U.S. v. Partida-Parra
| Decision Date | 20 September 1988 |
| Docket Number | PARTIDA-PARR,D,No. 87-5295,87-5295 |
| Citation | 859 F.2d 629 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jesus Antonioefendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
D. Steven McEvers, Newport Beach, Cal., for defendant-appellant.
Larry A. Burns, Asst. U.S. Atty., San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
Before HUG, FLETCHER and FARRIS, Circuit Judges.
Jesus Antonio Partida-Parra appeals his conviction on four counts relating to heroin distribution and weapons possession. Partida-Parra claims that the district court abused its discretion by setting aside his guilty plea to a lesser charge of misdemeanor possession after the plea had been accepted by the court.
On December 17, 1986, Partida-Parra was indicted for possession and conspiracy to possess heroin with intent to distribute, 21 U.S.C. Secs. 841(a)(1), 846 and for using and carrying a firearm during a drug trafficking crime, 18 U.S.C. Sec. 924(c). These charges cumulatively carried a mandatory minimum sentence of ten years and a maximum of 45.
During initial plea negotiations, Partida-Parra's counsel, George Siddell, indicated that his client would only plead guilty to a misdemeanor, so as not to destroy his eligibility for immigration amnesty. However, Assistant U.S. Attorney Larry Burns maintained that he would only accept a plea to a felony.
On February 2, 1987, Siddell discussed a plea agreement with AUSA Phillip Halpern, who was standing in for Burns. Apparently, a plea agreement was reached. The same day, Halpern prepared, and Burns signed, an information superseding the original indictment and charging Partida-Parra with misdemeanor possession of On March 23, Burns telephoned Siddell and informed him that the superseding information contained a "clerical" error: the correct charge was not supposed to be 21 U.S.C. Sec. 844, a misdemeanor, but 21 U.S.C. Sec. 841, the felony possession section. 1 The next day, Burns wrote to the court that the defendant had been erroneously permitted to plead to a misdemeanor and indicated that the government would move to set aside the misdemeanor guilty plea.
heroin in violation of 21 U.S.C. Sec. 844. On February 9, Halpern appeared at the trial-setting hearing and filed the superseding information, and Partida-Parra entered a plea of guilty to the misdemeanor. The court accepted the plea, pursuant to Rule 11.
On April 20, the court held a brief hearing and granted the government's motion to set aside the misdemeanor guilty plea. The court reinstated Partida-Parra's plea of not guilty to the charges in the original indictment and set the case for jury trial. The trial was held on May 19-20, and Partida-Parra was convicted on all counts. He was sentenced to a total of ten years imprisonment.
Both parties and the district court assume that a district court has discretion to vacate a guilty plea on the government's motion even though the court has accepted the plea and the defendant has not breached his part of the agreement. However, the basis for that authority is unclear. The possible bases are 1) the Federal Rules of Criminal Procedure and 2) the "common law" of plea agreements.
The procedure for plea agreements, set forth in Fed.R.Crim.P. 11(e), provides in relevant part for negotiated plea agreements in which the defendant offers to plead guilty "to a charged offense or to a lesser related offense" in return for the government's promise to "move for dismissal of other charges ..." Fed.R.Crim.P. 11(e)(1)(A). 2 This agreement must be disclosed to the court at the time the plea is offered, at which time the court has three options: "the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report." Fed.R.Crim.P. 11(e)(2). In this case, the court unconditionally accepted the plea on February 9.
The Federal Rules allow the court to change its decision to accept a guilty plea under two circumstances. However, neither appears applicable here. Rule 11(f) states:
Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.
While this provision implies that acceptance of the guilty plea does not foreclose a subsequent rejection of the plea if factual questions emerge, for instance at sentencing, it cannot be read to authorize the court to vacate a plea on the basis of a discrepancy in the parties' understanding of the plea agreement. Having a "factual basis for the plea" means ascertaining "that the conduct which the defendant admits constitutes the offense charged in the indictment or information or an offense included therein to which the defendant has pleaded guilty." Advisory Committee Notes to 1966 Amendment; 8 Moore's Fed Prac. p 11.07; see Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971); Salas v. United States, 529 F.2d 1276, 1277 (9th Cir.1976) (per curiam). Thus, the "factual basis" does not refer to the plea negotiations or the parties' intent.
