Reply Brief — Cruce v. United States

a 92-828 Seti ep

No. 92-848 FEB 25 1995

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OFFICE OF THe CLERK

In The

Supreme Court of the United States

October Term, 1992

¢

JAMES R. CRUCE,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

¢

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

+

REPLY BRIEF FOR PETITIONER

>

Bruce C. Houpek

JAMEs, MiLLert, Houpek & Tyr

500 Scarritt Building

818 Grand Avenue

Kansas City, Missouri 64106

Phone: (816) 842-2575

Fax: (816) 842-1135

Attorneys for Petitioner

James R. Cruce

COCKLE LAW BRIEF PRINTING CO,, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

I.

IMPOSITION OF SENTENCE PURSUANT TO MORE

PUNITIVE GUIDELINE AMENDMENTS ADOPTED

AFTER THE DEFENDANT’S OFFENSES HAD BEEN

COMMITTED VIOLATE THE EX POST FACTO CLAUSE.

THE COURT ERRED IN ACCEPTING DEFENDANT’S

CRUCE’S PLEA TO THE CONSPIRACY COUNT AND

ERRED IN ITS REFUSAL TO PERMIT DEFENDANT

CRUCE TO WITHDRAW HIS PLEA TO THAT COUNT AS

A SUFFICIENT FACTUAL BASIS WAS NOT MADE TO

SUPPORT THE PLEA AS CONSTRUED BY THE COURT

IN VIOLATION OF RULE 11, F.R.Cr.P., AND THE DUE

PROCESS CLAUSE.

Il.

THE COURT ERRED IN FAILING TO SET ASIDE THE

SENTENCE IMPOSED AND GRANT RECUSAL WHEN IT

WAS DISCLOSED THAT THE SENTENCING COURT

RECEIVED AND CONSIDERED PREJUDICIAL EX PARTE

COMMUNICATIONS FROM THE F.D.I.C. AND R.T.C.

PRIOR TO SENTENCE, AND THE REMAND FOR RESEN-

TENCING ORDERED BY THE TENTH CIRCUIT COURT

OF APPEALS SHOULD BE HEARD BY A DIFFERENT

DISTRICT JUDGE.

ii

TABLE OF CONTENTS

Page

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TABLE OF AUTHORITIES

CASES

Liljeberg v. Health Services Acquisition Corp., 486

eS eee ee eres

Miller v. Florida, 107 S.Ct. 2446 (1987), 482 U.S.

re ee

United States v. Bakker, 925 F.2d 728 (4th Cir.1991)...

United States v. Bloom, 945 F.2d 14 (2nd Cir.1991) ..

United States v. Lambey, 974 F.2d 1389 (4th Cir. 1992)

United States v. O’Hara, 960 F.2d 11 (2nd Cir.1992)

United States v. Rhodes, 913 F.2d 839 (10th

Cir.1990), cert denied, 111 S.Ct. 1079 ..........

STATUTES

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CRIMINAL RULES

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Petitioner submits the following reply brief concerning

matters first raised in the Brief For The United States in

Opposition.

STATEMENT

The remand by the Tenth Circuit for resentencing was

extremely narrow. The Court of Appeals affirmed petitioner’s

conviction and the manner in which the sentencing guidelines were

applied and computed but held that petitioner was . . . entitled to

resentencing during the course of which he shall have the oppor-

tunity to “ . . . comment upon [the letters in question] the probation

officers determination and other matters relating to the appropriate

sentence.” Pet.App. 11.

Characterization of the ex-parte letters sent to the sen-

tencing judge by the R.T.C. and F.D.I.C. prior to sentencing

as “ .. . discussing his case.” Brief in Opposition, page 3,

constitutes a substantial mischaracterization of the letters. See

C.A.App. A322-338 for the full text of the letters. The letter

written by Jack Smith Deputy General Counsel for the

F.D.1.C. contained factual statements, arguments and conclu-

sions relating to the offenses to which Cruce plead guilty,

charges which were dismissed under the plea agreement and

unindicted criminal acts. It contained numerous Citations,

Statutory references, statements of legislative history, foot-

notes and was self-described on page 5 asa“... legal

memorandum.” It accused Cruce of assignation with pros-

titutes provided by a codefendant, Las Vegas money launder-

ing, utilizing brown paper bags, unaccounted for millions in

profits, lack of cooperation, refusal to comply with subpoenas

and factual attributions to “sources.” Both letters urged the

court to impose a substantial prison sentence while the plea

agreement entered into by the U.S. Attorney’s Office and the

petitioner provided “ .. . that the Government will not

advocate a specific sentence, fine or imprisonment.”

