No. 97-5643 IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1997 MICHAEL SARGA, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General SANGITA K. RAO Attorney Department of Justice Washington, D.C. 20530-0001 (202) 514-2217 ---------------------------------------- Page Break ---------------------------------------- QUESTIONS PRESENTED 1. Whether the district court committed plain error by not allowing petitioner to withdraw his guilty plea, without any showing of good cause, after the plea was entered but before it was formally accepted by the court. 2. Whether the district court abused its discretion in holding that petitioner had failed to demonstrate a "fair and just reason" four withdrawal of his guilty plea pursuant to Fed. R. Crim. P. 32(e). (I) ---------------------------------------- Page Break ---------------------------------------- In the Supreme Court of the United States OCTOBER TERM, 1997 No. 97-5643 MICHAEL SARGA, PETITIONER v. UNITED STATES OF AMERICA ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT BRIEF FOR THE UNITED STATES IN OPPOSITION OPINION BELOW The opinion of the court of appeals (Pet. App. A1 A2) is unpublished, but the judgment is noted at 113 F.3d 1249 (Table) . JURISDICTION The judgment of the court of appeals was entered on April 25, 1997. On July 16, 1997, Justice Kennedy extended the time within which to file a petition for a writ of certiorari to and including August 25, 1997. The petition for a writ of certiorari was filed on August 19, 1997. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1) . STATEMENT After entry of a guilty plea in the United States District ---------------------------------------- Page Break ---------------------------------------- 2 Court for the Middle District of Florida, petitioner was convicted on one count of conspiracy to import more than five kilograms of cocaine, in violation of 21 U.S.C. 960(a) (1) & 963. He was sentenced to life imprisonment and a fine of 1 million. Pet. App. C4. The court of appeals affirmed. 1. On July 8, 1992, petitioner and others were charged in a four-count indictment with various offenses relating to the importation of cocaine. On September 17, 1992, petitioner appeared before a magistrate judge and entered a guilty plea, without a plea agreement, to conspiracy to import more than five kilograms of cocaine into the United States, in violation of 21 U.S.C. 960(a) (1) & 963. Gov't C.A. Br. 2. With petitioner's written consent (Pet. App . I-1) , the magistrate judge conducted a plea colloquy pursuant to Fed. R. Crim. P. 11. At the close of the hearing, the magistrate judge indicated that she would recommend that the district court accept petitioner's guilty plea. Gov't C.A. Br. 2. Petitioner waived any objection to the preparation of a presentence report (PSR) in advance of the district court's acceptance of his guilty plea. Pet. App. I-1; Gov't C.A, Br. 2. On September 23, 1992, the magistrate judge submitted a report and recommendation advising the district court to accept petitioner's guilty plea. Pet. App. D1. Petitioner filed no objections to that report. Gov't C.A. Br. 2-3. The United States Probation Office prepared a PSR on petitioner that was submitted to the district court on November 20, 1992. Gov't C.A. Br. 3. Petitioner filed an objection to the ---------------------------------------- Page Break ---------------------------------------- 3 PSR's conclusion that he had played the role of "manager" or "supervisor" in the offense. Ibid. The government, in turn, objected to the PSR's suggested reduction in petitioner's offense level for acceptance of responsibility. Ibid. On December 29, 1992, petitioner's sentencing hearing commenced. The parties agreed that the only issues for the district court to resolve were petitioner's role in the offense and his acceptance of responsibility. Gov't C.A. Br. 4. Petitioner testified on his own behalf regarding his role in the offense, his financial gain, and the location of his assets. Ibid The district court did not impose sentence at the end of the two-day hearing, but instead deferred sentencing pending its review of the transcript of the hearing. Pet. App. C2. The court afforded the parties an opportunity to submit supplemental memoranda on the sentencing issues. Ibid. On January 21, 1993, during the execution of a search warrant at the house of petitioner's sister, federal agents discovered cars and other personal property that belonged to petitioner and about which he had been questioned at the sentencing hearing. Gov't C.A. Br. 5. Because that evidence cast doubt on the veracity of petitioner's testimony at the sentencing hearing, the government sought additional time to analyze the hearing transcript and to file a supplemental memorandum. Ibid Petitioner objected on the ground that the government should not be permitted to introduce the newly discovered evidence in order to enhance his sentence. Pet. App . F1-F4. Alternatively, ---------------------------------------- Page Break ---------------------------------------- 4 petitioner asked that, "[i]f the Court were to grant [the