*1 KILEY, Before SWYGERT and KER- Judges. NER, Circuit SWYGERT, Circuit presents This case the issue whether federal district court has the duty regarding to conduct a validity of constitutional nar- cotics conviction which a defendant seeks to exclude from the record for the sentencing purposes of a second provided under 21 offender as §
The instant suit commenced
of a
on No
return
one-count indictment
14, 1967, charging
vember
the defend
Martinez,
faсilitating
Carlos
transportation
approximately
grams
of heroin in violation of 21
was ar
raigned
December
charges
entered to the
time,
At that
indictment.
the Gov
ernment, pursuant
to 26 U.S.C. §
7237(c) (2),1
a certified
introduсed
provides
part:
attorney
1. Section
whether
(but
Procedure. —After
the conviction is the offender’s first or a
pronouncement
sentence)
offense.
not a first
penalty
provided
offense,
for whiсh is
shall
setting
of this
file
an information
(h)
of section 2
The offender
Drugs Import
Act,
Export
opportunity
open
Narcotic
have
af-
amended,
deny
or such Act of
firm or
identical with
person previously
shall be аdvised
If he
*2
Judge,
the
for
of
District
previous conviction
of
ar-
Florida for
of
District
Southern
narcot
a violation of
raignment
information
on a two-count
recited
document
laws. This
ics
charged
selling, dispens-
with
plea
that
him
on the defendant’s
drug,
distributing
ing
a narcotic
and
guilty
the United
1956 before
of
possessing
purchasing
and
and
the
two-year
for
Southern
Court
District
drug
of
narcotic
violation
sen
the
Florida and
District of
4704(a). Upon thе court’s
and
by
§§
Additional
the court.
tence
ly,
the defendant
determination that
its face
indicated
document
this
en-
funds to retain
had
defendant
the
that
the fact
appointing
for
tered an order
counsel
by
the Florida
represented
him.
of introduction
a result
As
conviction, the district
this
of
affidavit,
by
defendant,
states
The
impose judge
discretion to
was
guilty of the Florida
that he
charge, although
not
was
de
five-year
and
minimum sentence
the
being
addict-
he admits
given
manda
minimum
the
fendant was
during
pe-
of
this
ed to
use
narcotics
the
parole.2
ten-year
tory
sentence
Span-
riod.
that as
He further avers
to strike from
moved
The defendant
the as-
ish-speaking citizen he
his
interpreter
the record the
the
of an
at
sistance
plea
ground
his
the
conviction on
proceedings.
this
As a result of
Florida
involuntarily
violation
entered in
spokе
was
language barrier,
the defendant
the
the fifth amendment.
court-appointed
his
affidavit
filed his
very
the
motion
defendant
spoke
interpreter who
an
re-
defendant also
According
and
brief.
poor Sрanish.
to the defend-
transcript of
quested
obtain
explain
leave
lawyer
did not
law
his
dis-
the Florida
before
or
him of
him advise
relevant
other evidence
lawyer
trict court and
jury
Initially, his
advised
trial.
voluntariness
guilty,
to a determination
plead
the
following
not
but
defendant
plea.
on the volun-
brief conference with some
sought.
question
On Feb-
lawyer
tariness
ruary
individual,
returned
other
court heard
represented
that if
and
argument
defend-
refused the
guilty,
oral
plead
he
receive
he would
would
request
to strike the
ant’s
addiction.
treatment
for his narcotic
ground that
tion from
Although
his inno-
he still maintains
judge
au-
not
had the
the
thority
believe he
did
cence,
he
the defendant asserts
jurisdiction
grant
the mo-
or
pleaded guilty solely
he
un-
because was
ruling of
It
this
tion.
dergoing
upon appeal.
before us
According
court which is
promised
treatment.
judgе
affidavit,
the trial
uncontroverted
From
concerning
prom-
question
not
him
affidavit and
representations
him
appears
ises or
exchange
made to
proceedings, it
that on
appeared
tо one
as
the defendant
March
Choate,
Following
count
the information.
