author: MERHIGE, District Judge.

text:
    Linwood BERRYMAN v. L.W. MOORE, et al.
    Civ. A. No. 85-0199-R.
    United States District Court, E.D. Virginia, Richmond Division.
    Oct. 10, 1985.

      Linwood Berryman, pro se.
    Robert H. Herring, Jr., Asst. Atty. Gen., Richmond, Va., Jacqueline G. Epps, Sr. Asst. Atty. Gen., for defendants.
   ORDER

MERHIGE, District Judge.

In accordance with the accompanying memorandum, the Court orders that petitioner’s petition for a writ of habeas corpus is hereby DENIED. Should petitioner desire to appeal this ruling, he may do so by filing a notice of appeal with the Clerk of the Court within 30 days of the date of entry hereof.

And it is so ORDERED.

MEMORANDUM

On February 14, 1985, petitioner, proceeding pro se and in forma pauperis, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Jurisdiction is conferred by 28 U.S.C. § 2241.

On March 12, respondent submitted a motion to dismiss alleging that the petition contained claims that had not met the exhaustion requirements imposed by § 2254(b) and that consequently the entire petition must be dismissed under the holding of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). An order was entered on July 3 granting petitioner leave to amend his petition to present only the exhausted claims. On July 16, respondents filed a motion to dismiss the amended petition; petitioner responded to the motion on August 13. Respondent’s motion to dismiss is now ripe for consideration.

Petitioner’s present imprisonment results from a sentence imposed in the Circuit Court of Henrico County, Virginia. Following a bench trial, petitioner was found guilty of grand larceny, Va.Code 1950 § 18.2-95, and of breaking and entering with intent to commit larceny, Va.Code 1950 § 18.2-91. On each of these counts petitioner received a sentence of ten years imprisonment with six years suspended, for a total of 20 years imprisonment of which twelve were suspended.

In his petition, petitioner alleges that the evidence presented at his trial was insufficient to sustain his conviction on either count under the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Facts

On December 16, 1983, a condominium in the Raintree Complex in Henrico County was broken into. The occupants’ belongings were disturbed and some packages were opened, but at the time it did not appear that anything had been removed from the dwelling. Two weeks later, however, the owner of the condominium discovered that his high school and college class-rings were missing. These rings, usually kept in a case on top of his dresser, were rarely worn by their owner, a dentist. At trial he testified that he had last worn them on December 3, 1983, and that he had not looked in their case between that time and the date that he discovered the rings were missing, when he reported their loss to the police.

On January 18, 1984, petitioner Linwood Berryman sold the rings to a local jeweler, presenting identification as required by law. He was paid less than $200.00 for them. Shortly after the sale, petitioner was arrested by the police. He told the arresting officer that he was a garbage man, that his work took him into the Rain-tree complex and that he had found the rings in a “green trashbag” while working his route. Petitioner explained that he had initially opened the bag because he had discerned the outlines of some videotapes inside and found upon opening the bag that it contained the rings as well. Petitioner did not testify at trial.

In his challenge to his convictions petitioner points to the fact that there was no physical or testimonial evidence linking him directly to the break-in. He characterizes the prosecution’s case as “inferences piled upon inferences” and asserts that upon the above facts no rational trier of fact could have found him guilty of the charged offenses beyond a reasonable doubt.

The standard a federal habeas court must follow in evaluating due process challenges to the sufficiency of the evidence was outlined in Jackson v. Virginia, supra. The Court’s duty is to inquire “... whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319, 99 S.Ct. at 2789. This formulation strikes a balance between preserving the role of the trier of fact as the ultimate resolver of those issues on which reasonable men could differ and ensuring that a defendant’s conviction meets the due process standard of proof beyond a reasonable doubt. Employing this standard, the Court will now evaluate petitioner’s three main challenges to the sufficiency of the evidence.

Grand Larceny

Petitioner was convicted of grand larceny under Va.Code § 18.2-95 which, in pertinent part, defines grand larceny as: “simple larceny not from the person of another of goods and property of the value of $200 or more.” Larceny has been defined by the Virginia Supreme Court as “the wrongful or fraudulent taking of personal goods belonging to another without his consent and with the intention to deprive the owner thereof permanently.” Skeeter v. Commonwealth, 217 Va. 722, 232 S.E.2d 756 (1977). In his first challenge to the sufficiency of evidence, petitioner contends that the prosecution failed to prove the element of larceny. While he concedes that a break-in occurred on December 16, petitioner argues that there was not proof beyond a reasonable doubt that the rings themselves were taken at that time. He points to the almost four week interval during which the location of the rings was uncertain in that their owner merely assumed that they were in their usual place in the ease on top of his dresser. Petitioner argues from this that the inference that the rings were stolen at the time of the break-in is simply too speculative to meet the reasonable doubt standard. Although these contentions have some force, the Court is forced to reject them, concluding that in the circumstances a rational trier of fact could have found beyond a reasonable doubt that the rings were stolen at the time of the break-in.

It is, of course, true that entirely circumstantial evidence forms of necessity the valid basis for the conviction of many crimes. Nor is the prosecution obliged to negate every circumstance or explanation consistent with innocence that could flow from a given set of facts. United States v. Chappell, 353 F.2d 83 (4th Cir.1965). The following facts supported the trial judge’s inference that the rings were taken at the time of the break-in. The rings were carefully stored in a box on the top of the owner’s dresser; evidence presented showed that they were not removed from this box or the box disturbed save on the rare occasions when they were worn by their owner. These facts make it unlikely that the rings could have been lost through carelessness or accident. Nor was the time during which they were unaccounted for before and after the break-in so long as to dispel the reasonable inference that they were taken at that time. Finally, the trial judge, disbelieving petitioner’s testimony as to how he came into possession of the rings, could have made the inference that the rings had been come by illegally. Believing they had been stolen, he might also reasonably infer that the theft occurred at the time of the only known forced entry. Consideration of these factors leads the Court to conclude that a rational trier of fact could have found beyond a reasonable doubt that the rings were stolen at the time of the break-in.

Petitioner’s second contention is that the evidence failed to establish that the stolen rings had a value of over $200 as is required by Va.Code § 18.2-95 and that consequently he should not have been found guilty of grand larceny. Value is an essential element of the offense of grand larceny and the Commonwealth is required to prove that the value of stolen property is at least equal to the statutory amount. Wright v. Commonwealth, 196 Va. 132, 139, 82 S.E.2d 603, 607 (1954). In addressing the question of whether the Commonwealth proved the statutory element of $200.00 value, a critical question is under what standard should the value of stolen property be determined. There are a number of alternatives; original cost, value to the owner, and replacement cost can be rumbered among the possibilities. The general rule at common law, however, is that the value of stolen property for the purposes of grading the offense of larceny is determined if possible by its fair market value. See Am.Jur.2d Larceny, § 45 (1970).

Because it is the law of Virginia that establishes the offense of grand larceny it is to that State’s law that the Court must first look in determining how its elements are to be defined. Although Virginia cases have not dealt with the subject at length there are strong indications that in Virginia also the “value of an object of larceny is the fair market value at the time and place of theft.” Va.Model Jury Instructions; Criminal: Larceny & Related Offenses— Scope Note 11-24, Supp. # 5 (1984). Virginia cases bear this out.

In Dunn v. Commonwealth, 222 Va. 704, 284 S.E.2d 792 (1981) the Virginia Supreme Court reversed a conviction of grand larceny where the only evidence of the value of the stolen item, a ten-year-old television set, was its original cost. The Court stated “without a showing of the effect of age and wear and tear on the value of an item such as a typewriter, the jury might be misled to believe that original price equals current value.” Id., 284 S.E.2d at 795. That “current value” is equivalent to fair “market value” is demonstrated by another Virginia case, Lund v. Commonwealth, 217 Va. 688, 232 S.E.2d 745 (1977). Defendant had been convicted of grand larceny for stealing “computer time” as evidenced by computer printouts. In rejecting the Commonwealth’s contention that the cost of the labor and services for producing the printouts showed this “value,” the Court said “... the cost of producing the printouts is not the proper criterion of value for the purpose here (of establishing grand larceny) ... where there is no market value of an article that has been stolen, the better rule is that its actual value should be proved. See 50 Am.Jur.2d Larceny, 45 at 211.” Id. 232 S.E.2d at 748. It is evident from the above that Virginia like other States values stolen property for the purpose of grading larceny by using “fair market value.” If a market doesn’t exist, where, for example, an item is unique or unsaleable, “actual value” is the standard. A common definition of fair market value, and one that the Virginia Supreme Court has employed in civil cases is: “... the price property will bring when offered for sale by a seller who desires but is not obligated to sell and bought by a buyer under no necessity of purchasing.” Board of Supervisors of Fairfax v. Donatelli and Kline, 228 Va. 620, 325 S.E.2d 342, 345 (1985).

