Unpublished Disposition, 937 F.2d 614 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Bruce J. RICE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.RICE AIRCRAFT, INC., Defendant-Appellant.

No. 90-30125.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 7, 1991.Decided July 8, 1991.

Before WIGGINS, O'SCANNLAIN and THOMAS G. NELSON, Circuit Judges.


MEMORANDUM* 

Bruce Rice and Rice Aircraft appeal their convictions for conspiracy and mail fraud.

* We first consider Rice's motion to strike various portions of the government's opening brief. The government included in its brief the qualifications of the various defense counsel and various allegations as to who authored pertinent provisions of the plea agreement. Rice maintains that since this material was not before the trial court, this court should likewise not consider the material.

We agree. Matters which were not before the trial court will be stricken, even if they are before this court by stipulation of the parties. United States v. Kennedy, 890 F.2d 1056, 1058 n. 4 (9th Cir. 1989), cert. denied, 110 S. Ct. 1308 (1990). Here, there was not even such a stipulation. Accordingly, the motion to strike is granted; the material sought to be stricken will be disregarded.1 

II

Federal Rule of Criminal Procedure 11(c) (1) requires that the district court, "before accepting a plea of guilty, ... personally address the defendant in open court and inform him of, and determine that he understands, the maximum possible penalty provided by law." United States v. Jaramillo-Suarez, 857 F.2d 1368, 1369 (9th Cir. 1988) (quotation omitted). Under Rule 11, a trial court need not inform the defendant of the actual sentence to be imposed but, rather, need only inform the defendant of the maximum sentence possible provided by law, including the effect of any special parole or supervised release term. See, e.g., United States v. Clay, 925 F.2d 299, 303 (9th Cir. 1991). In the standard case, a recitation of the statutorily-prescribed sentencing options satisfies the requirement. Cases involving plea agreements, however, present a unique twist to this general rule. Since a district court is bound by the terms of a plea agreement if the court accepts the agreement, see Fed. R. Crim. P. 11(e) (3), the "maximum possible penalty provided by law" becomes that available under the plea agreement. Thus, Rice correctly asserts that a district court must ensure that the defendant is aware of the full sentencing consequences under a plea agreement.

However, subsection (h) of Rule 11 provides that " [a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." "A 'substantial right' amounts to knowledge of the statutory maximum and minimum terms applicable to the relevant charges." United States v. Ramos, 923 F.2d 1346, 1357 (9th Cir. 1991). A Rule 11 violation is harmless if the record reveals that the defendant had "actual knowledge of sentencing consequences of his guilty plea." United States v. Kearney, 750 F.2d 787, 790 (9th Cir. 1984). We find that Rice was aware of the consequences of probation and, accordingly, need not decide if the district court erred in failing to explain these consequences to Rice.

The record clearly establishes that Rice knew the maximum penalties for each of the three counts. The plea agreement states that " [e]ach of the three counts in the Information contains a maximum period of incarceration of five years." In addition, Rice conceded in open court that he had read a document that set forth the maximum sentence in precise terms.2  At the Rule 11 hearing, the following colloquy occurred between Rice and the district court:

THE COURT: Mr. Rice, have you reviewed this eight-page plea agreement in detail?

THE DEFENDANT: Yes, I have.

THE COURT: Have you discussed it with your attorneys?

THE DEFENDANT: Yes.

THE COURT: Is this your signature on page eight of the plea agreement, dated August 14, 1989?

THE DEFENDANT: Yes, it is.

Likewise, Rice knew that probation could be imposed on counts two and three. The court asked Rice: "And the plea agreement, if accepted by the Court, would involve probation on Counts II and III. Is that your understanding?," to which Rice responded "Yes, sir." Thus, Rice, by his own admission, knew both the maximum sentences possible for all three counts, and that, under the plea agreement, he could receive probation for counts two and three.

Nonetheless, Rice reasons that his understanding was still deficient for Rule 11 purposes; awareness of the possibility of probation was not tantamount to an understanding that, if placed on probation, he could ultimately be imprisoned for an additional ten years should he violate the conditions of probation. Put simply, Rice argues that he was never told of the relationship between the maximum statutory penalty (5 years per count) and the perceived maximum penalty under the plea agreement (probation).