Emett C.
before the Honorable
post-
identity,
ten-year
is re-
sentence
shall be
minimum
sentence
denies
quired
poned
trial
174:
time
such
jury
оr
For a second
issue of
on the sole
previ-
(as
identity
section 7237
determined under
with the
fender’s
(c)
ously
Revenue Code
found
the Internal
the offender
imprisoned
1954),
person previously
jury
the offender
forty
acknowledges
convicted,
or more than
not
less than ten
that he
or if lie
may
years and,
addition,
not
be fined
person,
sentenced
he shall
is such
$20,000.
prescribed
more than
or
(li)
such Act of
section
may
be.
as the case
imposition
could
have been
but for
two-year sentence,
the defendant
case,
Lexington, Kentucky,
and the instant
transported to
in vio-
hospitalization
sentence.
to have
obtained
and to serve his
constitu-
ation
a fundamental federal
grounded
appellant’s
right.
tional
premise
*3
prior
to
position
valid
conviction cannot
used
21 U. Burgett
inapplicable
enhance a sentenсe
is
to the
rationale
position the
S.C.
To
instant case
because
process
appellant
invalidity
on
clause
Burgett appeared
relies
due
in
discussed
recently
whereas, here,
reсord,
fifth amendment
face
terpreted by
Supreme
Bur-
Court in
appears.
no such
This
defect
gett
258,
Texas,
109,
389
88
v.
U.S.
S.Ct.
admits
contention that
^defendant’s
(1967).
19
power
L.Ed.2d 319
that case
the district
to
court
have the
by jury
a
of as-
wаs convicted
strike from the record a
sault
in
prior
intent
murder
purposes
to commit
invalid
sentencing
conviction for
state
A Texas
court trial.
habitual
a second offender. The Gov-
prosecution
fender
statute allowed the
ernment
admits that if absence
coun-
introduce
prior
evidence of the
proceeding
sel at the
were mani-
Among
prior felony
four
record,
fest
the dis-
prior
these
pro-
was a
Tennes-
trict court could strike the
ceeding
see
present
conviction which on its face raised
from the
record. We
presumption
accept
defendant had
are
unable
the Government’s
right
proffered
invalidity
distinction between
invalidity
thus the
conviction was void
on the face and latent
as a
light
Wainwright,
qualification
pow-
U.S.
Gideon v.
372
on the district court’s
335,
792,
(1963).
83
ton United v. untary. ex rel. Collins denied, Cir.1959), cert. (E.D.Pa. Maroney, F.Supp. sup L.Ed.2d 1968). entry of position federal cоurts port its under the influence of narcotics while empowered convic to strike potential- light in this case is which is ly case the Burton We view tions. “entry error, since more substantial Supreme deci Court’s demands more necessarily of stringent even limited sion safeguards than are our con convictions. It to valid rel. ex confessions." the district court clusion that Gilligan, 961, 966 363 F.2d Codarre v. to ascertain conduct reasons, *4 Cir.1966). (2d sаme validity For the con allegation attempts which the Government viction promised treatment for his addiction purpose of enhanc for the to introduce raises considerations. ing punishment. hearing to for a case is remanded ar alternative The Government’s validity determine the defendant’s gument defendant’s affidavit prior conviction. sufficient failed to raise detailed facts require court to hold KERNER, Circuit hearing the constitution to determine ality prior conviction. my opinion by I in the fine concur principally on Government Swygert. I to ex- wish Brother States, 368 Machibroda United regret my press failure over law’s 7 L.Ed.2d remedy for the situa- afford us a better F.2d Oliver v. United tion us. posi (9th Cir.1968) support its alleged defect in a Where the allegations tion that apparent conviction is vague conclusory. Our exami were transcript, there and/or of Machibroda indicates that nation having problem is no the local to a hear defendant here entitled court determine the ing. con both cases the defendant’s here, where, Howevеr, plea had tention was that his alleged appear on the defect does promise. hearing coerced transcript or face of the record sought in each case on the basis of where, here, also as affida defendant’s affidavit alone. The ordinary destroyed course in the detail vit here raises facts sufficient business, problem one becomes require determine wheth evidentiary requires hear- which er the “induced regretta- ing. It is it then that becomes ** * promises deprive it of which apparently ble that power we voluntary act.” Mach the character the case back transfer ibroda v. United the trial was held which 7 L.Ed.2d hearing. especially This is have such a specificity re find that the We true must be here where witnesses quirements like of the Oliver case are transported Chicago from Flоrida. bymet wise Martinez affidavit. suggestion that Mar- proceed tinez in coram nobis that at The defendant has impractical mul- he was both because would time he entered his tiply because an heroin and was the influence of digent symptoms. required to be af- would not be from withdrawal forded counsel in been held On similar facts it has