Opposition — Nunziata v. United States

Inthe Supreme Court ofthe Maited Bites

secpesticrnattit:

- RALPH FREDERICK NUNZIATA, PETITIONER

! v.

UNITED STATES OF AMERICA

ON PETITION FOR A. WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

Rex E. Lee

‘ Solicitor General

c D. Low8Li JENSEN

Mee 3 Assistant Attorney General

: Attorney

Department of Justice

ei Washington, D.C. 20530

te ee (202) 633-2217

QUESTIONS PRESENTED

1. Whether the court of appeals correctly held that peti-

tioner waived his right to appeal non-jurisdictional errors

by failing to state his intention to enter a plea of guilty

conditioned on being able to appeal.

2. Whether the court of appeals correctly held that peti-

tioner's claims of error were non-jurisdictional and there-

fore waived by '..> guilty plea.

3. Whether petitioner's guilty plea was knowing and

voluntary.

(I)

TABLE OF CONTENTS

Blackledge v. Perry,417 U.S.21 .......

Boykin v. Alabama, 395 U.S. 238 ......

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

LaMagna v. United States, 646 F. 2d 775,

cert. denied, 454 U.S. 898 ............

McCarthy v. United States, 394 U.S. 459

McMann v. Richardson, 397 U.S.759 ..

Menna v. New York, 423 U.S. 61 .......

Parker v. North Carolina, 397 U.S.

Tollett v. Henderson, 411 U.S. 258 .....

United States v. Benson, 579 F. 2d 508 ..

United States v. DeCosta, 435 F. 2d 630 .

United States v. De Poli, 628 F.2d 779 ..

United States v. Doyle, 348 F. 2d 715,

cert. denied, 382 U.S. 843 ............

United States v. Mann, 451 F. 2d 346 ...

United States v. Moskow, 588 F. 2d 882 .

Ill

IV

Page

Statutes and rules:

Speedy Trial Act of 1974, 18 U.S.C.

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Gn the Supreme Court of the Hnited States

OcToBer TerM, 1982

No. 82-117

RALPH FREDERICK NUNZIATA, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

_ The opinion of the court of appeals (Pet. App. la-Sa) is

not reported. The opinions of the district court (Pet. App.

6a-8a, 9a-10a and | la-13a) are not reported.

JURISDICTION

The judgment of the court of appeals was entered on

April 19, 1982. Justice Marshall extended the time for filing

a petition for a writ of certiorari to July 19, 1982, and the

petition was filed on that date. The jurisdiction of this Court

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

STATEMENT

1. On June 23, 1981, petitioner pleaded guilty in the

United States District Court for the Eastern District of New

York to one count in a 15-count indictment, which alleged

transportation of an unregistered firearm in interstate

2

commerce in violation of 26 U.S.C. 5861(j), 5871 and 18

U.S.C. 2. He was sentenced to six years’ imprisonment.

The court of appeals affirmed (Pet. App. la-Sa, 12a-13a).

On August 12, 1980, petitioner was arrested on a com-

plaint charging him with illegally transporting a firearm (a

partly assembled M-16 rifle) in interstate commerce, in

violation of 18 U.S.C. 922(g\1).! On September 18, 1980,

on the government's motion, the complaint was dismissed

(C.A. App. 7a). Petitioner did not, however, seek, either

before or after the government's motion, to have the com-

On May 14, 1981, petitioner was indicted in a fifteen-

count indictment returned in the United States District

Court for the Eastern District of New York, charging him

with various firearms violations (Pet. App. 7a; C.A. App.

8a-13a). Counts 5 and 6 of the indictment referred to the

same firearm that was the subject of the earlier complaint.

The indictment alleged, however, that petitioner violated a

different statute, 26 U.S.C. 5861(d) and (j), which prohibits

possession and transportation of an unregistered firearm.

Petitioner moved to dismiss the indictment as barred by

the Speedy Trial Act of 1974, 18 U.S.C. 3152 et seq. He did

not challenge the government's failure to act within 30 days

'Section 922(g)1) makes it unlawful for anyone who has been con-

victed in any court of a crime punishable by imprisonment for a term

exceeding one year to ship or transport a firearm in interstate com-

merce. Petitioner had previously been convicted of a felony in the State

of New York (C.A. App. Sa)(“C.A. App.” refers to the appendix in the

court of appeals).

?Under the Speedy Trial Act of 1974, an information or indictment

must be filed within thirty days after an individual is arrested. 18 U.S.C.

3161(b). The Act provides for dismissal of the complaint for violation of

this time limit, but, by its own terms, dismissal may be without preju-

dice. 18 U.S.C. 3162.