There were three main pieces of evidence presented at trial bearing on the rings’ value. Dr. Taitón, the owner of the rings testified that in 1972 he had purchased his college ring for “just at or a little over $200” but was unsure as to what he had paid for his high school ring. Asked what value he himself placed on the ring, Dr. Taitón replied “they are priceless, but I would say $500 or $600.” He was then asked if this figure included both rings and stated “Well, I’m not sure about the worth of the high school ring, but the college ring I know $500 or $600.” Dr. Talton’s statements as to value were admissible under Virginia law, see Haynes v. Glenn, 197 Va. 746, 91 S.E.2d 433 (1956).

Mr. Cooper, owner of the jewelry store where petitioner sold the rings, testified next. He stated that he had bought the rings from petitioner, was uncertain as to just what he had paid for them, but that it was “less than $200.” This transaction, in which a willing buyer paid less than $200.00 to a willing seller might be thought to be a paradigm for establishing fair market value. If, for example, Mr. Cooper had been able to testify that he paid more than $200 for the rings to petitioner, a finding by the trial judge that their fair market value exceeded $200 could not be disturbed. At the same time Mr. Cooper’s testimony that he purchased the rings for under $200 does not mean that the trier of fact was bound to accept that sale as conclusive evidence of their value; he was free to consider and prefer other evidence that established a market value of over $200.

Following his testimony regarding his purchase of the rings from petitioner, Mr. Cooper testified in the following manner:

“Q. You buy 10K gold frequently, is that a fair statement?
A. Yes, sir.
Q. Basically, how do you determine the scrap value of 10K gold?
A. Well, 10K gold commercially is approximately 41% pure. It is not too difficult to compute the weight and the percentage to determine exactly what you’re dealing with here.
Q. And you have testified in cross-examination that the amount you paid Mr. Berryman for these two rings was less than $200.00?
A. Yes, sir.
Q. You remember the two rings in question?
A. Yes, sir.
Q. Do you recall approximately what the weight of those two rings were?
A. Yes, sir.
Q. Can you tell us what it was?
A. I can tell you that the melt would have been in excess of $200.00.
Q. The what?
A. The melt would have been in excess of $200.00.
Q. What does that mean?
A. That means that the intrinsic gold value of these two rings would have been greater than $200.00.
Q. Is it a fair statement or not a fair statement that the scrap value of the rings is less than the actual value of the ring intacted?
A. It depends on who wants it and who has it.
Q. Say, to the owner of the item.
A. To the owner? Appreciatively more. To me it has nothing but simple gold value.”

Taking the above evidence together, the Court must conclude that a rational trier of fact could have found that the market value of the stolen rings exceeded $200.00. The owner of the rings, Dr. Taitón, testified that the purchase price of only one of the rings exceeded $200.00. While this factor might not conclusively establish value, it could certainly have given the trial judge, who saw both rings, a sufficient basis, taken with the other evidence of value, for finding that the “current value” of the rings exceeded $200.00. Mr. Cooper’s testimony as to the rings’ “melt value” can only strengthen the conclusion that the trial judge’s exercise of fact-finding in this case' was within the Jackson standard and cannot be disturbed. After considering all of the evidence “in the light most favorable to the prosecution” Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, this Court cannot say that no rational trier of fact could have found beyond a reasonable doubt that the element of value had been established.

Breaking and Entering

Petitioner’s contention in regard to his conviction of breaking and entering is one that if accepted would lead necessarily to a finding that he was not guilty of grand larceny. He asserts that even if it is conceded that a break-in occurred on December 16 and that rings were stolen at that time, the evidence presented at trial was simply insufficient to show that petitioner was the person who committed the break-in and performed the theft.

Certainly, the evidence connecting petitioner to the break-in is not overwhelming. It consists of the following. Petitioner was a garbageman; his route took him near the burglarized condominium. There was evidence showing that he was at work on that route on the day of the break-in and that he might have had the opportunity to be alone and out of the scrutiny of his co-worker on the garbage truck for periods of up to an hour. A month and two days later, petitioner was shown to have been in possession of the rings, selling them to Mr. Cooper. Finally, there is petitioner’s explanation of his possession, testified to by Inspector Ross, the arresting officer, that he had found the rings in a trashbag along with video tapes sometime “around November” Tr. at 35. Aside from the above evidence, nothing was shown at trial linking petitioner with the break-in or making his participation therein more likely.

Evidence that petitioner had an opportunity to commit the break-in is, of course, relevant. At the same time, petitioner’s opportunity to burglarize a condominium was one shared with so many other people as to lessen its probative value considerably. The condominium broken into was located in a populous “complex.” More important is the evidence that petitioner was in possession of the stolen rings a month and two days after the break-in. It is evident that the trial judge, in finding that petitioner was involved in the theft, must have relied heavily upon the often-used inference that the possessor of recently stolen property, in the absence of an adequate explanation for his innocent possession, both knows that it is stolen and possibly participated in the theft himself.

The reasonableness of the inference of guilty knowledge, or theft, from the unexplained possession of recently stolen property has been often upheld by the Fourth Circuit. Battaglia v. United States, 205 F.2d 824 (1953); United States v. Kolakow-ski, 314 F.2d 699 (1963); United States v. Long, 538 F.2d 580 (4th Cir.1976). Nevertheless, even a reasonable inference if unsupported, will not provide a basis for proof beyond a reasonable doubt. Rather, the recent possession of stolen property should be “... viewed as probative evidence of the crime ... and reviewed along with the other evidence in the case to determine whether a rational juror could find the defendant guilty beyond a reasonable doubt.” Cosby v. Jones, 682 F.2d 1373, 1380 (1st Cir.1982).

In the present case two possible inferences arise from the petitioner’s possession of recently stolen property. The first is that his unexplained possession was at least tainted by “guilty knowledge.” However, this inference does not necessarily give rise to the stronger inference that he also engineered the theft. Under Virginia law the knowing receipt of stolen goods is in itself a continuing form of larceny. Va.Code § 18.2-108. Thus silence regarding the possession of stolen property may stem as much from a desire to avoid prosecution for larceny as from a desire to conceal one’s involvement in a burglary.

The further inference of theft may, of course, be supported by other facts and circumstances. For example, the more recent the possession the more likely it is that the goods taken have not changed hands since the theft or where the items stolen are so bulky, specialized or in some other way distinct as to make it unlikely that they would or could be transferred from the original thief to another, the inference that the possessor was the one who stole them is strengthened. In the present case, the items taken, two rings, were both highly portable and disposable; within the thirty day period between their theft and petitioner’s demonstrated possession of them, they could easily have changed hands. It cannot be said then that petitioner’s possession of these rings more than a month after the theft, standing alone, could constitute proof beyond a reasonable doubt that he committed the break-in.

There was, however, another piece of evidence in this case which supported the trial judge’s finding that petitioner was guilty of the break-in; petitioner’s explanation of how he had “found” the rings in a green bag on his trash route rings honestly. The trial judge, disbelieving petitioner’s story, might have found in his statement that he had found the rings in the trash while working the Raintree area, an indication that petitioner knew where the break-in occurred and was suiting his story to that fact to make his explanation for possession seem more plausible. Thus petitioner’s false explanation of possession could itself have furnished evidence that he was involved in the break-in.

Stated most strongly, the case against petitioner is this; he was working nearby at the time of the break-in, a month later l:e is shown to be in possession of the rings; he fails to adequately explain his possession but instead gives a story that is unbelievable and suggests that he knew the location of the burglary. Based on this evidence and according deference to the trial judge as trier of fact as required by Jackson, the Court concludes that the evidence establishing petitioner’s participation in the break-in was constitutionally sufficient. Certainly any less evidence could not have supported a conviction. The Court’s function on habeas review, however, is merely to determine whether after considering all the evidence in the light most favorable to the prosecution no rational trier of fact could have arrived at the finding of guilt beyond a reasonable doubt. The court believes that standard was met in the present case and therefore petitioner’s petition for writ of habeas corpus as to his conviction under Ya.Code § 18.2-91 must also be DENIED. An appropriate order shall issue.

