United States v. Moskow, Sigmund

882 (Emphasis origi- F.Supp. generally, at in

437 923-24 which does some support find in nal; omitted). Judge suggesting footnotes Carter cases that our courts should be found, conclusion, despite plaintiff’s that quite in dismissing cautious on forum non up facts back opportunity discover grounds conveniens suit when is brought by that District is a claim conve- Southern citizen, see, an American e. g., Olympic forum, case for dismissal . . . nient Generale, “[t]he v. Corp. Societe 462 F.2d 378 overwhelming.” at F.Supp. remains 437 (2d 1972), Cir. we think it has no application 925. where, here, a treaty as between the United foreign plaintiff’s country issue

While we believe that whether of allows nationals both countries access to the action should have been dismissed is country’s each courts on terms Judge closer than no less fa perhaps somewhat Carter applicable vorable than those suggested, we affirm dismissal without nationals of pause country. the court’s 8 judge much because a district has United States Trea area, Corp. Gulf ties and Other Agreements wide discretion in Oil International Gilbert, (1957). v. 902-03 point Our view on this Traum, way in no L.Ed. Schertenleib affects the dispo district court’s (2d 1978), Cir. F.2d 1156 and here sition the case the judge because applied showing” is no abuse there “clear the same forum non conveniens standards discretion, Texaco, Inc., Fitzgerald v. 521 as would applied were the plaintiff an (2d 1975), denied, cert. F.2d American citizen. 781, 46 L.Ed.2d conclusion, hold the district (1976). court had the power to dismiss the on case great opin

A Carter’s forum non conveniens Judge grounds, deal and we af- claim, firm the plaintiff’s disput ion was devoted exercise of Judge Carter’s discre- defendants, plaintiff dismissing ed not tion in could the case.

have sued defendants in Iran as a matter jurisdictional law,

right under Iranian satisfy Iran not

therefore does alterna prerequisite

tive forum for invocation

the forum non conveniens doctrine as enun 506-07, Oil, supra,

ciated Gulf 330 U.S. at though now even defendants to suit

consent there. For the reasons stat opinion ed in recent in Schertenleib v. UNITED STATES America Traum, (2d Cir. 1978), we hold, did, Judge Carter that there was no MOSKOW, Sigmund, Appellant. reason to determine whether defendants initially jur subject compulsory were No. 78-1108. isdiction of Iran. Once defendants consent United States Court of Appeals, Iran, ed suit in Judge Carter found Third Circuit. fo existing was an alternative rum, power he had the apply the forum Argued Sept. 7, 1978. non after all balancing conveniens doctrine Decided Nov. of the relevant considerations. comment,

We feel constrained to

however, judge’s opin statements foreign plaintiff’s

ion to effect

“right clearly to sue in the United States is magnitude

of a lesser than that of F.Supp.

American citizen.” 437 proposition

Whatever merits of that plea.” Government Brief at 7. Al-

ternatively, asks that we affirm the district court. We hold that because the imposed sentence on the condi- order, tional constituted a final jurisdiction. have We further determine district court did not abuse its in accepting plea, discretion and affirm on the merits.

I. Charged in a seven count indictment with fraud, mail arising U.S.C. out of by claims him submitted for fire insurance proceeds on property that allegedly he fire, destroyed caused to be Sigmund sought by pre-trial Moskow motion to sup- press certain government evidence. The district court denied the Appellant motion. then entered a plea guilty to all counts of indictment, admitting, purpose for the plea, guilt of the his of the offenses Carroll, Rogers John Thomas Car Colas charged. But he conditioned the roll, Duffy, Carroll Creamer Carroll & Phil right reservation of his appeal to this Pa., adelphia, appellant. for court, sentence, after denial the mo- DeLuca, Atty., Robert N. Walter S. suppress. tion to Relying on teachings Jr., Atty., Chief, Batty, Asst. Appellate Zudick, of United States v. (3d Section, Stawbridge, David R. Asst. U.S. 1975), the district accepted court Pa., Atty., Philadelphia, appellee. for plea, guilty the objections over of the government, and later the appel- sentenced Before ALDISERT HIGGINBOT appeal, lant. The emphasize, must HAM, STERN, Judges, District Circuit taken from the judgment final of sentence.1 Judge.* Newsome, Lefkowitz (1975), 43 L.Ed. 196 the Su OPINION OF THE COURT preme Court a plea held that guilty did ALDISERT, Judge. Circuit not foreclose federal habeas corpus review major question The presented specified for review of constitutional issues where finality, is the the appealabil- procedures and therefore state allowed a defendant ity, guilty plead guilty of a conditional entered without forfeiting his appellant accepted by dis- review those Drawing upon issues. Lef kowitz, government argues, trict court. The curi- Zudick held that it permissible was court ously, that because the erred in ac- for a district to allow court a defendant to guilty plea, “this cepting case should be enter guilty although challenging remanded to the District Court with in- ruling prosecution court’s that the was structions that the defendant afforded not barred the statute of limitations. opportunity his move withdraw We noted that * Stern, Moskow, above, Sigmund hereby ap- Herbert Honorable J. the United defendant peals Appeals States District Court for District of New to the United States Court of sitting Jersey, by designation. judgment the Third Circuit from the of sen- case, captioned imposed tence the above January 12, January 1. The notice filed states: phia, a preclude appealing not to Moskow-owned property. was issue; appel- if government’s of limitations evidence