3

after his arrest, but rather claimed that the government

had delayed unreasonably in waiting more than a year

before bringing the indictment (C.A. App. 15a-16a). The

district court denied the motion (Pet. App. 6a-8a). Peti-

tioner then entered a plea of guilty to Count 6 of the

indictment—transportation of an unregistered firearm—

which the district court accepted after a full hearing in

accordance with Fed. R. Crim. P. 11 (Pet. App. 14a).

Petitioner subsequently moved pursuant to Fed. R.

Crim. P. 32(d) to withdraw his guilty plea, arguing for the

first time that there was a variance between the charge in the

indictment and his admissions in pleading guilty at the Rule

11 hearing (C.A. App. 60a-6la). Specifically, he claimed

that the indictment charged him with transporting an

unregistcred firearm, namely an “M-16 receiver,” but that

he admitted to shipping “the rear half of a demilitarized

M-16 receiver, or a part of it” (id. at 6la). Petitioner

asserted that the partly assembled M-16 was not a “firearm”

within the meaning of the statute. Petitioner also renewed

his previously denied speedy trial motion, claiming that the

original decision was based on erroneous dates (id. at

63a-64a).

The district court denied petitioner's motion to withdraw

his guilty plea, finding that he had “admit[{ted] his guilt in

the clearest terms” and had failed to show that his plea was

3In petitioner's motion to dismiss the indictment, his counsel used

incorre~t dates for petitioner's arrest and the dismissal! of the complaint,

using August |, 1980 as the date of arrest instead of August 12, and

September |, 1980, for the dismissal instead of September 18. When the

court denied the motion, it relied on the correct date of arrest, having

been informed by the government of that error, but on the incorrect

date of dismissal. The court thus incorrectly concluded that the dismis-

sal had been within the thirty-day time limit (Pet. App. 8a). On the

following day, however, the government notified the court of the cor-

rect date of dismissal of the complaint, and a copy of that letter was sent

to petitioner (C.A. App. 7a, 33a).

4

not intelligently, knowingly and voluntarily made (Pet.

App. Ila-13a). The court also denied the speedy trial

motion for the reasons stated in its previous order and

because petitioner's objection to that order was untimely

(id. at 9a-10a).

2. The court of appeals dismissed petitioner's appeal

from the denial of his speedy trial motion, finding that he

waived his right to appeal by pleading guilty without mak-

ing any attempt to condition his plea ona reservation of his

right to appeal (Pet. App. 2a-4a).* The court of appeals

affirmed the denial of petitioner's motion to withdraw his

guilty plea, finding that there was an adequate factual basis

for the plea and that petitioner, by pleading guilty, had

waived his right to have a jury determine the factual issue of

whether the weapon was a “firearm” within the meaning of

the statute (id. at 4a-Sa).

ARGUMENT

1. Petitioner first contends (Pet. 9-13) that the courts of

appeals follow conflicting practices with regard to condi-

tional guilty pleas, and that the Second Circuit's require-

ment of consent by the government and district court is in

conflict with other circuits. Even accepting petitioner's

observation that the availability of a conditional guilty plea,

in which a defendant reserves the right to appeal certain

legal issues while pleading guilty, varies in the different

circuits, it is clear that no court of appeals would have

allowed petitioner to appeal, because he made absolutely no

attempt to condition his guilty plea on a right to appeal. See

United States v. De Poli, 628 F. 2d 779, 781 n.1 (2d Cir.

‘The court noted that even if petitioner had preserved his speedy trial

objection, it was “far from clear” that he would have prevailed because

he had failed to request that the complaint against him be dismissed

with prejudice prior to the time the government moved to dismiss

without prejudice (Pet. App. 4a n.*).

5

1980). Petitioner has cited no case allowing appeal! from a

guilty plea where the defendant has failed to reserve his

right expressly. See United States v. Moskow, 588 F. 2d

882, 884 (3d Cir. 1978). Thus, this case presents no occasion

to review the practices in the courts of appeals regarding

conditionai guilty pleas.

2. Petitioner argues (Pet. 14-17) that the court of appeals

erred in holding that his claims on appeal were non-

jurisdictional and therefore waived by his guilty plea. He

contends that both his speedy trial claim and his claim that

the partly assembled M-16 rifle was not a firearm were

jurisdictiona! defects and thus were reviewable after a guilty

plea.

The law is clear that a guilty plea conclusively establishes

the defendant's factual guilt, and accordingly waives all

defects in the prosecution, even constitutional claims,

except those relating to lack of jurisdiction, i.e., the power

of the court to hale a defendant before it. Menna v. New

York, 423 U.S. 61,62(1975); Blackledge v. Perry, 417 U.S.

