USA. v. Valenzuela

• Decision Date: 01 December 2000
• Docket Number: No. 99-50175,D,GARCIA-VALENZUEL,99-50175
• Citation: 232 F.3d 1003
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAFAELefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1003

232 F.3d 1003 (9th Cir. 2000)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAFAEL GARCIA-VALENZUELA, Defendant-Appellant.

No. 99-50175

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 6, 2000

Filed December 1, 2000

Benjamin P. Lechman, Federal Public Defender's Office, San Diego, California, for the appellant.

Micheal G. Wheat, Assistant United States Attorney, San Diego, California, for the appellee.

Appeal from the United States District Court for the Southern District of California Judith N. Keep, District Judge, Presiding. D.C. No. CR-98-02038-JNK

Before: William C. Canby, Jr., and William A. Fletcher, Circuit Judges, and John W. Sedwick,¹ District Judge.

W. FLETCHER, Circuit Judge:

The district court denied the government's motion to dismiss several counts of the indictment against defendant. After the denial, defendant pled guilty to two of the counts the government had sought to dismiss. Defendant now appeals. We hold that defendant may challenge the denial of the government's motion despite having entered a guilty plea. We further hold, on the merits, that denial of the government's motion was an abuse of discretion. Accordingly, we vacate the judgment of the district court and remand with instructions.

I

Defendant Rafael Garcia-Valenzuela, a minor player in a series of drug deals, was indicted on five counts of a six-count indictment. He was charged with knowingly and intentionally possessing controlled substances with intent to distribute in violation of 21 U.S.C. S 841(a)(1), and with aiding and abetting in violation of 18 U.S.C. S 2. As part of plea negotiations, the government sought to allow Garcia-Valenzuela to plead guilty to only the third count of the indictment, a count that did not carry a mandatory minimum sentence.

During a series of hearings before the district judge, it had become apparent to the district judge, prosecutor, and defense counsel that Garcia-Valenzuela was unwilling to plead to a reduced charge because he was afraid of his co-defendant Regino Renteria. Renteria, who was charged in the fifth and sixth counts of the same indictment, had been GarciaValenzuela's "boss" during the drug transactions and wanted Garcia-Valenzuela to plead guilty to all counts against him. At one of the hearings, the district judge stated that she was "concerned" that "Mr. Garcia is terrified of Mr. Renteria." Out of concern for the influence of Renteria over GarciaValenzuela, the district judge ordered that the two codefendants be physically separated and agreed to the prosecutor's proposed separation order for the remainder of the pretrial period. At sentencing, the prosecutor recounted to the district judge that, during a meeting with the defendants and counsel, Renteria had told Garcia-Valenzuela, with apparent reference to the counts to which he should plead,"You're everything. Do you understand? You're everything."

On the day before trial, the Assistant United States Attorney moved to dismiss all counts against Garcia-Valenzuela except the third. This motion was not part of a plea agreement. If granted, the motion would have allowed Garcia-Valenzuela, at a later time, to plead to "everything" charged against him without exposing him to a mandatory minimum sentence. Defense counsel stated that he had no objection to the government's motion. When asked by the district judge whether he wanted to plead guilty, however, GarciaValenzuela said that he did not. The district judge then stated that she had not acted on the government's motion to dismiss the other counts; she was "trying to see what he want[ed] to do." Pressed further, Garcia-Valenzuela said he wanted to go to trial rather than plead guilty.

After the district judge declared that the trial would go forward, Garcia-Valenzuela addressed the court personally and volunteered to plead to count five, one of the counts the Government had moved to dismiss. The district judge began a plea colloquy on count five, at which time Garcia-Valenzuela said "I want to plead guilty to the heroin also, " referring to the sixth count. The district judge then allowed GarciaValenzuela to plead guilty to both counts five and six. Both counts carried mandatory minimum sentences. Following the plea, the district judge sentenced Garcia-Valenzuela to sixty months, the mandatory minimum sentence necessitated by his plea.

This appeal raises two questions. First, may GarciaValenzuela challenge the denial of the government's motion to dismiss despite his guilty plea? Second, if we can reach the merits of Garcia-Valenzuela's challenge, did the district court err in denying the motion to dismiss? We answer both questions in the affirmative.

