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 unnecessary 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 accepted 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. “Package” 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 outcome than he could expect if he went to trial. It is a detail

whether the leniency he seeks is purely selfish or encompasses 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. MescualCruz, 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 government 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 husband). 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, demanding 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