United States v. Sepe, 72-1352.
Decision Date | 04 April 1973 |
Docket Number | No. 72-1352.,72-1352. |
Citation | 474 F.2d 784 |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Florencio SEPE, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Melvyn Kessler, Dennis I. Holober, Miami, Fla., for defendant-appellant.
Robert W. Rust, U. S. Atty., Michael P. Sullivan, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
Before COLEMAN, GOLDBERG and GODBOLD, Circuit Judges.
Rehearing En Banc Granted April 4, 1973.
The Grand Jury for the Southern District of Florida indicted Florencio Sepe for (1) conspiring to import sixty-six pounds of heroin, 21 U.S.C. § 952(a); 18 U.S.C. § 2; 21 U.S.C. § 963; (2) for importing sixty-six pounds of heroin; and (3) for possessing the said narcotics with intent to distribute, 21 U.S.C. § 841(a)(1).
On January 11, 1972, the case came to trial.
Sepe contended that the heroin and the suitcase in which it had been contained should be suppressed as being fruits of an unlawful search. The trial judge disagreed.
A jury was selected. The government made its opening statement. Seven witnesses were examined, compiling a trial transcript of 141 typewritten pages.
At this point the following transpired:
MR. KESSLER counsel for Sepe: Your Honor, we have a most unusual request at this point in time and I trust the Court would go along with this request.
We are presently attempting to negotiate a favorable arrangement between the Defendant and the U. S. Government. There are one or two small problems, one of which, I'm waiting for the Interpreter that my client has faith in and that we can discuss it a little bit further, and he should be here momentarily.
THE COURT: We will discuss it here at sidebar.
We will let the jury have a recess for half an hour.
At this time, Your Honor, with the Court's permission, we would tender a plea of guilty to Count 1, and a plea of no contest to Counts 2 and 5.
Thereafter, the following proceedings took place:
Do you understand that by entering a plea to Count 1 of the indictment that you are admitting the truth of the charge, that you agreed with one or more of the other persons named to import unlawfully into the United States a quantity of heroin; you understand that?
You understand that?
With respect to Count 2 of the indictment, you are charged with having unlawfully imported into the United States from a place outside, a quantity of heroin, sixty-six pounds. Do you understand that by a plea of nolo contendere you say to the Court that you do not contest the truth of that charge?
And do you understand that on that Count if you plead nolo contendere, there is no further trial before the jury or before the Judge, and that the Judge may sentence you upon that Count of the indictment with the same force and effect as if you had entered a plea of guilty?
The defendant was thereafter sentenced to one-half of the maximum term of imprisonment, plus a fine.
He now seeks to appeal on the ground that the intended reception in evidence of the suitcase and heroin infringed his Fourth Amendment rights and that his conviction, although on obviously voluntary pleas of guilty and nolo contendere, should be reversed.
We cannot accept this contention.
The situation is completely covered by a most thoroughly researched, cogently reasoned decision recently rendered by the United States Court of Appeals for the Sixth Circuit in United States v. Cox, 464 F.2d 937 (1972).
There is a strong temptation to quote in extenso from the Cox opinion. Since it is reported, and thus available to all, we restrict ourselves to the following excerpts:
"The procedure employed in the case at bar is at variance with the general, well-settled rule that a guilty plea "normally rests on the defendant's own admission in open court that he has committed the acts with which he is charged," see McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L. Ed.2d 763 (1970); Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); McCarthy v. United States, 394 U.S. 459, 466, 89 S. Ct. 1166, 22 L.Ed.2d 418 (1969). When made by the accused, knowingly, willingly and with the benefit of competent counsel, a plea of guilty waives all nonjurisdictional defects. Austin v. Perini, 434 F.2d 752 (6th Cir. 1970); Humphries v. Green, 397 F.2d 67 (6th Cir. 1968); Reed v. Henderson, 385 F.2d 995 (6th Cir. 1967); McCord v. Henderson, 384 F.2d 135 (6th Cir. 1967); Crockett v. Haskins, 372 F.2d 475 (6th Cir. 1966); also see, Jenkins v. Beto, 442 F. 2d 655 (5th Cir. 1971); Nobles v. Beto, 439 F.2d 1001 (5th Cir. 1971); United States v. Rook, 424 F.2d 403 (7th Cir. 1970), cert. den. 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970); United States v. McElya, 142 U.S.App.D.C. 38, 439 F.2d 548 (1970); Abram v. United States, 398 F.2d 350 (3rd Cir. 1968); United States ex rel. Rogers v. Warden, 381 F.2d 209 (2d Cir. 1967); Runge v. United States, 427 F.2d 122 (10th Cir. 1970); Seybold v. Cady, 431 F.2d 683 (7th Cir. 1970). The jurisdictional exception to the general rule has been limited to cases in which the accused is challenging the constitutionality of the statute, usually on Fifth...
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State v. Madera
...plea in the absence of statutory authority or court rule is improper. United States v. Brown, 499 F.2d 829 (7th Cir.1974); United States v. Sepe, 474 F.2d 784, aff'd en banc, 486 F.2d 1044 (5th Cir.1973); United States v. Cox, 464 F.2d 937 (6th Cir.1972); see generally United States v. DePo......
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U.S. v. Winter, 73--2236
...of the motion to suppress in contradiction to our decisions in United States v. Sepe, 5 Cir., 1973, 486 F.2d 1044 (en banc) affirming 474 F.2d 784; United States v. Mizell, 5 Cir., 1973, 488 F.2d 97? After indictment, appellants entered pleas of not guilty and moved to dismiss the indictmen......
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State v. Crosby
...1967). To permit review of non-jurisdictional defects, appeals from guilty pleas, has also been criticized. See e.g., United States v. Sepe, 474 F.2d 784 (CA5, 1973); United States v. Cox, 464 F.2d 937 (CA6, 1972). The chief arguments against such a procedure are: it compromises the finalit......
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Lefkowitz v. Newsome 8212 1627
...in the exercise of their supervisory powers over the administration of criminal justice in the federal system. See United States v. Sepe, 474 F.2d 784 (CA5), aff'd en banc, 486 F.2d 1044 (1973); United States v. Cox, 464 F.2d 937 (CA6 1972); United States v. Mizell, 488 F.2d 97 (CA5 1973), ......