basically solicited charitable money to improve their

own station. To improve their own place in life, to improve their

own financial standing.” Supp. app. at 89. The Government

then added, “I think that also speaks to who Blonde Hall is as a

person, one of the factors under 3553(a).” Supp. app. at 89.

The Government concluded its response with the

following statement:

Finally, I want to just very briefly address

3553(a) [which] requires that the sentence that

you impose promote respect for the law and

provide adequate deterrence. I think that’s just

incredibly important in a white-collar crime. 

People pay attention to crime [sic] likes [sic]

this. I’ve gotten a phone call from a doctor in

the community who read about this in the paper. 

And wants to know what their sentence is when

they are sentenced. 

You know, it calls to mind the statement of, was

it Leona Helmsly, taxes are for little people. In

other words, when you have the bus driver job,

the fireman job, the taxes are withheld. But

when you’re a doctor or a lawyer, do you have

to pay taxes? And is there a penalty if you

don’t. Is there a penalty beyond just, well, yes,

now your building’s appreciated all this much
11

and the IRS is going to take their penalty, but

maybe your real estate has appreciated more

than the IRS penalty is going to sock you for, so

you still come out ahead. Or maybe, you get

away with it entirely, in this case, because we

are past the Statute of Limitations for some of

the years. There will be no penalty for some of

the years for which no returns were filed and no

taxes paid.

So, I think that in terms of the public’s

perception of whether or not this is a significant

crime, it’s necessary to have a sentence of

imprisonment. And Mr. Nastasi [GraysonHall’s counsel] is right, I am asking for the top

of the guidelines as to Blonde Hall. It’s

necessary to have a significant sentence of

imprisonment to show people that, yes, you

really do have to file your returns and pay taxes. 

It really is a significant crime. It may be white

collar. Maybe nobody gets hurt. Maybe, you

know, there’s no gun, no threat of violence. But

it has a significant impact. And it is a

significant crime.

Supp. app. at 89-90. The Government added that “for those

reasons, . . . as to Blonde Hall, I do ask for a sentence at the top

of the guidelines. And as to Neal Hall, consistent with the

government’s plea agreement, it makes no recommendation.” 

Supp. app. at 90.

Following the Government’s argument, the District Court

sentenced Grayson-Hall to 12 months imprisonment and an

additional 12 months of supervised release, and imposed a fine

of $20,000. The District Court then sentenced Hall. The court

observed that he is “a highly educated, highly intelligent man

[who has] acknowledged that [he] knew [he was] obligated to

file tax returns” but “repeatedly failed to do so.” Supp. app. at

100. Among the District Court’s considerations was “the need

for the sentence imposed to reflect the seriousness of the
12

offenses to which [Hall] pled guilty to promote respect for the

law,” “[t]o provide just punishment,” “[t]o afford adequate

deterrence to criminal conduct and to protect the public from any

further crimes.” Supp. app. at 100-01. Although the court noted

that it “[did] not believe [Hall] will commit any other crimes,” it

stated that it “believe[d] that [Hall] brought the law into

disrespect when a licensed doctor simply fails to file tax returns

for year after year after year.” Supp. app. at 101. The District

Court explained that it “believe[d] a sentence of incarceration is

a [sic] essential to promote respect for the law and to provide an

adequate deterrence in these circumstances.” Id. The court then

imposed a sentence of 12 months imprisonment, followed by 12

months of supervised release, and a fine of $20,000, the same

sentence that it imposed on Grayson-Hall. The District Court

entered judgment against Hall on the same date, March 21, 2007. 

Hall then timely appealed.

III. JURISDICTION AND STANDARDS OF REVIEW

The District Court had subject matter jurisdiction over

this matter pursuant to 18 U.S.C. § 3231. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Hall

challenges both the entry of his plea and the imposition of his

sentence. With respect to the entry of his plea we evaluate the

plea colloquy for plain error because he did not object in the

District Court. See United States v. Vonn, 535 U.S. 55, 62-63,

122 S.Ct. 1043, 1048 (2002). Our review of the question of

whether the Government breached its plea agreement with Hall

is plenary even though he did not object at the time of the

alleged breach. See United States v. Hodge, 412 F.3d 479, 484-

85 (3d Cir. 2005). We review Hall’s sentence on an abuse of

discretion basis. See Gall v. United States, 128 S.Ct. 586, 594

(2007).

