UNITED STATES OF AMERICA, PETITIONER V. JOSEPH BENCHIMOL No. 84-1165 In the Supreme Court of the United States October Term, 1984 The Solicitor General, on behalf of the United States, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit TABLE OF CONTENTS Opinions below Jurisdiction Rules involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-9a) is reported at 738 F.2d at 1001. The portions of the transcript of the hearing in district court at which the court stated its reasons for denying relief (App., infra, 11a-15a) are unreported. JURISDICTION The judgment of the court of appeals was entered (although not issued separately from the opinion) on July 24, 1984, and the government's timely petition for rehearing was denied on November 9, 1984 (App., infra, 10a). By order dated January 4, 1985, Justice Rehnquist extended the time within which to file the petition for a writ of certiorari to and including January 17, 1985. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). RULES INVOLVED 1. Rule 11(e) of the Federal Rules of Criminal Procedure provides in pertinent part: Plea Agreement Procedure. (1) In General. The attorney for the government and the attorney for the defendant or the defendant when acting pro se may engage in discussions with a view toward reaching an agreement that, upon the entering of a plea of guilty or nolo contendere to a charged offense or to a lesser or related offense, the attorney for the government will do any of the following: (A) move for dismissal of other charges; or (B) make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the court; or (C) agree that a specific sentence is the appropriate disposition of the case. The court shall not participate in any such discussions. (2) Notice of Such Agreement. If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered. If the agreement is of the type specified in subdivision (e)(1)(A) or (C), the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentence report. If the agreement is of the type specified in subdivision (e)(1)(B), the court shall advise the defendant that if the court does not accept the recommendation or request the defendant nevertheless has no right to withdraw his plea. (3) Acceptance of a Plea Agreement. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement. (4) Rejection of a Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea or plea of nolo contendere the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement. 2. Rule 32(d) of the Federal Rules of Criminal Procedure, as in effect prior to August 1, 1983, provided: Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilty or 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. 3. Rule 32(d) of the Federal Rules of Criminal Procedure, as amended effective August 1, 1983, provides: Plea Withdrawal. If a motion for withdrawal of a plea of guilty or nolo contendere is made before sentence is imposed, imposition of sentence is suspended, or disposition is had under 18 U.S.C. Section 4205(c), the court may permit withdrawal of the plea upon a showing by the defendant of any fair and just reason. At any later time, a plea may be set aside only on direct appeal or by motion under 28 U.S.C. Section 2255. QUESTIONS PRESENTED 1. Whether, when the attorney for the government and counsel for the defendant enter into a plea agreement pursuant to Fed. R. Crim. P. 11(e)(1)(B) under which the government agrees to recommend a particular sentence, an additional term constructively to be implied in any such agreement is that the attorney for the government will explain to the court the government's justification or reasons for the recommendation. 2. Whether the failure by the attorney for the government to offer such an explanation in this case is a basis for a collateral attack on the conviction and sentence under Fed. R. Crim. P. 32(d) or 28 U.S.C. 2255 five years after the guilty plea was entered, even though the district court clearly understood the substance of the government's recommendation and respondent made no objection to the government's performance under the plea agreement at the time of sentencing or by taking a direct appeal. STATEMENT 1. On April 30, 1976, respondent pleaded guilty to an information charging him with one count of mail fraud, in violation of 18 U.S.C. 1341, in connection with the mailing of an application for a credit card using a fictitious name. Respondent's plea was pursuant to an agreement under which the government would recommend that he be placed on probation on the condition that he made restitution (App., infra, 2a). In taking the plea, the district court stated that "(t)he government is (sic) advised that they recommend you be placed on probation on the condition that restitution be made, and I'll consider that recommendation," but the court informed respondent that it was not bound by the government's recommendation. Respondent stated that he understood. 