Opposition Brief — Moore v. United States

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SEP 9 991

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OCTOBER TERM, 1991

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No. 91-27

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ARCH A. MOorE, JR., PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR .i WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

SEAN CONNELLY

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court abused its discretion in

finding that petitioner failed to show, as required by Fed.

R. Crim. P. 32(d), that there was a “fair and just reason”

to withdraw his guilty pleas.

2. Whether the government breached its undertaking,

as part of the plea agreement, not to recommend a

“specific sentence.”

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

United States vy. Allard, 926 F.2d 1237 (Ist Cir.

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United States v. Hurtado, 846 F.2d 995 (Sth Cir.),

cert. denied, 488 U.S. 863 (1988) ..............

United States v. Ray, 828 F.2d 399 (7th Cir. 1987),

cert. denied, 484 U.S. 1045 (1988) .............

United States v. Rhodes, 913 F.2d 839 (10th Cir.

1990), cert. denied, 111 S. Ct. 1079 (1991) ......

United States v. Scott, 929 F.2d 313 (7th Cir.

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Statutes and rules:

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Fed. R. Crim. P.:

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Advisory Committee note .............

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Ny NY NY NY

Jn the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-27

ARCH A. Moore, 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. Al-A8)

is reported at 931 F.2d 245.

JURISDICTION

The judgment of the court of appeals was entered on

April 23, 1991, and rehearing was denied on May 16, 1991.

The petition for a writ of certiorari was filed on July 2,

1991. The jurisdiction of this Court rests on 28 U.S.C.

1254.

(1)

2

STATEMENT

Petitioner pleaded guilty in the United States District

Court for the Southern District of West Virginia to mail

fraud (18 U.S.C. 1341), extortion under color of official

right (18 U.S.C. 1951), two counts of filing a false income

tax return (26 U.S.C. 7206(1)), and obstruction of justice

(18 U.S.C. 1503). The district court sentenced petitioner to

a total of five years’ imprisonment on the first four counts,

consecutive to a 10-month prison term on the obstruction

of justice count. In addition, the court imposed fines total-

. ling $170,000. The court of appeals affirmed. Pet. App.

Al-A8.

1. Petitioner is the former Governor of West Virginia.

On April 12, 1990, he entered into a written plea agree-

ment in which he agreed to plead guilty to a five-count

federal indictment. He formally entered guilty pleas in

court on May 8, 1990.

The indictment to which petitioner pleaded guilty con-

sisted of 21 pages and set forth the charges in detail. Brief-

ly, Count 1 charged that petitioner defrauded West

Virginia and its citizens by using the United States mails to

file false and fraudulent campaign reports that failed to

disclose his receipt and expenditure of at least $100,000 in

cash during the 1984 election campaign. C.A. App. 12-17.

Count 2 charged that, after petitioner’s 1984 election as

Governor, he extorted $573,000 from a West Virginia coal

mine operator in exchange for helping the operator ob-

tain refunds of more than $2 million from the State’s

Black Lung Fund. /d. at 18-22. Counts 3 and 4 charged

that petitioner’s 1984 and 1985 federal tax returns falsely

failed to report a total of at least $72,500 that petitioner

received as income in those years. /d. at 23-24. Finally,

Count 5 charged that petitioner obstructed a federal grand

jury investigation in 1989 and 1990 by providing false in-

3

formation, falsifying documents, and instructing other

witnesses to testify falsely. Jd. at 25-32.

Prior to accepting the guilty pleas, the court summar-

ized the indictment, and ascertained that petitioner under-

stood the charges and wished to plead guilty to each count.

C.A. App. 42-47. The court further made inquiry of peti-

tioner, under oath and pursuant to Fed. R. Crim. P. 11, to

determine that he understood the maximum penalties for

each count, C.A. App. 49-52, and that he understood his

right to trial by jury and the various other rights he was

waiving by pleading guilty, id. at 53-54. Petitioner in-

dicated that he understood his rights and stated that he

was pleading guilty freely and voluntarily, because he was

in fact guilty of the charges in the indictment. /d. at 55,

58-59. The government then described the underlying

facts, id. at 61-67, and both petitioner and his counsel

agreed that the government’s recitation was “substantially

correct,” id. at 68.

2. On June 19, 1990, more than two months after the

plea agreement was signed and six weeks after petitioner

formally entered his guilty pleas in court, petitioner’s

counsel advised the court that petitioner wished to with-

draw the pleas. A motion to withdraw the pleas was filed

on June 28, 1990, and the court heard argument on it on

July 9, 1990.

At the time of the hearing, the court had before it two

affidavits from petitioner’s counsel regarding the events

leading to the guilty plea. Pet. App. A46-A49, A50-A54.

