United States v. Manuel R. Sambro

454 F.2d 918

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 26, 1971
• Docket: 23875
• Status: Published

Opinions

PER CURIAM:

The sole issue on this appeal is the District Court’s refusal to allow the appellant to withdraw his plea of guilty at the time he appeared for sentencing. We do not find that the trial judge abused her discretion in the circumstances of this case, and therefore affirm.

I. FACTS

Appellant was indicted in 12 counts for heroin and marijuana violations. A plea of guilty to one heroin count was accepted by the District Court, and the government thereupon dismissed the other 11 counts. A probation report was ordered and a day set for sentencing.

By the time the day of sentencing arrived the appellant claims he had learned that a conviction for a heroin violation would result in his deportation to his native country of Argentina. Appellant therefore moved to withdraw his plea of guilty on the ground that he did not fully understand “the consequences of the plea.” ¹ He also urged that he had had great difficulty in understanding English and therefore failed to understand the nature and significance of his plea and the penalty, but he did not claim that he failed to understand the trial court’s several questions at the time of the guilty plea. There is no allegation of any promises made by any attorney or the court; the ground simply is that the appellant did not understand the ultimate consequence of a finding of guilty on the ancillary matter of deportation. The District Court suspended the imposition of sentence and placed appellant on probation for a period of four years.

II. DISCRETION OF THE DISTRICT COURT UNDER FED.R.CRIM.P.

11 and 32(d)

Rule 11, in pertinent part, provides: The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. * * * The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.

Withdrawal of a plea of guilty is permitted under Rule 32(d):

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

The unquestioned standard for permitting withdrawal of a guilty plea, unequivocally stated by Judge (now Chief Justice) Burger:

Overwhelming authority holds, as has this court, that withdrawal of a guilty plea before sentencing is not an absolute right but a decision within the sound discretion of the trial court which will be reversed by an appellate court only for an abuse of that discretion.²

Hence, the issue on this appeal is whether the trial judge abused her discretion.

Abuse of discretion has been defined by this court and the Supreme Court as “action which is arbitrary, fanciful, or clearly unreasonable.” ³ Compare the application of the standard in Everett:

The record reveals a guilty plea, intelligently and voluntarily made with assistance of retained counsel and candid admission of all essential elements of the crime in open court; this is hardly a predicate for an appellate holding that the District Judge abused his discretion in refusing to permit a withdrawal. We are not disposed to encourage accused persons to “play games” with the courts at the expense of already overburdened calendars and the rights of other accused persons awaiting trial, * * * .⁴

We consider the requirements of Rule 11 are met when the trial court is satisfied after interrogation of the defendant personally that he understands the direct “consequences of the plea.” The trial court is not required later on motion to withdraw the plea to consider possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction on a plea of guilty, although of course such consequences, if known, might be evaluated by the trial judge in assessing punishment. Fed.R.Crim.P. 32(a) (1).

The trial judge may well have considered, as we do, that appellant’s asserted claim that he did not understand English well enough to evaluate the consequences of his plea is not supported by the record. His counsel stated that appellant “is now employed as an optical technician, is in this country on a permanent visa * * *,” which indicates that he is regularly employed in a business requiring some command and understanding of English.

Nor did his awareness of a relationship between a criminal conviction and deportation originate after his plea of guilty. His counsel stated to the court, “Mr. Sambro and I at this time [of the plea of guilty] thought that it was possible for Your Honor to suspend sentence, put the defendant on probation, without him being deported, since he is a citizen of Argentina.” This indicates clearly that far from the appellant’s being confused by a poor command of English and not having considered deportation, he and his counsel both had considered the possibility of deportation as a result of conviction on this plea of guilty, and had reached an erroneous conclusion as to the legal effect.

We note that here the District Court imposed no immediate prison term, only four years’ probation. Since appellant is an alien, the net result will be immediate deportation without serving either a prison term or four years’ probation. We also observe that the Government was willing to accept a plea to one of the heroin, not marijuana, counts of the 12-count indictment, thus evidencing some .confidence in the strength of its case if the matter came to trial. We do not see that the appellant was unfairly or unjustly treated in these circumstances, or that the interests of justice would be best served by remanding the case for trial on the 12-count narcotics indictment.

III. REPUDIATION OF APPELLANT’S ADMISSION THAT HE COMMITTED THE ACT CHARGED

We say that appellant was not unfairly or unjustly treated, for several reasons stated above. Furthermore, even yet he has not alleged that he has any valid defense to the crime charged in the count to which he pleaded guilty.

