# Petition for Writ of Certiorari — Strube v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 1024

## Text

i

Suoreme Ceurt, U.S.

{
| FILED

4PR 20 1990

JOSEPH F. SPANIOL, JR,

CLERK
—_

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,
‘

89-1643

i
.

No. 89-

IN THE

Supreme Court of the Gnited States
OCTOBER TERM, 1989

GORDON STRUBE,
Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

THOMAS E. HOLLIDAY *LARRY L. SIMMS
GIBSON, DUNN & CRUTCHER GIBSON, DUNN & CRUTCHER
2029 Century Park East 1050 Connecticut Avenue, N.W.

Los Angeles, California 90067 Washington, D.C. 20036
(202) 955-8558

Of Counsel:
JAMES C. DUDA RICHARD MARMARO.
KIMBERLY S. MCGOVERN JAMES C. CHALFANT

GIBSON, DUNN & CRUTCHER McCAMBRIDGE, DEIXLER,
1050 Connecticut Avenue, N.W. MARMARO & GOLDBERG
Washington, D.C. 20036 2029 Century Park East
Los Angeles, California 90067
(213) 277-2650

Attorneys for Petitioner

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

QUESTIONS PRESENTED

1. Whether, contrary to the decisions of several Courts
of Appeals, the court below correctly held that the Gov-
ernment need not comply with the literal terms of plea
agreements which it enters even where the defendant, upon
the Government’s breach, moves to withdraw his plea prior
to sentencing.

2. Whether the Government may, consistently with San-
tobello v. New York, 404 U.S. 257 (1971), purport to cure
its breach of a plea agreement after the defendant, prior
to sentencing, has sought to avail himself of his presump-
tive constitutional right to withdraw his plea and put the
Government to its proof at trial.

3. Whether, as all federal courts having considered the
issue other than the court below have concluded, a
defendant charged with being an accessory after the fact
under 18 U.S.C. §3 may not be convicted unless, to sup-
port that charge, he committed overt acts subsequently to
the completion of the underlying offense.

4. Whether this Court should permit a conviction to
stand when all counsel and the federal courts below failed
to recognize that the facts alleged in the information and
upon which the conviction was obtained do not, as a matter
of law, support conviction for the offense charged.

ii

TABLE OF CONTENTS

OPINIONS AND ORDERS BELOW ...................0000008

FUMMIUCEIRINN venecssidassanicianantacimmidbiodebaaeibiedakersauinvaes

CONSTITUTIONAL PROVISION, STATUTE AND
DOA GUT VURIVEEED coccspeiunsancsisioniaitesistieionbibisieiees

A. Statement of Facts Relevant to the With-
drawal Questions and the Decision of Those
Questions by the Courts Below ..........0.0.....

B. Statement of Facts Relevant to the Acces-
sory After the Fact Questions .................0..

REASONS FOR GRANTING THE WRIT ..................

A. The er Whether the Government Must
Comply with the Literal Terms of a Plea
Agreement Is an Important and Recurring
Question Upon Which the Courts of Appeals
RRO TAVIENE conceals

B. The Court of Appeals’ Acceptance of the Gov-
ernment’s Attempts to Cure Its Breach of the
Plea Agreement Deprived Petitioner of Due
Process under Santobello v. New York ........

C. The Court of Appeals’ Judgment Obliterates
the Distinction Between the Accessory After
the Fact Statute and the Aider and Abettor
Statute and Conflicts With Other Federal
Court DOGO. vonisesscccstatuesnuiateidenner

D. This Court Should Grant the Writ, Vacate
the Judgment of the Court of ores and
Remand for Reconsideration in Light of the
Fact that the Record Discloses_ that
Petitioner Pieaded Guilty to Counts of a
Criminal Information That Did Not Charge
— Punishable under the United States

DEE cavcsvncosectanandeomsadiansiadasitnaiaaeenen ss.

bo bo

Cw po

13

13

18

21

26
28

iil

TABLE OF AUTHORITIES

Cases: Page
Carter v. United States, 350 U.S. 928 (1956) ....... 27
Correale v. United States, 479 F.2d 944 (ist Cir.
a lac chs ished aainunipininewusteraunceveve 17
Government of Virgin Islands v. Aquino, 378 F.2d
EE MIP MOD ac cccncsesssansionencssenveentoeevestienses 23,24
In re Arnett, 804 F.2d 1200 (11th Cir. 1986) ....... 17

Mariscal v. United States, 449 U.S. 405 (1981) .... 26

McKoy v. North Carolina, 110 S. Ct. 1227
i lls ull ana ccncdsaennrsabeedecmseneeneeronsseers 19

Prussian v. United States, 282 U.S. 675 (1931) .... 26
Roberts v. United States, 416 F.2d 1216 (5th Cir.

Tea si alaneningnnaniuinennanonene 25
Santobello v. New York, 404 U.S. 257 (1971)....... passim
United States v. Avery, 450 F.2d 214 (5th Cir.

SNS Se Sa a nee mn ee 16
United States v. Balano, 618 F.2d 624 (10th Cir.

ER iiicidnnibascebucrtucarenbiéanssouenbrsetniiieenseroors 22
United States v. Barlow, 470 F.2d 1245 (D.C. Cir.

FO ee aa 21,22
United States v. Benchimol, 738 F.2d 1001 (9th Cir.

1984), rev’d mem., 471 U.S. 453 (1985) ........ 8,15,16

aaaae _ v. Bornstein, 623 F.2d 1327 (9th Cir.
SI alsin alicainee dinielailethabasmianeebonsienneeenstven

a cca csursiecensesucns 16,17
United States v. Crusco, 536 F.2d 21 (3d Cir.

IIT ca aiaiinicdienskeabankscounnnnunesieenmenmniiainebernssts 14,15
United States v. Ferraro, 414 F.2d 802 (5th Cir.

RT Tos occ csceaeounggusionnesunncenadnebnereeiantion 24

BETTIE. sc cnieninsbiwessnensicesinthonaessecsontevenindisiansteeswoeseds 15,16

iv

Table of Authorities Continued

Page

United States v. Jarboe, 374 F. Supp. 310 (W.D.

Mo. 1974), affd, 513 F.2d 33 (8th Cir.

SET sj csiicinbdlakabaisnaiblanaeadanentuccaibiaasinmahaedaduabeens 24
United States v. McCoy, 721 F.2d 473 (4th Cir.

UIT Sundin tisbacdacienra aaa Reilanacadabeneinadimamtaniasiideataenic 24
United States v. Moscahlaidis, 268 F.2d 1357 (3d

aL I acieaiicitiucslciabanacedaidieusiphienanainiteldceitbemioienssiaades 15
United States v. Nava-Maldonado, 566 F. Supp.

Ee TE: TIED enidscanisecceupeccnncvesinssecérdtiocee 23
United States v. Willis, 559 F.2d 443 (5th Cir.

SED ss vcdisovcocscianuhastktapiluacsanetne ana Mbenervckan 24
United States v. York, 578 F.2d 1036 (5th Cir.

ITED shnsendaisebtisssonisdectaadinledaedelmncmiidtlaitenaalonaiantietds 24

Watkins v. United States, 429 U.S. 1034 (1977) ... 26

Constitutional Provisions, Statutes and Rules:

PE MII ci insesacisncospneunsncnnsamuieindeneuricmisities 2
IAT EINTE Sic sete wusnpnabcasbeubdedanicasntgpiiausdndanasabnaideiad passim
ie” ERNIE APO <1 scoeasiaiiinGiiowoaibasioneinaseudasapnuuamenaensanitbdin passim
ee ac TIE crecittls turn cG idagan puasiassoadaddamenesatderudasmins 3,9,10
Es MTT cies as hashes besccpnntendckacuadoenonammanehieatnis 26
ee EE vnc s cc csenticciphiincicibdniiamesonedsconadiledans 21
Be ie Te iste is sicolcahicaninitcisransetbsanonanennnndsddaidddamabiane 3,9,10
Be EE ii alistiedss onccdinbsinimnsausonnbeundaembdabonntins 2
Be ne I eiscdscisiidudacninnsncionssesnbeasbuncensadiunes 2
Bie | a S| nee saciniheaccalaiiaifultiniiedie, 2
I i see aa aiabanane 27
Supreme Court Rule 24.1.(a) .....................:ceeeeeeeees 27
Ss Sch Asiniecciiesasteepmnnieanmineenaiiies 10,12

SU: ee ME I passim

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 89-

GORDON STRUBE,
Petitioner,
Vv.

UNITED STATES OF AMERICA,
Respondent.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

Petitioner, Gordon Strube, respectfully petitions for the
issuance of a writ of certiorari to review the judgment of
the court below under which he was not permitted to
withdraw his guilty plea prior to sentencing notwithstand-
ing a breach by the Government of the plea agreement.
Petitioner also seeks review of the judgment below which,
contrary to the positions taken by other federal courts,
applied the federal “aiding and abetting” statute, 18
U.S.C. § 2, and the federal] ‘‘accessory after the fact”’ stat-
ute, 18 U.S.C. § 3, in such a way as to render them fun-
gible by affirming his conviction for violating §3 on the
basis of facts that would only have sustained a violation
of § 2 for which petitioner was never charged and to which
he did not plead guilty.

OPINIONS AND ORDERS BELOW

The initial, unpublished memorandum opinion of the
Ninth Circuit, filed on October 11, 1989, affirming the
District Court’s judgment of conviction is reproduced in
App. A, la-lla. The unpublished January 23, 1990 order
of the court below issued in response to petitioner’s re-
hearing petition, which amended the October 11, 1989
opinion, denied rehearing and rejected the en banc sug-
gestion, is reproduced in App. B, 12a-13a. The October
11, 1989 opinion as modified by the January 23, 1990 order
is reproduced in App. C, 14a-24a. The District Court issued
no opinion with respect to its denial of petitioner’s Rule
32(d) motion to withdraw his guilty piea; that court’s oral
explanation for its decision rendered at the August 15,
1988 hearing on that motion is reproduced in App. D, 25a-
28a. The District Court’s judgment and probation/commit-
ment order issued August 16, 1988 is reproduced in App.
E, 29a-3la.

JURISDICTION

The District Court’s jurisdiction over this case arose
under 18 U.S.C. § 3231. The Ninth Circuit’s jurisdiction
over the appeal arose under 28 U.S.C. § 1291. This petition
is being filed within ninety days of the January 23, 1990
order denying petitioner’s rehearing petition. This Court
has jurisdiction over this case pursuant to 28
U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION, STATUTE
AND RULE INVOLVED

1. The Due Process Clause of the Fifth Amendment
provides, in pertinent part:
No person shall ... be deprived of ... liberty,
or property, without due process of law .

2. Rule 32(d) of the Federal Rules of Crimina) Procedure
provides, in pertinent part:

If a motion for withdrawal of a plea of guilty

. is made before sentence is imposed ... the
court may permit withdrawal of the plea upon a
showing by the defendant of any fair and just
reason.

3. The federal ‘accessory after the fact” statute, 18
U.S.C. § 3, provides:

Whoever, knowing that an offense against the
United States has been committed, receives, re-
lieves, comforts or assists the offender in order
to hinder or prevent his apprehension, trial or
punishment is an accessory after the fact.

STATEMENT OF THE CASE

A. Statement of Facts Relevant to the Withdrawal
Questions and the Decision of Those Questions by
the Courts Below

Petitioner is the founder, acting president, and chief
executive of Consolidated Aeronautics Corporation (CAC),
an entity which sold aircraft parts to the Government dur-
ing 1985 and 1986. In 1987, the United States Attorney’s
Office in Los Angeles began an investigation of CAC and
four of its employees for violations of 18 U.S.C. § 287 (false
claims), and 18 U.S.C. § 1001 (false statements). Petitioner
was not an object of that investigation. Nonetheless, in
early March 1988 he decided ‘‘to see whether I could vol-
untarily come forward and plead guilty to some offense
in order to prevent the indictment of as many of my
colleagues as possible.”” App. C, 15a.

On March 11, 1988, petitioner, CAC and a CAC em-
ployee entered a verbal plea agreement with the Govern-
ment. On March 25, 1989, the Government filed an
information, reproduced in App. F, 32a-38a, charging the
three defendants with various violations of federal law.
Petitioner was named in Counts Two, Three and Five of

that information which, in essentially the same language,
charged that he had, with knowledge that the charged
underlying offenses had been committed by the other
defendants, ‘‘received, relieved, comforted and assisted [the
other defendants] in order to hinder and prevent their
apprehension, trial and punishment” in violation of 18
U.S.C. §3. |

On April 11, 1988, petitioner (and the other defendants)
and the Government entered a written plea agreement,
reproduced in App. G, 39a-45a, in which petitioner agreed
to plead guilty to those same three counts of violating 18
U.S.C. § 3. The plea agreement stated that petitioner could
be sentenced to a maximum of 2.5 years of imprisonment
on each count and fines totalling $625,000. In the plea
agreement, the Government stated that, “[a]s to
[petitioner], the government will not recommend at the
time of sentencing a total period of incarceration of more
than one year.” App. G, 40a. Petitioner, CAC and its
employee entered their guilty pleas at a hearing before
the District Court on May 9, 1988. At that hearing, the
court pointed out—after explaining to the defendants the
substantial constitutional rights each was waiving by plead-
ing guilty—“‘that the Government has agreed not to make
certain recommendations at the time of sentencing ....”’
App. H, 58a.