the statute showed that this ar- ruled that issue could not be late courts son was attempted at the direction of Mos- appeal following presented kow, as part continuing insurance permitted would be appellant plea, fraud. is- plea; if the limitations withdraw Wadley shortly was discovered after 3:00 ultimately sue were decided A.M., Philadelphia when police responded to favor, the sentence would government’s Offord, complaint of Robert resident stand, government ultimately and if the Street, of 2548 South Second who had re- issue, would on that the indictment lost ported hearing noises inside the vacant procedure. We endorse this be dismissed. arrival, building next door. On the officers at 851.

523 F.2d padlock, were advised Offord that a holding in Zudick Recognizing that which he had seen earlier that day, had effect, precedential we stated would have been removed from the front door. The the use of the conditional that “we endorse officers also strong gaso- detected a odor of plea appropriate circumstances.” coming line property. from the After call- at 852. Whether the facts of 523 F.2d ing supervisor, waiting for a and for his circumstances” is the “appropriate case are arrival, police premises entered the presented by government. It question they Wadley where discovered in the base- distinguish preserving between urges us to ment crouched behind the They stairs. also pre-trial decisions of law which abso- those empty discovered three gasoline cans and a possibility of a subse- lutely preclude the disposable lighter, which were by seized trial, as, example, a Zudick stat- quent fire marshal. question, pre-trial limitation and a ute of arrest, After his Wadley police told the appeal would where reversal on decision building that he was in the to commit a guilty plea withdrawal of the permit burglary. Yet recognizing implausibili- subsequent urges trial. It us to rule and a ty story, of this he soon confessed his at- “appropriate that circumstances” are not tempt building to burn the and his complici- in the latter situations. The issue present ty with Moskow. squarely presented, we now address being facts. Wadley During was released on bail. June, 1977, first week of he was contacted II. by Moskow and asked if he would burn 624 Mifflin Street. He told Moskow he would Moskow, Philadelphia a South Sigmund so, instead, but immediately do contacted landlord, developer and was real estate Wayne Detective McGlotten of the Phila- seven counts of mail fraud. charged with delphia Department. Police McGlotten in- alleged indictment that he had caused him agents Department troduced of the by prop- fire of three of his the destruction Alcohol, the Treasury, Bureau of Tobacco fraudulently had obtained insur- erties and Wadley agreed and Firearms. to contact by misrepresenting his in- proceeds ance Moskow and to allow conversations between com- in the fires to the insurance volvement electronically himself and Moskow to be charged also panies. The indictment monitoring recorded a hidden device. scheme for a he had devised the same result, telephone As a three calls and one insurance property fourth and had obtained meeting by government were recorded purpose carrying out increases for the agents. the scheme. actually were set On the basis of the recorded conversa- question The fires in statements, tions and co-conspirator Wadley’s warrant Wadley, Edward authorizing the search of Mos- Wadley was arrested was issued government witness. 26,1977 to set a kow’s office. On June Moskow attempting while on March Street, pursu- Philadel- was arrested and his office searched Second fire at 2546 South 20, govern- rights June ant to that warrant. On could be vindicated when he had agents warrant preservation ment executed a second attached rights these inspect pho- authorized them to entry which condition to the guilty plea tograph property at 624 Mifflin Street. a state done, court. As Moskow has New- Additional evidence showed that Moskow some had entered a guilty subject coverage insurance on had increased his the right “the denial of his motion $10,000 $25,000 in property May, from to suppress drugs and related parapher nalia seized at Id., the time of his arrest.” 95 S.Ct. at 887. The court Wadley’s tes- suppress Moskow moved to type contrasted this with “the pleas timony, claiming Wadley’s arrest was entered Brady defendants the result of an unlawful search. Moskow’s trilogy Henderson,” of cases and Tollett challenged to suppress motion also and observed that “Newsome’s had physical building; evidence taken from the legal consequences quite different from the the recorded conversations between himself consequences pleas entered in tradi Wadley, grounds the moni- cases.[3] tional guilty-plea pre Far from was toring properly not authorized cluding review independent claims relat Attorney delegate General or his and that ing to the deprivation of constitutional Wadley’s was involuntary; consent and evi- rights prior entry occurred of his office, dence seized from Moskow’s because ‘guilty plea,’ Newsome’s carried with it procured the search warrant was on the the guarantee judicial review of his of the prior illegal basis searches and re- constitutional claims would continue to be cordings. After a hearing district court available to him. In this respect there is no respects. previ- denied the in all motion As meaningful difference between Newsome’s stated, ously Moskow then a guilty entered conviction and a New York conviction en right appeal conditioned on his 290, tered after a trial.” 420 U.S. at 95 suppress. of denial his motion to United 890, S.Ct. at paraphrased Zudick, supra, Moskow, (E.D.Pa. F.Supp. v. 443 571 523 F.2d at 852. 1977). Although not presented in the context of

