Opposition Brief — Strube v. United States

w E ILED

' JUN 8 1990

? gOSEPH F. SPANIOL,

No. 89-

In the Supreme Court of the United States

OCTOBER TERM, 1989

GORDON STRUBE, PETITIONER

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

NINA GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

a

QUESTIONS PRESENTED

1. Whether the district court abused its discretion

when it refused to allow petitioner to withdraw his

guilty plea on the basis of an alleged violation of his

plea agreement.

2. Whether petitioner was properly convicted, upon

his guilty plea, of acting as an accessory after the fact.

(1)

TABLE OF CONTENTS

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TABLE OF AUTHORITIES

Cases:

Hamling v. United States, 418 U.S. 87 (1974) ..

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

Russell v. United States, 429 F.2d 237 (Sth Cir.

a gating ieee a one Ma i a eae

Smith v. United States, 306 F.2d 286 (D.C. Cir.

RTO CR ase ee sae ee Ss gs

United States v. Allen, 804 F.2d 244 (3d Cir.

1986), cert. denied, 480 U.S. 922 (1987) ...

United States v. Barrett, 890 F.2d 855 (6th Cir.

eee Se ee Sc a a a ee ees

United States v. Beebe, 792 F.2d 1363 (Sth Cir.

ere. tra er arene a ree Sates Sty

United States v. Bowler, 585 F.2d 851 (7th Cir.

Me Sr ep ore Maar OS tains he

United States v. Boyd, 610 F.2d 521 (8th Cir.

1979), cert. denied, 444 U.S. 1089 (1980) ...

United States v. Bullock, 725 F.2d 118 (D.C. Cir.

A SP EE er PR ba a ne ee

United States v. Caporale, 806 F.2d 1487 (11th

Cir. 1986), cert. denied, 482 U.S. 917 (1987) .

United States v. Covington, 411 F.2d 1087 (4th

Rr oe teat Co en ee og

(iii)

9

iv

United States v. Day, 533 F.2d 524 (10th Cir. !

EE x occ ewe eee eee een ee e*s 17

United States v. Gironda, 758 F.2d 1201 (7th Cir.),

cert. denied, 474 U.S. 1004 (1985) ........ 13

United States v. Goldberg, 862 F.2d 101 (6th Cir.

he eee EE Oe eee 14

United States v. Januszewski, 777 F.2d 108 (2d

Ge See ee EPR TS CR ie ee 6 10

United States v. Johnson, 805 F.2d 753 (7th Cir.

| << Ok ahs baa cee ice Oi 12

United States v. Khoury, 755 F.2d 1071 (ist Cir.

or eee ae ee ee 3)

United States v. Mallen, 843 F.2d 1096 (8th Cir.),

cert. denied, 488 U.S. 849 (1988) ........ 12

United States v. Montoya-Camacho, 644 F.2d 480

ee ee oe ees ee 14

United States v. Moscahlaidis, 868 F.2d 1357 (3d

ee ee pa a ae 11

United States v. Navarro-Flores, 628 F.2d 1178

og SE a ee re 10

United States v. Normandeau, 800 F.2d 953 (9th

I 6a tl a a 12-13

United States v. Pheaster, 544 F.2d 353 (9th Cir.

1976), cert. denied, 429 U.S. 1099 (1977) ... 12

United States v. Phillips, 869 F.2d 1361 (10th Cir.

1988), cert. denied, 109 S. Ct. 2074 (1989) .. 12

United States v. Pitino, 887 F.2d 42 (4th Cir.

WS CAO C ane She a Mle et ci Soe eno 11

United States v. Rivera, 879 F.2d 1247 (Sth Cir.),

cert. denied, 110 S. Ct. 554 (1989) ....... 12

United States v. Sutton, 794 F.2d 1415 (9th Cir.

Re ge ee a uag a 6 e wh és 9

United States v. Tobon-Hernandez, 845 F.2d 277

es se 11

Cases — Continued Page

United States v. Van Scoy, 482 F.2d 347 (10th Cir.

REM Sarat ie te terany ihc SP RRIEY Trane We ee APD oa 7

United States v. Vanover, 888 F.2d 1117 (6th Cir.

SS 6 656 a be SF OR SCE Ree oes 12

United States v. Young, 862 F.2d 815 (10th Cir.

