prosecution required that all defendants plead guilty, or there
would be no agreement. Theodorou claims that this pressure caused
him to plead guilty rather than to adhere to his claim of
innocence. Under Rule 11, a plea of guilty may not be
accomplished through the use of threats or coercion by the
prosecutor, the government, or the court.
Here, however, the United States Attorney merely explained the
conditions of the plea agreement. Any pressure on Theodorou could
only arise from the other defendants. Rule 11 does not envision
pressure or coercion from co-defendants as a violation of a
defendant's constitutional rights. Coercion is not determined by
whether there are external forces inducing the defendant to plead
guilty. Rather, coercion is determined by whether these forces
are constitutionally acceptable. United States v. Martinez,
486 F.2d 15 (5th Cir. 1973). In this instance, any coercive pressure
came from the co-defendants, not the prosecuting attorney, the
government or the court. Allegations of coercion by co-defendants
are not recognized as a violation of Rule 11's requirement
precluding coercion. See Melnick v. United States, 356 F.2d 493,
(9th Cir. 1966), United States v. Webster, 468 F.2d 769 (9th Cir.
1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597
(1973). Consequently, Theodorou's claim that the court's
acceptance of his guilty plea violated Rule 11 is incorrect.*fn5
Theodorou also contends that he did not understand the
consequence of his guilty pleas. First, he states that he was
under the impression that a New Jersey indictment against him
would be dismissed. Second, he states that the sentence imposed
pursuant to 80 CR 312 was in excess of what he had anticipated.
Third, he alleges that he was not aware that the 80 CR 370
sentence could be imposed to run consecutively to the two
five-year sentences of 80 CR 312.*fn6
Theodorou contends he would not have pleaded guilty if he had
known the New Jersey proceedings would not be dismissed.*fn7 This
intimates that Theodorou would not plead guilty if there was a
possibility of his receiving a sentence from the New Jersey state
courts in addition to any federal sentence. As the New Jersey
indictment was eventually dismissed, he was not given an
additional sentence and his motivation for pleading guilty was
not compromised. Since he was not sentenced, the incorrect
assumption he made did not prejudice him. Therefore, he is not
entitled to relief as to this claim.
Theodorou also claims that the sentences handed down pursuant
to 80 CR 312 and 80 CR 370 should be vacated on the grounds that
the sentences were in excess of what he had anticipated. He
alleges that he was under the impression that he would not be
sentenced for more than seven years under 80 CR 312, in spite of
the fact that seven years was the agreed minimum and he was told
by the court that he could face a sixteen year sentence.
Rule 11 prohibits the court from accepting a guilty plea from
a defendant who does not fully understand the consequences of the
plea. The plea must be intelligently made. To assure the
defendant's understanding, the court must alert the defendant to
the possible consequences of pleading guilty. Pursuant to Rule
11, the court should address the defendant in open court. A.B.A.
Standards for Criminal Justice 14-4.1 (2d ed. 1980). The court
must address the defendant and inform him of the mandatory
minimum and the maximum possible penalty. However, the defendant
need not be advised of the sentence he will receive. Paradiso v.
United States, 482 F.2d 409 (3rd Cir. 1973), Ruiz v. United
States, 494 F.2d 1 (5th Cir. 1974), cert. denied, 419 U.S. 899,
95 S.Ct. 181, 42 L.Ed.2d 144 (1974). In this situation, Theodorou
was apprised of the mandatory minimum sentence and the possible
maximum sentence in open court. While it is true that the answers
given by a defendant in court regarding his understanding of the
consequences of his plea are not conclusive, United States v.
Scarborough, 527 F. Supp. 380 (W.D.Tex., 1981), the answers may be
considered in determining the extent of the defendant's
A defendant who receives a longer or more severe sentence than
he anticipated is not entitled to relief under 28 U.S.C. § 2255.
Motley v. United States, 230 F.2d 110 (5th Cir. 1956); United
States v. Page, 229 F.2d 91 (2nd Cir. 1956); Rosenbaum v. United
States, 290 F. Supp. 70 (D.C.Fla., 1968), aff'd, 413 F.2d 298 (5th
Cir. 1969). Consequently, the fact that Theodorou anticipated a
shorter sentence does not render his guilty plea invalid.
Theodorou contends that he was unaware that the sentence
imposed under 80 CR 370 could run consecutively to the two
five-year sentences imposed under 80 CR 312. Although it is
proper to allow a defendant to withdraw a plea of guilty when the
defendant completely misunderstands the length of the sentence
which will be imposed, United States v. Kent, 397 F.2d 446 (7th
Cir. 1968), cert. denied, 393 U.S. 1081, 89 S.Ct. 860, 21 L.Ed.2d
773 (1969), neither Rule 11 or the due process clause require a
court to alert a defendant to possible consecutive sentences
under a multi-count indictment before he pleads guilty. Johnson
v. United States, 460 F.2d 1203 (9th Cir. 1972), cert. denied,
409 U.S. 873, 93 S.Ct. 206, 34 L.Ed.2d 125 (1972); Paradiso v.
United States, 482 F.2d 409 (3rd Cir. 1973). If a court does not
have to advise a defendant of possible consecutive sentences
pursuant to one indictment, it follows that a court would not
have to advise a defendant that the sentence he is receiving will
run consecutive to a sentence imposed in a wholly separate
indictment. Therefore, even if Theodorou was not aware that a
sentence could be imposed consecutively to the previously issued
sentences, there has been no violation of Rule 11.
In conclusion, Andrew Theodorou's motion to vacate the sentence
pursuant to 28 U.S.C. § 2255 is denied. His guilty plea was not
coerced because any pressure to plead guilty could only have come
from his codefendants. This type of pressure is not considered a
violation of a defendant's constitutional rights. The fact that
Theodorou misunderstood the status of the New Jersey indictment
is not an error for which Section 2255 provides relief. The scope
of the Section 2255 motion has been effectively limited by the
Supreme Court in Timmreck to address only constitutional errors
as opposed to mere technical violations of Rule 11 procedure.
Furthermore, as the New Jersey suit was eventually dismissed, his
misunderstanding did not prejudice him.
As far as Theodorou's misunderstanding as to the length of his
sentence pursuant to 80 CR 312, he acknowledged in open court
that he understood the ramifications of his plea. While he
anticipated a shorter sentence, the fact that he received a
sentence longer than anticipated is not grounds for vacating the
sentence. Finally, the fact that Theodorou did not realize that
the 80 CR 370 sentence could be imposed consecutive to the 80 CR
312 sentence is not grounds for vacating the sentence. It is not
a violation of Rule 11 if the sentencing court fails to advise a
defendant that a sentence to be imposed may be imposed to run
consecutive to other sentences. Accordingly, Theodorou's petition
for relief under 28 U.S.C. § 2255 is denied.