U.S. v. Navarro-Flores

• Citation: 628 F.2d 1178
• Decision Date: 11 April 1980
• Docket Number: D,No. 78-3735,NAVARRO-FLORE,78-3735
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robertoefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1178

628 F.2d 1178

UNITED STATES of America, Plaintiff-Appellee, v. Roberto NAVARRO-FLORES, Defendant-Appellant.

No. 78-3735.

United States Court of Appeals Ninth Circuit.

April 11, 1980.

J. Frank McCabe, Goorjian & McCabe, San Francisco, Cal., for defendant-appellant.

Joseph M. Burton, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before ELY and KILKENNY, Circuit Judges, and MURRAY, ^* District Judge.

PER CURIAM:

Appellant Navarro-Flores (Navarro) appeals from the judgment of conviction of distribution of heroin in violation of 21 U.S.C. § 841(a)(1). He pleaded guilty to one count of a four-count indictment on September 25, 1978 as part of a plea agreement, Fed.R.Crim.P. 11(e), pursuant to which the Government agreed to dismiss the other counts and the United States Attorney agreed to recommend a term of imprisonment of not more than eight years. Navarro moved to withdraw the plea of guilty before sentence, and the motion was denied. He was sentenced on December 22, 1978 to seven years' imprisonment with a special parole term of three years.

I Facts

Navarro is a Spanish-speaking Mexican citizen about 50 years of age, with formal education limited to the fourth grade in Mexico, who had resided in the United States for about twelve years, and who spoke and understood little, if any, English. Navarro entered into the plea agreement after consulting with Jerry Cimmet, his attorney, through interpreters. On September 25 the interpreter was Mrs. Mendoza. The plea of guilty was tendered to the district court, and accepted, on September 25 after examination of Navarro through the interpreter by the district judge. The case was scheduled for sentencing on November 9, 1978. Between September 25 and November 9, the district judge received and examined the presentence report.

On November 9 Attorney Cimmet stated in substance to the district judge that he had received a letter from Navarro complaining of the translation ¹ by the interpreter of the September 25 proceedings, protesting his innocence of the charges, and requesting he be allowed to withdraw his plea of guilty, to have new counsel and a trial by jury. ² The district judge took no action on the motion to withdraw the plea, but permitted Cimmet to withdraw as counsel, and scheduled the case to another day for further hearing.

Navarro was represented by Attorney Frank McCabe when the case came on to be heard on December 22, 1978. At the outset of the proceedings, Attorney McCabe moved for transfer of the case to another judge for hearing of the motion to withdraw the plea. McCabe argued that the ground of the motion for transfer was prejudice on the part of the district judge as shown by his remarks on November 9. After hearing McCabe's argument, the district judge denied the motion to transfer. ³ The motion to withdraw the plea then was heard.

Attorney McCabe argued that in addition to the question of the interpretation, there were the further issues: (1) whether Navarro had maintained his innocence, (2) whether he understood what was transpiring during the district judge's examination during the plea hearing, and (3) whether Navarro realized he had the right to go to trial after his attorney recommended he plead guilty. The motion was heard on the testimony of Navarro, Mrs. Mendoza, and Attorney Cimmet.

Navarro testified he told Mrs. Mendoza (interpreting for Attorney Cimmet) he was innocent, and he asserted his innocence in his testimony. He testified also that Mrs. Mendoza said he should plead guilty, said he had no reason to go to trial because he would lose, said if he went to trial and was found guilty he would get 15 to 30 years' imprisonment, and said on a plea of guilty he would get nine years or less. On cross-examination he admitted knowing of his co-defendant's sentence before writing the letter to Cimmet. In his affidavit filed in support of the motion to withdraw, Navarro averred that Mrs. Mendoza told him he would have to tell a lie to the judge that looks like the truth. Mrs. Mendoza, maintaining that she had translated verbatim in the conference between Navarro and Attorney Cimmet and in court, testified that she had neither told Navarro that he had to lie to the judge nor that he would be better off if he pleaded guilty and had informed Navarro that the maximum penalty for the charge was 15 years. She also testified that Navarro did not ask her any questions during the judge's examination, and did not say to her that he did not understand her during the plea hearing. Attorney Cimmet testified that he did not speak Spanish and communicated with Navarro only through interpreters, including Mrs. Mendoza, and that he was satisfied with her services as a translator. He testified to the advice he gave Navarro through the interpreter. ⁴ At the conclusion of the testimony the district judge heard McCabe's argument and, after commenting on Navarro's motives and degree of sophistication, concluded that

the whole basis . . . goes on the credibility of the witnesses . . . the credibility of Mrs. Mendoza . . . and if I have to choose between this defendant and Mrs. Mendoza, I don't have much other reason than to follow Mrs. Mendoza, and I believe what she says is correct and I believe what Mr. Cimmet says is correct. And I just don't put much credibility in the testimony of Mr. Navarro.