Di og a 6 \ ee ork ee ee 13

Statute and rules:

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SO ss a ck ww eo ea wee eee en 2

Fed. Rules Crim. P.:

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In the Supreme Court of the Anited States

OCTOBER TERM, 1989

No. 89-1643

GORDON STRUBE, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 14a-

24a) is unpublished, but the decision is noted at 888

F.2d 130 (Table).

JURISDICTION

The judgment of the court of appeals was entered

on October 11, 1989. A petition for rehearing was

denied on January 23, 1990 (Pet. App. 12a-13a). The

petition for a writ of certiorari was filed on April 20,

1990. The jurisdiction of this Court is invoked under

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

(1)

2

STATEMENT

Petitioner pleaded guilty in the United States

District Court for the Central District of California to

three counts of acting as an accessory after the fact to

offenses committed by the corporation of which he is

the chief executive officer and by one of the corpora-

tion’s employees, in violation of 18 U.S.C. 3. The

underlying offenses were one count of making a false

claim upon an agency of the United States (18 U.S.C.

287) and two counts of making false statements in a

matter within the jurisdiction of an agency of the

United States (18 U.S.C. 1001). Petitioner was sen-

tenced to six months’ custody in a community treat-

ment center, to be followed by five years’ probation,

and was fined $300,000.

1. Petitioner is the founder and chief executive

officer of Consolidated Aeronautics Corporation (CAC).

In 1987, a grand jury began an investigation into

CAC’s sales of aircraft parts to the United States

government in 1985 and 1986. Pet. App. 15a.

Ultimately, CAC, Ronald Guy (a CAC vice presi-

dent), and petitioner entered into a plea agreement with

the United States, under which petitioner agreed to

plead guilty to three counts of a five-count information.

The information charged CAC and Guy (1) with

conspiring to defraud the United States by entering

contracts to sell the government new and unused

military aircraft parts and then supplying used, recondi-

tioned, and refurbished parts instead, and (2) with

various false certifications and claims for payment in

connection with the contracts. Each of the counts in

which petitioner was charged alleged that, acting with

knowledge that a particular false statement or false

claim had been made, petitioner “relieved, comforted

3

and assisted” CAC and Guy “in order to hinder and

prevent their apprehension, trial and punishment.” Pet.

App. 15a-16a, 32a-38a. In exchange for the defen-

dants’ guilty pleas, the government agreed not to bring

any additional criminal charges against CAC or its

officers and employees. The plea agreement aiso

provided 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.” Pet. App.

15a-16a, 40a-41a.

a. At the plea proceeding, in accordance with Fed.

R. Crim. P. 11(f), the district court inquired into the

factual basis for each defendant’s plea. The prosecutor

represented that the government’s evidence would show

an “overall conspiracy” consisting of “a pattern with

some of the contracts of Consolidated Aeronautics

Corporation to supply reconditioned, refurbished,

remanufactured and on occasion used parts when

government contracts called for the supply of new and

unused parts.” Pet. App. 6la. CAC, the prosecutor

continued, would also falsely certify that the parts

supplied were in compliance with the contract and

would submit claims for payment that were false for

the same feason. /bid. With respect to petitioner, the

prosecutor stated (id. at 63a):

[Petitioner] — and I think the factual basis will be

expanded on by [petitioner’s attorney and petition-

er] —- knew what was going on at the time and did

nothing to stop this particular pattern; indeed,

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 connection with the false state-

ment [charged in Count 2 of the information].

4

The prosecutor relied upon the same theory of cul-

pability with respect to the other two counts to which

petitioner offered guilty pleas. /d. at 64a.

Petitioner’s attorney disputed the prosecutor’s

account on two points. He denied that petitioner knew

about the substitution of parts and the false certifica-

tions at the time, and he denied that petitioner “par-

ticipated in the conduct as alleged in the Informa-

tion — the substantive conduct as alleged in the Information.”

Pet. App. 65a. Rather, according to petitioner’s

counsel, petitioner “did not know of the [illegal]

conduct at the time, nor did he actively participate in

the conduct.” /bid. However, counsel continued,

petitioner “did learn of the events that [the prosecutor

had] recited and which appear in the Information” and

“failed to bring them to the attention of the authorities

— either the investigating authorities or the Government

contracting officer who had cognizance of these contracts.”

