Petition for Writ of Certiorari — United States v. Shonde

: Supreme Court, US.

97-134 FILED

No. JUL 22 YT

t:

OCTOBER TERM, 1987

UNITED STATES OF AMERICA, PETITIONER

v.

SAMSON E. SHONDE

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CiRCUIT

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL K. KELLOGG

Assistant to the Solicitor General

ROBERT J. ERICKSON

Altorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

t

Ans

QUESTION PRESENTED

Whether the district court had “inherent authority” to

vacate respondent’s guilty plea and dismiss the underlying

indictment because it believed that respondent’s conviction

might affect his immigration status.

(1)

TABLE OF CONTENTS

Page

EN AE ee ee ea rrr rry e l

ESE Rtg REE en ee hea aad |

Statute involved ..... 2

eo es hb deck enneeeeses sae 2

Reasons for granting the petition ............. a ay eee y

ep wkne bcee det anedwainns ka 19

ECE REE AO a rn ce rats va la

Eg REN ORE a ea ena a ae 4a

I ARR ee 6a

er eee eee Obes asks saveak ec’ dent eeses 7a

PEE Sd ck ssa sss eee ees Puiidaduadead 04 Preyer 8a

EG ee cas cy aden 2 ee UEC ta ta kik & Gao l2a

St er ee Lag ey heey ar pe 1Sa

ae ee Demeaexs cane 19a

TABLE OF AUTHORITIES

Cases:

Bordenkircher v. Hayes, 434 U.S. 357 (1978) .. 2.2.2... .. 16

Brady v. United Siates, 397 U.S. 742 (1970) ............ 14, 15

Cerujo v. INS, 570 F.2d 1323 (7th Cir. 1978) .......... 11

Costner v. United States, 180 F.2d 892 (4th Cir. 1950) .. 1}

Delgado-Chavez v. INS, 765 F.2d 868 (9th Cir. 1985) ... 11

Freeman v. United States, 254 F.2d 352 (D.C. Cir. 1958)... 11

Giambanco v. INS, 531 F.2d 141 (3d Cir. 1976)

Grossman, Ex parte, 267 U.S. 87 (1925) ........

Hill v. United States, 368 U.S. 424 (1962)

Liparota v. United States, 471 U.S. 419 (1985)

Mabry v. Johnson, 467 U.S. 504 (1984) .

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

Menna v. New York, 423 U.S. 61 (1975) .......

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

Parker v. North Carolina, 397 U.S. 790 (1970) ..

Santobello v. New York, 404 U.S. 257 (1971) .

Schick v. Reed, 419 U.S. 256 (1974) .........

Tollett v. Henderson, 411 U.S. 258 (1973)

United States, Ex parte, 242 U.S. 27 (1916)

(111)

lV

Page

Cases — Continued:

United States v. Addonizio, 442 U.S. 178 (1979) ........ 12, 13

United States v. Cannon, 778 F.2d 747 (1985), after re- |

mand, 807 F.2d 1528 (11th Cir. 1986) ............... 18

United States v. Cohen, 617 F.2d 56 (4th Cir), cert.

denied, 449 U.S. 845 (1980) ..... 2.2.0... 02 ce eee eee 10

United States v. Dragna, 746 F.2d 457 (9th Cir. 1984),

cert. denied, 469 U.S. 1211 (1985) ................-. 11-12

United States v. Gonsalves, 781 F.2d 1319 (9th Cir. 1985) 18

United States v. Haile, 795 F.2d 489 (Sth Cir. 1986) ...... 10

United States v. Hasting, 461 U.S. 499 (1983) ........... 17

United States v. Hudson, 545 F.2d 724 (10th Cir. 1976) . . 18

United States v. Huss, 520 F.2d 598 (2d Cir. 1975) ....... 11

United States v. John Scher Presents, Inc., 746 F.2d 959

CE CHE, WEED ccc cdccncceseccanscacsndesvcvessace 10

United States v. Missouri Valley Const. Co., 741 F.2d

SSOP Gs Cir BOD onc in ccsnccceccessancssiassccess 10

United States v. Morrison, 449 U.S. 361 (1981) ......-.-. 17

United States v. Payner, 447 U.S. 727 (1980) ........... 12, 17

United States v. Russell, 411 U.S. 423 (1973) ........... 16-17

United States v. Timmreck , 441 U.S. 780 (1979) ........ 16

United States v. Valle, 697 F.2d 152 (6th Cir.), ce7t.

denied, 461 U.S. GIS (1GE3S) . oo nn ccc cece cccscess 18

Statutes and rules:

De ee ae ages tee rnn de veer eean 10

pL te Edy Ee err yar oe 3, 6, 10, 15

ee ES oc Seas a bee ene wha ce dan waees 10

Re ee een oe a alse ae we wa 2

a Te, Ct a «bid oeseascicsvecncecas 2, 4, 5, 10, 11, 13

UTR Tl > Ra ae ...2, 4, 5, 8, 10, 13, 14

18 U.S.C. (& Supp. Il) 3561 ef seq. ........ 6... 2-0 ee eee 10

esas adeeb BARRED ap aReKAe dees 6, 12

Fed. R. Crim. P.:

NIRS Sree Se hs SS he i a eae i a ee 14

Se LET POPPE EE PEEL PFE O TEE CES. 1S

SS GS Reap ee ey amas APs bre 10

Nr oe Jad cece Keke cd able ROR AEE? 12

oa

Jn the Supreme Court of the Gnited States

OCTOBER TERM, 1987

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

SAMSON E. SHONDE

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeais for the Eighth Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la-3a)

is reported at 803 F.2d 937. The order of the court of ap-

peals denying rehearing (App., infra, 7a) is reported at 815

F.2d 475. The oral opinion and written order of the

district court (App., infra, 19a-24a, 4a-Sa) are unreported.

JURISDICTION

The judgment of the court of appeals (App., infra, 6a)

was entered on October 16, 1986. A petition for rehearing

was denied on March 23, 1987 (App., infra, 7a). On June

12, 1987, Justice Blackmun extended the time within

which to file a petition for a writ of certiorari to and in-

cluding July 21, 1987. The jurisdiction of this Court is in-

voked under 28 U.S.C. 1254(1).

(1)

STATUTE INVOLVED

8 U.S.C. 1251 provides, in pertinent part:

(a) Any alien in the United States * * * shall, upon

the order of the Attorney General, be deported who —

* * 7. > >

(4) is convicted of a crime involving moral tur-

pitude committed within five years after entry and

either sentenced to confinement, or confined therefor

in a prison or corrective institution, for a year or

more, or who at any time after entry is convicted of

two crimes involving moral turpitude, not arising out

of a single scheme of criminal misconduct, regardless

of whether confined therefor and regardless of

whether the convictions were in a single trial;

> > * > >

(b) The provisions of subsection (a)(4) of this section

respecting the deportation of an alien convicted of a

crime or crimes shall not apply * * * (2) if the court

sentencing such alien for such crime shall make, at the

time of first imposing judgment or passing sentence,

or within thirty days thereafter, a recommendation to

the Attorney General that such alien not be deported,

due notice having been given prior to making such

recommendation to representatives of the interested

State, the Service, and prosecution authorities, who

shall be granted an opportunity to make representa-

tions in the matter.

STATEMENT

1. Respondent entered the United States in 1974 on a

temporary immigration visa. In 1984, he owned and

operated a grocery store in St. Paul, Minnesota. He was

indicted by a federal grand jury in August of that year and

charged with three counts of unlawfully dealing in federal

food stamps, in violation of 7 U.S.C. 2C24(b). Akinsanya

A. Cole was named as respondent’s co-defendant in

Counts One and Two of the indictment. App., infra, 2a.

