George Richard HEIDEN, Jr., Appellant, v. UNITED STATES of America, Appellee.
No. 19536.
United States Court of Appeals Ninth Circuit.
Nov. 2, 1965.
353 F.2d 53
Except where special provision is otherwise made by law, the validity and effect of a testamentary disposition of any other property [i. e., other than real estate] situated within the state, and the ownership and disposition of such property, where it is not disposed of by will, are regulated by the laws of the state or country, of which the decedent was a resident, at the time of his death.
As already indicated, we read Sabbatino to mean that New York could not, by application of its choice of law rules, give a foreign act of state an effect, whether less or greater, differing from that dictated by federal law. But appellant‘s position would be baseless in any event. Not only does § 47 refer to the law existing at the time of decedent‘s death, but no state has been stronger in its opposition to foreign confiscation decrees than New York, see, e. g., Vladikavkazsky Ry. Co. v. New York Trust Co., 263 N.Y. 369, 189 N.E. 456, 91 A.L.R. 1426 (1934); Plesch v. Banque Nationale de la Republique d‘Haiti, 273 App.Div. 224, 77 N.Y.S.2d 273, aff‘d, 298 N.Y. 573, 81 N.E.2d 106 (1948). Indeed, it was this opposition that required the Supreme Court‘s intervention in the Pink case. We are thus confident that the courts of New York would not strain to read the general language of the Decedent Estate Law to include what on its face is a confiscation decree.
Since the district judge properly concluded the complaint to be lacking in merit, we do not reach the question whether dismissal would have been required in any event on the ground that a prior decree of the Surrogate‘s Court distributing the assets of the estate operated as res judicata despite the sovereign character of the Republic of Iraq and the pendency of this suit. See Restatement § 71, comment (e).6
Affirmed.
Chambers, Circuit Judge, dissented.
George Richard Heiden, Jr., in pro. per.
Jo. Ann D. Diamos, U. S. Atty., Henry L. Zalut, Asst. U. S. Atty., Phoenix, Ariz., for appellee.
Before CHAMBERS, BARNES, HAMLEY, JERTBERG, MERRILL, KOELSCH, BROWNING, DUNIWAY and ELY, Circuit Judges.
Appellant having pleaded guilty and waived counsel, was convicted of the crime of bank robbery and sentenced to a term of 20 years’ imprisonment by the District Court for the District of Arizona. Under
“The court may refuse to accept a plea of guilty, and shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge.”
At no time, either on arraignment or subsequently, did the District Court, pursuant to this Rule, determine that the plea was made with an understanding of the nature of the charge. At no time did the court inquire into the degree to which waiver of counsel was intelligently made.
Hearing on appellant‘s petition in the present proceedings was granted by the court below. At this hearing an agent of the Federal Bureau of Investigation and an Assistant United States Attorney each testified that he had disclosed to appellant that the crime charged carried a 20-year sentence. The appellant himself was interrogated at length. He adhered to his claim that the extent of sentence had been misrepresented to him. The District Court found in part “that petitioner‘s waiver of counsel at the time of his arraignment was made intelligently and with full knowledge of his rights * * * that petitioner‘s plea of guilty entered at the time of his arraignment was made voluntarily and with full knowledge of the nature of the charge against him and of the maximum penalty to be imposed.”
There is no question but that the record amply supports the court‘s findings and supplies basis for disbelief of the appellant. The question is whether such findings can suffice to eliminate prejudice resulting from failure of the court, at the time of arraignment and waiver of counsel, to make the necessary ascertainment of understanding. In our judgment, they do not.
“The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused—whose life or liberty is at stake—is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear upon the record” (emphasis supplied).
The Rule thus contemplates that disputes as to the understanding of the defendant and the voluntariness of his action are to be eliminated at the outset, and that courts thereby are to be freed from the troublesome task of searching at a later date for the truth as to the defendant‘s then state of mind.
In thus providing for the most certain method of assuring and establishing the understanding of the defendant and in seeking to lighten the burden of the courts by eliminating all need later to resort to their fact-finding functions in this highly subjective area, the Rule is clearly a salutary one whose aims might well justify sua sponte enforcement in the interests of judicial administration. But more, it is a rule of which the defendant himself can claim protection. If, by its disregard, issues of fact are permitted to arise the defendant has suffered prejudice in being required to resort to the relatively uncertain business of their resolution.
Prejudice, then, is established when lack of understanding in a specific and material respect is sufficiently alleged and such asserted lack, if it existed, would have been disclosed by a proper examination by the trial judge. Such is the case here.
We conclude that appellant was prejudiced by failure of the sentencing court to make the required ascertainment of understanding and that this prejudice was not eliminated by the findings of fact made by the court below.
In this respect the opinion of this court in Long v. United States, 290 F.2d 606 (9th Cir. 1961) (to which we somewhat reluctantly adhered in Munich v. United States, 337 F.2d 356, 360 (9th Cir. 1964), supra), is overruled.
Reversed and remanded, with directions to vacate the judgment of conviction, the sentence and the plea of guilty upon which the conviction is based, and to afford appellant a new opportunity to plead to the indictment.
CHAMBERS, Circuit Judge (dissenting):.
Heiden was deprived of no constitutional right here. Nothing shocking happened. Heiden was not hurt. We deal here only with the supervisory power of this court.
The inadvertence that happened could prejudice another. Therefore,