Id. at 66a. Petitioner’s attorney concluded, “I believe

that constitutes a violation of [18 U.S.C. 3].” J/bid.

Petitioner subscribed to his attorney’s account, which

was also recorded in a written submission executed by

petitioner and his attorney.'

' Defendants’ Factual Basis for Guilty Plea to Information

(filed May 9, 1988) [hereinafter Defendants’ Factual Basis).

Consistent with the oral representations of petitioner’s attomey,

this submission asserted that petitioner had no contemporaneous

involvement in the underlying offenses to which he acted as an

accessory (id. at 2-3):

In approximately January 1986 and later, [petitioner] learned

from other officers of CAC who had primary responsibility

for the U.S. Govemment contracting business that CAC had

supplied “newly manufactured material” to the government

in connection with certain “selector set’ contracts even

5

Drawing upon the accounts of both the prosecutor

and petitioner’s attorney, the district court found a

factual basis for petitioner’s guilty plea (and those of

the co-defendants) “‘on the basis of, one, the proffer

made by [the prosecutor]; two, as qualified by various

counsel as to parts of their proffer to which they

disagree; and, three, including the factual basis as set

forth in the pleading just filed by the defendants.”

Pet. App. 69a.

b. Prior to petitioner’s sentencing, the government

filed a sentencing memorandum, in which it recom-

mended a sentence for each of the defendants. In an

introduction, the memorandum made the following

recommendation for petitioner (Pet. App. 71a):

For the reasons set forth more fully herein, the

government recommends the following sentences:

*x* kK kek kK *

[Petitioner]: A jail sentence of one year and

a fine of $625,000[.]

After a discussion of the facts, the memorandum also

stated (id. at 16a, 73a):

It is submitted that CAC’s long ingrained practice

uf selling defective parts was known to and

orchestrated by [petitioner]. But for his age and

health, a long prison sentence would be called for.

though the contract specifications called for the material to

be “new, unused surplus.” Further, [petitioner] learned at

that time that certifications had been submitted to the

government by CAC personnel which falsely affirmed that

the product supplied was “new, unused surplus,” when, as

[petitioner] leamed after the fact, the product was “newly

manufactured” material. (This applies to the contracts

referred to in counts two, three and five of the Information.)

6

Nevertheless, some prison is warranted to deter

[petitioner] and other corporate executives who

attempt to hide behind their employees. The

government submits that [petitioner] should be

sentenced to a prison term of at least one year.

Petitioner moved to withdraw his guilty plea,

contending that the sentencing memorandum’s use of

the phrase “at least one year” violated the govern-

ment’s promise in the plea agreement not to recom-

mend “a total period of incarceration of more than one

year.” Pet. App. 16a. The district court rejected this

contention, finding that the memorandum recommended

only one year of incarceration. The court explained

that it understood the sentencing memorandum to

acknowledge “that while [the prosecutor] can’t recom-

mend more, he is going to recommend one year. That

is what I believe and that is the way I interpreted it.”

Id. at 28a. The court added that even if there had

been a breach of the agreement, the proper remedy

would have been to resentence petitioner before another

judge, not to allow him to withdraw the plea. /bid. In

seeking to withdraw the plea, petitioner did not chal-

lenge the sufficiency of the information, argue that he

had not committed the offenses with which he was

charged, or challenge the factual basis for his guilty

plea.

The court sentenced petitioner to serve six months

in a COmmunity treatment center. The court also

imposed a five-year term of probation, a community

service obligation, and fines totalling $300,000. Pet.

App. 29a-31a.

2. On appeal, petitioner argued that he should

have been permitted to withdraw his guilty plea (1)

because the factual basis elicited during the plea

7

proceeding did not establish that he had committed any

affirmative act to assist the other defendants in attempt-

ing to avoid detection, and (2) because the prosecutor’s

seniencing memorandum violated the plea agreement.

The court of appeals rejected these contentions and

affirmed. Pet. App. 14a-24a.

With respect to the sufficiency of the factual basis

for the plea, the court found that the record before the

district court justified the conclusion that after learning

of his employees’ illegal activity, petitioner had engag-

ed in “obstruction of justice by providing a safe harbor

for the. criminal action and concealing their ongoing

crimes for personal or corporate profit.” Pet. App. 20a.

