John Mack Smith v. United States

436 amendment, in as described the Sen SMITH, Appellant, 'Report, John Mack

ate Committee was: branch to return from the executive America, Congress UNITED STATES of

to the the extent —to Appellee. [public] lands are involved—the sponsibility imposed the Constitu- No. 17822. Congress man- for their tion on the Appeals United States Court of agement.23 District of Columbia Circuit. case, ap- Nevertheless, Argued July 26, 1963. importance argue pellees special that the Decided Oct. justifies a broad of national defense Rehearing Congress Petitions for En has Banc and reading 8(b). But of § Rehearing by the Division making land—in- provided a method Denied Dec. 1963.

cluding grazing na- land—available Taylor Under tional defense. § suita- Act, found valuable land “more grazing any use” ble other “disposal opened for be reclassified classification in accordance with such applicable public-land laws.”24 (1958) authorizes

And 10 U.S.C. § private the Secre- “[w]henever lease department

tary military considers of a advantageous United States.” to the although expedi- procedure, not as This exchange,25 8(b) one is the as a

tious § accommodating Congress na- fixed

tional defense interests. 1934,26 grazing since The decrease growing importance

together with the industrial de- commercial and Western Taylor velopment, that the indicate grazing emphasis is outdated. Act’s Congress so, has has not said But See Congress with land its concern relaxed F.2d 403. of federal and retention conservation changed ownership.27 If “public require un- a view interests” goes beyond grazing 8(b) der § Secretary— Congress terests, —not say must so.28 S.Rep. Cong., No. 1st Sess. 85th 26. See Clawson & Held 335. (1957). Int.Dept.Ann.Rep. (1962): 27. See New (1958).

24. 43 U.S.C. 315f Conservation, Horizons LXXVI, in Resource IX- especially XLYI-L. See also land this case ex- 25. Since selected n Clawson Held& 346-47. specific acres, congressional ceeds approval required. Congress legislation would See note 22 considered supra. addition, North American Avi- in 1963. See S. S. S. gain land, fee title ation would S. S. S. 88th grazing Cong., (1963). and holders licenses 1st Sess. See also Senate Comm, compensation entitled to for the destruc- on Interior and Insular Af- fairs, Cono., Sess., tion of their licenses. 56 Stat. 88th 1st the Pub- (1942), amended, 315q (Comm. 1963). lic U.S.C. Lands Print Ewing Laporte, Washington, D. C. Mr. Court),

(appointed District appellant. Devlin, Atty., Mr. Robert U. D. Asst. S. Acheson, whom David C. Messrs. Atty., Q. Frank and Harold

U. S. Nebeker Titus, Jr., Attys., on were H. Asst. S.U. brief, appellee. Before Wilbur Washing- Miller, K. Judges. ton Circuit Danaher, Judge. MILLER, K. WILBUR Appellant January 12, was indicted on 1959, for violations of the narcotics laws. January 16, 1959,with On retained coun- present, pleaded sel he There- after, his retained counsel had ad- plead guilty him to vised withdrew appearance, and another able member appointed by our bar was the court succeed him. March On present, withdrew of not pleaded to two the six counts indictment, charged viola- 4705(a). tions of 26 U.S.C. He stated charges understood the he nature counts, the two and that he had been possible advised he thereto.1 No receive promises had to him to been made said, duce either attorney Attor- or the United States his ney. completely added that he was of his with the services court- satisfied n appointed counsel. investigative proce- usual

