United States v. Rafael Jesus Alejandro

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UNITED STATES of America, Plaintiff-Appellee, v. Rafael Jesus ALEJANDRO, Defendant-Appellant.

No. 407, Docket 77-1338

United States Court of Appeals, Second Circuit

Decided Feb. 9, 1978.

569 F.2d 1200

Argued Nov. 22, 1977.

cially able defendant, who has been provided with legal services at society‘s expense, to repay the costs of his defense. See

United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir. 1969).

As a final consideration, the district judge must, of course, rule on any claim to funds in a defendant‘s possession made by persons other than the defendant. If monies paid on a defendant‘s behalf actually belong to a third party, then they are not “available for payment“. See

United States v. Bursey, supra, 515 F.2d 1228 (5th Cir. 1975), discussed at n.4 supra.

In the case at bar, Bracewell submitted, with his papers in opposition to the Government‘s motion, a letter from his mother stating that appellant had borrowed money from her husband, appellant‘s step-father, and that she, too, had lent funds to Bracewell. Record on Appeal, Document No. 17. Furthermore, when Bracewell first moved for an order releasing the funds, his attorney submitted an affirmation stating that the court was undoubtedly aware that Bracewell‘s wife had been imprisoned in a Spanish jail, but that she was recently released and was totally destitute, being supported by her parents. “It is [Bracewell‘s] intention“, stated his attorney, “to use the bulk of [his] money to give to his destitute wife“. Affirmation of Mark E. Arroll, attorney for defendant Bracewell, in support of motion for new trial and various other relief, Record on Appeal, Document No. 10, at page 8. We state these facts not to indicate any view on how the matter should be treated on remand, but rather to point out that these factors may, and should, be considered. It could well be that Bracewell‘s parents are not dependent on Bracewell for support, that his wife, being outside of the country, will not become a ward of any of the United States, and that Bracewell himself is not in need of any funds. The fact, however, that no findings were made, at least on the record, requires a remand for equitable consideration of appellant‘s financial status.

The decision to be made in this case, as in any future case that may arise under 18 U.S.C. § 3006A(f), calls for an exercise of sound discretion, informed by the principles stated here. In the usual case, the district judge need not permit a full-fledged adversarial inquiry into the nature and amount of a defendant‘s assets; nor need he become involved in determining priorities to those assets. We hold only that any defenses to payment asserted by a defendant such as Bracewell should be fully considered. See

United States v. Durka, 490 F.2d 478 (7th Cir. 1973). In the absence of a serious abuse of discretion, a district judge‘s findings as to “availability” of funds, if supported by an “adequate inquiry“, will not be disturbed on appeal.

Reversed and remanded for a finding on “availability for payment“.

Jonathan J. Silbermann, The Legal Aid Society, New York City (Martin Erdmann, Federal Defender Services Unit, New York City, of counsel), for defendant-appellant.

Harvey M. Stone, Asst. U. S. Atty., Brooklyn, N. Y. (David G. Trager, U. S. Atty., for the Eastern District of New York, Susan B. Shepard, Asst. U. S. Atty., Brooklyn, N. Y., of counsel), for plaintiff-appellee.

Before HAYS, FEINBERG and MANSFIELD, Circuit Judges.

PER CURIAM.

On this appeal from a judgment of conviction entered in the Eastern District of New York on appellant‘s plea of guilty to one count of conspiracy to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), 846, appellant, who was sentenced to five years imprisonment plus a special parole term of five years, contends that his plea must be vacated because of the district court‘s failure to comply with Rule 11(c), F.R.Cr.P. We remand with directions to vacate the plea and permit appellant to plead anew.

Rule 11(c) expressly obligates the district judge, before accepting a guilty plea, to inform the defendant of the “maximum possible penalty provided by law.” In

United States v. Journet, 544 F.2d 633 (2d Cir. 1976), we held under similar circumstances that in accepting a plea to the same statute, 21 U.S.C. § 841(a)(1), the district judge must clearly explain to the accused the maximum special parole term to which he may be sentenced, which could run for the remainder of his life. See

United States v. Jones, 540 F.2d 465, 468 (10th Cir. 1976);

United States v. Rich, 518 F.2d 980, 987 (8th Cir. 1975), cert. denied,

427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976). We further explained that the legislative history of the 1975 amendments to Rule 11(c) made it clear that where the court has failed to comply with that rule “the plea must be treated as a nullity.” We repeated our earlier suggestion that the district court adopt a set of instructions or a form to insure compliance with the amended rule. See

Kloner v. United States, 535 F.2d 730, 734 (2d Cir.), cert. denied,

429 U.S. 942, 97 S.Ct. 361, 50 L.Ed.2d 312 (1976).

The present case is virtually a carbon copy of Journet except that the non-compliance here is limited to failure to advise the appellant that the court upon his guilty plea had the power to impose a life-time special parole in addition to the maximum prison term authorized by the statute. Instead of informing appellant of the maximum parole term, the district court here, as in Journet, advised appellant that in addition to a maximum prison term of 15 years and a fine of $25,000 it had authority to impose “a special parole term of at least three years . . . a minimum parole term.” Had appellant indicated that he understood the words “at least three years” or “minimum parole term” to mean that the term could run much longer and possibly for his life, the plea might be sustained. But the transcribed colloquy directly between court and appellant, looked at most favorably to the government, is at best ambiguous on the subject, indicating that appellant construed the court‘s remarks about the parole term to mean a “three years special.”