Despite the Government’s commitment in the plea
agreement not to recommend a total sentence of more
than one year for petitioner, the Government’s sentencing
memorandum filed in the District Court on July 20, 1988,
reneged on that commitment. In that memorandum, the
pertinent parts of which are reproduced in App. I, 70a-
73a, the Government stated in the ‘‘Introduction’”’ section
that it was recommending for petitioner “‘[a] jail sentence
of one year and a fine of $625,000.” In that part of the
memorandum titled ‘‘Recommendations,”’ however, the
Government took a different position:

It is submitted that CAC’s long ingrained prac-
tice of selling defective parts was known to and
orchestrated by STRUBE. But for his age and
health, a long prison sentence would be called
for. Nevertheless, some prison is warranted to
Geter STRUBE and other corporate executives
who attempt to hide behind their employees. The
government submits that STRUBE should be sen-
tenced to a prison term of at least one year. The
government has been advised that the Terminal
Island prison in this district has adequate facil-
ities to deal with STRUBE’s health problems.

App. I, 73a (emphasis added).

Based upon his view that only one reasonable inference
could be drawn from the words ‘“‘at least one year’’—that
the Government was recommending a minimum sentence
of one year and necessarily was encouraging the District
Court to impose a greater sentence—in violation of the
Government’s promise in the plea agreement—petitioner
moved in the District Court on August 8, 1988 to withdraw
his guilty plea pursuant to Fed. R. Crim. P. 32(d). Under
that rule, a defendant is to be permitted to withdraw a
guilty plea if he shows a ‘“‘fair and just reason’”’ for doing
SO.

In opposing petitioner’s motion to withdraw his plea,
the Government acknowledged that it was not permitted
to recommend more than a cne-year jail term under the
plea agreement. Furthermore, the Government did not
suggest that the only reasonable interpretation to be given
to its own language—“‘at least one year’’--was precisely
as petitioner contended and as any other reasonable person
should have interpreted that language. Rather, the Gov-
ernment, conceding that those words were “‘ill-chosen,”
attempted to belittle the dispute as ‘‘one of semantics”
and pointed out that it had offered to delete that ill-chosen
language from its sentencing memorandum. The Govern-

ment asserted that its inclusion of that language ‘‘should
not be seen for something it was not.”” As the Government
stated, it “did not intend to breach the agreement or ask
for a higher sentence” by using the words ‘‘at least one
year’’ in its sentencing memorandum. The Government also
asserted that it would be prejudiced if petitioner were
permitted to withdraw his plea.

Apparently agreeing with the Government that the Gov-
ernment’s post hoc statement of its subjective intent in
using the language ‘“‘at least one year’ was decisive of
petitioner’s right to withdraw his plea at that point, the
District Court, expressly taking into account the Govern-
ment’s “‘intentions’”’ as articulated after the sentencing
memorandum was filed and after petitioner had moved to
withdraw his guilty plea, stated at the hearing on the
withdrawal motion that

in a certain sense [petitioner’s argument] is a
semantic argument because if [the Government]
said [the petitioner] should be sentenced to a
prison term of one year it amounts, I think, to
the same thing if you say “at least one year.”
I think [the language ‘“‘at least one year’’] ac-
knowledges that while [the Government] can’t
recommend more, [the Government] is going to
recommend one year. That is what I believe and
that is the way I interpreted it ....

App. D, 28a.

With respect to the remedy of withdrawal sought by
petitioner, the District Court expressed the view that ‘‘at
best [petitioner is] entitled to sentencing before a different
judge without ...the word[s] ‘at least’, in the [sentencing]
memorandum before the judge.’’ He went on to state his
view that Santobello v. New York, 404 U.S. 257 (1971),
“doesn’t say—none of those cases say that, the Ninth Cir-
cuit doesn’t say that you are entitled to withdraw the
plea.”” App. D, 27a. The District Court did not discuss the

Government’s prejudice argument. After denying
petitioner’s Rule 32(d) motion, the court proceeded at that
same hearing to sentence petitioner to imprisonment for
two years, the execution of which was stayed on the con-
dition that petitioner serve six months in a community
treatment center. The court also imposed a fine cf
$300,000, ordered petitioner to perform 1,000 hours of
community service and placed petitioner on probation for
five years. App. E., 30a.

In the Court of Appeals, the Government once again
did not defend its use of the language ‘‘at least one year.”’
Nor did the Government expressly take the position that
petitioner’s interpretation of that language was the only
reasonable interpretation that language would bear. In-
stead, the Government observed:

By the use of such a term, the district court
found that government did not intend to breach
the agreement or ask for a higher sentence. The
use of the words ‘‘at least’’ simply were not
viewed by the district court as seeking a sentence
greater than one year....

Br. of the United States, at 19. In short, the Government
took the position that it had not intended to breach the
agreement and that the District Court had concluded as
much.

With regard to the remedy issue, the Government ar-
gued to the Ninth Circuit that even if the Government
had violated the plea agreement by its use of the language
“at least one year,’’ petitioner would in any event only
be entitled to specific performance by the Government
rather than a right to withdraw his plea. Br. of United
States, at 21. Under the Government’s submission, it ap-
parently viewed its offer to withdraw the words “‘at least’’
as constituting post hoc ‘‘specific performance”’ sufficient
to override petitioner’s right to withdraw his plea and
stand trial. The Government also renewed its contention,

unaddressed by the District Court, that allowing petitioner
to withdraw his plea would result in prejudice to the Gov-
ernment.

The Court of Appeals, in a memorandum opinion issued
on October 11, 1989, concluded that the words ‘“‘at least
one year’ were in “‘substantial compliance with the terms
of the [plea] agreement’”’ and that the ‘‘recommendation’’
of the Assistant United States Attorney (“AUSA’’) “as
modified orally prior to sentencing did not violate the plea
agreement.’’ App. A, 10a-lla. In apparent recognition of
the force of petitioner’s argument in his Petition for Re-
hearing that anything less than literal performance by the
Government of its obligations under a plea agreement
would not suffice to sustain a conviction based upon a plea
bargain, e.g., United States v. Benchimol, 738 F.2d 1001,
1004 (9th Cir. 1984) (Wallace, J., dissenting) (‘‘performance
of a plea bargain requires the government to convey the
promised recommendation to the sentencing judge without
qualification’’), rev'd mem., 471 U.S. 453 (1985), the Court
of Appeals issued an order on January 23, 1990 in which
it struck the “substantial compliance’”’ language from its
initial opinion and inserted in its place as follows:

Thus, the prosecutor made clear in his statement
to the court prior to sentencing that the govern-
ment intended to rely on the terms of the plea
agreement. The district court construed the pros-
ecutor’s recommendation, as clarified by his oral
statements, as being in compliance with the terms
of the plea agreement.

App. B, 12a-13a. Noticeably missing from this statement
or the balance of the Ninth Circuit’s opinion is any as-
sertion that the language ‘“‘at least one year’’ did not mean
what petitioner said it must mean or, correspondingly, that
the Government had not in fact breached its promise by
the use of the language ‘‘at least one year” in its sent-
encing memorandum.

In rewriting its prior conclusion, the Court of Appeals
deleted the ‘‘as modified by’’ language from its October
11 opinion and stated:

“Good faith disputes of the parties as to the
terms of a plea agreement are to be resolved by
the district court in which the plea was originally
submitted.”” United States v. Bornstein, 623 F.2d
1327, 1330 (9th Cir. 1980). The district court fully
explored the intent of the parties concerning the
terms of the plea agreement before pronouncing
sentence. The district court concluded that under
the terms of the plea agreement the prosecutor
could not recommend more than one year, but
was free to argue that the sentence should not
be less than one year. The district court’s inter-
pretation of the intent of the parties was not
clearly erroneous.

App. B, 13a. Once again, the Court of Appeals failed to
contradict in any way petitioner’s assertion that as of the
filing of the Government’s sentencing memorandum, the
plain language of that memorandum constituted a breach
of the plea agreement. In essence, the Court of Appeals
deferred to the District Court’s interpretation of the ‘‘in-
tent’’ of the parties regarding the plea agreement without
itself confronting the inescapable conclusion that the Gov-
ernment’s use of the language ‘“‘at least one year’ con-
stituted a material breach of the Government’s promise
not to recommend a sentence of more than one year.

B. Statement of Facts Relevant to the Accessory After
the Fact Questions

Petitioner pled guilty to three counts of violating 18
U.S.C. §3 as an accessory after the fact to violations by
his company and an employee of his company of 18
U.S.C. § 1001 (submitting a false certification to the gov-
ernment) and 18 U.S.C. § 287 (presenting false claims for
payment). The criminal information charging those offen-

10

ses alleged that ‘‘on or about’’ three specific dates—April
9, 1985, April 4, 1986 and March 20, 1986—CAC and its
employee had violated 18 U.S.C. §§ 287 & 1001. App. F,
35a-38a. The information also alleged as to petitioner that
“Talt said time and place, [petitioner] received, relieved,
comforted and assisted [the other defendants] in order to
hinder and prevent [their] apprehension, trial and punish-
ment in violation of 18 U.S.C. § 3.” App. F, 35a-38a. Thus,
on its face the information charged petitioner as an ac-
cessory after the fact on the basis of his alleged commission
of acts occurring at the same time as the underlying sub-
stantive offenses for which the other defendants were
charged.

Petitioner’s plea was taken on May 9, 1988 at the same
hearing at which CAC and its employee pled guilty as
principals to the underlying substantive offenses. At that
hearing, petitioner’s counsel made clear to the court that
petitioner was pleading only to being an accessory after
the fact. See Transcript of May 9, 1988 Hearing, App. H,
53a-54a. After accepting the defendants’ pleas, the District
Court, attempting to fulfill its responsibility under Fed. R.
Crim. P. 1i(f), asked the AUSA to set forth the factual
basis for the vleas. The AUSA devoted most of his state-
ment of facts to those supporting the pleas of CAC and
its employee to the substantive offenses. At the outset,
he stated that the offenses involved in the plea were part
of a conspiracy which was “‘active during the time period
of about at least 1984 and ’85 through October 31st, 1987.”’
With respect to the facts he thought to establish a basis
for petitioner’s plea to accessory after the fact to violations
of 18 U.S.C. § 1001, the AUSA stated only that petitioner

knew what was going on at the time and did
nothing to stop this particular pattern; indeed,
[his employees were] assisted by lack of action
and lack of intent to put an end to this particular
path and, therefore, in the government’s view,
could be found guilty of 18 USC Section 3 in

1]

conjunction with the false statement [alleged in
Count Two of the Information].

App. H, 63a (emphasis added). The AUSA relied on that
same factual assertion to support the Government’s case
against petitioner under Counts Three and Five. App. H,
64a.

Following the AUSA’s statement, petitioner’s counsel
stated to the court that petitioner learned of the misdeeds
of the other CAC employees ‘‘in early 1986 [and] failed
to bring them to the attention of the authorities ....”
On that basis, counsel advised the court of his legal con-
clusion that a factual basis existed to convict petitioner
for violating 18 U.S.C. § 3. App. H, 66a.

The District Court then asked the AUSA whether he
believed the facts as elaborated upon by petitioner’s counsel
constituted a violation of 18 U.S.C. §3. After petitioner’s
counsel made clear that the gravamen of petitioner’s of-
fenses was his failure ‘to come forward to authorities”
upon learning of the misconduct of his employee, the AUSA

‘At the May 9, 1988 hearing, respective counsel for all three
defendants also jointly submitted a written paper entitled ‘‘Defendants’
Factual] Basis for Guilty Plea to Information.’’ The statements in that
paper regarding the factual basis for petitioner’s plea were consistent
with the discussion of the facts at the May hearing. The relevant
paragraph reads as follows:

In approximately January 1986 and later, Mr. Strube
learned from other officers of CAC who had primary re-
sponsibility for the U.S. Government contracting business
that CAC had supplied ‘‘newly manufactured material” to
the government in connection with certain ‘selector set”’
contracts even though the contract specifications called for
the material to be “new, unused surplus.’’ Further, Mr.
Strube learned si that time that certifications had been
submitted to the government by CAC personne! which falsely
affirmed that the product supplied was “‘new, unused sur-
plus,” when, as Mr. Strube learned after the fact, the prod-
uct was “newly manufactured”’ material. (This applies to
the contracts referred to in counts two, three and five of
the Information.)

12

stated his belief that those facts supported a violation of
§ 3. App. H, 68a. The District Court accepted this proffer
as a sufficient factual basis for a violation of 18 U.S.C. § 3.
App. H, 69a.

On appeal, petitioner contended that the District Court
had failed to establish a factual basis for his guilty plea
as required by Rule 11(f) because it had ‘‘received abso-
lutely no facts whatsoever to demonstrate that [petitioner]
ever committed an affirmative act’’ to assist CAC or its
employee in concealing their violations. Reviewing this is-
sue de novo, the Court of Appeals acknowledged that, to
establish a factual basis for a violation of 18 U.S.C. § 3,
the District Court must have had a basis for concluding:
(1) that the underlying offense occurred; (2) that petitioner
had knowledge thereof; and (3) that petitioner comforted
or assisted the offender ‘in order to hinder or prevent
his apprehension, trial or punishment.” Noting that
petitioner had conceded the first two elements, the Court
of Appeals found that petitioner had committed the fol-
lowing acts which that court viewed as ‘“‘affirmative’’:

— petitioner ‘concealed from the government the
fact that his employees were continuing to file
false claims’’;

— petitioner ‘“‘permitted his employees to con-
tinue to file false claims”;

— petitioner allowed ‘‘the pattern of presenting
false claims” to continue with his knowledge;
and

— petitioner provided a “safe harbor for the
criminal action and conceal[ed] their ongoing
crimes for personal or corporate profit.”’

On the basis of its review of the record, the Court of
Appeals concluded that petitioner ‘‘comforted and assisted

13

his employees in continuing to file false claims after he
had knowledge of their prior illegal activity.’”” App. C, 21a.