After dure, sentenced under 26 U.S.C. eight single years 7237(b) term of to a counts which he covered both knew, Thus, when provides The statute counts, be years to two five be not less shall years fines total- and that years, to 40 sentenced ad more than 20 n imposed. ling $40,000 $20;000. more than. fine dition remaining guilty.2 four inated “Motion for withdrawal of plea under Rule 32(d) counts were dismissed. F.R.C.P. prosecute appeal under Title Sec- thereafter, on June few weeks proceed tion 2255 and to under Title counsel, 1959, represented by retained Section 1915 U.S.C.” The text of the filed a motion sen- for reduction motion asked “leave to withdraw the tence, saying guilty, 32(d), under Rule Fed. indicated “The facts of the case grant trial, Rules Cr.Proc. and a new prime not the that defendant was injustice.” to port sup- correct manifest em- was mover in action but motion, again the criticized ployed by prevailed then another and appointed counsel who had him acted for upon dispense the narcotics at entered, the time the was which he stands convicted.” apparently because counsel had advised nothing ineffec- This motion said about plead guilty. him Appellant pointed court-appointed counsel assistance tive appointed out that experience in counsel’s plea of in connection with the criminal matters had been limited. On hearing, motion denied was After by August 16,1961, appellant’s present coun- Judge Morris, the late James W. appointed sel represent him. pronounced had sentence. hearing Judge Later a was had before appellant 28,1959, filed On October on Walsh the motion of at June judgment under a motion to vacate declined to take by “jail 2255, prepared 28 U.S.C. § relying stand, prior proceedings. alleged lawyer.” inter alia house The motion was appeal- denied and Smith intelligently plead guilty did summarizing ed. We affirmed.5 After doing by appoint- but was coerced into so the several much in man- give him ed counsel who did not effective they ner above, are described we con- allegations were, of assistance. These course, contrary opinion our cluded thus: own statements presents “This ex- made at time of another ample being objurgated able counsel which we have referred. The appointed vilified maligned charg- rendering after ef- controverted the counsel against Judge fective him, service as made Morris could be rendered es in the circumstances of the case. denied the motion. We have heretofore on commented motion under A second 28 U.S.C. § this situation as follows: by prepared inmate, a fellow “ alleged April 6,1960. filed As it sub- charge ‘The of ineffective as- stantially alleged grounds same be- ap- sistance is so often leveled at fore, Morris denied the second pointed counsel convicted motion. many lawyers fendants that dis- prison still accept assignments On June like to in be- counsel, appellant indigents. filed motion denom- half Such response appellant’s plea Appellant’s 2. In court-appointed for leni- ency, Judge Morris said: so informed the District Court. “Well, I am I afraid can’t do what 32(d) 4. Criminal Rule is as follows: you your have asked to do. I me think “(d) Guilty. Withdrawal of Plea of participation thing in this sort of is a motion to withdraw a very matter and serious has to he dealt nolo contendere be made accordingly. I also have studied imposed before sentence is your previous situation which is not imposition suspended; of sentence is good, only thing and I feel that injustice but to correct manifest I can in this do that is consistent with set aside the my duty, the facts is a sentence of permit of conviction and eight years, and the sentence of plea.” to withdraw his (Emphasis supplied.) the Court.” States, Mack v. 5. John Smith United 304 F.2d 403 . - .‘Smith -of .Judge rmotion -the case (cid:127)of (cid:127)costs. olous, U.S.C. cute an after and under Criminal filed pellant tober know U.S.C. § untarily draw that he tion guilty plea tion of the charge and its District counsel (cid:127)charge OnOctober This this effective should the frivolous.’ grounded. F.2d States, 112 “In the or denied, understanding our Smith’s parole.6 stated But on McGuire’s § motion motion to theAt court nowis would appeal without made Court such leave. plea ‘bordered on of ineffective clearly opinion was vacate the was a fourth assistance 16,1962, not advised present case of motion March and to withdraw was heard granted appellant’s and not to vacate with full Here, be sustained not consequences. without time by rejected U.S.App.D.C. guilty. appears October denial (1962), intelligently and its of the Gray eligible did so the frivolous.' us on handed about motion For consequences, assistance merit bordered prepayment 32(d) to with- and He his contention leave the of understanding McGuire to be nature and did that appeal from five also the unless the alleged his voluntarily denied Oc- for judgment, down, a division under United and under to the months reason, proba- fourth guilty, ruling prose- of friv- peti- who plea vol- " not ap- of tion of the addition that the nature of the offense gently A Rule phasis- added.) Obviously this it is “made voluntarily with understand ing will be saying: represented him sure that the accused be not attacks of ently recognizes this, for in his brief he stands cognizable misled ground for know, ever guilty was entered.” Court, appointed counsel, firmatively tation tion and that counsel was to narcotics assigned tively ^[*] of counsel to inform him that get event could he be guilty of “ * * * “ * * * [AJppellant the accused be told what sentence ^[*] it for probation but charged. the nature us, advised If the October only imposed-. mislead had not that he would not be *» forbids a that he could receive without counsel. nor was coerced into contains counsel in him, vacating the mislead offenses allegation its him, or There is no when he and that he was [sic] appointed 28 U.S.C. pleaded guilty of first words: The Consequently, parole clerk, nothing that neither the and he did not by pleading guilty [sic] determining appellant appar paroled counsel is to be charge.” to that the the omission pleaded guilty, with which anyone if a nor court- judgment, accept requirement misled § doing by trying new represen- Smith was eligible plea is to proba- court- nega- ever. intelli- except a else so af- (Em as to no of as a to that now plea mo- as accept guilty, guilty having that, fuse to a true It accept 4705(a), first shall not without § 26 U.S.C. violations determining that probation is made vol- granted and could not be untarily understanding parole. of the na- eligible It was so become charge. 