None of the circumstances found to be controlling in

United States v. Saft, 558 F.2d 1073 (2d Cir. 1977), and

United States v. Michaelson, 552 F.2d 472 (2d Cir. 1977), relied on by the government, are present here. We have never held that the district judge must follow a set phraseology in order to comply with Rule 11(c); on the contrary, we pointed out in Journet that the terminology was immaterial as long as the defendant was advised of the rights and matters prescribed by that Rule,

544 F.2d at 636 n.4. In Saft we found substantive compliance with the Rule, albeit not in as precise terms as the defendant there later demanded, and the record was clear that the defendant was advised of his right to assistance of counsel at trial, since he had retained counsel with him at all stages and advised the court that “my attorney and I had looked forward to trial as the ultimate forum for proving that I am not guilty of the crimes charged,”

558 F.2d 1080. Michaelson simply recognized, as we had earlier suggested in Journet,

544 F.2d at 637 n.6, that where a district court does not follow the practice of placing a defendant under oath before questioning him, it is not essential, though probably advisable, to warn a defendant that he could be questioned under oath. Moreover, since the guilty plea there was taken during the trial, which was being conducted by the defendant‘s own counsel, his awareness that he was not required to incriminate himself was clearly apparent.

No such distinguishing circumstances are present here. The guilty plea must there¹fore be vacated and the defendant given the opportunity to plead again to the indictment.

HAYS, Senior Circuit Judge, dissenting:

I dissent.

While language in

United States v. Journet, 544 F.2d 633, 634 (2d Cir. 1976), indicates establishment of a per se rule,¹ subsequent decisions have revealed that not every failure to completely satisfy a requirement of Rule 11(c), Fed.R.Crim.P., mandates that the guilty plea be vacated.

United States v. Saft, 558 F.2d 1073 (2d Cir. 1977);

United States v. Michaelson, 552 F.2d 472 (2d Cir. 1977). As noted in Saft, Journet was a case of conceded failure to comply with several items of Rule 11(c), and this court‘s insistence on explicit and specific information of ‘each and every element enumerated in Rule 11,’

544 F.2d at 634, must be read in that light.

558 F.2d at 1081.

Here, as recognized by the majority, “the non-compliance is limited to failure to advise the appellant” that a maximum special parole term of life could be imposed. (Emphasis added.) Thus, the instant case is distinguishable in that it involves only one of the violations of Rule 11(c) present in Journet. Moreover, unlike Journet, here the total possible period of supervision actually imposed was well within the maximum period of supervision of which the appellant had been advised.²

The extreme remedy of vacatur and remand for repleading is especially inappropriate here. The appellant has failed to allege that he was, in any way, prejudiced by the district court‘s “limited” non-compliance with Rule 11(c), or that, had he been adequately informed, he would not have pleaded guilty. On the other hand, the appellant has already fully enjoyed the benefit of his plea agreement; as promised, following imposition of sentence by Judge Bramwell, the United States Attorney‘s Office for the Southern District of New York dropped independent charges against appellant.

I would find that

United States v. Journet, 544 F.2d 633 (2d Cir. 1976), does not require that the guilty plea be vacated in this case. I would affirm the judgment of conviction.

Notes

1

The court stated that “unless the defendant is specifically informed of each and every element enumerated in Rule 11 the plea must be vacated.”

United States v. Journet, 544 F.2d 633, 634 (2d Cir. 1976).

2

The maximum possible period of supervision would be calculated on the basis of an individual who violated his special parole term when it was about to expire. As a consequence of the violation, he would incur an additional prison term equal in length to the original special parole term. Under the sentence imposed—a prison term of 5 years and a special parole term of 5 years—appellant could, at most, be subjected to 15 years of supervision. On the other hand, appellant was advised that his period of supervision could be 21 years—a prison term of 15 years and a special parole term of at least 3 years. It is noteworthy that the maximum possible period of supervision under the actual sentence is equal in length to the prison term that appellant was informed could be imposed.

Case Details

Case Name: United States v. Rafael Jesus Alejandro

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 9, 1978

Citation: 569 F.2d 1200

Docket Number: 407, Docket 77-1338

Court Abbreviation: 2d Cir.