The court of appeals concluded that the district court

had “faithfully complied with the requireme:its of Rule

11(f).” Pet. App. 21a.

The court of appeals also rejected petitioner’s claim

that the government had breached the plea agreement.

The court noted that 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.” Pet. App. 23a. The panel also

upheld the district court’s understanding of the intent of

the agreement-—i.e., that “the prosecutor could not

recommend more than one year, but was free to argue

that the sentence should not be less than one year.”

Id. at 24a. The court of appeals held that the district

court had not abused its discretion when it denied

petitioner’s motion to withdraw his guilty plea. /bid.

8

ARGUMENT

1. Petitioner seeks further review of the questions

whether the government is obligated to “comply with

the literal terms of plea agreements” and whether the

government may seek to “cure its breach of a plea

agreement” after the defendant has moved to withdraw

his plea. Pet. i. On the facts as found by the lower

courts, neither of these questions is properly presented.

The district court concluded that the government had

not breached the plea agreement, explaining that the

prosecutor had “acknowledge[d] that while he can’t

recommend more, he is going to recommend one year.”

Pet. App. 28a. The court of appeals upheld the trial

court’s determination that the plea agreement permitted

that type of recommendation. /d. at 24a. The correct-

ness of the district court’s determination that the sum

and substance of the prosecutor’s recommendation was

“one year and no less” as opposed to “one year or

more” presents no issue calling for this Court’s review.

Even though the sentencing memorandum stated at

one point that petitioner “should be sentenced to a

prison term of at least one year” (Pet. App. 73a), it

would have been unreasonable for the district court to

conclude from the memorandum as a whole that the

government was recommending more than one year’s

incarceration. The same memorandum also clearly

stated that the government was recommending “[a] jail

sentence of one year” for petitioner. Pet. App. 71a.

Moreover, when it received the sentencing memoran-

dum, the district court was well aware that petitioner’s

plea agreement obligated the government not to “re-

commend at the time of sentencing a total period of

incarceration of more than one year.” T/d. at 40a.

Under these circumstances, the court sensibly refused

9

to interpret the memorandum in the manner the petition

advocates — i.e., to embody two separate and inconsis-

tent recommendations, one of which would violate the

plea agreement. Instead, the court read the phrase “at

least one year” to express the government’s position

that petitioner should be sentenced to serve one year of

imprisonment and no less. That interpretation was fully

consistent with ail of the statements in the sentencing

memorandum as well as the plea agreement.’

In response to petitioner’s motion to withdraw his

plea, the prosecutor confirmed that it was his intention

to recommend a prison term of one year, and he

offered to delete the words “at least” from the mem-

orandum. See Pet. App. 23a. As the court of appeals

noted, the prosecutor’s response to the motion simply

“clarified” his recommendation (ibid.)-— by removing

any possible doubt as to the intent of the sentencing

memorandum. The prosecutor did not concede that the

sentencing memorandum breached the plea agreement,

* That interpretation was also supported by the context in

which the words “‘at least one year” appeared. Shortly before,

the memorandum argued that “(bjut for [petitioner’s} age and

health, a long prison sentence would be called for” and that

“some prison is warranted.” Pet. App. 73a. As the district coun

suggested, the clear implication was that the government was

arguing for “some prison” (i.e., one year) and emphasizing that

this recommendation took account of petitioner’s poor health.

A district court’s determination of the terms of a plea

agreement is a finding of fact that may be reversed only for clear

error. See United States v. Barrett, 890 F.2d 855, 863-865 (6th

Cir. 1989); United States v. Caporale, 806 F.2d 1487, 1516 (11th

Cir. 1986), cert. denied, 482 U.S. 917 (1987); United States v.

Sutton, 794 F.2d 1415, 1423 (9th Cir. 1986); United States v.

Khoury, 755 F.2d 1071, 1073 (ist Cir. 1985).

10

and he therefore did not seek to cure any such breach.

When the district court pronounced sentence, petitioner

received all that he had coming under ithe agree-

ment — sentencing by a judge who understood that the

government was recommending no more than one year

of incarceration.

