*1 agree Likewise, District with the we allegedly manufactured drop” duct “tear patent finding that the at- Court’s Walch Panduit’s by it, from a letter Bros, patent. by anticipated indicating the Franz was not torney to Stahlin Walch, Taylor not infringed Franz Unlike drop” duct the “tear felt strip duct, of material trough, but a drop” mere “tear patent. The the Walch emanating projections time with hook-like at the in existence not which was pro- case, its The ends simi- from surface. is in this commenced suit was fingers deflect- jections are flexible device, except the to Walch lar Bros, backing away to al- member from slightly Stahlin convex sides. “clippеd” between wires to be im- low sought exhibits introduce these backing. The Franz projections testimony expert peach Panduit’s patent as did the same defect has the in the one- sides, such as convex wires, “trap” Taylor “substantially tended device: duct, Taylor not are inch strung removal, their or parallel.” tightly. addition, device Walch Eight trial months before length openings many per unit has more case, held Court the District of this Franz, Taylor in than either Appellant pre-trial where conference slits, holes, are narrow- the latter the impeaching evi mentioned this new first high. they As the District er than are expressly The District Court dencе. noted: stipulated Bros, time, Stahlin at testimony no that Franz “There was Ap agreed, duct and the that this easy made obvious. That is Walch as ex pellee’s admitted letter could be understand, by since hind- even however, Bros., none took hibits. Stahlin sight from is not obvious Walch steps agreed-upon to have of the Franz.” offering intrоduced, properly it for the arguments as to in- Bros.’s Stahlin “tear Insofar as the first time at trial. fringement ones made here are same suit, drop” in it was not duct was not find them before Court. We the District the suit com existence at the time substantially for merit to be without menced, as whether a conflict opinion stated in the rеasons manufactured, and the it was ever even repeat. Court, District which we shall allege any has, again, Appellant failed judgment of the District Court prejudice as a result of the District affirmed. rejection tender, we do Court’s ruling abuse not find this to have been an
of discretion.
For the reasons stated Court, District which have Ameriсa, UNITED STATES seriously agree question, drawn into we Plaintiff-Appellee, Taylor duct was different v. patent. pre kind from the Walch WELLS, Michael sumption validity pat Scott Defendant- of the Walch Appellant. strengthened ent, pro protracted ceedings scrutiny unusually careful No. 24957. given by case, patent office Appeals, United States Court of Mastoras, see Hildreth v. Ninth Circuit. (in (1921) S.Ct. L.Ed. 112 July 27, proceeding); terference Modern Prod Supply Company Drachenberg, ucts (6th 1945), Cir. cert.
denied 327 U.S. S.Ct. (1946),
L.Ed. 1030 was not rebutted Taylor device. *2 Hegner (argued), Hecsh, Michael S.
Hegner Philbin, Diego, Cal., & San appellant. for (argued), Ann Bowen Asst. S.U. Burke, Atty., Atty., Richard K. U. S. Diamos, JoAnn Atty., U. Asst. S. Tuc- son, Ariz., appellee. MADDEN, Judge, Before Claims,* States Court DUNIWAY KILKENNY, Judges. Circuit DUNIWAY, Judge: Circuit February On in- Wells counts, chаrged, dicted on three bringing I, pounds Count of mari- huana across border in violation 176a, II, U.S.C. failure § pay the tax on marihuana in violation III, 4744(a), U.S.C. and Count bringing pound (% merchandise peyote) unladening without cus- inspection toms of 18 violation pleaded all C. 545. three counts. Claims, sitting by designation. Judge, Madden,
* Honorable J. Warren claim, requested as to the first but not On question precise limited to his not court to withdraw leave guilty plea whether II to enter the court should have advised as to Count court on that count. The granted request received We decided United States v. guilty plea. June it sen- On Ingman, that, *3 provisions of tenced under the Wells they 4744(a), affect 26 U.S.C. Youth Act. The Federal Correction Leary States, supra, v. United and Attorney requested then Covington, 1969, United States v. 395 that I III and Counts and be dismissed 57, 1559, 89 S.Ct. 23 L.Ed.2d dismissed them. court (dealing (1)) are 4744(a) retro- July 22,1969, days, Within 29 Wells Thus, they apply active. here. This petitioned plea of for of withdrawal his case, however, guilty, of involves guilty alternаtively permission for government argues and the that Wells petition delayed appeal. file a for The against privilege waived his self-incrim- court denied the motion for leave by entering guilty plea. A ination plea, time withdraw extended the privilege; of indeed a waiver within could file a notice which Wells is thе it conclusive form of self- most appeal. of filed his of Wells notice incrimination. 