ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
__________________________________________________
NO. xx-3014
__________________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx xxxxxxx,
Defendant-Appellant.
__________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________________
BRIEF FOR APPELLANT
__________________________________________________
A.J. KRAMER
Federal Public Defender
CARMEN D. HERNANDEZ
Assistant Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
Also on the Brief
Frances H. Pratt
Research and Writing Specialist
District Court
Cr. No. 95-0187 (RCL)
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Pursuant to D.C. Circuit Rule 28(a)(1), Defendant-Appellant xxxxxxx xxxxxxx hereby states as follows:
A.Parties and Amici
The parties below and to this appeal are the defendant-appellant, xxxxxxx xxxxxxx, and the plaintiff-appellee, the United
States of America. There are no amici.
B.Rulings Under Review
This is an appeal from the judgment of the district court (Honorable Royce C. Lamberth), filed on January 30, 1996, adjudging Mr. xxxxxxx guilty after his plea of guilty to one count of illegal reentry of a deported alien. In this appeal, Mr. xxxxxxx seeks review of the sufficiency of the indictment against him. In the alternative, he seeks review of the district court's denial of his motion to withdraw his plea on January 19, 1996. This ruling is not reported.
C.Related Cases
Mr. xxxxxxx is the sole defendant charged in this case. Mr. xxxxxxx's case has not previously been before this Court. There are no related cases.
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
ISSUE PRESENTED 1
STATUTES AND RULES 1
JURISDICTION 2
STATEMENT OF THE CASE 2
A.Proceedings Below 2
B.Statement of Facts 2
SUMMARY OF ARGUMENT 4
STANDARD OF REVIEW 5
ARGUMENT 5
CONCLUSION 17
CERTIFICATE OF LENGTH 18
CERTIFICATE OF SERVICE 18
ADDENDUM
TABLE OF AUTHORITIES
CASES
STATUTES
MISCELLANEOUS
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
__________________________________________________
NO. 96-3014
__________________________________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
xxxxxxx xxxxxxx xxxxxxx,
Defendant-Appellant.
__________________________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________________
BRIEF FOR APPELLANT
__________________________________________________
ISSUES PRESENTED
I.Whether the indictment was fatally defective in that it failed to charge that the defendant was "arrested", an element of the offense under 8 U.S.C. § 1326(a).
II.Whether the district court abused its discretion in denying the defendant's motion to withdraw his guilty plea, made before sentence was imposed, where the defendant's guilty plea was not knowing and voluntary, the Rule 11 hearing was defective in that the court failed to explain the nature of the charges to the defendant, the defendant had a legally cognizable defense, and the court applied the wrong legal standard in denying the motion. STATUTES AND RULES
Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and D.C. Circuit Rule 28(a)(5), the pertinent statutes and rules of criminal procedure are set forth in the addendum attached at the end of this brief.
JURISDICTION
The district court had jurisdiction over this case pursuant to 18 U.S.C. § 3231. A timely notice of appeal having been filed within the ten-day period required by Rule 4(b), Federal Rules of Appellate Procedure, this Court has jurisdiction under 28 U.S.C. § 1291.
STATEMENT OF THE CASE
A.Proceedings Below
Mr. xxxxxxx, the defendant, was indicted by a grand jury on
August 2, 1995. The indictment charged him with one count of being
an alien, previously deported following conviction of a felony
offense, who was found unlawfully in the United States without the
express consent of the Attorney General, in violation of 8 U.S.C.
§ 1326(a) and (b)(1) (APP 25).
On October 18, 1995, the defendant pleaded guilty to the indictment (APP 33-47). The defendant moved to withdraw his plea of guilty on December 11, 1995 (APP at 48-50). On January 19, 1996, after hearing arguments on the motion, the district court denied it and proceeded immediately to sentencing (APP at 70-79). The court sentenced the defendant to ten months in prison and three years of supervised release (APP at 77). The judgment was filed on January 30, 1996 (APP at 101-04). The defendant filed a timely notice of appeal on February 2, 1996 (APP at 105).
B.Statement of Facts
1.The Offense Conduct
On October 24, 1990, five years and nine days after he was
deported, the defendant was readmitted to the United States
entering through a recognized immigration point of entry, Kennedy
International Airport in New York City. See Motion for Withdrawal
of Guilty Plea at 2, ¶ 6 (APP 49). His Nigerian passport, which
bears his actual name and date of birth, reflects that he was
admitted on that date by "U.S. Immigration" (APP 96). On March 21,
1992, the defendant again was readmitted to the United States
Immigration through New York with the approval of U.S. Immigration.
Id. Indeed, the passport stamp on March 21 reflects his correct
INS file number, xxxxxxx. Id.
The defendant's passport
reflects additional entries into the United States since his
deportation in 1985. See Memorandum & Order reviewing detention
order at 1 (APP ).
