United States v. Sepe

¶5COLEMAN, Circuit Judge:

¶6The Grand Jury for the Southern District of Florida indicted Florencio Sepe for (1) conspiring to import sixty-six pounds of heroin, 21 U.S.C. § 952(a); 18 U.S.C. § 2; 21 U.S.C. § 963; (2) for importing sixty-six pounds of heroin; and (3) for possessing the said narcotics with intent to distribute, 21 U.S.C. § 841(a)(1).

¶7On January 11, 1972, the case came to trial.

¶8Sepe contended that the heroin and the suitcase in which it had been contained should be suppressed as being fruits of an unlawful search. The trial judge disagreed.

¶9A jury was selected. The government made its opening statement. Seven witnesses were examined, compiling a trial transcript of 141 typewritten pages.

¶10At this point the following transpired :

¶11MR. KESSLER [counsel for Sepe]: Your Honor, we have a most unusual request at this point in time and I trust the Court would go along with this request.

¶12We are presently attempting to negotiate a favorable arrangement between the Defendant and the U. S. Government. There are one or two small problems, one of which, I’m waiting for the Interpreter that my client has faith in and that we can discuss it a little bit further, and he should be here momentarily.

¶13THE COURT: We will discuss it here at sidebar.

¶14We will let the jury have a recess for half an hour.

(Thereupon a recess was taken until 10:00 a. m., pursuant to which the following proceedings were had outside the presence of the jury:)

¶15MR. KESSLER: Your Honor, the Defendant at this time has an announcement to make.

¶16THE COURT: All right. We’ll hear you.

¶17MR. KESSLER: With the permission of the Court, we would at this time request of the Court to permit us to withdraw our plea of not guilty as to Counts 1, 2 and 3.

¶18THE COURT: Your client is not named in Count 3. Counts 1, 2 and 5 are the Counts which relate to Mr. Sepe.

¶19MR. KESSLER: Yes sir.

¶20At this time, Your Honor, with the Court’s permission, we would tender a plea of guilty to Count 1, and a plea of no contest to Counts 2 and 5.

¶21*786THE COURT: And what is the Government’s position?

¶22MR. SULLIVAN: Your Honor, we will make a recommendation as to sentencing, but we do not object to the two nolo pleas as to Counts 2 and 5.

¶23MR. KESSLER: We would ask at this time, Your Honor, that the Court defer the matter of sentencing to permit us for the taking of testimony from the family sometime next week. They are remaining—

¶24Thereafter, the following proceedings took place:

¶25THE COURT: Mr. Sepe, how old are you?

¶26THE DEFENDANT: Thirty-two years old.

¶27THE COURT: What education do you have?

¶28THE DEFENDANT: Up to sixth grade, elementary school.

¶29THE COURT: Are you married?

¶30THE DEFENDANT: Yes, sir.

¶31THE COURT: Have you children?

¶32THE DEFENDANT: Three.

¶33THE COURT: How many ?

¶34THE DEFENDANT: Three.

¶35THE COURT: Now, under the law I must ask you certain questions to be sure that you understand what is happening and what you are doing. The fact that I do this does not reflect on your Counsel or their knowledge or ability, since they have already undoubtedly told you of the same things and asked you the same questions.

¶36Do you understand that by entering a plea to Count 1 of the indictment that you are admitting the truth of the charge, that you agreed with one or more of the other persons named to import unlawfully into the United States a quantity of heroin; you understand that?

¶37THE DEFENDANT: Yes, sir.

¶38THE COURT: And do you under-

¶39stand that when you plead guilty, there is no further trial either before a jury or before me, and that the only thing that will remain to be done is that I determine and impose whatever sentence I think appropriate?

¶40THE DEFENDANT: (Nods head.)

¶41THE COURT: Is your plea of guilty entered freely and voluntarily on your part?

¶42THE DEFENDANT: (Nods head.)

¶43THE COURT: Will you answer so the Court Reporter gets it ?

¶44THE DEFENDANT: Yes, sir.

¶45THE COURT: Other than the promise or assurance of the United States Attorney that he will make a recommendation to the Court about your sentence, have any other promises or inducements been offered to you ?

¶46THE DEFENDANT: No, sir.

¶47MR. BIERMAN: I would point out, Your Honor, that I have explained to the Defendant that the Court has indicated, pursuant to the ABA standards, that if the Court feels it necessary to exceed the Government’s recommendation, that an opportunity to withdraw the plea would be given.