Those affidavits stated that between January and April

1990 counsel had participated in several meetings with the

prosecutors and had twice allowed petitioner to be inter-

viewed regarding events underlying the then-ongoing

federal investigation. On April 11, 1990, the prosecutors

allowed defense counsel to listen to certain incriminating

tapes involving petitioner’s obstruction of justice, and

4

informed counsel they were prepared to seek a multi-count

indictment of petitioner. The prosecutors offered, how-

ever, to enter into an agreement in which petitioner would

plead guilty to only five counts. The prosecutors told

counsel that petitioner would have to accept the agreement

no later than the morning of April 12, rather than April

13, as counsel had requested. While petitioner expressed

“reservations” to counsel regarding four of the five counts,

counsel “strongly advised” petitioner to accept the agree-

ment after the government agreed to structure it so that

only the fifth count, involving petitioner’s obstruction of

justice, would be subject to the federal Sentencing Guide-

lines. Counsel told petitioner he “was not happy with the

plea agreement, but it was clearly the lesser of the two evils

from which we had to choose.” Petitioner signed the

agreement on April 12, 1990. Pet. App. A47, AS1-A52.

Defense counsel’s affidavits further stated that peti-

tioner balked at the government’s version of the facts after

he signed the plea agreement. Pet. App. A52-A53. When,

following his entry of the guilty pleas and as the pre-

sentence report was being prepared, petitioner refused to

accept responsibility for the crimes, counsel advised him

to consider whether to seek to withdraw his guilty pleas.

Id. at AS3-A54.

3. The district court denied petitioner’s motion to

withdraw his guilty pleas. The court concluded that

“{t}here is no fair and just reason why I should permit now

the withdrawal of the pleas of guilty which were made

voluntarily under oath.” Pet. App. A42. Petitioner was

sentenced the next day.

4. The court of appeals affirmed. Pet. App. Al-A8.

The court held that, under Fed. R. Crim. P. 32(d), a de-

fendant bears the burden of demonstrating a “fair and just

reason” for withdrawing his guilty plea and that the deter-

mination whether the defendant has carried that burden

“is entrusted to the discretion of the district court.” Pet.

App. A3-A4. Examining the particular facts of this case,

the court of appeals concluded that the district court had

not abused its discretion. The court emphasized that

“{flirst and most importantly, [petitioner], a lawyer and

former governor assisted by competent counsel, was sim-

ply not convincing in claiming that the Rule 1! plea was

not knowing and voluntary.” Pet. App. A4. The court fur-

ther noted that petitioner “never made credible assertions

of his innocence,” there was a “long delay[ }” between the

entry of the pleas and the motion to withdraw, defense

counsel competently represented petitioner, and “a re-

opening of the plea would have been futile.” Jd. at A4-AS.

While the court did not believe the prosecution would suf-

fer any real prejudice if the plea were withdrawn, the court

explained that the controlling “factors are only balancing

considerations, and so the lack of prejudice to the govern-

ment, in and of itself, is not dispositive.” Jd. at AS.

The court of appeals also rejected petitioner’s claim that

the government had violated the terms of the plea agree-

ment at the sentencing hearing. The agreement stated that

the government would “make no recommendation as to a

specific sentence,” but could “address the Court with

respect to the nature and seriousness of the offense.” Pet.

App. A&g. At the sentencing hearing, the government

sought “a sentence that deters future public officials.” Jd.

at A106. The court of appeals held that the prosecutor had

not breached the plea agreement, since no “specific

sentence” had been recommended. /d. at A7-A8.

ARGUMENT

The court of appeals correctly applied the law in holding

that the district court acted within its discretion in not

allowing petitioner to withdraw his guilty pleas. Peti-

6

tioner’s fact-specific claim to the contrary and his claim

that the prosecutor violated the terms of the plea agree-

ment do not warrant further review.

1. Fed. R. Crim. P. 32(d) allows withdrawal of a guil-

ty plea “upon a showing by the defendant of any fair and

just reason.” Consistent with the rule’s plain language, the

federal courts of appeals consistently have held that a

defendant bears the burden of showing a fair and just

reason for withdrawing his guilty plea. See, e.g., United

States v. Allard, 926 F.2d 1237, 1243 (Ist Cir. 1991);

United States v. Rhodes, 913 F.2d 839, 845 (10th Cir.