It is beyond dispute that under the facts as found by
the Ninth Circuit, the acts of petitioner relied upon by
that court to support petitioner’s conviction for violating
§ 3 were committed during the commission of the under-
lying substantive offenses. Not so much as a single act
was found by the Court of Appeals to have been committed
which could have been committed by petitioner after the
completion of the underlying offenses. Because petitioner
pled guilty to three counts of being an accessory after the
fact, the Court of Appeals necessarily, if unwittingly, found
that assistance rendered during the commission of a crime
constitutes a violation of 18 U.S.C. §3.

REASONS FOR GRANTING THE WRIT

As demonstrated below, the questions upon which
petitioner seeks review are frequently recurring and have
divided the lower federal courts. Thus, they warrant plen-
ary review by the Court in this case. In any event, the
conviction cannot stand because the conduct charged is not,
as a matter of law, made punishable by the provision of
the United States Code for which petitioner was convicted.

A. The Question Whether the Government Must Comply
with the Literal Terms of a Plea Agreement Is an
Important and Recurring Question Upon Which the
Courts of Appeals Are Divided

In the courts below, the Government—with a cavalier
flair—characterized petitioner’s demand to withdraw his
guilty plea prior to his sentencing as a “dispute over se-
mantics.’”’ That characterization is not inapt; the Govern-
ment’s cavalier attitude towards petitioner’s claim,
however, betrays the Government’s insensitivity to the
central importance of all language used in plea agree-

14

ments. In Santobello v. New York, 404 U.S., at 262, this
Court stated, as a constitutional imperative, that, ‘“‘when
a plea rests in any significant degree on a promise or
agreement of the prosecutor, so that it can be said to be
part of the inducement or consideration, such promise must
be fulfilled.” Promises are, of course, made through the
use of language.

In this case, the Government itself has never directly
disputed petitioner’s contention that the language ‘“‘at least
one year’’ is susceptible to only one reasonable interpre-
tation—that the AUSA was communicating to the District
Court the message that the Government would be pleased
to see a sentence of greater than one year imposed on
petitioner. Nor did the Court of Appeals contradict
petitioner’s interpretation of that language which, read in
isolation and in the context of the paragraph of the sent-
encing memorandum in which it appeared, see p. 5 supra,
cannot reasonably be read as other than a breach of the
Government’s written promise regarding possible sen-
tences it would not recommend to the District Court.

Following the teaching of Santobello, the Courts of
Appeals for the Third, Fifth, Seventh and Eleventh Cir-
cuits have insisted that the Government abide by the literal
terms of a plea agreement. Thus, in United States v.
Crusco, 536 F.2d 21, 26 (8d Cir. 1976), the Third Circuit
ruled that the District Court had erred by failing to allow
the defendant to withdraw his plea after the Government
failed strictly to adhere to the terms of a plea agreement.’
In that case, the Government had agreed to take no po-
sition on sentencing. Jd., at 23. At the sentencing hearing,
the Government expressly stated that it was “leaving the
sentencing decision to the judge,” but then proceeded to
portray the defendant as an important figure in organized

* The court also ruled in the alternative that the defendant justifiably
misunderstood the maximum sentence to which he would be subject by
pleading guilty. Crusco, 536 F.2d, at 24-25.

15

crime and a danger to the community. Jd., at 25. The
Court of Appeals ruled that this characterization of the
defendant was ‘‘a transparent effort to influence the se-
verity of [the defendant’s] sentence”’ in violation of the
Government’s promise to take “‘no position’’ on sentencing.
Id., at 26. The Third Circuit concluded:

The Government, therefore, must also clearly un-
derstand the scope and depth of its commitment
and the need for precision in plea bargaining. it
may reach port in the plea bargaining process
but founder there because of careless or loose
language in its commitment. Once it makes a
promise, Santobello requires strict adherence.

Id. See also United States v. Moscahlaidis, 868 F.2d 1357,
1361-63 (8d Cir. 1989) (comments about character by Gov-
ernment violated agreement to take no position regarding
whether to impose custodial sentence).

The Fifth Circuit has similarly interpreted the require-
ments of Santobello. In United States v. Grandinetti, 564
F.2d 723 (5th Cir. 1977), the Government had agreed, inter
alia, to make certain sentencing recommendations at the
defendant’s probation revocation hearing. Id., at 725. At
that hearing, however, the Government stated that it had
‘“‘very serious problems”’ with the promised sentencing rec-
ommendation, and that it was unsure of the “‘legality’”’ and
“propriety” of the sentencing agreement. Jd. The Fifth
Circuit considered ‘‘simply whether the plea bargain agree-
ment has been breached or not—irrespective of prosecu-
torial justifications for the failure in performance.” Jd., at
727. On this basis, that court ruled that the Government
had violated the plea agreement because it not only was
“an unpersuasive advocate’’® for the agreement but had,

In United States v. Benchimol, 471 U.S. 453 (1985), this Court held
that when the Government agrees to make a sentencing recommen-
dation, it is under no obligation to do so “enthusiastically.’’ In so

16

“in effect, argued against it.’”’ Id.; see also United States
v. Avery, 450 F.2d 214, 216 (5th Cir. 1980) (noting that
the Government must “adhere strictly to the terms and
conditions of the plea agreement” but ruling that the Gov-
ernment did not violate agreement by providing infor-
mation on defendant to the probation officer).

A like approach also has been adopted by the Seventh
Circuit. In United States v. Bowler, 585 F.2d 851 (7th Cir.
1978), the Government had promised that its recommen-
dation ‘‘may be reduced, based upon” its assessment of
the defendant’s health, his cooperation, and the Antitrust
Division’s sentencing guidelines under which, in some cir-
cumstances, fines could be substituted for imprisonment.
Id., at 853, 854. The court found that this constituted a
promise by the Government “to undertake a good faith
analysis’ of these factors in formulating its sentencing
recommendation. The court determined that such consid-
erations by the Government must be reflected in the re-
cord of the lower court proceedings. Jd., at 855. Ruling
that the Government must be held to ‘“{s}trict fulfillment
of prosecutorial promises,”’ id., at 853, and finding no
consideration of the defendant’s health or of the Antitrust
Division’s guidelines reflected in the Government’s pres-
entation to the District Court, the Court of Appeals ruled
that the Government had breached the plea agreement.
Id. Underlying this holding was the recognition by the

holding, the Court expressly distinguished Grandinetti. Id., at 456. On
its facts, Benchimol could have presented a challenge to the Govern-
ment’s fulfillment of its obligations under the plea agreement similar
to that advanced by petitioner. In that case, the Government's sent-
encing memorandum had incorrectly stated that the Government wouid
remain silent as to the sentence, whereas the Government had agreed
to recommend probation with restitution. The defendant’s own counse!
pointed out that mistake at the sentencing hearing and corrected it.
Five years later, the defendant brought a collateral attack on his con-
viction in which he once again made no argument that at the time of
his sentencing he should have been entitled to withdraw his plea based
upon the Government’s literal breach of its plea agreement.

17

Seventh Circuit that “to protect the plea bargaining
defendant from overreaching by the prosecutor and to in-
sure the integrity of the plea bargaining process, the ‘most
meticulous standards of both promise and performance
must be met by prosecutors engaging in plea bargaining.’ ”’
Id., at 854, quoting-Cerreale v. United States, 479 F.2d
944, 947 (1st Cir. 1973).

The Eleventh Circuit has required similar strict com-
pliance by the Government with all promises it makes to
induce a guilty plea, even if some of those promises are
made orally and are not reflected in the written plea agree-
ment. In re Arnett, 804 F.2d 1200 (11th Cir. 1986). In
Arnett, the “forfeiture’’ provision of the written plea
agreement indicated that it was ‘‘the entire agreement”
between the parties; it stated only that the defendant
agreed to forfeit $3,000 to the Government. Jd., at 1202.
Furthermore, at the plea hearing the defendant stated that
this written agreement contained all promises made by the
Government. Jd. The Government also had orally stated
that it had ‘‘no interest”’ in the defendant’s farm. Jd. Find-
ing that this oral statement constituted a part of the in-
ducement to plead guilty and ruling that Santobello requires
“that the government adhere strictly to the terms of plea
agreements,’ the court held that the government had
breached the agreement by attempting to gain forfeiture
of the defendant’s farm. Jd., at 1204.

It is evident from these cases that the decision below
cannot be reconciled with those of the Courts of Appeals
which have insisted that the Government must be in literal
compliance with all material terms of a plea bargain agree-
ment. This Court should grant review in this case in order
to establish uniformity on this important and frequently
recurring question.

18

B. The Court of Appeals’ Acceptance of the Govern-
ment’s Attempts to Cure Its Breach of the Plea
Agreement Deprived Petitioner of Due Process un-
der Santobello v. New York

In its initial opinion, the Court of Appeals made quite
clear that it was sustaining petitioner’s conviction on the
basis of its conclusion that, after petitioner had brought
his Rule 32(d) motion to withdraw his plea but before
sentencing, the Government had modified the sentencing
recommendation contained in its sentencing memorandum
so that the recommendation upon which petitioner was
sentenced was, in a temporal sense, consistent with the
Government’s promise in the plea agreement. As the court
stated, ‘[w]e agree with the district court that the pros-
ecutor’s recommendation as modified orally prior to the
sentencing did not violate the plea agreement.’’ App. A,
lla. (emphasis added). This conclusion is well supported
by the Government’s own position before the courts below.
For example, in its opposition to petitioner’s motion to
withdraw his plea, the Government stated that “‘a one year
jail term is the maximum [the Government] is able to and
does ask for’ and relied on its offer ‘‘to delete those two
words [‘‘at least’’] from the Sentencing Memorandum.”’

On rehearing, the Court of Appeals appeared to retreat
from the words “as modified orally.” Where those words
had previously appeared, the court substituted language
the gist of which is that this was a problem for the District
Court to resolve and that that court’s “interpretation of
the intent of the parties was not clearly erroneous.’’ App.
C, 24a. Elsewhere in its modified opinion, however, the
Court of Appeals indicated that its affirmance was based
upon the fact that ‘(t]he district court construed the pros-
ecutor’s recommendation, as clarified by his oral state-
ments, as being in compliance with the terms of the plea
agreement.”’ App. C, 23a.

19

There is little doubt that the initial decision of the Court
of Appeals, on its face, constituted a flagrant violation of
Santobello v. New York. In Santobello, an inadvertent
breach of a plea agreement had resulted from a change
in personnel, with the “new’’ prosecutor making a sent-
encing recommendation that violated a plea agreement on
sentence recommendation that had been reached by the
former prosecutor and the defendant. In this Court, all
seven of the Justices participating in the decision were of
the view that whether the sentencing judge was or was
not influenced by the prosecutor’s recommendation was
irrelevant to whether a violation of due process had oc-
curred. 404 U.S., at 262.

The necessary holding of Santobdello is that the Govern-
ment cannot “‘cure’’ its violation of a plea agreement by
subsequently modifying a sentencing recommendation made
in breach of that agreement. This is so because if the
Government could qualify or modify its formal, written
recommendation, testing the constitutionality of the con-
viction would require an appellate court to determine
whether the trial court was influenced by the initial,
breaching recommendation.

Viewing the concurring opinion of Justice Douglas in
Santobello as controlling the holding of Santobello,
petitioner’s contention becomes even more sharply focused.
As the “glossator,”” see McKoy v. North Carolina, 110 S.
Ct. 1227, 1243-44 n.3 (1990) (Scalia, J., dissenting), Justice
Douglas expressed his view that as a matter of due proc-
ess, a defendant has a presumptive right to withdraw his
plea upon the failure of the Government to honor its plea
bargain. 404 U.S., at 267. Justice Marshall, joined by Jus-
tices Brennan and Stewart, agreed that ‘“‘where the
defendant presents a reason for vacating his plea and the
government has not relied on the plea to its disadvantage,
the plea may be vacated and the right to trial regained,
at least where the motion to vacate is made prior to sen-

20

tence and judgment.” 404 U.S., at 267-68 (Brennan, J.,
concurring in part and dissenting in part).

Under the opinions issued in Santobello, it is abundantly
clear that the Government’s failure to live up to its prom-
ise *¢-erding its sentencing recommendation gives rise to
a presumption in favor of the defendant’s ability to with-
draw his plea and reclaim his right to a trial if he moves
promptly to do so. Any other understanding of Santobello
would destroy its holding. In this case, the Court of
Appeals beat a hasty retreat, but the ‘“‘as clarified” lan-
guage chosen on rehearing cannot be reconciled with San-
tobello. It may be that the AUSA in this case adequately
“clarified” his personal, subjective intent in using the
words “‘at least.”” The Government may not, however, put
the sentencing court in the position of being exposed to
an illicit, breaching sentence recommendation. In short,
under Santobello the AUSA had to get it right the first
time.

Whether viewed through the prism of due process, an
aspect of this Court’s supervisory power over the federal
courts, see id., at 266-67 (Douglas, J., concurring), or an
aspect of the proper interpretation of Rule 32(d) of the
Federal Rules of Criminal Procedure,‘ this Court should
grant certiorari to clarify for all participants in the plea
bargaining process whether prosecutors may, with impun-
ity, send to the sentencing judge the very signal which
the pleading defendant bargained to avoid and then pre-
vent withdrawal through the judicial legerdemain that oc-
curred here.

‘Under Rule 32(d), a defendant is permitted to withdraw a guiity
plea simply by showing a ‘“‘fair and just reason’’ for his request. Under
the decision below, the Court of Appeals has construed and applied
Rule 32(d) in an unconstitutional fashion, thereby providing a separate
basis for this Court’s grant of certiorari in this case.