On October 16, 1984, respondent pleaded guilty to

Count Two of the indictment, which involved a dis-

counted cash purchase of food stamps from an undercover

agent of the Department of Agriculture. Respondent

pleaded guilty pursuant to an agreement that the other two

counts would be dismissed and that the maximum term of

imprisonment the court would impose was six months.

The United States further agreed not to object to work

release as an alternative to imprisonment and that no fine

would be imposed, although restitution was to be in the

discretion of the court. See App., infra, 8a-9a. At the plea

hearing respondent admitted that he bought food stamps

having a face value of $1,005 for $65 in cash. Respondent

further acknowledged that he knew at the time that what

he was doing was wrong. /d. at 9a-10a. After assuring

itself that the plea was knowingly and voiuntarily entered,

the court accepted it (id. at 9a-1 1a).

2. On the same day that respondent pleaded guilty, his

co-defendant, Akinsanya Cole, went to trial on Counts

One and Two. The evidence at that trial showed that

respondent enlisted Cole to assist him in purchasing food

slamps on two occasions. On the second day of trial,

however, it became clear that the government was not go-

ing to prove that Cole received any money for his part in

these transactions. As a consequence, the district court

dismissed the case. The presiding judge, the Honorable

Miles Lord, stated to the prosecutor: “You could

technically make out a case, but it would get no sentence.

All he would nave is a conviction on his record and get

deported.” App., infra, 13a. The court then explained to

the jury the reason for its mid-trial dismissal of the charges

against Cole (App., infra, 13a-14a). Because that dismissal

influenced the court’s ultimate disposition of respondent’s

case, we set out those remarks in some detail.

4

The court began by telling the jury that “[a] Judge has

supervision over law enforcement” and that he had per-

sonally “concluded that in this instance the penalty does

not fit the crime.” App., infra, 13a. The court noted that

there was no proof that defendant Cole was to get any

money from the transactions or that these two instances

were part of “a pattern of conduct on his part.” Rather, he

was just helping out a fellow countryman and deportation

was too severe a penalty for that. The court continued

(App., infra, 14a):

There may be welfare cheaters. This man is not on

welfare. He monkeyed with this thing. He should not

have done that.

But if he were convicted, | would not punish him

severely—you know it would be some nominal

sentence.

Really the focus was on the grocery man |[/.¢., re-

spondent}.

Judge Lord noted that the jury could “agree with me or

disagree with me — it does not make any difference because

1 have already dismissed the case, you see — but if there is

another case and he’s back in there, they will get him

again.” The court concluded by stating: “I have overruled

the judgment of the U.S. Attorney in this instance, so the

case is over.” App., infra, 14a.

3. On December 6, 1984, the court sentenced respond-

ent to two years’ probation and ordered him to make

restitution to the Department of Agriculture in the amount

of $746 (App., infra, 17a-18a). In addition, at the request

of respondent’s counsel and pursuant to 8 U.S.C.

1251(b)(2), the court directed that respondent not be de-

ported as a consequence of his conviction (App., it/ra,

18a).' The court elaborated on the reasons for, as well as

' Under 8 U.S.C. 1251(aX4), the Attorney General is directed to

deport any alien convicted either of two separate crimes involving

moral turpitude or of one crime involving moral turpitude where that

the implications of, its order (ibid.):

Now I have indicated that I would indicate to the

Immigration Department and order them not to

deport you. If that punishment is to follow —if they

are to deport him—I will entertain a motion to

dismiss this plea of guilty—to withdraw it—and at

that point I will dismiss the charges; because I didn’t

like the way, I didn’t think it was fair the way the

Department of Agriculture went about this whole

process. That’s why I dismissed the other person |[/.e.,

co-defendant Cole}.

[he court’s judgment order contained a specific provision

noting: “[l]he defendant is not to be deported under this

Court’s authority provided in Title 8, United States Code,

Section 1251(b). If any deportation proceedings arise in

the future, this Court will entertain a motion from the

defendant to vacate his plea of guilty and dismiss the

charge.” Judgment and Probation/Commitment Order,

Crim. No. 4-84-74(01) (D. Minn. Dec. 6, 1984).

4. On February 26, 1985, respondent, who had over-

stayed his immigration visa, was ordered to show cause

why he should not be deported. By that time, however, re-

spondent was married to an American citizen, and his wife

had petitioned to have his status readjusted to that of per-

manent resident based on the marriage. The immigration

judge therefore dismissed the deportation proceedings on

April 23, 1985, and remanded the case to the district direc-

tor for disposition of respondent’s adjustment of status

application. App., infra, 2a.

crime is “committed within five years after entry” and the alien is

“sentenced to confinement or confined therefor in a prison or correc-

live institution, for a year or more.” The sentencing court may,

however, direct that Subsection (a)(4) not apply to the conviction at

issue. 8 U.S.C. 1251(b)(2).

6

Notwithstanding the dismissal of the deportation pro-

ceedings, respondent subsequently moved in district court

under 28 U.S.C. 2255 for the vacation of his conviction

and the dismissal of the indictment. In his pleadings, re-

spondent conceded that he was “not being deported

because of this conviction” and, indeed, that the deporta-

tion proceedings had been dismissed. Motion to Vacate

Plea of Guilty and to Dismiss the Charge, Crim. No.

4-84-74(01) (May 21, 1985). See also App., infra, 22a-23a.

He claimed, however, that “the conviction is an adverse

factor which may be considered in exercising discretion

* * * in connection with defendant’s adjustment of status

application” (Motion to Vacate Plea, supra).?

5. The district court vacated the guilty plea and dis-

missed the indictment. At an oral hearing on July 2, 1985,

the court rejected the government’s argument that there

was nothing to indicate that respondent would be deported

and that, in any event, the court’s order could be enforced

against INS without the “drastic remedy” of vacating the

plea and dismissing the indictment. The court responded

(App., infra, 22a):

2 As an additional reason for dismissing the charges, respondent

alleged that the indictment was insufficient to state an offense under

this Court’s decision in Lipurota v. United States, 471 U.S. 419 (1985).

In Liparota, the Court held that to prove an offense under 7 U.S.C.

2024(b), the government must show that the defendant knew that his

actions were unlawful. Respondent claimed that no such allegation

was contained in his indictment. That claim was never addressed by

either the district court or the court of appeals.

The indictment, in any event, specifically charged that respondent

“knowingly and intentionally” violated the Food Stamp Act. Further-

more, at his plea allocution respondent acknowledged that he knew

what he was doing was wrong at the time he did it. His guilty plea

therefore conformed to the requirements of Liparota and to prior case

law from the Eighth Circuit, which Liparota followed. See Liparota,

471 U.S. at 423 n.4.

I think that my sentence leaves the Immigration peo-

ple in a posture where they can do it if they want to,

and that my only remedy —I cannot enjoin them from

following what they see to be their duty; if they see it

to be their duty to use that conviction and to dis-

regard my language, my only remedy is to dismiss the

conviction —and that is permanent.

The court explained the reasons for its action in some

detail (App., infra, 21a):

Do you know what’s bothering me? Shonde is a

pretty good fellow. I think he’s a good citizen and —

he’ll be a good citizen.

We want tc deport him.

Then we have a little skunk like the man who just

left here, who has never done anything right in his

whole life, and we give him free board and room for

four or five years and support five of his children by

five different women. We should have a deportation

mechanism for men like him.

But Shonde here is —I think he’ll be a good citizen,

a conscientious person, and bright, intelligent, de-

cent.

* * * * *

And now we're going to send him off. We won’t

have a friend here or there.

The court noted that it had dismissed the case against

respondent’s co-defendant “on the basis that I didn’t think

the facts sustained a convicuion” (App., infra, 23a). At

that point, the prosecutor interposed and explained to the

court that in fact “you felt that the government had proved

its case and that he had done something that he shouldn’t

have done, but you felt that the penalty was too great in

that regard in that case, and you dismissed on those

grounds” (/bid.). The court stated, “All right, | remember

that now,” but nonetheless continued (App., infra, 24a):

8

Well, here is what I am going to do—and I don’t

think anybody is going to be particularly injured by

it.