In the spring of 1995, the defendant was advised by Immigration Officials at Kennedy Airport that his name appeared on the INS' computerized lookout system which alerts officials as to persons who "were once denied a visa or who may be ineligible to receive a visa" (APP 99). Notwithstanding this "alert", the United States Immigration officials in New York admitted the defendant into the United States on March 12, 1995 and suggested to him that he contact the State Department about having his name removed from the lookout system (APP 45, 100). On March 17, 1995 and again on June 20, 1995, the defendant wrote to the U.S. Department of State to have his name removed from the Immigration and Naturalization Service's ("INS") computerized visa look-out system (APP 41-42; 97-98.) After having an INS investigator review the defendant's immigration file, (APP 11-12), an official at the State Department wrote to the defendant asking him to come to the Department for a meeting on July 6 (APP 42). The defendant appeared as directed. He was arrested after he admitted that he was the same xxxxxxx xxxxxxx xxxxxxx who was deported from the United States on October 15, 1985 (APP 42).
Following his arrest, he stated that he had not applied for permission from the Attorney General to reenter the United States (APP 20-21). The defendant subsequently stated that, following his deportation on October 15, 1985, he next came back to the United States in 1990 (APP 49, 96); PSR at 3. He further stated that he did not know that he had to have special permission from the Attorney General once he had been out of the United States for five years. PSR at 3.
2.The Plea Colloquy
On October 18, 1995, on the morning that trial was scheduled to commence, the defendant entered a plea of guilty to the indictment (APP 33-34). There was no plea agreement (APP 40). The district court referred to the plea as a "straight up plea", wherein the defendant received nothing from the government in return for his guilty plea (APP 40).
In its inquiry of the defendant, the district court first asked him how he pronounced his name and admonished him to answer the court's questions truthfully (APP 36). The court then asked counsel for each side if they "ha[d] any question as to the defendant's competence to enter a plea at [that] time," to which they answered "no," Based upon this exchange, the court found the defendant competent (APP 36). The court at no time asked the defendant directly about his education, his ability to understand English, or any drug or alcohol use.
The court then continued:
THE COURT: Have you had adequate time and opportunity now to discuss the case with your attorney?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: Are you satisfied with his representation of you in this matter?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: You understand that under the Constitution and laws of the United States you are entitled to a trial by jury on these charges?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: You understand if there were a trial, you would be presumed to be innocent, the government would be required to prove you guilty by competent evidence beyond a reasonable doubt before you could be found guilty?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: You understand if there were a trial, witnesses for the government would have to come to court and testify in your presence, and your attorney could cross-examine those witnesses, could object to evidence offered by the prosecutor, and could offer evidence on your own behalf?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: You understand you would have the right to testify at your trial, but you would also have the right not to testify, and no inference or suggestion of guilt could be drawn from the fact that you did not testify?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: You understand if I accept your plea, you'll waive these rights, there will be no trial, and I'll enter a judgement of guilty on your plea alone today?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: If you plead guilty, do you understand that you will also waive your right not to incriminate yourself since you must acknowledge that you are guilty in order for me to accept your plea?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: Having discussed your rights with you, do you still wish to plead guilty?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: Do you have a copy of the indictment there in front of you?
MR. OYEWOLE: Your Honor's indulgence.
THE COURT: Okay. I want to go over it with you to make sure you understand exactly what you are pleading guilty to.
The indictment reads: From on or about July 6, 1995, within the District of Columbia, you, an alien who had previously been deported from the United States on or about October 15, 1985, subsequent to a conviction for commission of a felony, were found unlawfully present in the United States without the Attorney General of the United States having expressly consented to your reapplying for admission into the United State[s].
So you understand that is what you would actually be pleading guilty to?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: Re-entry of an alien who had been deported from the United States?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: Okay. Now, counsel advised me that the maximum under that is 10 years in prison, could be followed by a period of supervised release of up to five years, a maximum fine of $250,000 could be imposed, and a $50 statutory penalty is required to be imposed. So you understand that's what the maximum penalties are under the law?
DEFENDANT xxxxxxx: Yes, sir.
THE COURT: Now, have you and your attorney talked about the sentencing guidelines and how they might apply in your case?
DEFENDANT xxxxxxx: Yes, sir.
(APP 36-39).
In its examination of the defendant, the court asked only questions necessitating "yes" or "no" answers rather than questions requiring narrative responses (APP 36-43). The court never inquired as to whether the defendant had discussed possible defenses and their viability with his attorney. In fact, the court failed to advise the defendant that by pleading guilty, he waived his right to present any defense at a trial. The court also failed to advise the defendant that he had the right to persist in his plea of not guilty.
Further, the court never asked the defendant's counsel
whether he had any discussions with his client regarding possible
defenses. Likewise, the court did not inquire of counsel whether
he advised the defendant to plead guilty because he had no defense,
or whether counsel believed it was in the defendant's best
interests to plead guilty. Nor did counsel volunteer such
information to the court. In short, the court did not conduct any
inquiry whatsoever as to the defendant's waiver of his right to
present a defense to the charge in the indictment.