IV. DISCUSSION
13

We begin by noting that even though Hall’s plea

agreement included a conditional waiver of his right to appeal,

the Government has not moved to affirm summarily the appeal

or even to limit its scope. We further observe that we “retain[]

subject matter jurisdiction over [an] appeal by a defendant who

ha[s] signed an appellate waiver.” United States v. Gwinnett,

483 F.3d 200, 203 (3d Cir. 2007). Accordingly, inasmuch as the

Government addresses Hall’s arguments on the merits, and we

have jurisdiction, we will do the same notwithstanding Hall’s

waiver of the right to appeal. 

A. Did the District Court exercise “special care”

in determining whether Hall’s plea, which was tied

to Grayson-Hall’s plea, was voluntary?

Hall argues that the District Court failed to exercise the

“special care” required in determining whether his plea which he

entered as part of a tied plea agreement with the Government

was voluntary. See Hodge, 412 F.3d at 488. But he does not

contend that he made this objection during the District Court’s

colloquy at the plea hearing. Thus, as we indicated above, we

review Hall’s special care contention bearing in mind that “a

defendant who fails to object to Rule 11 error must carry the

burden of showing on appeal that the error was ‘plain,

prejudicial, and disreputable to the judicial system.’” Id. (quoting

Vonn, 535 U.S. at 65, 122 S.Ct. at 1050). In a plain error

context, “a defendant must show that: (1) an error was

committed; (2) the error was plain, that is, clear and obvious;

and (3) the error affected the defendant’s substantial rights.” Id.

(internal quotation marks omitted). “When those elements are

satisfied, an appellate court in its discretion may order a

correction if the error seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (internal

quotation marks omitted). “[A] defendant who seeks reversal of

his conviction after a guilty plea, on the ground that the district

court committed plain error under Rule 11, must show a

reasonable probability that, but for the error, he would not have

entered the plea.” United States v. Dominguez Benitez, 542

U.S. 74, 83, 124 S.Ct. 2333, 2340 (2004).
14

We have explained that there is a “package deal plea

bargain[ ] [when] the government accepts a defendant’s guilty

plea on the condition that his co-defendant(s) also plead guilty.” 

Hodge, 412 F.3d at 489. As we indicated in Hodge, “[t]here is

no question that package deal plea bargains are constitutional,” a

“nearly axiomatic [conclusion] given the nature of our criminal

justice system, of which plea bargains are an essential part.” Id.

at 490 (internal quotation marks omitted). Yet we also have

observed that tied plea agreements “pose special risks,

particularly when a trial court is unaware that defendants’ pleas

are tied together.” Id. Accordingly, to address the risks

associated with tied plea agreements, we require that “(1)

package plea deals be disclosed to the court and (2) colloquies

with package plea participants be conducted with special care.” 

Id. at 489-90.

We have discussed the general terms of what constitutes

“special care” in the context of a plea colloquy involving tied

plea agreements: 

At the threshold, a district court notified of a

package deal plea bargain should question

counsel closely to ensure that the precise terms

of the package plea deal are on the record. 

Once it is clear exactly how a defendant’s plea

benefits his confederate(s), it may be helpful to

ask who first proposed the package deal, how

extensively defense counsel was involved in

developing the deal, and what benefit the

defendant expects to gain from the deal. When

asking whether a plea is a product of force,

threats, or inducements and the like, a district

court should take care not to ask only whether

the prosecutor forced, threatened, or coerced the

defendant, but whether anyone did so. Having

so inquired, the court should be particularly

attuned to even mild expressions of reluctance

by a defendant. Such expressions always

should trigger a more searching inquiry. On the

other hand, as none of the defendants may be
15

particularly eager to plead guilty, one

defendant’s expressions of reluctance should be

compared to those of other defendants involved

in the package deal.