And it is so ORDERED.


source: Caselaw Access Project

author: HUYETT, District Judge.

license: Public Domain

text:
    Irvin W. GILMORE v. Leroy ZIMMERMAN, Attorney General of the Commonwealth of Pennsylvania.
    Civ. A. No. 85-2940.
    United States District Court, E.D. Pennsylvania.
    Oct. 10, 1985.

      Emmanuel H. Dimitriou, Reading, Pa., for plaintiff.
    Charles A. Haddad, Sp. Asst. Atty. Gen., Boyertown, Pa., for defendant.
   MEMORANDUM AND ORDER

HUYETT, District Judge.

Petitioner Irvin W. Gilmore filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 seeking to enjoin a state criminal proceeding pending against him. After reviewing Gilmore’s petition, Magistrate Leomporra recommended that the petition for writ of habeas corpus be denied and dismissed without an evidentia-ry hearing. Judge Leomporra’s Report and Recommendation was filed on August 27, 1985.

After reviewing the Magistrate’s Report and Recommendation, petitioner’s objections, and the circumstances giving rise to this petition, I agree with the Magistrate’s conclusion that the petition for writ of ha-beas corpus must be denied; I do not, however, entirely, accept the Magistrate’s analysis. On September 6, 1985, counsel for petitioner, Emmanuel H. Dimitriou, filed pétitioner’s objections to Judge Leom-porra’s Report and Recommendation and requested that I make a de novo determination as to the issues presented in the petition for writ of habeas corpus.

The facts giving rise to the petition are as follows. On June 19, 1984, a criminal complaint was issued against petitioner Gilmore and he was charged and arrested for criminal homicide, 18 Pa.Cons.Stat.Ann. § 2501; aggravated assault, 18 Pa.Cons. StatAnn. § 2702; and recklessly endangering another person, 18 Pa.Cons.Stat.Ann. § 2705. On October 21, 1984, an information was filed. Gilmore waived arraignment and on October 23, 1981 a plea of “not guilty” was entered on his behalf.

On January 10, 1983 petitioner Gilmore appeared before President Judge Forrest Schaeffer of the Court of Common Pleas of Berks County, and entered a plea of guilty to involuntary manslaughter. Judge Schaeffer engaged in a fairly detailed colloquy with petitioner Gilmore and his counsel on that date to ensure that petitioner understood the nature of the charge of involuntary manslaughter and the rights which he was waiving by entering a guilty plea. Judge Schaeffer also heard from Mr. Had-dad on behalf of the Commonwealth who outlined for the court the factual basis for the charges brought against the petitioner. Throughout the colloquy, petitioner, through his counsel, reiterated that he was not admitting his guilt and that he had no recollection of injecting his wife with the fatal dose of meperidine.

As of January 10, 1983, no plea agreement had been entered into between the Commonwealth and Gilmore. At best there was a report by counsel to Judge Schaeffer that plea discussions were underway. Mr. Haddad told the court that the Commonwealth would make a recommendation as to an appropriate sentence after obtaining a psychological and medical examination of petitioner. Judge Schaeffer then stated that he would accept petitioner’s plea and order a presentence report.

The colloquy before Judge Schaeffer resumed on February 28, 1983. At that time, Mr. Haddad set forth the terms of the plea bargain, and stated that the Commonwealth would accept a plea to involuntary manslaughter and the Commonwealth would recommend a sentence of probation plus the maximum fine of $10,000. Judge Schaeffer, upon hearing the Commonwealth’s position, stated that he would not accept the plea bargain. He then gave petitioner the choice between permitting the plea to be an open plea thereby permitting the Judge to sentence him in accordance with the law as he deemed proper or withdrawing his guilty plea. Petitioner, after consulting with his attorney, decided to stand on the plea as previously entered. Judge Schaeffer then proceeded to ask petitioner Gilmore several questions based on inconsistent statements Gilmore had allegedly made to two police officers and which were the basis of the Commonwealth’s evidence against Gilmore. Petitioner’s counsel objected to the line of questioning whereupon Judge Schaeffer ordered the guilty plea withdrawn and ordered petitioner to stand trial. In his written opinion, Judge Schaeffer held that there had been an insufficient factual basis for him to accept the plea and it was for this reason that he had ordered the plea withdrawn.

Petitioner Gilmore contends that Judge Schaeffer’s actions in withdrawing his guilty plea and ordering him to stand trial violate the constitutional prohibition against double jeopardy. Gilmore claims that Judge Schaeffer accepted his guilty plea and that jeopardy attached to the guilty plea so that he may not now be tried for the crimes with which he was originally charged. In his Report and Recommendation, Judge Leomporra concluded that jeopardy had not attached; he based his conclusion on two alternative grounds. First, he concluded that jeopardy had not attached because petitioner had not yet been put to trial: no jury had been empanelled nor had the court started to hear evidence. In the alternative, Judge Leomporra, relying upon Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966 (3d Cir.), cert. denied, 454 U.S. 1031,-102 S.Ct. 566, 70 L.Ed.2d 474 (1981), held that Gilmore had never been in jeopardy of being convicted of murder because he entered a guilty plea to involuntary manslaughter; therefore there was no double jeopardy violation. Petitioner has filed objections to both grounds of the Report and Recommendation.

Petitioner filed his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Generally, federal habeas corpus is a remedy which is available only post-conviction. Exceptions have been made, however, where “special circumstances” exist, and as Judge Leomporra concluded “special circumstances” exist in this case because forcing petitioner to stand trial would defeat the constitutional right he seeks to preserve. U.S. ex rel. Webb v. Court of Common Pleas, 516 F.2d 1034 (3d Cir.1975). Neither party has raised any objection to the conclusion that a federal court properly may entertain petitioner’s double jeopardy claims in a federal habeas petition at this time, and I will, therefore, approve and adopt this aspect of the Report and Recommendation.

Petitioner’s first objection pertains to the inference created in the Report and Recommendation that jeopardy never attaches to a plea. The Fifth Amendment to the United States Constitution provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb ...” At some point, the constitutional protection against double jeopardy must attach to a guilty plea; otherwise, a defendant could be subject to punishment for the same offense twice. Following a guilty plea, punishment is usually as imminent and inevitable as after a conviction by a jury. In United States v. Jerry, 487 F.2d 600, 606 (3d Cir.1973), the court held that the defendant “must be considered to have been convicted by the entry of his plea of guilty just as if a jury had found a verdict of guilty against him and jeopardy attached with the acceptance of his guilty plea by the district court.” Therefore, to the extent that the Report and Recommendation implies that jeopardy may never attach to a guilty plea, it must be rejected.

The Magistrate held in the alternative that jeopardy never attached because Gilmore was never faced with the possibility of being convicted for murder. In support of this conclusion, the Magistrate relied upon Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966 (3d Cir.), cert, denied, 454 U.S. 1031, 102 S.Ct. 566, 70 L.Ed.2d 474 (1981), in which the court held that the double jeopardy clause did not bar the state from retrying the defendant on the original first degree murder charge after his plea was withdrawn. The Klobuchir court concluded that when the trial judge accepted the defendant’s guilty plea to third degree murder, he could not have considered any greater charge, and therefore the defendant was never in jeopardy of being convicted of first degree murder. An important distinction between Klobu-chir and the present case is that in Klobu-chir, the defendant had moved post-conviction for relief from his guilty plea while in this ease Judge Schaeffer vacated or ordered the withdrawal of petitioner’s guilty plea over his objections. In Klobuchir, there was no question that the defendant could be retried for the lesser offense to which the defendant had entered a plea, i.e. third degree murder; jeopardy had not attached to the lesser offense. Rather, the question was whether he could also be tried for the higher offense, and the court held that he could be. In this case, the question petitioner is raising is essentially whether he could even be tried for the lesser offense for which he entered a guilty plea, i.e. whether jeopardy attached to the plea of guilty of involuntary manslaughter.

Petitioner contends that Judge Schaeffer unconditionally accepted his plea on January 10, 1983, that jeopardy attached to that plea, and that Judge Schaeffer’s order striking the plea and setting the case for trial violated his fifth amendment protection from further prosecution. Petitioner further contends that a judge is permitted to vacate a guilty plea only in extreme circumstances, and those circumstances did not exist in this case. In this way, petitioner analogizes the vacation of a guilty plea over the objection of the defendant to the declaration of a mistrial when the defendant objects.