1, appeal August 1969. it While argu government its The bases judgment, refers to the we treat in a ments on contained information applicable it as to the of also denial of Wells series affidavits submitted to withdraw the leave petitiоns support of various government The makes no con- pled guilty on the lower court. Wells trary claim. 21, Leary decided on was 1969. May sentenced was Wells makes two on this Wells claims in one stated on June Wells 1969. appeal. court 1. That should have July affidavits, of dated advised him of the effect the de Leary but befоre that after decided Leary States, cision in v. United “read about this he he was sentenced 395 U.S. 23 L.Ed.2d 89 S.Ct. attempted newspapers in the case Leary plead decided after Wells my might out if it be relevant find guilty he but before was sentenced. attorney, my Charles case. wrote to (26 It held that the statute U.S.C. § Giles, it. He said and аsked 4744(a) charge (2)) supported until he had he was to answer unable infringes pleaded guilty to which Wells 40-page it and that read a brief privilege against self-incrimination. he could two or more before take months That should have been advised mentioned it advise me. He never sentencing of all ramifications July 24, again.” filed In an affidavit under the Federal Youth Act Correction said, opposed regular I had entered “[a]fter Wells to the adult sentence. Stamp my to the case We find no merit in the second claim. my rights violation, judge that Tax I learned Wells was told that against granted, have prison self-incrimination were not my spеcifically claim II would violated. I do now sentence under Count rights years. years at self-incrimination least be [sic] could having justification The excuse maximum incarceration concerning complied with the the Youth Correction Act statutes registering marijuana years. transfers.” like Thus cases Freeman Cir., 1965, affidavit trial counsel does F.2d of Wells’ States, 9 subject. government applicable. mention this are not The sentence given reads these to mean that Wells than affidavits was less onerous knew Leary might perfectly of his de- aware We remand for receive. Thus, argues any years,
fense. waived of 2 plus and a maximum of 10 right nоt to claim the benefits $10,000. fine of not more than possibility It does not record, agree. we cannot On All parole probation. See 26 U.S.C. § know is that himself we was aware 7237(d). apparent It seems had been decided and that charges and Count II arise position. alter Under the out of the same transaction. It is there- circumstances affidavits, cannot find from we Wells’ pled guilty fore almost certain that Wells record, uncontradicted in the to Count II to avoid the more severe knowledge requisite that there was the penalty imposed by Section 176a. knowing constitute waiver. See thq. part deal that Counts States, Cir., 1969, v. United Meadows III were dismissed. From this it can follow, It does not how- argued having be further elected ever, must be set aside. bed, *4 thus make his Wells should be apparent plea that is enter- was required lie in it. part “bargain.” ed as of a When possible To this a answer is that Wells entered, following was occurred: hardly can be said his made Now, “THE COURT: we haven’t intelligently bed if it true he be that any talked about count other than complete did not know that he had a Count 2 that makes me believe defense to Count This an- II. probably understanding some is by swer reinforced is the fact that between the Government the de- charged Count III also Wells was with fendants about Counts and 3. penalty violation of 18 U.S.C. 545. The § Honor, MISS Your DIAMOS: Govern- for an offense under that is a statute ment counsel has told both defense $10,000 fine of not more than and a attorneys that the Government will years, prison maximum term of 5 entry dismiss Counts and 3 on the minimum, no and there are no restric- judgment proceed of on Count possibility prоbation tions on the of or represent 2. And I further that there parole. pos- Thus III offered Count agreements represen- are no other or sibility penalty than lesser did either tations made to the defendants. plead Count I or II. Refusal to Count correct, MR. GILES: That is Your guilty to Count II would thus not have Honor. deprived bargain. Wells of a chance to correct, MR. ECONOMIDAS: That is say Who can of with even a modicum
Your Honor.