21

C. The Court of Appeals’ Judgment Obliterates the Dis-
tinction Between the Accessory After the Fact Stat-
ute and the Aider and Abettor Statute and Conflicts
With Other Federal Court Decisions’

Many federal courts have held that to be guilty of vi-
olating 18 U.S.C. § 3, a defendant must comfort or assist
the offender after the commission of the underlying crime.
If, however, a defendant rendered assistance to the prin-
cipal offender during the commission of an offense, the
defendant must be considered an aider and abettor in vi-
olation of 18 U.S.C. §2, rather than an accessory after
the fact in violation of 18 U.S.C. § 3.

The fundamental point of law at issue has been artic-
ulated many times. In United States v. Barlow, 470 F.2d
1245 (D.C. Cir. 1972), the defendant was charged and con-
victed as an aider and abettor to the crime of theft of
government property in violation of 18 U.S.C. § 641. On

* As indicated in the Statement of Facts, supra, counsel for petitioner
and the Government, as well as the Ninth Circuit, considered the ques-
tion whether petitioner’s conviction for violation of 18 U.S.C. § 3 should
stand primarily as involving whether there was a factual basis in the
record to show that petitioner had committed an “‘affirmative’’ act as
distinct from merely omitting to report violations of federal law to
appropriate authorities upon his discovery of them. In the Ninth Circuit,
petitioner and the Government disagreed over how early in the con-
spiracy alleged in Count One of the information (not involving petitioner)
petitioner became aware of the misconduct of other CAC employees.
Neither petitioner nor the Government, however, noted the fatal defect
in the criminal information. Petitioner acknowledges that Question 3
was not, in terms, sharply framed by the parties in the Court of Appeals,
in part because it arose only after the Court of Appeals determined,
contrary to petitioner’s submission, that the record supported the prop-
osition—otherwise necessary to sustain his conviction—that petitioner
committed an ‘‘affirmative’’ act. While this Court has jurisdiction over
Question 3, petitioner recognizes that plenary consideration of it in this
posture may be undesirable and therefore asks the Court in part D
below to vacate the judgment and remand the case for reconsideration
in light of the defect in the criminal information.

22

appeal, he argued that the evidence was insufficient to
show that he aided and abetted the larceny and that the
most the evidence showed was that he was an accessory
after the fact to the larceny. The court disagreed with
that factual contention but went on to explain the dis-
tinction at issue in this case:

The gist of being an accessory after the fact lies
essentially in obstructing justice by rendering as-
sistance to hinder or prevent the arrest of the
offender after he has committed the crime... .
The very definition of the crime also requires that
the felony not be in progress when the assistance
is rendered... .

Id., at 1252-53.

In United States v. Balano, 618 F.2d. 624 (10th Cir.
1979), the defendant appealed his conviction as an acces-
sory after the fact to interstate transportation of stolen
coins by two co-defendants. The evidence at trial showed
that after the co-defendants had stolen the coins, they had
crossed a state line and had come to the defendant’s office,
where he had provided the eo-defendants with clothes, a
suitcase, a bathroom and a razor so that one of the co-
defendants could change his appearance. The defendant
argued on appeal that the two co-defendants were still in
the escape phase of their crime when they came to his
office and thus he could only be convicted for violation of
18 U.S.C. § 2.

In considering that claim, the Tenth Circuit explained
the “‘escape phase”’ doctrine as having been ‘“‘developed to
deal with those who are entangled in the consummation
of the crime itself.... In contrast, accessories after the
fact ‘opstruct justice by rendering assistance to hinder or
prevent the arrest of the offender after he has committed
the crime.’ ”’ Id. at 631, quoting United States v. Barlow,
470 F.2d at 1253. Upon examination of the record, the
Tenth Circuit concluded that the ‘escape’ phase of the

23

co-defendants’ crime had come to an end by the time they
reached the defendant’s office and on that basis affirmed
the conviction. In sharp contrast, the Court of Appeals
here found that petitioner had assisted the company and
its employee during the commission of their offenses, but
nevertheless sustained petitioner’s conviction as an acces-
sory after the fact.

Other courts have applied this rule to overturn convic-
tions for being an accessory after the fact where those
convictions were based on assistance given during the com-
mission of a crime. In United States v. Nava-Maldonado,
566 F. Supp. 1436 (D. Nev. 1983), the defendant had been
arrested while transporting illegal aliens. He was ulti-
mately convicted at trial of being an accessory after the
fact to the transportation of illegal aliens. After verdict,
he moved for a judgment of acquittal. The court granted
the motion, holding that the defendant could not be con-
victed of being an accessory after the fact to transporting
illegal aliens because the substantive crime of transporting
illegal aliens was not complete at the time the acts charged
against him were committed. ‘One who is an accessory
after the fact assists an offender after the latter has al-
ready committed a crime; the assistance is for the purpose
of hindering or preventing the apprehension or punishment
of the offender. The assistance given by the accessory after
the fact is not in connection with the commission of the
crime by the offender.” /d., at 1438. In this case, ‘“‘[t]he
prerequisite that the substantive crime already have been
committed was not satisfied.’”’ Jd., at 1439. The facts as
found by the Court of Appeals establish that petitioner’s
acts upon which the plea was taken all occurred before the
completion of the underlying offenses.

The Third Circuit has also held that the offense of ac-
cessory after the fact can occur only after the substantive
crime has been committed. See Government of Virgin Is-
lands v. Aquino, 378 F.2d 540, 553 (3d. Cir. 1967). Being
an accessory after the fact “‘does not relate to assistance

ee | hh

24

in the commission of the crime, but rather to assistance
rendered the offender in order to hinder or prevent his
apprehension or punishment after he has already commit-
ted an offense.” Id. See also United States v. McCoy, 721
F.2d 473, 475 (4th Cir. 1983). Other cases make clear that
assistance rendered during the commission of a crime is
a violation of 18 U.S.C §2 rather than a violation of 18
U.S.C. § 3. See, e.g., United States v. York, 578 F.2d 1036
(5th Cir. 1978); United States v. Willis, 559 F.2d 443 (5th
Cir. 1977); United States v. Jarboe, 374 F. Supp. 310 (W.D.
Mo. 1974), affd, 513 F.2d 33 (8th Cir. 1975). In contrast,
the Court of Appeals affirmed petitioner’s conviction on
the basis of acts of, or assistance provided by, petitioner
while CAC employees were allegedly committing the un-
derlying substantive offenses.

The reasoning and results reached in other cases in-
volving the principle that aid rendered after the commis-
sion of an offense does not violate 18 U.S.C. § 2 are equally
called into question by the decision in the case at bar. In
one such case, the defendant had been convicted of aiding

-and abetting his girlfriend, an employee of a federally

insured savings and loan association, in her embezzlement
of $19,575. See United States v. Ferraro, 414 F.2d 802
(5th Cir. 1969). On the particular day in question, the
girlfriend carried away the money from the bank. The
defendant picked her up in his car and drove to their home,
where she told him what she had done. They then planned
an escape. There was no evidence to indicate, however,
that the defendant had known or planned with his girl-
friend to steal the money. On appeal, the court squarely
held that the evidence was insufficient to find the
defendant guilty of aiding and abetting; at most, he could
have been convicted as an accessory after the fact, because
the underlying offense was complete when the girlfriend
walked out of the bank with the money in her possession.
Id., at 804.

25

In a similar case, Roberts v. United States, 416 F.2d
1216 (5th Cir. 1969), the defendant was convicted of aiding
and abetting the substantive offense of passing a coun-
terfeit $20 bill at a particular drug store. The defendant
and her friend had gone into the drug store and the friend,
who had paid with a counterfeit bill, was arrested im-
mediately. At that point, the defendant took the rest of
the counterfeit bills from her friend, left the drug store
and burned them. On the basis of this evidence, she was
convicted as an aider and abettor. On appeal, the Fifth
Circuit held that a person cannot aid or abet a crime which
has already been committed. In that case, the passing of
the counterfeit bill had been completed at the time the
defendant destroyed the other counterfeit money. While
the defendant could have been charged and possibly con-
victed as an accessory after the fact, she could not be
convicted as an aider and abettor. Jd., at 1221. The Court
of Appeals in this case reached the opposite result by
upholding petitioner’s conviction as an accessory after the
fact on the basis of a factual record that could arguably
support only a conviction for aiding and abetting. Under
this decision, 18 U.S.C. §§ 2 and 3 are rendered essentially
fungible; so long as the evidence supports a conviction
under either statute, the fact that the Government charged
under the wrong statute becomes legally irrelevant and a
defendant may be convicted of an offense which he did
not in fact commit.

By its determination that assistance rendered during the
commission of an underlying substantive offense violates
18 U.S.C. §3, the Court of Appeals has reached a result
that conflicts with other federal court decisions holding
that an accessory after the fact must render his assistance
after the commission of the underlying crime.

26

D. This Court Should Grant the Writ, Vacate the Judg-
ment of the Court of Appeals and Remand for Re-
consideration in Light of the Fact that the Record
Discloses that Petitioner Pleaded Guilty to Counts
of a Criminal Information That Did Not Charge Of-
feuses Punishable Under the United States Code

Upon its independent examination of the record in a
federal] criminal case in which the Solicitor General ac-
knowledges that reversible error exists, this Court not in-
frequently has granted a certiorari petition filed by the
defendant, vacated the judgment of the Court of Appeals
and remanded the case for reconsideration in light of the
Government’s present position. See, e.g., Mariscal v. United
States, 449 U.S. 405 (1981). Petitioner respectfully re-
quests that the Court follow that practice in this case and
has separately asked the Solicitor General to join in this
request.®

In Watkins v. United States, 429 U.S. 1034 (1977), this
Court, in reviewing the certiorari petition, noticed sua
sponte that the conviction for violation of 18 U.S.C. § 473
(selling forged government obligations) might be precluded
by a prior decision of this Court, Prussian v. United States,
282 U.S. 675 (1931). In Prussian, the Court had held that
an endorsement on a government obligation was not itself
an obligation of the United States, and the petitioner in
Watkins had been convicted upon the theory that he had
sold genuine United States Savings Bonds which bore
forged endorsements. Id., at 678.

In responding to this Court’s request that the parties
address this question, Solicitor General Bork took the po-
sition on the merits that the conviction could not stand.

* By letter of April 20, 1990 to the Solicitor General, ten copies of
which have been lodged with the Clerk upon the filing of this petition,
petitioner has expressly requested that the Solicitor General acknow]-
edge to this Court that petitioner’s conviction cannot stand on the basis
of the record and applicable law.

a

27

In doing so, he acknowledged that the petitioner had not
raised this argument in the Court of Appeals or in his
certiorari petition. The Solicitor General nevertheless rec-
ommended that the petition be granted and that the judg-
ment be reversed and the indictment dismissed. As he put
it, ‘there seems little point in requiring petitioner to make
these arguments in a proceeding under 28 U.S.C. 2255,
and we therefore believe that the error should be noticed
under Rule 40(1XdX2) [now Rule 24.1.(a)] of the Rules of
this Court.’”’

In the case at bar, as in Watkins, the petitioner has
been convicted of violating a provision of Title 18 which,
on the facts as charged in the information, he could not
have violated. All three pertinent counts of the criminal
information in this case charged petitioner with violating
18 U.S.C. §3 on the basis of acts committed “‘[a]t said
time and place’’ as the underlying substantive offenses.
As discussed more fully in part C above, one cannot be
an accessory after the fact of a crime unless one has com-
mitted acts after that crime. Furthermore, and as set forth
in part B of the Statement of the Facts above, the record
in this case is consistent with the charge in the infor-
mation.

Nor does the fact that petitioner’s conviction comes by
a plea of guilty distinguish this case from Watkins. For
example, in Carter v. United States, 350 U.S. 928 (1956),
the petitioner had pied guilty to wilful attempts to evade

7 For the convenience of the Court, ten copies of the Solicitor Gen-
eral’s Supplemental Memorandum in Watkins, which is not available in
the Court’s archives because Watkins was here on the IFP docket,
have been lodged with the Clerk upon the filing of this petition. Under
Rule 24.1.(a), the Court may notice “plain error’ in cases otherwise
properly before it even if the parties have not comprehended that error
at the certiorari stage (or previously).

28

the payment of federal income taxes.* Over three years
later, he filed a collateral attack on that plea, claiming
that he had not intentionally violated the law and that he
had denied any intent to violate the law when his plea
was originally taken. Mem. for United States, at 4. Al-
though the Government had prevailed in the lower courts,
the Solicitor General advised this Court that, based on the
Government’s review, the record permitted no conclusion
other than that the petitioner had in fact disavowed an
essential element of the offense—wilful intent—to which
he had pleaded. Jd., at 17. In Carter, the petitioner had
been perceived by the lower courts as using his Rule 32(d)
motion to escape prosecution altogether, but in this Court
the petitioner disavowed any such intent. Jd., at 19. In
sharp contrast, petitioner in the case at bar brought his
Rule 32(d) motion prior to sentencing for the very purpose
of reclaiming his right to a trial and putting the Govern-
ment to its proof on any offenses the Government was
prepared to charge and prosecute. This Court should act
to restore that fundamental constitutional right.

CONCLUSION

The Government failed to carry out its end of the plea
bargain, but insisted below that petitioner should be held
to his obligations under that agreement. Although that
dispute presents a question worthy of this Court’s review,
petitioner submits that there is an otherwise fatal defect
in his conviction that demands reversal of the judgment
of conviction.

* The facts in Carter are as taken from the Solicitor General’s mem-
orandum filed in that case on behalf of the United States in response
to the certiorari petition. For the convenience of the Court, ten copies
of that memorandum have been lodged with the Clerk upon the filing
of this petition.

