United States v. Sambro
| Decision Date | 26 October 1971 |
| Docket Number | No. 23875.,23875. |
| Citation | 454 F.2d 918 |
| Parties | UNITED STATES of America v. Manuel R. SAMBRO, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry and Philip L. Cohan, Asst. U. S. Attys., were on the brief for appellee.
Before MacKINNON and WILKEY, Circuit Judges, and GORDON,* U. S. District Judge for the Eastern District of Wisconsin.
On Rehearing En Banc October 26, 1971.
The sole issue on this appeal is the District Court's refusal to allow the appellant to withdraw his plea of guilty at the time he appeared for sentencing. We do not find that the trial judge abused her discretion in the circumstances of this case, and therefore affirm.
Appellant was indicted in 12 counts for heroin and marijuana violations. A plea of guilty to one heroin count was accepted by the District Court, and the government thereupon dismissed the other 11 counts. A probation report was ordered and a day set for sentencing.
By the time the day of sentencing arrived the appellant claims he had learned that a conviction for a heroin violation would result in his deportation to his native country of Argentina. Appellant therefore moved to withdraw his plea of guilty on the ground that he did not fully understand "the consequences of the plea."1 He also urged that he had had great difficulty in understanding English and therefore failed to understand the nature and significance of his plea and the penalty, but he did not claim that he failed to understand the trial court's several questions at the time of the guilty plea. There is no allegation of any promises made by any attorney or the court; the ground simply is that the appellant did not understand the ultimate consequence of a finding of guilty on the ancillary matter of deportation. The District Court suspended the imposition of sentence and placed appellant on probation for a period of four years.
Rule 11, in pertinent part, provides:
The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. * * * The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
Withdrawal of a plea of guilty is permitted under Rule 32(d):
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 unquestioned standard for permitting withdrawal of a guilty plea, unequivocally stated by Judge (now Chief Justice) Burger:
Overwhelming authority holds, as has this court, that withdrawal of a guilty plea before sentencing is not an absolute right but a decision within the sound discretion of the trial court which will be reversed by an appellate court only for an abuse of that discretion.2
Hence, the issue on this appeal is whether the trial judge abused her discretion.
Abuse of discretion has been defined by this court and the Supreme Court as "action which is arbitrary, fanciful, or clearly unreasonable."3 Compare the application of the standard in Everett:
The record reveals a guilty plea, intelligently and voluntarily made with assistance of retained counsel and candid admission of all essential elements of the crime in open court; this is hardly a predicate for an appellate holding that the District Judge abused his discretion in refusing to permit a withdrawal. We are not disposed to encourage accused persons to "play games" with the courts at the expense of already overburdened calendars and the rights of other accused persons awaiting trial, * * *.4
We consider the requirements of Rule 11 are met when the trial court is satisfied after interrogation of the defendant personally that he understands the direct "consequences of the plea." The trial court is not required later on motion to withdraw the plea to consider possible ancillary or consequential results which are peculiar to the individual and which may flow from a conviction on a plea of guilty, although of course such consequences, if known, might be evaluated by the trial judge in assessing punishment. Fed.R.Crim.P. 32 (a) (1).
The trial judge may well have considered, as we do, that appellant's asserted claim that he did not understand English well enough to evaluate the consequences of his plea is not supported by the record. His counsel stated that appellant "is now employed as an optical technician, is in this country on a permanent visa * * *," which indicates that he is regularly employed in a business requiring some command and understanding of English.
Nor did his awareness of a relationship between a criminal conviction and deportation originate after his plea of guilty. His counsel stated to the court, "Mr. Sambro and I at this time of the plea of guilty thought that it was possible for Your Honor to suspend sentence, put the defendant on probation, without him being deported, since he is a citizen of Argentina." This indicates clearly that far from the appellant's being confused by a poor command of English and not having considered deportation, he and his counsel both had considered the possibility of deportation as a result of conviction on this plea of guilty, and had reached an erroneous conclusion as to the legal effect.
We note that here the District Court imposed no immediate prison term, only four years' probation. Since appellant is an alien, the net result will be immediate deportation without serving either a prison term or four years' probation. We also observe that the Government was willing to accept a plea to one of the heroin, not marijuana, counts of the 12-count indictment, thus evidencing some confidence in the strength of its case if the matter came to trial. We do not see that the appellant was unfairly or unjustly treated in these circumstances, or that the interests of justice would be best served by remanding the case for trial on the 12-count narcotics indictment.
We say that appellant was not unfairly or unjustly treated, for several reasons stated above. Furthermore, even yet he has not alleged that he has any valid defense to the crime charged in the count to which he pleaded guilty.
Appellant's misunderstanding as to the collateral legal consequences of his plea bears a close resemblance to the situation in Brady v. United States.5 There the petitioner Brady sought post-conviction relief on the ground that, had he known of a subsequent Supreme Court decision at the time of his plea of guilty, he would never have made such a plea. In rejecting Brady's argument, the Supreme Court analyzed the effect of a guilty plea under Rule 11, saying: "Central to the plea and the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged in the indictment."6 Equally pertinent:
The rule that a plea must be intelligently made to be valid does not require that a plea be vulnerable to later attack if the defendant did not correctly assess every relevant factor entering into his decision. * * * The fact that Brady did not anticipate United States v. Jackson, supra, does not impugn the truth or reliability of his plea.7
We recognize some distinctions can be drawn between the withdrawal of a plea of guilty before the imposition of sentence (Sambro) and the setting aside of a post-conviction plea of guilty (Brady), but the point made by the Supreme Court in Brady is the same here, i. e., that under Rule 11 "the court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea," and, as phrased in Brady, "the foundation for entering judgment against the defendant is the defendant's admission in open court that he committed the acts charged." Hence, a plea of guilty is a confession in open court as to the facts alleged: in the instant case appellant Sambro has made such a confession, has said nothing whatever to repudiate it, nor has he claimed any legal defense to the charge.
As discussed under Part II, supra, the withdrawal of a plea rests within the discretion of the trial court. Only if there is some law which absolutely requires the trial court to permit appellant here to withdraw his plea does appellant have a valid ground on which we should reverse the trial court. And, as indicated under Part III, supra, a voluntary plea of guilty is a voluntary confession of the acts alleged.
The standard as to the voluntariness of guilty pleas was reiterated by the Supreme Court in Brady, supra:
A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor\'s business (e. g., bribes).8
We note that the accused must be "fully aware of the direct consequences." We presume that the Supreme Court meant what it said when it used the word "direct"; by doing so, it excluded collateral consequences.
We have here then a voluntary plea of guilty by the appellant; there is no contention...
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