Id. at 491-92 (internal citations omitted). We made clear,

however, that this set of questions “is not a checklist that, if

followed, automatically will prevent a Rule 11 colloquy from

going awry,” but instead “is a summary of lessons drawn from

colloquies evaluated by other Courts of Appeals.” Id. at 492. 

“The overarching rule is that a district court considering a

package plea deal should be particularly attentive to a

defendant’s responses to voluntariness questions throughout a

plea colloquy.” Id. “That being said, district courts of course

should remember that package deal plea bargains are not

inherently coercive, and that the judge’s goal is not to doom the

deal but simply to ensure that the defendant’s plea is voluntary.” 

Id.

The record shows that the District Court was aware that

Hall entered his plea as part of a tied plea agreement, and that it

adequately exercised the “special care” required in determining

that his plea was voluntary. Hall is a well-educated individual

who graduated from a leading university and thereafter obtained

his medical degree from a medical school at another leading

university. Moreover, his attorney during the plea negotiations

and at the plea hearing was separate from and independent of his

wife’s attorney. During his colloquy, the court asked whether

anyone had made threats against Hall or promises to him to

induce his plea, to which he replied “No.” App. at 80. It then

asked Hall whether “[you are] voluntarily and freely electing to

plead guilty, because you think, after consulting with your

lawyer, it is in your best interest to do so,” to which Hall

responded “Yes.” App. at 80-81. The court confirmed that Hall

had had the opportunity to consult with his attorney, who

represented only him and not Grayson-Hall. Indeed, Hall

demonstrated his awareness of his opportunity to consult with

his attorney when, during the Government’s presentation of the

factual basis for his plea, he asked the court for permission to

talk with his attorney privately, who subsequently clarified a
In fact, we note that when asked by the District Court 2

whether his responses in his sentencing memorandum were

inconsistent with his acceptance of responsibility and his desire to

plead guilty, Hall filed a statement with the court confirming his

willingness to plead guilty. Additionally, the District Court noted

that “[e]ach Defendant’s demeanor and the manner in which he or

she answered my questions confirmed my belief that Mr. and Mrs.

Hall did not wish to lose the benefits of their plea agreement and

so were most willing to plead guilty.” App. at 36-37.

16

factual point that the Government previously had made. There is

no indication in the record that Hall expressed “even mild

expressions of reluctance” at any point during the plea hearing. 

Hodge, 412 F.3d at 492. 

Hall argues that the District Court’s questions concerning

his plea deviated from those that we have recommended that a

court ordinarily should use in considering guilty pleas when

there are tied plea agreements. He fails, however, to give any

reason for us to suspect that he did not make his plea knowingly

and voluntarily. Although the District Court did not ask Hall all 2

of the questions that we suggested as examples in Hodge for a

court to use when considering a package plea agreement, we

have noted the Supreme Court’s admonition that “[t]he nature of

the inquiry required by Rule 11 must necessarily vary from case

to case,” McCarthy v. United States, 394 U.S. 459, 467 n.20, 89

S.Ct. 1166, 1171 n.20 (1969), and that “Rule 11 should not be

given such a crabbed interpretation that ceremony was exalted

over substance,” Vonn, 535 U.S. at 70, 122 S.Ct. at 1052

(internal quotation marks omitted); see Hodge, 412 F.3d at 491. 

We have emphasized that the set of questions that we suggested

in Hodge “is not a checklist,” but rather “a summary of lessons,”

and that “[t]he overarching rule is that a district court

considering a package plea deal should be particularly attentive

to a defendant’s responses to voluntariness questions throughout

a plea colloquy.” Hodge, 412 F.3d at 492. 

Hall does not explain, at least not convincingly, how

answers to questions that we suggested in Hodge that the District
Clearly we cannot know if Hall at a trial would have had a 3

viable defense in this case. Yet in view of his professional status,

substantial income, and the ordinarily uncomplicated nature of a

willful failure to file an income tax return case we cannot help but

believe that he was in a difficult position and stood to benefit by

negotiating a plea agreement and accepting responsibility. We

make this observation even though we are aware that a defendant

does not necessarily lose a 2-level acceptance of responsibility

adjustment merely because he pleads not guilty. Rather, we do so

because our experience teaches us that a defendant who pleads

guilty is more likely to receive an acceptance of responsibility

adjustment than a defendant convicted at trial.

