UNITED STATES of America v. Howard D. BROWN, Appellant.
No. 23022.
United States Court of Appeals, District of Columbia Circuit.
Argued March 6, 1970. Decided June 3, 1970.
B. With respect to the request for notices of cancellation, we are more reluctant to equate a tentative and equivocal delay with an outright denial of the request. The Secretary has made a few feeble gestures in the direction of compliance with the request, and further action is apparently under consideration. But the statutory scheme of the
At some point administrative delay amounts to a refusal to act, with sufficient finality and ripeness to permit judicial review. The present record does not permit us to determine whether that point has been reached here. On remand, the Secretary should either decide on the record whether to issue the remaining requested cancellation notices, or explain the reasons for deferring the decision still further. In light of that record, and in view of his disposition of the request for interim relief, the court will be in a better position to evaluate the impact of any further delay and decide whether judicial relief is appropriate.
Remanded for further proceedings in accordance with this opinion.
Mr. John M. Cleary, Boston, Mass. (appointed by this court), for appellant.
Mr. James L. Lyons, Asst. U.S. Atty., with whom Messrs. Thomas A. Flannery, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellees. Mr. Roger E. Zuckerman, Asst. U.S. Atty., also entered an appearance for appellee.
Before FAHY, Senior Circuit Judge, and WRIGHT and ROBB, Circuit Judges.
Appellant was convicted of forgery, uttering and interstate transportation of forged securities; he was sentenced to terms of imprisonment of ten years on each count, the sentences to run concurrently. His primary point on appeal is that the trial judge accepted his counsel‘s stipulation that he had committed the acts charged in the indict
On March 18, 1970, this court remanded the case to the District Court to determine whether the waiver of appellant‘s right to a trial on all issues except insanity “was in fact made by the appellant. Compare Brookhart v. Janis, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314 (1966); McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).” The three cases cited in this court‘s remand order make clear that a plea of guilty in a criminal case is a waiver of three important constitutional rights: the Fifth Amendment right against self-incrimination, the right to trial by jury, and the right to confront one‘s accusers. These cases also make clear that the trial court, state or federal, has the responsibility to make certain that any such waiver complies with the requirement of Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938), as “an intentional relinquishment or abandonment of a known right or privilege.”
As to federal prosecutions,
“* * * Our holding that a defendant whose plea has been accepted in violation of
Rule 11 should be afforded the opportunity to plead anew not only will insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate. It is, therefore, not too much to require that, before sentencing defendants to years of imprisonment, district judges take the few minutes necessary to inform them of their rights and to determine whether they understand the action they are taking.”
394 U.S. at 472, 89 S.Ct. at 1174.
This appeal does not involve a plea of guilty as such. It does involve a stipulation offered by counsel and
In fact, in this case the need for judicial intervention was greater than in the normal plea of guilty because here the court had before it a defendant admittedly suffering from a mental disorder. Both appellant‘s and the Government‘s psychiatrists so testified, but only appellant‘s psychiatric witness stated that his acts were a product of his disease. Thus when, as here, defense counsel is placed in the position of stipulating, in one breath, that the defendant freely admits committing all the acts charged, and then in the same breath contending that the same defendant committed those same acts while suffering from a mental disease, a searching judicial inquiry is required to determine whether the defendant‘s waiver of trial by jury on acts charged in the indictment was voluntary and with understanding of its consequences. We hold that where a defendant in a criminal case seeks to waive trial on all issues except insanity the trial judge should address the defendant personally in determining whether the waiver is made voluntarily with understanding of the consequences of his act.4
Reversed.
ROBB, Circuit Judge (dissenting).
Counsel for the appellant argued in this court that the district judge committed error by accepting the stipulation of the appellant‘s counsel at trial, that the appellant had committed the acts charged in the indictment, without first addressing the appellant personally. Over my dissent this court remanded the case to the district court to determine whether the “appellant himself, as distinguished from his counsel, waived his right to a trial on all issues” except the issue of insanity. In response to that remand District Judge Gesell has filed a memorandum in which he states in part:
“Defendant was indicted for forgery and uttering and found guilty by a jury. At the trial, defendant‘s counsel relied solely on the defense of insanity. The facts on the merits were stipulated after defense counsel had advised the jury on opening that the defendant admitted the facts. It has apparently escaped the attention of the Court of Appeals that when a written stipulation covering the facts was offered the following appears in the transcript:
“‘THE COURT: The stipulation is satisfactory to the defendant, is it not?