As previously noted, the court in United States v. Jerry, 487 F.2d 600 (3d Cir.1973) held that jeopardy attaches to a guilty plea which is accepted. The questions left open after Jerry and which are raised by the present case are what constitutes acceptance for purposes of double jeopardy and does jeopardy attach automat-

ieally or irrevocably when a plea is accepted.

In U.S. ex rel. Metz v. Maroney, 404 F.2d 233 (3d Cir.1968), the court held that the state trial court properly acted in setting aside the guilty plea without the consent of the defendant at the time of sentencing because the defendant made statements then which, if true, constituted a complete defense to the charge of murder. Analogizing the situation to that in which a trial judge believes that an involuntary mistrial should be declared because of manifest necessity, the court held that, under the circumstances, requiring the defendant to stand trial on a plea of not guilty did not violate the constitutional prohibition against double jeopardy. The court concluded that fundamental fairness and the interests of justice warranted the state judge’s actions. Id. at 236-37. In U.S. v. Hecht, 638 F.2d 651 (3d Cir.1981), the court held that the trial court erred in vacating the plea because there was a sufficient factual basis for the guilty plea. The court, therefore, ordered the plea reinstated.

The Metz and Hecht cases suggest that a trial judge’s discretion in accepting or rejecting a plea agreement is limited, and that his actions may have double jeopardy ramifications. They further suggest that acceptance of a guilty plea is not irrevocable. Under certain circumstances, a trial judge will be justified in vacating a plea if he becomes aware that there is an insufficient factual basis for the plea.

In United States v. Cruz, 709 F.2d 111, 114 (1st Cir.1983), the court held that jeopardy does not attach automatically and irrevocably in all instance when a guilty plea is accepted. Like the Metz court, the Cruz court analogized the judicial withdrawal of a previously accepted guilty plea to the judicial declaration of a mistrial and suggested that the reasonable approach to these situations would be to hold that jeopardy attaches upon acceptance of the guilty plea, but that the district court may rescind its acceptance at any time before sentencing and judgment upon the showing of “manifest necessity.” The Cruz court went on to hold, however, that it was unnecessary to reach this standard because the district court had violated Federal Rules of Criminal Procedure 11(e) and 32(c) by vacating the plea solely on the basis of information in the presentence report.

The Pennsylvania courts in their various rulings have implicitly held that Judge Schaeffer did not violate state procedural rules in ordering the withdrawal of Gilmore’s guilty plea. Therefore, the question becomes that which the Cruz court did not reach, i.e. whether jeopardy attached irrevocably on January 10, 1983 when Judge Schaeffer stated that he would accept Gilmore’s plea or whether he acted properly in rescinding the plea prior to sentencing because there was manifest necessity for such action.

Because I believe that Judge Schaeffer’s actions were justified, Gilmore’s petition for writ of habeas corpus must be denied. First, it would appear that Judge Schaeffer’s comments at the January 10, 1983 plea hearing did not constitute an unequivocal acceptance of the plea. The plea bargain between Gilmore and the Commonwealth was only in the discussion stage as of January 10, 1983, and it was not until the February 28th hearing that the Commonwealth outlined the bargain for the court. More importantly, however, even if Judge Schaeffer did accept the plea on January 10, 1983, the lack of factual basis for the plea warranted-his order withdrawing the plea before sentencing on February 28, 1983.

Addressing the issue of what constitutes a voluntary and intelligently made plea, the Supreme Court in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), held that a defendant’s guilty plea was not rendered constitutionally invalid because the defendant protested his innocence as long as there was a strong factual basis for the plea presented by the state. “When his plea is viewed in light of the evidence against him, which substantially negated his claim of innocence and which further provided a means by which the judge could test whether the plea was being intelligently entered, ..., its validity cannot be seriously questioned.” Id. at 37-38, 91 S.Ct. at 167. In cases since Al ford, courts have held that a judge may commit constitutional error if he accepts a guilty plea when defendant’s admission of guilt is equivocal, and a sufficient factual basis is lacking. See U.S. v. Hecht, 638 F.2d 651, 653 (3d Cir.1981); Willett v. State of Georgia, 608 F.2d 538, 540 (5th Cir. 1979); United States ex rel. Dunn v. Cás-eles, 494 F.2d 397, 399-400 (2d Cir.1974).

Throughout the plea colloquy on January 10, 1983, Gilmore’s attorney, Emmanuel Dimitriou, repeatedly emphasized that Gilmore was not admitting his guilt and that, in fact, he had no recollection of any of the acts related to the alleged incident as a result of his consumption of alcohol and his physical exhaustion at the time. Petitioner’s Exhibit A, at 7-8, 10. Therefore, the only factual basis for the plea were the facts Mr. Haddad, for the Commonwealth, stated would have been presented at trial. These were limited to facts about the cause of death, i.e., blood alcohol level and blood meperidine level of decedent and two conflicting statements petitioner had allegedly made as to his involvement in the events which led to his wife’s death. One was a statement to Trooper Pease that he had injected his wife with a vitamin and meperi-dine combination; the second was a statement to Chief Harley Smith in which Gilmore denied having made any injections. Petitioner’s Exhibit A, at 5-7.

On February 28, 1983, after rejecting the plea bargain and the recommendation of probation and a $10,000 fine, Judge Schaef-fer attempted to engage in á colloquy with petitioner about the alleged admissions to Trooper Pease which were the basis of the Commonwealth’s case against him. At this point, counsel for petitioner objected to any questioning by the judge stating that he had advised his client that his open plea was based on the record as it had already teen established and that additional colloquy was unnecessary. Id. at 7. Judge Schaeffer then promptly ordered the plea withdrawn.

While it may have been preferable for Judge Schaeffer to elaborate on the reasons for his actions on the record at the time, I do not think his failure to do so affects the validity of his actions, and I accept and agree with his conclusion that there was an inadequate factual basis to support petitioner’s guilty plea. The primary evidence pointing to petitioner’s guilt were the admissions he allegedly made to Trooper Pease to the effect that he had injected his wife with meperidine. Yet, at the plea hearings, petitioner was adamant that he was not admitting his guilt. He also refused, through his counsel, in response to Judge Schaeffer’s questions, to acknowledge making any statements to Trooper Pease. Without verification of these statements at a minimum which could come only from the lips of petitioner, there was an insufficient basis for the plea. Statements which petitioner never admitted having made and the circumstances of which are unclear, are simply insufficient to support the guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), and its progeny. It is unclear from the record presented to me when petitioner allegedly made his conflicting statements; it is also unclear what petitioner’s mental and physical condition was at the tim'e he allegedly made the statements. Finally, petitioner’s statement in which he allegedly admitted to injecting his wife with meperidine does not include a statement as to what time frame his admission covered, i.e. immediately prior to her death or several days before.

Therefore, jeopardy had not attached irrevocably to the plea to involuntary manslaughter entered by petitioner. And Judge Schaeffer, in ordering petitioner’s guilty plea to be withdrawn and petitioner to stand trial, did not expose petitioner to a violation of the constitutional prohibition against double jeopardy for the involuntary manslaughter charge. Furthermore, under Klobuchir v. Commonwealth of Pennsylvania, 639 F.2d 966 (3d Cir.), cert. denied, 454 U.S. 1031,102 S.Ct. 566, 70 L.Ed.2d 474 (1981), jeopardy has not attached to the higher offense with which petitioner was charged.

      . If I were to conclude that jeopardy had attached because the plea had been irrevocably accepted and could not be properly vacated, the appropriate remedy would be to reinstitute the guilty plea. See United States v. Hecht, 638 F.2d 651 (3d Cir.1981).