The relationship between the statutory penalty and probation is inherent in the very concept of probation. Probation is to provide an opportunity for the "unhardened offender ... to rehabilitate himself without institutional confinement ... under the continuing power of the court to impose institutional punishment for his original offense in the event that he abuses the opportunity." Roberts v. United States, 320 U.S. 264, 272 (1943). Thus, upon revocation of probation where imposition of sentence had been suspended, the sentencing court may impose any sentence it originally might have imposed. See United States v. McDonald, 611 F.2d 1291, 1295 (9th Cir. 1980). Here, Rice acknowledged in open court that he understood that he could receive probation for counts two and three. While we do not presume sophisticated legal knowledge on the part of a defendant, it is difficult to imagine how Rice's vision of probation would differ from the correct definition. It would appear self-evident that the court would retain some form of coercion, i.e., the possibility of incarceration, over the defendant to ensure the defendant's compliance with the conditions of probation. The district court was not obligated to define the term "probation."

Moreover, in determining whether the defendant understood the consequences of his or her plea, the reviewing court may consider the defendant's education, age, intelligence, alacrity of response, and presence of counsel. See Kamer, 781 F.2d at 1384. Rice is a well-educated, sophisticated business person. He admitted discussing the terms of the plea agreement "in detail" with his counsel. Indeed, as a result of the plea negotiations, Rice had much greater input as to his possible sentence than many defendants. Thus, Rice's plea of ignorance is unpalatable under the facts of this case. Any error by the district court in failing to explain the consequences of probation to Rice (an issue we do not reach today) was harmless.

III

When a defendant challenges the factual accuracy of any matters contained in the presentence report, Rule 32(c) (3) (D) requires the district court either (i) to make a finding as to the allegation, or (ii) to determine that no such finding is necessary because the controverted matter will not be considered at sentencing. See United States v. Fernandez-Angulo, 897 F.2d 1514, 1516 (9th Cir. 1990) (en banc). If the district court fails to make the required findings or determinations, the sentence must be vacated and the defendant resentenced. Id.

* To support their contention that their objections were sufficiently specific, the defendants urge upon us caselaw in which rather general allegations of presentence report inaccuracies were found to warrant further inquiry by the district court. See, e.g., United States v. Williamsburg Check Cashing Corp., 905 F.2d 25, 27, 29 (2d Cir. 1990) (counsel's dispute about allegations "relating to other activities" sufficient to trigger need for factual finding by district court); United States v. Reynolds, 801 F.2d 952, 957-58 (7th Cir. 1986) (defendant's statement that he agreed with list of objections prepared by counsel required further inquiry by court, even though the list had not been provided to the court). In contrast, the government posits authority for its contention that the district court has no Rule 32 obligations "unless the defendant asserts with specificity and clarity each factual mistake of which he complains." United States v. Hurtado, 846 F.2d 995, 998 (5th Cir.) (quotation omitted), cert. denied, 488 U.S. 863 (1988); see also United States v. Aleman, 832 F.2d 142, 145 (11th Cir. 1987); United States v. Carmel, 801 F.2d 997, 1000 (7th Cir. 1986). Neither line of authority is necessarily relevant to the present case. We are not presented with a defendant who, like the defendants in Reynolds and Williamsburg, alleges a factual dispute with the presentence report but fails to elaborate in any manner. Likewise, we are not concerned with a defendant who merely alleges that the presentence report was a "big mistake," see Hurtado, 846 F.2d at 998, or disagrees with the "tone" or "prosecution's version" of the presentence report, see Aleman, 832 F.2d at 145. Rather, we are confronted here with defendants who, if anything, have obfuscated their objections by thrusting upon the district court a monstrous sentencing memorandum, leaving the district court to ferret its way through the massive document, segregating statements inconsistent with the presentence report from those that are not.

There can be no doubt that the defendants would have waived their right to specific findings or determinations under Rule 32 if the obfuscation of their objections had been deliberate. This is, however, a determination which we shall not attempt to make in the first instance; the district court is in a far superior setting to make such a finding. Here, the defendants justified their voluminous sentencing memorandum by deeming it necessary to respond to the government's alleged campaign of misinformation. The district court apparently accepted this explanation, as it voiced no objection to the memorandum and, indeed, rebuffed the government's request that the defendants specify their objections more clearly. We have grave reservations over the defendants' failure to itemize its objections, and then to complain when the district court likewise fails to itemize its findings. Nonetheless, in light of the district court's apparent acceptance of the sentencing memorandum and Rule 32's mandate of strict compliance, see Fernandez-Angulo, 897 F.2d at 1516, we shall proceed to the merits of the defendants' contentions.