On the basis of the information that was disclosed

during the trial of this case, I conclude that the facts

were not sufficient to sustain a conviction of this de-

fendant, and I vacate the plea and dismiss the case.

He’s been punished —the punishment that is com-

ing to him he’s had already —and the administrative

proceeding that followed.

The conviction on the record is not representative

of what I believe to be the man’s character, and there-

fore the conviction is eradicated.

A formal order vacating respondent’s guilty plea and dis-

missing the indictment was entered on July 24, 1986

(App., infra, 4a-Sa):

6. On the government’s appeal from the dismissal

order, the court of appeals affirmed (App., infra, 1a-3a).

Without citing any authority for its decision, the court

concluded that the district court had “inherent authority”

io condition the judgment of conviction on respondent’s

not being deported and, when that condition was

breached, the court was justified in vacating the guilty plea

and dismissing the indictment. The court of appeals’ entire

discussion of the issue was as follows (App., infra, 3a):

Without regard to the district court’s authority under

[8 U.S.C.] 1251(b)(2), the district court had the in-

herent authority to enter its order stating it would re-

consider its judgment if deportation proceedings were

initiated by the government. Because the government

breached the order by bringing deportation proceed-

ings, it was appropriate for the district court to enter-

tain [respondent’s] motion to vacate his plea of guilty

and dismiss the indictment.

The court of appeals denied the government’s request for

rehearing en banc, with five judges dissenting (App., in-

fra, 7a).

9

REASONS FOR GRANTING THE PETITION

The district court in this case arrogated to itself powers

that are not judicial, but are reserved for the Executive

Branch. In that regard, the district court committed three

serious errors. First, the court improperly set aside the

judgment of conviction because the immigration authori-

ties took steps, subsequently withdrawn, to deport re-

spondent. Second, the court improperly permitted a col-

lateral attack on a voluntary and intelligent plea of guilty.

Third, the court took the drastic step of dismissing an in-

dictment in a case that did not even remotely fit within the

limited class of cases in which that remedy is justified.

The court of appeals approved each of these steps as be-

ing within the discretionary authority of the district court.

In fact, however, as this Court has made clear, a district

court may not vacate convictions and dismiss criminal

charges simply because the court questions the wisdom of

a particular prosecution decision or disagrees with other

steps the Executive Branch has taken against a defendant.

The district court’s action in this case — fully sanctioned by

the court of appeals —reflects a disregard for the limits on

a court’s authority over a criminal prosecution.

The view of judicial authority taken by the courts below

would permit a district court to upset a valid judgment of

conviction and even dismiss a prosecution altogether

because the court disagrees with the prosecutor’s charging

decision, or because the district court objects to the

government’s treatment of the defendant in other respects.

This Court has repeatedly held that a district court’s role in

the criminal process does not extend that far. The Court

should grant certiorari to reaffirm that the separation of

powers does not authorize a district court to exercise free-

wheeling power to upset valid convictions and dismiss

charges brought by the Executive Branch whenever the

court feels that it is in the general interest of justice for it

to do so.

i it

10

1. The power of a district court to enter judgment

against a criminal defendant is exclusively statutory in

nature. The court cannot impose a greater or lesser

punishment than sanctioned by the legislature. There is no

“inherent authority” to structure a sentence except as pro-

vided in the applicable statutory grant of authority. Ex

Parte United States, 242 U.S. 27, 42 (1916); United States

v. Haile, 795 F.2d 489, 492 (Sth Cir. 1986); United States

v. John Scher Presents, Inc., 746 F.2d 959, 961 (3d Cir.

1984); United States v. Missouri Valley Const. Co., 741

F.2d 1542, 1546 (8th Cir. 1984) (en banc); United States v.

Cohen, 617 F.2d 56, 58 (4th Cir.), cert. denied, 449 U.S.

845 (1980).

Under the statute applicable to this case, 7 U.S.C.

2024(b), a court may impose for a first felony conviction a

term of imprisonment of up to five years and a fine of up

to $10,000, as well as barring the defendant from further

participation in the food stamp program. Alternatively,

the court may “withhold the imposition of the sentence on

the condition that [the defendant] perform * * * work

assigned by the court for the purpose of providing restitu-

tion for losses incurred by the United States and the State

agency as aresult of the offense for which such individual

was convicted.” 7 U.S.C. 2024(b)(2). Neither Section 2024

nor the general provisions governing sentencing, 18

U.S.C. (& Supp. IID) 3561 et seq.; Fed. R. Crim. P. 32-36,

authorize a judgment conditioned on any other factors.

Nor does 8 U.S.C. 1251(b)(2) authorize the imposition

of a conditional judgment. Section 1251(b)(2) simply

allows a court to make a binding recommendation that a

defendant not be deported under the terms of Section

1251(a)(4) because of his conviction. That recommenda-

tion has no bearing on the remainder of the sentence, and

the court is not authorized to condition its judgment upon

compliance with the Section 1251(b)(2) recommendation.

11

As respondent himself acknowledged before the district

court (App., infra, 22a-23a), the deportation proceedings

at issue here were not commenced under Section

1251(a)(4). They were not based in any way on his convic-

ticn. Rather, they were commenced because respondent

had overstayed his immigration visa. Thus, there was no

violation of the court’s recommendation.’ But even if a

violation had occurred — even if, that is, INS had sought to

deport respondent under Section 1251(a)(4) —respondent’s

remedy would iie in an appeal from the deportation order,

not in a collateral attack on his conviction. See, e.g.,

Delgado-Chavez v. INS, 765 F.2d 868 (9th Cir. 1985);

Cerujo v. INS, 570 F.2d 1323 (7th Cir. 1978); Giambanco

v. INS, 531 F.2d 141 (3d Cir. 1976).

More generally, it is well established that a district court

does not have “inherent authority” to condition the finali-

ty of a criminal judgment on future events unrelated to the

prosecution. Nor can the court enforce such a condition

by permitting a collateral attack on the conviction if the

condition is not satisfied. See United States v. Huss, 520

F.2d 598 (2d Cir. 1975) (28 U.S.C. 2255 not available to

challenge conditions of confinement); Freeman v. United

States, 254 F.2d 352, 353-354 (D.C. Cir. 1958) (same for

manner in which sentence is executed); Costner v. United

States, 180 F.2d 892 (4th Cir. 1950) (same for calculation

of good time credits). Cf. United States v. Dragna, 746

F.2d 457 (9th Cir. 1984) (reversing district court’s reduc-

> Even without the court’s order, respondent could not have been

deported under Section 1251(a)(4). The instant case was his only

criminal conviction. Furthermore, the crime was committed more

than five years after respondent’s entry into the United States, and

respondent was not sentenced to a term of imprisonment exceeding

one year. Thus, Section 1251(a)(4) by its own terms could not have

been applied to respondent.

We are informed by INS that respondent was granted permanent

resident status on June 16, 1986, at the behest of his American wife.

Thus, he no longer faces possible deportation.

12

tion of sentence under Rule 35(b) based on frustration of

court’s intent as to where defendant would be confined),

cert. denied, 469 U.S. 1211 (1985). The decision of the

courts below “confer[s] on the judiciary discretionary

power to disregard the considered limitations of the law

that it is charged with enforcing.” United States v. Payner,

447 U.S. 727, 737 (1980). “[T]he supervisory power does

not extend so far.” /bid.