In reviewing the indictment, the court read it aloud, (APP 38), and then summarized it, "Re-entry of an alien who had been deported from the United States" (APP 39). In its summary, the district court omitted the element pertaining to the express consent of the Attorney General. The district court also omitted another element of the offense, that a defendant have been arrested prior to being deported. The district court also did not discuss whether conviction under the statute required proof of mens rea. The district court also did not explain the "found in" element of the offense which has been interpreted by the majority of courts to apply only to defendants who are found in the United States after having entered by means of a surreptitious border crossing or through an official point of entry but by means of falsified documents that conceal the alien's true identity. Further, the court never asked the defendant whether he had seen a copy of the indictment prior to this proceeding, whether he had read it and understood it, or whether he had discussed it with his attorney, and counsel did not advise the court that he had reviewed and discussed the indictment with his client.
3.The Motion to Withdraw the Guilty Plea
On December 11, 1995, prior to sentencing, the defendant moved to withdraw his guilty plea on the grounds that he was innocent of the offense with which he was charged. Specifically, the motion stated that he reentered the United States after the expiration of the five-year time period during which he was required to seek permission from the Attorney General to reenter (APP at 48-50). In support, the defendant quoted language contained in a standard deportation document, INS Form I-294, obtained by him on November 27, 1995, that stated:
Should you wish to return to the United States, you must write this office or the American Consulate Office nearest your residence as to how to obtain permission to return after deportation. By law (Title 8, U.S.C. 1326) any deported person, who within five years return [sic] without permission is guilty of a Felony. If convicted, he may be punished by imprisonment of not more than 2 years, and, or, [sic] fine of not more than $1000.00
(APP 49). The three-page motion cited no other authority, statutory or judicial, to support the arguments made.
In its response, the government argued that the defendant's claims "are false in fact and in law" (APP 51). In support, the government pointed to the fact that the INS Form I-294 actually signed by the defendant did not contain any five-year limitation (APP 51). The government further noted that the language of 8 U.S.C. § 1326 similarly contains no time limit (APP 53). Finally, the government argued that withdrawal of the plea "would not be in the interests of justice" (APP 53).
At a hearing on December 18, 1995, the court deferred ruling on the motion to withdraw (APP 60-62). At that hearing, counsel for the defendant advised the court that the motion to withdraw the plea was drafted by his client (APP 63). When, on January 2, 1996, the court was reminded by the defendant that it had not yet ruled upon the motion, the court again deferred its decision and indicated that it would rule at the sentencing hearing scheduled for January 19 (APP at 65-67).
At the sentencing hearing, the court heard brief arguments from each side (APP 70-72). The court then ruled against the defendant: "The motion to withdraw the guilty plea is denied. The Court is satisfied, based on the reasons set forth in the government's opposition and as just articulated [by the prosecutor], that there is no defense to the charge, and that there is no basis for withdrawal of the plea" (APP 72). In denying the motion to withdraw the plea, the court neither stated the applicable standard (or its elements) for deciding such a motion nor did the court make findings other than that the defendant had no defense to the charge against him.
SUMMARY OF ARGUMENT
This court must vacate the defendant's conviction because the indictment against him was fatally defective. The elements of 8 U.S.C. § 1326(a) are that the accused is an alien who having been arrested and deported reenters the United States without the express consent of the Attorney General. The first requirement consists of three sub-sections, that a defendant is an alien, who has been arrested, and has been deported. The indictment in this case failed to charge that the defendant had been arrested prior to being deported. It is therefore defective and his conviction cannot stand.
In the alternative, this court must reverse the district court's denial of the defendant's motion to withdraw his guilty plea, which he filed before sentencing. Under Rule 32(e) of the Federal Rules of Criminal Procedure, a district court has the discretion to permit a defendant to withdraw his plea of guilty for any fair and just reason. On appeal, a defendant must establish that he had a fair and just reason by demonstrating either 1) that his plea was not taken substantially in compliance with the dictates of Rule 11 or that he had a legally cognizable defense, a substantial reason why that defense was not presented at the time of the original plea, and that the government would not be substantially prejudiced by having to take the case to trial.
In this case, the district court failed to take his plea in compliance with Rule 11 when it failed to address the defendant personally and ask critical questions needed to establish that the defendant understood the nature of the charge against him. The district court also failed to advise the defendant of certain rights that he waived by pleading guilty, and failed generally to conduct its questioning in a way that supports its findings that the defendant entered his plea knowingly and voluntarily.
Further, the defendant, who pleaded guilty to a violation 8 U.S.C. § 1326, reentry of a deported alien without the express permission of the Attorney General, in fact had a defense pursuant to 8 U.S.C. § 1182(a)(6). This provision establishes a five year time limit after which a deported alien may enter the United States without applying for the express permission of the Attorney General. He could not have presented this defense at the time of his plea because he was not made aware of it. Further, taking this case to trial would not substantially prejudice the government because the case involves only one defendant and its evidence consists primarily of paper documentation.
Finally, the district court abused its discretion in denying the defendant's motion to withdraw his plea when the court applied the wrong legal standard to the motion, failed to hold an evidentiary hearing concerning the facts supporting Mr. xxxxxxx's defense, and failed to make findings and conclusions sufficient to support its denial of the motion.