“‘TRIAL COUNSEL: Yes, Your Honor, we have agreed to it.’
“Counsel for defendant, having thus twice stated in open court in the presence of the defendant that the defendant conceded the facts, there was not then and there cannot now be any question in this Court‘s mind but that the statements of counsel were honestly made and correct. Daily a United States District Court proceeds on the assumption, proven reliable by long experience, that representations made in open court by trial counsel as officers of the Court are candid, truthful and may be accepted at face value. Were it otherwise, trials would bog down and the simplest issue of agreed fact could become the subject of repeated colloquy out of the jury‘s presence. It would make some trials a complete farce.
“There was no need for the Court, given the assurances that this Court received, to interrogate the defendant to find out whether or not his counsel was making a truthful statement to the Court. As the Court was then aware, the stipulation was carefully prepared in written form; it was entered into after trial counsel had fully reviewed the underlying FBI report and had conferred frequently with the defendant. In accordance with the common practice in this jurisdiction, trial counsel kept in his personal files written authority from the defendant to enter into the stipulation. Trial counsel‘s file contains the following, written in the handwriting of the defendant on the stipulation:
“‘Mr. O‘Donnell, I authorize you to stipulate as much of the facts contained in this document as find necessary in order to avoid bringing in witnesses. Howard Davis Brown, Jr.’
“When this trial was over, the defendant, in writing, expressed appreciation for the humane consideration of the Court and stated he was deeply gratified to his attorney ‘who must be praised for handling my case.’ The Court, defense counsel, probation authorities, prison authorities and the U.S. Attorney spent substantial time out of court attempting to deal with this defendant‘s rehabilitation problems. From the outset of the case defendant acknowledged his guilt and earnestly sought medical assistance which his unfortunate life history so clearly indicates he needs. The only tactic available to defense counsel was the one he adopted. Defendant, facing his seventh forgery conviction, was entirely consistent in permitting his counsel to stipulate the facts. Any chance he had on the insanity issue before the jury would have been greatly minimized if all of the sorry details of his course of conduct during the forgeries were brought forth through the mouths of the unfortunate victims.”
For the reasons stated in the memorandum of the district judge I would affirm the appellant‘s conviction. To me it is incredible that the appellant did not fully approve the stipulation offered by his counsel in his presence; and his approval was wise. Reversal of the conviction on a contrary theory is in my judgment an excursion into fantasy. It is a ruling that does justice neither to the appellant nor to the public.
I cannot agree that “but for the reservation of the mental issue this was a plea of guilty.” There was no plea of guilty; there was a plea of not guilty supported by a defense of insanity. Yet the majority opinion, while disclaiming any intention to do so, invokes the provisions of
The majority says its ruling will apply only in the circumstances of this case. Yet if the ruling has any validity at all there is no logical reason why it should be limited to those circumstances. Logically, it should apply to any stipulation as to a vital element of the prosecution‘s case, that would otherwise be put in issue. I predict moreover that it will not be long before attempts are made to extend the holding to all such vital or important stipulations. Doctrines such as this have a way of extending their coverage, like oil on the water. The result will be further complications and confusions in the trial of criminal cases.
I dissent.
UNITED STATES of America v. Victor J. ORSINGER, Appellant.
No. 22750.
United States Court of Appeals, District of Columbia Circuit.
Argued March 4, 1970. Decided June 3, 1970. Petition for Rehearing Denied July 1, 1970.
Notes
(Emphasis added.)“* * * The court may refuse to accept a plea of guilty, and shall not accept such 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. * * *”
As the citations in the order of remand make clear, this court was not concerned about trial counsel‘s representation of the defendant. Indeed our study of the record indicates that trial counsel‘s representation was of a high order of excellence. This court was concerned whether, in the circumstances of this case, the prophylactic procedure of“The real vice in this remand is that appellate procedures permit an attorney, who is wholly unfamiliar with the trial, to make representations and suggestions on appeal without having ascertained the basic facts as to how the proceeding was handled. * * * It will be increasingly difficult to call upon the bar to represent indigent defendants in the United States District Court if their professional conduct can be impugned [sic] by appellate counsel who do not even take the slightest precautions to verify in advance whether or not grounds intimated on appeal from a sterile record are in fact grounds that have any validity in fact.”