government's] motion and extend the time for filing memorandum based upon this new found evidence, " he should be allowed to withdraw his guilty plea. Id. at F3. On February 12, 1993, the district court granted the government's motion for extension of time and denied petitioner's conditional motion to withdraw his guilty plea as "premature." Pet. App . B1-B2. AS the court explained, because petitioner did not yet know what new evidence the government might seek to present, he could not establish the "fair and just reason" required by Fed. R. Crim. P. 32(e) for the withdrawal of a guilty plea. Id. at B2. On March 4, 1993, the government filed, and served on petitioner, a motion to supplement his PSR. In that motion, the government detailed the evidence recovered in the search of petitioner's sister's house and demonstrated how that evidence conflicted with petitioner's testimony at the December 1992 sentencing hearing. Pet. App . C2-C3; Gov't C.A. Br. 6. On that basis, the government sought a two-level enhancement of petitioner's offense level for obstruction of justice under Sentencing Guidelines 3C1.1. Pet. App. C2-C3. The district court scheduled another sentencing hearing for April 28, 1993. In advance of the hearing, the government filed, and served on petitioner, notice of the evidence that it intended to offer at the hearing. Pet. App. C8. At the hearing, the government proffered evidence seized during the search of ---------------------------------------- Page Break ---------------------------------------- 5 petitioner's sister's house as well as a federal agent's testimony about the search. Gov't C.A. Br. 7. Petitioner called his sister to testify about the circumstances surrounding the search. Ibid. During the hearing, petitioner's counsel stated that, if the government's new evidence were admitted, petitioner wanted "an opportunity either conceivably to withdraw our plea * * * or have a full evidentiary hearing to make a determination as to whether or not there was or was not obstruction in the testimony and/or perjury in the testimony." Gov't C.A. Br. 8. Petitioner's counsel did not, however, indicate what additional evidence, if any, he might present at any such hearing. Id. at 7-8. At the end of the hearing, the district court, after admitting the evidence proffered by the government, sentenced petitioner to a term of life imprisonment and fined him $1 million. App. C4. The court enhanced petitioner's offense level both for his managerial role in the offense, pursuant Sentencing Guidelines S 3B1.1, and for his obstruction of justice at the December 1992 hearing, pursuant to Sentencing Guidelines 3C1.1. Gov't C.A. Br. 9. The court stated that it concluded that petitioner had given false testimony at the December hearing even before considering the new evidence introduced at the April hearing. Ibid; Pet. App. C4. The court also found that petitioner had failed to accept responsibility for his criminal activities and, therefore, was not entitled to any reduction in his offense level under Sentencing Guidelines 3E1.1. Gov't C.A. Br. 9. After the court imposed sentence, petitioner's counsel orally ---------------------------------------- Page Break ---------------------------------------- 6 moved to withdraw the guilty plea, because "I haven't had an opportunity to challenge the evidentiary admission that Your Honor made." Gov't C.A. Br. 9. The court advised petitioner to file the motion in writing. Pet. App. C4. In his written motion (Pet. App. G1-G6) , petitioner argued that the court should permit him to withdraw his guilty plea pursuant to Rule 32(e), because he had not had "the opportunity to impeach, examine, rebut, or attack" the new evidence admitted at the April hearing. Id. at G5. At the subsequent hearing on the motion, petitioner again argued that the court should not have considered the new evidence. Pet. App. C5-C6. The district court denied the motion on the ground that petitioner had failed to demonstrate a "fair and just reason" for withdrawal of his guilty plea, as required by Fed. R. Crim. P. 32(e) . Pet. App. C8. The court rejected petitioner's assertion that he was "unfairly prejudiced" at sentencing by the admission of the newly discovered evidence. Ibid The court noted that petitioner had been notified in advance of the April 1993 hearing of the evidence that the government intended to offer against him, and that petitioner "had the opportunity to cross examine and present evidence and argument" at that hearing. Ibid 2. The court of appeals summarily affirmed in an unpublished per curiam opinion. Pet. App. A1-A2. Petitioner argued for the first time on appeal that, because the district court had not formally accepted his guilty plea before imposing sentence, he had an absolute right to withdraw his plea without offering any reason. ---------------------------------------- Page Break ---------------------------------------- 7 Because petitioner had not raised this claim below, the court of appeals reviewed it for plain error, and found none. Id. at A2. The court also rejected petitioner's argument that the