ARGUMENT
I.THE CONVICTION MUST BE VACATED BECAUSE THE INDICTMENT FAILED TO ALLEGE AN ELEMENT OF THE OFFENSE, RENDERING IT FATALLY DEFECTIVE
The defendant was charged with violating 8 U.S.C. § 1326(a). This section provides in relevant part that
(a) . . . any alien who --
(1) has been arrested and deported or excluded and deported, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously excluded and deported, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be fined under Title 18, or imprisoned . . . or both.
To obtain a conviction under section 1326, the government must establish first, that a defendant is an alien who was previously arrested and deported; second, that he reentered the United States voluntarily; and third, that he failed to obtain the express permission of the U.S. Attorney General to return. United States v. Flores-Peraza, 58 F.3d 164, 167 (5th Cir. 1995); United States v. Joya-Martinez, 947 F.2d 1141, 1143 (4th Cir. 1991); Federal Judicial Center, Pattern Criminal Jury Instructions 152 (West 1988). The first requirement breaks down further in three subparts: a) an alien b) who was previously arrested (or excluded) and c) deported. United States v. Quezada, 754 F.2d 1190, 1192 (5th Cir. 1985) (listing five total elements); United States v. Hernandez, 693 F.2d 996, 998 (10th Cir. 1982) (listing five elements and further noting that arrest element is essential to section 1326 conviction), cert. denied, 459 U.S. 1222 (1983).
An indictment is fatally defective if it fails to allege all the elements of the charged offense or otherwise fails to fairly inform a defendant of the charges against him. See Hamling v. United States, 418 U.S. 87, 117 (1974); United States v. Conlon, 628 F.2d 150, 155 (D.C. Cir. 1980); United States v. Haldeman, 559 F.2d 31, 123 & n.260 (D.C. Cir. 1976), cert. denied, 431 U.S. 933 (1977). In this case, the indictment failed to allege that the defendant had been arrested prior to being deported. The indictment read in its entirety:
The Grand Jury charges that:
On or about July 6, 1995, within the District of Columbia, the defendant, xxxxxxx xxxxxxx xxxxxxx, an alien who had been previously deported from the United States on or about October 15, 1985, subsequent to a conviction for commission of a felony, was found unlawfully present in the United States, without the Attorney General of the United States having expressly consented to such alien's reapplying for admission into the United States.
(Reentry of Deported Alien, in violation of Title 8 United States Code, Section 1326(a), (b)(1))
(APP 25). Nowhere in it does the indictment allege that the defendant had been arrested prior to being deported.
Further, the fact that the defendant pleaded guilty to the indictment does not waive such jurisdictional challenges to conviction as failure of the indictment to charge an offense. See, e.g., United States v. Rivera, 879 F.2d 1247, 1251-52 (5th Cir.) (guilty plea no bar to claim that indictment for knowingly transporting undocumented aliens defective for not including willfulness as essential element of crime), cert. denied, 493 U.S. 998 (1989); United States v. DiFonzo, 603 F.2d 1260, 1263 (7th Cir. 1979) (guilty plea not bar to claim that indictment failed on its face to charge offense of falsifying documents), cert. denied, 444 U.S. 1018 (1980).
In the absence of the "arrest" element, the indictment is invalid on its face. Consequently, the defendant's conviction must be vacated. United States v. Conlon, 628 F.2d at 155; United States v. Haldeman, 559 F.2d at 123 & n.260.
II.THE DISTRICT COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA, MADE BEFORE SENTENCE WAS IMPOSED, WHERE THE PLEA WAS NOT KNOWING AND VOLUNTARY BECAUSE THE COURT FAILED TO EXPLAIN TO THE DEFENDANT THE NATURE OF THE CHARGE, THE DEFENDANT HAD A LEGALLY COGNIZABLE DEFENSE, AND THE COURT APPLIED THE WRONG LEGAL STANDARD IN DENYING THE MOTION.
A.Standard of Review
Rule 32(e) of the Federal Rules of Criminal Procedure provides that "[i]f a motion to withdraw a plea of guilty or nolo contendre is made before sentence is imposed, the court may permit the plea to be withdrawn if the defendant shows any fair and just reason." Because a district court's decision is discretionary, an appellate court reviews a defendant's challenge to that decision for abuse of discretion. See United States v. Cray, 47 F.3d 1203, 1206 (D.C. Cir. 1995).
In determining whether the district court abused its discretion, this Court has delineated the specific factors it will consider in its decision:
First, a defendant generally must make out a legally cognizable defense to the charge against him. Second, and most important, the defendant must show either an error in the taking of his plea or some "more substantial" reason he failed to press his case rather than plead guilty. Finally, if those two factors warrant, the court may then inquire whether the Government would have been substantially prejudiced by the delay in going to trial.
Id. at 1207. Although presented as the second factor, the Court now begins its analysis with an assessment of the Rule 11 colloquy. Id. at 1208. In reviewing whether a district court abused its discretion in denying a defendant's pre-sentence motion to withdraw his guilty plea, this court will not hesitate to vacate the plea if the "defendant shows that his plea was taken in violation of Rule 11". United States v. Cray, 47 F.3d at 1207; see also United States v. Ford, 993 F.2d 249, 252-54 (D.C. Cir. 1993); United States v. Abreu, 964 F.2d 16, 18 (D.C. Cir. 1992).