III. a subject state case to federal collateral Newsome, review as in Whether be a a generous grudg- or a similar was issue presented to ing application of the us in United requires Zudick rule States v. D’Ama to, (1970), 436 F.2d 52 an examination of its stated ratio wherein the defend decidendi. There, ant entered beginning point guilty plea, our a reserving was a statement right challenge of 18 general faithful adherence to rule U.S.C. 1952 ground intelligent that that voluntary guilty plea forming a and statute the basis of his indictment subsequent challenge bars constitutional violated his to due process guaranteed Henderson, proceedings. Tollett v. 411 the Fifth Amend 258, 1602, setting ment. Without U.S. 93 36 forth a S.Ct. L.Ed.2d 235 statement reasons, court, of (1973); States, Brady for United Newsome mulation, 1463, 742, obviously perceived (1970); meaning 90 S.Ct. 25 L.Ed.2d 747 “no ful Richardson, 759, difference McMann v. 397 between U.S. 90 convic [D’Amato’s] 1441, tion S.Ct. 25 L.Ed.2d 763 Parker v. conviction entered after [federal] Carolina, 790, 1458, North trial.” 420 at S.Ct. U.S. 95 S.Ct. at 890. (1970). doing, 25 L.Ed.2d 785 We then In so following drew we were the example Newsome, supra, authority Haynes Lefkowitz v. States, v. United defendant’s federal constitutional (1968). 19 L.Ed.2d 923 argued arresting Benson, (9th Newsome also that the offi- In United States v. probable 1978), did recognize cer not have cause to make a Cir. the Ninth Circuit failed to “loitering” arrest. this distinction between a conditioned guilty pleas the traditional of Tollett and the Brady trilogy. constituted the ministration of justice and D’Amato criminal Newsome within in Zu- backdrop to our decision Judicial Circuit. In re precedential Jury Grand (Schofield), dick, presented Proceedings a reserved 507 F.2d construction, (3d 1975) (collec- rather than Cir. statutory (dissenting opinion) point Recogniz- cases). ting Having juris- constitutional law. found neither question distinction, prudential prudential we said: nor ing impediment so, doing we endorse the use of the condi- obviously Newsome does not The rule of guilty plea tional in appropriate circum- here; however, policy the Court’s obtain stances; problem and we have no con- propri- on the provides guidance rationale cluding appellant properly preserved guilty pleas. ety of conditional the statute of limitations issue for review. exception fall within an pleas Such general voluntary the Court’s rule that a 523 F.2d at 852. Cf. United States v. Palm er, intelligent guilty plea (3d bars subse 1978). F.2d challenge pro quent constitutional In approving the conditional proce- exception The reasons for the ceedings. Zudick, dures utilized D’Amato and (1) in the case of a condi are twofold: recognized problems court congested prosecution “ac guilty plea, tional calendars; criminal trial we noted that the legitimate expectation of fi quires [no] Supreme Court described the New York conviction,” Lefkowitz v. nality procedure to problem relieve the with a Newsome, supra, 420 U.S. at efforts;” as “commendable 889; (2) plea procedure the conditional at and we shouldered our responsibility as an a “commendable to re represents [effort] appellate cooperate court to with innovative problem congested lieve the criminal judges district daily who are faced with the calendars in a manner that does not trial problems crushing case loads and lengthy for the assertion opportunity diminish the trials. rights guaranteed by the Constitution.” imaginative judges district in this id. at 891. See Ib designed circuit who and executed these Doyle, 348 F.2d also United States procedures recognized any trial con- Cir.) J., (2d (Friendly, suggesting the two, two, sists of only ingredi- basic cert. de guilty pleas), use of conditional questions questions of fact and of ents — law. The nied, 89, 15 L.Ed.2d 382 U.S. only purpose jury of a or bench (1965). Although the Newsome case trial is to have a fact-finder reduce contro- plea with the conditional in the dealt findings verted items of evidence into claim, per of a constitutional we context fact. The scarcely obvious need be stated: meaningful no distinction between ceive fact, if there questions are no there need cases, policy g., in constitutional e. be no trial. If the sole issue legal is the DAmato, cases, supra, policy and the in consequences facts, of admitted the ener- one, implicating the construction like this gies judicial system federal should of statutes. concentrate resolving questions (footnote omitted). F.2d at 852 problem law. If the appellate for resolu- Zudick, emphasis in we It bears did law, is preserved tion one of it can be Zudick, on a not base our decision building without an artificial edifice to otherwise, or to have the constitutional house it. “The repeatedly Court has em- bottom, at accept plea; court deci- phasized guilty plea that ‘a pur- for federal approval an of the district court’s sion was poses judicial is a guilt admission of conclu- to a accept exercise of its broad discretion sively establishing a defendant’s factual We under Rule Fed.R.Crim.P. plea guilt.’ Newsome, Lefkowitz v. 420 U.S. specifically: stated 283, 299, (1975) (White, J., past dissenting) (emphasis added).” in the We have not hesitated Henderson supervisory Morgan, of our express, in the exercise J., (1976) (White, the ad- what would best further 49 L.Ed.2d 108 concur- powers, admitted, not”;5 guilt ring). If factual is as in a to commit these monies needlessly plea stipulated, is, or if the are guilty, facts words, in D. Sassoon’s “visionless official- require a persuasive is no reason fatuity.” ized preserve in order a lengthy legal trial point review. appellate IV. impressed govern- by Nor are we The government’s position, as we under- pleas that conditional suggestion ment’s it, stand a challenge power is generate larger appeals will a number of in review plea accepted a conditional under guilty plea This observation over- cases. here, presented circumstances and alter- reality that a is an looks the trial obvious natively, a contention if we possess do plea. alternative to conditional At the power, we permit should not the prac- argument oral it was conceded that virtual- Although distinct, tice. the issues are in- ly verdict every guilty obtained trial terrelated. appeal. most results in an That of these merit, appeals relatively are without or ab- solutely, percentage is evidenced the low A. this nationally. of reversals in court and In makes candid ac year ending percent- June ceptance of the conceptual basis of both age of criminal convictions reversed Zudick, D’Amato explaining that 5.3%; court was for all circuits it was both legal cases a resolution of the issues in perceive 10.3%.4 The distinction we be- favor of the defendants would have ended tween an from appeal a conditional proceedings; case, in one there could appeal and an from a full is that trial in an have been further prosecution no under an appeal from a conditional the issues statute; other, unconstitutional presented are more narrowly; we will not proceedings would have been outlawed exposed to the trial threadbare error the statute of here, limitations. But allegations compose the bulk of unsuc- any could resolve one of suppression several cessful appeals. issues raised criminal issues in favor of the appellant, thus giving delays We are also conscious of undue him the opportunity to withdraw his justice produced administration effect, and to compel trial. argues the trials,

