# Opposition Brief — Rodriguez v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0087%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1976
- **Citation:** 425 U.S. 999

## Text

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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3

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).

4

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

5

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).

6

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

ye

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385609_0087%3A2. Public record. Not legal advice.