At the same time, whether the defendant's guilty plea was knowing and voluntary is generally reviewed de novo. United States v. Goins, 51 F.3d 400, 402 (4th Cir. 1995). On direct appeal, "[a]ny deviation from the requirements of Rule 11 is reversible unless the government demonstrates that it was 'harmless'." United States v. Lyons, 53 F.3d 1321, 1322 n. 1 (D.C. Cir. 1995). Moreover, where the variance affects the substantial rights of a defendant, the error is not harmless. Fed.R.Crim.P. 11(h). See United States v. Cray, 47 F.3d 1203, 1207 (D.C. Cir. 1995); United States v. Watley, 987 F.2d at 848. Thus, Rule 11 variances which affect the defendant's decision to plead guilty are not harmless. Lyons, 53 F.3d at 1322.
B.At the Rule 11 Colloquy, the District Court Erred in Finding that the Defendant Entered His Plea Knowingly and Voluntarily Where There Was an Insufficient Basis for Such a Finding Due to The Court's Failure to Explain the Nature of the Charge
1.Defendant's Understanding of the Nature of the Charge
This Court has recently reaffirmed that
a guilty plea is not "voluntary in the sense that it constitute[s] an intelligent admission that [the defendant] committed the offense unless the defendant received 'real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process.'" "Real notice of the true nature of the charge" means notice sufficient to give the defendant "an understanding of the law in relation to the facts" of his case.
United States v. Dewalt, 92 F.3d 1209, 1211 (D.C. Cir. 1996)
(internal citations omitted). To this end, Rule 11 of the Federal
Rules of Criminal Procedure prescribes a procedure with a two-fold
purpose: first, to "`assist the district judge in making the
constitutionally required determination that a defendant's plea is
truly voluntary,'" and second, "`to produce a complete record at
the time the plea is entered of the factors relevant to this
voluntariness determination'" in order "`to eliminate any need to
resort to a later fact-finding proceeding in [the] highly
subjective area of voluntariness." Id. at 1211-12 (quoting
McCarthy v. United States, 394 U.S. 459, 465, 469 (1969)).
This Court has further explained, relying on United States v. Frye, 738 F.2d 196, 199 (7th Cir. 1984), that a district court's obligation in conducting a Rule 11 proceeding is to "have a colloquy with the defendant that would lead a reasonable person to believe that the defendant understood the nature of the charge."
Dewalt, at 1212. Frye further explains that the colloquy must leave the defendant with an understanding "of possible defenses, at least where the defendant makes known facts that might form the basis of such defenses." Frye, 738 F.2d at 199; accord Sober v. Crist, 644 F.2d 807, 809 m.3 (9th Cir. 1981); Thundershield v. Solem, F.2d 1018, 1028 (8th Cir. 1977).
2.Express Consent of the Attorney General Only For Reentries Within Five Years of Deportation
Further the district court also failed to explain the mens rea element of the offense. Although this Court has never addressed whether a § 1326 is a strict liability offense or requires proof that the defendant had criminal intent, there is split of authority on this issue. In United States v. Anton, 683 F.2d 1011, 1015 (7th Cir. 1982), the Seventh Circuit rejected the argument that § 1326 is a "public welfare offense" falling within the narrow class of strict-liability crimes. Anton reasoned that the substantial penalties attached to the offense (now increased to ten years) and the fact that the offense does not prevent the severe harm of other offenses classified as such compelled it to retain a "traditional criminal intent requirement". Id.; but see United States v. Trevino-Martinez, 86 F.3d 65 (5th Cir. 1996)(strict liability offense); Pena-Cabanillas v. United States, 394 F.2d 785 (9th Cir. 1968) (same).
The facts at issue in this case, where the defendant was repeatedly admitted into the United States by federal immigration authorities when he presented himself at a recognized point of entry and provided true and accurate identification documents, mirror the "reasonable belief" defense upheld by the Seventh Circuit in Anton. 683 F.2d at 1013, 1018 (after deportation, Anton had dealings with officials in the American Consulate as well as INS officials and "gained readmission through a normal INS checkpoint leading him to believe that he had actually received the express consent of the Attorney General). In light of the facts that were known to the district court, from having presided at the arraignment and reviewed the detention order entered by the magistrate judge, the district court should have explained to the defendant the mens rea element applicable to a § 1326 offense before it accepted his plea of guilty.
4."Found In" The United States Element
The district court also failed to explain the "found in" element of the offense. Section 1326 criminalizes three distinct types of acts: certain deported aliens cannot (1) "enter[]"; (2) "attempt[] to enter"; or (3) be "found in", the United States. The majority of courts that have considered this element have determined that under the "found in" element Congress intended to reach only those aliens "who have entered surreptitiously, bypassing a recognized immigration point of entry," United States v. Castillon-Gonzalez, 77 F.3d 403, (11th Cir. 1996); or alternatively, those who have entered "through a recognized port by means of specious documentation that conceals the illegality" of their presence. United States v. Rivera-Ventura, 72 F.3d 277, 281 (2d Cir. 1996); see also United States v. DiSantillo, 615 F.2d 128 (3d Cir. 1980); but see United States v. Ortiz-Villegas, 49 F.3d 1435, 1436 (9th Cir. 1996) (surreptitious entry not a prerequisite to prosecution under the "found in" subsection).