      . Without elaborating or citing any legal authority, the Jerry court concluded that jeopardy attaches with the acceptance of the guilty plea by the district court. 487 F.2d at 606. As the court in United States v. Cruz, 709 F.2d 111, 113 (1st Cir.1983) noted, no court has analyzed in depth the application of double jeopardy to a guilty plea, and it has not been clear why the Jerry court chose the acceptance of a guilty plea as the point at which jeopardy attaches rather than the entry of judgment. I note too that there is confusion in the case law as to what constitutes acceptance.
      The earliest case to address the issue of attachment of jeopardy to a guilty plea which I have found is Raidon v. United States, 274 F.2d 304 (6th Cir.1960). Drawing an analogy to Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957), in which the court emphasized that it is not essential that a verdict of guilty or innocent be returned for a defendant to have been placed in jeopardy, the Raidon court concluded that a plea of guilty puts the accused in jeopardy. The Raidon court, however, did not address the issue of when jeopardy attaches.
      Following the lead of the Raidon court, the court in United States v. Barbosa, 224 F.Supp. 628 (D.P.R.1963) held that jeopardy attached to defendant’s guilty plea. Defendant Barbosa had pled guilty to taking by force and violence on a federal reservation a purse containing $60. Barbosa’s plea was accepted by the court but sentencing was postponed pending the receipt of a presentence report. Before sentencing, the indictment was dismissed because a second, identical indictment had been returned by the grand jury. The court concluded that because the plea established defendant’s guilt and there remained only the formality of entering judgment of conviction and the imposition of sentence, jeopardy had attached. Id. at 630. The Barbosa court therefore suggested that jeopardy attaches at the time of the acceptance of the plea, but there was no discussion as to what constitutes acceptance.
      Courts since United States v. Jerry have followed the Jerry court’s lead and have held that jeopardy attaches with the acceptance of the guilty plea, but little thought has been given to why this should be the rule or to what constitutes acceptance for purposes of double jeopardy. More consideration perhaps should be given to whether jeopardy does not attach to a guilty plea until judgment on that plea is entered.
      Federal Rule of Criminal Procedure 11(f) states:
      Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
      This implies that acceptance of the guilty plea does not always foreclose a judge from taking further action and even subsequently rejecting the plea if there is a question about the factual basis for the plea even if he or she has already "accepted” it. While the provision does not address the issue of double jeopardy, it follows from it that jeopardy does not attach irrevocably at the time of acceptance or that acceptance is not valid until there has been a factual determination.
      The issues raised here are complex and my purpose is to provoke thought on an issue which heretofore has not been fully analyzed and which presents practical problems for trial judges who routinely "accept” pleas and who may not fully consider the potential double jeopardy consequences of their actions and the requirements of Fed.R.Crim.P. 11.
      For instance, in United States v. Cruz, 709 F.2d 111 (1st Cir.1983), the court held that a district court cannot unqualifiedly accept a bargained guilty plea and subsequently reject it on the basis of information contained in the pre-sentence report. Jeopardy attaches to the acceptance. In United States v. Sanchez, 609 F.2d 761 (5th Cir.1980), however, the court held that jeopardy did not attach to a guilty plea which the trial judge “temporarily” accepted while she studied the probation report. The court noted that no final judgment had been entered on the lesser included offense, the defendant had not been subjected to the harassment of successive prosecutions: and there was no question of multiple trial or multiple punishments. The same could be said in most cases where the defendant has entered a plea of guilty and judgment has not yet been entered. Not until judgment is entered does the defendant face the imminent prospect of punishment. Furthermore, a Rule 11 colloquy is far less an ordeal than a trial.
      In United States v. Combs, 634 F.2d 1295 (10th Cir.1980), cert. denied, 451 U.S. 913, 101 S.Ct. 1987, 68 L.Ed.2d 304 (1981), the court held that jeopardy did not attach until judgment had been entered. "Until entry of judgment and sentencing on the accepted guilty plea, defendant had not been formally convicted.” Id. at 1298. In a strongly worded dissent, Judge McKay stated that jeopardy must attach at the time of acceptance because the accepted plea, like a jury’s verdict, establishes guilt and leaves the court nothing to do but impose sentence and enter judgment. Id. at 1300-01.
      While I am aware that I am bound by the precedent of Jerry and the rule that jeopardy attaches at the time of acceptance, I am convinced that Jerry raised as many questions as it answered. For purposes of this case, I have concluded that even if jeopardy attaches at the time of acceptance of a plea, it does not attach irrevocably and may be released if there is manifest necessity.


author: HAROLD H. GREENE, District Judge.

text:
    [ANONYMOUS] Plaintiff, v. FEDERAL DEPOSIT INSURANCE CORPORATION, Defendant.
    Civ. A. No. 85-2622.
    United States District Court, District of Columbia.
    Oct. 10, 1985.
    Geoffrey J. Vitt, Julie W. Davis, Caplin & Drysdale, Washington, D.C., for plaintiff.
    Ann S. DuRoss, Asst. U.S. Atty., Washington, D.C., for defendant; Ronald R. Glancz, Asst. Gen. Counsel, Ingeborg G. Chaly, Sr. Atty., Federal Deposit Ins. Corp., Washington, D.C., of counsel.
   MEMORANDUM

HAROLD H. GREENE, District Judge.

This case involves the authority of the Federal Deposit Insurance Corporation (FDIC) (1) to prohibit a bank officer, who may have participated in the making of imprudent loans, from working for any federally insured bank in the United States without prior permission from the FDIC, and (2) to take such action at the initiation of administrative procedures designed to determine the bank officer’s culpability rather than at their conclusion.

I

Plaintiff is a banker who holds positions in several small banks in the southeastern United States. He served as the President of _ Bank _ in - from March 10, 1981 to November 9, 1982, and as a director of that bank from March 10,1981 to January 24,1984, and from July 10, 1984 to July 19,1985. Until the actions taken by the FDIC which are the subject of this lawsuit, he also served as a director of the_Bank of_in_ the _ Bank in _ and _Bank in__

In March of 1985, the FDIC, which is responsible for monitoring federally insured banks, and empowered to detect, prevent, and remedy violations of federal banking laws and unsafe banking practices, commenced an examination of the _Bank. The examination revealed a number of loans of allegedly “inferior quality,” and according to the FDIC examiners, a check of the bank records revealed that plaintiff was associated in various degrees with the major portion of these problem loans.

Following this examination of ___ Bank, the FDIC served a notice on plaintiff on August 5, 1985, advising him that, pursuant to 12 U.S.C. § 1818(e)(1) and (2), it was initiating administrative procedures to remove him from office at_and to prohibit him from any future participation in any other federally insured bank. Further, under 12 U.S.C. § 1818(e)(4), the FDIC issued an interim suspension order removing plaintiff from office and prohibiting him from further banking participation forthwith pending resolution of the administrative removal proceedings.

Plaintiff thereupon brought this action, petitioning the Court to set aside or stay the FDIC’s interim suspension order, in accordance with 12 U.S.C. § 1818(f) — a specific provision granting authority to the courts to stay FDIC interim suspension orders.

After a hearing and consideration of the papers submitted by the parties, the Court, on August 22, 1985, 617 F.Supp. 509, granted plaintiffs motion for a temporary stay and remanded the interim suspension order to the FDIC for reconsideration in light of the Court’s Memorandum Order. Specifically, the Court prohibited the FDIC temporarily from acting against plaintiff under the broad terms of the August 5 suspension order, without prejudice, however, to the agency’s issuance of new interim suspension orders on a bank-by-bank basis based upon an agency determination that the order was necessary to protect the particular bank. The Court noted in its Memorandum that a remand was necessary because the FDIC order did not contain a reasoned explanation of the factors justifying plaintiff’s suspension from participation in the affairs of any federally insured bank, and that this precluded the Court from conducting a meaningful review of the agency decision. The Memorandum further explained that the suspension order also failed to provide any explanation as to the reasons for the drastic measure of an immediate suspension order as distinguished from some other, lesser measure, such as a cease-and-desist order under section 1818(c)(1) or an order under section 1818(e)(1) or (e)(2) (which would have effected plaintiff’s removal following the completion of the administrative proceedings).

The apparent lack of criteria to guide the agency’s discretion in choosing between emergency suspension orders issued at the initiation of administrative proceedings, and ordinary orders issued following the administrative process, led the Court to suggest that the FDIC promulgate some standards to guide agency officials in that regard, and incidentally thereby also to provide the courts with an adequate basis for review.

Upon remand, the FDIC reconsidered and rescinded the August 5 order, replacing it on September 9,1985 with an Amended Order of Suspension. The Amended Order contains two basic provisions: (1) it prohibits plaintiff from further participation in the affairs of both the_ and the _ banks pending the outcome of the administrative proceedings; and (2) it requires plaintiff to secure prior written approval before serving or acting as a director, officer, or employee of any federally insured bank or voting for a director of any such bank.

On September 16, 1985, plaintiff petitioned the Court for a stay of the Amended Order, challenging it on the same grounds as asserted against the original order, as failing to provide an adequate legal and factual rationale for the blanket prohibition and, more broadly, as exceeding the agency’s statutory authority.