4/30/76 Tr. 5-6. The Assistant United States Attorney thereafter informed the probation officer in writing that the government had agreed to recommend probation (E.R. 23, 25), /1/ but the presentence report incorrectly stated that the government would stand silent with regard to sentencing (E.R. 23). Defense counsel brought this error to the court's attention at the sentencing hearing, characterizing it as a "slight correction" in the presentence report (5/21/76 Tr. 4). The attorney for the government confirmed defense counsel's description of the government's actual recommendation by stating: "That is an accurate representation" (ibid.). Defense counsel acknowledged, however, that the court was "probably more inclined toward a youth commitment than probation" (id. at 4-5), and the court in fact did sentence respondent to the custody of the Attorney General for six years for treatment and supervision under the Youth Corrections Act, 18 U.S.C. 5010(b) (5/21/76 Tr. 5-6). Neither respondent nor his attorney suggested at the sentencing hearing that the government had breached the plea agreement, and no direct appeal was taken from the judgment of conviction and sentence. 2. Respondent was released on parole after serving 18 months of his sentence (12/15/81 Tr. 10). On October 16, 1981, after respondent had remained at large for several years following the issuance of a parole violator warrant for his arrest, /2/ respondent filed a motion under Fed.R.Crim.P. 32(d) and 28 U.S.C. 2255 to withdraw his guilty plea or, in the alternative, to have his sentence vacated and be resentenced to time served. In seeking this relief, respondent contended that the government breached the plea agreement by standing silent instead of recommending probation (E.R. 9, 11, 14). /3/ The district court held a hearing on the motion and found that the plea agreement was correctly stated at the time the plea was taken and that respondent's attorney corrected the error in the presentence report at the time of sentencing (App., infra, 11a). The district court further found (id. at 12a): It was perfectly apparent to everybody present that the government was recommending probation and that I took that into account, as I said that I would, at the time of the entry of sentence. But it was everyone's understanding, including the expressed understanding by (respondent,) that I wasn't to be bound by that. Finding no impropriety in the prior proceedings, the district court denied respondent's motion to withdraw his plea or for other collateral relief (App., infra, 12a, 15a). /4/ 3. a. A divided court of appeals reversed and remanded for resentencing (App., infra, 1a-9a). The court held, sua sponte, that "when the government undertakes to recommend a sentence pursuant to a plea bargain, it has a duty not only to state its recommendation clearly to the sentencing judge," but also "to express the justification for it" (id. at 3a-4a). /5/ In this case, the court of appeals concluded that the prosecutor's statement at sentencing, which agreed with defense counsel's correction of the presentence report without an explanation of the government's reasons for agreeing to recommend a lenient sentence, "left an impression with the (district) court of less-than-enthusiastic support for leniency" (id. at 3a). The court of appeals also found the prosecutor's statement "ambiguous" because defense counsel's statement that the government "recommended" probation "could have been interpreted as a statement of the past intent of the government" (ibid.). On this basis, the court of appeals held that the government had breached the plea agreement and that respondent was entitled to relief. The court held that the appropriate relief was to remand for resentencing before a different judge, "at which time the government will comply with its plea bargain by clearly stating its recommendation of probation with restitution and the reasons why it believes that sentence is appropriate" (App., infra, 6a). b. Judge Wallace dissented (App., infra, 7a-9a). He acknowledged that "(i)n recommending a sentence as part of a plea bargain, the prosecutor must effectively communicate the government's firm position to the sentencing judge" (id. at 7a). But he concluded that "(t)he Assistant United States Attorney did exactly that in (respondent's) case," because the district court found that it had been "perfectly apparent" at sentencing that the government was recommending probation (ibid.). Judge Wallace also faulted the majority for focusing on "the wording and the length, or perhaps the volume of the government's recommendation" (App., infra, 7a). In particular, he found "unpersuasive" the majority's reliance on United States v. Grandinetti, 564 F.2d 723 (5th Cir. 1977), and United States v. Brown, 500 F.2d 375 (4th Cir. 1974), because in those cases "the prosecutor expressed open distaste for the plea bargains" (App., infra, 8a), while in this case, the prosecutor agreed with defense counsel's representation of the government's position and "did not undercut or express distaste for the plea bargain" (ibid.). Judge Wallace further reasoned that neither the decisions of this Court nor professional standards "impose() the duty of zeal an advocate owes to his client on