Rule 32(d) provides for a motion for withdrawal of a plea of guilty before imposition of sentence "upon a showing by the defendant of any fair and just reason." (Emphasis added.) Neither Rule 32(d) nor any other provision of the Federal Rules expressly contemplates government motions to set aside a plea.
We are aware of no case which has decided the issue before us: whether the trial court has the authority, on the government's motion, to set aside a guilty plea accepted by the court. However, related precedents suggest that the district court's authority under the Rules to revisit an accepted guilty plea is limited.
In United States v. Cruz, 709 F.2d 111 (1st Cir.1983), the defendant Cruz was indicted for cocaine trafficking in violation of 21 U.S.C. Sec. 841(a)(1), and (as occurred in Partida-Parra's case) an information substituting for the indictment was filed, pursuant to a plea bargain, charging misdemeanor narcotics possession in violation of 21 U.S.C. Sec. 844. The district court fully complied with Rule 11(c) (advice to defendant) and unconditionally accepted the plea bargain, which included a lenient sentence recommendation by the prosecutor. At sentencing, two months later, the court reversed itself by rejecting the plea bargain: the court found the misdemeanor charge and recommendation to be too lenient in light of the presentence report and the sentences received by Cruz's co-defendants. The case was set for trial on the original indictment, and Cruz filed an interlocutory appeal. The First Circuit reversed the district court and reinstated Cruz's guilty plea to the misdemeanor. "[O]nce the court accepted the agreement, thereby binding the defendant and prosecution, it could not simply change its mind on the basis of information in the presentence report, at least where that information revealed less than fraud on the court." Id. at 114-15. 3
In United States v. Blackwell, 694 F.2d 1325 (D.C.Cir.1983), the district court, after accepting defendant's guilty plea pursuant to a plea agreement, warned the defendant that she could lose the benefit of her bargain if she gave certain testimony at her co-defendant's trial. In holding this to be an error in the co-defendant's trial, the court of appeals strictly construed "the straightforward language" of Rule 11:
... [O]nce the plea was accepted the judge no longer had discretion to repudiate the agreement because of Robinson's subsequent testimony.
... The plea and the bargain were sealed at that point, and we know of no authority for the judge, short of evidence of fraud, to change her mind as to the wisdom of the bargain and refuse to enforce it.
... Rule 11 appears to speak unequivocally; if the plea is accepted, the judge does not announce any deferral of that acceptance, and the defendant adheres to the terms of the bargain, all parties to it are bound. Although the rule does permit deferral of the decision to accept or reject the plea, usually for the purpose of viewing the presentence report, the mere postponement of the sentencing itself to a future date does not authorize the judge to remake or vacate the plea bargain for whatever reasons later seem appropriate to her.
694 F.2d at 1338-39 (footnotes omitted).
Although Cruz and Blackwell are distinguishable on their facts from this case, they do indicate that the district court is not authorized to go beyond the confines of Rule 11 in accepting or rejecting plea agreements. The only recognized exception to strict adherence to Rule 11 is for fraud on the court. See, e.g., Cruz, 709 F.2d at 114-15; Blackwell, 694 F.2d at 1338-39. The fraud exception is grounded in the court's inherent supervisory powers, which enable the court to preserve the integrity of the judicial process. See United States v. Ramirez, 710 F.2d 535, 540 (9th Cir.1983); United States v. Cortina, 630 F.2d 1207, 1214 (7th Cir.1980).
The government does not suggest that fraud is present in this case. Rather, it argues that a mistake of fact (on its part) prevented the formation of a binding agreement. We have found no authority that empowers the court to abrogate a plea agreement to relieve one party of its own mistake. While Rule 32(d) allows the defendant to move for withdrawal of a guilty plea for "any fair and just reason," neither that nor any other rule allows the government to make a similar motion. In sum, we conclude that the district court was without authority under the Federal Rules to vacate Partida-Parra's guilty plea.
The government and the dissent argue that,...
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