if
confidence that Wells had
that
known
totally
he could
II
accurately
THE
defeat Count
COURT: More
Covington,
he would not have
Government will recommend or ask
bargained
done
leave to
so and then
dismiss.
a
II,
under Count III
than
rather
Count
me,
MISS DIAMOS: Excuse
Your
that,
attempt
or
if
he had made
Honor, yes, Your Honor.”
bargain,
so to
he would
have been
Wells derived a real benefit from the
successful?
bargain. He was
accused Count of
a
There are
in the affidavits
violation of 21
statements
U.S.C.
176a.
§
indicating
penalty
severe,
he
a
submitted Wells
hoped
that
such
violation is
get
although
prison
probation,
a
years
minimum
term of 5
perfectly
years,
a
possibil-
maximum of
record makes it
clear that
without
ity
probation
parole,
promised probation,
plus
of
had not
a fine of
up
$20,000.
(See
those
inferable that it is
26 U.S.C.
hopes
(d)).
penalty
not realized thаt he now
were
under Count II is less
ground
upon Leary
4744(a)
seizes
a
for nulli-
severe. Section
is one fying
The affidavit Wells’
statutes referred
26 U.S.C. 7237
(a)
imposing
her
mother stated that she
penalties,
overheard
and it fixes
day
penalty
attorney
he was
for a
minimum son tell his
first offense at a
applicability
get probation,
of the rationale
sentenced,
I don’t
“[i]f
immediately.”
cases here.
appeal
you
an
to file
want
states,
attorney
by Wells’
affidavit
Brady
An
In
and Parker
there had been
inquired of
Scott Wells
Michael
hearings
“[t]hat
as to
voluntariness
post-sentencing
regarding
him
pleas.
McMann,
held that
agreed
that
procedures,
that
was
but
hearings
required
were not
where it was
procedures
not be
post-sentencing
pleas
that
in-
claimed
each of the
was
sentencing.”
after
until
discussed
confession,
duced
coerced
and each
[his]
he “told
that
also stated
defendant
had
had
counsel. The Court
did
receive
attorney
that
[hе]
held:
to file
wanted him
[he]
hold, therefore,
“We
defendant
may
immediately.”
appeal
The fact
alleges
pleaded guilty
who
that he
be-
escap-
so
desirous
prior
confession,
cause
coerced
ing
perfectly
from Count
not,
more,
without
entitled
willing
to stand
on his
for habeas
II,
the full
understood
whethеr he
(Emphasis added.)
corpus.”
Part
See
Leary or not.
effect of
IV, page 1449.
say
meager record,
presumed,
we cannot
The Court
in the absence
On this
any
allegation,
contrary
in-
de-
that Wells’
that each
with assurance
made,
telligently
is bound
fendant had had the advice of counsel
although
bargain,
оn the matter
enter-
facts
before his
*5
emphasized
aspect
fol-
ed.
of the
be such
this
that both conclusions
do we have
us
low.
cases:
“Neither
before
* *
the uncounselled defendant
Furthermore,
three
decisions
(397
p. 1447);
recent
767,
p.
90
U.S.
S.Ct.
inject
Supreme
seem to
to
Court
us
“The issue on
we differ with
problems into
Thеse
additional
the case.
Appeals
in
situa-
Court
arises
those
States,
Brady
involving
decisions
are
v. United
tions
defendant
the counselled
**
1463,
1447).
742,
767,
p.
90
25 L.Ed.2d
(p.
397 U.S.
S.Ct.
90 S.Ct.
747,
793, 796,
Carolina,
(397
Parker
North
397 U.S.
v.
Parker had counsel
U.S.
785,
790,
1458,
Brady,
1460, 1462).
90
25 L.Ed.2d
S.Ct.
So did
90 S.Ct.
759,
Richardson,
743,
U.S.
(397
McMann
397
90
749,
v.
S.Ct.
763,
1469, 1473, 1474).
1441,
1466,
decided
90
25
all
S.Ct.