C.A.App. 60.

In footnote 1 of the Covernment’s brief in opposition it is

noted that codefendant Thomas Burger whose case was also

remanded to the same district judge for resentencing by the

2

Tenth Circuit to permit him to comment upon similar ex-parte

letters has been resentenced by that judge to the exactly the

same sentence as was previously imposed prior to the appeal.

ARGUMENT

I.

IMPOSITION OF SENTENCE PURSUANT TO MORE

PUNITIVE GUIDELINE AMENDMENTS ADOPTED

AFTER THE DEFENDANT’S OFFENSES HAD BEEN

COMMITTED VIOLATE THE EX POST FACTO

CLAUSE.

The district court in making its finding that the peti-

tioner’s offense continued past the effective dates of the

guideline amendments ignored the clear record made at the

time of the plea of guilty. While the indictment alleged that

the conspiracy continued to the return date [January 10, 1991]

the only evidence that the district court had as a basis for its

finding was the petitioner’s plea of guilty which limited his

participation in the conspiracy “during the time period from

1984 through 1987, ...” C.A.App. A49.

During the in court plea proceeding the defendant was

sworn and the district court examined the petitioner and stated

referring to the Petition to Plead Guilty “this petition alleges

that during the time period from 1984 through 1987, ...” and

the defendant acknowledge that he understood the court’s

statement and that he did those acts. C.A.App. A78-79. The

court then requested that the prosecutor outline its evidence to

prove the defendant guilty of the offense. The prosecutor

made a detailed statement of facts concerning the offenses

referring to activities in November 1987, December 1987, and

July 1988. C.A.App. A80-84. The defendant acknowledged

that he believed the Government had evidence against him

that could prove him guilty of the four counts. C.A.App. A85.

The substantive offenses alleged in the indictment were all

alleged to have occurred between April 26, 1985, and Novem-

ber 21, 1988, and no date or action is referenced in the

indictment subsequent to November 21, 1988. C.A.App.

Al-47.

3

Thus, the defendant’s plea and the factual statements of

the prosecutor provided no evidence that petitioner’s partici-

pation in the conspiracy alleged in the indictment continued

past the effective dates of the amendments in 1989 and 1990

and the district court finding was totally inconsistent with

petitioner’s guilty plea and the factual statement of the pros-

ecutor.

The statement in petitioner’s Petition to Plead Guilty, his

sworn answers to the court’s questions and the prosecutor’s

factual statements related to both the substantive offenses and

to the conspiracy charge and were limited to dates prior to the

prejudicial amendments to the guidelines. It is axiomatic that

a defendant may be guilty of conspiracy and plead guilty to

conspiracy without admitting the totality of the acts alleged in

the conspiracy count of the indictment. The district court thus

had no evidence with which to make a finding that peti-

tioner’s conspiracy continued until 1991.

The substantive counts to which petitioner plead guilty

were a part of the conspiracy and petitioner's statement

clearly admitted to a conspiracy making specific reference to

agreements with others to commit the offense. C.A.App.

A49,78-79.

The finding of the district court quoted on page 7 of the

Government’s brief in opposition is not supported by the

factual record made at the time of the plea or the Petition to

Plead Guilty. The factual record on the plea only supports a

finding of criminal activities which ended prior to the effec-

tive dates of the prejudicial amendments of the guidelines and

thus imposition of sentence based upon the amendments to the

guidelines clearly violates the ex post facto clause.

