U.S. v. Russell

• Decision Date: 31 August 1982
• Docket Number: No. 81-2144,81-2144
• Citation: 686 F.2d 35,222 U.S.App.D.C. 313
• Parties: UNITED STATES of America v. Paul A. RUSSELL, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 35

686 F.2d 35

222 U.S.App.D.C. 313

UNITED STATES of America v. Paul A. RUSSELL, Appellant.

No. 81-2144.

United States Court of Appeals, District of Columbia Circuit.

Argued May 26, 1982.

Decided Aug. 31, 1982.

Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 81-0143).

Walter Blair, of the bar of the Court of Appeals of the State of West Virginia, pro hac vice by special leave of the Court, with whom Mercer Gordon Anderson, Washington, D. C., was on the brief, for appellant.

Roberto Iraola, student counsel, with whom Stanley S. Harris, U. S. Atty., John A. Terry, Douglas J. Behr and Catherine R. Mack, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. Michael W. Farrell and John R. Fisher, Asst. U. S. Attys., Washington, D. C., also entered appearances for appellee.

Before WRIGHT and MIKVA, Circuit Judges, and William J. JAMESON, ^* Senior District Judge for the District of Montana.

Opinion for the Court filed by Circuit Judge MIKVA.

Opinion concurring in part and dissenting in part filed by Senior District Judge JAMESON.

MIKVA, Circuit Judge:

The defendant, a resident alien, entered a guilty plea after negotiations with the United States Attorney. When deportation proceedings based on the resulting conviction were later initiated against the defendant, he moved under Fed.R.Crim.P. 32(d) to withdraw the plea. The district court denied the motion, noting that the possibility of deportation is not a direct consequence of a guilty plea under Fed.R.Crim.P. 11. Although this is a correct statement of the law, it does not exhaust the issues raised by the defendant, and we therefore hold that the district court abused its discretion in finding the defendant's motion governed by United States v. Sambro, 454 F.2d 918 (D.C.Cir.1971). Moreover, the supplemental record on appeal makes it clear that the prosecution made misrepresentations concerning the deportation consequences of the defendant's plea. Accordingly, rather than remanding this case for further consideration of the Rule 32(d) motion, we must vacate the defendant's guilty plea.

I. Background

Paul Russell, a twenty-three year old citizen of Jamaica, has been a legal resident of the United States for eight years. On March 26, 1981, he was driving a car when it was stopped by policemen. A co-defendant, Grey, was riding in the front passenger seat. On the car's front floor, at Grey's feet, the police discovered a bag containing approximately one pound of marijuana. The police also seized a nine millimeter automatic pistol. The location of the handgun in the car is disputed.

An indictment filed against Russell and Grey in April 1981 contained four counts. Counts I and II charged Russell and Grey with possession of marijuana, and possession with intent to distribute. Counts III and IV charged Russell alone with carrying a handgun without a license, and possession of a prohibited weapon. ¹ Counts II and III (simple possession and carrying an unlicensed handgun) are misdemeanors; the other two counts are felonies.

After bargaining with the United States Attorney, Russell agreed to plead guilty to both misdemeanor counts and the government agreed not to allocate against him at sentencing. The plea bargaining was complicated, however, by the fact that Russell denied possession or knowledge of the handgun and thus protested his innocence to the third count of the indictment. Although the police officers seemed prepared to testify that the gun was recovered from Russell's person, Russell contended that the gun was hidden in the bag containing marijuana and that he did not know about the gun until the police discovered it.

Russell therefore tendered his plea under the doctrine of North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), which approved plea bargains even in situations when the defendant disclaims guilt. Russell also offered a factual plea to the second count of the indictment, admitting only that he knew the bag contained marijuana. These terms were acceptable to the United States Attorney, and after some colloquy the district court accepted the plea. Plea Transcript (Plea Tr.), June 5, 1981. In August 1981, the district court sentenced Russell to concurrent one-year terms of incarceration and three years of probation. All but one month of the sentence of incarceration was suspended.

In September 1981, the Immigration and Naturalization Service (INS) instituted deportation proceedings against Russell under 8 U.S.C. § 1251 (1976). ² Almost immediately, four days later, Russell moved to vacate his sentence and to withdraw the plea of guilty under Rule 32(d). Russell argued that he had not understood the consequences of the plea because he did not realize that he was subject to deportation based on the misdemeanor convictions.