In United States v. Addonizio, 442 U.S. 178 (1979), this

Court held that a postsentencing change in the policies of

the Parole Commission that prolonged the defendant’s ac-

tual imprisonment beyond the period intended by the

sentencing judge did not support a collateral attack on the

original sentence under 28 U.S.C. 2255. The district court

in that case, upheld by the court of appeals, concluded

that its “sentencing expectations” were frustrated by the

Parole Commission’s subsequent adoption of new stand-

ards and procedures. The court therefore changed the de-

feidant’s sentence to “time served.” This Court reversed,

stressing the narrowly limited grounds on which a col-

lateral attack on a final judgment may be based (442 U:S.

at 186):

The claimed error here—that the judge was incor-

rect in his assumptions about the future course of

parole proceedings — does not meet any of the estab-

lished standards of collateral attack. There is no claim

of a constitutional violation; the sentence imposed

was within the statutory limits; and the proceeding

was not infected with any error of fact or law of the

“fundamental” character that renders the entire pro-

ceeding irregular and invalid.

The same is true in the instant case. There is no claim of

any constitutional violation. The sentence respondent re-

ceived was well within the statutory limits. And no finding

was made that the guilty plea and sentencing proceedings

were in any way infected with legal or factual error,

13

whether fundamental or otherwise. Under these circum-

stances, the sentencing judge’s intentions concerning

respondent’s immigration status will not support a col-

lateral attack on the judgment.

The Court stressed in Addonizio that, with certain

limitations, Congress had given the Parole Commission

the responsibility of deciding when to release a lawfully

sentenced defendant (442 U.S. at 188). Under the statu-

tory scheme, the sentencing judge has no enforceable ex-

pectations with respect to the actual release date of a

sentenced defendant short of his statutory term. “The

judge may well have expectations as to when release is like-

ly. But the actual decision is not his to make, either at the

time of sentencing or later if his expectations are not met”

(id. at 190). Thus, the only remedy of the defendant from

a decision of the Parole Commission denying him parole is

on review of that decision, not in a collateral attack on his

sentence (id. at 187, 190).

The same principles apply here. Congress has, with cer-

tain limitations, committed immigration decisions to the

initial discretion of the INS. A judge sentencing a criminal

defendant may have certain expectations as to the effect of

the conviction on his immigration status; under Section

1251(b)(2), the district court may even direct that the con-

viction not be used as the basis for deportation under Sec-

tion 1251(a)(4). But the actual immigration decision is

wholly separate from the judgment of conviction, and the

only remedy available to a defendant who is subsequently

ordered deported is on review of the deportation order,

not in a collateral attack on his judgment of conviction.

By treating the judgment in this case as a conditional judg-

ment that the court could revoke at any time it believed the

conditions were not satisfied, the district court violated

basic principles of the law of criminal judgments, as set

forth by this Court in Addonizio. That departure from im-

portant and settled principles of law is, in itself, sufficient

to warrant this Court’s review.

14

2. Even if the deportation proceedings had provided

some basis for the district court to reconsider its prior

judgment, there would still be no justification for the

court’s decision to vacate respondent’s guilty plea. This

Court has continually stressed that a voluntarily entered

guilty plea may not be set aside in a collateral proceeding.

As the Court stated in Mabry v. Johnson, 467 U.S. 504,

508 (1984), “[i]t is well settled that a voluntary and intelli-

gent plea of guilty made by an accused person, who has

been advised by competent counsel, may not be collateral-

ly attacked.” See also Tollett v. Henderson, 411 U.S. 258,

266-267 (1973); North Carolina v. Alford, 400 U.S. 25, 31

(1970); Parker v. North Carolina, 397 U.S. 790, 797-798

(1970); McMann v. Richardson, 397 U.S. 759, 772 (1970);

Brady v. United States, 397 U.S. 742, 747-748 (1970).

There was no claim in this case that respondent’s plea

was uncounseled or that it was not voluntarily and intelli-

gently entered. Respondent’s guilty plea fully complied

with the requirements of Rule 11 of the Federal Rules of

Criminal Procedure (App., infra, 8a-l1la), and there has

never been any allegation that the plea was not informed

and consensual. Respondent’s plea agreement with the

government was not conditioned in any way on a promise

that he would not be deported. App., infra, 8a-9a. The

issue was not even raised until the sentencing hearing,

when respondent’s counsel requested a recommendation

from the court under Section 1251(b)(2). App., infra, 17a.

In any event, even if the non-deportation recommendation

under Section 1251(b)(2) could somehow be construed as a

condition of the plea agreement, that condition could be

enforced without disturbing the guilty plea. See Santobello

v. New York, 404 U.S. 257, 263 (1971). Since “[iJt is only

when the consensual character of the plea is called into

question that the validity of the plea may be impaired,”

Mabry v. Johnson, 467 U.S. at 509, the subsequent depor-

tation proceedings provided no grounds for vacating re-

spondent’s guilty plea.

es

15

One other justification offered by the district court in

support of its action—although ignored by the court of

appeals in sustaining that action—was that, after sitting

through the trial of respondent’s co-defendant, the district

court concluded that “the facts were not sufficient to sus-

tain a conviction of this defendant” (App., infra, 24a).

Even assuming, however, that the district court intended

to rely in part on that ground,? it was an improper one. It

is well established that “a counseled plea of guilty is an ad-

mission of factual guilt so reliable that * * * it quite valid-

/y removes the issue of factual guilt from the case.” Menna

v. New York, 423 U.S. 61, 62 n.2 (1975) (per curiam) (em-

phasis in original). More specifically, a defendant is not

“permitted to disown” a plea merely because, in retro-

spect, the defendant concludes that the government might

have had difficulty in factually proving its case. Brady v.

United States, 397 U.S. at 757.

+ In fact, it is clear from the court’s comments as a whole that the

court acted as it did not based on any concerns about the sufficiency

of the evidence, but simply because it considered respondent “a pretty

good fellow” who would make “a good citizen” and who had been

punished enough for his wrongdoing. App., infra, 23a. Even with

respect to co-defendant Cole, the court never concluded that the

evidence was insufficient to sustain a conviction. Rather, the court

said that the government “could technically make out a case.” but that

“the penalty does not fit the crime” (App., infra, 13a). The reason the

court gave for that conclusion was that respondent was actually the

party principally responsible for the crime: “Really, the focus was on

the grocery man” (App., infra, |4a).

Thus, it is clear from the court’s comments at the time of the co-

defendant’s trial that the court did think the facts were sufficient to

Susiain a conviction of respondent. Furthermore, Rule 11(f), Fed. R.

Crim. P., authorizes a court to accept a guilty plea only if it is

“salistlied] * * * that there is a factual basis for the plea.” The district

court assured itself in this case that respondent’s plea had a factual

basis. App., infra, 9a-lla. Respondent admitted that he bought the

foodstamps for cash at a discount off their face value and that he

knew it was wrong at the time he did it. App., infra, 9a-10a. No fur-

ther factual predicate was required to make out a violation of 7

U.S.C. 2024(b). Liparota v. United States, 471 U.S. at 432.

16

On this issue as well, this case warrants review. Just as a

court may not upset a valid conviction absent error in the

proceedings leading to that conviction, a court may not

vacate a guilty plea on collateral attack absent a funda-

mental error in the proceedings leading to the acceptance

of the plea. See United States v. Timmreck, 441 U.S. 780,

783 (1979); Cf. Hill v. United States, 368 U.S. 424 (1962).

The decision of the courts below on this issue departs so

sharply from the role assigned to courts in addressing col-

lateral challenges to guilty pleas that this Court’s review is

clearly called for.

3. The final step taken by the district court in this

case — dismissal of the indictment —took the court into the

realm that the Constitution reserves for the Executive

Branch. Aside from its brief allusion to the sufficiency of

the evidence, the district court did not even suggest a

judicial basis for its decision. Instead, it simply expressed

and then acted upon its opinion that the prosecution of

this case was not in the public interest. “The conviction on

the record,” the court explained, “is not representative of

what I believe to be the man’s character, and therefore the

conviction is eradicated” (App., infra, 24a). The district

court, in short, “overruled the judgment of the U.S. At-

torney” (App., infra, 14a).

