Knight v. U.S.

• Decision Date: 19 December 1979
• Docket Number: No. 78-1525,78-1525
• Parties: Henry W. KNIGHT, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 918

611 F.2d 918

Henry W. KNIGHT, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 78-1525.

United States Court of Appeals First Circuit.

Submitted Sept. 14, 1979.

Decided Dec. 19, 1979.

Henry W. Knight on brief pro se.

Edward F. Harrington, U. S. Atty., and Judith S. Yogman, Asst. U. S. Atty., Boston, Mass., on brief for respondent, appellee.

Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.

COFFIN, Chief Judge.

The appellant, Henry W. Knight, pleaded guilty, after eight days of trial, on July 29, 1971, to a charge of conspiracy to violate the narcotics laws, 26 U.S.C. § 4705(a), and was sentenced pursuant to 26 U.S.C. § 7237(b) on September 8, 1971, to a term of fifteen years. Appellant is currently serving that sentence in the federal penitentiary in Atlanta, Georgia. On December 1, 1977, appellant filed a petition pursuant to 28 U.S.C. § 2255 alleging violations of his constitutional rights in connection with the court's acceptance of his bargained-for guilty plea and the procedure followed at his sentencing hearing. The district court found that appellant was not entitled to relief on any of the grounds asserted in his petition and therefore dismissed his motion to vacate his sentence. ¹ Appellant, as he did in his petition to the district court, urges five grounds for vacating his sentence.

As the first ground for vacating his sentence, appellant argues that the trial court failed to inform him of the elements of the crime with which he was charged and that he pleaded guilty without understanding the charge. ² In rejecting this ground as "frivolous", the district court stated that the transcript revealed that "the trial court carefully advised (appellant) of the nature of the charge against him and that he understood it." Our review of the transcript pages cited by the district court in its memorandum and order convinces us that there was ample evidence from which the court could conclude that appellant understood the charges against him.

Appellant asserts as his second ground that the trial court failed to determine whether there was a factual basis for the guilty plea as required by Fed.R.Crim.P. 11(f). Appellant attacks the procedure followed by the trial court at the Rule 11 hearing on two separate grounds. First, he says, the trial judge never accepted the guilty plea, but instead conditioned his acceptance on the government's production of additional information. After reviewing the transcript, we agree with the district court that the trial judge did in fact accept the plea and stated that additional evidence was not required. Appellant also alleges that the trial judge impermissibly considered evidence introduced at the trial of appellant's co-conspirators after he had pleaded guilty. Rule 11 provides, however, that the trial court may not enter Judgment on a guilty plea unless it is satisfied that there is a factual basis for the plea. Since the court may enter judgment well after its acceptance of the plea, the rule apparently anticipates that the court's evaluation of a guilty plea may be influenced not only by information obtained during the Rule 11 hearing, but also afterward. See 8 Moore's Federal Practice P 11.03(3) (1978). The permissible sources of this information, moreover, are varied, See 1966 Advisory Committee Note, and the court's inquiry should not be limited by the rules of evidence, See Moore's Federal Practice, Supra, at 11-72 n.34. At the least, the trial court was entitled to consider the evidence and testimony produced in the eight days of trial while appellant was still a defendant in the case, after which the court stated that it found an adequate factual basis for appellant's guilty plea.

Appellant's third ground is that he was denied his right to complete allocution at his sentencing hearing because the trial court failed to advise him that he was entitled to present affirmative matters in his own behalf. The district court, again referring to specific pages in the transcript, found that appellant was advised at his plea-entry hearing that he would be entitled to allocution at his sentencing hearing and that at the time of sentencing the trial judge asked him if he wished to make a statement or present evidence in his behalf. Appellant declined to make a statement or to present any evidence. Appellant's additional argument that the court's explanation was inadequate does not, in the light of this sequence of events, impress us.

Appellant's fourth argument is that his sentence must be vacated because the government violated the terms of its plea agreement to make no recommendation with respect to sentencing. At the sentencing hearing, the Assistant United States Attorney stated, "The Government makes no recommendation, in accordance with agreement with counsel." Appellant asserts that the government breached this agreement when the Drug Enforcement Administration (DEA) submitted a letter to the Parole Commission in December of 1976 opposing appellant's petition for parole. The district court found that this letter did not violate the agreement because the government's promise "pertained only to sentencing by the court."

Although the district court's interpretation of the plea bargain is a plausible one based on the statement of the Assistant United States Attorney at the sentencing hearing, appellant claims that, at the time he pleaded guilty, he understood the plea agreement as precluding the government from opposing parole during the term of his sentence. In his section 2255 petition to the district court, appellant stated that he entered his plea "with the belief and understanding that the plea bargain extends throughout the sentence, petitioner was so advised by his court-appointed counsel." In his brief to this court he elaborated on this point: "Counsel said 'The Govt (sic) will not be able to oppose parole or a reduction in sentence, the Govt is bound by this agreement. . . . I was an Assistant United States Attorney and I know what I'm talking about because I worked out of that office.' " Although it was an agent of the DEA, not the United States Attorney, who submitted the letter opposing parole, appellant argues that because the DEA instigated his prosecution, was present throughout the trial, and was familiar with the terms of the plea agreement, the DEA is bound by the terms of the agreement. ³ Finally, appellant urges us to find that the district court erred in failing at least to hold an evidentiary hearing on his claim that the government violated the plea agreement as he understood it.

The Supreme Court, in Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), stated: "A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void." A guilty plea becomes involuntary, and the ensuing sentence subject to collateral attack, when the prosecutor fails to perform his side of a plea agreement. United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970) ("sentence based on a guilty plea that was induced in reliance on unfulfilled prosecution promise is void"); Shelton v. United States, 246 F.2d 571 (5th Cir. 1957) (en banc), Rev'd on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d 579 (1958). The prosecution, moreover, need not intentionally violate a plea agreement for the ensuing sentence to be void. United States v. McCarthy, supra, 433 F.2d at 592 n.1. If a plea is induced by defense counsel's misrepresentation of the prosecutor's promise, the plea should be vacated as involuntary. United States v. Marzgliano, 588 F.2d 395 (3d Cir. 1978); Petraborg v. United States, 432 F.2d 1194 (7th Cir. 1970). Thus, where counsel represents that an agreement has been made with the United States Attorney, even if no such agreement exists, a defendant may collaterally attack a plea induced by such a representation. McAleney v. United States, 539 F.2d 282 (1st Cir. 1976); United States v. Pallotta, 433 F.2d 594 (1st Cir. 1970). In McAleney, defense counsel told his client, falsely, that the prosecutor had agreed to recommend a light sentence. In granting petitioner's motion in that case, we said that he was "entitled to credit his attorney's representation as to the fact of such an agreement, and to rely on it; and if his guilty plea was in fact induced by such a representation, . . . relief is in order." 539 F.2d at 284.

The cases holding that counsel's misrepresentation of the terms of a plea agreement undermine the validity of a guilty plea reflect the concern that waiver of the right to trial should be a knowing, informed decision by the defendant. But many of the factors that go into a defendant's decision to plead guilty for example, estimates of the likelihood of conviction at trial and the sentence the court is likely to impose depend on communications between attorney and client that are beyond the supervision of the courts. ⁴ Thus, we have stated that a "mere prediction" by counsel of the likely, though ultimately unfulfilled,...