Reply Brief — United States v. Benchimol

No. 84-1165

Inu the Supreme Court of the United

OCTOBER TERM, 1984

UNITED STATES OF AMERICA, PETITIONER

V.

JOSEPH BENCHIMOL

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

Rex E. L&e

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

Gap.

TABLE OF AUTHORITIES

Page

Cases:

Bergman v. Lefkowitz, 569 F.2d 705 ........... 2

United States v. Brown, 500 F.2d 375 ........ 2,3

United States v. Frady, 456 U.S. 152 ........... 3

United States v. Grandinetti,

PE TE épcennknvdeeeiasdenednddesss 2,3

United States v. Timmreck, 441 U.S. 780 ....... 3

United States v. Tursi, 576 F.2d 396 ........... 2

Statutes and rules:

Comprehensive Crime Control Act of 1984,

Tit. Il, Pub. L. No. 98-473, 98 Stat.

2. PTT e Te TTT TT OTT TeTeT Te TTT Tree 3

§ 217(a), 98 Stat. 2017-2026:

98 Stat. 2019 (28 U.S.C.

ccc nek be geensae aoe’ 4

98 Stat. 2019-2020 (28 U.S.C.

I ih ed ens CHK Ree ee Oe 5

98 Stat. 2020 (28 U.S.C.

EE eee ce eee eekes 4

98 Stat. 2020 (28 U.S.C.

ERSTE Reena Br ery 3

Fs Oe EE AV d dees evewsccouvies 3

§ 235(a)(1), 98 Stat. 2031-2032 ............. 5

Youth Corrections Act, 18 U.S.C. 5001 ......... 3

I a ee ee ne awe 2

II

Page

Statutes and rules—Continued:

Fed: R. Civ. P. 320d) ....ccccccccccccccccccces l

Fed. R. Crim. P. :

DEE Shisbedeeesebsuseseaceveeoeveses l

Rule LEE T) .ccccccccccccccccescccccees 4

Rae BUGGED occ ccccccccccccscvcecccecess 4

S| PPP ITTITT TTT rT 3

Inu the Supreme Court of the Mnited States

OCTOBER TERM, 1984

No. 84-1165

UNITED STATES OF AMERICA, PETITIONER

V.

JOSEPH BENCHIMOL

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

REPLY MEMORANDUM FOR THE UNITED STATES

Respondent virtually ignores the questions presented in

this case: (1) whether, as the court of appeals held, the

attorney for the government must explain the government’s

reasons or justifications for a sentencing recommendation

made pursuant to a plea agreement, and (2) whether the

omission of such an explanation by the prosecutor fur-

nishes a basis for a collateral attack on the conviction and

sentence under Fed. R. Civ. P. 32(d) and 28 U.S.C. 2255,

even where, as here, the district court at sentencing clearly

understood the substance of the government’s recommen-

dation and the defendant made no objection to the govern-

ment’s performance at the time of sentencing or by taking a

direct appeal.

1. As we explain in the petition (at 10-17), the new rule

announced by the court of appeals finds no support in the

Constitution, Fed. R. Crim. P. I1, the logic of the plea

(1)

2

bargaining process, or the decisions of this Court, and that

rule may prove detrimental to defendants and deter prose-

cutors from entering into plea agreements. The decision

below also conflicts with decisions of other courts of

appeals (see Pet. 17-19) and ignores established limitations

on the granting of collateral relief (see Pet. 19-24).

Petitioner makes no substantial effort to dispute these

arguments in favor of granting the petition. Indeed, peti-

tioner acknowledges (Pet. 8-9) that in United States v.

Grandinetti, 564 F.2d 723 (Sth Cir. 1977), and United

States v. Brown, 500 F.2d 375 (4th Cir. 1974), upon which

the court below relied (Pet. App. 4a-6a), the “ ‘prosecutor

expressed open distaste for the plea bargains’ ” (Pet. 9,

quoting Pet. App. 8a (Wallace, J., dissenting)), while in

this case the prosecutor did not do so. Respondent argues

(Pet. 9), however, that an expression of “open distaste”

should be regarded as only one means by which a prosecu-

tor may fall short of his duty to communicate to the court

the government’s recommendation regarding sentencing,

and that this case therefore falls in the same category as

Grandinetti and Brown. This contention is without merit.