The court of appeals’ decision presents no issue of

general importance calling for this Court’s review. In

particular, contrary to petitioner’s contention (Pet. 13-

17), it does not conflict with decisions of other courts

of appeals holding that the government is obligated to

comply with the terms of a plea agreement. The court

of appeals acknowledged that the government “must be

held to the literal terms of the [plea] agreement,” Pet.

App. 22a, but simply chose not to disturb the district

court’s determination that the government’s sentencing

recommendation complied with the terms of the

agreement. Other courts of appeals have also refused

to reverse convictions on similar facts. See United

States v. Januszewski, 777 F.2d 108, 109-111 (2d Cir.

1985) (government’s agreement to recommend a

sentence “not to exceed six years” was not violated by

prosecutor’s statement that “nothing less than six years

would be an appropriate disposition”); United States v.

Bullock, 725 F.2d 118, 118-119 (D.C. Cir. 1984)

(government’s recommendation in presentence memo-

randum of sentence of “at least” 10 to 30 years did not

necessitate reversal of conviction, notwithstanding plea

agreement under which the government undertook not

to request sentence exceeding 10 to 30 years).

The question whether a defendant may withdraw a

plea of guilty prior to sentencing is “committed to the

sound discretion of the trial court.” United States v.

Navarro-Flores, 628 F.2d 1178, 1183 (9th Cir. 1980);

1]

see United States v. Pitino, 887 F.2d 42, 46 (4th Cir.

1989); United States v. Boyd, 610 F.2d 521, 524 (8th

Cir. 1979), cert. denied, 444 U.S. 1089 (1980). The

district court did not abuse its discretion in this case

when it denied petitioner’s motion for leave to with-

draw his guilty plea.’

2. Petitioner also contends that the record will not

_ Sustain his convictions for acting as an accessory after

the fact, in violation of 18 U.S.C. 3. Pet. 21-28.4 He

argues .that the information was defective because it

charged him with misconduct occurring during the

commission of the underlying offenses and that the

court of appeals upheld his conviction on the same

basis. /d. at 9-10, 13, 21 n.5, 23. As _ petitioner

concedes, this issue was not presented to either of the

lower courts. /d. at 21 n.5.

a. Because petitioner did not challenge the suf-

ficiency of the information in the district court, he has

> Even if the district court had erred in its conclusion that

there was no breach of petitioner’s plea agreement, the choice of

the appropriate remedy would be a matter within that court’s

discretion. See, e.g., United States v. Moscahlaidis, 868 F.2d

1357, 1363 (3d Cir. 1989); United States v. Tobon-Hernandez,

845 F.2d 277, 280-281 (11th Cir. 1988); United States v. Bowler,

585 F.2d 851, 856 (7th Cir. 1978). Cf. Mabry v. Johnson, 467

U.S. 504, 510-511 n.11 (1984). In this case, the district court

has determined that the proper remedy would be resentencing.

Pet. App. 28a.

* That statute provides, in pertinent par:

Whoever, knowing that an offense against the United

States has been committed, receives, relieves, comforts or

assists the offender in order to hinder or prevent his

apprehension, trial or punishment, is an accessory after the

fact.

12

‘waived any objection to its terms other than “that it

fails to show jurisdiction in the court or to charge an

offense.” Fed. R. Crim. P. 12(b)(2); see Fed. R. Crim.

P. 12(f). Moreover, in determining whether the infor- |

mation sufficiently charges a violation of 18 U.S.C. 3,

the information must be liberally construed in favor of

validity. Because petitioner failed to challenge it on a

timely basis, his convictions should not be reversed

“unless the [information] cannot within reason be con-

strued to charge a crime.” United States v. Vanover,

888 F.2d 1117, 1120 (6th Cir. 1989). Accord, e.g.,

United States v. Pheaster, 544 F.2d 353, 361 (9th Cir.

1976), cert. denied, 429 U.S. 1099 (1977); United

States v. Rivera, 879 F.2d 1247, 1251 n.3 (Sth Cir.),

cert. denied, 110 S. Ct. 554 (1989); United States v.

Phillips, 869 F.2d 1361, 1364-1365 (10th Cir. 1988),

cert. denied, 109 S. Ct. 2074 (1989); United States v.

Mallen, 843 F.2d 1096, 1102 (8th Cir.), cert. denied,

488 U.S. 849 (1988); United States v. Johnson, 805

F.2d 753, 758 (7th Cir. 1986).

