# Opposition Brief — Strube v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 1024

## Text

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:
a a aig i gl ae Ce 2,11,12
ee og alas Wd ee el we alias 2
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1406%3A2. Public record. Not legal advice.