As we have explained (Pet. 17-19), the First and Second

Circuits have explicitly held that the rationale of Grandi-

netti and Brown applies only where the prosecutor has

“effectively undercut” the plea bargain. Those courts there-

fore have denied relief where, as here, the prosecutor’s

recommendation was communicated to the court in a

manner that did not undercut the plea bargain, and the

defendant’s claim was simply that the prosecutor should

have been a more forceful advocate in support of the plea

agreement. United States v. Tursi, 576 F.2d 396, 399 (Ist

Cir. 1978); Bergman vy. Lefkowitz, 569 F.2d 705, 714-716

=,

3

(2d Cir. 1977). The Ninth Circuit’s decision in this case

conflicts with these decisions of the First and Second Cir-

cuits and thus warrants review.!

2. Instead of addressing the questions presented, respon-

dent devotes most of his brief in opposition to a different

matter: Congress’s enactment of the Comprehensive Crime

Control Act of 1984 (1984 Act), Tit. II, Pub. L. No. 98-473,

98 Stat. 1976 et seq. See Br. in Opp. 4-8. Respondent first

seems to suggest (Br. in Opp. 4, 6) that the decision below is

not of continuing importance because the Youth Correc-

tions Act (18 U.S.C. 5001), under which he was sentenced,

was repealed by Section 218(g) of the Comprehensive

Crime Control Act 1984, 98 Stat. 2027.? This suggestion is

frivolous. The decision of the court of appeals does not turn

on the particular statute under which respondent was sent-

enced; the opinion does not even mention the Youth

‘Other courts also have declined to follow Grandinetti and Brown in

circumstances such as those presented here. See Pet. 19 nn. 11 & 12. In

addition, Grandinetti and Brown, unlike the instant case, arose on

direct appeal, not collateral attack. Respondent does not even mention

this critical distinction, much less answer our submission (Pet. 19-24)

that he has not (i) established “manifest injustice” to warrant relief

under former Fed. R. Crim. P. 32(d), or (ii) satisfied the “cause and

prejudice” standard to overcome his procedural default in failing to

raise the issue at sentencing or on direct appeal and establish a “funda-

mental defect” in the proceedings warranting relief under 28 U.S.C.

2255. See United States v. Frady, 456 U.S. 152(1982); United States v.

Timmreck, 441 U.S. 780, 783-785 (1979).

?The Act establishes a new sentencing system, based on sentencing

guidelines (see pages 4-5, infra), that “is intended to treat all classes of

offenses committed by all categories of offenders consistently” and to

“eliminate [the need for] specialized sentencing statutes that cover

narrow classes of offenders,” such as the Youth Corrections Act. S.

Rep. 98-225, 98th Cong., Ist Sess. 51 (1983). Congress determined

that the provision in 28 U.S.C. 994(d), as added by Section 217(a) of

the 1984 Act, 98 Stat. 2020, that the Sentencing Commission’s guide-

lines must take into account the age and criminal history of the offender

“is sufficient to assure such specialized treatment as is desirable for th{e]

category of [youth] offenders.” S. Rep. 98-225, supra, at 120.

4

Corrections Act or the fact that respondent was sentenced

under it. Rather, the courts of appeals’ holding applies

broadly to any plea agreement under which the attorney for

the government is to recommend a particular sentence,

irrespective of the source of the court’s sentencing authority.

Also without merit is respondent’s alternative contention

(Br. in Opp. 5-6) that the Court should deny certiorari

because of the provision for the issuance in the future of

certain policy statements pertaining to sentencing under the

Comprehensive Crime Control Act of 1984. Section 217(a)

of the 1984 Act establishes a United States Sentencing

Commission, which will promulgate guidelines concerning

sentences to be imposed for given categories of offenses

committed by given categories of offenders. 28 U.S.C.

