Brief for the United States in Opposition — Mauro v. United States

Iu the Supreme Court of the United States

OCTOBER TERM, 1968

No. 953

VINCENT MAURO, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. A-1

to A-2) is reported at 399 F. 2d 158. The opinion of

the district court (Pet. App. A-3 to A-11) is reported

at 280 F. Supp. 371.

JURISDICTION

The judgment of the court of appeals was entered

on September 5, 1968. By order of Mr. Justice Har-

lan, the time for filing a petition for a writ of certio-

(1)

2

rari was extended until February 3, 1969, and on

January 17, 1969, the petition was filed. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

QUESTION PRESENTED

Whether petitioner was entitled to have set aside his

plea of guilty to ten narcotic offenses on the basis of

his allegation that at the time of the plea he was un-

aware he would be ineligible for parole.

STATEMENT

In 1961 petitioner was named as one of twenty de-

fendants named in a thirty count indictment charging

various violations of the federal narcotics laws (21

U.S.C. 178, 174). He pleaded not guilty, posted

$50,000 bond, but became a fugitive before trial. Trial

of ten other defendants was concluded in December

1961. See United States v. Agueci, 310 F. 2d 817

(C.A. 2), certiorari denied, 372 U.S. 959.

Early in 1962, petitioner was apprehended in the

Azores and brought back to the United States. In

1962, he entered a guilty plea to bail jumping, and

sentencing was deferred pending disposition of the

narcotics case. On March 4, 1963, after selection of a

jury, petitioner, who was represented by counsel of

his own selection, pleaded guilty to all ten narcotics

counts in which he was named. The court questioned

petitioner as to the voluntariness of his plea and in-

quired into his understanding of its meaning and

effect (Pet. App. A-14 to A-15). This questioning did

not mention parole ineligibility or the sentence which

might be imposed. One week later, on March 11, 1963,

petitioner, again represented by his counsel, appeared

for sentencing. At the time of allocution, petitioner

said: “please * * * take into consideration I am a first

offender and the minimum sentence is five years”

(App. 23).’ Petitioner’s counsel at that time stated

he was not representing that petitioner was innocent

(App. 24). The court sentenced petitioner to fifteen

years’ imprisonment on each count, to run concurrent-

ly. Petitioner was also sentenced to a concurrent five-

year term for jumping bail.

About six weeks later, on April 30, 1963, petitioner

moved for reduction of sentence. Paragraph 7d of his

application stated that it was predicated upon the

ground: “That no parole is available to the defend-

ant.” In paragraphs 8 and 17 the lack of parole eli-

gibility for a narcotics law violator was also noted

(App. 27-28). This motion was denied.

On September 25, 1967, petitioner instituted the

present proceeding under 28 U.S.C. 2255, claiming

that he had entered his guilty plea in ignorance of its

consequences, Petitioner submitted an affidavit to the

effect that, at the time of the guilty plea he did not

know that he would be ineligible for parole (Pet. App.

A-19 to A-24). Also submitted was an affidavit from

his counsel stating that, while he had “assumed”’ peti-

tioner knew he would be ineligible for parole, he had

not expressly informed petitioner of this fact (Pet.

App. A-16 to A-18). The trial court, after consider-

1The court of appeals record on file with the Clerk of this

Court has been consecutively paginated and is designated

herein as “App.”.

4

ing the affidavits and the record in the case, concluded

that petitioner, at the time of the guilty plea, did know

of his ineligibility for parole, but that in any event,

even if the facts were as petitioner aileged, he would

not be entitled to any relief (Pet. App. A-3 to A-11).

ARGUMENT

For the reasons discussed by the trial judge (Pet.

App. A-8 to A-11), there is ample basis for the con-

clusion that petitioner was aware, at the time he en-

tered his guilty plea, that he would be ineligible for pa-

role. Petitioner’s own counsel] had not explicitly ad-

vised him of this circumstance because he “as-

sumed that the Petitioner was aware of this” (Pet.