The FDIC opposed plaintiff's request for the stay, claiming that it had reconsidered plaintiff’s suspension in accordance with the Court's Memorandum Order and had issued a narrower suspension order justified under the circumstances. The FDIC further claimed full authority under the statutory scheme to issue broad, industry-wide orders.

II

It is clear that the Amended Order, like the FDIC’s original order, amounts to a blanket order barring plaintiff’s participation in all federally insured banks pending the outcome of the administrative proceedings, in that it suspends plaintiff from all banks unless and until he receives prior written permission. The issue whether this kind of blanket restriction is within the statutory authority of the FDIC requires an examination of the statutory scheme in 12 U.S.C. § 1818(e)-(f) which governs the suspension and removal of bank officials.

The FDIC is charged with monitoring the safety and soundness of federally insured banks and is clothed with broad authority to accomplish that goal. First National Bank of Bellaire v. Comptroller of the Currency, 697 F.2d 674, 680 (5th Cir.1983). Among its other regulatory powers, the agency is empowered to take action against individual bank officers and directors whose unsafe or illegal actions harm or threaten to harm federally insured banks. See 12 U.S.C. § 1818 et seq. To enable it to guard against the unsound, unsafe, or fraudulent practices of individual bank officers and directors, the FDIC has the authority to invoke a variety of sanctions against suspect individuals, including temporary and permanent cease-and-desist orders as well as the types of interim and permanent suspension orders at issue in this case.

The two provisions specifically governing the suspension or removal of directors and officers are subsections (e)(1) and (e)(2) of section 1818, title 12 of the U.S.Code. Subsection (e)(1) provides:

(e)(1) Whenever, in the opinion of the appropriate Federal banking agency, any director or officer of an insured bank has committed any violation of law, rule, or regulation or of a cease-and-desist order which has become final, or has engaged or participated in any unsafe or unsound practice in connection with the bank, or has committed or engaged in any act, omission, or practice which constitutes a breach of his fiduciary duty as such director or officer, and the agency determines that the bank has suffered or will probably suffer substantial financial loss or other damage or that the interests of its depositors could be seriously prejudiced by reason of such violation or practice or breach of fiduciary duty or that the director or officer has received financial gain by reason of such violation or practice or breach of fiduciary duty, and that such violation or practice or breach of fiduciary duty is one involving personal dishonesty on the part of such director or officer, or one which demonstrates a willful or continuing disregard for the safety or soundness of the bank, the agency may serve upon such director or officer a written notice of its intention to remove him from office (emphasis added).

It is clear from the language of this provision that the statute grants authority to the FDIC to remove a bank officer for misconduct or mismanagement related to his tenure as an official for that particular bank. Thus, if an individual has mismanaged Bank A, he may be suspended or removed as an officer from Bank A. But there is nothing in subsection (e)(1) to grant power to the FDIC to remove an officer or director from Banks B, C, and D for misconduct at Bank A: the provision speaks only in terms of misconduct “in connection with the bank” for which the individual serves as an officer or director. Thus, the language of subsection (e)(1) does not, on its face, support the provision in the FDIC’s amended order which restricts plaintiffs activities in all other banks as a result of alleged misconduct at__

12 U.S.C. § 1818(e)(2) reaches further than (e)(1), reading:

(2) Whenever, in the opinion of the appropriate Federal banking agency, any director or officer of an insured bank, by conduct or practice with respect to another insured bank or other business institution which resulted in substantial financial loss or other damage, has evidenced either his personal dishonesty or a willful or continuing disregard for its safety and soundness, and, in addition, has evidenced his unfitness to continue as a director or officer and, whenever, in the opinion of the appropriate Federal banking agency, any other person participating in the conduct of the affairs of an insured bank, by conduct or practice with respect to such bank or other insured bank or other business institution which resulted in substantial financial loss or other damage, has evidenced either his personal dishonesty or a willful or continuing disregard for its safety and soundness, and, in addition, has evidenced his unfitness to participate in the conduct of the affairs of such insured bank, the agency may serve upon such director, officer, or other person a written notice of its intention to remove him from office or to prohibit his further participation in any manner in the conduct of the affairs of the bank (emphasis added).

Insofar as here relevant, the (e)(2) provision allows the FDIC to remove an officer or director of an insured bank from his position in that bank as a result of that individual’s misconduct “with respect to another insured bank or other business institution.” 12 U.S.C. § 1818(e)(2). Thus, under this provision of (e)(2), in contrast to (e)(1), a bank officer serving at Bank A may be removed or suspended from Bank A because of misconduct he or she engaged in some respect at Bank B or C or even at Business D. However, this broader suspension power is carefully limited; it may be exercised only if the other requirements for removal as set forth in (e)(2) are satisfied.

These requirements include, inter alia, a finding by the FDIC of personal dishonesty or a willful or continuing disregard for a bank’s safety and soundness, and in addition, a finding that the misconduct evidences the individual’s “unfitness to continue as a director or officer” of the second bank. It is clear from this congressional scheme that the statute contemplates a bank-by-bank analysis of the individual’s misconduct by the FDIC, and the relationship of that misconduct to his fitness to serve in a particular insured bank. In other words, both (e)(1) and (e)(2) anticipate removal and suspension from individual banks based upon the appropriate designated findings: the statutory language of both provisions unambiguously speaks in terms of removal from “the bank,” not “any” bank or “all” banks.

An examination of the legislative history supports this reading of section 1818. The removal and suspension provisions of the statute were incorporated into the Federal Deposit Insurance Corporation Act in 1966 to “strengthen the regulatory and supervisory authority of Federal agencies over insured banks.” S.Rept. No. 1482, 89th Cong., 2d Sess., 1, U.S.Code Cong. & Admin.News 1966, 5532. As the Senate Report accompanying the Act makes clear, however, section 1818(e) attempts to balance the federal agency’s interest in protecting insured banks with “the interests of insured banks ... and their officials in receiving fair treatment from the Government, and in receiving a reasonable degree of protection from government actions which might at times, for one reason or another, generate into arbitrary, capricious and overbearing tactics.” Id. The Senate Committee was well aware of the potentially destructive ramifications of granting the FDIC the power to remove or suspend bank officers, writing in the Committee Report that “the power to suspend or remove an officer or director of a bank or savings and loan association is an extraordinary power, which can do great harm to the individual affected and to his institution and to the financial system as a whole. It must be strictly limited and carefully guarded.” Id. at 8 (emphasis added). In response to these concerns, the Senate Committee incorporated into section 1818 both the subsection (f) stay provision invoked by the plaintiff here, as well as a narrow and careful delineation of the circumstances under which an individual may be suspended or removed from office in order to protect the interests of individuals subject to suspension orders. S.Rept. at 8.

Thus, both a reading of the statutory language and an examination of the legislative history indicate that Congress intended that the FDIC’s power to remove or suspend bank officers be carefully limited. Congress accomplished these objectives by imposing limitations on the use of suspension power in the statutory provisions, and further, by ensuring that any exercise of the suspension power could be reviewed by the judiciary.

The FDIC's claim that Congress intended to confer upon the agency virtually unlimited power to remove or suspend officers and directors is inconsistent with this reading of the statute. In attempting to provide the Court with authority for its suspension of plaintiff, the FDIC does not point to subsections (e)(1) or (e)(2), or indeed, to any other specific provision in the Federal Deposit Insurance Corporation Act. Instead, the FDIC claims it derives authority to issue a blanket suspension against plaintiff, restricting his participation in “any bank,” from the generally recognized principle that “once the bank regulatory agency has found a violation ... [it] may, within [its] allowable discretion, fashion relief in such a form to prevent future abuses.” Defendant’s Opposition to Plaintiff’s Petition to Set Aside or Stay Amended Order at 25, citing Federal Trade Commission v. Mandel Brothers, Inc., 359 U.S. 385, 392-93, 79 S.Ct. 818, 824, 3 L.Ed.2d 893 (1959).

The FDIC’s reliance on this principle is flawed in the present context. As the quotation from Mandel Brothers makes clear, agency power is limited to the exercise of “allowable discretion.” Suspending an individual from all banks in a blanket order goes plainly beyond the “allowable discretion” granted to the FDIC to act on a bank-by-bank basis by sections 1818(e)(1) and (e)(2).