In light of the particulars of the defendant's conduct, an explanation of this element by the district court was also necessary to permit the conclusion that the defendant's plea was knowing and voluntary.
5.Additional Errors in the Colloquy
Furthermore, the court did not ask the defendant whether he had seen the indictment before the day of the change of plea, whether he read the indictment, whether he understood the indictment, or whether he had discussed the indictment with his attorney (APP 36-39). Similarly, the court did not ask the defendant's counsel whether he had reviewed the indictment with, and explained it to, his client (APP 34-39). Counsel made no representation to the court that he had done so (APP 34). See Dewalt, 92 F.3d at 1212 (noting that district court asked defendant only whether he received copy of indictment and understood it, without asking squarely whether defendant had read indictment or relied upon counsel's representations concerning it); Ford, 993 F.2d at 253 (finding error where lower court did not elaborate sufficiently on nature of charge despite having asked whether defendant had seen, read, understood, and discussed indictment with attorney); cf. United States v. Marks, 38 F.3d 1009, 1011 (8th Cir. 1994) (affirming where defendant testified he had counseled extensively with attorney, he said he understood charge, and his attorney stated that defendant was aware of meaning of charge), cert. denied, 115 S. Ct. 1700 (1995); United States v. Musa, 946 F.2d 1297, 1305 (7th Cir. 1991) (finding no error when lower court satisfied itself that defendant was adequately represented where counsel represented to court that he engaged in exhaustive discussion with defendant about charge).
Similarly, the court did not inquire of the defendant as to whether he had discussed possible defenses to the charge with his attorney, the likelihood of success of any possible defenses, or whether he understood that by pleading guilty he gave up the right to present a defense. Likewise, the court did not make such an inquiry of the defendant's counsel, nor did counsel volunteer such information. This line of questioning is an integral and essential aspect of the determination that in making a voluntary plea, a defendant understand the law as well as the facts of his case. See McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 1171 (1969).
Further, the district court failed to comply with two explicit directives of Rule 11. First, it did not advise the defendant that he had the right to persist in his plea of not guilty, a violation of section (c)(3) (APP 37-38). Second, the court failed, under section (d), to inquire whether the defendant's willingness to plead guilty resulted from discussions between the government and him or his counsel (APP 27, 40).
Additional errors by the district court only compound the fundamental omissions described above. First, the court asked the defendant questions that required only "yes" or "no" answers rather than narrative answers that would give the court adequate opportunity to determine whether the defendant truly understood what was taking place and whether he was competent. Second, the court failed to make a record sufficient to support its finding of competency -- made at the beginning of the colloquy before the court had sufficient opportunity to observe the defendant -- when it relied on counsel (APP 36), rather than asking questions for itself concerning the defendant's education, ability to understand English, or drug or alcohol use.
Most importantly, although not technically required by Rule 11, given that the defendant changed his plea on the day of trial with no obvious incentive such as a plea agreement, the court should have asked why the defendant suddenly changed his mind. Such a question would have given him the opportunity to advise the court that his counsel told him that he had no defense.
In short, the court did not conduct "`a colloquy with the defendant that would lead a reasonable person to believe that the defendant understood the nature of the charge.'" Dewalt, 92 F.3d at 1212 (citation omitted). The court simply did not carry out its duty under Rule 11 to take the defendant's plea with "great care," FED. R. CRIM. P. 32, advisory committee notes to 1983 amend., and with the "utmost solicitude," Saddler v. United States, 531 F.2d 83, 86 (2d Cir. 1976) (quoting Boykin v. Alabama, 395 U.S. 238, 243 (1969)), when it failed to thoroughly investigate the circumstances under which the plea was made, United States v. Lester, 247 F.2d 496, 500 (2d Cir. 1957). Compare Cray, 47 F.3d at 1208 (noting that lower court conducted "textbook" inquiry) and United States v. Watley, 987 F.2d 841, 844, 846 (D.C. Cir. 1993) (noting that district court "demonstrated . . . a strong concern" that defendant understood the penalties and "assiduously endeavored" toward that end) with Dewalt, 92 F.3d at 1212 (noting that the "district judge appear[red] to have approached his solemn task with a somewhat casual attitude"). As a result, the record does not and cannot support the court's finding that the defendant entered his plea knowingly and voluntarily. Further, the record is clear that had the district court explained the nature of the charge and the potential defenses, the defendant would not have pleaded guilty. Consequently, the district court's finding that the defendant entered his plea knowingly and voluntarily cannot stand. This Court should remand this case and direct the district court to permit the defendant to withdraw his plea.