17

Court did not ask in this case would have been particularly

helpful in a determination of whether he entered his plea

knowingly and voluntarily. In fact, we are satisfied that the

answers to the unasked suggested Hodge questions were not

necessary in light of the proceedings before the District Court. 

For example, although the court did not ask Hall how he stood to

benefit from pleading guilty, the Government answered that

question by informing the court that “as of this agreement, the

defendant has demonstrated acceptance of responsibility, making

him eligible for a two-level downward adjustment.” App. at 79.3

In short, Hall has not identified evidence showing that there is “a

reasonable probability that, but for the [claimed] error, he would

not have entered the plea.” Dominguez Benitez, 542 U.S. at 83,

124 S.Ct. at 2340.

In reaching our conclusion on the voluntariness question

we are struck by the fact that even though Hall on this appeal is

being represented by experienced counsel who did not represent

him in the District Court he does not flat out claim that his guilty

plea was not voluntary. While we recognize that he does not

have to do so inasmuch as Dominguez Benitez speaks of a

reasonable probability, rather than a certainty, of involuntariness,

still it might be expected that he would make that claim

unequivocally. Instead, he indicates that “there is good reason to

believe [his guilty plea] was not [voluntary],” appellant’s br. at

21, this case had the “potential for involuntariness,” id., and
The presentence report described defendants’ marriage as

4

intact. 

18

there was “a substantial probability that [his] plea was

involuntarily entered,” id. at 27. 

In fact the closest he comes to suggesting that there is a

basis for believing that his plea might have been involuntary is

his point that while his wife, who is an attorney, “benefitted

substantially from the limitations of her plea, it is not nearly so

clear that [he] faced any significant criminal exposure beyond

that to which he pleaded guilty” and that “[s]ituations like this

are rife with the potential for involuntariness.” Id. at 20-21. To

this point Hall adds that if questioned closer he “might well have

revealed that he was pleading guilty solely because of the ‘tied’

nature of his wife’s deal with the government, although he

himself had little if anything to gain.” Id. at 26. 

We, however, reject as a matter of law a conclusion that a

defendant who pleads guilty with his or her jointly charged

defendant, whether or not his or her spouse, merely by entering

that plea no matter how much it benefits the other defendant and

how little it benefits the defendant challenging the plea has acted

involuntarily. Moreover, in this case there is a special reason to

reject the theory that a tied plea agreement is involuntary merely

because the defendants receive unequal benefits from it because

Hall’s co-defendant, who benefitted from his guilty plea, just as

he may have benefitted from her guilty plea, is as different as

can be from the type of co-defendants in many of the cases we

see and hardly would have been likely to have threatened or

coerced Hall into entering a plea of guilty. We do not

understand how a court could regard a guilty plea as involuntary

merely because the defendant pleading guilty assisted his or her

spouse more than he assisted himself or herself for it is natural

that a defendant would want to assist his or her spouse. In any 4

event a conclusion that tied pleas with unbalanced benefits are

suspect inevitably would doom tied plea agreements as that

approach frequently would open up such agreements to

involuntariness challenges on the basis of an after-the-fact
19

analysis of the comparative benefits to the defendants of the tied

plea agreements.

On the record, then, we conclude that the District Court

exercised the “special care” required in its colloquy concerning

the voluntariness of Hall’s plea, and accordingly we find no

error in its acceptance of his plea.

B. Did the Government breach its plea agreement

with Hall requiring that it “[m]ake no

recommendation as to the sentence,” by arguing

that Hall’s failure to file tax returns, to which both

Hall and his co-defendant pleaded guilty,

warranted a sentence of imprisonment?

Hall contends that the Government breached its plea

agreement with him by making prohibited statements during the

sentencing hearing. The plea agreement provided that the

Government would “[m]ake no recommendation as to the

sentence,” but was allowed to “[c]omment on the evidence and

circumstances of the case,” “bring to the Court’s attention all

facts relevant to sentencing including evidence relating to . . . the

character and any criminal conduct of the defendant,” and

“address the Court regarding the nature and seriousness of the

offense . . . .” App. at 5-6. Hall argues that the Government

breached the agreement by arguing that the court should impose

a sentence of imprisonment on him. The Government responds

that its comments that Hall challenges pertained to Grayson-Hall

rather than to him. 

