Henry W. Knight v. United States, 611 F.2d 918, 1st Cir. (1979)

611 F.
2d 918
Henry W. KNIGHT, Petitioner, Appellant,

v.
UNITED STATES of America, Respondent, Appellee.
No. 78-1525.
United States Court of Appeals,

First Circuit.
Submitted Sept. 14, 1979.
Decided Dec. 19, 1979.
Henry W. Knight on brief pro se.

Edward F. Harrington, U. S. Atty., and Judith S. Yogman, Asst. U. S.
Atty., Boston, Mass., on brief for respondent, appellee.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit
Judges.
COFFIN, Chief Judge.
The appellant, Henry W. Knight, pleaded guilty, after eight days of trial, on
July 29, 1971, to a charge of conspiracy to violate the narcotics laws, 26 U.S.C.
4705(a), and was sentenced pursuant to 26 U.S.C. 7237(b) on September 8,
1971, to a term of fifteen years. Appellant is currently serving that sentence in
the federal penitentiary in Atlanta, Georgia. On December 1, 1977, appellant
filed a petition pursuant to 28 U.S.C. 2255 alleging violations of his
constitutional rights in connection with the court's acceptance of his bargainedfor guilty plea and the procedure followed at his sentencing hearing. The
district court found that appellant was not entitled to relief on any of the
grounds asserted in his petition and therefore dismissed his motion to vacate his
sentence.1 Appellant, as he did in his petition to the district court, urges five
grounds for vacating his sentence.
As the first ground for vacating his sentence, appellant argues that the trial
court failed to inform him of the elements of the crime with which he was
charged and that he pleaded guilty without understanding the charge.2 In
rejecting this ground as "frivolous", the district court stated that the transcript
revealed that "the trial court carefully advised (appellant) of the nature of the
charge against him and that he understood it." Our review of the transcript
pages cited by the district court in its memorandum and order convinces us that
there was ample evidence from which the court could conclude that appellant
understood the charges against him.
3
Appellant asserts as his second ground that the trial court failed to determine
whether there was a factual basis for the guilty plea as required by
Fed.R.Crim.P. 11(f). Appellant attacks the procedure followed by the trial court
at the Rule 11 hearing on two separate grounds. First, he says, the trial judge
never accepted the guilty plea, but instead conditioned his acceptance on the
government's production of additional information. After reviewing the
transcript, we agree with the district court that the trial judge did in fact accept
the plea and stated that additional evidence was not required. Appellant also
alleges that the trial judge impermissibly considered evidence introduced at the
trial of appellant's co-conspirators after he had pleaded guilty. Rule 11 provides,
however, that the trial court may not enter Judgment on a guilty plea unless it is
satisfied that there is a factual basis for the plea. Since the court may enter
judgment well after its acceptance of the plea, the rule apparently anticipates
that the court's evaluation of a guilty plea may be influenced not only by
information obtained during the Rule 11 hearing, but also afterward. See 8
Moore's Federal Practice P 11.03(3) (1978). The permissible sources of this
information, moreover, are varied, See 1966 Advisory Committee Note, and
the court's inquiry should not be limited by the rules of evidence, See Moore's
Federal Practice, Supra, at 11-72 n.34. At the least, the trial court was entitled
to consider the evidence and testimony produced in the eight days of trial while
appellant was still a defendant in the case, after which the court stated that it
found an adequate factual basis for appellant's guilty plea.
Appellant's third ground is that he was denied his right to complete allocution
at his sentencing hearing because the trial court failed to advise him that he was
entitled to present affirmative matters in his own behalf. The district court,
again referring to specific pages in the transcript, found that appellant was
advised at his plea-entry hearing that he would be entitled to allocution at his
sentencing hearing and that at the time of sentencing the trial judge asked him
if he wished to make a statement or present evidence in his behalf. Appellant
declined to make a statement or to present any evidence. Appellant's additional
argument that the court's explanation was inadequate does not, in the light of
this sequence of events, impress us.
Appellant's fourth argument is that his sentence must be vacated because the
government violated the terms of its plea agreement to make no

