U.S. v. Cortez

Decision Date24 August 1992
Docket NumberNo. 89-50670,89-50670
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Carlos CORTEZ, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Phillip I. Bronson, Sherman Oaks, Cal., for defendant-appellant.

Melinda L. Haag, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before: POOLE, BRUNETTI, and FERNANDEZ, Circuit Judges.

BRUNETTI, Circuit Judge:

OVERVIEW

Carlos Cortez was convicted by guilty plea for violation of federal drug laws, 21 U.S.C. §§ 841(a)(1) and 845a, which prohibit the possession and distribution of narcotics in areas where children are likely to congregate. After pleading guilty, but before sentencing, Cortez brought a motion to dismiss the indictment for selective prosecution. The district court denied the motion, finding that Cortez failed to make a prima facie showing of selective prosecution. He appeals the district court's denial of his selective prosecution motion and his conviction by guilty plea. We find Cortez waived his selective prosecution claim by pleading guilty. We reverse and remand, however, because we find Cortez' plea of guilty was not made knowingly and voluntarily.

FACTS AND PROCEEDINGS BELOW

Defendant-Appellant, Carlos Cortez, was charged in a two-count indictment with knowingly and intentionally distributing cocaine base within 100 feet of a video arcade and possessing approximately three grams of cocaine with intent to distribute within 100 feet of a video arcade, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 845a ("Schoolyard Statute") (now 21 U.S.C. § 860 (West Supp.1992)). Cortez pled not guilty to both counts.

Five days prior to trial, Cortez moved for an order continuing the trial to enable him to prepare a motion to dismiss the indictment for selective prosecution. The United States opposed the motion, arguing that the motion properly could be heard post-conviction. At a hearing on the day of trial, Cortez reiterated his need for a continuance, explaining that the selective prosecution motion was not complete. The district court denied the motion to continue on the ground that it was untimely. The court, however, assured Cortez that he had "the right to make a [selective prosecution] motion after trial, if he is convicted." After the jury was impaneled and sworn and the United States gave its opening statement, Cortez moved to withdraw his plea of not guilty. After questioning Cortez, the district court granted the motion, and Cortez pled guilty to both counts.

On the day of sentencing, Cortez filed the awaited selective prosecution motion. Cortez alleged that the United States Attorney, acting in concert with the Los Angeles County District Attorney in a joint federal-local program, intentionally and discriminatorily The district court denied the selective prosecution motion, finding it failed to establish a prima facie case of selective prosecution. The court then sentenced Cortez to 57 months on each count, to run concurrently. The court made no ruling on the motion to withdraw the guilty plea.

                enforced the Schoolyard Statute against poor Black and Hispanic defendants in an overwhelming proportion.   Cortez also filed a motion requesting that "[i]f the Court believes that the guilty pleas act as a waiver of [the selective prosecution] motion, the defendant would then move to withdraw his guilty pleas and enter conditional guilty pleas."
                

Cortez argues on appeal that he satisfied his burden of evidencing a prima facie case of selective prosecution. He asks that we reverse the judgment and remand for an evidentiary hearing on selective prosecution. In the alternative, he argues that if we find his guilty plea waived his selective prosecution claim, we also should find his guilty plea was not knowingly and voluntarily made or he was deprived of effective assistance of counsel.

DISCUSSION
I. Selective Prosecution--Timing and Waiver.

The United States argues that Cortez' selective prosecution motion was waived both by Cortez' failure to file the claim before trial and his plea of guilty.

We reject the United States' first argument. Although a selective prosecution challenge, as a defense "based on a defect in the institution of the prosecution," must be raised prior to trial, see Fed.R.Crim.P. 12(b)(1), the trial court may grant relief from waiver. Fed.R.Crim.P. 12(f). In this case, the district court waived the timing requirement of Rule 12(b)(1) by "reserv[ing to Cortez] ... the right to make [the] motion after trial."

The United States' second argument has merit. According to a line of cases starting with the trio Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970), (the "Brady doctrine"):

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). Accordingly, unless an exception to the Brady doctrine applies, Cortez' plea of guilty waived his selective prosecution claim.