The district court denied Russell's motion without a hearing. In a brief memorandum order, the district court stated:

Defendant has moved to withdraw his plea of guilty. He claims that neither the Court nor the prosecutor advised him that he might be deported on account of committing the crimes of which he stands convicted. The possibility of deportation is not a "direct" consequence of his conviction, anymore than would be the impact of conviction upon his credit rating, employment prospects or the sentence he might receive if he is again convicted of some crime. See United States v. Sambro, 454 F.2d 918, 922 (D.C.Cir.1971).

Order, October 15, 1981.

II. The Legal Setting

Rule 32(d) provides:

A motion to withdraw a plea of guilty or of nolo contendere may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.

The rule thus permits district courts to allow plea withdrawals either before or after sentencing. Withdrawal of the plea is never a matter of right, but before sentencing the practice is liberal. "(W)ithdrawal should be 'freely allowed' and granted 'as a matter of course.' " United States v. Morgan, 567 F.2d 479, 493 (D.C.Cir.1977) (footnotes omitted); see Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927) (withdrawal of plea before sentence should be allowed if that is "fair and just"). After sentence has been imposed, however, the test is whether withdrawal of the plea will "correct manifest injustice." In either context, the question is left with "the sound discretion of the trial court," and its decision will not be reversed by an appellate court except for abuse of discretion. United States v. Davis, 617 F.2d 677, 685 (D.C.Cir.1979).

Rule 32(d) thus contrasts sharply with Rule 11, which governs the taking of guilty pleas. Rule 11 is not discretionary; the district court "shall not accept a plea of guilty ... without first, by addressing the defendant personally in district court, determining that the plea is voluntary" and that "there is a factual basis for the plea." Rule 11(d), (f); see Santobello v. New York, 404 U.S. 257, 261-62, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971). A plea cannot be considered voluntary if it is induced by threats or misrepresentation, or if the defendant is not "fully aware of the direct consequences" of the plea. Brady v. United States, 397 U.S. 742, 755, 90 S.Ct. 1463, 1472, 25 L.Ed.2d 747 (1970); see Rule 11(c)(1).

Certain consequences of a guilty plea are "collateral" rather than direct, however, and need not be explained to the defendant in order to ensure that the plea is voluntary. ³ The distinction between a collateral and a direct consequence of a criminal conviction, like many of the lines drawn in legal analysis, is obvious at the extremes and often subtle at the margin. Perhaps the most difficult case concerns the alien whose criminal conviction leads often, and sometimes automatically, ⁴ to deportation. American jurists have held sharply divided views about the very nature of deportation. "It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment." Mahler v. Eby, 264 U.S. 32, 39, 44 S.Ct. 283, 286, 68 L.Ed. 549 (1924); see Fong Yue Ting v. United States, 149 U.S. 698, 730, 13 S.Ct. 1016, 1028, 37 L.Ed. 905 (1893) (deportation "is not a punishment"). But deportation may result "in loss ... of all that makes life worth living," Ng Fung Ho. v. White, 259 U.S. 276, 284, 42 S.Ct. 492, 495, 66 L.Ed. 938 (1922), and is "close to punishment," Galvan v. Press, 347 U.S. 522, 531, 74 S.Ct. 737, 742, 98 L.Ed. 911 (1954). "Every one knows that to be forcibly taken away from home, and family, and friends, and business, and property, and sent across the ocean to a distant land, is punishment; and that oftentimes most severe and cruel." Fong Yue Ting v. United States, 149 U.S. at 740, 13 S.Ct. at 1032 (Brewer, J., dissenting); see Fong Haw Tan v. Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 376, 92 L.Ed. 433 (1948) (deportation is "a penalty" and "a drastic measure and at times the equivalent of banishment or exile"); Jordan v. DeGeorge, 341 U.S. 223, 232, 71 S.Ct. 703, 708, 95 L.Ed. 886 (1951) (Jackson, J., dissenting) ("a life sentence of banishment"). It is not surprising that similar tensions have complicated the task of deciding whether deportation is a direct or a collateral consequence of a guilty plea.

It has become well settled, however, that Rule 11 does not require informing a defendant of the possibility of deportation. See, e.g., Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976) (deportation is collateral; requirement that judge inform defendant of possibility would impose unmanageable burdens on trial courts); Michel v. United States, 507 F.2d 461 (2d Cir. 1974) (deportation is collateral because it is not meted out by sentencing judge, but rather occurs in...