¶48THE COURT: And I say to the Defendant as I have said to you, his Counsel, that I cannot foresee any circumstance at the moment that would impel me to impose a sentence in excess of the recommendation of the Government as to maximum sentence.

¶49You understand that?

¶50THE DEFENDANT: Yes, sir.

¶51THE COURT: Now, with respect to Count 3 of the indictment.

¶52MR. SULLIVAN: Is that not Count 2, Your Honor?

¶53THE COURT: Count 2. Thank you.

¶54With respect to Count 2 of the indictment, you are charged with having unlawfully imported into the United States from a place outside, a quantity of heroin, sixty-six pounds. Do you understand that by a plea of nolo contendere you say to the Court that you do not contest the truth of that charge ?

¶55THE DEFENDANT: (nods head.)

¶56THE COURT: And his answer?

¶57*787THE DEFENDANT: Is yes, sir.

¶58THE COURT: And you understand that when you enter such a plea, there is no trial before Court or jury and that the Court may then sentence you upon that Count of the indictment with the same force and effect as if you had entered a plea of guilty ?

¶59THE DEFENDANT: (Nods head.)

¶60THE COURT: Will you answer so the Court Reporter hears you ?

¶61THE DEFENDANT: Yes, sir.

¶62THE COURT: On Count 5 of the indictment you are charged, with Mr. Pel-lini, with possession with intent to distribute a quantity of heroin, approximately sixty-six pounds. Do you understand that by your plea of nolo contend-ere, that you, by that plea, do not contest the truth of the charge? The Court, of course, understands that what was actually in the bag when you got it was one package and not sixty-two.

¶63THE INTERPRETER: Not one package but two when the bag was delivered to him and Mr. Pellini, the rest being flour, according to the evidence before us.

¶64And do you understand that on that Count if you plead nolo contendere, there is no further trial before the jury or before the Judge, and that the Judge may sentence you upon that Count of the indictment with the same force and effect as if you had entered a plea of guilty?

¶65THE DEFENDANT: (Nods head.)

¶66THE COURT: And his answer ?

¶67THE DEFENDANT: Yes, sir.

¶68THE COURT: Do you understand that upon these Counts, that the maximum prison sentence could be as much as fifteen years ?

¶69THE DEFENDANT: (Nods head.)

¶70THE COURT: You must answer. He is shaking his head Yes, but we don’t get your answer unless you utter it vocally.

¶71THE DEFENDANT: Yes.

¶72THE COURT: And with the knowledge of what your Counsel have told you and what the Judge has told you, are you still desirous and willing to change your plea to guilty on Count 1, and to nolo contendere on Counts 2 and 5 ?

¶73THE DEFENDANT: Yes.

¶74THE COURT: The Clerk may now take his plea of guilty on Count 1 and nolo contendere on Counts 2 and 5.

¶75The defendant was thereafter sentenced to one-half of the maximum term of imprisonment, plus a fine.

¶76He now seeks to appeal on the ground that the intended reception in evidence of the suitcase and heroin infringed his Fourth Amendment rights and that his conviction, although on obviously voluntary pleas of guilty and nolo contendere, should be reversed.

¶77We cannot accept this contention.

¶78The situation is completely covered by a most thoroughly researched, cogently reasoned decision recently rendered by the United States Court of Appeals for the Sixth Circuit in United States v. Cox, 464 F.2d 937 (1972).

¶79There is a strong temptation to quote in externo from the Cox opinion. Since it is reported, and thus available to all, we restrict ourselves to the following excerpts :