1956, by aIf re- July of the an amend ture provided on plead 7237(b), if the court refuses fuses § 26 U.S.C. ment accept guilty or if prescribing section corporation appear, fails to 4705(a). violating fendant ch. 70 Stat. guilty.” shall enter a I, title judges warn defendants district Some charges provides: to narcotics that Rule 11 Criminal parole probation plead will not be avail- “A defendant Although required, giving court, or, able. with the consent warning think, is, desirable. we of such contendere. The court nolo allegation granted) must amount to an of ineffec- had he been told he could not be probation parole. kind of counsel of such a tive assistance the- entered plea knowing the court the conscience of as to shock he could be sentenced to. imprisonment any a farce and years, and make for 40 without promise mockery leniency. falls justice.8 sentence,, We think it Such a doing parole even so. if available, far short of had been longer- have resulted in confinement for a consider the turn to period eight unparolable years, plea of motion to withdraw says he received. Yet he governing Rule 32 under the Criminal told, justice resulted because he was not first, noted, mo (d) should be were not allowable.. to withdraw tion the discretion is addressed in-, has never said his action judge, district any previous this or motion that he was. appeal be disturbed thereon will not pleaded. he- is so This of discretion. for abuse moved, contrary, To the when he supporting citation established that for a 10,. reduction of sentence on June unnecessary. authority is 1959, deny he did not but rather admitted argument is that Essentially, Smith’s guilt by saying: his pa- non-availability probation and “The facts of the case indicated guilty consequence of his role is a prime that defendant was not the he explained him when to which was not mover in action but was em- plea; that therefore entered ployed by prevailed another and then first without accepted upon dispense the narcotics for Smith, understood determining he, that which he stands convicted.” withdraw- that consequences,10and all its agree permitted We should Second Circuit11 al of the injustice. manifest correct “ * * * When a defendant who injus rule is that manifest pleaded guilty application has makes result from a does not tice following plea, to withdraw his he should at as erroneous advice of counsel allege least not imposed. penalty which could be to the Georges States, United 262 F.2d v. ” * * * pleaded. 1959); v. (5th United States Cir. 430 Parrino, (2nd Cir.), F.2d cert. guilt 212 919 has Smith twice admitted his and! repudiate S.Ct. 99 L.Ed. 75 denied 348 U.S. still does not his admissions. (1954). can be said him 663 as Learned Paglia:12 Hand said of injus- what the claimed Just “ * * * say. not not does does tice is Smith e has twice [H] admit- constituting not have he would all assert ted the facts States said United The Second Circuit 8. See footnote 4. (1958): Miller, F.2d 524 254 v. enlarged 10. Some courts have Criminal attorney was in claim that his “[T]he by saying that, accepting 11 avail on a motion un of no efficient is judge must determine. unless counsel’s failure 2255 der that quences. the defendant understands its conse- mockery trial ‘a make the as to such clearly Smith knew the conse- Wight, justice,’ v. 2 States United of Cir., quences of his in that he knew the [1949].” The F.2d maximum which could be im- said, Wight “A lack effective as case posed. must be of such a kind of counsel sistance Corp., v. United States Norstrand (1948). of the Court the conscience to shock Cir., 168 F.2d 481 a farce and make the and justice,” Diggs mockery cited v. Paglia, States United 190 F.2d Welch, F.2d (2nd 1951). 447-448 Cir. 325 U.S. S.Ct. cert. denied 89 L.Ed. crimeand he repudi- tion ineligible did tell him he still not does parole, person pleaded guilty indict- if he ate his admissions. —quite inadequate insist course to amount crime ed for jury injustice” only appear his decide “manifest shall must that guilt; deny least before the must at court after sentence set but he per- an is- guilty; tender aside he must of conviction and he is mit plea. whether case at bar defendant to sue. In the withdraw his any ground relief Paglia has repeat emphasize said what we surely' has sentence, as to previous opinion:14 in our “This withdrawing plea. He none for presents example another of able counsel gamble upon the is not entitled being maligned vilified and ren- trial in which outcome dering as service as effective could be repudiating what succeed rendered does conceded has twice case.” This renewed of ineffec- game; is not now Justice disavow. tive assistance of counsel “borders right constitutional there is no allegation frivolous.” The that manifest eyes, juryman’s dust in ‘throw injustice resulted because was not over- is not who hoodwink a pleaded guilty told when he that he could * *” * wise.’ probation parole is, receive available, appellant presented, wholly been situation Had without mer- expected have hardly it would it. a bad granted, a defendant been Affirmed. charg- pleads to two record13 apt trafficking in narcotics es of WASHINGTON, Judge (con- by any district granted probation be curring result). So, complaint mani- of judge. Smith’s says he did nowhe injustice fest because agree that I leave withdraw the is, unavailable not know plea properly of As denied. inthe circumstances, fatuous. rather opinion points out, the court’s if even mistakenly the defendant had believed by any suggested It not be will eligible parole, would be guil body accepting a of that, before belief, of that he was basis pa respect ty to which to an offense thereby. guil- prejudiced judge possibility, must de role is a knowledge might ty with the under whether the termine forty years, possibly be sentenced eligibil parole, of the nature stands period, parole, even with this normal in therefor, ity and the eight years re- exceed the he did granted. be thereafter which it ceive. eligibility course, is, of reason of the Federal Rules of Crim- “consequence” of a parole is not a places inal Procedure the trial un- grace. legislative .guilty, a matter of but duty der a to determine whether the de- non-eligibility for equally true that It is understands fendant charge.” the “nature of the “consequence” parole particular case, might aIn this cases, 4705(a) even understanding include an well of the con- judicial expansion of Criminal Rule the 11; rather, guilty plea. Realistically, sequences of a consequence it is think, eligibility ineligibility pa- I grace. withholding legislative “consequence” role is a of a alleged ground Certainly guilty produced find the sentence, support precluded the motion to withdraw the and the sentence appel parole possibility prior counsel led because of —that granted legislative parole proba- (“legis- lant to believe enactment. If 13. See footnote 2. See footnote grace”) practice,1 is the normal

