Opposition — Parrish v. United States

No. 76-1073 ae

MICHAEL RoDaK jp

dn the Supreme Court of the Uni ie’

OCTOBER TERM, 1976

CHARLES W. PARRISH, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WavE H. McCree, Jr.,

Solicitor General,

BENJAMIN R. CIVILETTI,

Assistant Attorney General,

JEROME M. FEIT,

FREDERICK EISENBUD,

Attorneys,

Department of Justice,

Washington, D.C. 20530.

INDEX

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: CITATIONS

Cases:

Blackledge v. Allison, certiorari granted,

No. 75-1693, October 4, 1976 .o......cceceeecee cee e seen 7

Henderson v. Morgan, 426 U.S. 637 ..........cccccccceeees 7

Kav v. United States, 303 U.S. 1 wo... ee ceee cece sees enon 9

McCarthy v. United States, 394 U.S. 459.000.000.022... 7

United States v. Barker, 514 ™. 2d 208,

certiorari denied, 421 U.S. 1013.00.00... eee. 8

United States v. Braverman, 522 F. 2d

218, certiorari denied, 423 U.S. 985 ..................... a

United States v. Sabatino, 485 F. 2d 540,

certiorari denied, 415 U.S. 948 00.00... )

United States v. Tokoph, 514 F. 2d 597 ........ .9

Statutes and rules:

eI Uc ee a NSS TON TO a 2

Federal Rules of Criminal Procedure:

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IG ianisiia saa eiiah sts pesiesiaaiinaiininnieliinbaadiiisianenananons 5

In the Supreme Court of the United States

OCTOBER TERM. 1976

No. 76-1073

CHARLES W. PARRISH, JR., PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-3) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

November 19, 1976, and a petition for re..caring was denied

on January 4, 1977 (Pet. App. 4). The petition for a writ of

certiorari was filed on February 3, 1977. The jurisdiction

of this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether. in the circumstances of this case, the district

court abused its discretion in denying petitioner's post-

sentence motion to withdraw his guilty plea.

(1)

2

STATEMENT

1. On January 6, 1976, an indictment filed in the

United States District Court for the Eastern District of

Virginia charged petitioner with three counts of making

materially false statements in an application for a loan

submitted to an institution insured by the Federal Deposit

Insurance Corporation, in violation of 18 U.S.C. 1014.

On February 13, 1976, pursuant to a plea bargain whereby

the remaining counts of the indictment would be dismissed,

petitioner sought to withdraw his plea of not guilty and to

enter a plea of guilty to one count of the indictment.!

Before accepting the guilty plea, the district court con-

ducted an inquiry as required by Rule I 1, Fed. R. Crim. P.

The court first ascertained that petitioner, a college grad-

uate, understood that he was charged with “voluntarily

and intentionally, and not because of mistake or accident

or other innocent reason, making a materially false

statement in an application for a loan submitted * * * to

the Commonweaith Bank and Trust Company of Virginia

** *™ by falsely stating in the application that he was

the recipient of a $5,500,000 irrevocable spendthrift

trust established by his mother, whom he alleged to be a

DuPont family member (C.A. App. 28-29). Petitioner

further acknowledged that he and his attorney had studied

the nature of the charge and any possible defense that he

might have to it and that he was aware that, if his guilty

plea were accepted, he could be imprisoned for as long as

two years and fined $5,000 (C.A. App. 29). The court then

‘In return for the dismissal of the two counts, petitioner agreed to

plead guilty to count one of the indictment. to appea: before the grand

jury and testify concerning the underlying facts of the case. and to test-

ify at any subsequent trials to which he might be subpoenaed (C.A.

App. 24-27). (°C.A. App.” refers to the appendix to petitioner's brief

in the court of appeals.)

3

advised petitioner that by pleading guilty he would waive

certain constitutional rights, including trial by jury, the

presumption of innocence, the requirement that the govern-

ment prove his guilt beyond a reasonable doubt, the right

to summon and cross-examine witnesses, and the priv-

ilege against self-incrimination. Petitioner replied that

he understood these consequences and that his decision

to plead guilty was not induced by threats or promises

other than the terms of the plea bargain that had previously

been described by the Assistant United States Attorney

(C.A. App. 30-31).

At the court’s request, the government attorney then

summarized the evidence against petitioner, concluding

by stating that “at that time [petitioner] submitted such

application he knew so and did so with the intention of

gaining the loan from the bank” (C.A. App. 33). Petitioner

remarked that he did not disagree in any way with the

government's recitation of the evidence, that he was mak-

ing no claim of innocence, and that he understood that, if

the court accepted his plea, there would be “no further

trial of any kind” and he would be found guilty (C.A. App.

33-34). In light of the foregoing, the court concluded that

the plea was voluntarily and knowingly made and had a

basis in fact. It therefore accepted the plea to count one

of the indictment (C.A. App. 34).

