Linton K. Mordecai, Jr. v. United States

hearing days basis, preliminary two has not lawful At the shown have a arrested, justice requires after Officer convictions was arresting Harry Bogel, offi- one of the reversed. cers, ar- was testified that the defendant Reversed. illegal entry. Sessions rested for General Judge concluding Beard, the exclu- to await sion would have evidence Court,

suppression in the District likely very “it commented that was illegal charge of unlawful arrest.” The MORDECAI, Jr., Appellant, Linton K. entry subsequently dropped by the prosecutor, too mea- the evidence is America, UNITED STATES ger finding probable support cause Appellee. charge. for arrest on that No. 21943. pretrial suppression some At a Appeals, United States Court of arrest, nine months Officer District of Columbia Circuit. officer, arresting Vigrass, Jack the other 11, Argued Feb. 1969. testified the arrest had also been 7, Decided Oct. dangerous carrying weapon, 9, Certiorari Denied March partner prior and that to the arrest his See 90 S.Ct. 1098. protruding from had knife handle seen a Bogel, pocket.2 Officer the defendant’s however, it was had indicated entry that after the arrest for unlawful bulge

he defendant’s had noticed a him, pocket, and found searched Vigrass’ nine-month-old

knife. Officer clearly less reliable

recollections seem Bogel’s two-day-old ones.

than Officer present validity

Whatever conducting

practice “incident search arrest,”3 question a lawful there is to an incident the fruit of search in evi- not admissible arrest

unlawful dence, though relevant and it be States, trustworthy. Henry v. United 4 L.Ed.2d Re, (1958); D.C., Di F.Supp. United States See also (1948); 92 L.Ed. 210 U.S.App.

Bynum v. United (1958); Bolt v. 262 F.2d App.D.C. appellant’s arrest Since appellant’s conviction and shadow on the con cast a foundation tinuing objects. viability he of the doctrine derived to whose admission d Rabinowitz, from Unite States v. evi- never entered into The knife was 94 L.Ed. hearings any or at trial. dence at and Harris v. United authorizing L.Ed. 1399 3. The eases lineage (1947), increasingly traces its to dictum doubt. been called into California, in Weeks v. United Chimel v. L.Ed.

r Washington, Bender, D. C. Mr. Paul appellant. court), for

(appointed Bennett, Asst. U. S. Mr. Robert S. David G. Atty., whom Messrs. Atty., Bress, the brief at the time S.U. Nebeker, Q. filed, Asst. U. S. Frank filed, Atty., and time brief was at the Atty., Silbert, were on J. Asst. U. S. Earl brief, appellee. for Judge, BAZELON, and Before Chief * LEVENTHAL, BURGER, Circuit and Judges.

BAZELON, Judge: Chief Court waived its In 1961 Juvenile “original jurisdiction”1 and exclusive appellant, then 16 over the who was years later, his convic- old. Five rape and with intent tion assault final, rob became Court held in Kent v. United States facing waiver deserved assistance counsel. The appeal ceived neither 1961. This denial below motion for relief requires (1964) under 28 § decide, among questions,, us to. other applies retroactively whether to in- subsequent con- validate waiver and viction.

