U.S. v. Torrez-Flores, TORREZ-FLORE

• Citation: 624 F.2d 776
• Decision Date: 22 May 1980
• Docket Number: TORREZ-FLORE,No. 79-1155,D,79-1155
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Javierefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 776

624 F.2d 776

UNITED STATES of America, Plaintiff-Appellee, v. Javier TORREZ-FLORES, Defendant-Appellant.

No. 79-1155.

United States Court of Appeals Seventh Circuit.

Argued Jan. 16, 1980.

Decided May 22, 1980.

Charles Crutchfield, Beverly Peyton (Law Student), Notre Dame, Ind., for defendant-appellant.

Terry G. Harn, Asst. U. S. Atty., Peoria, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, and SWYGERT and SPRECHER, Circuit Judges.

SWYGERT, Circuit Judge.

This appeal from a probation revocation raises two issues, first, whether the trial judge violated Rule 11 of the Federal Rules of Criminal Procedure when he accepted a guilty plea from defendant-appellant who was Spanish speaking and did not understand English; and second, whether the court erred in revoking defendant's probation on the basis of his misrepresentation that he had no prior convictions. Because we hold that defendant may not collaterally attack his underlying conviction at a probation revocation hearing, we do not reach the merits of defendant's Rule 11 claim. On the second issue, we conclude that the trial judge did not abuse his discretion in revoking defendant's probation because we find that the veracity of defendant's representation that he had no prior record was a condition of his probation, and that in any case, defendant had sufficient notice that his probation could be revoked if his representation was not truthful. Accordingly, we affirm.

I

Defendant Javier Torrez-Flores was arrested on March 17, 1978 and charged with illegal transportation of aliens in violation of Title 8, Section 1324(a)(2) of the United States Code, 8 U.S.C. § 1324(a)(2). At the arraignment on April 3, an interpreter was provided because defendant could not understand English. The interpreter, Anthony Alee, was under oath to translate faithfully from Spanish to English and from English to Spanish. The transcript does not reflect the words spoken by Alee to the defendant in Spanish, or by the defendant to Alee, also in Spanish.

Defendant entered a plea of guilty in accordance with a plea agreement previously arrived at between himself and the United States Attorney at Peoria, Illinois. When asked if he understood and approved the agreement, including a special condition that the agreed-upon probation was contingent on defendant agreeing not to return to the United States illegally if he was deported by the Immigration and Naturalization Service, defendant replied in the affirmative. The court then described the rights which defendant would waive by pleading guilty and inquired as to whether defendant understood "all that." Defendant again answered in the affirmative. The judge asked if defendant had heard the elements of the offense alleged by the Government and if they were true. Defendant responded that they were.

Next the trial judge turned to the matter of a pre-sentence investigation which had not been ordered before that time. He questioned defendant about his background, and then asked whether defendant had any prior criminal record. Defendant replied in the negative. The judge asked defendant if he understood that if it was learned that he did have some prior criminal record his probation could be revoked. Defendant replied that he understood. The judge then asked defendant if he was telling the truth when he said that he had no record, and defendant said that he was.

The agreement was accepted by the judge who stated that "in keeping with the agreement" defendant was sentenced to five years probation on the usual conditions of probation with the further condition that if defendant was deported by the Immigration and Naturalization Service, he was not to return to the United States illegally during the term of probation. The judgment and probation/commitment order recited the special deportation condition contained in the plea agreement and stated that the defendant "shall comply with the general and special conditions of probation as set out in Form # 7. . . ." Form 7 contained the special condition that probationer have no prior record as well as the deportation special condition. Those special conditions were typed in English while the remainder of the form was in Spanish. Defendant signed Form 7 on the day of the arraignment.

On December 14, 1978, a petition for revocation of probation was filed with the district court and a warrant for defendant's arrest was issued. The special condition that defendant have no prior record was cited in an attendant report along with a copy of a FBI information sheet showing arrests and time spent in jail by an individual who had used several aliases but who was in fact the defendant. The report stated that two arrests had resulted in convictions. The petition for revocation enumerated the two conditions of probation, but inserted the word "arrest" before the word "record" to read "no prior arrest record."