2. On March 12, 1976, when petitioner appeared for

sentencing, his counsel offered the testimony of three wit-

nesses. including Anne Rogers Devereux, in support of

petitioner's request for leniency. Counsel explained that

petitioner's wife had been hospitalized for a serious

mental condition on numerous occasions and that, if

petitioner were incarcerated, his wife might repeat previous

attempts to commit suicide (C.A. App. 39). Counsel also

4

advised the court that petitioner had suffered serious finan-

cial setbacks and that his witnesses would testify that he

made “the false statements which he has pled guilty to”

in order to further a business proposition that, petitioner

felt, would permit him to care for his family (C.A. App. 40).

When the judge remarked that he did not believe that he

should be influenced in his sentence by the possibility of

the suicide of petitioner's wife, counsel responded (C.A.

App. 41-42):

It was offered in the sense that this is the family

situation [petitioner] is in. It’s a condition which ex-

isted at the time that he engaged in this offense. It

goes partly to the reasons that he had for committing

the offense.

He is not attempting to exculpate himself by that.

He is simply trying to, through me, to give Your Honor

some idea of the family situation he is in * * *.

Petitioner's counsel then described in detail the back-

ground of the faise joan application. Counsel stated that

petitioner, who previously had been involved in the

development of apartment dwellings and other types of

real property, had been advised by an officer of the

Commonwealth Bank that a trailer park was failing fin-

ancially because its owners were utilizing funds from the

operation of the park for other ventures. The bank officer

Suggested that petitioner might be able to help restruc-

ture the financing of the trailer park. According to peti-

tioner’s counsel, the false loan application that petitioner

subsequently submitted to Commonwealth Bank was in-

tended to secure funds to pay off arrearages in interest

and principal owed to the bank by the previous owners

of the trailer park (C.A. App. 42-44). Counsel added that

“[t}here is no question that [petitioner] falsified his

financial worth and made a false statement to the bank

San eee

5

in order to secure the loans, in an attempt to revive

this business.” and that “{t}here is no excusing what

[petitioner] did in the sense that it was right or

justified * * * ~ (C_A. App. 45, 46).

Finally, petitioner told the court that “I realize |

made a terrible mistake, which | am certainly very sorry

for” (C.A. App. 47). He was then sentenced to two

years’ imprisonment (C.A. App. 48).

3. On March 22, 1976, ten days after sentencing and

after retaining new counsel, petitioner moved to with-

draw his guilty plea pursuant to Rule 32(d), Fed. R.

Crim. P. Petitioner contended that he had not fully

understood the charge against him (i.e., that the false

statement in the application had to be material) and that

he had a complete defense to the charge (i.e., that he

was acting merely as an agent for the Commonwealth

Bank to permit the bank to cover from federal bank

examiners the losses it had incurred on defaulted ob-

ligations arising out of the trust it heid on the trailer

park). Petitioner also alleged that he had been mentally

incompetent at the time that he filed the application for

the bank loan, because he had been subjected to extreme

pressures brought about by his wife’s mental illness

and the sudden death of his stepdaughter from an over-

dose of drugs (C.A. App. 5-8). In support of this

latter claim, petitioner submitted an affidavit from Mrs.

Devereux, an old family friend who was neither a medical

doctor, psychiatrist nor psychologist, which expressed her

opinion that, as a result of family problems, petitioner

had “lost all real ability * * * to control his acts or

judgment” and that “he did not himself fully appreciate

his mental impairment or what had happened or was

happening to him, mentally” (C.A. App. 11).

6

On April 9, 1976, the district court held a hearing on

petitioner's plea withdrawal motion.? The Assistant

United States Attorney advised the court that, in addition

to his admissions of guilt at the Rule I! proceeding,

petitioner had admitted every material allegation in the

indictment in an interview in the United States At-

torney’s Office with his counsel present and had done

so again when he testified before the grand jury

(C.A. App. 72). The government attorney also observed

that Mrs. Devereux was not a medical expert, that

petitioner had not attempted to present psychiatric testi-

mony in his behalf. and that petitioner had refused to

waive the attorney-client privilege to allow his first

attorney to testify about matters relevant to the motion

to withdraw the plea. Finally, government counsel in-

formed the court that petitioner's purported defenses

were baseless and that the prosecution had had a number

of witnesses who were prepared to testify at trial to re-

fute those claims (C.A. App. 73-74).

The district court denied the motion to withdraw

the guilty plea, finding that petitioner had not demon-

strated that it would be manifestly unjust to hold him

to his plea. The court ruled that petitioner's Rule 11

proceeding had been adequate, that petitioner had been

represented by competent counsel and had freely admitted

his guilt with knowledge of his possible defenses, and

“The day before. April 8. 1976. the court had quashed subpoenas

served by petitioner on the Attorney General. the Director of the

Federal Bureau of Investigation. and the Commonwealth Bank. finding

that the material sought to be presented would have no bearing

on the question of whether “the plea was improvidentally [sic]

entered. whether there is a substantial defense and whether manifest

injustice would result if the plea is allowed to stand” (C.A.

App. 59).

that petitioner's principal motivation for the plea

withdrawal was not his innocence but rather his un-

happiness with the sentence imposed (Pet. App. 5). The

court of appeals affirmed per curiam (Pet. App. 1-3).