I intractability retroactivity apparent issue lack of consisten- among cy decided are cases an inevitable consequence of the nature of the task. impor- Several factors are of obvious tance in whether a new rule retroactively applied. should Unfor- tunately, point the criteria too often opposite directions, thereby requiring the opposing balance considerations. Supreme Court, despite the dissat- members,3 isfaction of some of its has re- * Judge Burger participate retrospective did not Ed.2d effect] disposition Douglas, of this case. from which Justices Harlan, 89 S.Ct. id. at See 11 D.C.Code Fortas, id. at 1048, dissented, re and which concurrence, ceived Justice id. Black’s because he Desist had dissented Katz and not any agreement majority’s [denying with the Katz v. See Linkletter doctrine. 19 L. analysis proceeding.6 three-pronged We have often stressed the lied contemplated ciding particular need whenever waiver is whether thorough retroactively: juve- “(a) pur- for a examination should standards, nile, background pose and alternative the new to be served strategies (b) law en- rehabilitation short extent of the reliance Experience adult criminal treatment.7 on the old stand- forcement authorities youth par- ards, (c) on adminis- demonstrates that the and effect they justice applica- ents —when are available —cannot tration of a retroactive of 4 present This cata- to of new standards.” counted the case for tion logue approach incisively provides to treatment a framework and intelli- gently. retroactivity judicial system, question Within our at hand —the we consistently rely upon a vel non of contribute to cannot counsel marshal Kent —but facts, present arguments explore mechanical al- answer. ternatives. purpose of the announc- standards argument by powerful provides ed Kent a essentiality representation by of application. Whether counsel to in the individual case right hearing to a with before Supreme counsel has led the Court to conclude many waiver arises from the statute or the of its decisions Constitution,5 can right be no doubt of there this Sixth Amendment should be 8 importance of to insure counsel preliminary retroactive. From investigation” required “full arraignment9 in a waiver to ap- to trial10 and on to Walker, 381 years age When a child 16 of or over (dissenting opinion charged 14 L.Ed.2d 601 is with an offense which if JJ.). Douglas, person years of Black & age committed 18 felony, or over is a or when a child States, 394 U.S. 4. Desist v. United years age charged under 18 is 1030, 1033, 89 22 L.Ed.2d S.Ct. an offense if which committed Although Judge (1969). 248 Leventhal person years age pun- 18 or over is disagreeing (see claims to be with me imprisonment, ishable death or life infra), his concurrence his real dissatis- judge may, investigation, full seems be with the faction jurisdiction waive and order the child positions majority of both and dissenters regular pro- held for trial under (see supra) Supreme note 3 of the Court. cedure of the would have speculation His about is “readier” who jurisdiction of the offense if committed may puzzle than who do what the read- person age 18 or over. er, as it does me. States, 131 Haziel v. United Supreme Court concluded in (1968) ; U.S.App.D.C. 298, 404 F.2d 1275 governing the statute waivers “read U.S.App.D.C. Black v. United 122 principles” context constitutional (1965) ; Watkins v. requires with counsel before S.Ct., waiver. 383 U.S. at at (1964) ; F.2d 278 Green United uncertainty 1255. The thus created U.S.App.D.C. 348, F.2d statutory whether the decision rooted in (1962) ; Pee v. United 107 U.S. rights not, or constitutional does how- App.D.C. 47, (1959). F.2d 556 cognizability ever, affect of the pellant’s jurisdiction claim. The of the Massachusetts, 8. Arsenault v. 393 U.S. District Court to convict Mordecai (1968), apply- 21 L.Ed.2d 5 pended upon a valid waiver. If Kent in- ing Maryland, White v. case, validates the waiver in this the trial S.Ct. accordingly jurisdic- court was “without * * * impose Alabama, sentence,” 9. Hamilton v. tion to gardless of whether the 7 L.Ed.2d “sentence was im- posed in violation of the Constitution ** Wainwright, Gideon v. § (1967) provides in rele- part: vant Mi- Escobedo self-incrimination peal,11 declarations Court’s right meaningful ; confron- randa retroac- right have been to counsel counsel While tation trial Wade. implications stages hold all These tive. may play fact-finding in assur- have an active role “integrity of the for the understanding ing guilt inno- client’s process”12 determines interrogation or— jurisdiction silence cence. A encouraging problematically this, more rath- but not do does Court Juvenile —in lineups fairly, police to conduct simply terrible in motion the er sets meaningful participation proceeding. But the of an adult wheels palpably process essential recognized so absolutely applica- fact-finding” to