29

April 20, 1990 Respectfully submitted,

THOMAS E. HOLLIDAY *LARRY L. SIMMS

GIBSON, DUNN & CRUTCHER
2029 Century Park East
Los Angeles, California 90067

Of Counsel:

JAMES C. DUDA
KIMBERLY S. MCGOVERN
GIBSON, DUNN & CRUTCHER

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

GIBSON, DUNN & CRUTCHER
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8558

RICHARD MARMARO

JAMES C. CHALFANT

McCAMBRIDGE, DEIXLER,
MARMARO & GOLDBERG

2029 Century Park East

Los Angeles, California 90067

(213) 277-2650

Attorneys for Petitioner

*Counsel of Record

APPENDIX

APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX
APPENDIX

APPENDICES
TABLE OF CONTENTS

POORER OEE HEHEHE TEETH HEHEHE HEHEHE HEHEHE HEHEHE EEE EES
eee eee eee eee ee eee ee eee eee eee ee eee eee eee ee eee ee ee eee
SOOTHER HEE EEE THEE HEHEHE HEHEHE EOE EEEES
SOOTHER EEE EEE HEHEHE HEHEHE HEHEHE EEE EEE HEE EEE EES
eee eee ee eee eee eee eee ee eee eee eee eee eee ee eee ee ee ee ee ee ee)
SOOPER REET EEE HEHEHE HHO OEE
TORRE HEHEHE EHH HEHEHE EEE HEHEHE EEE HEE EEES
eee eee eee eee ee eee eee ee eee ee eee eee eee ee ee eee ee ee ee eee ee

eee eee eee eee ee eee eee eee eee eee ee eee eee eee

FILED

la

APPENDIX A

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 88-5292
D.C. No. CR-88-0230-AWT-2

UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
v.
GORDON STRUBE,
Defendant-A ppellant.

OCT 11 1989

CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

A. Wallace Tashima, District Judge, Presiding

Argued and submitted October 5, 1989
San Francisco, California

Before: WALLACE, PREGERSON, ALARCON, Circuit

Judges.

* This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir.

R. 36-3.

2a

Gordon Strube appeals from the judgment entered fol-
lowing the denial of his motion to withdraw his guilty plea.
Strube seeks reversal on two grounds:

One. The district court failed to establish that there was
a factual basis for the plea of guilty.

Two. The district court abused its discretion in denying
the motion to withdraw the guilty plea because the record
shows that the government breached the plea agreement.

I

Gordon Strube founded Consolidated Aeronautics Cor-
poration (CAC) in 1956 and has acted as its president and
chief executive officer since its inception. CAC sold aircraft
parts to the United States Government during 1985 and
1986. In 1987, the United States Attorney’s office for the
Central District of California began a grand jury investi-
gation of CAC and four of its employees for violations of
18 U. S. C. §§3, 1001 and 287. ——

In March of 1988 Strube expressed to his attorney a
desire ‘‘to see whether I could voluntarily come forward
and plead guilty to some offense in order to prevent the
indictment of as many of my coileagues as possible.”’

On March 11, 1988, Strube and the codefendants en-
tered into a verbal plea agreement with the United States.
On March 25, 1988, the government filed a five-count in-
formation charging Strube, Ronald Guy and CAC with
conspiracy to defraud the United States, falsely certifying
“‘used, reconditioned and refurbished’”’ parts as ‘‘new, un-
used and unaltered surplus’ presenting false claims to the
government for those parts and making false statements
to the government.

A written plea agreement was executed on April 11,
1988. Strube agreed to plead guilty to counts two, three
and five of the information as an accessory after the fact.

3a

Count two of the information charges that on or about
April 15, 1985, Strube comforted and assisted his code-
fendants in submitted false certifications to the U.S. Gov-
ernment. Count three charges that on or about April 4,
1986 Strube comforted and assisted his codefendants in
presenting false claims for payment. Count five charges
that on or about March 20, 1986, Strube comforted and
assisted his codefendants in presenting false claims for
payment. Each count alleges that Strube hindered and
prevented the apprehension, trial and punishment of the
codefendants by failing to disclose what he knew of the
activity.

In exchange for the guilty pleas, the government agreed
that ‘‘no further criminal charges will be brought against
CAC or its employees.”’ In addition, the government prom-
ised Strube that it would ‘‘not recommend at the time of
sentencing a total period of incarceration of more than
one year.”’

On May 9, 1988 Strube pled guilty to counts two, three
and five. Before accepting the plea, the district court in-
quired of both parties in order to establish that there was
a factual basis for the plea. After engaging in a dialogue
with Strube, the court accepted the plea. Strube filed a
written factual basis for his plea on the same day.

In its sentencing memorandum filed July 20, 1988, the
government recommended that Strube be sentenced to “‘at
least one year”’ in prison. Strube filed a motion to with-
draw his guilty plea on August 8, 1988. Strube argued
that the government breached the plea agreement by ask-
ing the court to sentence him to ‘‘a minimum of one year
in prison”, despite ‘‘the prosecutor’s written commitment
to request a maximum of one year in prison’’ (emphasis
in original). Strube also claimed that there was not a suf-
ficient factual basis to support his plea of guilty.

The district court denied the motion on August 15, 1988,
stating that it was not influenced by whether the rec-

4a

ommendation was for ‘“‘at least’’ or for ‘‘not more than’’
one year. The court sentenced Strube to 2 years (the first
six months to be served in a community treatment center,
the remainder suspended), five years probation and a
$300,000 fine.

Strube timely appeals.

II

Strube contends that the district court erred in denying
his metion to withdraw his plea because there is insuffi-
cient factual basis to support his guilty plea as required
by Fed. R. Crim. P. 11(f). We have conducted an inde-
pendent review of the record to determine whether a fac-
tual basis for the plea existed as required by Rule 11(f).

At least a ‘‘minor investment of time and effort’ is
required to establish on the record that the defendant had
knowledge of the crime and that he understood the con-
sequences of his plea. United States v. Kamer, 781 F.2d
1380, 1385 (9th Cir. 1986), cert. denied, 479 U.S. 835
(1986). The record shows that the district court carefully
questioned Strube prior to accepting his plea. The court
asked Strube if he had read the document filed by his
attorney, entitled Defendants’ Factual Basis For Guilty
Plea To Information, before he signed it. The court also
asked Strube whether the facts set forth in the written
factual basis were accurate. Strube replied affirmatively
to both questions. In addition, the court required the pros-
ecutor to state the facts he was ready to prove if the case
went to trial.

The Defendants’ Factual Basis describes Strube’s in-
volvement in the filing of false claims in the following
language:

As President and Chairman of the Board of
the company, Mr. Strube was generally aware of

some of CAC’s contracts with the U.S. Govern-
ment during the relevant time period.

5a

In approximately January 1986 and later, Mr.
Strube learned from other officers of CAC who
had primary responsibility for the U.S. Govern-
ment contracting business that CAC had supplied
‘newly manufactured material’ to the government
in connection with certain ‘selector set’ contracts
even though the contract specifications called for
the material to be ‘new, unused surplus’. Further,
Mr. Strube learned at that time that certification
had been submitted to the government by CAC
personnel which falsely affirmed that the product
was ‘new, unused surplus,’ when, as Mr. Strube
learned after the fact, the product was ‘newly
manufactured’ material. (This applies to the con-
tracts referred to in counts two, three and five
of the Information.)

Having learned these facts, Mr. Strube, as
President and Chairman of the Board of CAC,
should have directed the responsible officers of
CAC to notify the government contracting officer
of the relevant facts. Mr. Strube acknowledges
that his failure to do so was illegal and he sub-
mits this as a factual basis for his guilty pleas
to counts two, three and five of the Information.

The court explained to Strube that a factual] basis must
exist before his plea could be accepted. The court then
instructed Strube that the prosecutor would ‘‘recite briefly
in the nature of an offer of proof the evidence that the
Government is ready to present if this case were to go
to trial as proof of the occurrence of the offenses charged
in this Information.’’ Strube was instructed “‘to listen care-
fully to Mr. Fahey’s statement because when he is through
with his representations, I will ask each defendant whether
or not you take issue with any representations made by
Mr. Fahey.”’

6a

After reciting facts showing that CAC employees filed
false claims regarding the parts they sold to the govern-
ment, the prosecutor stated to the court that he was ready
to prove that Strube ‘knew what was going on at the
time and did nothing to stop this particular pattern; in-
deed, assisted by lack of action and lack of intent to put
an end to this particular path and, therefore, in the Gov-
ernment’s view, could be found guilty of 18 USC Section
3 in conjunction with the false statement.”’

Strube’s attorney advised the court that he took ‘‘ex-
ception to the portion of the prosecutor’s offer of proof
that Strube knew that the information was false or par-
ticipated in filing false claims.” Strube’s attorney then
stated, however, that ‘‘we can make out a factual basis”.
The court was informed that the failure to report to the
government that he had learned that false statements had
been made by his employees “constitutes a violation of
Title 18 United States Code Section 3.’’ Thereafter, the
court announced that it was satisfied that a factual basis
existed and accepted Strube’s plea of guilty.

In this appeal, Strube contends that “the court received
absolutely no facts whatsoever to demonstrate that Strube
ever committed an affirmative act assisting Guy and Con-
solidated in concealing their violations. All parties present
labored under the mistaken assumption that mere silence
was sufficient to constitute a section 3 offense.’’

To establish a factual basis for a violation of 18 U.S.C.
§ 3 under Rule 11(f), the district court must be satisfied
(1) that the underlying offense occurred; (2) that the
defendant had knowledge thereof; and (3) that the
defendant comforted or assisted the offender ‘‘in order to
hinder or prevent his apprehension, trial or punishment.”
United States v. Scharf, 608 F.2d 323, 325-326 (9th Cir.
1979). Strube concedes that the first two requirements are
satisfied.

7a

Strube contends that the evidence shows no more than
mere silence after Strube received knowledge of his em-
ployees past criminal behavior. Strube argues that the trial
court was not informed of any facts that showed that he
committed an affirmative act to comfort or assist his cod-
efendants to hinder or prevent their apprehension as re-
quired under the law of this circuit as set forth in United
States v. Scharf, 608 F.2d at 326. We disagree.

The record shows that Strube concealed from the gov-
ernment the fact that his employees were continuing to
file false claims. In United States v. Prescott, 581 F.2d
1343 (9th Cir. 1978), we held that a violation of section
3 is proved if the defendant permits another person to
use her dwelling to commit a crime and conceals evidence
of his continuing wrongdoing. Jd. at 1353.

In the instant matter, the prosecutor was prepared to
prove that, with knowledge that his codefendants had filed
prior false claims, Strube permitted his employees to con-
tinue to file false claims in order to defraud the govern-
ment for the benefit of CAC. In his effer of proof the
prosecutor stated that “[t]here was a false claim in the
amount of $66,000 submitted to the United States on or
before April 4, 1986, and that is the basis for Count 3.”
The prosecutor further stated with respect to count five
that “there was a false claim placed on the Government
for approximately $19,000 on March 20, 1986, and this
claim was false.’ These crimes occurred approximately
three months after Strube was informed that his employ-
ees had filed false claims. The government was also pre-
pared to establish that Strube ‘comforted and assisted”’
the offenders by proving that the pattern of presenting
false claims continued with Strube’s knowledge after he
was informed of their illegal activity. This evidence clearly
demonstrates more than mere silence. Rather, the record
shows obstruction of justice by providing a safe harbor for
the criminal action and concealing their ongoing crimes
for personal or corporate profit.

8a

The record reflects that the court’s inquiry adequately
established that Strube had knowledge of the offenses with
which he was charged, that he comforted and assisted his
employees in continuing to file false claims after he had
knowledge of their prior illegal activity, and that he under-
stood the consequences of his plea. Accordingly, the dis-
trict court faithfully complied with the requirements of
Rule 11(f).

Ill

Strube also claims that the government breached the
plea agreement by recommending a one-year jail term as
a minimum term rather than as a maximum period of
incarceration. He argues that (1) the language in the sent-
encing memorandum of “at least one year’’ violated the
express terms of the plea agreement; and (2) that the tone
of the sentencing memorandum demonstrates the senti-
ment of the government that Strube should receive more
than one year and violates the spirit of the plea agreement.

We review the denial of a motion to withdraw a guilty
plea for abuse of discretion. United States v. Navarro-
Flores, 628 F.2d 1178, 1183 (9th Cir. 1980). Prior to sent-
encing, a defendant may withdraw his plea upon a showing
of a “fair and just’”’ reason. Fed. R. Crim. P. 32(d). The
right to withdraw a plea is not absolute, but should be
freely granted by the trial court where defendant has met
his burden to show a fair and just reason. United States
v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985), cert. denied,
479 U.S. 9385 (1986). If the defendant does not make a
showing of a fair and just reason to withdraw his guilty
plea, the government need not establish that it would he
prejudiced if the motion were granted. United States v.
Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987). Strube
contends that the prosecution’s alleged breach of the plea
agreement is a “fair and just reason’ to withdraw his
guilty plea.

9a

In determining whether a plea agreement has been
breached, contract law principles apply. Kamer, 781 F.2d
at 1387. Where a promise made by the government is a
significant inducement for a defendant’s guilty plea, the
promise must be fulfilled, Santobello v. New York, 404 U.S.
257, 262 (1971), or the judgment of conviction must be
vacated upon appeal. Jd. at 263. Such an inducement may
affect the voluntariness of the plea. Read, 778 F.2d at
1440. Therefore, the government must be held to the lit-
eral terms of the agreement. United States v. Travis, 735
F.2d 1129, 1132 (9th Cir. 1984). We must examine what
the parties reasonably understood regarding the terms of
the agreement. Any dispute over those terms must be
determined by objective standards. Read, 778 F.2d at 1441.
The district court’s finding as to the terms of the contract
will not be disturbed unless it is clearly erroneous. Jd. at
1440.