Before analyzing the exceptions to the Brady doctrine, we need to clarify that Cortez' plea was not, in fact, a conditional guilty plea. Although the argument is only hinted at, Cortez invites us to construe his guilty plea as conditional and thus outside the purview of Brady. Federal Rule of Criminal Procedure Rule 11(a)(2) requires, however, that a conditional plea include a writing and have "the approval of the court and the consent of the government." Although Cortez did file a motion requesting that his unconditional guilty plea be substituted with a conditional plea in the event the court determined that the selective prosecution claim was waived by a plea of guilty, neither the court nor the United States acquiesced. The Ninth Circuit has read the requirements of Rule 11(a)(2) strictly, see, e.g., United States v. Echegoyen, 799 F.2d 1271, 1275-76 (9th Cir.1986); United States v. Carrasco, 786 F.2d 1452, 1454 (9th Cir.1986), and we accordingly must conclude that Cortez' plea was not conditional.

We now move on to the narrow exception to the Brady doctrine. A plea of guilty to a charge does not waive a claim that the charge is one which the government constitutionally may not prosecute. Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 242, 46 L.Ed.2d 195 (1975); Blackledge v. Perry, 417 U.S. 21, 30, 94 S.Ct. 2098, 2103, 40 L.Ed.2d 628 (1974). The exception is derived from the fact that even though the guilty plea removes the question of the defendant's guilt from the case, the issue of whether the government had the power to bring the charge at all still remains. See Menna, 423 U.S. at 62, 96 S.Ct. at 242.

Those charges that the government constitutionally may not prosecute are not "crystal-clear." United States v. Montilla, 870 F.2d 549, 552 (9th Cir.1989), amended, 907 F.2d 115 (9th Cir.1990). So far, courts have limited the defenses, sometimes labelled "jurisdictional claims," to claims that the statute is facially unconstitutional, see Menna, 423 U.S. at 62, 96 S.Ct. at 242, to claims that the indictment failed to state a claim, United States v. Caperell, 938 F.2d 975, 978-79 (9th Cir.1991), to claims of vindictive prosecution, Blackledge, 417 U.S. at 30, 94 S.Ct. at 2103, and to claims of double jeopardy. Menna, 423 U.S. at 62, 96 S.Ct. at 242. No court has dealt with a selective prosecution claim. It is plausible that selective prosecution could be a jurisdictional claim. The Ninth Circuit has found vindictive prosecution and selective prosecution so similar as to warrant comparable treatment with respect to interlocutory appealability. See United States v. Wilson, 639 F.2d 500, 502 (9th Cir.1981) ("[l]ittle substantive difference can be detected between selective prosecution and vindictive prosecution ... [t]he interests involved are the same"). Both claims involve issues that do not hinge on the guilt or innocence of the defendant. See id.

We need not make that decision, however, because Cortez' claim is foreclosed regardless of its possibly jurisdictional nature. In United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989), the Supreme Court limited the jurisdictional claim exception to those cases in which the district court could determine that the government lacked the power to bring the indictment at the time of accepting the guilty plea from the face of the indictment or from the record. Broce, 488 U.S. at 569, 576, 109 S.Ct. at 762, 766. To successfully establish a selective prosecution defense and, hence, that the United States lacked the power to bring Cortez' indictment, Cortez would have to show: one, that others similarly situated have not been prosecuted; and two, that the allegedly discriminatory prosecution of the defendant was based on an impermissible motive. Wayte v. United States, 470 U.S. 598, 608, 105 S.Ct. 1524, 1531, 84 L.Ed.2d 547 (1985); Wilson, 639 F.2d at 503. Cortez could not show either of these facts from the indictment or the record at the plea stage. Thus, even if we were to find a claim of selective prosecution to be an exception to the Brady doctrine, Cortez' selective prosecution motion is foreclosed by Broce.

Because we find that Cortez waived his right to claim selective prosecution, we do not address the merits of that claim. Although the Brady doctrine precludes Cortez from raising his selective prosecution claim, it does not preclude him from challenging his...

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