unnecessary the crushing also of government, permits placed financial the taxpayers burdens defendant pre-trial adverse pay who ultimately expenses federal suppression order, privilege denied de criminal A litigation. public expense of fendants and extended only govern dollars, hundreds of thousands of inevitable ment in 18 U.S.C. 3731.6 trials, in some the price criminal one gladly pays under a The government’s Constitution where contention fails to rec- “man free ognize can be because the state appeal is is neither from the Report 4. of provides Annual 6. 18 pertinent Director Admin 3731 part: U.S.C. § in Office, Courts, 1977, istrative U.S. Table B.1. Appeal by § 3731. United States By contrast, appeals following guilty pleas produced higher a have much of rate reversals. appeal An the United States shall lie to 1960’s, During the both New York and Califor- appeals a court of from a or decision order of appeal right nia created statute the a suppressing a district courts or [s/c ] exclud- guilty plea. on a conviction entered In the first ing requiring or evidence return of seized years experience, nine the New York of 8 of 20 property proceeding, in a criminal not made reversed, years cases were and in the first six put jeopardy after the defendant has been in California, reversed, surpris- in of3 13 were a finding before verdict or on an indict- Comment, ing Appellate of overall rate 33%. information, ment or if the United States Review of Constitutional Infirmities Notwith- attorney certifies to the court district that the Guilty, 305, standing a Plea 9 Hous.L.Rev. appeal purpose delay is not taken for (1971). 315-19 proof the evidence is a substantial of a proceeding. fact Rostow, material 5. E. The of Ju- Democratic Character Review, 193, (1952). 66 195 dicial Harv.L.Rev.

889 suppression nor from the or- denying appeal order from a sentence; final order of accepting plea; ap- the conditional der distinguish we do not power to review judgment is from the of sentence. A peal preserved issues at trial from our power to is a final judgment of sentence order preserved review issues at the reception of imposed the sentence is after a whether guilty plea. a entry guilty or after the of a jury verdict appeal Unlike an from an interlocuto- plea. B. order, devástating finality ry is a proceedings. Appellant pleaded has these government’s The argument related is prevail and if he does not here —as guilty, that the district court misused its discretion finality will not —there is the same he in accepting this plea, conditional appeal in an after sentence of convic- exists “appropriate circumstances” rule of Zudick jury tion rendered verdict. This should not be applied where there is the only power has the review court not possibility of future trial proceedings if the conviction, after sentence of appeal have appellant prevail were to on the merits in order, duty to review it as a 'final 28 appeal. his Subsumed in this contention U.S.C. § seems to be the skein argument of an law has an appeal Present federal made acceptance of the conditions here offends judgment a District from Court’s con- the provisions 11, of Rule Fed.R.Crim.P. is, viction in a criminal case what in ef- fect, is, right. a matter of That a de- have his conviction fendant has finding no Rule 11 Appeals, infirmity,