demand retroactive process “integrity pro- tion stages of the new standards.19 Waiver critically important at other hand, ceedings, on the other well process than those deter- criminal heavily rely upon forceful so advo- Rhay13 mining guilt. McConnell v. cacy juvenile representing of counsel Mempa in the decision clared retroactive a court cannot content itself that Rhay14 requiring a sentenc- counsel at v. by unaccompanied repre- waivers such ing hearing. cer- The waiver preceded requisite “guiding were sentation tainly loudly calls investigation.” sentencing “full hand” of counsel as does the hearing; investigations indeed, rele- right purpose While the served entirely dissimilar vant for each are not argues in counsel this context subject scope in matter. application Kent, the direc- interrogations signpost right reli- tion of the second to counsel at —that line-ups ance law on enforcement authorities at has not been declared part the old standards —is not so clear. For the most these retroactive.15 appear of does in fact the Juvenile decisions have been so treated because Court did not consider either a the reliance of law enforcement officers practices previously approved the assistance of on be- counsel essential proceeding a impact before decision cause of the of a retroactive States,20 plication in upon jus- Black v. antici- the administration of pated by year a au- tice. But the in v. Escobedo thoritatively Illinois,16 in established Kent. But Miranda v. Arizona17 and certainly more than reliance in fact must to some States v. Wade18 shared required justify purpose sometimes be extent a in nonret- distinctive that the application standard; regu- roactive of a new ultimate value at stake was not the justification larity process protection for reliance lower but the courts privilege against must other influence the decision. interests —the 436, 1602, Crouse, 584, 17. 384 U.S. 86 11. S.Ct. 16 L.Ed. Smith v. U.S. S.Ct. 694, (1966). (1964), applying 2d 10 A.L.R.3d 974 12 L.Ed.2d 1039 Douglas California, 372 U.S. 87 S.Ct. (1963). S.Ct. 9 L.Ed.2d 811 (1967). Walker, 12. Linkletter v. 381 U.S. Stovall, 19. in As the court observed (1965). S.Ct. 298-299, at 1971: in which counsel is ab- cases “[U]nlike 393 U.S. appeal, trial or on it con- sent (1968). fidently be assumed confrontations 19 L.Ed. for identification can be and often have 2d 336 been conducted the absence of counsel scrupulous Jersey, fairness and without 15. See v. New Johnson prejudice to the accused at trial.” L.Ed.2d 882 ; Denno, Stovall U.S.App.D.C. 393, 1967, 18 L.Ed.2d 1199 12 L.Ed. 2d 977 an attor- that the was entitled to appears as a bolt from the new standard regard ney. sky Kent was not “a In this hitherto clear to shatter solid- 25 Indeed, past.” seeming precedent, clear break with the reliance of lower apparent any case upon absence earlier is above re- courts old standards altogether hand, upon point, If, precisely it proach. is not on other the new change in Kent constituted a clear that ear- standard been foreshadowed the law.26 lier would have allowed decisions which paying sensitive a lower attention considered, that to be third factor anticipate law to to trends of the effect on the administration ruling, appli- then latest non-retroactive of a retroactive based the fact that low- cations may encompass standard, raft of new old, clung woodenly er courts Upon occa- miscellaneous considerations. simply eroded standard would “validate seemingly sion Court has footdragging.” this kind of applying shied decisions retroac- past This court tively high proportion did hold hold reasoning Juvenile Court was stock criticism of such jurisdic- hearing to its exclusive waive convictions would be affected.27 tion,22 for the and there was little reason depend upon risk should suspect erosion of this injustice Juvenile Court to convicted to the individual holding But Kent. before decision rather than under discarded standard “old there was established standard” upon of in- the total number cases where approving the of with- justice may waivers is There have occurred. importance of argument. out counsel. The to merit At the core of proceedings to of criminal retroactivity problem, the fairness we must established, per- at least was well federal individual case balance our fear of long courts, mitting this waiver occurred before to stand an erroneous conviction Moreover, against in 1961. this court had held a convic- our reluctance vacate Totalling up may in 1956 counsel was assistance of tion that correct. be juvenile proceedings multiplies merely de- all the individual cases weights termine involvement in unlawful activi- of on each side the scales equal factor, accordingly ties.23 Shioutakon District of v. Colum- should interpretation balancing bia rested not alter exer- the result legislative presumed Congress intent of cise. light reached in of constitutional complicated. problem But is more although principles, “in the statute itself a When decision in criminal law recognizes terms neither withholds retroactive, consequence is not 24 such assistance.” free all whose convictions are affected. Normally hearings or will new new trials Faced a similar silence vis-a-vis retro- held in or all be some cases. part the assistance in that of of counsel high application would a waivers, active affect the statute the Ju- convictions, pro- proportion might new suspected venile Court well have (dis 258-259, 26. 