lative rare, ineligibility ignorance pleading

then because “legislative grace” had of the fact that might by special been withheld statute produce injustice, if the proved prejudicial.

reliance to be prejudicial if the defendant

would be substantially greater ceived reasonably maximum he than the given possibility of expected,

parole. injus- Here, “manifest do not think I But in another

tice” resulted. might any event, think it I have. good practice for the District

would be cases, warn Court, in all narcotics parole and

fendants probation them. available

will Henry Johnson, Jr., Mr. Lincoln Wash-

ington, (appointed by D. C. the District Court), appellant. Nelson, Atty., Dept, Mr. Jerome Justice, with whom Mr. David C. Ache- son, Atty., Q. U. S. Frank Nebeker and PEA, Appellant, Emanuel Joseph Lowther, Attys., A. Asst. U. S. brief, appellee. were America, UNITED STATES Appellee. Before Senior Circuit Judge, Edgerton, No. 17824. McGowan, Danaher udges. J Appeals Court United States District of Columbia Circuit. PER CURIAM. Argued Sept. 24, 1963. appeals The defendant from a convic- Decided Oct. degree tion of second murder and assault Rehearing Petition Denied dangerous weapon. with a A detective Nov. questioned got him and a confession

while he lying was under arrest and hospital. keeping in a wounded spirit 5(b), of Rule F.R.Crim.P., we expected the detective right would have warned him of his remain silent. The record does not show whether the detective did so. It does prosecution not show that either “sought the defense to ventilate the is- types cases, course, 1. In most release §§ 4163. These sections do mandatory certain they not on their face disclose that are conditions applicable have been met. See 18 U.S.C. to narcotics offenders.

Case Details

Case Name: John Mack Smith v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Dec 9, 1963

Citation: 324 F.2d 436

Docket Number: 17822_1

Court Abbreviation: D.C. Cir.