1990), cert. denied, 111 S. Ct. 1079 (1991); United States

v. Hurtado, 846 F.2d 995, 997 (Sth Cir.), cert. denied, 488

U.S. 863 (1988); United States v. Ray, 828 F.2d 399, 422

(7th Cir. 1987), cert. denied, 484 U.S. 1045 (1988). More-

over, a district court’s decision denying leave to withdraw

a guilty plea is reviewed under a deferential abuse of dis-

cretion standard. See, e.g., United States v. Clark, 931

F.2d 292, 294 (Sth Cir. 1991); United States v. Scott, 929

F.2d 313, 315 (7th Cir. 1991); United States v. Goldberg,

862 F.2d 101, 104 (6th Cir. 1988).

The court of appeals correctly held that the district

court did not abuse its discretion in concluding that peti-

tioner failed to carry his burden of demonsirating a fair

and just reason for withdrawing his pleas. The court

balanced various factors considered in prior cases and

concluded that the only factor that seemed to tilt in peti-

tioner’s favor was that the government had not shown that

it would be prejudiced if the pleas were withdrawn. The

court concluded that a number of factors weighed against

allowing petitioner to withdraw his pleas, including the

fact that petitioner is a sophisticated litigant who entered

into a plea agreement with the assistance of able counsel

and had offered no justification for withdrawal of the

pleas. Pet. App. A4-AS5. In those circumstances, the court

7

of appeals properly held that the district court did not

abuse its discretion. See United States v. Hurtado, 846

F.2d at 997 (defendant “argues that withdrawal would not

have prejudiced the Government, but that fact alone does

not mandate permission to withdraw a plea when, as here,

no credible reason is proffered”) (internal quotations

omitted).

Totally without merit is petitioner’s suggestion (Pet. 5)

that “the Fourth Circuit and District Court applied two

improper standards which make it virtually impossible for

a plea ever to be withdrawn.” Petitioner’s first claim, that

the courts below “held that a showing of fraud was neces-

sary before a plea could be withdrawn,” ibid., lacks any

basis in the record. The court of appeals, which carefully

balanced several factors in determining that petitioner set

forth no good reason for withdrawing his plea, never even

mentioned fraud and certainly never held it to be the only

basis for withdrawing a guilty plea. And, while the district

court did suggest in a give-and-take colloquy with defense

counsel that fraud was one possible basis for withdrawing

a guilty plea (Pet. App. A31), that court never held that

fraud is the exclusive basis for withdrawal.

Similarly insupportable is petitioner’s suggestion (Pet.

5) that the courts below “rationalized their decision noi to

grant an evidentiary hearing on the ground that, because

Petitioner’s plea was entered following an inquiry under

Rule 11 of the Federal Rules of Criminal Procedure, Peti-

tioner should not be entitled to testify because he could

face a charge of making a false statement.” The court of

appeals’ opinion nowhere states that petitioner could not

have testified at an evidentiary hearing because it would

have been necessary for him to contradict representations

that he made during the Rule 11 plea proceedings. In any

event, there would have been no error in emphasizing that

representations made during a Rule 11 plea hearing

8

should, absent some compelling circumstance not present

here, be binding. See Advisory Committee Note to 1983

Amendment to Rule 32(d) (“Given the great care with

“which pleas are taken under this revised Rule 11, there is no_

reason to view pleas so taken as merely ‘tentative,’ subject

to withdrawal before sentence whenever the government

cannot establish prejudice”). In United States v. Scott,

supra, for example, the court stated that “voluntary

responses made by a defendant under oath when entering a

guilty plea [should] be binding,” 929 F.2d at 315 (internal

quotations and brackets omitted), and held that “[t]o allow

Scott to withdraw his plea because of secret expectations

that he harbored in the face of his directly contradictory

sworn testimony would undermine the strong societal in-

terest in the finality of guilty pleas,” ibid. Cf. United States

v. Clark, 931 F.2d at 294 (in upholding the denial of a re-

quest to withdraw a guilty plea, the court noted that the de-

fendant “did plead guilty under oath to a federal district

judge”).

2. Petitioner also claims (Pet. 7-8) that he should have

been allowed to withdraw his pleas because, in orally urg-

ing the court to impose a sentence that “deters future

public officials and directly punishes the defendant for his

crime” and that “send[s] a clear and unequivocal message”

(Pet. App. A106, A107), the prosecutor breached the plea

agreement. That agreement provided that “the United

States will make no recommendation as to a specific

sentence,” but that it “retain{s] the right to inform the

probation office and the Court of any relevant facts, [and]

to address the Court with respect to the nature and

seriousness of the offense.” Pet. App. A58. The district

—judge, to whom the sentencing remarks were directed,

observed that the prosecutor had “not made a specific

recommendation as to a specific sentence.” /d. at

9

A108.* In affirming this conclusion, the court of appeals

adopted a straightforward interpretation of the plea agree-

ment which had been negotiated by “very able” defense

counsel and signed by a sophisticated defendant. The

court properly concluded that petitioner “did not have a

reasonable basis to believe that the prosecutor’s promise to

refrain from recommending a specific sentence protected

him from remarks calculated to induce the Court to issue a

severe prison term.” /d. at A8.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

SEAN CONNELLY

Altorney

SEPTEMBER 199]

* By quoting the court’s initial remark but not its conclusions (see

Pet. 7), petitioner incorrectly suggests that the district court found a

breach of the agreement.

US GOVERNMENT PRINTING OFFICE 1991 — 282-06 1/45062