Congress purposefully limited the use of suspension and removal power to certain types of circumstances, well aware of the dangers of granting unfettered discretion to the FDIC to wield such potentially devastating power. It. did not grant to the FDIC unlimited suspension powers; to the contrary, it carefully limited the exercise of the agency’s authority. In such circumstances, reliance upon general principles and powers will not do. See Fox v. Reich & Tang, Inc., 692 F.2d 250, 255 (2d Cir. 1982); see also, Zenith Radio Corp. v. Matsushita Electric Industrial Co., 505 F.Supp. 1190, 1255 (E.D.Pa.1980). In light of the specific provisions in the statute that narrowly govern the FDIC’s use of suspension power, Congress cannot possibly have intended that the FDIC also be empowered to exercise a broad blanket suspension power derived from only the agency’s general enforcement powers without any limitation on its use.

As the FDIC recognizes, the principle of wide FDIC discretion in fashioning relief applies only “once the regulatory agency has found a violation or unsafe practice.” Here, the agency has made no such finding: it is barring plaintiff from all banks at the very outset of the administrative process. The statute itself, of course, makes a distinction between what the agency is empowered to do on an emergency interim basis and what it is empowered to do following an administrative proceeding to ascertain the facts and merits of an alleged impropriety. At a minimum, the agency may not issue a blanket, nationwide order where only interim conclusions have been reached, especially given the serious hardship of a suspension from office upon an individual and the length of time an interim suspension is likely to be in effect.

Finally, the FDIC attempts to justify its amended order on the basis that it needs the power to suspend individuals on a blanket basis if it is to fulfill its responsibility to protect insured banks. 12 U.S.C. § 1818(j) does empower the FDIC to do just that — to issue a suspension order identical to the one handed down here, but only after there has been a determination of misconduct on the merits and a final order has been issued. Additionally, Congress has granted to the FDIC in section 1818(e)(1) and (e)(2) the power to suspend dangerous individuals from an unlimited number of banks — it simply requires that the suspension be on a bank-by-bank, individualized basis.

The Court finds that the portion of the FDIC’s amended order requiring plaintiff to obtain prior written approval before voting for a director, or serving or acting as a director, officer or employee of any bank, exceeds the agency’s statutory authority and is void.

Ill

The FDIC clearly had the power to .suspend plaintiff from the_Bank pursuant to subsection (e)(1) and from the _Bank under subsection (e)(2). Accordingly, the Court’s review of the order pursuant to 12 U.S.C. § 1818(j) with respect to these banks consists only of an analysis of the appropriateness of issuing a section 1818(e)(4) interim suspension order.

Section 1818(e)(4) permits the FDIC immediately to suspend or remove individuals subject to subsequent administrative removal proceedings under section 1818(e)(1) and (e)(2), during the pendency of the administrative proceedings and prior to a decision on the merits of the removal. The only guidance the statute offers for the appropriate invokation of the interim suspension provision is that it may be issued “if [the appropriate federal banking agency] deems it necessary for the protection of the bank or the interests of its depositors.” 12 U.S.C. § 1818(e)(4).

The Amended Order prohibits plaintiff from further participation in any manner in

the conduct of the affairs of_and

_ banks, suspending him effective

immediately from office as a director, officer, or participant in the conduct of the affairs of the ___ bank, pending com-

pletion of the administrative removal hearings.

These suspensions are based upon an

examination of_Bank conducted in

March and April of 1985. According to the FDIC’s Amended Notice of Intention to Remove from Office, plaintiff was responsible for three unsafe and unsound banking practices with respect to several loan transactions made by_Bank. Plaintiff

vigorously denies his involvement in the loans, and argues that the FDIC’s affidavits are insufficient to support the allegations.

The (e)(4) provisions (in combination with the (e)(1) and (e)(2) provisions) establish a stringent set of requirements which must be satisfied before the agency may take the extreme measure of suspending or removing an officer or director of an insured bank on an interim basis pending administrative proceedings. Indeed, the Court issued its August 22 stay, at least in part, because of the FDIC’s failure to provide any basis for determining how and on what basis it had exercised its discretion in issuing the (e)(4) order or on what basis it would do so in any other case.

The Amended Order does not significantly fill that vacuum. The statement of reasons for the suspension accompanying the Amended Order is substantially identical to the statement of reasons accompanying the first order. The only other new material offered in support of the Amended Order consisted of an affidavit submitted by a FDIC official and an “opinion,” in which the FDIC attempts to rebut claims made by plaintiff regarding his role in two other banks,_and__Neither the affidavit nor the opinion nor any other material submitted by the FDIC explains why the alleged misconduct at_even if it did occur, warrants interim suspension.

Section 1818(e)(4) requires more than a simple finding that unsafe or unsound practices have occurred; in addition, the interim suspension must be “necessary for the protection of the bank and its depositors.” The furthest extent the FDIC had gone to establish that factor is a simple repetition of the statutory language to the effect that the FDIC “has deemed it necessary for the protection of_Bank and_ Bank and the interests of their depositors that responded be suspended from office ...” Amended Order at 2. Even after a request from the Court for more detailed reasons for the agency action, the FDIC still fails adequately to explain why, on the facts of this case, plaintiff’s alleged misconduct at_seriously threatens the safety of _ and _ banks pending the completion of the administrative proceedings.

Even accepting the FDIC version of the facts, plaintiff was involved in two or three troubled loans, and then only in a tangential way. There is no allegation of dishonesty, habitually disastrous banking practices, or any other type of misconduct that might indicate that plaintiff will constitute a serious threat to those two banks pending resolution of the administrative action. The FDIC delayed until August 1985 to institute the removal proceedings even though it had discovered_problem loans in March of this year. This delay casts serious doubt on the agency claim that now, when the FDIC has finally bestirred itself, plaintiff’s immediate removal is necessary for the protection of those banks (especially since plaintiff has not even participated in the affairs of_ since his resignation from that bank’s Board of Directors in July 1985).

Thus, even assuming that the FDIC has established a colorable claim that plaintiff was involved in some of the problem loans at_the Court finds that the practices at issue here do not rise to the standard imposed in subsection (e)(4) for an interim suspension action.

IV

In addition to finding that the FDIC has not satisfied the requirements of (e)(4) in issuing the interim amended order, the Court finds that the plaintiff likewise prevails on the other prerequisites for preliminary relief. The severe and permanent potential injury to plaintiffs business reputation as a result of a 9 to 12 month interim suspension, together with economic hardship caused by the destruction of plaintiffs banking career, clearly constitute irreparable injury. In contrast, it would be disingenuous for the FDIC to claim severe or immediate injury to the public if plaintiff is allowed to remain in office, given their own delay from March to August in instituting any action against plaintiff.

For the reasons stated herein, the Court will grant the plaintiffs motion for a preliminary injunction.

      . See H.R.Rep. No. 150, 73d Cong., 1st Sess. 5, 6 (1933); see also, First State Bank of Hudson County v. United States, 599 F.2d 558, 562 (3d Cir.1979).

      . Specifically, the FDIC alleges that plaintiff caused or allowed _ Bank to make to _a loan which exceeded the legal lending limit of the bank and that plaintiff directed the purchase of a participation in another bank’s loan to_also exceeding the legal lending limit. These loans allegedly resulted in an unsafe concentration of credit and were inadequately protected by the current sound worth of the borrower or the collateral pledged. In addition, the FDIC claims that plaintiff allowed the bank to extend an unsound and unsecured loan to _ which he personally guaranteed, as well as allowing or causing the bank to engage in a number of smaller loans later classified by the FDIC as "Loss,” “Doubtful," or “Substandard.” See Amended Notice of Intention to Remove from Office and Prohibit from Further Participation, September 9, 1985 at 4-6.
      Plaintiff does not deny that the loans were made, but he does claim that the FDIC is in error as to the degree of his involvement in the loans, arguing in essence that he did not "cause” these loans to be made or exercise any significant authority in "allowing" them to be made. Plaintiff also argues that not all of the loans the FDIC mentioned were unsafe and unsound.

      . See note 25, infra.

      . By way of explanation for its action, the FDIC order simply stated that the agency "[had] reason to believe by virtue of the misconduct alleged in the Amended Notice of Intention to Remove, Respondent has thereby evidenced his unfitness to participate” in the conduct of the affairs of_Bank or of any other federally insured bank. See August 5, 1985 Order of Suspension from Office and Prohibition from Further Participation.

