*1 case, California present applying In the govern involving
law to cause of action upon
fire land as to which California main jurisdiction further
tains concurrent would as well as proprietary
the state’s interests having claim fil
its varied interests in State,
ing applied. statutes Roberts v. See 844, (1974). Cal.App.3d Cal.Rptr. totally
This accomplished would be without
frustrating any policy program. federal
Furthermore, no uniform federal need for a
rule is indicated this case as in Clearfield States,
Trust Co. v.
U.S.
appro
priate state law is neither “aberrational”
nor “hostile” to Unit federal interests. See Co.,
ed States v. Little Lake Misere Land
supra, U.S. at 2398.
Adding these considerations to a balance
which, above, already as discussed
weighted borrowing law favor of state
leads us to the conclusion that both the
suppression filing costs statute and claim adopted appropri
statutes should be as the
ate rules of decision in this case. As the government comply
federal failed filing requirements,
the claim dismissal was
proper.
AFFIRMED. America,
UNITED STATES
Plaintiff-Appellee, DOE, Defendant-Appellant.
John
No. 79-1379. Appeals,
United States Court of
Ninth Circuit.
Argued Sept. and Submitted 1980.
Decided Nov. 1980.
As Jan. Corrected 1981.
As April Corrected *2 Bendich, Seattle, Wash., for
Judith E. defendant-appellant. conviction, Diskin, Seattle, ceeding. We affirm the but re- Atty.,
Jerry Asst. U. S. Wash., resentencing. plaintiff-appellee. mand for Background
I. Factual
December
Doe was
On
aboard
*3
Seoul, Korea,
flight
an airline
from
to Seat-
tle, Washington.
accompanied by
He was
FLETCHER,
Before
Circuit
SNEED
drinking
Richard
Both had been
dur-
Roe.2
JAMESON,*
Judges,
Judge.
District
ing
flight.
flight Roe
the
While in
offered
bag
a
carry
serviceman
to
a duffel
$500
JAMESON,
Judge:
District
through customs. This offer was overheard
Doe,1 defendant-appellant, John
passenger.
another
The serviceman ac-
possession
convicted of
of heroin with in
cepted
upon landing in
the offer and
Seat-
tent
importation
to distribute and
of heroin.
passed through
tle
a United States Customs
primarily
appeal
The issues on this
relate
to
checkpoint
bag.
Customs officers
pretrial
alleged
respect
errors with
to the
inflight
had
of the
conversa-
been informed
suppression hearing
sentencing pro-
tion, however,
and the
the serviceman was
*
Jameson,
The Honorable William
Senior
J.
about
which
been set
conviction
[a]
[had]
Judge
Act;
pursuant
United States District
Montana, sitting by designation.
for the District of
aside”
to the Youth Corrections
X,
Boy
United States v. Indian
questioning place. took agreed Attorney coop- Sim. Doe Drug Enforcement Administration investigation erate the DEA’s *4 (DEA) primary was notified and took re- importation drugs scheme and to take the subsequent sponsibility investiga- for the up delivery. to San Francisco to set their Special Agent Boggs tion. When of the sup- Government witnesses testified at the DEA was custody took of Doe he informed pression hearing attempted that Doe ne- to by the Customs officers that Doe had been release, gotiate Roe’simmediate but did not interjected rights. advised of his Doe that ask for consideration of his own case. he attorney. Boggs wanted an told Doe he This was denied Doe who now contends then, question did not want to him to “sit part alleged agreement that as a of his tight get things straightened until we some Government would recommend a reduced out,” ques- and left the room. Doe was not sentence for him. request tioned. The for counsel was re- brought Doe was before a United States peated. Magistrate where he right waived his to an thereafter, Shortly Special Agent Snyder attorney, cooper- and indicated a desire to DEA, again advising after Doe of his ate with the authorities. He was released rights, constitutional asked Doe whether he custody agents to the of DEA and taken to willing cooperate was to in the DEA’s in- a motel room questioned where he was and vestigation smuggling drug scheme. plans delivery for of the heroin to the in- Doe did not demand to see an or recipients tended in California were dis- Rather, right exercise his to remain silent. story apparently changed cussed. While his before, prison stated that he had been in retelling, some in the it is admitted that he cooperation nothing, that meant and that cooperated respects. with the DEA in all nothing agent there was could do for plans to carry delivery out a controlled questioning him. No was carried out at agents aborted when became con- time, transported and