United States v. Briscoe

Decision Date16 October 1970
Docket NumberNo. 22476.,22476.
Citation432 F.2d 1351
PartiesUNITED STATES of America v. Ian P. BRISCOE, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

Mr. Samuel Scrivener, Jr., Washington, D. C. (appointed by this Court), for appellant.

Mr. Brian W. Shaughnessy, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before LEVENTHAL and ROBINSON, Circuit Judges, and DAVIES,* Judge, United States District Court for the District of North Dakota.

LEVENTHAL, Circuit Judge.

The initial issue raised on this appeal is whether appellant's plea of guilty to housebreaking was in any way fostered by the Assistant United States Attorney on the case, so as to justify withdrawal of the plea to prevent "manifest injustice" under Rule 32(d) of the Federal Rules of Criminal Procedure. We affirm the District Court's holding on remand following an earlier decision by this court, that the attorney's behavior did not in any significant way affect appellant's decision to plead guilty.

Appellant, an alien, was first convicted of housebreaking in 1960, and sentenced under the Youth Corrections Act, 18 U.S.C. §§ 5005-5026 (1964). While on probation, he was convicted of two more housebreaking offenses in 1964, the second of which is appealed from here. Appellant contends that he entered his guilty plea to the second offense so as to be eligible for deportation under the conditions of 8 U.S.C. § 1251(a) (4), which provides for the deportation of aliens upon conviction of two crimes involving moral turpitude. Appellant desired deportation so as to begin a new life as an enlistee in the British Marines. He testified that he had concluded, upon the advice of his counsel, of the Immigration and Naturalization Service, and of the Assistant United States Attorney, that this third conviction was necessary because the first conviction, imposed under the Youth Corrections Act, would not be counted by the Service toward deportation. Therefore, he pled guilty. However, subsequent to his conviction, he sought to withdraw his guilty plea on the second 1964 offense.

When the case was first on appeal here, we noted our concern that the Government attorney, in the absence of a strong case against appellant,1 may have made representations to appellant to the effect that all that was desired was to deport him, and that as the 1960 conviction would not be counted for that purpose, a second 1964 conviction was necessary. We then stated: "If the Immigration and Naturalization Service practice is as we understand it to be from the reported decisions, and if the Assistant United States Attorney was involved in a significant way in appellant's decision that a further plea was required to render him amenable to deportation under 8 U.S.C. § 1251(a) (4), we think it may well be in the interest of justice that the guilty plea be set aside."2 Briscoe v. United States, 129 U.S.App.D.C. 146, 150, 391 F.2d 984, 988 (1968).

The Supreme Court in recent months has spoken on the matter of guilty pleas. "Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences." "We decline to hold, however, that a guilty plea is compelled and invalid under the Fifth Amendment whenever motivated by the defendant's desire to accept the certainty or probability of a lesser penalty rather than face a wider range of possibilities extending from acquittal to conviction and a higher penalty authorized by law for the crime charged." Brady v. United States, 397 U.S. 742, 748, 751, 90 S.Ct. 1463, 1470, 25 L.Ed.2d 747 (1970). Moreover, in weighing the factors inherent in the difficult judgment on whether to plead guilty, defendant cannot later claim involuntariness merely because the advice of his counsel involving a question of law proves wrong, so long as such advice is within the general bounds of reasonable competence. McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed. 2d 763 (1970).

Under appropriate circumstances the fact that a defendant has been misled as to consequence of deportability may render his guilty plea subject to attack. Insofar as a contrary view may be inferred from United States v. Parrino, 212 F.2d 919, 922 (2d Cir. 1954), cert. denied 348 U.S. 840, 75 S.Ct. 46, 99 L.Ed. 663 (1954), on the ground that deportability is only a "collateral consequence" of conviction, we agree with Professor Moore, see 8A, J. Moore, Federal Practice ¶ 32.07 3b at 32-80 (Cipes ed. 1969): "the vigorous dissent of Judge Frank in Parrino more likely reflects the present attitude of the federal judiciary."

Deportation is a "drastic measure and at times the equivalent of banishment or exile, * * * It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty." Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 377, 92 L.Ed. 433 (1948). See also Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951). Calculations of the likelihood of...

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