Opposition Brief — Rodriguez v. United States

In the Supreme Court of the United States

OCTOBER TERM, 1975

No. 75-1240

TOMAS RODRIGUEZ AND ANGEL

MANUEL SANTANA, PETITIONERS

V.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. A) is

reported at 529 F. 2d 530.

JURISDICTION

The judgment of the court of appeals was entered

on January 22, 1976. A petition for rehearing with

suggestion for rehearing en banc was denied on Feb-

ruary 23, 1976 (Pet. App. B). The petition for a writ

of certiorari was filed on March 2, 1976. The jurisdiction

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

QUESTION PRESENTED

Whether under the circumstances of this case the

court erred in denying petitioners’ motions to withdraw

their guilty pleas.

STATEMENT

Petitioners both pleaded guilty in the United States

District Court for the Northern District of Illinois to a

charge of having distributed heroin, in violation of 21

U.S.C. 841(a)(1). As set forth in the opinion of the court

of appeals (Pet. App. 2-4), petitioners’ guilty pleas were

the result of extensive plea bargaining. At the hearing

held pursuant to Fed. R. Crim. P. 11, the district court

questioned petitioners extensively concerning their decision

to plead guilty and the underlying factual basis for the

pleas, thoroughly explained to petitioners their consti-

tutional rights, advised them that the court was not bound

by the plea bargain, warned them of the maximum penalty

that could be assessed, and advised them that the court

would not pronounce sentence until it had considered

presentence reports. Petitioners then admitted committing

the offense charged and personally entered pleas of

guilty. The district court accepted the pleas.

On the date set for sentencing, the court observed

that statements petitioners had made to probation officers

for the purpose of their presentence reports (Pet. App.

D and E) raised a possibility of entrapment. The court

indicated that to it the statements implied that petitioners

were new in the narcotics business and that they had been

directed to the source of the heroin by Angel Mario

Torres, the government informer to whom petitioners had

made the sale (Tr. 121-123). Although the court said

it did not necessarily believe the statements (see

Pet. 5), it postponed sentencing (with the consent of all

parties) in order to clarify the matter and to resolve

the court’s questions.

The government subsequently informed the court that

the individual who had supplied the heroin to petitioners

had died and that Torres was in Puerto Rico. Petitioners

POEL I Rg A ES OO IRE Ie EIS

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filed a motion to have Torres produced and indicated

that they would move to withdraw their pleas if the

government was unable to produce him. A material

witness warrant for Torres was issued, and he was

returned under tight security for the hearing (Pet. App. 3).

At the hearing, petitioners, Torres, and Agent Mann of

the Drug Enforcement Administration testified concerning

the circumstances of the heroin transaction. Torres and the

petitioners were examined by the government, counsel

for petitionersand the court. After the hearing, petitioners

each moved to withdraw his guilty plea.

The district judge denied the motions, indicating that

the hearing had satisfied him that there was “nothing

to” his earlier questions regarding entrapment (Pet. 6).

Petitioner Santana was sentenced to two years’ im-

prisonment and petitioner Rodriguez to imprisonment

for a year and a day, each sentence to be followed by a

three-year special parole term (Pet. App. 4).! The court of

appeals affirmed (Pet. App. A).

ARGUMENT

Petitioners contend that the district court erred in

refusing to grant their motions to withdraw their guilty

pleas. In Kercheval v. United States, 274 U.S. 220, 224.

this Court indicated that prior to sentencing a trial

court “in exercise of its discretion” will permit the with-

drawal of a guilty plea “if for any reason the granting of the

privilege seems fair and just.” Under this standard, courts

of appeals, while holding that presentence motions to

withdraw guilty pleas should be viewed liberally, e.g.

Kirshberger v. United States, 392 F. 2d 782, 784 (C.A. 5),

'The sentence recommended by the government as a result of

the plea bargain was two years’ imprisonment with the mandatory

three-vear parole term (Pet. App. 4).

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correctly have refused to afford defendants an absolute

right to withdraw a guilty plea prior to sentencing,

e.g., United States v. Presley, 478 F. 2d 163, 166 (C.A.