The decision of the Tenth Circuit in petitioner’s case is in

direct conflict with the Second Circuit decision in United

States v. Bloom, 945 F.2d 14 (2nd Cir. 1991). As in Bloom

petitioner here at his plea was explicit in stating the dates of

his involvement in the conspiracy offense. This was made

clear to the district court on two occasions, that is, the factual

statement contained in the Petition to Plead Guilty and peti-

tioner’s sworn answers to the courts questions at the Rule 11

4

hearing. The Government’s factual statement at the plea hear-

ing also did not claim that defendant committed acts past the

effective dates of the guideline amendments. The record in

petitioner’s case is fully as clear as that in Bloom where the

defendant specified that his conduct occurred prior to the

effective date of the guidelines. In Bloom the court held that

the guidelines did not apply. Below, the Tenth Circuit, in

conflict with Bloom, held that the prejudicial guideline

amendments should be applied to petitioner. The court in

Bloom also pointed out that the court in making its factual

decisions concerning application of the guideline or applica-

tion of guideline amendments must rely on the facts in the

plea record and not on the dates stated in the indictment. The

court specifically held that the ending date of indictment did

not govern the decision. The court in Bloom stated: :

“Based on the foregoing, we conclude that a district

court has the authority to determine whether a

defendant’s participation in the charged offense

continued through the dates alleged in the indict-

ment. Here, Bloom essentially negotiated a change

in the plea agreement during the allocution by stat-

ing that he was only pleading guilty to conduct

occurring prior to November 1, 1987. See Gov't

Supp.App. at 5 (“[T]he U.S. Attorney’s Office

agreed not to charge David with committing any

crimes after November 1, 1987.”); see also United

States v. Edgecomb, 910 F.2d 1309, 1312 (6th Cir.

1990) (“If [defendant] disagreed with the dates of

the conspiracy, he should have attempted to negoti-

ate a change in the plea agreement.”). At the allocu-

tion, no specific evidence was presented which

indicated that Bloom continued to commit the

charged conduct beyond November 1, 1987. Since

Bloom’s plea allocution was deliberately limited to

pre-Guidelines conduct and the government failed

to introduce evidence of post-Guidelines conduct,

the district court did not err in finding by a prepon-

derance of the evidence that the defendant’s illegal

conduct occurred pre-Guidelines. Moreover,

5

because Bloom specifically disclaimed that his con-

duct encompassed: acts occurring after November 1,

1987, he may not now argue that he presented proof

of such conduct to Judge Edelstein. See United

States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990)

(counsel who stated that his client’s conduct

extended past November 1, 1987 and agreed that his

client should be sentenced under the Guidelines has

waived his objection to the judge’s proposed course

of conduct.).”

Bloom apparently thought he would receive a shorter

sentence if the guidelines were not applied. He specified the

dates in his plea and the Government did not object and the

court accepted the plea as stated. Here the same thing hap-

pened but the district court then ignored the limited nature of

the plea which the Government had approved and it had

previously accepted and imposed a sentence based upon the

later effective and prejudicial guidelines. The decision below

by the Tenth Circuit is clearly in conflict with Bloom.

The Tenth Circuit decision also conflicts with United

States v. Bakker, 925 F.2d 728 (4th Cir. 1991).

The court in Bakker specifically held that the alleged

ending date in the indictment does not govern the court’s

decision concerning applicability of guidelines or amend-

ments. The Fourth Circuit correctly observed that relying

upon the ending date alleged in the indictment would permit

the Government to manipulate applications of the guidelines

or guideline amendments.

The Tenth Circuit in its decision placed binding reliance

upon the boiler plate allegation of the indictment “commenc-

ing at least as early as 1984, the exact date being unknown to

the grand jury, and continuing until the return of this indict-

ment,...” C.A.App. AS. The Bakker court required that the

district court make its factual decision based upon the record

and not the formal indictment allegations. As noted the only

record compiled at the plea hearing were the admissions of

the defendant and statement of fact by the Government which

clearly showed only violations predating the effective date of

the prejudicial amendments. Thus, the Tenth Circuit decision

6

below clearly conflicts with the Fourth Circuit’s decision in

Bakker. The decision also conflicts with this court’s decision

in Miller v. Florida, 107 S.Ct. 2446 (1987), 482 U.S. 423, 96

L.Ed.2d 351.