89 1048 id. 21. v. Desist United Cf. Harlan, J.). senting opinion (1969) 22 89 S.Ct. L.Ed.2d 248 opinion (dissenting Fortas, J.). Woods, v. 392 27. DeStefano U.S.App. L.Ed.2d 20 v. Wilhite Denno, (1968) ; Stovall 293, L.Ed.2d Columbia, Shioutakon v. District Jersey, (1967) ; v. New Johnson 371, 236 F.2d 719, 731, L.R.R.2d ; ex v. United States Tehan 406, 419, Shott, rel. Id. at F.2d at 15 L.Ed.2d States, 394 U.S. 25. Desist v. United hearing to may a determine ceedings waiver new overload thus necessitated original decision the Ju- outstrip judicial resources. whether facilities jurisdiction its venile waive Court informed has not The Government most correct. Since —and many how individuals court in this case similarly now over others situated —is retroactive Kent make a decision age, proceedings the new would although affect, information such would place in the have to take District Court. argu- when relevance is of obvious States,30 In Gov- Haziel raised, it as has ment is challenge by youth a give volved a to waiver ernment, Kent “to acknowledged: disrup- still significantly less than we might effect jus- administration on the tive effect The Juvenile Court well decide of assistance In the absence tice.” hearing that a date at this late * * * Government, estimate we must termine waiver whether likely impact of such de- ourselves proper would have been more two than infrequency of waiv- The relative cision. years ago is so artificial as to be mean- Dis- to the ers from the Juvenile ingless. Certainly gainsay we cannot the decision even before trict Court difficulty what improbable vast it Kent renders strategy might habilitative then have young with- waived offenders numbers worked, and whether resources were by coun- representation out implement any then available to such custody.28 sel are still strategy. evaluating admin- effect on the eight The waiver in this case occurred justice of decision to istration years ago, newa however, retroactively, we must exponentially would be more artificial waivers number of consider affected, important, than in however, Even more Haziel. availability ade- of an but remedy is the fact that no remedy those quate date for at this late now available if the decision to waive latter improperly find the waived. We jurisdiction substantively in 1961 was case. in this decisive consideration appellant correct. The is now He ret- the is a new trial When is, simple fact, longer juvenile. in standard, new of a roactive nonpunitive Even if rehabilitation the may be state individual and the both the juvenile process would been the have disappearance handicapped of wit- the proper path society long- can no time. evidence over and other nesses then, er rightly wrong- offer what was must be faced. these difficulties Often ly, denied.31 magnitude is a valid considera- But their whether to make tion in appellant presents short, decision retroactive.29 claim forceful that absence of coun sel and a time of his waiv passage of time In this case the seriously er merely must remedy our appropriate undermine confi not made an reliability process dence in the impracticable, but or even inconvenient that led to his trial adult an court. impossible. the waiver this case greater Claims of no appellant force have improper en- led was because the Supreme Court to other joyed of counsel the assistance neither right with the remedy to counsel retro- hearing, nor a the correct would 298, According the Annual Statistical Reports the Juvenile Court of Columbia, there were 497 District ex Teban United States rel. Cf. juveniles years waived between fiscal Shott, average year. 1966, an 1960 and of 71 a Walker, Linkletter 5010(b) actively, might (1964) hoped in circumstances where that even he have greater rely could, however, He courts had cause for. lower have received a regular up we can discov- the old standard than sentence of to 45 for the reluctantly, pled guilty. But we conclude er here. offenses to which he It is according impossibility appellant true that not that will today remedy opportunity appellant adequate good com- earn off for time pels not be decision that Kent should behavior under sentence. his Youth Act good, retroactively. applied But if his behavior is in fact he eligible for release under 18 U.S.C. § II his appellant that also contends In these circumstances find no rea- we guilty