In determining whether the Government has breached its

plea agreement with a defendant, we apply the de novo standard

of review. United States v. Rivera, 357 F.3d 290, 293-94 (3d

Cir. 2004). To the extent, however, that parties dispute the facts

of a case, we review the District Court’s findings of fact for

clear error. United States v. Moscahlaidis, 868 F.2d 1357, 1360

(3d Cir. 1989). In this case, we do not predicate our

determination on the District Court’s findings of fact and thus

our review is plenary.
20

The rules for enforcing plea agreements are well

established. “[W]hen a plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it can be said to

be part of the inducement or consideration, such promise must

be fulfilled.” Santobello v. New York, 404 U.S. 257, 262, 92

S.Ct. 495, 499 (1971). “Because the defendant, by entering into

the plea, surrenders a number of [his] constitutional rights,

‘courts are compelled to scrutinize closely the promise made by

the government in order to determine whether it has been

performed.’” United States v. Nolan-Cooper, 155 F.3d 221, 236

(3d Cir. 1998) (quoting United States v. Hayes, 946 F.2d 230,

233 (3d Cir. 1991)). 

In determining whether the Government has breached a

plea agreement, a court “must determine ‘whether the

government’s conduct is inconsistent with what was reasonably

understood by the defendant when entering the plea of guilty.’” 

Id. (quoting United States v. Badaracco, 954 F.2d 928, 939 (3d

Cir. 1992)). “Accordingly, we will not permit the government to

rely upon a ‘rigidly literal’ approach to the construction of the

terms of the plea agreement.” Id. (quoting Moscahlaidis, 868

F.2d at 1361). 

Although “[t]he government need not endorse the terms

of its plea agreements enthusiastically,” Badaracco, 954 F.2d at

941 (internal quotation marks omitted), it nonetheless “must

adhere strictly to the terms of the bargain it strikes with

defendants.” Moscahlaidis, 868 F.2d at 1361 (internal quotation

marks omitted). “[T]he doctrine that the government must

adhere to its bargain in the plea agreement is so fundamental that

even though the government’s breach is inadvertent and the

breach probably did not influence the judge in the sentence

imposed, due process and equity require that the sentence be

vacated.” Nolan-Cooper, 155 F.3d at 236 (internal quotation

marks omitted). If we find that the Government has breached its

plea agreement, we “remand the case to the district court for it to

determine whether to grant specific performance or allow

withdrawal of the plea.” Moscahlaidis, 868 F.2d at 1363.

Here, as we have indicated, the Government promised to
21

“[m]ake no recommendation as to the sentence,” rather than take

no position regarding Hall’s sentence. App. at 5. We have

pointed out that “[t]he difference between [making a

recommendation and taking a position] is elementary, for the

promise not to recommend is narrow, speaking only as to the

sentence to be imposed, whereas a promise to take no position

speaks to no attempt at all to influence the defendant’s

sentence.” United States v. Miller, 565 F.2d 1273, 1275 (3d Cir.

1977). Nevertheless, though the distinction between making a

“recommendation” and taking a “position” may be elementary in

its articulation, it may be difficult to determine in a particular

case whether the Government at the sentencing made a

recommendation or took a position.

The Government acknowledges that if it had contended

that the court should impose a sentence of imprisonment on Hall

it would have breached its plea agreement. But the Government

argues that it directed its statement that the court should impose

a sentence of imprisonment solely to Grayson-Hall. Of course,

if we conclude that the Government directed its recommendation

of a sentence of imprisonment at Hall, it would not matter

whether it did so “inadvertent[ly],” or whether the statements

“influence[d] the judge in the sentence imposed . . . .” NolanCooper, 155 F.3d at 236. 