B

"When a district court confronts a challenge to the accuracy of information in a presentence report, it should explicitly state for the record either its finding regarding the challenge, or its decision not to take the matter controverted into account when imposing sentence." United States v. Rico, 895 F.2d 602, 603 (9th Cir. 1990) (quotation omitted). " [T]he district court should make clear on the record its resolution of all disputed matters, and ... specific findings of fact are to be encouraged." United States v. Rigby, 896 F.2d 392, 394 (9th Cir. 1990). However, we have affirmed a sentence where the district court has "substantially complied" with Rule 32. See United States v. Feldman, 853 F.2d 648, 665 (9th Cir. 1988), cert. denied, 489 U.S. 1030 (1989); accord United States v. Graham, 856 F.2d 756, 762-63 (6th Cir. 1988) ("Where the record suggests that a trial court did not rely upon disputed information in fashioning a defendant's sentence, the trial court has substantially complied with the mandates of Rule 32(c) (3) (D) even though it failed to make any express finding or determination of the disputed fact."), cert. denied, 489 U.S. 1022 (1989). Here, the district court "substantially complied" with Rule 32, if in fact it did not fully comply with the Rule. The court's lengthy recitation of the facts following presentation by counsel demonstrated that it had mastered the facts in this complex case. Accordingly, the court's statement that it would find as facts those listed in the presentence report, as modified by specific findings, was not a perfunctory statement designed to dispose of numerous objections quickly and without consideration. Rather, the record suggests that the district court reviewed all of the material before it, and adopted those facts in the presentence report because it found them to be true.

Nonetheless, the defendants contend that the district court expressly refused to make certain findings. However, when viewed in context of the entire record, the defendants' interpretation of the district court's statements carries little weight. The statements were not a shirking of duty, but a declaration that the district court would not hold an evidentiary hearing on the issues. Since Rule 32 does not require an evidentiary hearing for every controverted matter, see United States v. Monaco, 852 F.2d 1143, 1148 (9th Cir. 1988), cert. denied, 488 U.S. 1040 (1989), this was not error. The district court's findings and determinations satisfied the requirements of Rule 32.

IV

The defendants contend that the sentences imposed by the district court exceeded that permitted by the plea agreement.

* The government concedes that probation was not part of the plea agreement with Rice Aircraft, and agrees that Rice Aircraft should be resentenced. We also agree. Rice Aircraft's sentence is vacated, and the matter remanded for resentencing.

B

A plea agreement is contractual in nature and subject to contract-law standards. United States v. Partida-Parra, 859 F.2d 629, 633 (9th Cir. 1988). "Any dispute over the terms of the agreement must be resolved by determining, under an objective standard, what the parties to the plea bargain reasonably understood to be the terms of the agreement." Id. The plea agreement in the present case provides that "the sentences to be imposed on Counts II and III should be probationary"; the agreement is silent as to the conditions of probation. Accordingly, Rice contends that, in the absence of an express provision to the contrary, the term "probation" in the plea agreement includes only the "standard condition"--that he obey all federal and state laws. We must determine if this is a reasonable interpretation of the term probation.

In matters not involving a plea agreement, it is well established that district courts have broad discretion in setting conditions of probation. United States v. Polchlopek, 897 F.2d 997, 998 (9th Cir.), cert. denied, 111 S. Ct. 86 (1990). A condition is valid if it is reasonable when considered in light of the rehabilitation of the probationer, the protection of the probationer's constitutional guarantees, and the legitimate needs of law enforcement in protecting the public. Id. If a condition is needlessly harsh, it is impermissible. See Higdon v. United States, 627 F.2d 893, 898 (9th Cir. 1980). In light of probation's rehabilitative purpose and the constraint against undue harshness, there is no reason why the term probation in a plea agreement should constrain a district court more than the same term used in a statutory context. Thus, when the term "probation" is used in a plea agreement, it includes all conditions that would otherwise be reasonable under the circumstances of the individual case unless the agreement expressly provides otherwise. The district court did not err in conditioning Rice's probation on the payment of the fines and restitution.

