Alаn Gene KINCADE, Appellant, v. UNITED STATES of America, Appellee.
No. 76-2289.
United States Court of Appeals, Third Circuit.
July 6, 1977.
559 F.2d 906
Submitted Under Third Circuit Rule 12(6) June 10, 1977.
WEIS, Circuit Judge, concurring and dissenting:
I join in Parts I, II and III of the majority opinion. However, I am unable to agrеe with the majority view in Part IV that the trial judge‘s refusal to allow two proposed witnesses to testify was an abuse of discretion.
On numerous occasions, this Court has held that the determination as to whether a party should be held to pretrial ordеrs is within the discretion of the trial judge. Absent a clear abuse of that discretion, we will not interfere with such rulings. See, e. g., De Laval Turbine, Inc. v. West India Industries, Inc., 502 F.2d 259 (3d Cir. 1974); Moore v. Sylvania Electric Products, Inc., 454 F.2d 81 (3d Cir. 1972); Ely v. Reading Company, 424 F.2d 758 (3d Cir. 1970). That principle should be applied here.
The plaintiff filed an amended pretrial memorandum on February 23, 1976, and a pretrial conference took place on thаt day. The letter from plaintiff‘s counsel listing four additional witnesses was dated February 26, 1976. The record does not reveal when it was delivered to defense counsel, but the objection dated March 3, 1976 followed soon thereafter.
Under locаl Rule 7 of the district court, only witnesses listed in the pretrial order will be permitted to testify except to “prevent manifest injustice.” The trial judge noted that the rule was designed to give both sides an opportunity to explore the facts in the cаse and that it was unfair to bring in a witness at the eleventh hour when the other party could not arrange for a deposition.
The majority faults defendant for not contacting plaintiff‘s counsel to secure information from him, not initiating further discovery, or taking other steps to minimize prejudice. In short, the burden is placed on the defendant to cure a situation brought on by the plaintiff‘s dereliction. The record contains no explanation of when plaintiff first learned of the witness, particulаrly if his identity were discovered before February 23, the date of the pretrial conference; or why plaintiff did not request an amendment of the pretrial order or a further pretrial conference. Conspicuously lacking also is the justifiсation plaintiff had for his failure to be prepared for pretrial as required by the court‘s order of November 18, 1975.
Since the time for discovery fixed by the court had expired, defendant was not free to depose the four propоsed witnesses in the absence of a court order. Under the circumstances, one would have expected the plaintiff at least to have delivered a statement of the proposed witnesses’ testimony and an offer to arrаnge for depositions, if agreeable to the court. Plaintiff did nothing, choosing instead to wait until the day of trial for a ruling from the court. I find no abuse of discretion on this record and, therefore, do not agree with the majority‘s remand order. Since I am in the minority, however, and the remand will take place, I note my concurrence with Judge Rosenn‘s suggestion that because this is a non-jury trial, a limited reopening may suffice.
In view of the remand order, it is not appropriate for me to express my views on the other serious issues not reached by the majority and the ultimate disposition of the case.
William R. Ellis, Pittsburgh, Pa., for appellant.
Joel B. Strauss, Blair A. Griffith, U.S. Atty., David M. Curry, Pittsburgh, Pa., for appellee.
Before ALDISERT, ROSENN and HUNTER, Circuit Judges.
PER CURIAM:
This is an appeal from the district court‘s denial, without evidentiary hearing, of Kincade‘s motion to vacate sentence pursuant to
I.
Kincade was charged with fourteen counts of forging and altering United States Savings Bonds in violation of
At the time of the federal hearing, Kincade was being held in state custody on charges of forgery, receiving stolen goods, and attempted theft by deception. After the federal hearing, hе was indicted, tried, and convicted on those state charges. He was consigned to a county jail to serve his state term and was released from state custody on March 12, 1976.
On March 18, 1976, Kincade was committed to the Federal Correctional Institute at Danbury, Connecticut, to begin serving his federal sentence. He thereafter filed the motion at issue in this case, alleging that his guilty plea had been invalid. He contended that the operation of section 3568, which delayed the commencement of his federal sentence for the seventeen months he spent in state prison, was a “consequence” of his plea that the court, under rule 11, was required to explain to him.
II.
It has never been held that rule 11 required the district сourt to explain every conceivable “consequence” of a guilty plea to the defendant. Most cases drew a distinction between “direct consequences” and “collateral consequences“—only the former falling within rule 11 requirement. See, e. g., Fruchtman v. Kenton, 531 F.2d 946, 948 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976).
Courts have differed as to whether the operation of section 3568 is a direct consequence and must be explained. Compare United States v. Myers, 451 F.2d 402 (9th Cir. 1972) (operation of section 3568 must be explained) and Love v. United States, 392 F.Supp. 1113 (E.D.N.C.1975) (same), with Faulisi v. Daggett, 527 F.2d 305 (7th Cir. 1975) (operation of section 3568 need not be explained) and Williams v. United States, 500 F.2d 42 (10th Cir. 1974), (same) and Tindall v. United States, 469 F.2d 92 (5th Cir. 1972) (same).3
Kincade contends that we must hold that the possible effect of seсtion 3568 was a direct consequence in terms of rule 11. He points out that the statute can, by virtue of a subsequent state conviction, cause the postponement of service of a federal sentence, thereby increasing the overall time of incarceration. The federal court, adds Kincade, lacks discretion to prevent the operation of the statute. Under Berry v. United States, 412 F.2d 189 (3d Cir. 1969), says Kincade, a consequence which affects the term of incarceration аnd as to which the sentencing court lacks discretion must be considered direct.