At the sentencing hearing, after briefly discussing the

circumstances of the case, as it was permitted to do under the

plea agreement, the Government noted that almost all of the rest

of its comments would pertain to Grayson-Hall. The

Government’s comments strongly suggest that it was aware that

it could make no sentencing recommendation as to Hall: “I will

just say for the record that my comments concerning Neal Hall

will be very limited, because I do not want to run afoul of

Nolan[-]Cooper.” Supp. app. at 83. After making this

statement, the Government proceeded to address Grayson-Hall’s

role in the crimes and her circumstances relevant to § 3553. Id.

at 83-89.

 Towards the end of its comments at the hearing, the

Government argued:
22

Finally, I want to just very briefly address

3553(a) [which] requires that the sentence that

you impose promote respect for the law and

provide adequate deterrence. I think that’s just

incredibly important in a white-collar crime. 

People pay attention to crime [sic] likes [sic]

this.

* * *

Is there a penalty [for not paying taxes] beyond

just, well, yes, now your building’s appreciated

all this much and the IRS is going to take their

penalty, but maybe your real estate has

appreciated more than the IRS penalty is going

to sock you for, so you still come out ahead. Or

maybe, you get away with it entirely, in this

case, because we are past the Statute of

Limitations for some of the years. There will be

no penalty for some of the years for which no

returns were filed and no taxes paid.

* * *

So, I think that in terms of the public’s

perception of whether or not this is a significant

crime, it’s necessary to have a sentence of

imprisonment. 

Id. at 89-90. After making these statements, the Government

for the first time in the hearing made an explicit recommendation

as to sentencing: “So, I think that in terms of the public’s

perception of whether or not this is a significant crime, it’s

necessary to have a sentence of imprisonment.” Id. at 90. The

Government followed that statement by noting that it was asking

for a sentence of imprisonment at the “top of the guidelines as to

Blonde Hall.” Id. The Government then added:
23

It’s necessary to have a significant sentence of

imprisonment to show people that, yes, you

really do have to file your returns and pay taxes. 

It really is a significant crime. It may be white

collar. Maybe nobody gets hurt. Maybe, you

know, there’s no gun, no threat of violence. But

it has a significant impact. And it is a

significant crime.

Id. In concluding its remarks, the Government stated that, “as to

Blonde Hall, I do ask for a sentence at the top of the guidelines. 

And as to Neal Hall, consistent with the Government’s plea

agreement, it makes no recommendation.” Id.

The Government therefore described the failure to file tax

returns as a “significant crime” after it stated that “in terms of

the public’s perception of whether or not this is a significant

crime, it’s necessary to have a sentence of imprisonment.” Id. 

In arguing that the court’s sentence must “reflect the seriousness

of the offense,” “promote respect for the law,” and “afford

adequate deterrence,” 18 U.S.C. § 3553(a)(2)(A)-(B), the

Government argued that a sentence of imprisonment was

necessary because of the significance of the crime. Though we

are satisfied that in making this argument the Government made

statements concerning “the nature and seriousness of the

offense” that it as well as anyone else reasonably could have

regarded as being within the bounds of the plea agreement, Hall

suggests that the statements might be viewed as constituting a

“recommendation as to the sentence” that the agreement

precluded.

But, as we have indicated, the Government argues that

given how the District Court entertained defendants’ respective

arguments, the Government directed its statements concerning

the seriousness of their crimes and the need for a sentence of

imprisonment only at Grayson-Hall. There are obvious

difficulties with this contention because defendants committed

the same offenses in the same way and, in every sense of the
24

term, were joint defendants. Indeed, as Hall points out, the

crime was “the same . . . for both defendants.” Appellant’s br. at

17. Thus, when the Government addressed the deliberate and

serious nature of the crime of failing to file a tax return, it

inevitably was addressing the conduct of both defendants. In

this regard we note that after both defendants had made their

allocutions the Government stated that:

[Section] 3553(a) compels that we first look at

the nature and circumstances of the offense. 

And make no mistake here, the offense is failure

to file returns. This is not a case before your

Honor of people who are being charged with

failure to pay all they owed, having filed a

return. People who couldn’t because of

juggling financial responsibilities, come good

on April 15th. This is a case where for ten

years, no tax returns were filed. This isn’t a

case of miscalculation. We filed a return. We

innocently thought that travel and entertainment

and car expenses were deductible and so we

deducted it in good faith. But it turns out, no,

that’s wrong, so we didn’t pay them.