Doe was to the cerned about the safety operation. Port of Seattle Police Office. Proceedings II. in District Court Approximately one-half hour later Doe In an indictment January returned on asked to talk to brought Roe. Roe was to charged Doe and Roe were with con- Doe and the two were allowed to confer spiring 841(a) to violate 21 U.S.C. § agents’ hearing. within the agents tes- possessing heroin with intent distribute suppression hearing tified at the that after (Count I), possession of heroin with intent Roe, talking agents Doe turned to the (Count II), importing to distribute and her- and stated that the heroin was his. Doe (Count III). oin making agents denied this statement. The (1) pretrial motions to dismiss advised Doe Doe filed requested that since he had an attorney, questioning no comply could occur until the indictment for failure to with a present. or, alternative, one was expressed plea bargain, Doe then in the an enforce cooperating (2) interest in in the DEA’s plea bargain; suppress investi- state- gation, waived his attorney, to an and agents airport; ments made to DEA at the Arizona, 3. Miranda v. (3) Alleged Agreement defendants’ Plea to sever the trials. Fol- iy. lowing evidentiary hearing February Doe that plea contends there was a motions were the three denied. e., agreement, exchange “that in i. trial, prior On March the court cooperation, charges dropped would be arguments regarding heard additional against Roe4 and the Government would alleged plea bargain and Doe’s motion to recommend sentence for Doe.”5 a reduced statements, rejected suppress offers of The Government contends that there was proof, again Doe’smotions. denied Af- plea agreement, calling no attention to case, ter the Government rested its the mo- testimony Assistant United States tion for At severance renewed. that Attorney sug- Doe “never once even that
time Doe
se
pro
made a
statement
case,
gested
anything
be done for his
obligation”
court that he had
“moral
always it was
case.”
Roe’s
testify
Roe,
as a
witness
defense of
support
contention
that there
denying
the court’s order
severance
plea agreement,
was a
attempted
Doe
“put[s]
position
forcing
me in the
tome
testimony
introduce the
of his brother rela-
stand,
take the
have a
miscarriage
tive to a conversation between
justice
the brother
happening here.” The
motion
Agent
Boggs.
proof,
In ah offer of
again
sever was
denied. Doe was called
stated,
alia,
counsel
testify by
for Roe.
inter
that the brother
fully
in-
testify
“Agent Boggs
criminated himself and testified that
would
Roe
had indi-
*5
nothing
knew
of the heroin. Doe was ac-
cooperation they
cated that with John Doe’s
quitted on
I and found guilty
Count
on
working
agreement
were
an
out
with re-
acquitted
Counts II and III. Roe was
on all gard
disposition
against
of the case
counts.
Roe,
they
Mr.
a
recommending
and
regard
reduced
sentence
John Doe.”
11,
At
sentencing hearing
the
on March
rejected
The court
the
proof
offer of
on the
1979, the
request
court refused a
of the
grounds
hearsay
that
it was inadmissible
prosecuting attorney to address the court.
and that Federal Rule of Criminal Proce-
imposed
The court
consecutive sentences of
11(e)(1) contemplates
dure
only
that
eight years
II
years
on Count
and seven
government attorneys
plea
could enter into
Count III.
bargains.6
Appeal
III. Contentions on
bemay
appellant’s
there
merit in
appeal
(1)
Doe contends on
that
a
While
new
testimony
contention that
of Doe’s
evidentiary
required
hearing
(a)
because
brother
exception
was admissible as an
“improperly
trial court
excluded testi-
the hearsay rule under Federal
Rule
mony
plea
relevant to the substance of the
801(d)(2XD)7
Evidence
agreement”,
and that
the trial
(b) he
and
was denied counsel
during plea negotiations; (2)
11(e)(1)
the trial
court
read Fed.R.Crim.P.
too nar-
abused
refusing
rowly,
agree
its discretion in
appellant
a sever-
we cannot
his
ance;
(3)
proc-
Doe was denied his
the exclusion
prejudiced
due
he was
right
ess
sentencing hearing.
to a fair
testimony.
brother’s
recognizes
4.
acting pro may engage
that since Roe was found not
when
se
in discus-
guilty
counts,
aspect
alleged
on all
reaching
agree-
sions with a view toward
agreement is moot.
ment. ...
apparently
5. There no contention that the
801(d)(2)(D)provides:
7. Fed.R.Evid.
agreement
Government and Doe reached an
hearsay
A statement
if
is not
.. .
state-
[t]he
particular
that a
sentence would be recom-
against party
isment
a
a
offered
and is ...
plead
mended or that Doe ever offered to
agent
concerning
statement
his
or servant
guilty.