the prosecutor fulfilling a (plea) bargain, nor could they. The defendant is not the prosecutor's client" (ibid.). Finally, Judge Wallace rejected the majority's holding that the prosecutor is required to state the government's justification for the recommended sentence, even where the court does not request such a statement. Here, Judge Wallace explained, "the district court found such extended inquiry unnecessary"; "(t)he government performed properly"; and "(n)o one was misled" (id. at 9a). REASONS FOR GRANTING THE PETITION The court of appeals granted relief in this case on the ground that the government had breached its agreement to recommend that respondent be placed on probation. Yet the district court found that it was "perfectly apparent" to everyone present at sentencing that the government in fact did recommend probation. The court of appeals apparently adopted a rule which deems it to be constructively implied in every plea agreement under which the government is to recommend a particular sentence that the government also will explain to the sentencing court the justification for its recommendation -- even where the defendant did not bargain for such an explanation and even though it often might prove detrimental to the defendant. This holding finds no support in the Constitution, Rule 11 of the Federal Rules of Criminal Procedure, the logic of the plea bargaining process, or the decisions of this Court and the courts of appeals. It also threatens to open a whole new area of litigation regarding the nature and persuasiveness of the prosecutor's performance that is at best peripheral to the plea agreement and to the validity of the guilty plea and conviction based on that agreement. In addition, the court of appeals granted relief in this case even though respondent did not suggest at the time of sentencing that the government had breached the plea agreement and did not take a direct appeal for that purpose, but instead waited until five years after he pleaded guilty to collaterally attack his conviction and sentence. In granting relief in these circumstances, the court of appeals wholly ignored the provision of former Fed. R. Crim. P. 32(d) that a court may set aside a conviction and allow the defendant to withdraw his guilty plea only to "correct manifest injustice," and the parallel standards for granting relief under 28 U.S.C. 2255. The court of appeals thus has invited serious inroads into the finality of convictions based on guilty pleas. Review by this Court therefore is warranted. 1. a. The court of appeals held that when the government undertakes to recommend a sentence pursuant to a plea bargain, it has a duty not only to make that recommendation known clearly to the sentencing judge, but also to express the justification for it. In imposing this requirement, the court reached out to decide an issue that was not before it. Respondent did not argue in district court or the court of appeals that the particular plea agreement involved in this case embodied a requirement that the prosecutor explain the government's justification for the recommended sentence. Indeed, respondent did not even argue that he was entitled to an explanation of the government's recommendation. He contended only that the government had remained silent and not actually made a recommendation at all (E.R. 9, 11, 13-14; Appellant's Br. 5-8). b. The court of appeals also did not explain the source of the novel rule it announced. It is clear, for example, that the Constitution does not dictate the substance of the undertakings that must be agreed to by the government. The Constitution leaves that matter to be resolved in the bargaining process between the prosecution and defendant. See Mabry v. Johnson, No. 83-328 (June 11, 1984), slip op. 3-5; United States v. Goodwin, 457 U.S. 368, 378-380 (1982); Corbitt v. New Jersey, 439 U.S. 212, 219-223 (1978); Bordenkircher v. Hayes, 434 U.S. 357, 361-364 (1978); Blackledge v. Allison, 431 U.S. 63, 71 (1977); Santobello v. New York, 404 U.S. 257, 262 (1971); Brady v. United States, 397 U.S. 742, 752 (1970). Nor does Fed. R. Crim. P. 11(e), which addresses the plea bargaining process in federal criminal cases, impose any requirement that the prosecutor state the government's justification for its recommendation. To the contrary, Rule 11(e) expressly affords the prosecution and defense a broad range of options. Rule 11(e)(1) states that the attorney for the government and defense counsel may engage in discussions with a view toward reaching an agreement that, upon the defendant's entering of a plea of guilty or nolo contendere, the attorney for the government will do any of the following: (A) move for dismissal of other charges; (B) make a recommendation, or agree not to oppose the defendant's request, for a particular sentence, with the understanding that such recommendation or request shall not be binding upon the Court; or (C) agree that a specific sentence is the appropriate disposition of the case. Rule 11(e)(1)(B) refers only to a "recommendation." It does not suggest that a statement of