This is a case where, for ten years, no tax

returns were filed. No taxes were paid. And

not just federally. No city wage, no state tax. 

The only tax that has been paid here is property

tax, because otherwise, the bank comes and

takes your property.

A decision not to file a return is a decision that

you make every single day for ten years. Every

April 15th, when all your friends and colleagues

are talking about having to file, it’s a decision

that you know you are making. So, I think, first

of all, it’s important to look at the offense and

what the offense is. And the offense is fairly

stark.
25

Supp. app. at 82-83. After the foregoing comments, however, as

noted above, the Government did distinguish between

defendants, stating that it would address Grayson-Hall’s role in

the crime first and that its comments with regard to Hall were

limited by Nolan-Cooper. Id. at 83. The Government then

discussed Grayson-Hall’s income and assets, after which it

stated:

I believe, she and Neal, between them have

either [sic] or nine accounts that have been

charged off and 11 that are in collection status

or vice versa. It’s a huge number of creditors

who have been stiffed, just like the

Government. It is a choice on their part. It is a

choice to own property and not pay taxes. It is a

choice to have hundreds of thousands of dollars

of income and not pay taxes.

Id. at 84-85. 

The circumstances of this case ensured that though much

of the Government’s argument concerning the nature of the

crimes did not refer expressly to either Hall or Grayson-Hall, in

effect the Government inevitably referred to both defendants

inasmuch as they committed the same crime in precisely the

same way. Thus, when the Government argued that “in terms of

the public’s perception of whether or not this is a significant

crime, it’s necessary to have a sentence of imprisonment,” id. at

90, despite the Government’s earlier admonishments that its

comments pertained to Grayson-Hall, it may have been

somewhat difficult to distinguish between defendants. 

Furthermore, even the mitigating circumstances of the case, for

example defendants’ lifestyles, largely were the same. The fact

is that the Government in its comments could not draw the line

between defendants with surgical precision though it did try to

make clear to the District Court that its comments were in

reference to Grayson-Hall only. It is understandable that it had

this difficulty for even Hall’s attorney could not, or at least did

not, draw a fine line between defendants when addressing the

court at sentencing, for he pointed out that his arguments in
In the unusual situation here in which defendants were so

5

similarly situated but the Government could make a sentencing

recommendation only as to Grayson-Hall, it might have been better

for the District Court to hear Hall’s arguments first and sentence

him before hearing her arguments and then sentencing her.

Obviously, however, we could not find that it erred in not doing so

inasmuch as Hall did not request that the court follow that

procedure, and we could not regard its failure to do as a plain error.

Indeed, if the court erred in proceeding as it did at sentencing,

inasmuch as it followed Hall’s request in sentencing his wife first

its error would have been an almost unreviewable invited error.

See United States v. Console, 13 F.3d 641, 660 (3d Cir. 1993).

26

favor of leniency applied to both of them.

It is, however, highly significant that Hall’s attorney

proposed and consented to having Grayson-Hall sentenced first. 

Although the Government acknowledges that it did not

distinguish between defendants during much of its section

3553(a) argument, it argues that it was unnecessary to do so

given the manner in which the District Court conducted the

hearing and Hall’s consent to the arrangement. The Government

contends that “the district court conducted each phase of the

[sentencing] hearing jointly, but always addressed Mrs. Hall

first,” and that “[n]o one objected to this format.” Appellee’s br.

at 25-26. The Government notes that prior to sentencing, Hall’s

attorney wrote a letter to the District Court informing it that “Mr.

Nastasi [attorney for Grayson-Hall] and I have conferred and

respectfully request that the Court proceed first with Mrs.

Grayson-Hall’s sentencing, followed by Mr. Hall’s sentencing.” 

Supp. app. at 1. Thus, the Government’s brief is fair when it

points out that “it was Dr. Hall’s counsel who asked the court to

sentence Mrs. Hall first, . . . thereby ensuring that the court

would hear the government’s ardent advocacy concerning Mrs.