scope
agency
a matter within the
of his
employment,
during the
made
existence
11(e)(1)
pertinent part:
6. Rule
in
reads
relationship....
government
and attorney for the defendant or the defendant
Right
that his brother’s
to Counsel
Appellant
Y. The
testimony would have shown that he was
Appellant contends that
was de
plea
engaged
negotiations
prived
right
of his Sixth
Amendment
accordingly were
statements
inadmissible
when
the Government elicited ad
11(e)(6),
pro
under
which
Fed.R.Crim.P.
missions from him
his repeated
after
re
vides that evidence of “statements made
quests for
again
counsel and
when he
with,
plea
connection
and relevant
to” a
right
upon
waived
to counsel in reliance
guilty
guilty
plead
or an offer to
are “not
promises
unfulfilled
made
the Govern
proceed
civil or criminal
admissible
ment. Neither
is supported by
contention
ing
person
against
plea
who made the
'the record.
or offer.” See also Fed.R. of
Evid.
court, following
This
United States v. Rob
Rodriguez-
This court in United States v.
ertson,
1356, 1366 (5
(en
1978)
Gastelum,
1978) (en
While the is ref performance record enforcement in the officers of “plea bargaining”, erences to we find noth imprison suspect their duties and to ing to Doe pled show ever or offered to alleged his privileges.” constitutional Ro plead guilty. plea He engaged was not driguez-Gastelum, supra, at 488. negotiations, but was attempting rather to Doe was advised of Miran- repeatedly his exculpate himself, by inculpating Roe mak rights da questioned prior and he was not to ing the best of a by cooperat bad situation meeting Following his with Roe. that ing in investigation.8 the DEA At most he meeting cooperate he a indicated desire to claimed exchange coopera that that investigation in the DEA and waived his tion the agreed Government to recommend right to counsel. From our review a reduced Assuming sentence. that we record are satisfied that the district agreement made, was there is no evidence properly held that his waiver was of the Government’s failure to comply “knowingly intelligently” and made. promise its to recommend sen reduced infra, Appellant ap- he argues tence. As discussed next that when court at peared his sentencing magistrate time of before the he waived right denied the of right that Government counsel to allocute im to counsel in reliance his belief and in posing apparently disregarded bargain sentence evi he plea had reached a dence of Doe’s cooperation. Attorney, United States and was induced to assuming, arguendo, closing argument complete that 8. Even all of the state- contained a con- contemplated bargain plea guilt. Any ments and were of fession admission made to he 11(e)(6), agents excludable under Rule Doe was not DEA in advance of did not affect trial prejudiced by finding guilt. their admission. his trial tes- fully timony he incriminated himself. Likewise 926 discretion to sever.” United attorney court’s States representations that an
do so
Brashier,
1315,
(9
548
1323
investigation. The
v.
F.2d
down the
would slow
1111,
denied,
Attorney testified
cert.
97 S.Ct.
Assistant United States
reached,
(1977). Appellant’s
he
ever
that
had
927
offer
expressly
opportunity
of the co-defendant was
speak
to
on behalf of the
based on the condition that he be tried
defendant and shall address the defend-
before the defendants. The court affirmed
personally
ant
and ask him if he wishes to
motion, noting
the denial of the severance
make a statement
in his own behalf and
simply
the trial court
refused to allow
present any
mitigation
information in
games”
the defendants
“play
grant
punishment.
for the
any
any rights
they
of the defendants
equivalent
Government shall have an
op-
“would
enjoyed
joint
not have
but for the
portunity
speak
to the court.
indictment.”
trial
only
way,
discretion in
one
Initially
recognize
we
that a trial
919;
ordering
separate
trial....
Id. at
judge has a
determining
wide discretion in
States,
1193, 1194
Parker v. United
404 F.2d
(9
denied,
imposed
the sentence to
1004,
may
cert.
be
394
con
U.S.
89
1602,
782,
S.Ct.
22
sider relevant
per
L.Ed.2d
reh.
facts in the defendant’s
395
York,
U.S.
history.
S.Ct.