In arguing that the trial court should be reversed, Strube
relies on Santobello. In Santobello, the Supreme Court va-
cated the judgment of conviction because the government
had failed to comply with its promise to the accused not
to recommend a sentence to the court. Jd. at 262. Instead.
the prosecutor recommended that the trial judge impose
the maximum sentence. Jd. at 259. The court reasoned
that the significant role of plea bargaining in the admin-
istration of justice directs that prosecutors fulfill their
‘bargained for’? commitments. Jd. at 262.

Santobello is clearly distinguishable factually. The pros-
ecutor’s recommendation of a maximum term of impris-
onment in Santobello was a clear and unmistakable breach
of the promise to remain silent at the sentencing hearing,
constituting a breach of the express terms of the plea
agreement. Jd. at 259. In the instant matter, Strube con-
tends that the prosecutor's use of the words “at least one
year’ in the government’s sentencing memorandum vio-
lated his agreement to recommend “no more than one
year.

10a

In opposing Strube’s motion, the prosecutor stated that
the government ‘“‘did not intend to breach the agreement
of ask for a higher term by using the words ‘at least’ ”’
in the sentencing memorandum. The government’s motion
further states that the ‘‘use of the words ‘at least’ while
perhaps ill-chosen, should not be seen for something it was
not. Indeed the government has offered to delete those
two words from the Sentencing Memorandum.”’ (Govern-
ment’s Opposition to Defendant Gordon Strube’s Motion
to Withdraw Guilty Plea at 4.)

The district court interpreted the government’s recom-
mendation as being in substantial compliance with the
terms of the agreement. We agree. At the sentencing hear-
ing on August 15, 1988, the court stated its reason for
denying defendant’s motion.

One, Mr. Fahey doesn’t argue for a long prison
sentence. He uses that term, I think in this con-
text, he says, ‘But for his age and health a long
prison sentence would be called for.’ So he’s not
asking for a long prison sentence.

He does say that the government submits he
should be sentenced to a term of—you know, and
in a certain sense it is a semantic argument be-
cause if he said he should be sentenced to a prison
term of one year it amounts, I think to the same
thing if you say ‘at least one year.’ I think it
acknowledges that while he can’t recommend
more, he is going to recommend one year. That
is what I believe and that is the way I interpret
it, and I think besides that it is a very—in my
view, the remedy is, too, if there were a breach
to sentence before another judge without that
phrase present in the sentencing memorandum
and I don’t believe the reference to the long
prison sentence would otherwise be in order as

(

en

lla

a breach of the agreement, so for those reasons
I deny the motion to withdraw the plea of guilty.

The record shows that Strube’s “age and health’”’ were
significant factors in negotiating the plea agreement. “In
view of Mr. Strube’s health problems, it was important
for me to attempt to obtain a commitment from Mr. Fahey
to recommend probation for Mr. Strube.” (Marmaro Dec-
laration, attached to Defendant's Motion to Withdraw, at
{ 22.) However, “(t]he most that the prosecutor would of-
fer was his agreement not to recommend more than one
year in prison.” Jd.

The district court’s interpretation of the words used by
the prosecutor as a recommendation of no more than one
year is not clearly erroneous. We agree with the district
court that the prosecutor’s recommendation as modified
orally prior to sentencing did not violate the plea agree-
ment. The district court did not abuse its discretion in
denying Strube’s motion to withdraw his plea of guilty.

AFFIRMED.

12a

APPENDIX B

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 88-5292
D.C. No. CR-88-0230-AWT- 2

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.

GORDON STRUBE,
Defendant-Appellant.
FILED
JAN 23 1990

CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS

ORDER

Before. WALLACE, PREGERSON, and ALARCON, Cir-
cuit Judges.

The memorandum filed October 11, 1989 is amended as
follows:

On page 11, strike the first and second sentence of the
last paragraph. Insert instead:

Thus, the prosecutor made clear in his statement
to the court prior to sentencing that the govern-
ment intended to rely on the terms of the plea
agreement. The district court construed the pros-
ecutor’s recommendation, as clarified by his oral

13a

statements, as being in compliance with the terms
of the plea agreement.

On page 12, strike the first two sentences of the last
paragraph. Insert instead:

“Good faith disputes of the parties as to the
terms of a plea agreement are to be resolved by
the district court in which the plea was originally
submitted.” United States v. Bornstein, 623 F.2d
1327, 1330 (9th Cir. 1980). The district court fully
explored the intent of the parties concerning the
terms of the plea agreement before pronouncing
sentence. The district court concluded that under
the terms of the plea agreement the prosecutor
could not recommend more than one year, but
was free to argue that the sentence should not
be less than one year. The district court’s inter-
pretation of the intent of the parties was not
clearly erroneous.

With the memorandum thus amended, the panel has
voted unanimously to deny the petition for rehearing and
to reject the suggestion for rehearing en banc. The full
court has been advised of the suggestion for rehearing en
bane and no active judge has requested a vote on whether
to rehear the matter en banc. Fed. R. App. P. 35(b).

The petition for rehearing is DENIED and the sugges-
tion for rehearing en banc is REJECTED.

l4a

APPENDIX C

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

No. 88-5292
D.C. No. CR-88-0230-AWT-2

UNITED STATES OF AMERICA,
Plaintiff-A ppellee,
v.
GORDON STRUBE,
Defendant-A ppellant.
FILED
OCT 11 1989**

CATHY A. CATTERSON, CLERK
U.S. COURT OF APPEALS

MEMORANDUM*

Appeal from the United States District Court
for the Central District of California
A. Wallace Tashima, District Judge, Presiding

Argued and submitted October 5, 1989
San Francisco, California

Before: WALLACE, PREGERSON, ALARCON, Circuit
Judges.

* This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by 9th Cir
R. 36-3.

** Editor's Note: This reproduction incorporates amendments to the
court's opinion of October 11, 1989 that were ordered by the court on
January 23, 1990.

i

15a

Gordon Strube appeals from the judgment entered fol-
lowing the denial of his motion to withdraw his guilty plea.
Strube seeks reversal on two grounds:

One. The district court failed to establish that there was
a factual basis for the plea of guilty.

Two. The district court abused its discretion in denying
the motion to withd.aw the guilty plea because the record
shows that the government breached the plea agreement.

I

Gordon Strube founded Consolidated Aeronautics Cor-
poration (CAC) in 1956 and has acted as its president and
chief executive officer since its inception. CAC sold aircraft
parts to the United States Government during 1985 and
1986. In 1987, the United States Attorney’s office for the
Centra] District of California began a grand jury investi-
gation of CAC and four of its employees for violations of
18 U. S. C. §§ 3, 1001 and 287.

In March of 1988 Strube expressed to his attorney a
desire “‘to see whether I could voluntarily come forward
and plead guilty to some offense in order to prevent the
indictment of as many of my colleagues as possible.”’

On March 11, 1988, Strube and the codefendants en
tered into a verbal plea agreement with the United States.
On March 25, 1988, the government filed a five-count in-
formation charging Strube, Ronald Guy and CAC with
conspiracy to defraud the United States, falsely certifying
“used, reconditioned and refurbished”’ parts as ‘‘new, un-
used and unaltered surplus” presenting false claims to the
government for those parts and making false statements
to the government.

A written plea agreement was executed on April 11,
1988. Strube agreed to plead guilty to counts two, three
and five of the information as an accessory after the fact.

l6a

Count two of the information charges that on or about
April 15, 1985, Strube comforted and assisted his code-
fendants in submitting false certifications to the U.S. Gov-
ernment. Count three charges that on or about April 4,
1986 Strube comforted and assisted his codefendants in
presenting false claims for payment. Count five charges
that on or about March 20, 1986, Strube comforted and
assisted his codefendants in presenting false claims for
payment. Each count alleges that Strube hindered and
prevented the apprehension, trial and punishment of the
codefendants by failing to disclose what he knew of the
activity.

In exchange for the guilty pleas, the government agreed
that ‘tno further criminal charges will be brought against
CAC or its employees.” In addition, the government prom-
ised Strube that it would ‘‘not recommend at the time of
sentencing a total period of incarceration of more than
one year.”’

On May 9, 1988 Strube pled guilty to counts two, three
and five. Before accepting the plea, the district court in-
quired of both parties in order to establish that there was
a factual basis for the plea. After engaging in a dialogue
with Strube, the court accepted the plea. Strube filed a
written factual basis for his plea on the same day.

In its sentencing memorandum filed July 20, 1988, the
government recommended that Strube be sentenced to ‘‘at
least one year’’ in prison. Strube filed a motion to with-
draw his guilty plea on August 8, i988. Strube argued
that the government breached the plea agreement by ask-
ing the court to sentence him to “‘a minimum of one year
in prison’’. despite “‘the prosecutor’s written commitment
to request a maximum of one year in prison” (emphasis
in original). Strube also claimed that there was not a suf-
ficient factual basis to support his plea of guilty.

The district court denied the motion on August 15, 1988,
stating that it was not influenced by whether the rec-

l7a

ommendation was for ‘‘at least’’ or for ‘‘not more than’’
one year. The court sentenced Strube to 2 years (the first
six months to be served in a community treatment center,
the remainder suspended), five years probation and a
$300,000 fine.

Strube timely appeals.
II

Strube contends that the district court erred in denying
his motion to withdraw his plea because there is insuffi-
cient factual] basis to support his guilty plea as required
by Fed. R. Crim. P. 11(f). We have conducted an inde-
pendent review of the record to determine whether a fac-
tual basis for the plea existed as required by Rule 11(f).

At least a “minor investment of time and effort’’ is
required to establish on the record that the defendant had
knowledge of the crime and that he understood the con-
sequences of his plea. United States v. Kamer, 781 F.2d
1380, 1385 (9th Cir. 1986), cert. denied, 479 U.S. 835
(1986). The record shows that the district court carefully
questioned Strube prior to accepting his plea. The court
asked Strube if he had read the document filed by his
attorney, entitled Defendants’ Factual Basis For Guilty
Plea To Information, before he signed it. The court also
asked Strube whether the facts set forth in the written
factual basis were accurate. Strube replied affirmatively
to both questions. In addition, the court required the pros-
ecutor to state the facts he was ready to prove if the case
went to trial.

The Defendants’ Factual Basis describes Strube’s in-
volvement in the filing of false claims in the following
language:

As President and Chairman of the Board of
the company, Mr. Strube was generally aware of
some of CAC’s contracts with the U.S. Govern-
ment during the relevant time period.

et

18a

In approximately January 1986 and later, Mr.
Strube learned from other officers of CAC who
had primary responsibility for the U.S. Govern-
ment contracting business that CAC had supplied
‘newly manufactured material’ to the government
in connection with certain ‘selector set’ contracts
even though the contract specifications called for
the materia] to be ‘new, unused surplus’. Further,
Mr. Strube learned at that time that certification
had been submitted to the government by CAC
personnel which falsely affirmed that the product
was ‘new, unused surplus,’ when, as Mr. Strube
learned after the fact, the product was ‘newly
manufactured’ material. (This applies to the con-
tracts referred to in counts two, three and five
of the Information.)

Having learned these facts, Mr. Strube, as
President and Chairman of the Board of CAC,
should have directed the responsible officers of
CAC to notify the government contracting officer
of the relevant facts. Mr. Strube acknowledges
that his failure to do so was illegal and he sub-
mits this as a factual basis for his guilty pleas
to counts two, three and five of the Information.

The court explained to Strube that a factual basis must
exist before his plea could be accepted. The court then
instructed Strube that the prosecutor would “‘recite briefly
in the nature of an offer of proof the evidence that the
Government is ready to present if this case were to go
to trial as proof of the occurrence of the offenses charged
in this Information.’’ Strube was instructed ‘‘to listen care-
fully to Mr. Fahey’s statement because when he is through
with his representations, I will ask each defendant whether
or not you take issue with any representations made by
Mr. Fahey.”’

19a

After reciting facts showing that CAC employees filed
false claims regarding the parts they sold to the govern-
ment, the prosecutor stated to the court that he was ready
to prove that Strube ‘“‘knew what was going on at the
time and did nothing to stop this particular pattern; in-
deed, assisted by lack of action and lack of intent to put
an end to this particular path and, therefore, in the Gov-
ernment’s view, could be found guilty of 18 USC Section
3 in conjunction with the false statement.”

Strube’s attorney advised the court that he took ‘‘ex-
ception to the portion of the prosecutor’s offer of proof
that Strube knew that the information was false or par-
ticipated in filing false claims.’’ Strube’s attorney then
stated, however, that ‘‘we can make out a factual basis’’.
The court was informed that the failure to report to the
government that he had learned that false statements had
been made by his employees “constitutes a violation of
Title 18 United States Code Section 3.’’ Thereafter, the
court announced that it was satisfied that a factual basis
existed and accepted Strube’s plea of guilty.

In this appeal, Strube contends that ‘‘the court received
absolutely no facts whatsoever to demonstrate that Strube
ever committed an affirmative act assisting Guy and Con-
solidated in concealing their violations. All parties present
labored under the mistaken assumption that mere silence
was sufficient to constitute a section 3 offense.’’

To establish a factual] basis for a violation of 18 U.S.C.
§3 under Rule 11(f), the district court must be satisfied
(1) that the underlying offense occurred; (2) that the
defendant had knowledge thereof; and (38)that the
defendant comforted or assisted the offender ‘‘in order to
hinder or prevent his apprehension, trial or punishment.”’
United States v. Scharf, 608 F.2d 323, 325-326 (9th Cir.
1979). Strube concedes that the first two requirements are
satisfied.