5); United States v. Webster, 468 F. 2d 769, 771 (C.A.

9), certiorari denied, 410 U.S. 934; United States v.

Stayton, 408 F. 2d 559, 561 (C.A. 3). Instead, the matter

is left to the sound judgment of the trial court, whose

determination is reversible only for abuse of discretion.

E.g., United States v. Barker, 514 F. 2d 208, 219

(C.A. D.C.), certiorari denied, 421 U.S. 1013; United

States v. Vallejo, 476 F. 2d 667, 669 (C.A. 3); United

States Vv. Lombardozzi, 436 F. 2d 878, 881 (C.A. 2).

certiorari denied, 402 U.S. 908.

There was no abuse of discretion here. The trial judge

displayed an abundance of caution in calling sua sponte

for an explanation of petitionerS' unsworn statements

contained in the presentence reports.? At the hearing,

the judge’s doubts were completely resolved, and he

concluded correctly that there was “nothing to” his

initial concerns. Under these circumstances, there was

no “fair and just” reason warranting the withdrawal

of petitioners’ guilty pleas. See United States v.

"We submit that the statement did not in fact give the trial

court a basis to be concerned about the possibility of entrapment.

As this Court has said, the entrapment defense “focus[es] on the

intent or predisposition of the defendant to commit the crime.”

United States \. Russell, 411 U.S. 423, 429. rather than upon the

conduct of the government's agents. See Hampton v. United States,

decided April 27. 1976 (No. 74-5822). Petitioners’ statements in their

presentence reports contained nothing to support an inference that

there was not the intent or predisposition to commit the crime

for which petitioners had pleaded guilty. See Sorrells v. United

States, 287 U.S. 435: Sherman v. United States, 356 U.S. 369.

‘Indeed, in the circumstances of this case, the fact that one of

the parties to the criminal transaction had died, and the prosecution's

case might to some extent have been prejudiced thereby, would

be further reason not to allow withdrawal of the pleas.

Besar: ERO ems eta ck RE ig ek cee

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Barker, supra, 514 F. 2d at 218-222.4 The court of appeals

correctly so held, stating (Pet. App. 6):

Based upon our independent review of the record

as a whole, certain things have become clear to us.

The [petitioners] guilty pleas were made in full

accord with all of the requirements of Fed. R. Crim.

P. 11. The district court properly accepted the pleas.

Only after a lingering doubt as to a possible defense

of entrapment did the trial court wisely and com-

passionately postpone sentencing until such doubts

had been resolved. [Petitioners] were given every

opportunity to, and did, participate fully in the pro-

ceedings held for that purpose. In our considered

judgment Judge Will correctly and fairly resolved

the question of entrapment adversely to [peti-

tioners]. He reiterated that the determination of

the entrapment question was the sole purpose of the

extended hearings. Having resolved that question, the

judge then quite properly found in substance that

there was no good reason at all why the motions

to withdraw the guilty pleas should not be denied.

It was an exercise of sound discretion on his part.

4Petitioners’ claim (Pet. 11-13) of a conflict among the circuits does

not withstand scrutiny. The courts wisely have eschewed per se rules

in this area, and instead determine each case on its particular

facts. The different results reached by courts in certain cases

merely reflect this particularized analysis. Thus, in United States

\. Presley @ supra, cited by petitioners (Pet. 12-13), an intervening

decision of this Court aftorded a possible defense which had not

been available when the plea was first entered. In Gearhart v.

United States, 272 F. 2d 499 (C.A. D.C.) (cited at Pet. 13), in addition

to applying an incorrect standard (see 272 F. 2d at 502). the district

court had essentially refused to consider defendant's nonfrivolous

claim of mental incompetence. See also United States v. Stayton.

supra (district court applied the wrong standard).

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CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

RoBERT H. Bork,

Solicitor General.

RICHARD L. THORNBURGH,

Assistant Attorney General.

SHIRLEY BACCUS-LOBEL,

MARSHALL TAMOR GOLDING,

Attorneys.

May 1976.

DOJ-1976-05

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