MOHAMMAD HALEEM KHAN, PETITIONER V. UNITED STATES OF AMERICA No. 90-5178 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Second Circuit Brief For The United States In Opposition OPINIONS BELOW The opinion of the court of appeals (Pet. App. F, 661-662) is reported at 869 F.2d 661. A prior opinion of the court of appeals (Pet. App. A, 85-88) is reported at 857 F.2d 85. JURISDICTION The judgment of the court of appeals was entered on February 7, 1989. A petition for rehearing was denied on April 16, 1990. The petition for a writ of certiorari was filed on July 13, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the court of appeals abused its discretion in recalling the mandate after it had been issued. 2. Whether the district court's failure to advise petitioner at the time he entered his guilty plea that his sentence could include an order of restitution was harmless error. 3. Whether the government breached its plea agreement with petitioner. 4. Whether the government improperly failed to disclose to the grand jury and the district court evidence allegedly exculpating petitioner. 5. Whether petitioner's guilty plea was voluntary. 6. Whether petitioner received effective assistance of counsel. 7. Whether the district court was required to suspend petitioner's sentence. STATEMENT Petitioner pleaded guilty in the United States District Court for the Southern District of New York to wire fraud, in violation of 18 U.S.C. 1343. He was sentenced to 30 months' imprisonment and was fined $1,000. The district court also ordered petitioner to pay $266,000 in restitution to the government. 1. A 32-count indictment returned in July 1987 charged petitioner with violations of federal law arising from a contract with the United States Agency for International Development (AID) to supply oral rehydration salts /1/ for distribution to medical clinics in Peru. The contract called for the delivery of one million packets of oral rehydration salts by January 1, 1984, with an additional 1.8 million packets to be delivered two months later. The indictment alleged that petitioner knew that he would be unable to meet the required delivery schedule, that he made false statements to AID to obtain extensions of the contract deadline, and that he knowingly employed grossly deficient production methods that were likely to produce defective products. Pet. App. A, 85-86. On August 7, 1987, petitioner pleaded guilty to Count Five of the indictment, which charged him with wire fraud in violation of 18 U.S.C. 1343. /2/ During petitioner's plea proceeding, the district court ascertained from the prosecutor that the government had agreed to dismiss all other charges against petitioner, and had agreed not to make any "recommendation as to any specific punishment" or ask for any "specific victim restitution." In addition, the government agreed not to prosecute members of petitioner's family and consented to the continuation of bail until sentencing. Pet. App. A, 86; Gov't C.A. Br. 7-8; Pet. C.A. App. C, 4-5. During the guilty plea allocution, petitioner acknowledged that he was "fully satisfied" with the legal services rendered by his attorney, and that the attorney had kept him "abreast of all the developments in the case" and had fully discussed the charges and the terms of the plea agreement with him. Gov't C.A. Br. 8; Pet. C.A. App. C, 7-8. In addition, the district court ascertained that petitioner understood the wire fraud charge to which he was pleading guilty and the constitutional rights he was relinquishing and that he was was "electing voluntarily and freely to plead to this fifth count." Pet. C.A. App. C, 7-9, 13-15; Gov't C.A. Br. 8. Petitioner then conceded the accuracy of the description of elements of the offense charged in Count Five and specifically admitted that he "sent a cable on October 24 (1983) to U.S. AID in Lima, Peru, in furtherance of the scheme to defraud the United States Government." Gov't C.A. Br. 8-9; Pet. C.A. App. C, 10-11. During the plea proceeding, the prosecutor stated that the maximum penalty for the offense charged in Count Five was five years' imprisonment and a $250,000 fine. Pet. C.A. App. C, 8. This statement was partially incorrect; in fact, the maximum fine was $1,000. After petitioner indicated that he understood the possible consequences of his plea, the district court accepted the guilty plea. Id. at 8-9, 12. The court failed to note the possibility that restitution to the government could be ordered as part of the sentence, and also failed to correct the prosecutor's error in stating the maximum fine that could be imposed. Pet. App. A, 86. The district court initially sentenced petitioner to three years' imprisonment, to be followed by two years' probation, and a $1,000 fine. The court also found that petitioner fraudulently obtained $266,000 under the contract with AID, and it ordered petitioner to "pay full restitution to the United States Government" in the amount of $266,000. Pet. App. A, 86; Pet. C.A. App. E, 24, 26. Petitioner then moved to modify and stay his sentence. In its response to this motion, the government noted that the district court's imposition of a two-year period of probation following the three-year term of