21, 29-31 (1974); Tollett v. Henderson, 411 U.S. 258, 267

(1973); Brady v. United States, 397 U.S. 742, 748 (1970).

Applying these principles, the court of appeals correctly

found (Pet. App. 2a) that a claim of a statutory speedy trial

violation, which requires dismissal only in the discretion of

the court, is not a jurisdictional defect. See United States v.

Mann, 451 F. 2d 346, 347 (2d Cir. 1971); cf. United States

v. Doyle, 348 F. 2d 715, 719 (2d Cir.), cert. denied, 382 U.S.

843 (1965).5

Petitioner claims that the decision below on this issue conflicts with

that of the First Circuit in United States v. DeCosta, 435 F. 2d 630, 632

(1970). In fact, however, the court in that case made no ruling on the

question whether a constitutional speedy trial claim is waived by a plea

of guilty, declaring on the merits that there had been no speedy trial

violation. DeCosta is similar to this case in this regard since it is unlikely

that petitioner would have prevailed on the merits of his statutory

speedy trial claim, even if it had not been barred. See note 4, supra.

6

With respect to the claim that the item petitioner admit-

ted shipping was not a firearm, the question whether the

M-16 receiver, or part of it, was included within the statute's

prohibition is an issue of fact that would have properly been

resolved at trial.6 LaMagna v. United States, 646 F. 2d

775, 777-778 (2d Cir. 1981), cert. denied, 454 U.S. 898

(1981); see also United States v. Benson, 579 F. 2d 508, 509

(9th Cir. 1978). By pleading guilty and unequivocally

admitting that he had committed the acts charged in Count

6 of the indictment (C.A. App. 25a), however, petitioner

finally resolved this factual issue just as if a jury had ren-

dered a guilty verdict. Boykin v. Alabama, 395 U.S. 238,

242 (1969); McCarthy v. United States, 394 U.S. 459, 466

(1969).’ Accordingly, the issue was not appealable after the

guilty plea.

3. Finally, petitioner contends (Pet. 17-22) that his guilty

plea was not voluntarily made because he did not receive

competent advice from his counsel. Specifically, petitioner

argues that his counsel's error in specifying the dates relat-

ing to his speedy trial claim, the subsequent failure to renew

the claim once he had been advised of the proper dates, and

‘The definitional section of the statute includes in the definition of

“firearm” a machinegun (26 U.S.C. 5845(a)(6)). “Machinegun” includes

“the frame or receiver of any such weapon.” 26 U.S.C. 5845(b). Thus,

the part of an M-16 listed in the indictment would seem to fit the

definition. Whether it did, of course, would have been an issue for the

jury, but for petitioner's guilty plea.

7Petitioner claims (Pet. 15-16) that the decision in this case conflicts

with a number of other cases in which the courts have held that the

failure of an indictment to allege an offense is a jurisdictional defect that

may be raised at any time, even after a guilty plea. Petitioner's quarrel is

not, however, with the legal sufficiency of the indictment itself, which

plainly alleges all the elements of an offense under the statute charged

(Cc. A. App. 10a). Rather, his argument concerns the nature and suffi-

ciency of the proof that the government would have been required to

adduce at trial to establish guilt on the charge as alleged in the

indictment.

7

the failure to advise petitioner that he could argue that the

partly assembled M-16 part was not a “firearm,” amounted

in combination to incompetent advice of counsel that

negated the intelligent and knowing character of his guilty

plea. See Brady v. United States, 397 U.S. 742 (1970);

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

North Carolina, 397 U.S. 790 (1970). Petitioner’s fact-

bound claim is without merit.

In McMann v. Richardson, supra, 397 U.S. at 770-771,

this Court rejected the notion that the adequacy of counsel

in regard to a guilty plea depends on a retrospective assess-

ment of whether the attorney's legal judgment was “right or

wrong.” What matters is whether petitioner's interests have

been faithfully represented, Tollett v. Henderson, 411 U.S.

258, 267 (1973), and the court of appeals expressly found

(Pet. App. 4a) that counsel had negotiated “an advantage-

ous plea bargain,” which was not undermined by the failure

to make a dubious speedy trial argument or to discuss with

petitioner the remote possibility that one count in a 15-

count indictment might be rejected by a jury because of the

nature of the firearm at issue. As the court of appeals found,

petitioner’s complaint is not with the adequacy of the

representation of his attorney but rather “with the unex-

pected severity of his sentence” (id. at 4a). Accordingly, the

adequacy of petitioner's representation at the time of his

guilty plea raises no issue warranting review by this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

Rex E. Lee

Solicitor General

D. LOWELL JENSEN

Assistant Attorney General

KATHLEEN A. FELTON

Attorney

SEPTEMBER 1982

DOJ-1982-09