The information in the case clearly satisfied that

standard. Each count to which petitioner pleaded guilty

alleged that CAC and one of its officers submitted a

false certification or false claim to the government and

that petitioner, “knowing that the [underlying] offense

had been committed, received, relieved, comforted and

assisted [the co-defendants] in order to hinder and

prevent their apprehension, trial and punishment.” Pet.

App. 35a-38a (emphasis added). None of these counts

can fairly be read to allege that petitioner assisted his

co-defendants, if at all, only in their commission of the

underlying offenses,.and each of them adequately set

forth all the elements of the offense of acting as an

accessory after the fact. See Hamling v. United States,

13

418 U.S. 87, 117 (1974). Read in its entirety and

“construed according to common sense,” see United

States v. Normandeau, 800 F.2d 953, 958 (9th Cir.

1986), the information charged that, after becoming

aware that the underlying offenses ‘“‘had been committed,”

petitioner subsequently assisted the principals in their

attempt to avoid detection.’

b. Neither of the lower courts acted upon the

misconception that petitioner could be convicted of

* The fact that the information alleged that the underlying

offenses had been committed in the district “{o]n or about”

particular dates and that petitioner had acted as an accessory “[a]t

said time and place” (Pet. App. 35a-37a) does not suggest that

the information cannot reasonably be construed to charge a crime.

Cf. United States y. Beebe, 792 F.2d 1363, 1366 (Sth Cir. 1986)

(“indictment’s validity is determined by a practical, not technical,

reading of the indictment as a whole”); United States v. Gironda,

758 F.2d 1201, 1209 (7th Cir.) (in reviewing sufficiency of

indictment, court must “consider the challenged count as a whole

and * * * refrain from reading it in a hypertechnical manner”),

cert. denied, 474 U.S. 1004 (1985). The information plainly

alleges that petitioner was being prosecuted because of what he

did “knowing that [each underlying] offense had been committed”

(Pet. App. 35a-37a).

In addition, it is well established that a charging instrument's

allegations regarding the date that a crime has been committed

are not material unless time is an essential element of the

offense; thus, proof that an offense occurred at a point in time

different than that alleged ordinarily does not constitute a

variance requiring reversal of a conviction. Sce, e.g., United

States v. Young, 862 F.2d 815, 818-819 (10th Cir. 1988); Russell

v. United States, 429 F.2d 237, 238 (Sth Cir. 1970); United

States v. Covington, 411 F.2d 1087, 1088-1089 (4th Cir. 1969).

A fortiori, in view of petitioner's failure to challenge the

information, any defect in its allegations as to time cannot now

be invoked as the basis for reversing his convictions.

14

acting as an accessory based solely upon assistance in

the commission of the underlying offenses. In finding

a factual basis for petitioner’s guilty pleas, the district

court drew upon the submissions of both the prosecutor

and petitioner’s counsel —i.e., the prosecutor’s proffer

“as qualified by various counsel as to parts of [the}

proffer to which they disagree * * * including the

factual basis as set forth in the pleading just filed by

the defendants” (Pet. App. 69a). Although the district

court did not specify the precise set of facts on which

it relied in accepting the plea, its express reference to

petitioner’s version of his activities forecloses any

contention that the plea was accepted on the basis of

° Fed. R. Crim. P. 11(f) provides that “({njotwithstanding the

acceptance of a plea of guilty, the court should not enter a

judgment upon such piea without making such inquiry as shall

satisfy it that there is a factual basis for the plea.” Under the

express terms of this rule, the factual basis for petitioner's plea

need not be drawn solely from his or his attorney’s admissions

on the record, but may include the prosecutor’s proffer and

sentencing memorandum, the presentence report, and the remain-

der of the record. See, e.g., United States vy. Montoya-Camacho,

644 F.2d 480, 485-486 (Sth Cir. 1981).

Moreover, even if the record prior to the entry of judgment

upon petitioner’s pleas were insufficient to establish a factual

basis, petitioner would not thereby be entitled to withdraw the |

plea. Because petitioner has never contended that his plea was

other than knowing and voluntary, the appropriate remedy for any

inadequacy in the factual basis shown upon the record would be

a remand to the district court to enable that court to determine

whether on a more complete record a factual basis could be

shown. See United States v. Allen, 804 F.2d 244, 248 (3d Cir.