      . Section 1818(f) provides that:
      Within ten days after any director, officer, or other person has been suspended from office and/or prohibited from participation in the conduct of the affairs of an insured bank under subsection (e)(4) of this section, such director, officer, or other person may apply to the United States district court for the judicial district in which the home office of the bank is located, or the United States District Court for the District of Columbia, for a stay of such suspension and/or prohibition pending the completion of the administrative proceedings pursuant to the notice served upon such director, officer, or other person under subsection (e)(1), (e)(2), or (e)(3) of this section, and such court shall have jurisdiction to stay such suspension and/or prohibition.

      . 12 U.S.C. § 1818(c)(1) empowers the appropriate federal banking agency to issue a temporary interim cease and desist order against a bank or its officers or directors to halt practices likely to cause insolvency or substantial dissipation of assets.

      . The statute is clear that the agency decision to issue an interim suspension order is a reviewable decision.

      . The September 9, 1985 FDIC action consisted of a Resolution of the FDIC Board of Directors, an Amended Notice of Intent to Remove, and Amended Order of Suspension.

      . The Court deferred resolution of the statutory issue in its August 22 Memorandum (although it was then also raised by plaintiff) because it anticipated that the terms of the restraining order might result in the issuance of new, narrower orders, thereby mooting the issue. Slip op. at 24. However, because the amended suspension order raises the same issue, the Court addresses the issue infra in Part II of this Memorandum.

      . The relevant portion of the order reads:
      FURTHER ORDERED that respondent shall not, prior to the completion of the administrative proceedings herein, * * * (ii) without the prior written approval of the appropriate Federal banking agency, vote for a director, serve or act as a director, officer, or employee of any bank.
      September 9, 1985 Amended Order of Suspension from Office and Prohibition from Further Participation.

      . No statutory provisions other than section 1818(e) — (f) pertain to the removal and suspension of bank officials.

      . The FDIC seeks to remove plaintiff from office at _ on (e)(1) grounds in the first provision of the Amended Order.

      . 12 U.S.C. § 1818(e)(2) also permits the FDIC to remove or suspend "any other person participating in the affairs of an insured bank," that is, even someone who is not an officer or director. Such an individual may be removed from office from the insured bank or prohibited from further participation in any manner in the conduct of the affairs of the insured bank as a result of misconduct "with respect to such bank or other insured bank or other business institution.”

      . The FDIC seeks to remove plaintiff from the _Bank on (e)(2) grounds. That provision is presumably also the basis for the FDIC’s flat prohibition on service by plaintiff in any federally insured bank in the United States without prior agency clearance.

      . This concern was the primary subject of the floor debate on the bill, see 112 Cong.Rec. 20232 et seq.

      . Section 1818 as originally passed in 1966 allowed the FDIC to exercise suspension power only in cases of personal dishonesty. S.Rept. No. 1482, 89th Cong., 2d Sess., at 3, U.S.Code Cong. & Admin.News 1966, at 3533. This limitation on the provision’s use was deliberately included in the Act to restrict the FDIC’s discretion in issuing suspension orders. Id. at 8. See also, 112 Cong.Rec. 20232-20235. Section 1818(e)(1) and (2) were more recently amended, however, to expand the ability of the FDIC to use suspensions both in a circumstance of personal dishonesty and "one which demonstrates a willful or continuing disregard for the safety or soundness of the bank.” H.R.Rept. No. 1383, 95th Cong., 2d Sess., at 5, 18, U.S.Code Cong. & Admin.News 1978, 9273, 9277, 9290. As the legislative history makes clear, however, Congress did not intend to grant the FDIC unlimited discretion when it expanded its suspension authority, retaining its earlier concerns about limiting the power and providing protections for individuals. Id.

      . Although these circumstances were expanded in the 1978 amendment of the Act as explained in note 16, supra, the authority to issue suspension orders is still carefully limited.

      . It is instructional to note that judicial review of any FDIC action under section 1818 in general is extremely limited by the terms of the statute. See section 1818(h), (i). A section 1818(f) action to stay an interim suspension order is one of the rare circumstances where a court may intervene in the FDIC enforcement process prior to a final decision on the merits.

      . In arguing this point, the FDIC repeatedly mentions the agency's responsibility to protect the public, which is indeed one of the most important purposes underlying the grant to the agency of suspension powers. S.Rept. No. 1482, 89th Cong., 2d Sess., 1. At no point, however, does the FDIC address the other interests Congress took into account in drafting the scope of the removal provisions: those of the bank management and of the individual bank officers. Id. at 8.

      . Indeed, if such a broad suspension power did exist, it would render redundant and unnecessary the narrower, specific statutory suspension provisions contained in sections (e)(1) and (e)(1).

      . 12 U.S.C. § 1818(f) (availability of stay for interim suspension orders); section 1818(e)(2) (availability of injunction for interim cease-and-desist orders); compare section 1818(b)(1) with (c)(1) (higher standard of proof for temporary cease-and-desist orders than for permanent cease-and-desist orders); and section 1818(e)(4) with section 1818(e)(1) and (e)(2) (interim suspension order invoked in removal proceedings only if necessary to protect bank).

      . See infra note 27.

      . This does not mean that the agency must necessarily await the occurrence of misconduct at a particular bank before it may bar an individual from that bank. Some kinds of conduct (e.g., that involving personal dishonesty) are of such nature that a finding might possibly be made that the individual cannot serve in banks generally in a capacity which would permit a repetition of the alleged conduct, thereby establishing the requisite relationship between the alleged misconduct and the individual's fitness to continue or be in office anywhere. But where, as here, the claim is one of imprudent investments by one member of a twelve-member board of directors, it simply makes no sense, consistently with the statutory scheme, to bar that one member automatically from all banks (or to require prior permission) even though he might not even be in a position at the second bank to make investments.

      . Even if the FDIC were right in its assertion that the power to issue blanket orders is essential to its ability to function effectively, it is for Congress to grant it the requisite authority.

      . Section 1818(e)(4) provides:
      In respect to any director or officer of an insured bank or any other person referred to in paragraph (1), (2), or (3) of this subsection, the appropriate Federal banking agency may, if it deems it necessary for the protection of the bank or the interests of its depositors, by written notice to such effect served upon such director, officer, or other person, suspend him from office or prohibit him from further participation in any manner in the conduct of the affairs of the bank. Such suspension or prohibition shall become effective upon service of such notice and, unless stayed by a court in proceedings authorized by subsection (f) of this section, shall remain in effect pending the completion of the administrative proceedings pursuant to the notice served under paragraph (1), (2), or (3) of this subsection and until such time as the agency shall dismiss the charges specified in such notice, or, if an order of removal or prohibition is issued against the director or officer or other person, until the effective date of any such order. Copies of any such notice shall also be served upon the bank of which he is a director or officer or in the conduct of whose affairs he has participated.

      . That broad language is coupled, however, with the provision allowing the courts to review suspension orders and grant stays thereof.

      . The FDIC notes that even an expedited administrative proceeding “will undoubtedly take between 9 and 12 months” to complete. Defendant's Memorandum in Opposition to Stay of Amended Order at 22. Thus, an "interim” suspension order would be in effect for that entire period of time.

      . The statement of reasons accompanying both orders basically consists of the allegations of misconduct, see supra note 2, and a parrotting of the statutory language. Thus, the order reads without further elaboration that because of plaintiffs misconduct, the FDIC finds the statutory requisites satisfied.

      . See FDIC Amended Notice of Intention to Remove, p. 3 et seq., for the FDIC’s specific allegations of impropriety, summarized in note 2, supra.

      . Although it is unclear what standard is applicable in issuing a section 1818(f) stay, the Court will apply the traditional test for preliminary relief set forth in Virginia Petroleum Jobbers Association v. Federal Power Commission, 259 F.2d 921, 925 (D.C.Cir.1958). Under this standard, the plaintiff must show: (1) that he enjoys a substantial likelihood of success on the merits; (2) that absent such relief he will suffer irreparable injury: (3) that the requested relief will not substantially harm other parties to the litigation; and (4) that the public interest favors the granting of the requested relief. Id.; see also, Foundation on Economic Trends v. Heckler, 756 F.2d 143, 151 (D.C.Cir.1985). The discussion in Part III of the Memorandum, supra, shows that plaintiff has satisfied the first requirement of the Virginia Petroleum Jobbers test.

      . See supra note 27.

      . Because the FDIC is presumed to be acting to protect the public interest, factors 3 and 4 merge in the instant case.