reviewed Court need obviously we did not in petition that court for an exercise of D’Amato and Zu not dick, we difficulty to allow him to confess bring conceiving its discretion how the only require- ease before the court. can mount a Rule 11 per- deficiency argument ments a defendant must meet for in its long favor. So expressed fecting appeal are those as- as the district court respects safeguards en pro- which time limitations within various acted protection for the of the defendant steps completed. cedural must be rule, especially the provision that “the plea is voluntary and not the result of force States, v. United 369 U.S. Coppedge or threats or promises apart from plea 441-42, 917, 919, 82 8 L.Ed.2d 21 S.Ct. agreement,” we do not (footnote omitted). understand how (1962) Corey See also Rule is States, 298, 11 11 offended these conditions. United U.S. S.Ct. (1963); Rule 11 allows the Pollard v. United broadest of L.Ed.2d States, 481, pleas. extreme, At one 352 U.S. S.Ct. North Carolina v. York, Alford, Berman v. New L.Ed.2d 27 L.Ed.2d (1970), 82 L.Ed. 204 held that a guilty plea accompa (1937). by protestations nied of innocence is consti tutionally acceptable: “Ordinarily, a judg Admittedly, range questions ment of conviction resting on a consideration on the merits in a open for guilty justified by the defendant’s admis entered on a direct from a sentence sion that he charged committed the crime restricted; plea is somewhat United against him and his judgment consent that Tucker, be entered without a any trial of kind. The (1972); 30 L.Ed.2d 592 Gore United plea elements, usually subsumes both States, 1280, S.Ct. so, even justifiably though there is no sepa (1958); Blockburger v. United L.Ed.2d 1405 rate, express by admission the defendant States, 76 L.Ed. U.S. that he particular committed the acts power but the to hear these claimed to constitute the charged of relief which can crime in appeals and the extent indictment,” things. the at granted very be are two different power subject requirement the to hear the merits of to the We have that the judgment upon sume, therefore, enter a a court “shall not that the plea procedure it is that will guilty is, unless satisfied not be abused. If it we case-by-case basis for the 400 will it on plea,” there is a factual correct a basis. We n.10, trust that the recep at 38 91 S.Ct. at 168 n.10. This district courts will be tive a showing by government the alterna- the gives the defendant broadest of in a given case extreme, govern- that a probability tives. At the the other actual, prejudice. ultimate We myriad a are ment can enter into of conditions also cognizant that some sister with a under circuits agreement defendant adopted have a more restrictive procedures. 11(d), (e). policy Rule From than a See we approved D’Amato, the one have in Zu standpoint, jurisprudential the limited con- dick, and Palmer.7 entry ditions which the in led insignificance pale this case when com- into V. pared, quantitatively qualitatively, or agreements pleas of We now turn to the merits of appellant’s —conditional pristine every sense—made suppression argues motion. Moskow day in the courts. federal the electronic surveillance Depart- violated

ment of guidelines, Justice govern- that the ment’s informant did not consent voluntari- 2. ly monitoring conversations, the and that government argues But the further that the denying court erred in the motion may by delay it prejudiced be a suppress product of three searches con- possible appellant prevail trial should ducted the law enforcement agents. merits. It raises usual difficulties asso- delay, ciated with trial such as memories A. dimming disappearance of witnesses. As a If this be matter of internal truly considered serious and administra control, tive argument, Department

valid one could be successful Justice has required authorization be government case, for the in obtained this then like from Attorney General, or a argument designated be should available a defend- as sistant, before ant electronic devices government appeals pre-trial may when the employed to private conversations, monitor suppression under 3731. So to state even when one parties argument is it. to answer consents. procedure

This is outlined in the depart approval mental orders. Written is re quired exigent unless circumstances dictate contentions, reject As we these it is the need for prompt action. Oral approval put well to circum “appropriate rule exigent in is permissible circumstances if proper perspective. stances” in It is based promptly followed by written authorization. on our in the proper confidence exercise of judges discretion the district this cir in Appellant argues guidelines judges cuit. We believe district have as were violated because written approval procedure much at stake in this we do. as precede did not the electronic monitoring. They opposed piecemeal appeals are as But the answers that the “exi- proceedings and truncated as we They gent are. circumstances” procedure was fol- highly value finality pre- as as we do. We in Perlick, lowed Agent case. Harold See, Cox, g., Sepe, e. (5th United States v. 464 F.2d States v. 486 F.2d Cir. (6th 1972) (“This say (a 1973) policy 941-42 unaccompanied Cir. is not to statement support extending any supporting there is reasons); not substantial and United Haynes guilty plea Benson, (9th supra Cir.). rule to most situations. emphasis It bears However, despite respect- Benson, Cox, Brown, the existence of that disap- while authority, adopt able decline to proving practice, rule in the various courts met the procedure the Sixth Circuit allowed appeals. merits of the The Fifth Circuit’s state- case”); district court instant United Sepe dictum, ment was also obiter the court Brown, (7th States v. 499 F.2d meeting particular appeal. the merits of the 1974) (accepting Cox); the rationale of United Firearms, Alcohol, Bureau of Tobacco and L.Ed.2d 221 (1973), emergency authorization was there were coercion, testified no threats or monitoring was initiat- nor Wadley express obtained before did the belief that he up was followed cooperate” ed. This oral authorization “had to as did the witness in request approval as evi- by a written Laughlin, F.Supp. 264, United States v. T. signature denced of Russell Bak- (D.D.C.1963). Obviously, Wadley did Jr., er, Deputy Attorney Assistant General. expect continued favorable treatment as a We are satisfied that there was sufficient agreement result of his cooperate, but emergency that an evidence demonstrate this consideration did not render his consent present.8 situation was involuntary. As we observed in Osser: inquiry Our on appeal is limited to wheth-