the government's justification for the recommendation also is a necessary element of such an agreement, just as it does not require as an element of the other form of agreement referred to in Rule 11(e)(1)(B) that the government state its justification for not opposing the defendant's request for a particular sentence. The Ninth Circuit itself previously recognized this principle in United States v. Travis, 735 F.2d 1129 (1984). There, the government had agreed as part of a plea bargain to recommend only in general terms that a "substantial period of incarceration" be imposed, but otherwise to "stand mute" at sentencing. Id. at 1131. Because the government thereafter failed to stand mute at sentencing, the court of appeals vacated the sentence and remanded for resentencing. Id. at 1132. Similarly, Rule 11(e)(1)(C) contemplates that the government may "agree" that a specific sentence is an appropriate disposition, but does not suggest that a statement to the court of the government's reasons for so agreeing is a necessary element of the bargain. Thus, paragraphs (B) and (C) of Rule 11(e)(1) simply identify three types of permissible plea bargains that reflect different postures the government may assume with respect to a proposed sentence. They do not require that the government communicate its view of or justifications for the bargain to the court. /6/ Nor is there any mention of such a requirement in the advisory committee note on the 1974 amendments to Rule 11 in which the plea agreement procedures in Section (e) were adopted. Accordingly, Rule 11, like the Constitution, leaves these and other details of the parties' undertakings to be resolved in negotiations between the parties. c. We do not suggest, of course, that the prosecution and defense may not negotiate a plea agreement in a particular case in which the prosecutor commits himself to explain to the court the government's reasons or justification for the agreement. But as noted above, respondent did not argue below that the plea agreement in this case embodied such a requirement. /7/ Nor does the record suggest that this was an element of the plea agreement. If it had been, Rule 11(e)(2) would have required that this element be disclosed to the district court prior to acceptance of the plea. Similarly, although defense counsel at sentencing called the court's attention to the fact that the government had agreed to recommend probation, counsel did not suggest that the attorney for the government also had undertaken to elaborate upon the government's reasons for making the recommendation and counsel did not object when the attorney for the government thereafter failed to offer such an explanation. Thus, the court of appeals apparently has held that a statement by the attorney for the government of the government's justification for a recommended sentence must be deemed to be an implied term of every such agreement, whether or not the parties actually bargained for that performance. Obviously, that requirement is not an obligation implied in fact, based on the parties' actual understanding; it is an obligation implied in law. The court of appeals had no authority to impose its own view of appropriate elements of a plea bargain in this manner. There are, moreover, compelling reasons why it cannot be inferred that the parties to plea bargains necessarily intend that the government will explain to the court its justifications for a particular sentencing recommendation or otherwise elaborate upon or affirmatively advocate in favor of it. A plea agreement is a compromise resulting from negotiations between the prosecution and defense, who proceed from quite different -- and often diametrically opposed -- perspectives. The defendant's interest presumably is in obtaining the most favorable disposition possible and in achieving some measure of support by the government for that disposition. The government's interest is quite different: "to persuade the defendant to forgo his constitutional right to stand trial." United States v. Goodwin, 457 U.S. at 378. This interest may stem from perceived weaknesses in the government's case, a desire to devote scarce resources to trials in other cases, a desire to dispose of the case promptly to prevent the defendant from committing other offenses while free pending trial, a reluctance to expose the victim or another witness to the burden of testifying at trial, the need to protect sensitive information, etc. See, e.g., Mabry v. Johnson, slip op. 4 n.8, quoting Brady v. United States, 397 U.S. at 752; Santobello v. New York, 404 U.S. at 261. These differing perspectives obviously would color the statement by counsel for each party of his justification for the agreement reached between them. Under Fed. R. Crim. P. 32(a)(1)(B), counsel for the defendant must be afforded "an opportunity to speak on behalf of the defendant" at sentencing. Thus, if defense counsel gives reasons in favor of a particular sentence, that presentation typically would attempt to cast the defendant in a favorable light and to explain why a lenient sentence is