VII. roft, 1979). 608 F.2d 762 Cir. Never theless, justice Appellant if is to contends that he be done the sentenc was denied process right ing judge due sentencing to a fair should know all of the facts. hearing because States, counsel for the Harris Govern- v. United 166- allocute, ment was denied con- trary 32(a)(1), to Fed.R.Crim.P. and that To that judge required end the “is to listen the trial court acted on misinformation and give and to serious consideration to any
conjecture. information mitigation pun material Malcolm, ishment.” United States v. 32(a)(1) Fed.R.Crim.P. initially promul- as appellate 819 Cir. While gated was designed to allow the defendant little, power courts have if any, to review to address the prior sentencing. sentences, appropriateness legal they the rule was amended and now ex- pressly provides prosecution duty do have a “to rudimentary insure that right to address the court before proc sentence is notions of fairness are observed in the imposed. It reads: ess which the sentence is determined.” Espinoza,
Sentence shall imposed be without un- *8 delay. reasonable imposing Before sen- This includes concern for “the tence the court shall afford probable counsel an accuracy of the informational in- beginning sentencing proceed- 11. At the the information that can be made available to ings Attorney Assistant United States Diskin it. requested permission to make a statement. In THE COURT: Well I think I have as much denying request, following colloquy the the oc- do, you information as Counsel. curred: respectfully MR. DISKIN: I submit there is thing you THE COURT: I don’t one think I have to don’t know. hear you, any says do I? Is there rule that I THE do? COURT: Well I don’t want to hear you MR. I any DISKIN: think Rule 32 indicates from that case. the Court should take into all consideration 928 accused ment and favorable the sentencing process.” the United
puts in
Weston,
the sen-
presented
F.2d
634 Cir.
to the court and that
448
92
or
cert.
404 U.S.
S.Ct.
of fact
tence is not based
mistakes
818;
cit-
faulty
432
information.”
ing Brady Maryland,
notes,
true,
It is
as the Government
1194, 1196-97,
(1963).17
L.Ed.2d
Doe
extend
that both
and his
made
Bar
Stan-
Association
See also American
sentencing, admit
prior
ed statements
dards,
Proce-
Sentencing
Alternatives
convictions,
prior
recogniz
ting
felony
six
dures,
32(a)(1) con-
5.3(d)(ii) (1968). Rule
§
prison
proper,12
but
ing that a
sentence
attor-
templates
that
the statement
coop
leniency by reason of Doe’s
requesting
infor-
ney
include
for the Government shall
clear,
with
eration
the Government.
It is
well as
to the accused as
mation
however,
favorable
accept
did not
the
that
the court
to the Government.
statements
Doe or his counsel relative
cooperation
During
the
Doe’s
DEA.
not
apparently does
The Government
Doe,
colloquy
the
between the court and
the
question
obligation
part
on the
this
repeatedly
he did
believe
court said
that
not
not
Doe was
prosecutor, but
that
particular,
In
the
Doe.13
record indicates
the
“unlikely
it is
that
prejudiced because
questioned
that
the
statements made
court
have been
allocution would
Government’s
by both
and his counsel relative to the
course,
true,
helpful
It is
to Doe.”
Mrs.
and a Mr.
involvement of a
Smith
what
the
does not disclose
record
principal drug
as the
Jones
dealers and
attorney
said in his
Government
would have
Any questions
distributors.16
which the
might have
or what answers he
statement
might
respect
court
have entertained with
regarding
coopera-
questions
made to
Doe’s
DEA,
cooperation
to Doe’s
tion,
including information he furnished
Jones,
involvement
of Mrs. Smith
Mr.
respect
to the involvement
Smith
and information Doe furnished the DEA
possible
and Jones.
It is
that his statement
regarding Smith and Jones could have been
would have contradicted the statements
by
prosecuting attorney.
clarified
In
attorney.
made
and his
The reverse
by Doe
fact,
prosecuting
the statement of the
at
might have
true. The statement
also
torney might well have been
in view
critical
coopera-
Doe’s claim
extensive
verified
of the court’s
distrust of the state
obvious
continuing
includ-
investigation,
tion in the
ments made
Doe and
counsel.
ing
that he had
informa-
the fact
furnished
Malcolm, supra,
United States v.
leading
tion
to the identification of Smith
that,
recognized
impor-
“One of
drug
principal
dealers.
and Jones as
prosecutor upon
tant
functions of the
con-
circumstances we are
sentence is make sure that
informa-
Under
all
possession
per-
have
punish-
tion in his
material
the trial court should
vinced that
Pseudonym.
support
15.
12. The record does not
the Govern-
attorney
ment’s contention that “Doe’s
even
suggested
very
sentences which were re-
16. Counsel stated to the court that information
suggest
ceived.”
did
Doe’s
a sentence
of Mrs.
furnished
Doe led to the indictment
eight years,
of seven or
posed
but the
im-
sentences
Appellant’s brief states that subse-
Smith.
years.
for the
counts totaled
two
quent to Doe’s trial indictments were returned
recognized
Doe and
against
his counsel
not
both Smith and Jones. This is
impose
court could
years
a maximum sentence of 30
questioned in the Government’s brief.
argued
on the two counts and
that Doe
portion
would have to serve a substantial
corollary
in Malcolm is a
The rationale
imposed.
sentence
court,
long recognized by
principle,
a defendant has
to a sentence
point
13. At one
the court said:
information.
untainted
false
unreliable
your cooperation
“...