B. er the consent was voluntary and un- argument Appellant’s coerced, next is that not whether the motivations for Wadley was coerced the threat of exten it were altruistic or self-seeking. if he did not assist the prosecutions sive 483 F.2d at 730. See also United States v. government by recording conversations Zarkin, 250 F.Supp. (D.D.C.1966). appellant. appellant We conclude that C. Wadley’s was failed to show that consent voluntary. not investigation The which led to this prosecution began initiative, on March Wadley his own contacted when On Wadley Edward Department Detective was arrested Philadelphia Police inside Mos and, kow’s vacant days, building in a matter of ar- at 2546 McGlotten South Second rangements arrest, were made for the electronic Street. At the time of the officers person-to-per- monitoring telephone against discovered and seized evidence Mos The record Wadley’s subsequent cooperation son contacts with Moskow. kow. en monitoring was done with abled the shows that to record additional evidence, voluntary Wadley, incriminating consent of all sup the free and of which ported supported by Wadley’s government’s application desire to show that for investigators was true. search story produced he told warrants which later still hearing Wadley suppression testified at the more evidence. any my he “to cleanse doubt of wanted The appellant (1) contends that: saying.” as far as what I was truthfulness 26,1977, March entry by Philadelphia police Hearing at 94. Transcript of Street, into 2546 South although Second cause, confronting probable situation the wit with