L.Ed.2d
4,
They
May
involve attacks
on
all
alleges
Here,
is “more.” Wells
there
allegеd
pleas,
to have been
advice and
he asked for counsel’s
Consti-
induced
some violation
get
presume that
cannot
did not
it. We
proposi-
Each stands
tution.
allegation
Thus we cannot
is false.
may
nevertheless
tion
a
that such
hold,
law, that
as a matter of
clearly
Perhaps Brady
most
be valid.
in
the defendants
“counselled” as were
here,
point
involved
in
Brady,
McMann. Whether
Parker
entry
a
under fear
only be deter-
true can
Wells’ claim is
statute
portion of the
penalty,
death
evidentiary hearing.
mined at an
having
penalty
later
providing for such a
respects
differs
this case also
In these
But none
unconstitutional.
held
v.
in United States
pre-
from our decision
question here
precise
involved the
(No.
Weber,
F.2d
429
based
sented,
to
count
9, 1970).
had
July
Weber
held to be violative
upon
later
a statute
counsel,
claimed
prose-
and he nowhere
Amendment,
so that
Fifth
of the
fully
Weber
been,
advised.
not been
as a
he had
hаve
under
could
cution
There,
respect.
in
also differs
another
totally
law,
had
defeated
matter
in
only
count
addi-
Again,
other
rights.
there
one
known
defendant
count;
if Weber
too
tion
176a
case
this
record
however,
bargain
bargain,
upon
pass
the wanted
could
permit
skimpy
us to
230
pled guilty.
to which
proceedings
(cid:127)for the tax count
and for such
may
further
as
Here,
third
appropriate.
count
then be
bargained
have
had
which Wells
KILKENNY,
Judge (dissent-
Circuit
he could defeat
the tax
known that
ing) :
attempted,
unsuc-
count. He
so,
cessfully,
do
but
record does
major-
do
share the views of the
not tell us that.
ity
non-applicability
tо this fac-
background
principles
tual
em-
ployed
Supreme
Brady
grave
We have
doubts
States,
v. United
v. North
Parker
Caroli-
pressing
motion
Wells’ wisdom
Richardson,
na and McMann v.
each
plea.
If he is ulti
leave to withdraw
May 4,
my judgment,
decided
successful,
nothing
mately
we know of
very persuasive,
cases are
if not
government
reviving
from
controlling. Neither Meadows v. United
counts
were dismissed
the two
States,
(9th
1969),
Cir.,
States, 1962, U.S.App.D.C. find thus F.2d 397. Wells could Moreover, sup believe this record more confronted with once himself ports а appellant conclusion that I, under conviction Leary prior well aware of to his sen penalties very severe tencing. Beyond question, his acts sub entering escaped by count that he sequent knowledge to his were Cir., knowingly intelligently done, and, Page, See Ward believe, However, sufficient awareness of ad his counsel F.2d 491. likely the relevant circumstances all argument he had vised us at oral consequences.1 gambler’s He took a Wells, explained problem who *6 ju chance lost.2 proceed. instructed him to nevertheless process, by any standard, dicial should denying petition for The order exploitеd. ¡ so In these circum guilty stances, appellant leave to I withdraw would hold that rights might such as he waived otherwise is va- of the indictment Count II have. cated, and the matter is remanded petition, evidentiary I affirm.
an on the preme ing was not able decision period derstand June After ing prior tencing [From “A “That guilty, decision of 1969 and Court handed down the far appellant’s Supreme I entered on June stamp * * p. time, 1], time and guilty to, ramifications *" decision of sentencing tax on and in During (Emphasis United States in U. S. v. prior entered on fact did for withdrawal The defendant occurred the United intervening read about supplied.) 21, 1969, my not, Leary.* reach- evаd- April sen- Su- un- attorney morning prior peal He my tion Charles appellant’s he had read a * tion “On month * * * [*] said case in the case. Decided immediately. find out ” prior Giles, withdrawal of he was unable I wanted him way affadavit (Emphasis [*] I wrote May 19, if it newspapers to the courtroom sentencing. sentencing page did [*] He asked supporting his supplied.) not receive did brief to answer until be relevant my attorney, [*] file over * * guilty], attempt- told, answer. [From proba- one [*] peti- my ap- it.