recommendation with respect to sentencing. At the sentencing hearing, the
Assistant United States Attorney stated, "The Government makes no
recommendation, in accordance with agreement with counsel." Appellant
asserts that the government breached this agreement when the Drug
Enforcement Administration (DEA) submitted a letter to the Parole
Commission in December of 1976 opposing appellant's petition for parole. The
district court found that this letter did not violate the agreement because the
government's promise "pertained only to sentencing by the court."
6
Although the district court's interpretation of the plea bargain is a plausible one
based on the statement of the Assistant United States Attorney at the sentencing
hearing, appellant claims that, at the time he pleaded guilty, he understood the
plea agreement as precluding the government from opposing parole during the
term of his sentence. In his section 2255 petition to the district court, appellant
stated that he entered his plea "with the belief and understanding that the plea
bargain extends throughout the sentence, petitioner was so advised by his courtappointed counsel." In his brief to this court he elaborated on this point:
"Counsel said 'The Govt (sic) will not be able to oppose parole or a reduction in
sentence, the Govt is bound by this agreement. . . . I was an Assistant United
States Attorney and I know what I'm talking about because I worked out of that
office.' " Although it was an agent of the DEA, not the United States Attorney,
who submitted the letter opposing parole, appellant argues that because the
DEA instigated his prosecution, was present throughout the trial, and was
familiar with the terms of the plea agreement, the DEA is bound by the terms
of the agreement.3 Finally, appellant urges us to find that the district court erred
in failing at least to hold an evidentiary hearing on his claim that the
government violated the plea agreement as he understood it.
The Supreme Court, in Machibroda v. United States, 368 U.S. 487, 493, 82
S.Ct. 510, 513, 7 L.Ed.2d 473 (1962), stated: "A guilty plea, if induced by
promises or threats which deprive it of the character of a voluntary act, is void."
A guilty plea becomes involuntary, and the ensuing sentence subject to
collateral attack, when the prosecutor fails to perform his side of a plea
agreement. United States v. McCarthy, 433 F.2d 591, 592 (1st Cir. 1970)
("sentence based on a guilty plea that was induced in reliance on unfulfilled
prosecution promise is void"); Shelton v. United States, 246 F.2d 571 (5th Cir.
1957) (en banc), Rev'd on other grounds, 356 U.S. 26, 78 S.Ct. 563, 2 L.Ed.2d
579 (1958). The prosecution, moreover, need not intentionally violate a plea
agreement for the ensuing sentence to be void. United States v. McCarthy,
supra, 433 F.2d at 592 n.1. If a plea is induced by defense counsel's
misrepresentation of the prosecutor's promise, the plea should be vacated as
involuntary. United States v. Marzgliano, 588 F.2d 395 (3d Cir. 1978);
Petraborg v. United States, 432 F.2d 1194 (7th Cir. 1970). Thus, where counsel
represents that an agreement has been made with the United States Attorney,
even if no such agreement exists, a defendant may collaterally attack a plea
induced by such a representation. McAleney v. United States, 539 F.2d 282 (1st
Cir. 1976); United States v. Pallotta, 433 F.2d 594 (1st Cir. 1970). In
McAleney, defense counsel told his client, falsely, that the prosecutor had
agreed to recommend a light sentence. In granting petitioner's motion in that
case, we said that he was "entitled to credit his attorney's representation as to
the fact of such an agreement, and to rely on it; and if his guilty plea was in fact
induced by such a representation, . . . relief is in order." 539 F.2d at 284.
8
The cases holding that counsel's misrepresentation of the terms of a plea

agreement undermine the validity of a guilty plea reflect the concern that
waiver of the right to trial should be a knowing, informed decision by the
defendant. But many of the factors that go into a defendant's decision to plead
guilty for example, estimates of the likelihood of conviction at trial and the
sentence the court is likely to impose depend on communications between
attorney and client that are beyond the supervision of the courts.4 Thus, we
have stated that a "mere prediction" by counsel of the likely, though ultimately
unfulfilled, favorable consequences of a guilty plea will not taint an otherwise
valid sentence. Domenica v. United States, 292 F.2d 483 (1st Cir. 1961). The
statement purportedly made by appellant's counsel in this case was not a
misrepresentation of the terms of the government's agreement, but was
counsel's legal opinion about the future effect of the promise. We find this to be
indistinguishable from an attorney's recommendation of a guilty plea based on
his considered judgment that a particularly damning piece of evidence would be
admissible at trial. In neither case will the court step in to correct counsel's legal
misjudgment. 5
Finally, in an ancillary motion accompanying his section 2255 petition,

appellant argued that he was sentenced in part on the basis of erroneous
statements in the government's presentence report. In particular, he objects to
the following paragraph in the report:
10
"HENRY
KNIGHT made several trips to New York City to pick up large lots of
heroin for Maurice Gregory. He was one of Gregory's principal dealers in the Boston
area. KNIGHT found that Gregory's prices were too high so he switched his dealings
over to William Miller, the largest dealer in the Boston area."
11
The district court rejected this objection to the trial court's sentencing because
"substantially similar allegations were made by the government in bills of
particulars filed on July 13 and 26, 1971 (and) the allegations complained of
are included in the official version of the offense." In response to appellant's
argument that no evidence was adduced at trial to substantiate this assertion, the
district court stated that the trial judge was in a position to determine whether
or not the allegation was satisfactorily established by the evidence at trial and
hence whether to consider it in determining sentence. Furthermore, the court
noted that, at sentencing, the portion of the pretrial report pertaining to
appellant's criminal record, which presumably was the primary determinant in
the judge's sentencing decision, was read to appellant and his counsel.
12
Although a sentence based on a material misapprehension of fact by the