As in the was unlawful because Osser, Freedman in United States done without a warrant and that ness the obser- 1973), denied, (3d evidence, cert. 414 vation of incriminating including persuasive: present government’s brief is duct and 8. The intentions demonstrated public that he was a serious menace. At the emergency situation was evidenced time, successful, well-regard- same he was a Wadley -by solicitation of Moskow to set businessman, likely prevail ed who would building a fire in a vacant in a residential credibility a one-on-one neighborhood contest with an ad- area. The immediate consist- Accordingly, op- occupied new-type mitted arsonist. when the houses. Federal ed of portunity confirming agents for that Moskow had been involved arose Moskow’s so- knew activity year tape, imperative one and that he licitation on in this over it was that the for setting responsible agents promptly. Wadley’s cooperation at least five had been act Affidavit, (see Complaint assured, agents fires and Warrant with the had been but incorporated agents which is the search warrant could not run the risk that Moskow ..) part suppression record . . would find another unknown arsonist to fur- Further, Wadley agents federal knew from illegal designs agents ther his while the were approximate- had solicited him that Moskow taking required the time to obtain written ly telephone the June 9 one week before Therefore, authorization. consistent with de- Wadley that Moskow “had calls. testified partmental regulations, emergency autho- weekend, job, me to like that wanted do sought rization was and obtained. before, but, know, you I was the weekend Appellee Brief for at 11-12. past delaying con- it.” . . . Moskow’s Wadley, was unlawful the arrest of and the minimal damage, or whether the intruder suppressed; fruits thereof should have been might departed have and left behind a fuse (2) entry by a fire delay the warrantless marshal or might mechanism that be deacti- vated, morning in the of March 26 was like- later if quickly. discovered If the intruder wise unlawful because made without a were still building and aware of the products police warrant and the of his in- presence, might search he have considered vestigation suppressed; lighting should have been a diversionary fire to aid his es- (3) Indeed, warrants cape. the federal search executed on police the could not realisti- 20,1977, although facially June 10 and June cally preclude the possibility any reckless containing showing sufficient to make out behavior possessed intruder who cause, probable were defective because the quantity gasoline evident from the product facts stated therein were the primary fumes. Of police concern to the prior illegal searches as well as unlawful was the safety occupants neigh- government electronic surveillance. The boring buildings. To eliminate the hazard them, the entry by police contends and immediate entry was required. fire into 2546 officials South Second Street The cases relied on appellant do not justified without a warrant was under the address the exigent kind of circumstances “exigent exception circumstances” justified which entry warrantless in this rule. warrant case. In United Chadwick, States v. warrant, 1, 2476, It is well settled that absent a U.S. 97 S.Ct. (1977), L.Ed.2d 538 requirements appellants of the Fourth complained Amend- of a search of a ment can be satisfied footlocker which had transported existence of been with them on a probable cause and such other train and circumstanc- loaded into an automo- bile which their arrival at person es would cause reasonable a Boston train station. It “exigencies was believe that the of the situation conceded that federal agents probable had cause to imperative.” made that course believe that McDonald the footlocker States, marijuana. contained They v. United 335 U.S. 69 S.Ct. arrested appellants transported 93 L.Ed. 153 them Warden v. and the footlocker to their office. Hayden, About an hour later, and one-half (1966). footlocker agree L.Ed.2d 782 We with the opened was warrant, without a and was government to allow this situation to found to large contain a quantity of the go uninvestigated for the several hours it There, noisome weed. did would have taken to obtain a warrant argue not exigency is the touch- grave public would have allowed a danger stone Indeed, of this case. it specifical- was uncorrected, go reject sug- Moskow’s ly stated agents that “the had no reason to gestion danger passed had when believe that the footlocker explo- contained police arrived and that they had a sives or inherently other dangerous items.” present ability to “freeze” the situation S.Ct. at 2480. securing the premises from the outside. In- deed, it can be said that it was the duty Michigan Tyler, police both of the and the fire marshal to (1978), L.Ed.2d 486 draws an promptly investigate act and eliminate important distinction between extinguish public Philadelphia hazard. See Home ing a fire and lingering for a reasonable Charter, seq. (1951), Rule 5-200 et and 53 investigate cause, time to on the one P.S. 14526 and §§ hand, making additional entries later to investigate causes, on the other. responding were A police specific required warrant is under the latter circum surreptitious entry information of into a stances. The Court observed: building night. vacant at a late hour of the Upon inquiry, they strong their detected a A burning building clearly presents an gasoline coming odor of building. from the exigency of sufficient proportions to ren- They way knowing had no whether the der a warrantless entry “reasonable.” might already Indeed, intruder have started fire it defy would suppose reason to prompt extinguish action could that firemen must secure a warrant or entering burning ruling reversed, consent before struc- court’s was in which case the blaze. put ture to out there could be no appeals, then, trial. Both were from orders that were final as to the at 1950. It would parties. reason for a fire marshal to secure defy also entering a a warrant before structure to contrast, By the defendant here chal- ordering building the ven- prevent by a fire lenges pre-trial six different rulings, all of by seizing empty gasoline three tilated and relating them to admissibility the of certain lighter. a “bic” cans and evidence. disagree If we with any one of the district being illegal po- rulings, no search the court’s six There then the marshal, subsequent may, defendant option, lice or fire the federal at his withdraw his plea proceed Thus, warrant was not tainted. search and to trial. by using the guilty plea conditional under these cir- judgment The of the district court will be cumstances, a defendant is permitted to affirmed. test sufficiency the and the admissibility of * government’s the prior evidence to trial. If STERN, Judge (dissenting). District agrees this Court with the district court majority disagree I with the that there is admissible, that the evidence is the defend- between the condi- principled no difference fact, ant has lost nothing; he has re- guilty pleas tional utilized United States ceived all the benefits of a guilty plea. If Zudick, (3rd 1975) F.2d 848 Cir. and this Court disagrees with some or all of the D’Amato, (3rd United evidentiary issues, then the defendant may 1970) utilized below. I fur- proceed trial, to previous unscathed his procedure ther find that the authorized guilt. admission of disagree Even if we majority contrary the here is to a recent pretrial with all of the orders and suppress I, Supreme the decision of Court. there- evidence, all of the challenged govern- the fore, respectfully majori- dissent from the ment has right reserved its press to the ty’s holding appealed that the order from is prosecution with whatever other evidence it meaning within the of 28 final U.S.C. This, then, has. is a interlocutory bare ap- peal testing the admissibility of various DAmato, pleas The in Zudick and in al- items of government’s evidence in the though were nevertheless final conditional hands, nothing govern- more. If the disposition in that no matter what the permitted ment is evidence, to use all of its Zudick, appeal, there could be no trial. then the willing plead. defendant is If plea upon the defendant conditioned his government is to any piece be denied right the statute of limitations it, then the plea defendant’s is void.1 DAmato, question; was condi- Apart jurisdictional from the question of upon tioned defendant’s test finality, the use of the guilty constitutionality appeal. of the statute on plea here flies in the cases, Supreme face of the In both consented to policy Court’s judgment that the agreed exclusion- procedure irrespective reversed, ary operates rule whether not to free the this Court affirmed or but remedy violation of a proceedings there could be no further in the defendant’s fourth rights. amendment district court. Either the district We defeat policy court’s pre-trial permit when we disposition of the motion was af- a defendant who admits firmed, guilt in which government’s case defendant was his to test the ability to guilty, prove guilt. bound or the district his forget We should not * Stern, Judge challenged by prior Herbert J. United States District the defendant to trial. If Jersey sitting by desig- for the District of New pre-trial suppression all of the defendant’s mo- denied, nation. may tions are the defendant take a undoubtedly, Zudick will come to —which robbery, example, 1. In the of a bank case be known as a Moskow —conditioned may evidence have been seized from the de- upon pre-trial the affirmance of each of the taken, home, photographs fendant’s a confes- rulings. in a sion obtained and defendant identified lineup; resulting may item of evidence each defendants, guilty plea indeed, Many course, purpose of the