I
what
don’t care
was.
See,
Weston, supra,
g.,
States v.
e.
It makes
I
no difference me.
believe
don’t
States,
628-633;
*9
F.2d
Farrow v. United
you.”
(9
1358-59 Cir.
Pseudonym.
rejecting
coop-
questioning and
all claims of
attorney to make
mitted
Government
given
might mitigate punishment.
and
requested statement
eration which
his
verify
either
opportunity
appearance
an
of fair-
Government
We conclude
presented by Doe
dispute
the statements
by remand to
ness would best be served
obviously reject-
which were
and his counsel
judge. Though
may
there
be
another
some
that a re-
ed
the court. We conclude
effort,
sentencing
duplication of
a new
sentencing hearing
new
and
mand for a
resen-
hearing
required
will be
whether the
express no
resentencing
required.
are
We
assigned
original judge or
tencing is
to the
propriety
of
sentence
opinion on the
judge. We do not believe resentenc-
a new
might
imposed.
which
be
judge
entail waste
ing by another
would
proportion to the
duplication out of
the case
Appellant
fair-
gain
preserving
appearance
in
judge.
be remanded to a different
should
ness.
in two
recently recognized
This court has
Arnett,
cases,
v.
appellant
conviction of
is affirmed.
The
and United States
vacated,
sentence is
and the case
Ferguson,
Our America, anonymity Appellee, one in which case such as this of STATES UNITED is of dubious effectiveness. this late date v. reason, LINTON,
Beyond arguments Appellant. the based Lee the authorizes no statute or federal rule America, Appellee, of STATES UNITED majority. No re- practice approved by the v. approves I am aware ported case of which WEBBE, Appellant. similar to these practice of such a on facts Sorkis J. in which the procedural posture or in the America, Appellee, STATES of UNITED to us.1 We should appellant’s motion came v. lay not the foundation here. KENNEDY, Appellant. Fred L. America, Appellee, of STATES
UNITED v. TINDELL, Appellant.
Robert C. America, Appellee, UNITED STATES v. CORP., Appellant.
ALADDIN HOTEL
America, Appellee,
UNITED STATES
PIOTROWSKI, Appellant.
Dennis
by
parties,
government, by pseudonym
1. Of the cases cited to us
ated with the
for
majority
vast
security.”
concerned
in
instances which an
“reasons of
Id. at 90. The court did
onymity
rights
closely
very
was
connected to the
elaborate,
plaintiff
not
but the marital tie to the
by
party requesting
asserted
it.
may
under the circumstances of the case
have
plaintiffs
required
these cases the
to re
more,
been sufficient reason. Without
Civiletti
personal
veal information of an intimate and
provide
appellant.
should
no aid to
nature in order to vindicate constitutional or
X,
Boy
In United States v. Indian
statutory rights grounded
protection
in the
(9th
1977),
585
Cir.
cert.
See,
privacy.
g.,
Deschamps, supra,
e. Doe v.
(1978),
this court
logic
and cases cited therein. There is some
appellant
pseudonym.
did allow the
to use a
cooperating
ity
provide anonymity
public
when
However,
appellant
challenging
was
very injury
litigant
would inflict the
juvenile delinquency
conviction for
and the
seeks to avoid
resort
to the courts. The
grounded
protect
court
tity
its decision to
the iden
practice
providing pseudonyms
should be
juvenile
“spirit
in the
of the Juvenile
only rarely.
extended to other situations
See
Delinquency Act.” Id. at 587 n.4. No similar
University
Southern Methodist
Association of
statutory policy
appellant’s
favors the
case
Jaffe,
Wynne
Women Law Students v.
&
599
Bar,
Finally,
F.Supp.
here.
Doe v. State
(5th
1979); Lindsey
F.2d
Dayton-Hudson
712-13
Cir.
aff’d,
(9th
(N.D.Cal.1976),
Cir.
Corp., 592 F.2d
enjoin disciplinary proceed
was a suit to
(10th
ings against
attorney.
plaintiff
parties
The other cases cited
are dis-
anonymity
allowed to maintain his
in state
tinguishable
Civiletti,
from this one.
In Doe v.
proceedings
commencing
court
before
his fed
(2d
plaintiff sought