App. A-17). At the time petitioner entered his plea,

he was 47 years of age (App. 28) with a criminal

record dating back to 1931 (App. 19). The charges

against him involved a large scale narcotics conspir-

acy. Petitioner was a member of the “executive group”

that “initiated the various importations and the sub-

sequent distributions and sales of the narcotics” (see

310 F. 2d at 820-821). After his co-defendants were

convicted and petitioner returned to the United States,

he was held in federal custody in New York City from

February 1962 until his plea in March 1963 (App.

19). Pecitioner’s age, criminal experience, criminal

associates, and one year’s residence in a federal lockup

while waiting for his narcotics trial to start all sug-

gest that petitioner knew the ancillary aspects of any

sentence imposed for narcotic offenses. This conclu-

sion is buttressed by the fact that barely a week after

his plea, during allocution, petitioner himself asked

Labi OUR Gani Sek hited i

5

the sentencing judge to take into account that he was

a first (narcotics) offender but that the minimum sen-

tence was five years. Furthermore, although in April

1963—less than two months after his guilty plea—he

expressly mentioned his ineligibility for parole in the

course of seeking a reduction in sentence, more than

four years elapsed “without any outcry of innocence

or injustice” based upon a claim of ignorance of that

fact at the time of his plea. Pinedo v. Unit d States,

347 F.2d 142, 146 (C.A. 9), certiorari denied, 382

U.S. 976,

In any event, as the district judge held (Pet. App.

A-6 to A-8), vacation of the conviction is not required

because the judge failed to advise him that parole was

unavailable before accepting his guilty plea. Aware-

ness of punishment is only one of several factors to be

considered in determining the propriety of the accept-

ance of the guilty plea. “It is not a factor which,

alone and bare, demands in its absence a vacation of

a sentence. The circumstances in each case are impor-

tant.” Verdon v. United States, 296 F. 2d 549, 553

(C.A. 8), certiorari denied, 370 U.S. 945. At the time

of sentencing, petitioner knew that the minimum sen-

tence under each count was five years and thus knew

that he might receive at least a fifty year sentence if

the trial court decided to impose minimum sentences

but to run them consecutively. Petitioner’s actual

minimum imprisonment, 15 years, less possible good

time allowance, is far less than one third the maximum

imprisonment imposable (200 years) and is less than

one third the maximum if minimum consecutive sen-

tences had been imposed. Petitioner’s personal his-

6

tory was such that he could not reasonably have ex-

pected to be a candidate for early parole. Under the cir-

cumstances, it is clear that an erroneous reliance upon

the possibility of parole played no part in petitioner’s

deliberate decision to plead guilty after his jury had

been selected and his co-defendants already convicted.

See Trujillo v. United States, 377 F. 2d 266 (C.A. 5),

certiorari denied, 389 U.S. 899; Smith v. United

States, 324 F. 2d 436 (C.A.D.C.); Simon v. United

States, 269 F. Supp. 738 (E.D. La.) ; see, also, United

States v. Parrino, 212 F. 2d 919 (C.A. 2), certiorari

denied, 348 U.S. 840.?

Contrary to petitioner’s assertion (Pet. 9-11) the

decision below does not rest on petitioner’s inability to

allege his innocence but on the court’s finding, from

the files and record, that his plea was in fact entered

voluntarily and knowingly.—

2In Munich v. United States, 337 F. 2d 356 (C.A. 9), on

which petitioner relies, the defendant pleaded guilty to only

one count, so that ineligibility to parole might have affected

his awareness of the maximum term. Moreover, that case

must be read in the light of the facts there presented, where

the judge made zo inquiry under Rule 11 before accepting

a plea of guilty and it was necessary for the government to

overcome a presumption that the plea was not knowingly

and voluntarily entered. Here the court did conduct an in-

quiry under Rule 11 before accepting the plea (see Pet. App.

A-14 to A-15).

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

ERWIN N. GRISWOLD,

Solicitor General.

WILL WILSON,

Assistant Attorney General.

BEATRICE ROSENBERG,

EDWARD FENIG,

Attorneys.

FEBRUARY 1969.

W ov. S. GOVERNMENT PRINTING OFFICE; 1969 333845 sos