incarceration violated 18 U.S.C. 3651, /3/ and therefore requested that the judgment of conviction be amended to delete the unlawful term of probation. Gov't C.A. App. 1a-2a. The court corrected petitioner's sentence by eliminating the term of probation. The court also reduced the term of imprisonment to 30 months. The $1,000 fine and the $266,000 restitution order remained unaltered. Pet. App. A, 86; Gov't C.A. App. 5a. 2. In the court of appeals, petitioner contended, among other things, that his guilty plea and subsequent conviction should be vacated because the district court failed to advise him of the possibility of an order of restitution, as required by Federal Rule of Criminal Procedure 11(c)(1). /4/ The court of appeals agreed and reversed. Pet. App. A, 85-88. In so doing, the court rejected the government's argument that the error was harmless under Federal Rule of Criminal Procedure 11(h), /5/ concluding that "(a) case such as that now before us, one concerning conceded failure to comply with part of Rule 11, is not a case of harmless error, but a case requiring strict adherence to the 'detailed prophylactic check list' the rule provides." Pet. App. A, 87 (quoting United States v. Saft, 558 F.2d 1073, 1081 (2d Cir. 1977)). The government petitioned for rehearing and indicated that it was prepared to waive its right to restitution. The government proposed that the court of appeals' decision be modified to remand the case to the district court to allow that court to eliminate the restitution order from petitioner's sentence. The court of appeals initially denied the government's petition. Subsequently, the court vacated its prior order denying the petition for rehearing, recalled the mandate, which had issued eight days earlier, and reinstated the rehearing petition. Pet. App. D, E. On rehearing, the court of appeals concluded that in light of the government's willingness to forego restitution, the case should be remanded to the district court to afford that court the opportunity to delete the restitution order from petitioner's sentence. Pet. App. F, 661-662. The court explained that "(p)ermitting (petitioner's) conviction and sentence to stand after the excision of that easily identifiable portion of the sentence that is impermissible under Rule 11(c)" would "detract() in no way from our admonition * * * to the district courts to comply strictly with the rule" and would be consistent with the harmless error provision of Rule 11(h). /6/ Pet. App. F, 662. ARGUMENT 1. Petitioner first contends (Pet. 12-18) that the court of appeals erred in recalling its mandate, which had issued after the initial decision reversing petitioner's conviction. It is well established that an appellate court has the power to recall its mandate after it has been issued, and that the decision whether to exercise this power "falls within the discretion of the court." Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir. 1988); see Coleman v. Turpen, 827 F.2d 667, 671 (10th Cir. 1987); Dilley v. Alexander, 627 F.2d 407, 410 (D.C. Cir. 1980); Sparks v. Duval County Ranch Co., 604 F.2d 976, 979 (5th Cir. 1979) (en banc), aff'd, 449 U.S. 24 (1980); American Iron & Steel Institute v. EPA, 560 F.2d 589, 592-594 (3d Cir. 1977), cert. denied, 435 U.S. 914 (1978); cf. 28 U.S.C. 2106 ("any * * * court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances"). In this case, the court of appeals apparently recalled its mandate so that it could reconsider the government's petition for rehearing. Petitioner has not shown that this action by the court, taken only a few days after the initial issuance of the mandate, constituted an abuse of discretion. /7/ 2. Petitioner renews his contention (Pet. 19-26) that the district court's failure to advise him before accepting his guilty plea that his sentence might include an order of restitution requires reversal of his conviction. Whatever the merits of petitioner's contention, it does not warrant review at this stage of the proceedings. The court of appeals remanded the case to afford the district court an opportunity to eliminate the order of restitution from petitioner's sentence. If the district court declines to eliminate the restitution order, petitioner's guilty plea will be vacated and his conviction reversed, in which case his claims will be moot. If, on the other hand, the district court resentences petitioner without the restitution order, and his conviction and sentence are affirmed by the court of appeals, he will then be able to present his argument to this Court by way of a petition for certiorari seeking review of the final judgment. In any event, petitioner's claim that the deletion of the restitution order from his sentence would not render the district court's error harmless is without merit. Had the district court not imposed an order of restitution, petitioner could not have successfully attacked his conviction on the ground that the district court failed to inform him of its authority to impose restitution. The Advisory Committee's note on the 1985 amendment of Rule 11(c)(1) -- the amendment that added the requirement that the defendant be informed about the possibility of restitution -- specifically provides