In our constitutional system, prosecution decisions are

committed to the Executive Branch. Bordenkircher v.

Hayes, 434 U.S. 357, 364 (1978). District courts do not

possess any authority to dismiss an indictment on the

grounds that the defendant is a “pretty good fellow.” On

the contrary, it is well established that whatever “super-

visory power” over law enforcement a court might have,

that power does not arm “the federal judiciary with a

‘chancellor’s foot’ veto over law enforcement practices of

which it d[oes] not approve.” United States v. Russell, 411

U.S. 423, 435 (1973). As the Court stated in Russell

(ibid.):

17

The execution of the federal laws under our Constitu-

tion is confided primarily to the Executive Branch of

the Government, subject to applicable constitutional

and statutory limitations and to judicially fashioned

rules to enforce those limitations.

The court of appeals attempted to justify the district

court’s action by reference to its “inherent power” to re-

spond to the government’s breach of the court’s non-

deportation order. Even if, however, one accepts the court

of appeals’ premise—that the government breakted a

lawful court order by commencing deportation pro-

ceedings against respondent — dismissal of the indictment

was not a legitimate response. The sanction appropriate to

such misconduct must be “narrowly tailored” and “ap-

proached ‘with some caution,’ ” taking full account of the

government’s legitimate interest in prosecution. United

States v. Hasting, 461 U.S. 499, 506-507 (1983) (quoting

United States v. Payner, 447 U.S. at 734). Dismissal of an

indictment is “extraordinary relief,” United States v. Mor-

rison, 449 U.S. 361 (1981), which is appropriate only in ex-

tremely limited situations. This Court stressed in Mor-

rison, 449 U.S. at 365, that “absent demonstrable preju-

dice, or substantial threat thereof, dismissal of [an] indict-

ment is plainly inappropriate, even though the violation

may have been deliberate.” There has never been any sug-

gestion that the deportation proceedings at issue here

could in any way have prejudiced respondent’s criminal

prosecution. It follows that even if those proceedings did

somehow violate respondent’s rights, the district court had

no authority to dismiss the indictment as a remedy for that

violation.

The decision of the court of appeals in this case works

an unprecedented shift of authority to determine whether

and against whom criminal charges should be brought,

from the Executive Branch (and the grand jury), where it

has heretofore resided, to the district courts. That decision

18

conflicts with decisions of other circuits which reversed

similar usurpations of power by district court judges. See,

e.g., United States v. Cannon, 778 F.2d 747 (1985), after

remand, 807 F.2d 1528 (11th Cir. 1986) (guilty plea to fire-

arms violation vacated by district court and judgment of

acquittal entered on grounds that, in district court’s view,

defendant should not be deprived of his right to possess

hunting weapons); United States v. Gonsalves, 781 F.2d

1319 (9th Cir. 1985) (indictment dismissed by district court

on grounds that the trial would be too complex and

burdensome); United States v. Valle, 697 F.2d 152 (6th

Cir.) (indictment dismissed by district court on grounds

that prosecutorial resources would better be allocated else-

where), cert. denied, 461 U.S. 918 (1983); United States v.

Hudson, 545 F.2d 724 (10th Cir. 1976) (indictment dis-

missed by district court on grounds that the defendant was

ill).

At bottom, what the district court did in this case, with

the blessing of the court of appeals, was to grant respond-

ent a pardon. Pardons are the prerogative of the Ex-

ecutive. Schick v. Reed, 419 U.S. 256, 266-267 (1974); Ex

Parte Grossman, 267 U.S. 87, 120-121 (1925). This Court

should grant review in this case to reaffirm that important

principle and to ensure that district courts are not per-

mitted to assume a general supervisory role over prosecu-

tion decisions that are strictly the responsibility of the

grand jury and the United States Attorney.

19

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

CHARLES FRIED

Solicitor General

WILLIAM F. WELD

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

MICHAEL K. KELLOGG

Assistant te the Solicitor General

ROBERT J. ERICKSON

ifforne\

JULY 1987

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CiRCUIT

No. 85-5282

UNITED STATES OF AMERICA, APPELLANT

v.

SAMSON E. SHONDE, APPELLEE

Appeal from the United States District Court

for the District of Minnesota

Submitted: April 15, 1986

Filed: October 16, 1986

Before LAY, Chief Judge, McMILLIAN, Circuit Judge,

and HANSON,* Senior District Judge.

HANSON, Senior District Judge.

The government appeals the order of the district court,!

pursuant to 28 U.S.C. § 2255, vacating the guilty plea of

defendant/appellee Shonde. We affirm.

*The HONORABLE WILLIAM C. HANSON, Senior District

Judge for the Northern and Southern Districts of lowa, sitting by

des gnation.

' The HONORABLE MILES W. LORD, Judge of the United

States District Court for the District of Minnesota, retired September

11, 1985.

(la)

2a

Samson Shonde is a 42-year-old Nigerian who has lived

in the United States since 1974. On August 22, 1984,

Shonde and Akinsonya A. Cole were indicted in a three-

count indictment for unlawful dealing in food stamps in

violation of 7 U.S.C. § 2024(b) and 18 U.S.C. § 2. Shonde

pleaded guilty to Count II of the indictment on the same

day Cole’s triai began. On the following day the district

court dismissed the case against Cole, concluding the

evidence would not sustain a conviction. At a sentencing

hearing on December 6, 1984 Shonde was ordered to pay

restitution and received two years’ probation. The district

court also ordered that Shonde not be deported, and that

if any future deportation hearing arose, the court would

entertain a motion from the defendant to vacate his plea

of guilty and dismiss the indictment.

On February 26, 1985 Shonde was ordered to appear

before the Immigration and Naturalization Service to

show cause why he should not be deported. The hearing

was continued to April, pending the outcome of his I-130

petition (a petition filed on his behalf by an immediate

family member). On April 23, 1985, the immigration

judge dismissed the deportation hearing and remanded the

case to the district director for disposition of Shonde’s Ad-

justment of Status application. Shonde thereafter brought

a motion before the district cour: to vacate his guilty plea

and dismiss the charge against him as had been stated in

the district court’s order at the sentencing hearing.

Thereafter the district court issued an order vacating

Shonde’s plea of guilty and dismissing the indictment

against him.

The government brings this appeal, asserting that the

district court erred in vacating Shonde’s guilty plea and in

dismissing the indictment. The basis of this appeal is the

government’s assertion that the district court acted beyond

its authority to recommend against deportation, as set out

in 8 U.S.C. § 1251(b)(2), in vacating the conviction and

3a

dismissing the indictment. The government argues that the

district court had no authority under § 1251(b)(2) because

at the time no deportation proceeding was pending against

Shonde. We do not agree. Without regard to the district

court’s authority under § 1251(b)(2), the district court had

the inherent authority to enter its order stating it would

reconsider its judgment if deportation proceedings were

initiated by the government. Because the government

breached the order by bringing deportation proceedings, it

was appropriate for the district court to entertain Shonde’s

motion to vacate his plea of guilty and dismiss the indict-

ment.

We would therefore affirm the decision of the district

court.

a

4a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

Criminal No. 4-84-74(01)

UNITED STATES OF AMERICA, PLAINTIFF,

v.

SAMSON E. SHONDE, DEFENDANT.

James M. Rosenbaum, U.S. Attorney, by Paul A. Mur-

phy, Assistant U.S. Attorney, 234 U.S. Courthouse, Min-

neapolis, Minnesota 55401, for plaintiff.

Susan E. Conley, Centro Legal, 179 E. Robie, St. Paul,

Minnesota 55107, for defendant.

[Filed July 24, 1985]

ORDER

This matter came before me, the undersigned Senior

Judge of the District Court, on July 2, 1985, upon defend-

ant Samson F. Shonde’s motions pursuant to section 2255

of Title 28 of the United States Criminal Code to dismiss

the indictment against him brought under Title 7, United

States Code section 2024(b) and to vacate his plea of guilty

of December 6, 1984. Paul A. Murphy, Assistant U.S. At-

torney, appeared for plaintiff, Susan E. Conley appeared

for defendant.