At the probation revocation hearing, defendant's attorney stated that defendant now admitted having a prior criminal record, but that defendant had understood the special condition attached to his probation to be no prior convictions for the crime of transporting illegal aliens rather than no prior convictions for any crime. There was conflicting testimony that defendant had told his probation officer that he had intentionally misrepresented his prior record for fear that he would otherwise be incarcerated or deported. In addition, there was testimony that at a different time, defendant said he misrepresented his prior record because his lawyer told him to do so. Interpreter Alee testified that he had been an interpreter for fifty or sixty defendants and that it was his practice to translate word for word exactly what the trial judge said. He also testified that when translating a statement of great importance, such as the probation being conditional on the veracity of defendant's representation, he asks not once but twice if the statement is understood. At the conclusion of the revocation hearing, the trial judge revoked defendant's probation. Defendant appeals from the revocation order.

II

Defendant's first contention is that the district judge erred by failing to adhere to the requirements of Rule 11 of the Federal Rules of Criminal Procedure when he accepted defendant's guilty plea. ¹ Rule 11 governs the use, acceptance, and rejection of pleas in the United States criminal justice system, and failure to follow its procedures may result in a new trial for the defendant. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). However meritorious this defendant's Rule 11 claim may be, an appeal from a probation revocation is not the proper avenue for a collateral attack on the underlying conviction. In United States v. Francischine, 512 F.2d 827 (5th Cir.), cert. denied, 423 U.S. 931, 96 S.Ct. 284, 46 L.Ed.2d 261 (1975), the court held that the validity of a conviction could not be asserted as a defense in a probation revocation proceeding, and that a "district court has jurisdiction to consider a petition for revocation of probation as if the underlying conviction were unquestioned, until such time as the conviction has been judicially set aside." Id. at 828. In that case, the defendant had contended that subsequent to his conviction the United States Supreme Court had held that the type of activity to which he pled guilty did not constitute an offense under the applicable statute. At the probation revocation proceeding, the district judge, faced with that attack on the original conviction, considered the merits and decided that the Supreme Court's decision had prospective effect only. He then revoked the defendant's probation because of a violation of the terms of the probation. On appeal of the revocation, the Fifth Circuit refused to consider the issue of the validity of the underlying conviction stating that the only issue before the court was whether there was a violation of the terms of the probation. This court has also stated as much:

The inquiry of the court at such a (probation revocation) hearing is not directed to the probationer's guilt or innocence in the underlying criminal prosecution, but to the truth of the accusation of a violation of probation.

Brown v. Warden, 351 F.2d 564, 566-67 (7th Cir. 1965).

The practice of limiting probation revocation hearings, to the issue of the probation is explainable on the basis that a probation revocation hearing is not a formal trial. In a probation revocation hearing the power to revoke probation is discretionary as is the judge's initial decision to grant probation. The Federal Rules of Evidence do not apply except for the rules of privilege. ²

Evidence that would establish guilt beyond a reasonable doubt is not required . . . . Probably evidence rising to the level of substantial evidence is not even required, absent arbitrary and capricious action in the revocation. All that is required is that the evidence and facts be such as to reasonably satisfy the judge that the conduct of the probationer has not been as good as required by the conditions of probation. . . . On review, an action of the trial court revoking probation will not be disturbed in the absence of a clear showing of abuse of discretion.

A 28 U.S.C.A. § 2255 proceeding for challenging collaterally the validity of a federal conviction is, on the other hand, a formal procedure with all the usual accouterments of a civil trial. . . . The issues of fact will be resolved under the Federal Rules of Evidence, Rule 1101(e). There is no room for the exercise of that judicial discretion which is involved (in) . . . probation. The trial court's decisions are faced with the clearly erroneous and error of law standards of review applicable to other civil proceedings. The party with the burden of proof loses upon a failure to carry that burden.

United States v. Francischine, 512 F.2d 827, 829 (5th Cir.), cert. denied, 423 U.S. 931, 96...