appropriate to the defendant's circumstances. Rule 32(a)(1) also affords the attorney for the government an opportunity to speak to the court at sentencing, but it does not provide that such a presentation must be "on behalf of the defendant." Nor is there any reason to believe that such a presentation would necessarily put the defendant in a favorable light. If the government explained, for example, that it had agreed to recommend a particular sentence only in order to avoid devoting scarce resources to a trial or to avoid calling the victim as a witness (factors that may properly motivate the government to enter into such an agreement), the court would be left with the impression that the government actually believed that a harsher sentence would be appropriate. /8/ Accordingly, from the defendant's perspective, it may often be advantageous for the government not to offer any justification for a particular recommendation. See State v. Peterson, 680 P.2d 445, 447 (Wash. App. 1984). By the same token, the government might agree affirmatively to recommend a particular sentence only with the greatest reluctance. If such a recommendation necessarily carried with it the further requirement to give a justification for the agreement or otherwise assume a duty of advocacy in favor of it, the government might be unwilling to make such a recommendation at all and instead agree, at most, not to oppose the defendant's request for a particular sentence. What is more, if the prosecutor did assume a duty of advocacy, it would not be on behalf of the defendant, but on behalf of his client, the government. See, e.g., United States v. Agurs, 427 U.S. 97, 110-111 (1976); Berger v. United States, 295 U.S. 78, 88 (1935). As Judge Wallace stated in his dissenting opinion: "Neither the Supreme Court nor professional standards, see Model Code of Professional Responsibility, EC-7-1, imposes the duty of zeal an advocate owes to his client on the prosecutor fulfilling a bargain, nor could they. The defendant is not the prosecutor's client." App., infra, 8a. Thus, if the court of appeals' decision is allowed to stand, it will substantially disrupt the plea bargaining process by confusing the role of the prosecutor and imposing a requirement that often might not be in the interest of the government or the defense and might therefore prevent them from reaching agreement. d. The court of appeals believed that its holding was supported by United States v. Grandinetti, 564 F.2d 723 (5th Cir. 1977), and United States v. Brown, 500 F.2d 375 (4th Cir. 1974). See App., infra, 4a-6a. But as Judge Wallace explained, although the opinions in those cases "contain some stray language involving a governmental responsibility to 'strongly advocate' the plea bargain or to express 'some degree of advocacy,'" /9/ in both cases "the prosecutors expressed open distaste for the plea bargains" (App., infra, 8a). See United States v. Grandinetti, 564 F.2d at 725; United States v. Brown, 500 F.2d at 377. Here, by contrast, the substance of the government's recommendation was clearly communicated to the court and the prosecutor did not express disapproval of the agreement. /10/ Other courts have stressed the importance of this distinction. In United States v. Tursi, 576 F.2d 396 (1st Cir. 1978), the First Circuit rejected the contention that the defendant was entitled to relief under 28 U.S.C. 2255 because the government did not "forcefully advocate the recommended sentence" (576 F.2d at 399). The court there found the defendant's reliance on United States v. Brown misplaced, because in Brown the government had "'effectively undercut'" the plea bargain, while in Tursi, "the government did, in fact, recommend the sentence previously agreed upon and issued no equivocal comments regarding it" (576 F.2d at 399, quoting 500 F.2d at 378). Similarly, in Bergman v. Lefkowitz, 569 F.2d 705, 714-716 (1977), the Second Circuit, in an opinion by Judge Friendly, rejected the contention that the prosecutor had breached an agreement to recommend a particular sentence by making the recommendation only "grudgingly" and "tepidly." Like the First Circuit in Tursi, the Second Circuit rejected the defendant's reliance on Brown, describing it as a case in which the prosecutor "effectively undercut" the plea bargain. 569 F.2d at 715. The court further stated that if defense counsel had requested that the prosecutor add words such as "unreservedly," "sincerely," or "unequivocally" to his recommendation, it "(had) no doubt he would have done so, but there was a need for this" (ibid.). The court explained (id. at 715-716 (footnote omitted)): We would not regard a rule permitting a plea bargain to be avoided as a denial of due process because of lack of adequate gusto in a prosecutor's recommendation, particularly when this is discerned by defense counsel only after a disappointing sentence, as promoting the sound administration of criminal justice. Yet that is exactly the result the court of appeals reached in this case. Thus, the Ninth Circuit's decision -- which requires the government not only to