plea invalid son to vacate the This is not conviction. fully judge inform him Pilkington failed to trial case such as v. United argues consequences. possible He possible its States where un- sentence although judge personally deter- der that the Youth Corrections Act of which could he he understood mined the defendant was exceeded not informed pe- imprisonment to either a substantial be sentenced authorized period of imprisonment plicable to a riod of criminal statute. Corrections under the Youth confinement ap Nor do we conclude that the warned, Act, appellant nor was not pellant any meaningful inwas sense de aware, a sentence under was he his nied of allocution under Rule could extend for Youth Act Corrections ignorance range possible long imprisonment period of as the of sentences under the Youth Corrections otherwise authorized law. guilty plea exposed him, Act to which Although assuming Court has such claim can duty recently re-emphasized properly be raised under 28 U.S.C. § judge under trial Rule under 2255.35 person to determine Constitution33 knowing plea guilty ally that a Ill intelligent, agree cannot that the trial we appellant’s final contention well be case. erred prison is that his confinement to a used true, argues, that he rea as the primarily for the incarceration of adult sonably a sentence under assumed that provision offenders violates the of 18 something called the Youth Corrections “youth offend- substantially Act would extend be ers [sentenced under Youth Correc- yond youth. period of his But the segregated tions shall be from Act] oth- guarantee appellant had that he would * * er offenders Whatever the Act; under be sentenced the trial contention, merit his claim is not option, appellant had the as the cognizable under Section 2255. knew, sentencing straight him to a As this court held in Freeman Unit- imprisonment. term of The States, ed surprise, received however much to years Although sentence of 20 under 18 U.S.C. § a motion under Section 5010(c) may rather than the sentence be utilized to attack a sen- limited to six under tence which is “in excess of the maxi- McCarthy States, vacating (5tli 32. See 1964) ; v. United 335 F.2d 101 Cir. Harper 22 L.Ed.2d 418 v. United F.2d (10th 1966). Cir. Boykin Alabama, 33. See 395 U.S. See Andrews v. United L.Ed.2d (4th 1963) ; (1963) ; 315 F.2d 204 Cir. see also Hill v. United Marvel v. United law,” by (1969) points mum authorized this refers 2d 248 out retro- imposed, activity may to the sentence as as dis- be withheld of the being justice tinct from the sentence as it effect on the administration of appellant’s executed. sentence is of new stand being contrary apparently give ards. I executed a manner am readier * * * disruptive credence to law he to the likelihood seek habeas of a corpus effect on the district of the administration confine- though quantified even ment. not or Section 2255 is it has not broad enough subject made the of formal demonstrat to reach matters ion.1 the execution of sentence.36