sentencing judge is unconstitutional, United States v. Tucker, 404 U.S. 443,
447-49, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), a prisoner generally may not seek
postconviction review of his sentence when both he and his counsel failed to
object to the presentence report at the time of the sentencing hearing. Diaz
Torres v. United States, 564 F.2d 617, 619 (1st Cir. 1977); See Williams v.
New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). In Diaz Torres,
supra, we declined to hold that information relied on by a sentencing judge and
not objected to at the time may never be challenged, but we noted that we
would "carefully scrutinize the information advanced by petitioner as justifying
his delay and as excusing his failure to challenge the information during the
course of the hearing." 564 F.2d at 619. The district court's finding that
appellant had notice of the allegation because it was in both the indictment and
the government's answers to interrogatories is not supported by the record:
neither of the items referred to by the district court contains any allegation that
appellant travelled to New York to purchase heroin. However, appellant fails to
aver in his petition that his counsel was unaware of these allegations in the
presentence report. A criminal defendant is not entitled to examine a
presentence report to which his counsel has access. See Fed.R.Crim.P. 32(c)(3)
(A); United States v. Green, 483 F.2d 469 (10th Cir.), Cert. denied, 414 U.S.
1071, 94 S.Ct. 583, 38 L.Ed.2d 477 (1973). Thus, appellant's bare assertion that
he never had access to the presentence report will not excuse the eight-year
delay in challenging his sentence. Moreover, absent any allegation that the trial
judge relied on the challenged statement or that the sentence was excessive
when viewed solely against the background of the offense and appellant's prior
record, lack of access to the entire presentence report did not require the district
judge to hold an evidentiary hearing.
13
Affirmed.
Judge Caffrey, the trial judge, disqualified himself from deciding the
Judge Caffrey, the trial judge, disqualified himself from deciding the
appellant's section 2255 petition. Judge Garrity subsequently ruled on the
petition, filing a Memorandum and Order of Dismissal on October 20, 1978
Appellant attempts to bolster his argument with two factual assertions not raised
in his petition to the district court. First, with respect to the trial court's failure
to inform him of the charge, appellant points to the court's apparent confusion
regarding the precise nature of the charge. While inquiring into appellant's
understanding of the charge, the consequences of conviction, and the
voluntariness of the plea, the trial judge first asked appellant whether he had
conspired to sell narcotics "not in or from the original package." Appellant
responded that he had. The Assistant United States Attorney then explained to
the court that the charge was conspiracy "to sell heroin without a written order
form." The judge asked appellant if he had so conspired, and appellant
answered affirmatively. Second, with respect to his understanding of the
charge, appellant claims that he was under mental stress from the conditions of
his confinement, that he was confused about the charges, and that he admitted
committing the offense only because his attorney had advised him to answer
affirmatively all questions by the court. Since these arguments were not before
the district court, we do not consider them now
Neither the district court nor the government disputed this point
The most obvious danger inherent in this aspect of the plea bargaining system
is that an innocent defendant may be induced to plead guilty to avoid the
possibility of a harsher sentence under what he is led by his attorney to believe
is certain conviction at trial. See North Carolina v. Alford, 400 U.S. 25, 28 n.2,
91 S.Ct. 160, 27 L.Ed.2d 162 (1970); People v. Byrd, 12 Mich.App. 186, 20607, 162 N.W.2d 777, 787 (1968) (Levin, J., concurring); Langbein, Torture and
Plea Bargaining, 46 U.Chi.L.Rev. 14-16 (1978). More subtle, and more
pervasive, is the possibility that defendants who are misinformed about the
strength of the government's case will plead guilty in cases in which conviction
would be highly unlikely if the government were put to its burden of proof. See
M. Finkelstein, Quantitative Methods in Law 263-87 (1978)
Because we conclude that appellant's allegation, even if true, does not state a
basis for vacating his sentence, it was not error for the district court to deny an
evidentiary hearing on this question

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611 F.

Henry W. KNIGHT, Petitioner, Appellant,

United States Court of Appeals,

Henry W. Knight on brief pro se.

government violated the terms of its plea agreement to make no

The cases holding that counsel's misrepresentation of the terms of a plea

Finally, in an ancillary motion accompanying his section 2255 petition,

Although a sentence based on a material misapprehension of fact by the

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