C.In the Alternative, the Defendant Has a Legally Cognizable Defense to the Charge Against Him Which Was Not Raised Because His Attorney Failed to Pursue It
1.Mr. xxxxxxx Had a Legally Cognizable Defense
Should this Court find that the district court committed no Rule 11 error, the defendant must show instead both that he had a legally cognizable defense and that he had a substantial reason for not having presented it earlier. To meet the first part of this prong of the analysis under Cray, a defendant must affirmatively advance an objectively reasonable argument that he is innocent of the offense to which he pleaded guilty. 47 F.3d at 1209.
The defendant was charged with violating 8 U.S.C. § 1326(a). As addressed in section II.B.2, above, the clear import of 8 U.S.C. § 1182 is that if more than five years have elapsed following an alien's deportation, he is not required to have the express, special permission of the Attorney General but may instead proceed through normal channels to enter the United States. United States v. Joya-Martinez, 947 F.2d 1141, 1143-44 (4th Cir. 1991) (rejecting defendant's argument that section 1182(a)(6) amended section 1326 by adding another element, but recognizing that section 1182(a)(6) does create defense to section 1136); United States v. Bernal-Gallegos, 726 F.2d 187, 188 (5th Cir. 1984) (explaining interplay between sections 1182(a)(6) and 1326 and noting that because defendant reentered U.S. more than five years after being deported, he would not have violated section 1326 if he had properly applied for visa); see also United States v. Ayala, 35 F.3d 423, 425 (9th Cir. 1994) (noting that INS Form I-294 states that "`by law . . . any deported person who within five years returns without permission is guilty of a felony'"); United States v. Samaniego-Rodriguez, 32 F.3d 242, 243 n.1 (7th Cir. 1994) (same); United States v. Aquino-Chacon, 905 F. Supp. 351, 354 n.9 (E.D. Va. 1995). Because the defendant entered the United States more than five years after his deportation on October 15, 1985, under section 1182(a)(6), he was not required to obtain the Attorney General's consent to his reentry. Therefore, the defendant could have presented a full defense to the offense to which he pleaded.
2.This Defense Was Not Raised Before Mr. xxxxxxx Entered His Plea Because He Had Not Been Made Aware of It
Even if a defendant can show that he had a legally cognizable
defense to the charge against him, he must further show a
substantial reason why he has not heretofore presented that
defense. Cray, 47 F.3d at 1207. "Such an explanation cannot
merely be grounded in legal strategy; it must legitimately explain
why the defendant, who formerly admitted his guilt, should now be
entitled to maintain his innocence. A simple shift in tactics or
change of heart is not an adequate reason . . . ." Abreu, 964 F.2d
at 20. In this case, the defense was never raised because the
defendant was not made aware of its legal significance in a timely
fashion, see Motion for Withdrawal of Guilty Plea (App. at 48-50),
due to his counsel's failure either to discover or pursue it.
It is apparent that the defendant's attorney did not pursue this line of defense under section 1182(a)(6), or perhaps even discover it prior to his client's entry of a guilty plea on October 18, 1995. This is so notwithstanding the defendant's insistence that he came into the United States more than five years after he was deported and therefore did not need the express consent of the Attorney General to reenter and notwithstanding the discussion of the five-year time frame by the government witness during the probable cause hearing, the transcript to which was filed only five days before the scheduled trial date (APP 18-19). Even a cursory look at the cases listed following section 1326 in the United States Code Annotated reveals three annotations specifically mentioning the five-year time period. 18 U.S.C.A. § 1326 annos. 3d, 4. (West Supp. 1996) (listing cases addressing elements of offense and reentry of alien).
It is equally apparent that, even at the time Mr. xxxxxxx moved to withdraw his guilty plea on December 11, 1995, his counsel still had not discovered the defense available under section 1182(a)(6). The motion, which was drafted by the defendant himself (APP 63), clearly stated that the defendant was innocent of the charged offense because he reentered the United States more than five years after he was deported (APP 50). However, the motion used an invalid theory, reliance on the INS I-294 form, to support the claim of innocence, (APP 49), rather than the statutory defense available under section 1182(a)(6), an error which counsel failed to correct before submitting the motion to the district court or at the hearing upon the motion. Thus, counsel's failure to identify or pursue a defense under section 1182(a)(6) prevented the defendant from raising it at the time of his original plea.
D.There Is No Substantial Prejudice to the Government in Allowing Mr. xxxxxxx to Withdraw His Plea
The last question in determining whether the district court abused its discretion in denying a motion to withdraw a guilty plea asks whether the government would suffer substantial prejudice in having to take the case to trial. Cray, 47 F.3d at 1207, 1209. In this case, the government cannot show any substantial prejudice if the defendant is allowed to withdraw the guitly plea.
First, because there was no agreement in which the government made concessions to gain a plea, the government does not lose the benefit of any bargain that it struck with Mr. xxxxxxx. Second, this case is a simple, straightforward one involving only one defendant. The evidence consists almost entirely of documents, and requires few witnesses. The government would need only minimal preparation time. Compare United States v. Barker, 514 F.2d 208, 222 (D.C. Cir. 1975) ("The most common form of prejudice is the difficulty the Government would encounter in reassembling far-flung witnesses in a complex case, but prejudice also occurs where a defendant's guilty plea removed him from an ongoing trial of co-defendants, who were then found guilty."), cert. denied, 421 U.S. 1013 (1975) with Watley, 987 F.2d at 848 (reversing district court in part because case was not complex, it did not involve co-defendant, and there was no loss of evidence).