The motion to withdraw the plea was denied, and the case was scheduled for imposition of sentence later in the day.

When the court convened in the afternoon, the district judge heard the arguments of Attorney McCabe and the Government's attorney on the question of sentence. The district judge did not address Navarro personally as to whether he wished to make a statement on the question of the sentence, and Navarro made no attempt to speak on his own behalf before the sentence was imposed.

On this appeal Navarro raises three issues for reversal: (a) whether he was denied due process when the sentencing judge refused to recuse himself for prejudice, (b) whether the sentencing judge abused his discretion by refusing to allow withdrawal of the plea of guilty, and (c) whether the case must be remanded for resentencing because the sentencing judge failed to comply with Fed.R.Crim.P. 32(a)(1) by failing to inquire of Navarro whether he wished to make a statement. We discuss the issues separately.

II

a. Disqualification of district judge

Navarro contends that the district judge exhibited such prejudice against him in the remarks made on November 9 as to deny him his right to "(a) fair trial in a fair tribunal . . . a basic requirement of due process". In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955); see Chessman v. Teets, 239 F.2d 205, 215-16 (9th Cir. 1956), rev'd on other grounds, 354 U.S. 156, 77 S.Ct. 1127, 1 L.Ed.2d 1253 (1957). A hearing by a biased judge does not comport with the fundamental concept of due process of law.

We consider appellant's contention on the basis whether his due process rights were violated, and do not, as the Government contends we should, apply the test and requirements of the recusal statutes, 28 U.S.C. §§ 144, 455. The district judge attributed his remarks to his reading of the presentence report to determine the sentence to be imposed. He received the report after Navarro's plea of guilty had been accepted, and, as the record shows, after he found there was a factual basis for the plea from Navarro's responses during the plea hearing.

We reject appellant's argument that the judge's reading of the presentence report was improper because, as appellant assumed, the district judge first read the report after he had knowledge that Navarro had moved to withdraw his plea of guilty. We find no support in the record for such assumption. The judge could properly examine the report after the plea of guilty was accepted, see Fed.R.Crim.P. 32(c)(1), and information about the defendant he derived from the report was acquired in the proper performance of his duties as a judge in the criminal proceedings before him. Furthermore, after the terms of the plea agreement had been disclosed, the judge informed the appellant that he would defer his decision on its provision for a sentence limit of eight years until he had the opportunity to consider the presentence report. This practice conformed with the provisions of the Federal Rules on plea agreement procedure. Fed.R.Crim.P. 11(e)(2).

It may be quite another matter, of course, if the information in the presentence report unavoidably caused the district court to prejudge Navarro's motion to withdraw his plea of guilty. Cf. United States v. Sciuto, 531 F.2d 842 (7th Cir. 1976); Battaglia v. United States, 390 F.2d 256, 259 (9th Cir. 1968). We need not decide that question here. The district judge disclaimed that the information in the presentence report had influenced him with respect to the issue of credibility on the motion to withdraw the plea, and no adequate reasons have been advanced to convince us that we should not accept the district court's explicit disclaimer. See United States v. Webster, 468 F.2d 769, 771 (9th Cir. 1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597 (1973).

Understandably the district judge may have been annoyed on November 9 at the prospect of delay caused by Navarro's requests for withdrawal of the plea and for change of counsel, and the judge's remarks might have been better left unsaid. We are not convinced, however, that under the circumstances the remarks generated such an atmosphere of personal hostility or bias toward appellant, or evidenced prejudgment of the issues on the motion for leave to withdraw the plea, as to amount to denial of Navarro's due process rights.

b. Denial of motion for leave to withdraw plea of guilty

The withdrawal of a plea of guilty should be freely granted before sentence where...