district court had abused its discretion in finding that he had not demonstrated a "fair and just reason" under Rule 32(e) for withdrawal of his guilty plea. Ibid ARGUMENT The court of appeals' conclusion that the district court did not err in denying petitioner's motion to withdraw his guilty plea does not merit this Court's review. The decision below is consistent with United States v. Hyde, 117 S. Ct. 1630 (1997) ; does not squarely conflict with any decision of another circuit, much less any decision informed by the Court's reasoning in Hyde; and ultimately turns on the particular facts of this case. 1. Petitioner principally contends (Pet. 9-15) that the Court should resolve a supposed circuit conflict over whether a defendant must demonstrate a "fair and just reason, " under Fed. R. Crim. P. 32(e), in order to withdraw a guilty plea that has not yet been formally accepted by the district court. The only conflicting decision cited by petitioner United States v. Washman, 66 F.3d 210 (9th Cir. 1995) arose in a different set of circumstances and rested on a rationale not applicable here. And the continuing validity of Washman, even in the circumstances of that case, has been called into question by this Court's recent decision in Hyde. The text of Rule 11, "the principal provision in the Federal Rules of Criminal Procedure dealing with the subject of guilty ---------------------------------------- Page Break ---------------------------------------- 8 pleas" (Hyde, 117 s. ct. at 1632), and Rule 32(e), which specifically concerns "plea withdrawal," does not suggest that the standard for withdrawal of a guilty plea shifts depending on whether the plea has been formally accepted. Rule 32(e) states simply that "[i]f a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed" a period that would presumably encompass the interval between entry and acceptance of the plea "the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Fed. R. Civ. P. 32(e). Nor does the commentary to Rule 32(e) or Rule 11 suggest that this standard applies only after the court has formally accepted the plea. Nonetheless, in Washman, the Ninth Circuit held that a defendant has an absolute right to withdraw a guilty plea, made pursuant to a plea agreement, before the district court had formally accepted the plea and the plea agreement. In holding that the defendant could withdraw his guilty plea in such circumstances without satisfying the "fair and just reason" standard of Rule 32(e) , Washman relied solely on the rationale that "Washman and the Government were not bound by the plea agreement until it was accepted by the court." 66 F.3d at 212. That rationale is inapplicable in this case, where petitioner pleaded guilty without a plea agreement. Petitioner was not, like the defendant in Washman, waiting for the district court to decide whether to accept the particular sentence negotiated between his counsel and the government. Rather, petitioner was aware, as a result of his colloquy with the magistrate judge at the guilty plea ---------------------------------------- Page Break ---------------------------------------- 9 proceeding, that the district court could impose a maximum sentence of life imprisonment. See Pet. App . D1 (magistrate judge notes that she "caution[ed] and examin[ed] the Defendant under oath concerning each of the subjects mentioned in Rule 11") . Cf. United States v. Lopez-Reves, 933 F. Supp. 957, 959 (S.D. Calif. 1996) (concluding that Washman is "limited to pleas connected with plea agreements which were binding on the court") . Washman has been undermined, moreover, by the Court's recent decision in Hyde. In that case, the Court unanimously rejected the Ninth Circuit's position, based in part on Washman (see 117 S. Ct. at 1632) , that a defendant had an absolute right to withdraw a guilty plea after the district court accepted the plea but before it accepted the plea agreement. The Court reasoned that the Ninth Circuit's position not only was inconsistent with the text of the Federal Rules of Criminal Procedure but also "would degrade the otherwise serious act of pleading guilty into something akin to a move in a game of chess." Id. at 1634. A guilty plea would be reduced to "a mere gesture, a temporary and meaningless formality reversible at the defendant's whim." Ibid. (quoting Advisory Comm. Notes on Fed. R. Crim. P. 32) . The Fifth Circuit has relied on Hyde in concluding that a defendant who, like the defendant in Washman, pleaded guilty pursuant to a plea agreement must satisfy the Rule 32(e) "fair and just reason" standard in order to withdraw his plea prior to its acceptance by the district court. United States v. Grant, 117 F.3d 788, 790-792 (5th Cir. 1997) . The Fifth Circuit explained that, as ---------------------------------------- Page Break ---------------------------------------- 10 in Hyde, "[a]llowing [a defendant] to withdraw his plea without a fair and just reason would defeat the purpose of the plea hearing and diminish the significance of entering pleas." Id. at 791. The court acknowledged the Ninth Circuit's contrary conclusion in