recommend a particular sentence and to take no action to undermine that recommendation, but also to explain its justification for the recommendation -- conflicts with the decisions in United States v. Tursi and Bergman v. Lefkowitz, supra, /11/ and goes well beyond the circumstances of United States v. Grandinetti and United States v. Brown, supra. /12/ 2. a. The court of appeals also ignored applicable standards of review in granting collateral relief for what it found to be a breach of a constructively implied condition that the prosecutor explain the government's justification for its recommendation. Respondent sought relief under Fed. R. Crim. P. 32(d) and 28 U.S.C. 2255, both of which are "'procedures for collateral attack of a federal plea conviction'" (Fed. R. Crim. P. 32(d) advisory committee note (1983 amendments), quoting Borman, The Hidden Right to Direct Appeal from a Federal Conviction, 64 Cornell L. Rev. 319, 327 (1979)). Special standards govern such collateral attacks. By contrast, the cases upon which the court of appeals relied -- United States v. Grandinetti and United States v. Brown -- arose on direct appeal. Rule 32(d), as in effect when respondent filed his motion for collateral relief, permitted a court to set aside a conviction and allow a defendant to withdraw his guilty plea only to "correct manifest injustice." /13/ Under 28 U.S.C. 2255, relief may be granted on the basis of a constitutional error or other error that constituted "'a fundamental defect which inherently results in a complete miscarriage of justice.'" United States v. Addonizio, 442 U.S. 178, 185 (1979), quoting Hill v. United States, 368 U.S. 424, 428 (1962). See also United States v. Timmreck, 441 U.S. 780, 783-785 (1979). As explained in the advisory committee note on the 1983 amendment to Rule 32(d) (see note 13, supra), there is not a significant distinction between these two standards. Neither standard was met here. Even if we assume that the court of appeals was correct in imposing the additional procedural requirement that the government explain its justification for a particular sentence, the government's failure to do so was, at most, a technical error that cannot be thought even remotely to approach "manifest injustice" or a "fundamental defect" in the proceedings. Compare United States v. Timmreck, 441 U.S. at 783-785. The basic undertaking by the government in the plea agreement -- and its only express undertaking -- was to recommend probation. As Judge Wallace concluded, respondent "got what he bargained for" in that regard (App., infra, 7a), since the district court found in these collateral proceedings that it was "perfectly apparent" to everyone present at sentencing, including the court, that the government recommended probation (id. at 12a). /14/ There is no indication that the parties regarded a statement of reasons by the government as an essential element of the bargain as well or that the absence of such a statement had any bearing on the court's understanding of the government's recommendation. To the contrary, the fact that neither defense counsel nor the court requested the government to make a presentation regarding its recommendation after the error in the presentence report was called to the court's attention strongly indicates that defense counsel did not believe that there had been any breach of the plea agreement by the government after it concurred in the correction and that the court believed no further explanation by the government was necessary. /15/ There thus was no basis for collateral relief. This conclusion cannot be avoided on the premise that the prosecutor's making of a statement was an aspect of the plea bargain and that the failure of the government to make the recommendation automatically requires relief. This Court's decision in Santobello v. New York, supra, does not suggest that relief is required for any defect, no matter how technical or immaterial, in the implementation of the plea agreement. To the contrary, the Court observed in Santobello that a promise must be fulfilled "when a plea rests in any significant degree on a promise or agreement of the prosecutor" (404 U.S. at 262). Here, there is no indication that respondent's guilty plea rested at all, much less to "any significant degree," on a promise by the prosecutor to express a justification for the recommendation of probation. He did not even argue in these collateral proceedings that he was entitled to such an explanation. The Second Circuit reached a similar conclusion in Bergman v. Lefkowitz, supra, stating that it could not find that the plea rested "in any significant degree" on an "understanding that the prosecutor would use enthusiastic language in recommending no additional prison sentence" (569 F.2d at 716 n.18). The court of appeals did not even address these considerations in granting relief. It therefore has invited collateral attacks on convictions resting on guilty pleas -- where the societal interest in finality has particular force, United States v. Timmreck, 441 U.S. at 784 -- based not on the