¶80 “The procedure employed in the case at bar is at variance with the general, well-settled rule that a guilty plea “normally rests on the defendant’s own admission in open court that he has committed the acts with which he is charged,” see McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L.Ed.2d 418 (1969). When made by the accused, knowingly, willingly and with the benefit of competent counsel, a plea of guilty waives all non-jurisdictional defects. Austin v. Perini, 434 F.2d 752 (6th Cir. 1970); Hum-*788phries v. Green, 397 F.2d 67 (6th Cir. 1968); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); McCord v. Henderson, 384 F.2d 135 (6th Cir. 1967); Crockett v. Haskins, 372 F.2d 475 (6th Cir. 1966); also see, Jenkins v. Beto, 442 F.2d 655 (5th Cir. 1971); Nobles v. Beto, 439 F.2d 1001 (5th Cir. 1971); United States v. Rook, 424 F.2d 403 (7th Cir. 1970), cert. den. 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970); United States v. McElya, 142 U.S.App.D.C. 38, 439 F.2d 548 (1970); Abram v. United States, 398 F.2d 350 (3rd Cir. 1968); United States ex rel. Rogers v. Warden, 381 F.2d 209 (2d Cir. 1967); Runge v. United States, 427 F.2d 122 (10th Cir. 1970); Seybold v. Cady, 431 F.2d 683 (7th Cir. 1970). The jurisdictional exception to the general rule has been limited to cases in which the accused is challenging the constitutionality of the statute, usually on Fifth Amendment grounds, under which he is charged. See, Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968).

¶81-X- * -X- … -X-

¶82“These general rules are well summarized in 1 Wright, Federal Practice and Procedure: Criminal § 175b, as follows: ‘The entry of a plea of guilty has the effect of admitting all material facts alleged in the charge. No further proof of the crime is required . . . The plea is not merely evidence for the government. It is a formal criminal pleading, waiving a trial and a defense, and leaving the court nothing to do but to impose sentence and enter judgment.

¶83A defendant who has pleaded guilty is not barred from claiming that the indictment or information failed to state an offense, or that the statute under which he was charged is unconstitutional, or that the pleading showed on its face that the prosecution was barred by the statute of limitations. The plea of guilty does waive, however, all nonju-risdictional defects in the proceeding. In particular, it bars any claim that the prosecution obtained evidence unlawfully, or that the defendant was illegally detained, or that the prosecution constituted double jeopardy, (footnotes omitted and emphasis supplied).’

¶84See, Hughes v. United States, 371 F.2d 694 (8th Cir. 1967); Hoffman v. United States, 327 F.2d 489 (9th Cir. 1964); Thomas v. United States, 290 F.2d 696 (9th Cir. 1961), cert. den. 368 U.S. 964, 82 S.Ct. 446, 7 L.Ed.2d 401 (1962).

¶85* -X- -X- -X- *x- *

¶86 “It is also well established that a guilty plea is not rendered invalid because it represents a compromise by defendant, thrusts a difficult judgment upon him,- or is motivated by fear of greater punishment. See Brady, supra; McMann, supra;Parker v. North Carolina, supra, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785; North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed. 2d 162 (1970); McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971). The State may properly encourage pleas of guilty either by being more lenient to those who enter such pleas, see Brady, supra,397 U.S. at 750-753, 90 S.Ct. 1463, or by increasing the risks of punishment on those who do not, see North Carolina v. Alford, supra,400 U.S. at 37, 91 S.Ct. 160; Parker v. North Carolina, supra, 397 U.S. at 795-796, 90 S.Ct. 1458. The constitutional standard remains, in Justice Harlan’s words, “whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.’’. North Carolina v. Alford, supra,400 U.S. at 31, 91 S.Ct. at 164; also see Boykin v. Alabama, supra, 395 U.S. [238] at 242, 89 S.Ct. 1709 [23 L.Ed.2d 274]; Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

¶87“The guilty plea has a central role in the criminal process. See Brady, supra,397 U.S. at 752 n. 10, 90 S.Ct. 1463. Approximately 90% of all criminal proceedings commenced in the United States district courts are settled by the *789entrance of a plea of guilty or one of nolo contendere. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (Douglas, J., concurring, at n. 2). Plea bargaining is now openly recognized as an important prosecutorial tool in obtaining these pleas which are indispensable to the smooth functioning of the existing system of criminal justice.5 The Supreme Court held in Santobello, swpra, that where “a plea rests in any significant degree on a promise or agreement of the prosecutor . . . such promise must be fulfilled,” and perhaps even be specifically performed.

¶88“The defendants at bar had every right to and did in fact plead not guilty. After their motion to suppress was overruled they were confronted by one of the hard choices of which our criminal process is replete. See McGautha v. California, supra,402 U.S. at 213, 91 S.Ct. 1454. They could go to trial on charges of armed robbery and put the government to its burden of proving their guilt, see McMann v. Richardson, supra,397 U.S. at 767, 90 S.Ct. 1441; United States v. Doyle, 348 F.2d 715 (2nd Cir. 1965), or they were free to bargain with the prosecutor and offer to plead guilty to a reduced charge or be promised leniency.