Finally, the district court‘s lack of discretion with respect to the operation of section 35685 has no bearing on the length of the federal sentence. The court remains unfettered by section 3568 in selecting a sentence for the federal offense of which defendant was convicted; the statute operates automаtically merely to delay the start of the sentence chosen. It does not change the nature of the federal sentence which results from the guilty plea.
III.
We hold, therefore, that the possible application of section 3568 was not a consequence of Kincade‘s guilty plea that had to be explained to him under rule 11. The judgment of the court below will be affirmed.
ALDISERT, Circuit Judge, concurring.
I concur in the result reached by the court. Here the defendant appeared before thе federal court for the entry of a guilty plea prior to the 1975 amendment of Rule 11, F.R.Cr.P. Although he was in state custody at the time, he had not yet been indicted, tried, convicted or sentenced for any state offense. Under these circumstances, I find no duty on the part of the district court to explain that any federal sentence would begin to run upon completion of any possible state sentence that might be pronounced.
Notes
Rule 11 read in part as follows at the time of Kincаde‘s guilty plea:
A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept a plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear, the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea.
(Emphasis added.)
After Kincade‘s plea was entered, rule 11 was amended to eliminate the requirement that the court explain the “consequences” of a guilty plea to the defendant before accepting his plea. The current rule, as amended in 1975, merely requires that the minimum and maximum penalties be disclosed.
Section 3568 provides as follows:
Effective date of sentence; credit for time in custody prior to the imprisonment of sentence—The sentence of imprisоnment of any person convicted of an offense shall commence to run from the date on which such person is received at the penitentiary, reformatory, or jail for service of such sentence. The Attorney General shall give any such person credit toward service of his sentence for any days spent in custody in connection with the offense or acts for which sentence was imposed. As used in this section, the term “offense” means any criminal offense, other than an offense triable by court-martial, military commission, provost court, or other military tribunal, which is in violation of an Act of Congress and is triable in any court established by Act of Congress.
If any such person shall be committed to a jail or othеr place of detention to await transportation to the place at which his sentence is to be served, his sentence shall commence to run from the date on which he is received at such jail or other place оf detention.
No sentence shall prescribe any other method of computing the term.
See also Opela v. United States, 415 F.2d 231 (5th Cir. 1969) (failure to warn prisoner of the operation of 3568 does not violate due process).
The courts in the Second and Eighth Circuits, while they have touched upon the issue of advising a prisoner that his federal sentence will begin only after service of his state sentence, have not actually rendered decisions turning on the merits of the Myers rule. United States v. Hermann, 524 F.2d 1103 (2d Cir. 1975) (failure to advise prisoner of operation оf section 3568 not plain error permitting consideration of the issue for the first time on appeal.); Harris v. United States, 493 F.2d 1213 (8th Cir.), cert. denied, 417 U.S. 949, 94 S.Ct. 3076, 41 L.Ed.2d 670 (1974) (prisoner aware sentence could be consecutive to state sentence.).
United States v. Crowley, 529 F.2d 1066 (3d Cir.) (suspension as a fireman), cert. denied, 425 U.S. 995, 96 S.Ct. 2209, 48 L.Ed.2d 820 (1976); Moore v. Hinton, 513 F.2d 781 (5th Cir. 1975) (suspension of auto license); Cuthrell v. Director, 475 F.2d 1364 (4th Cir.), cert. denied, 414 U.S. 1005, 94 S.Ct. 362, 38 L.Ed.2d 241 (1973) (institution of separate civil proceedings against the defendant for commitment to a mental health facility); Johnson v. United States, 460 F.2d 1203 (9th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 206, 34 L.Ed.2d 125 (1972) (failure to tell defendant whether sentence on multiple count indictment will be concurrent or consecutive); Hutchison v. United States, 450 F.2d 930 (10th Cir. 1971) (per curiam) (loss of good time credit); Waddy v. Davis, 445 F.2d 1 (5th Cir. 1971) (struck automatically from voting rolls); United States v. Vermeulen, 436 F.2d 72 (2d Cir. 1970), cert. denied, 402 U.S. 911, 91 S.Ct. 1390, 28 L.Ed.2d 653 (1971) (failure to indicate whether sentences would be consecutive or concurrent); Meaton v. United States, 328 F.2d 379 (5th Cir. 1964) (per curiam), cert. denied, 380 U.S. 916, 85 S.Ct. 902, 13 L.Ed.2d 801 (1965) (deprivation of right to vote in another jurisdiction); Redwine v. Zuckert, 115 U.S.App.D.C. 130, 317 F.2d 336 (1963) (per curiam) (possibility of undesirable discharge from armed forces); Fruchtman v. Kenton, 531 F.2d 946 (9th Cir.), cert. denied, 429 U.S. 895, 97 S.Ct. 256, 50 L.Ed.2d 178 (1976) (possibility of deportation); United States v. Santelises, 509 F.2d 461 (2d Cir. 1975) (same); Michel v. United States, 507 F.2d 461 (2d Cir. 1975) (same); United States v. Sambro, 147 U.S.App.D.C. 75, 454 F.2d 918 (1971) (per curiam) (same); United States v. Briscoe, 139 U.S.App.D.C. 289, 432 F.2d 1351 (1970) (same).