Affirmed. apparently also readier enter- amI retroactivity on the ba-

tain a denial possible ef- of a combination of the sis LEVENTHAL, Judge (concur- Circuit justice, and the fect administration of on ring). widespread practice, without fact of a Judge parts I concur in II and III of quiring of “reli- into the exact nature opinion. part I, Bazelon’s As to I concur old standards. Desist teaches ance” on concluding result and dis- by au- that “reliance law enforcement cussion that to counsel and on old is a fac- thorities standards” proceedings at waiver establish- Supreme tor for consideration. by subsequent ed decisions is not retro- far Court decisions thus involved actively applicable to this 1961 waiver on reliance authoritative determination the Juvenile Court. In- precedents in constitutional law. preclude validation of the waiver would arises, question whether such authorita- any appropriate remedy in furtherance necessary appellate are tive objective of the rehabilita- I establish the factor of “reliance.” predicate appellant’s tion is the would think not. to me that seems claim. against powerful considerations retroac- quality view of the dominant of this (a) up- tivity exist decision whenever a aspect case, I have not undertaken widespread practice sets had array weighing various evolved, in some matter administra- may require factors that careful calibra- procedure, judges, tion and action of involving tion in some other case the ret- officials, or or for that of- matter roactive issue. ficials of the executive branch concerned However, my more limited justice, administration of proach requires to the issue some deline- (b) practice, though expressly ation my of the matters where view authorized statute authoritative Judge different Bazelon’s. decision, was within a zone reasonable- judged difference between us seems in standards under- ness part degree standing matter of and burden of of the time. Whether the es- persuasion. apparently I am prevailing readier tablished was ex- say than he to plicitly that new standards in the sanctioned authoritative rul- law should ing be denied retroactive effect. seems to me to be relevant but far opinion in obviously Desist v. United from decisive.2 It would ham- 244, 249, string, further, 22 L.Ed. adminis- rather than the U.S.App.D.C. 15, 16-17, recently 36. I note that this court refrained 353-354 from full even where an es- contrary tablished was to the ex- Compare press pronouncement Desist v. United Federal of the Rules 244, 251, 22 L. of Criminal See Gaither v. Procedure. U.S.App.D.C. 154, Ed.2d 248 “We have no cause to (April 24, 1969) (On doubt the number of state convic F.2d 1061 Peti- pr6-Kata Rehearing). tions obtained reliance on tions for is substantial.” retroactivity upon impact practices the justice the of and the to confine tration Halliday justice.” did ac- administration of concerned to officials those of the authoritatively “justified” reli- not seek to establish tions that have except ref- appellate on the old standard prescribed ance decision. corollary practices the fact to these offi- erence to failure that the jus- apply develop terms of the Rules was wide- in order to administer cials spread.3 judgments dispositions tice, and the and reasonably was considered made in what approach of the Court in Juvenile interest, public furtherance handling proceedings without recognition accorded a as de should be hearings prior and to Black counsel reality facto that survives even States,4 sufficiently was within jure face of de invalidation decision. the zone of reasonableness in the climate denying pre- the time warrant full retro- established of an The existence activity as to to Black and Kent v. United both vailing practice revelance thought joined Black, I States.5 and would the effect important it to sustain of coun- administration on the have sel there indicated. But I cannot blink the “re- of whether assessment as to the fact there was another side to invoked. be liance” factor pre-1965 approach the issue. This was States, 394 U.S. Halliday v. United In intransigent rigid foot-dragging dusty adherence to a rule that had been apply ret- Court declined palpably changed eroded time con- McCarthy ruling roactively v. Unit- its ditions. support had substantial in a ed ruling decision as then recent McCarthy in Wilhite.6 This was not direct authori- Rules of the Federal Rule 11 volved precedent, tative already I but as Procedure, precludes a Criminal noted, regard I do not this factor as crit- accepting plea judge district ical. addressing guilty first “without personally fendant Underlying my premise that the Juve- voluntarily plea un- with [was] procedure pre-Black nile Court’s charge.” derstanding of the nature reasonableness within then zone of failure of the district It held that the absence consideration that comply the rule proceeding the waiver did not counsel at guilty plea set aside and integrity fact-find- undermine the permitted plead In anew. defendant ing process. determination The waiver retroactivity, Halliday, denying impor- insignificant; it was not was an language in to the referred Stovall tant fork in But it was not the road. S.Ct., Denno, at disposition. The final determination or weighing “prior requiring possibility that the absence justified reliance the old standard injustice by sulted Juvenile S.Ct., See at 1499: McCarthy Rule we decline to McCarthy prac- we noted that retroactively. only IVe hold that those previ- requiring tice we were had been guilty pleas were defendants whose ac- Circuit; ously one followed cepted April 2, 1969, are entitled that over of all convictions in plead pleas 85% anew if their were ac- pursuant federal courts are obtained compliance cepted without full guilty pleas; prior to Rule and that Rule 11. amendment, all dis- ll’s recent 355 F.2d 104 judges personally questioned de- trict accepting guilty their fendants before pleas. Thus, general view of 5. 383U.S. McCarthy, holding in view of large constitutionally number of valid U.S.App. have been convictions ob- 6. Wilhite v. United compliance full tained without 281 F.2d 642 trying to reach the who Court light of sound he deemed result weigh does not appraisal file heavy to offset as balance so generated by be that would mischief procedure erasing product past and can in the reasonable

seemed practicably reconstituted

not now determinations set mold

today. misunderstanding I add To avoid against retroactivity

my are comments retroactivity kind intended for the bar, by sought motion to case at Black) (or at in a collateral statutory corpus or its

tack on habeas judg

equivalent, final before 1965.

ments that became specifically provided Juve

Black we proceedings for cases

nile Court waiver

where have not “convictions become final.” opens

The kind of

up judgments final to collateral attack is judgments

properly avoided the zone of reasonableness

were within time, though the standards of explicitly validated authoritative

appellate precedent. decisional Petitioner, BOORDA,

Simon CONTROL ACTIVITIES

SUBVERSIVE Respondent. BOARD, Wayne Dallas ARCHULETA

Robert Petitioners, Holley, CONTROL ACTIVITIES

SUBVERSIVE Respondent. BOARD, 22514, 22522.

Nos. Appeals States Circuit. Columbia District Sept.

Argued 12, 1969. Dec.

Decided April

Certiorari Denied

See 90 S.Ct. 1365. at 108. F.2d

Case Details

Case Name: Linton K. Mordecai, Jr. v. United States

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

Date Published: Mar 9, 1970

Citation: 421 F.2d 1133

Docket Number: 21943_1

Court Abbreviation: D.C. Cir.