voluntariness of the defendant's plea, the nature of his own lawyer's advice, or the prosecutor's adherence to the essential elements of the plea bargain, but on peripheral matters concerning the extent or quality of the prosecutor's statement or advocacy in support of a recommendation. And it has invited such attacks even where, as here, that recommendation was clearly understood by the sentencing court. As a result, the decision below casts doubt on the validity of numerous guilty pleas entered into in the Ninth Circuit and creates confusion with respect to the prosecutor's duties. Review by this Court therefore is warranted. b. The court of appeals ignored the strong societal interest in finality in another respect as well. Because respondent did not object to the prosecutor's performance under the plea agreement at the time of sentencing or on direct appeal, he committed a double procedural default and is entitled to relief on collateral attack under 28 U.S.C. 2255 /16/ only upon a showing of "cause" for that default and "actual prejudice" resulting from the omission. See United States v. Frady, 456 U.S. 152 (1982). However, the court of appeals did not consider whether respondent could satisfy this test. /17/ It was especially unjustified for the court of appeals to sustain respondent's collateral attack on his conviction in the circumstances of this case. Respondent served 18 months of his six-year Youth Corrections Act sentence without objection. He thereafter was released on parole and did not file the instant motion until 1981, after he had remained at large for several years following the issuance of a parole violator warrant. It is a fair inference that respondent's efforts to obtain collateral relief were triggered by the threatened revocation of his parole, not by an actual defect in his guilty plea or the government's performance under the plea agreement. In any event, the court of appeals' imposition of novel requirements for such agreements warrants this Court's review. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General EDWIN S. KNEEDLER Assistant to the Solicitor General GLORIA C. PHARES Attorney JANUARY 1985 /1/ "E.R. refers to the Excerpts of Clerk's Record filed in the court of appeals. /2/ The transcript of the hearing in district court on respondent's motion for collateral relief indicates that the parole violator warrant was based on petitioner's failure to report a change of address and that he had left the country for an extended period (12/15/81 Tr. 10-11). We have been informed by the Parole Commission that the parole violator warrant was issued on March 13, 1978, and that respondent was taken into custody on that warrant on October 19, 1981. He was then released on bail following a hearing before the magistrate, pending the outcome of the instant proceedings. The Parole Commission therefore retains the right to take respondent into custody. /3/ Respondent also contended (E.R. 11-12) that he was entitled to relief under 28 U.S.C. 2255 because his right to appeal had been "frustrated" by the court's statement at the guilty plea hearing that if he went to trial he could appeal if he were found guilty, but that he would waive that and other rights by pleading guilty. See 4/30/76 Tr. 5. /4/ The district court in the instant proceedings found that there had been an error in the reporter's transcript of the sentencing hearing. At the point at which respondent's attorney corrected the error in the presentence report, the transcript quotes counsel as stating: "The government recommended there be probation with restitution in this case. Rather they would stand silent, and I believe that's what the report reflects" (5/21/76 Tr. 4). The transcript then shows the attorney for the government stating: "That is an accurate representation" (ibid.). The district court found at the hearing on respondent's motion that, with respect to defense counsel's statement, "(t)he actual language was that the government recommended that there be probation with restitution in this case rather than that they would stand silent" (App., infra, 11a-12a (emphasis added)). It was then that the district court stated, in the passage quoted in the text, that "(i)t was perfectly apparent to everybody present that the government was recommending probation" (ibid.). The district court reiterated the same point later in its opinion (id. at 13a): I have an independent recollection of this in a very vague way even though it was this far back. I do remember the occasion, and on reviewing the presentence report I remembered the circumstances, and there was no doubt in my mind at that time that everyone was in perfect understanding of what the position of the United States was and of the fact that I was disregarding it in that case. /5/ In his brief in the court of appeals, respondent did not argue that he had bargained for or was entitled to a statement by the prosecutor of the government's justification for its recommendation. He simply renewed his claim that the government had stood silent and thus had made no recommendation at all. See