it is the would be — plea of of a trial which the purpose willing delay to tolerate the ain trial that guilt supplants or guilt determine pretrial appeal is attendant —to I endorse of an accused. cannot innocence hope winning that appeal. guilty plea to test of a conditional use Among things, may prejudice other delay ability to government’s prove prosecution’s case, ability prove its already been admitted. which has society increase cost to of maintain- majority finds insubstan apparently ing those subject pre-trial defendants argument it government’s is tial the detention, prolong period during the delay prejudiced by interlocutory the of an which defendants may released on bail Yet, Supreme a unanimous Court appeal. commit other crimes. very recently relied on this exact con has 862, At 98 S.Ct. at in is no to an holding right sideration there However, pre- these the considerations are interlocutory appeal pre-trial from a order rejected by cise ones the majority in autho- a motion dismiss an denying to indictment rizing Supreme the which Court has v. speedy grounds. on trial United States MacDonald, 850, prohibited: 98 435 U.S. S.Ct. 56 (1978). There, L.Ed.2d18 the Court noted that But government the argues further re interlocutory appeal pre-trial from a an may that it prejudiced by delay be the suppress also be fusal evidence would possible trial should appellant prevail improper: the merits. It raises the usual diffi- is all but Admittedly, value —to culties with delay, associated trial such as litigant triumphing the unusual most —in dimming memories and disappearance of trial, it, regard- than after before rather witnesses. If this be truly considered a winning of the of the less substance serious argument, and valid one that is be con- claim. But this truism not to could be for the government successful quite proposition with the distinct fused case, then like argument should be (because certain sub- claims the available to a when defendant the entailed, than rights stance rather government pre-trial appeals suppression litigant winning advantage to a under argument So state this sooner) claim should be resolved before is to answer it. ... trial. Majority Op., ante at 890.

. of the indictment is Dismissal when a proper sanction defendant has true, it may While majority points as the immunity granted prosecution, been from out, that argument a like should be availa- or, defective, when his indictment usu- ble to a defendant when the ally, only against when the evidence him its right exercises pre- adverse in violation of the Fourth was seized order, suppression trial agree I do not with however, Obviously, Amendment. majority to state this argu- “[s]o led the has not Court conclude ment is to answer it.” Ante at 890. The pursue interlocutory such defendants can simple Congress fact is that has authorized States, appeals. Abney v. United 431 an appeal. such (651), at 663 S.Ct. 52 [97 States, sum, 651]; then, v. Cogen L.Ed.2d United In find significant jurispru I 73 L.Ed. 278 U.S. policy impediments dential and to the condi States, v. (1929); Heike United here, tional utilized and I 30 S.Ct. L.Ed. align myself majority vast of cir (1910). cuits which have refused to entertain such (Emphasis 860, n.7. 98 at 1552 See, At appeals. Benson, United States v. supplied). (9th 1978); F.2d Cir. United States v. Brown, (7th Cir.), denied, 499 F.2d 829 cert. values which it to explaining

In led permitting interlocutory L.Ed.2d 640 prejudice find Matthews, appeals, Supreme Court stated: United v. States United States (4th 1973); F.2d 1173 Cir.

Sepe, 486 F.2d 1044 United (5th 1973); Cir. Cox, (6th 1972). agree may I that a trial often be no

While only than a mere “charade” if done

more

provide finality, remedy for that is not guilty plea, but rather a facts, stipulated which simulta-

trial on with the

neously dispenses need for full- preserving

blown trial while

obtain a reversal of conviction if the disagrees Appeals

Court of with the district pre-trial disposition

court’s motions error, any, if is not harmless. sum, applaud plaudits while I

majority has bestowed the District Circuit,2 the usual

Judges of soundness judges which district exercise their itself, respectfully sug-

discretion cannot I jurisdiction upon this

gest, confer Court

where none otherwise exists. CORPORATION, Corpo Gulf Oil

EXXON

ration, Corporation, Mobil Oil Standard California, Company of

Oil Standard Oil (Indiana),

Company and Atlantic Rich Company

field COMMISSION,

FEDERAL TRADE Calfin Collier, Chairman, Dixon,

J. Paul Rand Member, Clanton, Member, A. David Dole, Member, Hanford

M. Elizabeth Corporation Corpo

Exxon and Gulf Oil

ration, Appellants.

No. 77-2473. Appeals,

United States Court of

Third Circuit.

Argued Sept. 1978.

Decided Dec. Particularly heartening Jersey, were accolades Court of New who first created the my by Judge Zudick-type plea. awarded Aldisert in Zudick to Judge colleague, own Biunno of District

Case Details

Case Name: United States v. Moskow, Sigmund

Court Name: Court of Appeals for the Third Circuit

Date Published: Nov 30, 1978

Citation: 588 F.2d 882

Docket Number: 78-1108

Court Abbreviation: 3rd Cir.