Appellant’s misunderstanding as to the collateral legal consequences of his plea bears a close resemblance to the situation in Brady v. United States/ There the petitioner Brady sought post-conviction relief on the ground that, had he known of a subsequent Supreme Court decision at the time of his plea of guilty, he would never have made such a plea. In rejecting Brady’s argument, the Supreme Court analyzed the effect of a guilty plea under Rule 11, saying: “Central to the plea and the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged in the indictment.”⁶ Equally pertinent:

The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. * * * The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea.⁷

We recognize some distinctions can be drawn between the withdrawal of a plea of guilty before the imposition of sentence (Sambro) and the setting aside of a post-conviction plea of guilty (Brady), but the point made by the Supreme Court in Brady is the same here, i. e., that under Rule 11 “the court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea,” and, as phrased in Brady, “the foundation for entering judgment against the defendant is the defendant’s admission in open court that he committed the acts charged.” Hence, a plea of guilty is a confession in open court as to the facts alleged: in the instant case appellant Sambro has made such a confession, has said nothing whatever to repudiate it, nor has he claimed any legal defense to the charge.

IV. MISUNDERSTANDING OF THE COLLATERAL CONSEQUENCES OF A PLEA

As discussed under Part II, supra, the withdrawal of a plea rests within the discretion of the trial court. Only if there is some law which absolutely requires the trial court to permit appellant here to withdraw his plea does appellant have a valid ground on which we should reverse the trial court. And, as indicated under Part III, supra, a voluntary plea of guilty is a voluntary confession of the acts alleged.

The standard as to the voluntariness of guilty pleas was reiterated by the Supreme Court in Brady, supra:

A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g., bribes).⁸

We note that the accused must be “fully aware of the direct consequences.” We presume that the Supreme Court meant what it said when it used the word “direct”; by doing so, it excluded collateral consequences.

We have here then a voluntary plea of guilty by the appellant; there is no contention that he was not fully aware of the direct consequences of his plea, and there is no contention that any of the other circumstances listed by the court could possibly be cited to invalidate the voluntariness of his plea of guilty, i. e., his voluntary confession. That plea of guilty, that confession, has not been repudiated.

Appellant’s situation is similar to that in Everett v. United States, supra, as described by Judge (now Chief Justice) Burger:

[A]ppellant offered no defense to the charge, nor did he allege involuntariness or any other factor which would militate against the correctness and truth of his guilty plea to Count 4 which was entered when he was represented by retained counsel His contention is virtually a claim of an absolute right to withdraw a guilty plea prior to imposition of sentence. No court has ever so held; * * * .⁹

Unless the appellant has an absolute right to withdraw the guilty plea prior to imposition of sentence, unless such withdrawal is not a matter of the trial court’s discretion, then there is no ground for reversal of the trial court’s action here. No court to our knowledge has ever held that there was such absolute right, and all decisions speak of the discretion of the trial judge to permit or deny the withdrawal of a plea of guilty prior to sentence.

United States v. Parrino ¹⁰ involved a virtually similar factual situation. There the defendant pled guilty to one count of the indictment, the others were dismissed, and (the only distinction from Sambro) he entered upon service of his sentence. The record showed that before changing his plea the defendant was informed by the lawyer then representing him that a plea of guilty would not subject him to deportation. The Second Circuit held that surprise which results from erroneous information received from the defendant’s own attorney, at least without a clear showing of unprofessional conduct, is not enough to set aside a conviction. “Moreover, here the subject-matter of the claimed surprise was not the severity of the sentence directly flowing from the judgment but a collateral consequence thereof, namely, deportability. * * * We think it plainly unsound to hold, as now in principle we are urged to hold, that such defendants are subjected to manifest injustice, if held to their plea, merely because they did not understand or foresee such collateral consequences. We find no case which even looks in that direction, and the absence of eases expressly rejecting such doctrine we attribute to the'absence of a rule so palpably unsound.” ¹¹

This court confronted a converse situation in Briscoe v. United States,¹² where appellant sought to set aside his guilty plea as involuntary. While the ease was remanded for determination of the voluntariness of his guilty plea on other grounds, this court held, “We do not accept appellant’s contention that his guilty plea must be set aside as involuntary because it was induced by his misunderstanding, in that he thought he was in fact to be deported.”13

V. THE AMERICAN BAR ASSOCIATION MINIMUM STANDARDS RELATING TO PLEAS OF GUILTY

While on all the previously decided cases appellant’s contention is not meritorious, neither is it meritorious measured by the ABA Minimum Standards for Criminal Justice adopted in 1968.