Appellant's Br. 5-8. /6/ Compare Fed. R. Crim. P. 11(e)(2) (requiring only that the terms of the agreement be disclosed on the record). /7/ Compare, e.g., In re Geisser, 513 F.2d 862, 864, 865 n.5 (1975), after remand, 554 F.2d 698 (1977), after further remand, 627 F.2d 745 (5th Cir. 1980), cert. denied, 450 U.S. 1031 (1981). There, the prosecutor agreed to use his "best efforts" to prevent extradition of the defendant. /8/ That impression would often be accurate. A plea agreement is, after all, a compromise. If the government agrees to recommend or not to oppose a particular sentence or goes further and enters into an agreement that a particular sentence is an appropriate disposition, that may reflect only the fact that the arrangement is the best the government could obtain under the circumstances, not the government's view that it is the most appropriate sentence. See Bergman v. Lefkowitz, 569 F.2d 705, 714 (2d Cir. 1977). /9/ See 564 F.2d at 726; 500 F.2d at 377. /10/ Judge Wallace expressed the view that the majority in this case had not actually imposed a duty of advocacy on the prosecutor. See App., infra, 8a. We cannot be so sanguine. The majority quoted, with apparent approval, what Judge Wallace referred to as the "stray language" in Grandinetti and Brown regarding the prosecutor's duty of advocacy. App., infra, 4a-5a. Moreover, the majority's requirement that the prosecutor express a justification for the recommendation is itself a form of mandatory advocacy. /11/ Compare also State v. Peterson, 97 Wash. 2d 864, 871, 651 P.2d 211, 214-215 (1982) (relief granted where trial court refused defendant's request to allow prosecutor to explain reasons for lenient sentence), with State v. James, 35 Wash. App. 351, 355-357, 666 P.2d 943, 946 (1983) (prosecutor need not elaborate upon recommendation in absence of request), and State v. Peterson, 680 P.2d 445, 447 (Wash. App. 1984) (relief denied where prosecutor, upon defendant's request, gave justification for recommendation that was not fully favorable to the defendant). /12/ See United States v. Blackwell, 694 F.2d 1325, 1337-1338 n.15 (D.C. Cir. 1982) (characterizing Grandinetti as a case in which "prosecutor violated agreement by expressing reservations about agreed-upon sentence in plea bargain"); United States ex rel Robinson v. Israel, 581 F.2d 1276, 1280 (7th Cir. 1978) (citing Brown for proposition that "prosecutor has an obligation not to undermine a plea he bargained"). Accord, State v. Witte, 308 Minn. 214, 216, 245 N.W.2d 438, 439 (1976); People v. Jones, 88 Ill. App. 3d 737, 740-741, 410 N.E.2d 1106, 1109 (1980); State v. Davis, 123 Ariz. 564, 567, 601 P.2d 327, 330 (1979); In re Palodichuk, 22 Wash. App. 107, 110, 589 P.2d 269, 271 (1978). See also United States v. Bowler, 585 F.2d 851, 854 (7th Cir. 1978) (characterizing Brown as involving a "mere half-hearted recitation of a suggested sentence"); United States v. Garcia, 698 F.2d 31, 37 (1st Cir. 1983) (same, quoting Bowler). /13/ Rule 32(d) was amended in 1983 to provide that after sentence has been imposed, if the defendant does not take a direct appeal, a plea may be set aside only under 28 U.S.C. 2255. /14/ In light of the express finding by the same district judge who presided at sentencing -- a finding that the court of appeals did not find to be clearly erroneous (see Pullman-Standard v. Swint, 456 U.S. 273 (1982)) -- the court of appeals' own belief that the prosecutor's remark was "ambiguous" because it "could have been interpreted" as a statement of past intent by the government (App., infra, 3a) plainly does not furnish a basis for relief. The court of appeals' view that the prosecutor's remark "left an impression with the (district) court of less-than- enthusiastic support for leniency" (ibid.) is similarly without support. The district court made no such finding. /15/ Moreover, even the clarification that the government actually was recommending probation, as distinguished from making no recommendation, was characterized by defense counsel at sentencing as only a "slight correction" (5/21/76 Tr. 4). /16/ Because the court of appeals vacated respondent's sentence and remanded for resentencing, but did not allow respondent to withdraw his guilty plea, the court of appeals apparently granted relief only under 28 U.S.C. 2255, not Rule 32(d). /17/ The government argued in its petition for rehearing in the court of appeals (at 9-11) that respondent had not established "cause" for his procedural default. Respondent argued below that he was entitled to relief under 28 U.S.C. 2255 because the district court had erroneously advised him that he would waive his right of appeal if he pleaded guilty. Appellant's Br. B-10; see note 3, supra. If, notwithstanding his representation by counsel, respondent could establish that this statement led him not to take an appeal he otherwise would have taken, he might well have established "cause" for failing to raise the issue on direct appeal. But this would not overcome his initial procedural default in failing to raise the issue in district court. APPENDIX