¶89“In intelligently weighing their options, the defendants chose to plead guilty to reduced charges. Their mental calculus was undoubtedly affected by the district court’s ruling on the motion to suppress and by their estimation of the likelihood of that ruling being set aside on appeal.6 If they and their counsel believed the chances of reversal to be high, we fail to understand what was to be. gained by pleading guilty. The plea of not guilty should have been maintained and the government' put to its burden.”

¶90In the foregoing decision the Court of Appeals for the Sixth Circuit concluded that even with the consent of the prosecution, pleas of guilty cannot be accepted while the defendant reserves the right to appeal on non-jurisdictional grounds.

¶91In the interest of orderly procedures in the conduct of criminal trials, in order that criminal prosecutions may be reduced to final judgments so as to confer appellate jurisdiction, and for all the reasons so ably set forth in United States v. Cox, supra,we agree with the principles there announced.

¶92This leaves one matter for disposition. Sepe pleaded nolo contendere to Count 5 of the indictment. On appeal, apparently for the first time, it is now noticed that this count was defective for failure to assert the essential “knowledge” required under the Old Narcotic Drugs Import and Export Act, 21 U.S.C. § 174. The government concedes this point, that the count did not charge an offense defined by law.

¶93Since the sentence on Count 5 was for a non-existent offense, the judgment as to that count will be vacated and remanded with directions that the sentence on that count alone be set aside and the count itself dismissed.

¶94The judgment and sentence of the District Court as to Counts 1 and 2 of the indictment are in all respects affirmed.

¶95Affirmed in part.

¶96In part (as to Count 5) vacated and remanded with directions.

¶97GOLDBERG, Circuit Judge

¶98(specially concurring):

¶99I concur in the result and add only a few lines, which may or may not be superfluous. I merely emphasize that not every prosecutorial flaw is waived by entering a plea of guilty — it is only non-jurisdictional defects that occurred prior to the plea that are waived by knowingly, willingly, and voluntarily pleading guilty. See United States v. Cox, supra,464 F.2d at 940. Thus, even a defendant who pleads guilty may later assert that the indictment fails to state an offense. Here, appellant challenged count V on this ground, and the government conceded error. A second example of a right that is not surrendered by pleading guilty is the power to attack the constitutionality of the criminal *790statute involved. Haynes v. United States, 1968, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923. Here, appellant challenges 21 U.S.C. § 841 as being violative of the tenth amendment and 21 U.S.C. § 952(a) as failing to require “knowledge and intent.” Both points border on the frivolous. Section 841 was held proper under the Commerce Clause in United States v. Lopez, 5 Cir. 1972, 459 F.2d 949, and § 952, when read with § 960, as it must be, requires knowledge and intent. Appellant’s points must fail'.

¶100ON PETITION FOR REHEARING

¶101PER CURIAM:

¶102It is ordered that the petition for rehearing filed in the above entitled and numbered cause be and the same is hereby denied.

¶103The appellant contends that his situation should be governed by the decision of this Court in United States v. Caraway, 1973, 474 F.2d 25.

¶104The record in Sepe’s case, however, is entirely bereft of any agreement on the part of the trial court that the defendant could enter his pleas and thereafter appeal. To the contrary, the record shows that the trial court specifically warned Sepe that if he entered the pleas there would be nothing left but the imposition of sentence.

¶105GOLDBERG, Circuit Judge

¶106(dissenting) :

¶107I respectfully dissent from the denial of appellant’s petition for rehearing in this case. In the light of United States v. Caraway, 5 Cir. 1973, 474 F.2d 25, I would grant the petition and would remand the case in order to allow the district court to make factual findings as to whether appellant was led to believe that he would be allowed to appeal the evidentiary ruling and whether appellant in fact attempted to “preserve” the right to appeal that ruling.

¶108ORDER GRANTING REHEARING EN BANC

¶109Before JOHN R. BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, INGRAHAM and RONEY, Circuit Judges.

¶110BY THE COURT:

¶111A majority of the Judges in active service, on the Court’s own motion, having determined to have this case reheard en banc,

¶112It is ordered that this cause shall be reheard by the Court en banc on briefs without oral argument. The Clerk will specify a briefing schedule for the filing of supplemental briefs.