The Standards Relating to Pleas of Guilty, § 2.1, Plea withdrawal, set up a single standard, “to correct a manifest injustice for obligatory withdrawal whenever, before or after conviction,¹⁴ the defendant proves that withdrawal is necessary.

(a) The court should allow the defendant to withdraw his plea of guilty or nolo contendere whenever the defendant, upon a timely motion for withdrawal, proves that withdrawal is necessary to correct a manifest injustice.

* * -X -X * -X

(b) In the absence of a showing that withdrawal is necessary to correct a manifest injustice, a defendant may not withdraw his plea of guilty or nolo contendere as a matter of right once the plea has been accepted by the court. Before sentence, the court in .its discretion may allow the defendant to withdraw his plea for any fair and just reason unless the prosecution has been substantially prejudiced by reliance upon the defendant’s plea.

Observe that “whenever the defendant

-x -x * proves that withdrawal is necessary to correct a manifest injustice,” then “[t]he court should allow the defendant to withdraw his plea.” But, unless the defendant makes the required proof of manifest injustice, he “may not withdraw his plea * * * as a matter of right.” Instead, the defendant is relegated to a different standard: “Before sentence, the court in its discretion may allow the defendant to withdraw his plea for any fair and just reason. * * * ”

“Manifest injustice” may be proved by any one of five circumstances, not one of which has anything to do with collateral consequences, and it is only “manifest injustice” which gives the defendant a right to plea withdrawal. Failing this obligatory standard, defendant can resort to the standard of “any .fair and just reason,” but here the determination of “fair and just” is confided to the discretion of the court. The language is “the court in its discretion” and “may allow,” not “should allow.”

The Commentary is illuminating and supports the disposition we make of this case:

There does not appear to be any good reason for allowing withdrawal as a matter of right, absent a showing of manifest injustice, once the court has accepted the plea.

The standard does recognize the generally acknowledged discretion of the judge to permit withdrawal before sentence even in the absence of a manifest injustice. This is a matter solely within the discretion of the judge; he may but need not grant the motion. In the federal system, it is common to refer to this discretion as covering cases in which the defendant offers any “fair and just reason” for withdrawal. Note, 40 N.Y.U.L.Rev. 759 (1965). For example, a judge may but need not allow presentence withdrawal when the defendant establishes that there are circumstances which might lead a jury to refuse to convict notwithstanding his technical guilt of the charge. Everett v. United States [119 U.S.App.D.C. 60], 336 F.2d 979 (D.C.Cir. 1964). Or, a judge might allow withdrawal because the defendant has become aware of some collateral consequences of conviction which he wants to avoid. Note, supra, [397 U.S.] at 763.¹⁵ [90 S.Ct. 1463, 25 L. Ed.2d 747],

The last sentence is the only reference to the effect of collateral consequences on the trial judge’s decision on allowing withdrawal of a plea which we have found in either the black letter test or Commentary on the ABA Minimum Standards Relating to Pleas of Guilty.

Finding no error in the District Court’s action in denying appellant’s motion to withdraw his plea of guilty at time of sentencing, the judgment is therefore Affirmed.

1 . Fecl.R.Crim.P. 11.

2 . Everett v. United States, 119 U.S.App. D.C. 60, 64, 336 F.2d 979, 983 (1964) (footnotes omitted).

3 . United States v. McWilliams, 82 U.S. App.D.C. 259, 261, 163 F.2d 695, 697 (1947).

4 . Everett v. United States, supra,, 119 U.S. App.D.C. at 65 and 336 F.2d 984.

6 . Id., at 748, 90 S.Ct. at 1468.

7 . Id., at 757, 90 S.Ct. at 1473.

8 , Id., 397 U.S. at 755, 90 S.Ct. at 1472, originally the language of Circuit Judge Tuttle, endorsed by the Supreme Court (emphasis supplied).

9 . 119 U.S.App.D.C., at 63-64, 336 F.2d, at 982-983 (footnotes omitted).

10 . 212 F.2d 919 (2d Cir. 1954).

11 . Id, at 921-922.

12 . 129 U.S.App.D.C. 146, 391 F.2d 9S4 (1968).

13 . Id., at 148, 391 F.2d at 986 (emphasis supplied).

14 . “This language, it should be noted, says nothing about the standard to be employed before sentence. However, federal cases dealing with the question of when the judge must allow the defendant to withdraw his plea have employed the ‘manifest injustice’ test whether the application was before or after sentence. Note, 64 Yale L.J. 590 n. 4 (1955). This is the test adopted in the above standard.” Commentary on § 2.1, at 54. (Emphasis in original.)

15 . Id., at 58.

5 . 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).