THE COURT ERRED IN ACCEPTING DEFENDANT

CRUCE’S PLEA TO THE CONSPIRACY COUNT AND

ERRED IN ITS REFUSAL TO PERMIT DEFENDANT

CRUCE TO WITHDRAW HIS PLEA TO THAT COUNT

AS A SUFFICIENT FACTUAL BASIS WAS NOT MADE

TO SUPPORT THE PLEA AS CONSTRUED BY THE

COURT IN VIOLATION OF RULE 11, F.R.Cr.P, AND

DUE PROCESS CLAUSE.

The Government’s argument that the record shows that

the conspiracy continued into 1991 is in error. The only

record made at the time of the plea by the defendant in his

answers to the district court’s questions and by Government

counsel in his factual siatement of evidence that could be

adduced only show that the conspiracy continued into Novem-

ber of 1988. Only the boiler plate allegation of the indictment

alleging that the conspiracy “continuing until the return of

this indictment, .. . ” C.A.App. A5 suggests otherwise. The

indictment of course is no proof or evidence of the matters

alleged. Thus the only record made at the plea was that the

defendant’s involvement and the conspiracy ended in Novem-

ber of 1988.

If the district court construed the plea and found that the

defendant’s involvement in the conspiracy ended in Novem-

ber of 1988 then the record supported the plea and factual

basis established pursuant to Rule 11.

If the district court was to construe the plea as being to a

conspiracy continuing into 1991, then the factual basis was

insufficient to support such a finding and the district court

erred in accepting the plea. The requirements of Rule 11 for a

factual basis do not permit the court to accept a plea such as

petitioners which was very specific concerning his dates of

involvement and thereafter construe the plea to extend the

7

defendant’s involvement past the date which he admitted to

and thereafter apply subsequently amended guidelines which

quadrupled his sentence. The factual basis established at the

plea therefore does not support the sentence imposed and

reliance On guidelines amended after the dates specified by

the defendant and accepted by the court.

If the court intended to construe defendant’s plea as an

admission to a conspiracy continuing into 1991 when in fact

the plea entered by the petitioner only admitted to a conspir-

acy extending through 1987, then the district court was

required to permit him to withdraw it and was not entitled to

construe the plea as admitting to a conspiracy which extended

beyond the date that the petitioner admitted.

The Government in footnote 3 on page 8 of its brief

suggests that the petitioner did not disclaim an ongoing con-

spiracy. The petitioner twice during the plea proceeding spec-

ifically stated that he was involved from 1984 through 1987

and thereby denied that his offense continued past the effec-

tive dates of the guidelines amendments.

It should be noted that petitioner’s motion to withdraw

his plea was filed prior to imposition of sentence. Petitioner’s

counsel acted promptly prior to imposition of sentence when

it was first determined that the probation office through the

draft presentence report was contending that the prejudicial

guideline amendments applied.

The decisions in United States v. O'Hara, 960 F.2d 11

(2nd Cir.1992) and United States v. Rhodes, 913 F.2d 839

(10th Cir.1990), cert denied, 111 S.Ct. 1079, have no applica-

tion at bar. In O'Hara, the defendant had a “change of heart”

and wanted a jury to decide his guilt. Here the defendant

learned that the district court intended to construe his plea in

a manner which was inconsistent with the factual record made

at the plea hearing. Petitioner promptly made his motion to

withdraw the plea at the first opportunity when he learned by

way of the draft presentence report that the court intended to

impose a sentence based on the amended guidelines. In

Rhodes, the defendant had failed to disclose previous convic-

tions to his counsel when counsel attempted to calculate a

probable sentence under the guidelines. The undisclosed prior

8

convictions thus increased Rhodes criminal history category

thereby increasing his guideline range. Petitioner made his

position clear at the plea hearing specifying his dates of his

involvement in the conspiracy offense. Finally, in United

States v. Lambey, 974 F.2d 1389 (4th Cir. 1992), the defendant

claimed to have relied upon an incorrect guideline estimate by

his counsel. This decision has no application at bar.

Since the district court intended to construe petitioner’s

plea as an admission that his conspiracy offense continued

into 1991 when his admissions only extended through 1987,

the district court was bound to permit him the opportunity to

withdraw the plea and thus not trap him by accepting a plea

based on one set of facts and applying a different set of facts

to calculate the sentence under the guidelines.