Based upon all the files, records, and proceedings

herein, and upon the arguments of counsel, IT IS

HEREBY ORDERED That:

1) Defendant’s motion to vacate his guilty plea

entered before this court on December 6, 1984, be

and is granted, and the plea is vacated;

Sa

2) Defendant’s motion to dismiss the indictment

against him under Title 7, United States Code

section 2024(b) be and is granted.

IT IS SO ORDERED.

Dated: July 22, 1985

/s/ Mites W. Lorp

Miles W. Lord

U.S. District Judge

6a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 85-5282MN

UNITED STATES OF AMERICA, APPELLANT,

V.

SAMSON E. SHONDE, APPELLEE.

Appeal from the United States District Court

for the District of Minnesota

[Filed Oct. 16, 1986]

JUDGMENT

This appeal from the United States District Court was

submitted on the record of the said district court, briefs of

the parties and was argued by counsel.

Upon consideration of the premises, it is hereby ordered

and adjudged that the judgment of the district court is af-

firmed in accordance with the opinion of this Court.

7a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 85-5282-MN

UNITED STATES OF AMERICA, APPELLANT,

Ve

SAMSON E. SHONDE, APPELLEE.

Appeal from the United States District Court

for the District of Minnesota

{Filed March 23, 1987]

Appellant’s petition for rehearing en banc has been con-

sidered by the Court and is denied.

Judges Ross, John Gibson, Fagg, Bowman and

Wollman would have granted the petition.

Petition for rehearing by the panel is also denied.

8a

APPENDIX E

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

CR 4 84 74

UNITED STATES OF AMERICA, PLAINTIFF,

v.

S. SHONDE, DEFENDANT.

Minneapolis, Minnesota

October 16, 1984

Transcript of guilty plea before Federal District Judge

Miles W. Lord.

APPEARANCES:

Paul Murphy, Assistant U.S. Attorney, for Plaintiff.

Mark Peterson, Minneapolis, Minnesota, for defend-

ant.

MR. MURPHY: Your Honor, this is the United States

of America versus Samson Shonde, Criminal 4-84-74. The

defendant was indicted in three counts by the Federal

Grand Jury. We are here, Your Honor, for purposes of

entering and presenting the court with a change of plea

under Rule 11 of the Federal Rules of Criminal Procedure,

which would be pursuant to an agreement between the

parties which is as follows:

The defendant, Mr. Shonde, would enter a plea of guil-

ty to Count Two of the indictment. There would be an

agreed maximum term of incarceration the court can im-

pose, Of six months. If the court chose to impose a term of

9a

imprisonment, the United States would not object if the

court chose work release as an alternative to incarceration

at a federal correctional institution. Restitution would be

in the discretion of the court. And there would be no fine.

The defendant is ready to proceed under those terms.

The United States is ready to proceed under those terms.

He’s in court in person and with his court-appointed

counsel —

MR. PETERSON: “Retained”.

MR. MURPHY: —“retained”, excuse me—Mr. Peter-

son.

MR. PETERSON: Mark Peterson. That’s a correct

statement of the negotiation, Your Honor.

THE COURT: I would require him to make the same

restitution as Sperry Rand, when they stole 3.6 million

dollars—to pay back 10 percent—when we get through,

that’s what I have in mind, just so you know.

MR. PETERSON: Just so the court is also aware: | am

not even sure that there is any restitution here, and | don’t

know whether Mr. Murphy is. But that certainly is

agreeable.

THE COURT: Okay. Step up, sir, right up to the

lectern.

EXAMINATION OF DEFENDANT

BY THE COURT:

Q What is it you are pleading guilty to? Tell me about

it.

A_ | pleading guilty to the $1,000.00 in food stamps

which I, which I know was wrong at the time, so—

Q How did you happen to do this? Tell me about it.

A Your Honor, I —the lady just, you know, came and,

she came —

THE COURT: Hand him the microphone there, Mur-

phy, take it off of there.

10a

A She came to the store, and she—in a manner that,

she seemed in difficulty of financial aspects, financial dif-

ficulties. And then I told her, I said, “Well, you know, this

is not right,” at the time. And then she says, “Well,” she

doesn’t want to be kicked out and things like that. And

that’s how I, that’s why I got into it, you know, she, you

know, talked me into it, and that’s why I got into it.

Q How many stamps did she give you, in dollar vaiue?

A_ I believe I gave her about $65.00.

Q And how many stamps did she give you in dollar

value?

A I believe she brought in $1,005.00.

Q. For $65.00?

A That’s what she said (nods head in an affirmative

manner).

Q_ And you paid her for them?

A_ I beg your pardon, sir?

Q_ You paid her $65.00?

A Yes sir, according to her—she’s the one that

brought the idea up because she needed the money.

Q Well, you know that you could have a trial and

plead not guilty, don’t you? You don’t have to plead guil-

ty. You understand that?

A Yes, Your Honor, yes.

Q_ And you could say to the government, “I’m not guil-

ty, call the jury in here and let them decide. You under-

stand?

A Yes, Your Honor (nods head in an affirmative man-

ner).

Q And if we had a jury, it would have to be a

unanimous verdict, everybody would have to vote

“guilty”, you understand that?

A Yes, Your Honor.

Q And they’d be told that you could not be convicted

unless they found you guilty beyond a reasonable doubt.

lla

A Yes, Your Honor.

Q And your lawyer could make certain motions; he'd

be here to defend you and could argue on your behalf; and

you wouldn’t have to take the witness stand if you didn’t

want lo.

Do you understand those things?

A Yes, Your Honor.

Q Now you might go to jail for six months under this

plea bargain. Do you understand that?

A Yes, Your Honor.

Q And so it’s all over, there’s no further appeal, once |

accept your plea, it’s the end of it. You understand that?

A Yes, Your Honor.

Q Youcan’t appeal to anybody, there’s no further pro-

ceeding except the sentence. Do you understand that?

A Yes, Your Honor.

Q Okay. You've talked this over with you lewyer?

A Yes, | have, Your Honor.

Q. And are you satisfied —

THE COURT: Mr. Peterson, are you satisfied that this

is appropriate?

MR. PETERSON: Yes, | am, Your Honor.

Q Has the lawyer been available to you and talked to

you about these things whenever you wanted to?

A Yes, Your Honor.

THE COURT: All right, Well, I will accept the plea and

refer the matter to the probation office for presentence in-

vestigation. Thank you.

MR. PETERSON: Thank you, Your Honor.

l2a

APPENDIX F

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

CIV 4-84-74(02)

UNITED STATES OF AMERICA. PI AINTIFF.

Vv.

AKINSANYA A. COLE. DEFENDANT]

October 17, 1984

TRIAL (Partial Transcript)

Transcript of proceedings before Chief Federal District

Judge Miles W. Lord, at Minneapolis, Minnesota, on Oc-

tober 17, 1984.

APPEARANCE:

FOR PLAINTIFFS:

Paul Murphy.

FOR DEFENDANT:

David Skeen.

(Jury not present.)

THE COURT: Mr. Murphy?

MR. MURPHY: Yes sir?

THE COURT: Is the rest of the government’s case going

to be consistent with this, that this is a one-time thing

where the man got no money, he was called upon to do

that one transaction? Is that going to be the government’s

case?

|

l3a

MR. MURPHY: Your Honor, | think the evidence is

that he was involved in two transactions.

1 think that whether or not you want to believe

that — first of all—that he received no money, in fact, is a

question that is open to debate.

Whether he intended to receive money from the outset

and was simply unsuccessful in obtaining money —if in

fact he did not receive any money is another question.