II

As a general rule, a defendant who enters a voluntary and intelligent guilty plea "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267 (1973). In Blackledge v. Perry, 417 U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975), however, the Supreme Court established exceptions to the bar on post-plea collateral challenges.

In Blackledge, the Court held that the defendant's guilty plea did not foreclose a claim that vindictive prosecution violated his due process rights. The Court found that the constitutional claim in Blackledge was "markedly different" from the claims that had been previously held to be barred. See id. at 30. Although the barred claims in other cases "were of constitutional dimensions, none went to the very power of the State to bring the defendant into court to answer the charge brought against him." Id. The Court found that"[t]he very initiation of the proceedings against him . . . operated to deny him dueprocess of law," and concluded that the State "simply could not permissibly require [defendant] to answer to the felony charge." Id. at 30-31.

In Menna, the defendant was allowed to assert a claim that the indictment under which he pled guilty had placed him in double jeopardy. The Court in Menna drew a fundamental distinction between post-plea constitutional challenges that implicated the factual guilt of the defendant, and those that were independent of factual guilt. In discussing its previous decisions, the Court stated that

a counseled plea of guilty is an admission of factual guilt so reliable that . . . it quite validly removes the issue of factual guilt from the case. . . . A guilty plea, therefore, simply renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction, if factual guilt is val idly established.

423 U.S. at 62-63 n.2 (emphasis in original). Because the Court found that the charge against Menna violated his right to be free from double jeopardy, the charge was one "which the State may not constitutionally prosecute." Id. That is, the charge was "logically inconsistent with the valid establishment of factual guilt" because the State could not, consistent with the protection against double jeopardy, validly proceed with the prosecution. The Court therefore held that the constitutional challenge was not waived by the guilty plea. See id.

Since Blackledge and Menna, federal courts of appeals have held a number of constitutional claims not barred by a guilty plea. In addition to claims of vindictive prosecution and double jeopardy, our circuit has recognized claims that the statute under which the defendant was indicted was unconstitutional, see Journigan v. Duffy, 552 F.2d 283 (9th Cir. 1977); that the indictment failed to state an offense, see United States v. Caperell, 938 F.2d 975 (9th Cir. 1991), United States v. Broncheau, 597 F.2d 1260 (9th Cir. 1979); and that the statute on its face was unconstitutionally vague, see United States v. Sandsness, 988 F.2d 970 (9th Cir. 1993). We have also viewed as "plausible" a claim of selective prosecution. See United States v. Cortez, 973 F.2d 764, 767 (9th Cir. 1992). Although we have not found a case on point in our circuit, other circuits are currently split on the question of whether a guilty plea can be challenged where the plea occurs before a judge who has denied a defendant's motion for recusal. Compare United States v. Chantal, 902 F.2d 1018 (1st Cir. 1990) (an unconditional guilty plea does not waive the appeal of a disqualification motion) with United States v. Gipson, 835 F.2d 1323 (10th Cir. 1988) (an unconditional guilty plea waives the appeal of a disqualification motion).

Although the dividing line "has not been crystal-clear" between claims that are barred by an unqualified guilty plea and those that are not, United States v. Montilla, 870 F.2d 549, 552 (9th Cir. 1989), we believe that Garcia-Valenzuela's claim is not barred.² The question he seeks to present is whether, consistent with the separation of powers, the judiciary may encroach upon the right of the executive to make basic decisions as to who may be criminally charged, and with what they may be charged.

We hold that the defendant's claim is not waived by an unconditional guilty plea. Like the claims in Blackledge and Menna, Garcia-Valenzuela's claim is entirely independent of the question of his factual guilt. The Blackledge and Menna claims challenged the power of the government to hale a defendant into court. Here, defendant challenges the power of the government to keep a defendant in court, and thereby to subject him to prosecution on a charge the prosecutor has unilaterally moved to dismiss. Further, as in Blackledge and Menna, defendant does not challenge the evidence brought against him or the manner in which that evidence was gathered. Rather, defendant's claim goes to the "very power of the State" to accept his guilty plea, Blackledge , 417 U.S. at 30, and therefore "stand[s] in the way" of conviction, Menna, 423 U.S. at 63 n.2.

III

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