E.The District Court Abused Its Discretion When It Erred Procedurally in Its Consideration of Defendant's Motion
As recently as this past term, the U.S. Supreme Court reaffirmed in the context of the Sentencing Guidelines that "the abuse of discretion standard includes review to determine that the [district court's] discretion was not guided by erroneous legal conclusions." Koon v. United States, 116 S. Ct. 2035, 2048 (1996). Moveover, the Court stated, "[a] district court by definition abuses its discretion when it makes an error of law." Id. at 2047 (emphasis added) (citing Cooter & Gell v. Hartmarx Corp, 496 U.S. 384, 405, 110 S. Ct. 2447, 2460 (1990)). In this case, the district court erred, among other things, when it applied the wrong legal standard to its consideration of Mr. xxxxxxx's motion to withdraw his guilty plea.
Rule 32(e) provides that a district court may permit a defendant to withdraw his plea prior to sentencing for "any fair and just reason." The district court in this case did not apply this standard to the defendant's motion. Instead, the court tacitly adopted the standard proposed by the government, whether permitting withdrawal would be "in the interests of justice" (APP 53, 71-72).
As well, the court incorrectly found -- yet again in reliance upon the government's representations set forth in its written opposition and as stated in open court -- that "there is no defense to the charge." (App. at 72.) For the reasons explained previously, the court's finding is simply wrong: in fact, there are several legally cognizable defenses to the charge. Furthermore, the court had sufficient notice of the possibility of a five-year defense, from the probable cause hearing, from the defendant's motion, and from the pre-sentence report, (APP 19, 49-50, PSR at 3), that in light of its obligations under Rule 11 and the "any fair and just reason" standard for granting motions to withdraw pleas, it should have researched the claim for itself rather than relying upon the government's representations.
Further, the court held no evidentiary hearing to determine the facts potentially supporting the defense. Compare Ford, 993 F.2d at 250-51 (finding district court abused discretion in case where district court did not hold hearing on renewed motion that clearly stated claim of innocence) with Cray, 47 F.3d at 1205 (district court held two-day hearing); United States v. Horne, 987 F.2d 833, 835 (D.C. Cir.) (district court held hearing), cert. denied, 510 U.S. 852 (1993); and United States v. McKoy, 645 F.2d 1037, 1038 (D.C. Cir. 1981) (district court did not abuse discretion where it made decision "after a full airing of the matter").
The court also did not question counsel for either side about each of the factors used to determine whether the defendant had a fair and just reason to withdraw his plea: whether there was Rule 11 error, the availability of a cognizable defense, why the defense was not presented heretofore, and whether the government would suffer substantial prejudice should the plea be withdrawn. Similarly, the district court made no findings, factual or legal, other than the incorrect one concerning the availability of any defense. Cf. McKoy, 645 F.2d at 1039 (district court's finding of defendant's competency at time he entered plea supported by court's recollection of its specific observations of defendant's demeanor at plea hearing). Finally, the district court gave no explanation, oral or written, of the factors it considered in its decision, other than the unavailability of any defense. See United States v. Fournier, 594 F.2d 276, 279 (1st Cir. 1979) (noting that "an explanation should always be given when a Rule 32(d) [now 32(e)] motion alleges facts that might justify relief" and remanding case for such an explanation); United States v. Jordan, 759 F. Supp. 902, 904-08 (D.D.C. 1991) (providing extensive and thorough statement of reasons for denial of motion).
In short, the court simply did not give serious consideration to the merits of the defendant's motion. In light of this failure, this Court cannot defer to the lower court's judgment and must find that the district court abused its discretion in denying the defendant's motion. Therefore, this court should remand the case to the district court with instructions to permit the defendant to withdraw his plea.
CONCLUSION
For the reasons presented in Part I, this court should vacate the defendant's conviction. In the alternative, for the reasons presented in Part II, this court should reverse the district court's order denying the defendant's motion to withdraw his guilty plea and remand this case to the district court with instructions that the court permit the defendant to withdraw his plea.
Respectfully submitted,
A.J.KRAMER
Federal Public Defender
CARMEN D. HERNANDEZ
Assistant Federal Public Defender
Counsel for Appellant
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
(202) 208-7500
Also on the Brief
Frances H. Pratt
Research and Writing Specialist
CERTIFICATE OF LENGTH
I hereby certify that the foregoing Brief for Appellant
xxxxxxx xxxxxxx does not exceed the number of words permitted pursuant to D.C. Circuit Rule 28(d).
CARMEN D. HERNANDEZ
Assistant Federal Public Defender
CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief for Appellant xxxxxxx xxxxxxx and one copy of the Appendix have been delivered by hand to the United States Attorney's Office, John R. Fisher, Esq., Chief, Appellate Division, 555 Fourth Street, N.W., Washington, D.C. 20001, this 15th day of October, 1996.
CARMEN D. HERNANDEZ
Assistant Federal Public Defender