20a

Strube contends that the evidence shows no more than
mere silence after Strube received knowledge of his em-
ployees past criminal behavior. Strube argues that the trial
court was not informed of any facts that showed that he
committed an affirmative act to comfort or assist his cod-
efendants to hinder or prevent their apprehension as re-
quired under the law of this circuit as set forth in United
States v. Scharf, 608 F.2d at 326. We disagree.

The record shows that Strube concealed from the gov-
ernment the fact that his employees were continuing to
file false claims. In United States v. Prescott, 581 F.2d
1343 (9th Cir. 1978), we held that a violation of section
3 is proved if the defendant permits another person to
use her dwelling to commit a crime and conceals evidence
of his continuing wrongdoing. Jd. at 1353.

In the instant matter, the prosecutor was prepared to
prove that, with knowledge that his codefendants had filed
prior false claims, Strube permitted his employees to con-
tinue to file false claims in order to defraud the govern-
ment for the benefit of CAC. In his offer of proof the
prosecutor stated that ‘“[t]here was a false claim in the
amount of $66,000 submitted to the United States on or
before April 4, 1986, and that is the basis for Count 3.”’
The prosecutor further stated with respect to count five
that ‘‘there was a false claim placed on the Government
for approximately $19,000 on March 20, 1986, and this
claim was false.’’ These crimes occurred approximately
three months after Strube was informed that his employ-
ees had filed false claims. The government was also pre-
pared to establish that Strube “comforted and assisted”’
the offenders by proving that the pattern of presenting
false claims continued with Strube’s knowledge after he
was informed of their illegal activity. This evidence clearly
demonstrates more than mere silence. Rather, the record
shows obstruction of justice by providing a safe harbor for
the criminal action and concealing their ongoing crimes
for personal or corporate profit.

OO

2la

The record reflects that the court’s inquiry adequately
established that Strube had knowledge of the offenses with
which he was charged, that he comforted and assisted his
employees in continuing to file false claims after he had
knowledge of their prior illegal activity, and that he under-
stood the consequences of his plea. Accordingly, the dis-
trict court faithfully complied with the requirements of
Rule 11(f).

Ill

Strube also claims that the government breached the
plea agreement by recommending a one-year jail term as
a minimum term rather than as a maximum period of
incarceration. He argues that (1) the language in the sent-
encing memorandum of ‘‘at least one year’’ violated the
express terms of the plea agreement; and (2) that the tone
of the sentencing memorandum demonstrates the senti-
ment of the government that Strube should receive more
than one year and violates the spirit of the plea agreement.

We review the denial of a motion to withdraw a guilty
plea for abuse of discretion. United States v. Navarro-
Flores, 628 F.2d 1178, 1183 (9th Cir. 1980). Prior to sent-
encing, a defendant may withdraw his plea upon a showing
of a ‘‘fair and just’ reason. Fed. R. Crim. P. 32(d). The
right to withdraw a plea is not absolute, but should be
freely granted by the trial court where defendant has met
his burden to show a fair and just reason. United States
v. Read, 778 F.2d 1437, 1440 (9th Cir. 1985), cert. denied,
479 U.S. 9385 (1986). If the defendant does not make a
showing of a fair and just reason to withdraw his guilty
plea, the government need not establish that it would be
prejudiced if the motion were granted. United States v.
Rios-Ortiz, 830 F.2d 1067, 1069 (9th Cir. 1987). Strube
contends that the prosecution’s alleged breach of the plea
agreement is a “fair and just reason” to withdraw his
guilty plea.

22a

In determining whether a plea agreement has been
breached, contract law principles apply. Kamer, 781 F.2d
at 1387. Where a promise made by the government is a
significant inducement for a defendant’s guilty plea, the
promise must be fulfilled, Santobello v. New York, 404 U.S.
257, 262 (1971), or the judgment of conviction must be
vacated upon appeal. Jd. at 263. Such an inducement may
affect the voluntariness of the plea. Read, 778 F.2d at
1440. Therefore, the government must be held to the lit-
eral terms of the agreement. United States v. Travis, 735
F.2d 1129, 1132 (9th Cir. 1984). We must examine what
the parties reasonably understood regarding the terms of
the agreement. Any dispute over those terms must be
determined by objective standards. Read, 778 F.2d at 1441.
The district court’s finding as to the terms of the contract
will not be disturbed unless it is clearly erroneous. Jd. at
1440.

In arguing that the trial court should be reversed, Strube
relies on Santobello. In Santobello, the Supreme Court va-
cated the judgment of conviction because the government
had failed to comply with its promise to the accused not
to recommend a sentence to the court. Jd. at 262. Instead,
the prosecutor recommended that the trial judge impose
the maximum sentence. Jd. at 259. The court reasoned
that the significant role of plea bargaining in the admin-
istration of justice directs that prosecutors fulfill their
“bargained for’’ commitments. Jd. at 262.

Santobello is clearly distinguishable factually. The pros-
ecutor’s recommendation of a maximum term of impris-
onment in Santobello was a clear and unmistakable breach
of the promise to remain silent at the sentencing hearing,
constituting a breach of the express terms of the plea
agreement. Jd. at 259. In the instant matter, Strube con-
tends that the prosecutor’s use of the words ‘‘at least one
year’ in the government’s sentencing memorandum vio-
lated his agreement to recommend ‘“‘no more than one
year.

OO

om"

23a

In opposing Strube’s motion, the prosecutor stated that
the government ‘“‘did not intend to breach the agreement
of ask for a higher term by using the words ‘at least’ ”’
in the sentencing memorandum. The government’s motion
further states that the ‘‘use of the words ‘at least’ while
perhaps ill-chosen, should not be seen for something it was
not. Indeed the government has offered to delete those
two words from the Sentencing Memorandum.” (Govern-
ment’s Opposition to Defendant Gordon Strube’s Motio1:
to Withdraw Guilty Plea at 4.)

Thus, the prosecutor made clear in his statement to the
court prior to sentencing that the government intended to
rely on the terms of the plea agreement. The district court
construed the prosecutor’s recommendation, as clarified by
his oral statements, as being in compliance with the terms
of the plea agreement. At the sentencing hearing on Au-
gust 15, 1988, the court stated its reason for denying
defendant’s motion.

One, Mr. Fahey doesn’t argue for a long prison
sentence. He uses that term, I think in this con-
text, he says, ‘But for his age and health a long
prison sentence would be called for.’ So he’s not
asking for a long prison sentence.

He does say that the government submits he
should be sentenced to a term of—you know, and
in a certain sense it is a semantic argument be-
cause if he said he should be sentenced to a prison
term of one year it amounts, I think to the same
thing if you say ‘at least one year.’ I think it
acknowledges that while he can’t recommend
more, he is going to recommend one year. That
is what I believe and that is the way I interpret
it, and I think besides that it is a very—in my
view, the remedy is, too, if there were a breach
to sentence before another judge without that
phrase present in the sentencing memorandum

}

24a

and I don’t believe the reference to the long
prison sentence would otherwise be in order as
a breach of the agreement, so for those reasons
I deny the motion to withdraw the plea of guilty.

The record shows that Strube’s ‘‘age and health’’ were
significant factors in negotiating the plea agreement. “In
view of Mr. Strube’s health problems, it was important
for me to attempt to obtain a commitment from Mr. Fahey
to recommend probation for Mr. Strube.’’ (Marmaro Dec-
laration, attached to Defendant’s Motion to Withdraw. at
4 22.) However, ‘‘[t]he most that the prosecutor would of-
fer was his agreement not to recommend more than one
year in prison.” Jd.

“Good faith disputes of the parties as to the terms of
a plea agreement are to be resolved by the district court
in which the plea was originally submitted.’’ United States
v. Bornstein, 623 F.2d 1327, 1330 (9th Cir. 1980). The
district court fully explored the intent of the parties con-
cerning the terms of the plea agreement before pron-
ouncing sentence. The district court concluded that under
the terms of the plea agreement the prosecutor could not
recommend more than one year, but was free to argue
that the sentence should not be less than one year. The
district court’s interpretation of the intent of the parties
was not clearly erroneous. The district court did not abuse
its discretion in denying Strube’s motion to withdraw his
plea of guilty.

AFFIRMED.

25a

APPENDIX D

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

No. CV 88-230-AWT

UNITED STATES OF AMERICA,
Plaintiff,
VS.

CONSOLIDATED AERONAUTICS, GORDON STRUBE, AND
RONALD GUY
Defendant.

HONORABLE A. WALLACE TASHIMA, JUDGE
PRESIDING

REPORTER’S TRANSCRIPT OF PROCEEDINGS

MONDAY, AUGUST 15, 1988
LOS ANGELES, CALIFORNIA

DELIA C. ROTUNNO, CSR #2171
Official Court Reporter
312 North Spring Street, Room 438
Los Angeles, California 90012
(213) 687-4698

26a

A-P-P-E-A-R-A-N-C-E-S:
FOR THE PLAINTIFF: UNITED STATES OF AMERICA

ROBERT C. BONNER

UNITED STATES ATTORNEY
BY: WILLIAM FAHEY

Assistant United States Attorney
312 North Spring Street

Los Angeles, California 90012

x * *

FOR THE DEFENDANT: CONSOLIDATED AERONAUTICS

PETRILLO & HORDELL
ATTORNEYS AT LAW

BY: JOSEPH PETRiILLO
20000 L Street, North West
Suite 504

WASHINGTON D. C.

MR. ALAN KEIEGEL
Corporate Attorney, In-House

FOR THE DEFENDANT: GORDON STRUBE

MCCAMBRIDGE, DEIXLER & MARMARO
ATTORNEYS AT LAW |
BY: MR. RICHARD MARMARO
2029 Century Park East
Suite 2700

Los Angeles, California 90067

* * *

FOR THE DEFENDANT: RONALD GUY

DUNNELLS, DUBALL, BENNETT & PORTER
ATTORNEYS AT LAW

BY: PLATEO CACHERIS

1220 - 19th Street, North West
Washington, D. C. 20036

a 27a

VENEBLE, BAETJER & HOWARD
ATTORNEYS AT LAW

BY: GERALD F. TREANOR

2000 CORPORATE RIDGE

SUITE 500

MCLEAN, VIRGINIA 22102

x* * *

[13] THE COURT: All right. I don’t think either side
really addressed the proper remedy. Assuming there was
a breach of the agreement by the government, what is
indicated to me by not only Santobello but the Ninth Cir-
cuit case U.S. versus Travis and a more recent second
circuit case, I think those are all cases where sentencing
has been pronounced is, one, resentencing with a clean
[14] atmosphere. And I think, at best, you are entitled to
resentencing before a different judge without this material
or I say without the word ‘‘at least’, in the memorandum
before the judge. I think that is a motion you are entitled
to.

Santobello doesn’t say—none of those cases say that,
the Ninth Circuit doesn’t say that you are entitled to with-
draw the plea.

I think it does depend on whether that is true to a
certain extent on the—I will say the gravity of the breach,
the materiality of the breach by the government.

I think that is part of the consideration to determine
what the language is. I think in this case the sufficient
remedy would be to send Mr. Strube to another judge to
be sentenced by that judge. I'll call it an interpleading
memorandum, but I don’t think I am going to get to it.

I am going to deny the motion. I deny it for this reason:
One, Mr. Fahey doesn’t argue for a long prison sentence.
He uses that term, I think in this context, he says, “But
for his age and health a long prison sentence would be
called for.”’ So he’s not asking for a long prison sentence.

He does say that the government submits he [15] should

be sentenced to a prison term of at least one year. The
term of—you know, and in a certain sense it is a semanti

argument because if he said he should be sentenced to a

prison term of one year it amounts, I think, to the same
thing if you say ‘‘at least one year.”’ I think it acknow!
5 A . .

edges that while he cant recommend more, he is going

to recommend one year. That is what I believe and tha
is the way I interpreted it, and I think besides that it |
a very—in my view, the remedy is, too, if there were
breach to sentence before another judge without tha

the sentencing memorandum and I don't

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pnrase present 1n
i

4

+

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a

+

helieve the reference to the long prison sentence would

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otherwise be In order as a breach of the agreemen Ss
t yr Tr ce reas nc ] ae Y tl ‘ YY ss Y t h tr ir: A tne I ¢
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U-

APPENDIX E

United States District Court for
Central District of California

CR 88-230-AWT

DEFENDANT

JUDGMENT AND PROBATION/COMMITMENT ORDER

AO 245 19 82

+} ++ + + , "7D wnt th
| ¢ rne OY ne government ¢
4 o
7 +} Ion? Ayi93e
‘ . ~ | c 1AUY i
jm»

‘ COUNS R rd Marr Retains
PLEA
( [ T t lr Dé if - Sat SI t ] tnat tneé re .
A ~ I U pit if ‘ A e. > and ’
FINDING & JUDGMENT
Defendant has been convicted as charged of the of
fense(s) of false statements causing an act to be don

ears. . * a + , , " * let) < 7 | . . x ]
accessory aiter tne ta T In Vil0OIaALION Ol ic | we §§100]
9} QD « rhe ANT 9. faleo ale -m11ICI TY ‘ an
2(b). 3 as charged in count 2; false claims, causing an act

| Va) ‘ oF ? " . “+? ;
ne gone. accessory. after tne factS In wolation OF 1a

?
U.S.C. §§287, 2(b), 3 as charged in counts 6 and o Ol the

30a

SENTENCE OR PROBATION ORDER

The court asked whether defendant had anything to say
why judgment should not be pronounced. Because no suf-
ficient cause to the contrary was shown, or appeared to
the court, the court adjudged the defendant guilty as
charged and convicted and ordered that: The defendant is
hereby committed to the custody of the Attorney General
or his authorized representative for imprisonment for a
period of two (2) years but on the condition the defendant
serve six (6) months in a community treatment center,
execution of the remainder of the sentence is suspended
as to imprisonment; defendant placed on five years pro-
bation.