V

Rice claims that the district court erred in refusing to prohibit the use of such post-plea information, and, moreover, the district court should have disqualified itself from sentencing due to the taint of the prosecution's in camera filing.

* The function of the grand jury is to determine whether or not a crime has been committed. See United States v. R. Enterprises, Inc., 111 S. Ct. 722, 726 (1991). The grand jury is interposed between the individual and the government, acting independently of both the prosecution and the courts. See United States v. Hogan, 712 F.2d 757, 759 (2d Cir. 1983). "In this independent position, a grand jury performs two distinct roles. It serves as an accuser sworn to investigate and present for trial persons suspected of wrongdoing. At the same time--and equally important--it functions as a shield, standing between the accuser and the accused, protecting the individual citizen against oppressive and unfounded government prosecution." Id.

In an effort to preserve the sanctity of the grand jury and to prevent abuse by such a powerful body, courts have repeatedly condemned the use of the grand jury process "for the sole or dominating purpose of preparing an already pending indictment for trial." In re Grand Jury Proceedings (Diamante), 814 F.2d 61, 70 (1st Cir. 1987) [hereinafter Diamante] ("It is well established that a grand jury may not conduct an investigation for the primary purpose of helping the prosecution prepare for trial."). Likewise, the grand jury may not use its investigative powers for the primary purpose of helping the prosecution prepare for sentencing.

We have independently reviewed the declaration and can unequivocally state that the subpoenaed material was not used to assist the prosecution in sentencing. Moreover, any such abuse would be harmless, as the district court expressly provided that none of the results of the subpoena would be utilized at sentencing. The district court did not err in denying the defendants' motion.

B

We must still decide whether the mere perusal of the declaration required the district court to disqualify itself from sentencing. We have suggested that, in certain cases, a district court should consider removing itself from sentencing after reviewing an in camera submission. See United States v. Lee, 648 F.2d 667, 669 n. 3 (9th Cir. 1981). Moreover, sealed affidavits are strongly discouraged. See Diamante, 814 F.2d at 72. However, the in camera submission process is proper where the purpose of a grand jury investigation is at issue, see id., and will not result in reversal where there is no indication that the district court relied upon the in camera matter at sentencing and when the record provides ample independent grounds for the sentence imposed. See United States v. Kenny, 645 F.2d 1323, 1349 (9th Cir.), cert. denied, 452 U.S. 920 (1981). Here, the district court expressly stated that it did not rely upon anything contained in the in camera declaration; moreover, the voluminous record contained more than ample independent grounds for the sentence imposed. The district court did not err in refusing to disqualify itself from sentencing.

AFFIRMED as to 90-30125; REVERSED and REMANDED for resentencing as to 90-30134.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit R. 36-3

 1

The qualifications of defense counsel could be judicially noticed pursuant to Federal Rule of Evidence 201(b). Likewise, the correspondence contained within the government's supplemental excerpts of record was before the district court, although the court never made any findings of fact regarding authorship of the plea agreement. Thus, some of the material might be properly before this court. However, these items have no relevance to the issues raised on appeal. Accordingly, we grant the motion to strike these items as well. Cf. Michenfelder v. Sumner, 860 F.2d 328, 338 (9th Cir. 1988)

 2

Rice maintains that we should not consider the contents of the plea agreement, noting that we have held that " [t]he dictates of Rule 11 and the federal policy of fair and efficient judicial administration require that the reviewing court look solely to the record of the plea proceeding." United States v. Kamer, 781 F.2d 1380, 1383 (9th Cir.), cert. denied, 479 U.S. 819 (1986). Here, finding that Rice knew the maximum possible sentence would not violate the holding in Kamer, as the record of the Rule 11 proceeding reveals that Rice read, "in detail," a document setting forth the information. This is all Kamer requires. See United States v. Grewal, 825 F.2d 220, 222 (9th Cir. 1987) (where defendant admitted on the record that he had read presentence report which recommended restitution as a penalty, and had discussed the report with his attorney, defendant was found to be aware of the possibility of restitution)