1986), cert. denied, 480 U.S. 922 (1987); United States v.

Goldberg, 862 F.2d 101, 106-108 (6th Cir. 1988).

15

petitioner’s having aided and abetted the commission of

the underlying offenses.

The central theme of petitioner’s submission,

epitomized by the written factual basis he filed with the

court, was that petitioner’s misconduct postdated the

submission of the relevant false statements and claims

(Defendants’ Factual Basis 2-3 (emphasis added)):

In approximately January 1986 and later, [petition-

er] learned from other officers of CAC who had

primary responsibility 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,

[petitioner] learned at that time that certifications

had been submitted to the government by CAC

personnel which falsely affirmed that the product

supplied was “new, unused surplus,” when, as

[petitioner] learned after the fact, the product was

“newly manufactured material.”

Petitioner’s plea was not offered or accepted on the

assumption that he violated the law, if at all, only in

the commission of the underlying offenses themselves.

Nor was the court of appeals’ affirmance based

upon such a theory of criminal culpability. On appeal,

petitioner contended that the factual basis for his plea

was inadequate only because the record did not es-

tablish that he had committed an affirmative act in

assisting his co-defendants to conceal their offenses.

See Pet. App. 6a. The court rejected that contention,

but it did not hold that petitioner had provided assis-

tance, if at all, only in the commission of the offenses

themselves. Rather, it noted that the prosecutor had

16

been prepared to prove that “with knowledge that his

codefendants had filed prior false claims, {petitioner]

permitted his employees to continue to file false claims.”

Id. at 7a (emphasis added). Petitioner’s guilty plea was

valid, the court of appeals concluded, because “the

{district] court’s inquiry adequately established that

[petitioner] 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 understood the consequences of his plea.” Jd. at 8a

(emphasis added).

There is thus no support whatever for petitioner’s

assertion (Pet. 23) that “[t]he 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.” Nor did the

court find “that petitioner had assisted the company

and its employee during the commission of their offenses”

(ibid.). The court’s unpublished memorandum opinion

does not extend the offense of acting as an accessory

A Tite Ate eke mnt < acces enlin eaL, Uat aaa

17

after the fact and thus does not call for this Court’s

review.’

” According to the prosecutor’s proffer, the conspiracy alleged

in Count 1 continued through the end of October 1987. Pet.

App. 60a. The substantive offenses as to which petitioner was

alleged to have served as an accessory after the fact were .

committed on April 9, 1985 (Count 2), March 20, 1986 (Count

5), and April 4, 1986 (Count 3). The written factual basis filed

on petitioner’s behalf represented that he had leamed of CAC’s

illegal activities “[{i]n approximately January 1986 and later.”

Defendants’ Factual Basis 2. These facts (together with the

prosecutor’s proffer and other materials in the record) justify the

conclusion that petitioner became aware of each false statement

or claim in tum and acted as an accessory in the manner

described by that court. The accessory statute “makes no

exception for persons who are present at the scene of the crime,

or who may have participated in the planning or execution of the

offense.” Smith v. United States, 306 F.2d 286, 287 (D.C. Cir.

1962). Cf. United States v. Van Scoy, 482 F.2d 347, 349 (10th

Cir. 1973) (upholding conviction for acting as an accessory after

the fact to bank robbery upon indictment which charged defend-

ant with that offense and aiding and abetting the same robbery);

United States v. Day, 533 F.2d 524 (10th Cir. 1976), cert.

denied, 444 U.S. 902 (1979). Thus, the factual basis for

petitioner's guilty pleas was not undercut by the possibility that

the record could also have warranted an inference that he

participated in the commission of the underlying offenses. A

defendant who agrees to plead guilty to acting as an accessory

after the fact-a lesser offense than aiding and abetting that

camies distinct advantages for the defendant in terms of sentenc-

ing and other matters — should not be permitted to argue that any

ambiguities in the record must be resolved in favor of the more

serious offense to which he did not plead guilty.

18

CONCLUSION

The petition for a writ of certiorari should be

denied. —

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

NINA GOODMAN

Attorney

JUNE 1990

US GOVERNMENT PRINTING OFFICE 1990—262-203/00940