SPECIAL CONDITIONS OF PROBATION

IT IS FURTHER ADJUDGED on count 2 that the
defendant, whose address is 939 N. Alpine Dr., Beverly
Hills, CA 90210, shall pay a fine in the sum of $100,000.
to the U.S. Treasury payable through the U.S. Attorney,
Room 1347, Claims & Judgments, 312 N. Spring St., L.A.,
CA 90012.

IT IS ADJUDGED on each of counts 3 and 5 that the
defendant shall pay a fine in the sum of $100,000. to the
U.S. Treasury payable through the U.S. Attorney and that
the imposition of sentence with respect to imprisonment
only is suspended and the defendant is placed on concur-
rent terms of probation for a period of five (5) years sub-
ject to General Order 225 & the following conditions: 1) the
defendant shall serve 1000 hours of community service for
the Foundation for People Inc. & 2) the total fine of
$300,000. is payable within thirty (80) days of this date.

ADDITIONAL CONDITIONS OF PROBATION

In addition to the special] conditions of probation im-
posed above, it is hereby ordered that the general con-

3la

ditions of probation set out on the reverse side of this
judgment be imposed. The Court may change the condi-
tions of probation, reduce or extend the period of pro-
bation, and at any time during the probation period or
within a maximum probation period of five years permitted
by law, may issue a warrant and revoke probation for a
violation occurring during the probation period.

IT IS ORDERED that the defendant shall pay $150. in
Special Assessments.

IT IS FURTHER ORDERED that execution of sentence
is stayed until 12 noon, 9/12/88, at which time the
defendant shall surrender to the facility designated by the
Bureau of Prisons, or if no designation made, to U.S.
Marshal this building. If a timely notice of appeal is filed,
the stay shall continue pending the appeal and the trial
bond shall remain as bond on appeal.

COMMITMENT RECOMMENDATION

IT IS RECOMMENDED that the defendant be permit-
ted to seek medical treatment of his own choice and ex-
pense & that he be permitted to leave the CTC to obtain
such services.

/s/ A. Wallace Tashima
A. WALLACE TASHIMA Date 8/16/88
U.S. District Judge

It is ordered that the Clerk deliver a certified copy of this
judgment and commitment to the U.S. Marshal! or other
qualified officer.

32a

APPENDIX F

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

No. CR 88-230

UNITED STATES OF AMERICA,
Plaintiff,
v.

CONSOLIDATED AERONAUTICS CORPORATION,
GORDON STRUBE,
RONALD GUY,
Defendants.

INFORMATION

(18 U.S.C. §371: Conspiracy; 18 U.S.C. § 1001: False
Statements; 18 U.S.C.§ 287: False Claims; 18 U.S.C.§ 2(b):
Causing An Act To Be Done; 18 U.S.C. § 3: Accessory
After the Fact]

The United States Attorney charges:

COUNT ONE
(18 U.S.C. § 371]

A. INTRODUCTION
At all times material] to this Information:

1. Defendant CONSOLIDATED AERONAUTICS COR-
PORATION (‘‘CAC’’) was a company located in North Hol-
lywood, California and engaged in the business of selling
new, used and newly manufactured aircraft parts to the
United States government.

OO

33a

2. Defendant GORDON STRUBE was the president of
CAC and its chief executive officer.

3. Defendant RONALD GUY was a vice-president of
sales at CAC.

B. CONSPIRACY AND OBJECTS OF THE CONSPIRACY

Beginning on a date unknown and continuing through
on or about October 31, 1987 in the Central District of
California and elsewhere, defendants CAC and GUY and
others known and unknown, did conspire, combine and
agree together and with each other to commit offenses
against the United States:

1. To defraud the United States and agencies thereof
by supplying used, reconditioned, refurbished and altered
military aircraft parts contrary to contract requirements
and specifications, in violation of 18 U.S.C. § 371;

2. To make false, fictitious and fraudulent claims upon
agencies of the United States, in violation of 18 U.S.C.
§ 287;

3. To make false, fictitious and fraudulent statements
and representations to agencies of the United States in
violation of 18 U.S.C. § 1001

C. MEANS OF THE CONSPIRACY

The foregoing objects of the conspiracy were accom-
plished in substance as follows:

1. Defendant CAC, through its officers and employees,
would enter into contracts with agencies of the United
States to sell new and unused surplus military aircraft
parts.

2. Defendant CAC, through its officers and employees,
would thereafter supply used, reconditioned, newly man-
ufactured, refurbished and altered military aircraft parts
to United States Government agencies.

34a

3. Defendant CAC, through its officers and employees,
would on occasion falsely certify to United States govern-
ment agencies that it was supplying new and unused sur-
plus military aircraft parts.

4. Defendant CAC, through its officers and employees,
would on occasion submit invoices to United States Gov-
ernment agencies which falsely stated that CAC was sup-
plying new and unused surplus military aircraft parts.

D. OVERT ACTS

1. On or about October 10, 1984, defendant RONALD
GUY prepared a false certification in connection with CAC
Contract Number 7707.

2. On or about January 29, 1985, defendant CAC sent
purchase order aumber 1128 to ‘‘Premach Corporation”’
requesting the manufacture of $51,000 of ‘‘sliders’’ in con-
nection with CAC Contract Number 7707.

3. On or about May 9, 1985, defendant CAC approved
the payment of ‘‘Production Hone and Lap”’ Invoice 9830
for $1,800 in connection with CAC Contract Number 7707.

4. On or about June 24, 1985, defendant CAC approved
the payment of ‘Production Hone and Lap”’ Invoice 9965
for $1,040 in connection with CAC Contract Number 7707.

5. On or about July 8, 1985, defendant CAC submitted
a claim upon the Defense Contract Administration Services
Region, an agency of the United States, in the form of
invoice number 9237 demanding payment in the amount
of $57,544.

6. On or about July 24, 1985, defendant CAC submitted
a claim upon the Defense Contract Administration Services
Region, an agency of the United States, in the form of
invoice number 9419 demanding payment in the amount
of $115,088.

7. On or about August 27, 1985, defendant CAC sub-
mitted a claim upon the Defense Contract Administration

35a

Services Region, an agency of the United States, in the
form of invoice number 9543 demanding payment in the
amount of $115,088.

8. On or about September 24, 1985, defendant CAC
submitted a claim upon the Defense Contract Administra-
tion Services Region, an agency of the United States, in
the form of invoice number 9642 demanding payment in
the amount of $115,088.

9. On or about October 2, 1985, defendant CAC sub-
mitted a claim upon the Defense Contract Administraticn
Services Region, an agency of the United States, in the
form of invoice number 9677 demanding payment in the
amount of $96,673.

COUNT TWO
[18 U.S.C. § 1001; § 2(b); § 3)

On or about April 9, 1985, within the Central District
of California, defendants CONSOLIDATED AERONAU-
TICS CORPORATION and RONALD GUY knowingly and
willfully made and caused to be made a false, fictitious
and fraudulent statement and representation as to material
facts within the jurisdiction of Defense Construction Sup-
ply Center, an agency of the United States, in that
defendants CONSOLIDATED AERONAUTICS CORPO-
RATION and RONALD GUY submitted and caused to be
submitted to the Defense Construction Supply Center a
certification that the selector sets for the A-7 military
aircraft parts offered for sale were new, unused and un-
altered and would not be reconditioned, refurbished or
altered, when in truth and fact, as defendants CONSOL-
IDATED AERONAUTICS CORPORATION and RONALD
GUY well knew, the aforementioned military aircraft parts
were used, reconditioned and refurbished and contained
newly manufactured ‘‘sliders.’’

At said time and place, defendant GORDON STRUBE,
knowing that the above offense had been committed, re-

36a

ceived, relieved, comforted and assisted defendants CON-
SOLIDATED AERONAUTICS CORPORATION and
RONALD GUY in order to hinder and prevent their ap-
prehension, trial and punishment.

COUNT THREE
[18 U.S.C. § 287, § 2(b), § 3]

On or about April 4, 1986, within the Central] District
of California, defendant CONSOLIDATED AERONAU-
TICS CORPORATION made and caused to be made a
false, fictitious and fraudulent claim upon the Defense Con-
tract Administration Services Region, an agency of the
United States, in that defendant CONSOLIDATED AER-
ONAUTICS CORPORATION submitted invoice number
0631 demanding payment in the amount of $66,220. Said
claim was false, fictitious and fraudulent in that defendant
CONSOLIDATED AERONAUTICS CORPORATION rep-
resented it was supplying new, unused and unaltered se-
lector sets for the A-7 military aircraft when in truth and
fact defendant CONSOLIDATED AERONAUTICS COR-
PORATION supplied used, reconditioned and refurbished
selector sets which also contained newly manufactured
“sliders.”

At said time and place, defendant GORDON STRUBE,
knowing that the above offense had been committed, re-
ceived, relieved, comforted and assisted defendant CON-
SOLIDATED AERONAUTICS CORPORATION in order
to hinder and prevent its apprehension, trial and punish-
ment.

COUNT FOUR
[18 U.S.C. § 1001; § 2(b)]

On or about April 14, 1986, within the Centra] District
of California, defendants CONSOLIDATED AERONAUL-
TICS CORPORATION and RONALD GUY knowingly and

37a

willfully made and caused to be made a false, fictitious
and fraudulent statement and representation as to material
facts within the jurisdiction of the United States Air Force,
an agency of the United States, in that defendants CON-
SOLIDATED AERONAUTICS CORPORATION and RON-
ALD GUY submitted and caused to be submitted to the
United States Air Force a quotation stating that the hook
assemblies for the F-104 military aircraft offered for sale
were new, unused and acquired from the “DPDO in Weis-
baden, West Germany,’ when in truth and fact, as
defendants consolidated AERONAUTICS CORPORATION
and RONALD GUY well knew, the aforementioned mili-
tary aircraft parts were in part, newly manufactured, re-
conditioned and refurbished.

COUNT FIVE
[18 U.S.C. § 287, § 2(b) § 3)

On or about March 20, 1986, within the Centra] District
of California, defendant CONSOLIDATED AERONAU-
TICS CORPORATION made and caused to be made a
false, fictitious and fraudulent claim upon the Defense Con-
tract Administration Services Region, an agency of the
United States, in that defendant CONSOLIDATED AER-
ONAUTICS CORPORATION submitted invoice number
0561 demanding payment in the amount of $19,600. Said
claim was false, fictitious and fraudulent in that defendant

~ CONSOLIDATED AERONAUTICS CORPORATION rep-
resented it was supplying new surplus hydraulic fittings
for the F-4 military aircraft when in truth and fact
defendant CONSOLIDATED AERONAUTICS CORPO-
RATION supplied used, reconditioned and refurbished hy-
draulic fittings.

At said time and place, defendant GORDON STRUBE,
knowing that the above offense had been committed, re-
ceived, relieved, comforted and assisted defendant CON-
SOLIDATED AERONAUTICS CORPORATION in order

a

38a

to hinder and prevent its apprehension, trial and punish-
ment.

/s/ Robert C. Bonner

ROBERT C. BONNER
United States Attorney

| ene

39a

APPENDIX G

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

NO. CR 88-230

UNITED STATES OF AMERICA,
Plaintiff,

V.

CONSOLIDATED AERONAUTICS CORP., GORDON STRUBE,
RONALD GLY,
Defendants.
ROBERT C. BONNER
United States Attorney
ROBERT L. BROSIO
Assistant United States Attorney
Chief, Criminal Division
WILLIAM F. FAHEY
Assistant United States Attorney
Chief, Public Corruption & Government Fraud Section
1300 United States Courthouse
312 North Spring Street
Los Angeles, California 90012
Telephone: (213) 894-3036

Attorneys for Plaintiff
United States of America

JOINT PLEA AGREEMENT

The United States, by and through its attorney of re-
cord, and the individual defendants, by and through their
respective attorneys, hereby enter into the following Joint
Plea Agreement:

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DEFENDANTS’ PLEAS

1. Defendant Consolidated Aeronautics Corporation
(““CAC”’) shall waive indictment and plea guilty to the five
count Information filed March 24, 1988 in this case.

2. Defendant Gordon Strube shall waive indictment and
plead guilty to counts two, three and five of the Infor-
mation filed in this case.

3. Defendant Ronald Guy shall waive indictment and
plead guilty to counts one, two and four of the Information
filed in this case.

I]
GOVERNMENT’S AGREEMENT

A. In return for the above stated pleas, as well as the
other conditions specified in this Joint Plea Agreement,
the government agrees that:

1. As to defendant Gordon Strube, the government will
not recommend at the time of sentencing a total pe-
riod of incarceration of more than one vear.

bo

. As to defendant Ronald Guy, the government will
not recommend at the time of sentencing a total pe-
riod of incarceration of more than three years.

3. The government acknowledges that defendants Gor-
don Strube and Ronald Guy will recommend that sen-
tences of probation be imposed.

4. In consideration for defendants CAC, Strube and Guy
agreeing to plead guilty to the charges set forth in
the Information, the government agrees that no fur-
ther criminal charges will be brought against CAC
or its other officers and employees, including those
who were targets of the grand jury investigation and
against whom the government intended to seek an

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indictment, for their actions in connection with those
CAC contracts referred to in the memoranda of Char-
lene Izzo dated June 23, 1987, June 30, 1987, July
14, 1987 and July 31, 1987, which are attached hereto
and incorporated herein by reference, or in connec-
tion with CAC Contract No. 4901.

5. Defendant Strube submits that he has a serious health
problem. He requests, and the government does not
oppose, that an independent physician examine
defendant Strube and report his findings on the sta-
tus of defendant Strube’s health to the court and to
the probation office prior to se

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1406%3A1. Public record. Not legal advice.