And, frankly, Your Honor, I think that he was involved

in this, he was brought into it by his friend— you know, we

obviously did not sit with him and find out whether or not

he was able to sell some of these stamps and get some

money out of them.

THE COURT: Are you going to bring anything in, in

addition to that, during your case?

MR. MURPHY: No, Your Honor.

This is going to be the—

THE COURT: All right, the case is dismissed.

Call the jury back here, and I will send them home.

There is no use listening to any more. I am not going to

let that go to the jury.

There is nothing personal, Mr. Murphy.

MR. MURPHY: I understand that, Judge.

THE COURT: You could technically make out a case,

but it would get no sentence. All he would have is a convic-

tion on his record and get deported.

(Jury present.)

THE COURT: I have been around a long time—34

years—in the law enforcement business, one way of

another.

A Judge has supervision over law enforcement.

| have concluded that in this instance the penalty does

not fit the crime. This man is a foreign national. He was

called upon by one of his countrymen to help him in one

instance. There is no proof that he got any money for this.

There is proof that he backed away from—no, I guess

maybe it was two instances.

l4a

There is no proof that this is a pattern of conduct on his

part. And if he is convicted he is deported —he is working

on his Master’s Degree in Business — we send him back to

Ethiopia.

There may be welfare cheaters. This man is not on

welfare. He monkeyed with this thing. He should not have

done that.

But if he were convicted, ] would not punish him

severely — you know it would be some nominal sentence.

Really the focus was on the grocery man.

This defendant was trying to keep the grocery man out

of it, and the grocery man was pulling him in.

So you jurors may agree with me or disagree with

me—it does not make any difference because I have

already dismissed the case, you see — but if there is another

case and he’s back in there, they will get him again. I don’t

think he is. I made that judgment, and there is no use

going on any longer.

I asked the government what they were going to prove,

and they will prove about what they have proved to now.

That is not any Indictment of Mr. Murphy because he is

a very good trial lawyer and a very decent person, and |

must say that.

But it is just my judgment, and I have overruled the

judgment of the U.S. Attorney in this instance, so the case

is Over.

I want to thank you for having been here, and there

will be no further deliberations or presentation of evidence

of any kind.

Thank you, folks.

(Proceedings closed.)

lSa

APPENDIX G

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

CR 4 84 74

UNITED STATES OF AMERICA, PLAINTIFF,

V.

S. SHONDE, DEFENDANT.

Transcript of sentencing before Federal District Judge

Miles W. Lord at Minneapolis, Minnesota, on December

6, 1984.

APPEARANCES:

F. Hermann, Assistant U.S. Attorney, for Plaintiff.

Mark Peterson, Minneapolis, Minnesota, for defend-

ant.

MR. HERMANN: Your Honor, Samson Shonde is

present before this court and is represented by his at-

torney, Mark Peterson. The matter is before this court for

sentencing, and the government moves for imposition of

sentence.

THE COURT: Well, Mr. Peterson, before I pass

sentence, do you have anything you wish to say on behalf

of your client?

MR. PETERSON: Just briefly, Your Honor.

I think that Mr. Smith’s report is both complete and ac-

curate —I did notice one thing, when I got back to my of-

fice after reading the PSI —there was an agreement that no

fine be imposed in this case at the time the plea was

entered, and | would request that that correction be made.

l6a

The only other thing is that, as the court is aware from

reading Mr. Shonde’s version of these events, his essential

position is that he got involved in this in the first place

because the undercover agent came in and indicated that

she needed money badly and the only way that she could

obtain it was through selling food stamps.

THE COURT: What was that undercover person’s

name?

MR. PETERSON: I don’t recall her name.

THE COURT: Okay, go ahead.

MR. PETERSON: In any event, Mr. Shonde’s version

of the events provided to Mr. Smith is precisely the same

as that provided to me in our conversations, and I wanted

the court to know that.

He also requested that I inform the court that, when he

met Mr. Smith, he apparently brought with him a number

of documents — which he has with him today — indicating

that in similar situtations he has |.elped people financially

in the past, and he wanted the court to know that, if the

court were interested in seeing that information, he would

provide it. I simply was unaware of it prior to this morn-

ing.

The only other request that I would make on Mr.

Shonde’s behalf is that the court, as part of imposing

whatever sentence is imposed in this case, direct the At-

torney General not to deport Mr. Shonde.

I believe the court has the authority to do that under 8

U.S.C., Section 1251 B.

And | think the presentence investigation shows the fact

that he has been in this country for some ten years now,

has made —with the exception of this incident—a good

adjustment to the American way of life, is working very

hard, is trying to support his family—his wife is in the

court room—and that deportation would not be ap-

propriate — although the PSI does indicate that Immigra-

tion probably is not going to proceed in any event. Thank

you.

17a

THE COURT: Well, if I have the capacity to so order, |

do so.

MR. PETERSON: Thank you.

THE COURT: Do you have anything to say, Mr.

Shonde, before sentence is imposed?

THE DEFENDANT: Your Honor, before God and

man, I actually did not have any intention to profit from

the trouble in which I am here before you. I simply

responded, just like I did, like I have done previousiy

before.

Your Honor, if your lordship would go through these

(indicating), this is an example of people that I helped.

They kicked them out of the house, they don’t have any

money to pay for their rent. 1—they brought a notice why

they would be out of there, and | gave them the money,

gave her the money—he and she—gave them the money.

And it’s the same thing, Your Honor, before God and

man, that this lady came to the store and requested I

should help her sister and—she’s in need of help, she

doesn’t have no money to pay rent —and that’s what I did;

not knowing that she is an undercover agent of any kind. I

simply responded to her request, her need, just like I did

previously. Your Honor, that’s why I get in trouble, why

I’m here with you.

THE COURT: Very well. Samson Shonde, you have

been charged in the indictment with illegal dealing with

food stamps, in violation of Title 7 U.S.C. 2024(b) and

Title 18 U.S.C. Section 2.

Based on your plea of guilty, it is considered and ad-

judged that your are guilty.

Therefore, it is adjudged that the imposition of sentence

is hereby suspended, and the defendant is placed on pro-

bation for a period of two years, on terms and conditions

that you comply with local, state and federal laws and the

orders of the probation department.

18a

I will, however, require that you pay $746.00 in restitu-

tion to the Department of Agriculture.

Now | have indicated that I would indicate to the Im-

migration Department and order them not to deport you.

If that punishment is to follow—if they are to deport

him—I will entertain a motion to dismiss this plea of

guilty —to withdraw it —and at that point I will dismiss the

charge; because I didn’t like the way, I didn’t think it was

fair the way the Department of Agriculture went about

this whole process. That’s why I dismissed the other per-

son.

MR. PETERSON: Very good, Your Honor.

THE COURT: So if he’s going to be deported, you can

come back and move to have the plea of guilty withdrawn.

I think I still have jurisdiction.

MR. HERMANN: Your Honor, it is my understanding

that the undercover agent in this case was Tonia Milam

(phonetic).

THE COURT: All right. Thank you.

MR. PETERSON: Your Honor, do I understand that

the restitution is payable over the period of probation?

THE COURT: Over the period of probation, yes.

MR. PETERSON: Very good.

MR. HERMANN: I wonder if it would be appropriate

for the Court to state on the judgment and commitment

regarding the immigration matter, that “not to be

deported”?

THE COURT: Well, you folks get together on that, will

you please?

MR. HERMANN: Sure.

THE COURT: Okay.

MR. HERMAN: All right.

MR. PETERSON: Yes. Thank you very much.

THE DEFENDANT: Thank you.

MR. HERMANN: Your Honor, we would move for

dismissal of the remaining counts of the indictment.

THE COURT: So ordered. Thank you, Mr. Hermann.

19a

APPENDIX H

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

FOURTH DIVISION

CR 4-84-74

UNITED STATES OF AMERICA, PLAINTIFF,

Vv.