Washman, observing that "Washman has been called into question by the Supreme Court's decision in United States v. Hyde" 117 F.3d at 479 n.3. There is no need for this Court to consider the Grant- Washman conflict a conflict that, as explained above, is not squarely implicated here until the Ninth Circuit has had an opportunity to reconsider Washman in light of Hyde. No other court of appeals has yet addressed the issue. There is a final reason why this would not be an appropriate case in which to consider whether a defendant has an absolute right to withdraw a guilty plea that has not yet been formally accepted. Petitioner concealedly did not raise the issue in the district court. Pet. 14. And the court of appeals addressed the issue only summarily under a plain error standard. Pet. App. A2. The Court would thus be deprived of the benefit of any lower court's analysis of the issue in the context of this case. 1 2. Petitioner also argues (Pet. 16-18) that the district ___________________(footnotes) 1 Nor did petitioner previously raise his contention (Pet. 11-12) that his PSR was submitted to the district court in violation of Fed. R. Crim. P. 32(b) (3) and Gregg v. United States, 394 U.S. 489 (1969). That contention is plainly incorrect. As petitioner himself recounts (pet. 12), the Court in Gregg simply stated that, under Rule 32(b) (3) , "the [presentence] report must not, under any circumstances, be `submitted to the court' before the defendant pleads guilty or is convicted." 394 U.S. at 492 (emphasis added) . Petitioner does not dispute that his PSR was not submitted to the district court until after he pleaded guilty on September 17, 1992. ---------------------------------------- Page Break ---------------------------------------- 11 court abused its discretion in finding that he had not satisfied the Rule 32(e) "fair and just reason" standard for the withdrawal of his guilty plea. The application of the Rule 32(e) standard to the particular facts of this case does not raise any issue of general importance. 2 In any, event, the district court correctly held that petitioner had not offered any "fair and just reason" for withdrawal of his guilty plea. His only stated reason was that the district court admitted new evidence at the second sentencing hearing relevant to his role in the cocaine importation scheme and to his truthfulness at the first sentencing hearing. In essence, petitioner's claim is that he erroneously assumed that the government would not discover certain evidence relevant to the severity of his sentence, and that he would not have 'pleaded guilty had he known that the government would discover that evidence and seek to use it against him. Petitioner does not dispute, however, that he was accurately informed by the magistrate judge at the guilty plea proceeding of the maximum term of imprisonment for the offense to which he was pleading guilty. See Pet. App. Dl; id. at C7 (district court notes that petitioner "does not dispute that ___________________(footnotes) 2 Petitioner contends in a footnote (Pet. 14 n.1) that his case should be remanded based on United States v. Bell 572 F.2d 579 (7th Cir. 1978), because the district court sentenced him before ruling on the motion to withdraw his guilty plea. But no motion to withdraw the guilty plea was pending at the time that the court sentenced petitioner. In any event, the district court cured any arguable error by allowing petitioner to make his motion after the imposition of sentence and reviewing the motion under the "fair and just reason" standard rather than the more rigorous standard mandated by Rule 32(e) for post-sentencing motions to withdraw pleas. See Pet. App. C6. ---------------------------------------- Page Break ---------------------------------------- 12 *** the Magistrate Judge complied fully with Rule 11") . Petitioner's incorrect surmise that the district court would not impose the maximum sentence is not a "fair and just reason" for the withdrawal of his guilty plea. See United States v. Hoelscher, 914 F.2d 1.527, 1543-1544 (8th Cir. 1990) (defendant's alleged misunderstanding of Sentencing Guidelines range was not a basis for setting aside his guilty plea) , cert. denied, 498 U.S. 1090 (1991); United States v. Sweeney, 878 F.2d 68 (2d Cir. 1989) (per curiam) (defense counsel's mistaken prediction of expected sentence was not basis for defendant's withdrawal of guilty plea).3 CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. SETH P. WAXMAN Acting Solicitor General JOHN C. KEENEY Acting Assistant Attorney General SANGITA K. RAO Attorney OCTOBER 1997 ___________________(footnotes) 3 Petitioner's assertions (Pet. 7, 18) that he was "blindside[d]" by the government's new evidence and had no opportunity to attack it are refuted by the record. As the district court stated: "Prior to the second sentencing hearing, the United States notified [petitioner] of the evidence it intended to offer and of the enhancement it would seek. At the second sentencing hearing [petitioner] had the opportunity to cross examine and present evidence and argument." Pet. App. C8.