that "(f)ailure of a court to advise a defendant of the possibility of a restitution order would constitute harmless error under subdivision (h) if no restitution were thereafter ordered." If the district court on remand eliminates the original order of restitution, petitioner will be in precisely the same position he would have been in had the district court not imposed a restitution order, and the court's failure to advise him of the possibility of such an order will be harmless. Thus, the court of appeals properly remanded the case to give the district court the option of either removing the illegal portion of petitioner's sentence or setting aside his guilty plea. See United States v. Pogue, 865 F.2d 226, 229-230 (10th Cir. 1989); United States v. Corn, 836 F.2d 889, 895 (5th Cir. 1988). 3. Petitioner also contends (Pet. 27, 40-43, 45) that a comment by the prosecutor at the sentencing hearing concerning petitioner's lack of remorse for his crimes violated the government's agreement to make no recommendation as to petitioner's sentence. Contrary to petitioner's claim, the government fully complied with its promise to "make no recommendation as to any specific punishment." Pet. C.A. App. C, 4. A review of the transcript of petitioner's sentencing hearing makes clear that the government at no point asked for the imposition of any particular sentence. See Pet. C.A. App. E, 2-28. Moreover, the only mention by the government of the issue of petitioner's remorse was the prosecutor's statement, after reviewing documents submitted by petitioner's counsel at the sentencing hearing, that "the government believes that that document (a seminar brochure on white-collar crime prevention prepared by petitioner) indicates the defendant's lack of remorse." Pet. C.A. App. E, 8. This isolated comment surely did not constitute a breach of the government's obligations under the plea agreement. /8/ 4. Petitioner contends (Pet. 28-29, 32) that the government breached its obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to present material exculpatory evidence -- specifically, autopsy reports on the four Peruvian infants who died after being treated with oral rehydration salts supplied by petitioner's company -- to the grand jury or the district court. Even if petitioner could establish that this evidence was material and exculpatory, however, the government has no obligation under Brady to introduce evidence that is favorable to the defendant; rather, "(t)he holding in Brady v. Maryland requires disclosure to the defense of exculpatory evidence that is material to the defendant's guilt or punishment." United States v. Bagley, 473 U.S. 667, 674 (1985) (emphasis added). Because petitioner does not assert that the autopsy reports were not available to him for use in his defense or at sentencing, /9/ his Brady claim is without merit. 5. Petitioner contends (Pet. 33-34) that his guilty plea was involuntary and was the result of improper coercion by the government and by his own counsel. This claim is belied by petitioner's own statements, made under oath, to the district court during his plea proceeding. During his colloquy with the district court, petitioner acknowledged without hesitation that he was "fully satisfied" with the legal services provided by his counsel and that he had discussed the plea agreement with his attorney and understood its contents. Pet. C.A. App. 7-8. In response to questioning by the district court about the voluntariness of the plea, petitioner denied that he was pleading guilty because of "any kind of intimidation" and indicated that he was "electing voluntarily and freely" to enter a guilty plea. Id. at 8-9. Petitioner's belated assertions that his guilty plea was the product of improper coercion are devoid of support. 6. Petitioner contends (Pet. 35-37) that his guilty plea should be vacated because his counsel's performance was so deficient as to deny him his right to effective assistance of counsel. To prevail on this claim, petitioner must show that his attorney's performance "fell below an objective standard of reasonableness," Strickland v. Washington, 446 U.S. 668, 687-688 (1984), and "that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Petitioner's ineffective assistance claim fails to satisfy either prong of this test. As an initial matter, defense counsel's conduct of petitioner's defense belies any claim of ineffective assistance. Petitioner's attorney negotiated a plea agreement under which petitioner was required to plead guilty to only one count of a 32-count indictment. In exchange, the government agreed to dismiss all of the remaining counts, including four manslaughter charges. Such an outcome hardly points to deficient representation by counsel. Moreover, the record provides no support for petitioner's claims that his attorney forced him to plead guilty, failed to object to certain events, or failed to inform him of certain information. /10/ Indeed, examination of the record reveals only that petitioner's attorney did not object when the district court incorrectly stated that the amount of the fine could be as high as $250,000, and when the court failed to apprise petitioner of the possibility of a restitution award. Whether or not these omissions satisfy the first prong of the ineffective assistance test, petitioner has not demonstrated that he ultimately suffered any prejudice as a result of the claimed deficiencies. And, although petitioner asserts that, but for his counsel's errors, he would have chosen to go to trial, this claim "suffers from obvious credibility problems and must be evaluated in light of the circumstances the defendant would have faced at the time of his decision." Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.), cert. denied, 109 S. Ct. 117 (1988). By accepting the plea agreement, petitioner was able to enter a guilty plea to one count of wire fraud and to avoid prosecution on a number of other, much more serious charges. Considering the circumstances petitioner faced at the time he entered his plea, it is incredible that, were it not for his counsel's errors, he would have chose to go to trial. 7. Finally, petitioner contends (Pet. 45-46) that the district court incorrectly eliminated the term of probation from his sentence and asserts that under former 18 U.S.C. 3651, the court was required to suspend the execution of the term of imprisonment. As the government pointed out in response to petitioner's motion for modification of his sentence, if a defendant is sentenced to imprisonment for more than six months, former Section 3651 prohibited the sentencing court from imposing a period of probation unless the court suspended the execution of a portion of the imprisonment term such that the defendant was "confined in a jail-type institution * * * for a period not exceeding six months." 18 U.S.C. 3651. The period of probation the court originally imposed was unlawful because petitioner was sentenced to three years' imprisonment without suspension of any portion of the prison term. By subsequently eliminating the probation portion of the sentence, the court brought the sentence into compliance with former Section 3651. Therefore, the court acted properly when it eliminated that portion of the sentence. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney DECEMBER 1990 /1/ Oral rehydration salts are used in developing countries in the treatment of infants suffering from dehydration as a result of diarrhea and malnutrition. Pet. App. A, 86. /2/ Count Five alleged that on October 24, 1983, petitioner sent a cable to AID's offices in Lima, Peru, in furtherance of the scheme to defraud AID. Khan C.A. App. B, 7-8. /3/ Section 3651, which has been repealed, provided in pertinent part: Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, if the maximum punishment provided for such offense is more than six months, any court having jurisdiction to try offenses against the United States * * * may impose a sentence in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best. /4/ Rule 11(c)(1) requires that the court, before accepting a guilty plea, personally advise the defendant and determine that the defendant understands "that the court may * * * order the defendant to make restitution to any victim of the offense." /5/ Rule 11(h) provides: (h) Harmless Error. Any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded. /6/ The court also rejected petitioner's claim that other "'manifold deficiencies'" in the guilty plea allocution required reversal of his conviction, noting that "(n)either of the two minor omissions alleged would, if proven, rise to the level of variances affecting (petitioner's) 'substantial rights,' Fed. R. Crim. P. 11(h), and would constitute harmless error." Pet. App. at 662. /7/ Petitioner also contends (Pet. 15, 18) that the issuance of the mandate terminated the jurisdiction of the court of appeals. Both of the decisions petitioner cites as support for this proposition make clear, however, that this rule applies only "(i)n the absence of a recall of the mandate." United States v. DiLapi, 651 F.2d 140, 144 (2d Cir. 1981); see Meredith v. Fair, 306 F.2d 374, 376 (5th Cir. 1962) ("Unless the Court should recall the mandate, the Court's control over the judgment below comes to an end after the mandate has been issued."). /8/ Petitioner's claim (Pet. 24-26) that the government breached its promise not to "ask for any specific victim restitution in connection with this criminal proceeding" is equally meritless. See Pet. C.A. App. C, 4. Again, examination of the sentencing transcript demonstrates that the government never asked the court to impose restitution. /9/ Petitioner's counsel filed a pretrial motion for disclosure of Brady material, as well as other discovery motions. In response, the government agreed to provide petitioner with virtually all of the requested materials, including medical records from Peru. The district court subsequently denied petitioner's Brady and discovery motions, determining that those motions were mooted by the government's agreement to provide the requested materials. Gov't C.A. Br. 6-7. /10/ By petitioner's own admission during the plea proceeding, his attorney "kept (him) abreast of all the developments in the case" and "fully advised (petitioner) as (his) legal counsel." Pet. C.A. App. C, 7. Moreover, petitioner acknowledged that he was "fully satisfied" with his attorney's services. Ibid.