S. SHONDE, DEFENDANT.

~ TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE MILES W. LORD

APPEARANCES:

For plaintiff: Paul Murphy, Assistant U. S. Attorney

For defendant: Susan Conley

Court Reporter: Ed Rafel

MR. MURPHY: Your Honor, for the record this is

U.S. vs. Samson Shonde, Criminal Number 4-84-74.

The record should show the appearance of the United

States by Paul Murphy, and the defendant appears in per-

son and with Susan Conley.

MS. CONLEY: That’s correct.

MR. MURPHY: This is the first time | have met Ms.

Conley, and she is from Central Legal, Incorporated, and

representing the defendant in this case.

THE COURT: Where are you from?

20a

MS. CONLEY: Central Legal. It is a nonprofit legal

service program on the west side of St. Paul, serving the

Hispanic community.

MR. MURPHY: Your Honor, with regard to the

Supreme Court Case of Liberata [sic], the United States

has read that case, and that case really is in accord with the

earlier Eighth Circuit cases of U.S. vs. Feltico and United

States vs. Marvin, both of which require—under those

decisions—that the offenses charged in the case were

specific intent crimes and that, if the matter proceeded to

the point of instructions to the jury, then the jury had to

be instructed with the specific intent instruction.

[ don’t think that Liberata [sic] makes any dif-

ference —in this circuit —to the case law. I would say to the

court that, based on the transcript of the plea hearing, the

defendant indicated not once, but twice, that he knew

specifically that it was wrong to do what he was doing. In

fact he pointed out to the undercover agent that it was

wrong to discount food stamps. So I don’t think Liberata

[sic] is really effective here, Your Honor.

THE COURT: What did the indictment say, do you

remember? Does it say “knowingly” and “willfully”?

MR. MURPHY: No, Your Honor, it didn’t say “willful-

ly”. It said “knowingly” and “intentionally.” And I would

point out to the court —in that respect —the Marvin case,

which is an Eighth Circuit case, sustained the sufficiency

of the indictment. It did reverse the case because the court

failed to instruct as to specific intent, when the case went

to the jury; but the indictment itself read “did knowingly

acquire, possess United States Department of Agriculture

food stamps”, and the Eighth Circuit said that is a suffi-

cient indictment to charge the offense under the Statute,

and the case requires specific intent but yet they held that

was a Sufficient indictment.

ee Naa

21a

In this case the indictment filed here charged not only

“knowingly use, acquire and transfer”, but said “know-

ingly and intentionally.” So I would say to the court that

the indictment before the court in this case against Mr.

Shonde is stronger, in its language of allegation of intent,

than the indictment in the Marvin case—which was sus-

tained by the Eighth Circuit as being a sufficient indict-

ment within the language of the statute charged.

THE COURT: Do you know what’s bothering me?

Shonde is a pretty good fellow. I think he’s a good citizen

and—he’ll be a good citizen.

We want to deport him.

Then we have a little skunk like the man who just left

here, who has never done anything right in his whole life,

and we give him free board and room for four or five years

and support five of his children by five different women.

We should have a deportation mechanism for men like

him.

But Shonde here is—I think he’ll be a good citizen, a

conscientious person, and bright, intelligent, decent.

You better be, Mr. Shonde.

THE DEFENDANT: Yes, I am, Your Honor.

THE COURT: And now we're going to send him off.

We won’t have a friend here or there.

| don’t know exactly what power I have to do anything

here.

MR. MURPHY: Well, Your Honor, the government

pusition is this:

You have indicated in your order very specifically and I

am sure it has been pointed out to Immigration —that this

defendant is not to be deported based on this conviction.

THE COURT: Right.

MR. MURPHY: Now if I understand the pleadings cor-

rectly, the defendant has indicated, number one, that there

is no deportation proceeding pending presently, that the

deportation proceeding was dismissed on April 21st—or

a

22a

23rd —of this year; that there is presently pending a ques-

tion of his status with Immigration that, I guess, could

ultimately lead to his deportation but — with regard to his

marriage, I think —

MS. CONLEY: Right.

MR. MURPHY: That is what is pending before Im-

migration at the present time.

And the defendant has indicated to the court in the

pleadings that, as of the present time, there is nothing to

indicate specifically that the defendant is being deported

Or going to be deported based on the charges that he was

convicted of in this case.

I don’t think there is any relief that can be granted on

those facts.

I would also say to the court that, if it did become evi-

dent and it became a matter of proof and record that Im-

migration was using the conviction in this case in violation

of this court’s order, to deport this man, then the proper

relief is to haul somebody in from Immigration and find

out why they are doing it in violation of your order, and

make sure that they comply with your order.

I think vacating a sentence and dismissing a charge is a

rather drastic remedy for a problem that—first of

all—doesn’t exist at the present time; and that, if it does

come to exist, there is a lesser solution to the problem.

THE COURT: Well, you see, I think that my sentence

leaves the Immigration people in a posture where they can

do it if they want to, and that my only remedy —I cannot

enjoin them from following what they see to be their duty;

if they see it to be their duty to use that conviction and to

disregard my language, my only remedy is to dismiss the

conviction —and that is permanent.

MS. CONLEY: Your Honor, may I speak?

THE COURT: Yes.

MS. CONLEY: As far as the immigration proceedings

go, it is correct that Mr. Shonde—in the deportation pro-

Ee “

23a

ceedings that were commenced against him—he was not

charged with violation of immigration laws because of his

conviction. He was charged as an overstay on his tem-

porary visa.

The conviction comes into play in the deportation con-

text because he was found deportable at the original hear-

ing and made the request for discretionary relief of adjust-

ment of status based on his marriage to a U.S. citizen, as

well as voluntary departure in lieu of deportation.

Now those two discretionary reliefs have an element of

good moral character where this conviction comes into

play. To be eligible for voluntary departure, which is to

leave on your own in lieu of being deported so that your

immigration record remains clean, you have to have been

a person of good moral character for the five years im-

mediately preceding. I can give you the statutory cites, if

you like.

THE COURT: Did Shonde plead guilty before the trial

of the other two people?

MR. MURPHY: Yes, Your Honor, he did.

THE COURT: At the trial of the other two people, I

dismissed one of the counts on the basis that I didn’t think

the facts sustained a conviction.

MR. MURPHY: Your Honor, the codefendant in the

case was a Mr. Cole, and you dismissed —1I think if we pull

the record out, pull the transcript out, I think you

dismissed —I think you made a remark that you felt that

the government had proved its case and that he had done

something that he shouldn’t have done, but you felt that

the penalty was too great in that regard in that case, and

you dismissed on those grounds. And there was no other

defendant; there was just Mr. Cole.

There was another case, but it was unrelated to this one.

THE COURT: I see. Cole was the fellow that sort of

was called in by Shonde, wasn’t he?

24a

MR. MURPHY: Yes, Your Honor.

THE COURT: There was not a third person?

MR. MURPHY: There was a third case. That was a Mr.

Ballard Wair. Mr. Wair was the gentleman who ran a

shoeshine business over at the IDS Building. It was an

unrelated and separate matter.

THE COURT: All right, I remember that now.

Well, here is what I am going to do—and I don’t think

anybody is going to be particularly injured by it.

On the basis of the information that was disclosed dur-

ing the trial of this case, I conclude that the facts were not

sufficient to sustain a conviction of this defendant, and |

vacate the plea and dismiss the case.

He’s been punished —the punishment that is coming to

him, he’s had already — and the administrative proceedings

that followed.

The conviction on the record is not representative of

what I believe to be the man’s character, and therefore the

conviction is eradicated.

Thank you.

(Proceedings closed)

S GOVERNMENT PRINTING OFFICE 1987— 161.483'40419

+ Fie a ae

iS Veh aie

* i S wee "y Sed Biy9

8 ah wm & var ee

7 yee ely ‘

OF es =) 8) rt’

ee