The petitioner thus plead guilty knowing the guidelines

would apply but specifying that his conduct only continued

through 1987. The district court then trapped him and

imposed a sentence under subsequently amended guidelines

which quadrupled his term. The provisions of Rule 11 and 32

must be enforced and the decision below reversed.

THE COURT ERRED IN FAILING TO SET ASIDE THE

SENTENCE IMPOSED AND GRANT RECUSAL WHEN

IT WAS DISCLOSED THAT THE SENTENCING COURT

RECEIVED AND CONSIDERED PREJUDICIAL EX

PARTE COMMUNICATIONS FROM THE F.D.I.C. AND

R.T.C. PRIOR TO SENTENCE, AND THE REMAND

FOR RESENTENCING ORDERED BY THE TENTH

CIRCUIT COURT OF APPEALS SHOULD BE HEARD

BY A DIFFERENT DISTRICT JUDGE.

A characterization of the prejudicial ex parte letters from

the R.T.C. and F.D.1.C. to the district court as statements of

the “ .. . victims of petitioner’s crimes.” fractures credulity.

The F.D.1.C. and R.T.C. are only victims by reason of their

appointment as receiver for the failed institutions. They are

obviously highly experienced financial regulatory agencies

9

with sophisticated legal staff both in house and outside coun-

sel. A review of the R.T.C. letter will show that it is an

aggressive meticulously prepared sentencing memorandum

authored by four lawyers and signed by the Deputy General

Counsel of the F.D.I.C. C.A.App. A322-336. The 1-page

letter signed by former F.D.I1.C. Chairman L. William Sied-

man references the 15-page R.T.C. letter and invokes the

imperator of his office as Chairman of the F.D.I.C. to influ-

ence the district court and urge imposition of a substantial

term of imprisonment.

The Government in its brief argues that it would make no

difference that the R.T.C. and F.D.I.C. mailed their letters to

the court rather than to the U.S. Attorney. The U.S. Attorney’s

Office however could not send such letters to the court or the

probation office as it agreed in the plea agreement “.. . that

the Government will not advocate a specific sentence, fine or

imprisonment.” C.A.App. A60, thus the U.S. Attorney’s

Office could not send the letters. Even so the U.S. Attorney’s

Office would not write the court without copying the defen-

dant’s counsel.

While the defendant was aware that the Government

would consult with appropriate federal regulatory agencies

regarding his offense he had the right to expect that the

information received ar provided to the district court would

be made known to hi: ¢1ior to sentencing in order to permit

appropriate objections and showing pursuant to Rule

32(c)(3)(d).

This court’s decision in Liljeberg v. Health Services

Acquisition Corp., 446 U.S. 847 (1988), supports the require-

ment of recusal of the district judge. This court held that

scienter or knowiedge was not an element of a recusal pur-

suant to § 455(a) Title 28 United States Code. The district

court is required to recuse itself if its impartiality can be

reasonably questioned and it must avoid the appearance of

partiality. Here the district court’s receipt and consideration

of the letters coupled with its failure to advise the petitioner

and his counsel illustrates partiality and requires recusal. The

press release by the F.D.I.C. to R.T.C. confirm the appearance

of impropriety.

10

The Government in its brief cites the statement of the

district court that it did not consider the tetters in imposing

sentence. That statement is belied by the fact that the Tenth

Circuit Court of Appeals remanded the matter to the district

court for resentencing to permit the defendant to commit upon

the letters. The statement of the district court is also belied by

the fact that the district court imposed the exact amount of

restitution suggested by the ex parte letter and used the same

Statutory language in imposing the restitution order, see

C.A.App. A115, 334. See Petition for Writ of Certiorari No.

92-7196, pages 6-11 of codefendant Burger for a full discus-

sion of the striking similarities between the proposals of the

ex parte letters and the sentence imposed.

The freedom of the judiciary from improper communica-

tion by government agencies is at stake.

CONCLUSION

The Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

Bruce C. Houpex #17987

James, MiLitert, Houpexk & Tyre

500 Scarritt Building

818 Grand Avenue

Kansas City, Missouri 64106

Phone: (816) 842-2575

Fax: (816) 842-1135

Attorneys for Petitioner

James R. Cruce.

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