Hall before it imposed sentence on Dr. Hall.” Appellee’s br. at 5

39. The Government further contends that while “the district

court provided a single opportunity for allocution,” “the

government used that opportunity to speak extensively about

Mrs. Hall and to say virtually nothing about Dr. Hall.” Id. at 38. 
27

 We emphasize that even though in addressing the

sentence recommendation issue we naturally primarily have

discussed those statements by the Government that could be

considered as recommending a sentence for Hall, most of the

Government’s argument concerning the 18 U.S.C. § 3553(a)

sentencing factors undoubtedly was consistent with its plea

agreement with Hall, either because the Government plainly

directed its statements to Grayson-Hall or because the statements

concerned Hall’s “character and any criminal conduct,” which

his plea agreement permitted. App. at 5. For example, the

Government notes that it “spoke at length concerning the other

Section 3553(a) factors as they concerned Mrs. Grayson-Hall

barely mentioning Dr. Hall’s name, and only doing so in the

context of a reference to her credit card debt (the [presentence

report] did not distinguish her debt from his) and her activities at

ORA (which, factually, were joint activities with him) . . . .” 

Appellee’s br. at 29. Thus, the parties agree that the

Government’s comments regarding Hall in its discussion of

Grayson-Hall’s involvement with ORA would not constitute a

breach of its plea agreement with Hall because they constitute

“facts relevant to sentencing including evidence relating . . . to

the character and any criminal conduct of the defendant . . . .” 

App. at 5; see appellee’s br. at 34; appellant’s br. at 15. For that

same reason, we also note that the Government’s comments

regarding Hall in discussing defendants’ assets did not violate

Hall’s plea agreement. 

In retrospect Hall may have been unrealistic to expect, if

he did so, that the Government’s statements regarding GraysonHall’s sentence would not have the capacity to impact on the

court when it considered his sentence. In fact, Hall likely should

have expected that, in light of the plea agreement reached by his

wife and the identical role in the crimes played by Hall and

Grayson-Hall, the Government would be making

recommendations and comments as to Grayson-Hall that could

affect him. There is no escape from the reality that this case

differs from criminal cases such as drug trafficking conspiracies

in which different defendants may have different roles in the

offenses and may have different criminal records so that a

recommendation as to one defendant will have limited or no
28

effect on the case of another defendant. Hall and his wife

committed identical offenses in identical ways and each could

point to the same mitigating sentencing factors on his or her own

behalf. Nonetheless, Hall proposed and consented to the manner

in which his sentencing occurred, i.e., in a joint proceeding in

which Grayson-Hall would be sentenced first, which gave rise to

the possibility that comments meant to refer to his wife could be

taken as referring to his situation as well. Hall’s express request

for and consent to this arrangement, when taken in conjunction

with the Government’s explicit recognition of the terms of Hall’s

plea agreement and its statement that it was limiting its

sentencing comments to Grayson-Hall, leads us to conclude that

the Government’s comments did not constitute a sentencing

recommendation for Hall. In the circumstances, we find no

error, or at least no plain error, in the court’s acceptance of

Hall’s proposed arrangement, and we are satisfied that the

Government did not breach the plea agreement by making a

recommendation as to Hall’s sentence.

C. Was the District Court’s sentence of Hall to a

one-year custodial term unreasonable?

Hall argues that his sentence, which fell within the range

recommended by the Sentencing Guidelines, was unreasonable

because the Guidelines, which “evaluate tax felonies with an

element of fraud exactly the same as they do tax misdemeanors

which involve no more than a willful neglect of a known

statutory filing duty,” are unreasonable. Appellant’s br. at 28. 

Hall further argues that his prison sentence of one year was

unreasonably high when compared to national statistics

concerning sentences for tax evasion. After our review of this

matter and our consideration of the Supreme Court’s recent

sentencing pronouncements in Gall v. United States, 128 S.Ct. at

586, as well as its earlier decisions and our own precedents, we

are satisfied that we cannot hold that the District Court abused

its discretion in the imposition of the sentence and thus we

cannot disturb it. 
29

V. CONCLUSION

For the foregoing reasons we will affirm the judgment of

conviction and sentence entered March 21, 2007.