994(b)-(d), as added by § 217(a) of the 1984 Act, 98 Stat.

2019-2020. See S. Rep. 98-225, 98th Cong., Ist Sess. 51

(1983). The Act also provides for the Commission to pro-

mulgate general policy statements regarding the application

of the sentencing guidelines in other contexts, including,

inter alia, in connection with a district court’s authority

under Fed. R. Crim. P. 11(e)(2) to accept or reject a plea

agreement entered into pursuant to Fed. R. Crim. P.

11(e)(1). See 28 U.S.C. 994(a)(2)(D), as added by $ 217(a) of

the 1984 Act, 98 Stat. 2019. This provision was enacted in

response to fears that prosecutors might use the plea bar-

gaining process to circumvent the sentencing range pro-

vided for in the Commission’s guidelines — e.g., by agreeing

to reduce the charges in exchange for a guilty plea — and

might thereby impede realization of the benefits otherwise

to be expected from a system of guidelines that provide

similar sentences for similar conduct. Under the new 28

U.S.C. 994(a)(2)(D), the Sentencing Commission is required

to issue policy statements to be used by sentencing courts in

determining whether to accept a charge-reduction plea

agreement in order to assure against undue leniency and

sentencing disparity. See S. Rep. 98-225, supra, at 63, 167.

5

It is possible that in some circumstances the contem-

plated policy statements would result in questioning of

defense counsel and the prosecutor by the district court in

the case of a plea agreement that provided for the reduction

of charges in exchange for a guilty plea, although even then

it is unclear to what extent the court would actually require

a statement by the prosecutor of the government’s justifica-

tion for a particular recommendation. Nor is it clear that

the contemplated policy statements will even address the

acceptance of a plea agreement, such as that involved in this

case (Pet. App. 2a), that simply provides for the prosecutor

to recommend a particular sentence but does not provide

for areduction of the charges. In addition, the Act contem-

plates that the guidelines will provide a range of permissible

sentences. 28 U.S.C. 994(b), as added by § 217(a), 98 Stat.

2019-2020. The prosecutor’s recommendation, pursuant to

a plea agreement, of a particular sentence within that range

thus will continue to be of importance, and the court of

appeals’ holding would apply to such recommendations. It

also is possible that the guidelines themselves could provide

for a reduced sentence where the defendant has pleaded

guilty. The prosecutor’s recommendation regarding sen-

tence would be significant in that event as well.

In any event, the 1984 Act does not require that the initial

set of sentencing guidelines be issued until April 1986, and

those guidelines cannot go into effect for at least six

months thereafter. § 235(a)(1), 98 Stat. 2031-2032.

Further, there is no fixed deadline for issuance of whatever

policy statements the Commission may formulate regard-

ing the application of those guidelines. Respondent’s

assertion that the court of appeals’ decision will be affected

by policy statements to be issued at some point in the future

by a Commission that has not yet even come into being

therefore is wholly speculative.

6

By contrast, the issue presented in this case are of sub-

stantial immediate importance, because the decision

below opens a whole new avenue of collateral attack on

guilty pleas throughout the Ninth Circuit on grounds that

have nothing to do with the voluntariness of the guilty plea

or the prosecutor’s adherence to the essential elements of

the plea agreement, but instead relate to the peripheral

matter of the quality of the prosecutor’s advocacy.

Moreover, the court of appeals’ holding that the defendant

is entitled to have the prosecutor give a statement of the

government’s justification for a sentencing recommenda-

tion made pursuant to a plea bargain would not appear to

be limited to federal prosecutions. It therefore calls into

question the finality of state convictions based on guilty

pleas entered pursuant to such bargains and the duties of

state prosecutors in future cases. Plea agreements in state

courts of course would not be affected in any way by what-

ever policy statements may be issued by the Sentencing

Commission pursuait to the Comprehensive Crime Con-

trol Act of 1984.

For the foregoing reasons and the reasons stated in the

petition, it is respectfully submitted that the petition for a

writ of certiorari should be granted.

Rex E. LEE

Solicitor General

APRIL 1985

DOJ-1985-04