ARGUMENT

The court of appeals correctly concluded that the

district court did not abuse its discretion in denying

petitioner's post-sentence motion to withdraw his guilty

plea. As noted above, the record of the Rule I! pro-

ceeding established that petitioner understood the nature

of the charges against him. See Henderson v. Morgan,

426 U.S. 637, 640 n. 6; McCarthy v. United States.

394 U.S. 459, 466. Petitioner acknowledged at the time

of his plea that he had informed his attorney of all

the facts known to him and that they had studied

the “nature of the charge and any possible defense”

he might have to it (C.A. App. 29). In addition, the

court had expressly advised petitioner that he was charged

with knowingly “making a materially false statement” (id.

at 28; emphasis added) and petitioner had remarked that

he did not disagree with the government’s comment

that the evidence would show that petitioner had made

the false statements “{f]or the purpose of influencing

the bank in [his] loan application” (C.A. App. 32, 33).

Accordingly, as the court of appeals held, petitioner's

plea “was voluntarily and intelligently made, with the

aid of counsel and based on facts that support the

charge” (Pet. App. 3).?

‘There is no reason to hold this case pending the outcome of

Blackledge \. Allison, certiorari granted, No. 75-1693, October 4,

1976. or United States v. Maves, pending on petition for a writ

of certiorari, No. 76-989. The issue in those cases is whether

’ prisoner who moves to vacate his sentence on the ground that

8

_ Nor was petitioner entitled to withdraw his guilty plea

on the basis of his allegation that he had a valid

defense to the charge. As the District of Columbia

Circuit has recently noted:

Were mere assertion of legal innocence always

a sufficient condition for withdrawal, withdrawal

would effectively be an automatic right. There

are few if any criminal cases where the defendant

cannot devise some theory or story which, if be-

lieved by a jury, would result in his acquittal. A

guilty plea is very typically entered for the simpie

“tactical” reason that the jury is unlikely to credit

the defendant's theory or story. * * * Indeed, so long

as a factual basis for the plea exists, * * * a court may

accept such a “tactical” guilty plea even from a

defendant who continues to assert his innocence.

North Carolina v. Alford, 400 U.S. 25 (1970). Surely,

such a defendant does not retain a right auto-

matically to withdraw his plea. A guilty plea “fre-

quently involves the making of difficult judgments.”

McMann v. Richardson, 397 U.S. 759, 769 (1970);

see also Brady v. United States, 397 U.S. 742,

757 (1970).

United States v. Barker, 514 F. 2d 208, 221 (C.A. D.C.),

certiorari denied, 421 U.S. 1013 (some citations omitted).

Here, taced with the overwhelming evidence of the falsi-

ty of the statements he made in his loan application

and the likelihood of conviction on ail three counts

of the indictment, petitioner knowingly and intelligently

his plea had been induced by threats and broken promises ts

entitled to an evidentiary hearing when his allegations are ex-

pressly rebutted by statements he made at the guilty plea proceeding.

Here. petitioner was given a hearing on his motion to withdraw

his plea of guilty.

9

chose to plead guilty to a single count and to co-

operate with the government in the hope of receiving

a minimal sentence. His disappointment with having re-

ceived a sentence of two years’ imprisonment does not

constitute manifest injustice.*

‘In any event, petitioner's purported defenses to the indictment

are insubstantial. Even if petitioner were correct in assuming

that the bank did not rely on his false statements in approving

the loan, his conduct would still have violated Section 1014 because

the gravamen of that offense is the filing of a false statement

“for the purpose of influencing in any way” the actions of the

lending institution. Kay v. United States, 303 U.S. 1, 5-6: United

States Vv. Braverman, 522 F. 2d 218, 223 (C.A. 7), certiorari denied,

423 U.S. 985; United States v. Sabatino, 485 F. 2d 540, 544 (C.A.

2). certiorari denied. 415 U.S. 948. Without supporting documentation

for the substantial loan, federal bank examiners and. indeed. the

bank’s own auditors would have become suspicious. Accordingly.

petitioner's false statements regarding his financial worth had

the “capacity to influence” the lending institution. See United

States v. Braverman, supra, 522 F. 2d at 223: United States v.

Tokoph, 514 F. 2d 597. 603 (C.A. 10).

Similarly, even if the lay observations of Mrs. Devereux about

petitioner's mental state at the time of the offense were accurate.

petitioner does not allege that he suffered any mental incapacity

at the time of his guilty plea. Moreover, any doubt concerning peti-

tioner’s criminal intent at the time of the loan application was

dispelled at the sentencing hearing, when petitioner's counsel

described the scheme that petitioner had devised, stated that he

had discussed the events with petitioner, and admitted that peti-

tioner had acted for the express purpose of reversing business losses

he had suffered.

10

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

WADE H. McCree, Jr..

Solicitor General.

BENJAMIN R. CIVILETTI,

Assistant Attorney General.

JEROME M. Feit.

FREDERICK EISENBUD.

Attorneys.

MARCH 1977.

DOJ-1977-03