United States v. Brown

• Citation: 481 F.2d 1035
• Decision Date: 25 July 1973
• Docket Number: No. 72-1601.,72-1601.
• Parties: UNITED STATES of America, Appellant, v. Ronald Paul BROWN, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

481 F.2d 1035 (1973)

UNITED STATES of America, Appellant, v. Ronald Paul BROWN, Appellee.

No. 72-1601.

United States Court of Appeals, Eighth Circuit.

Submitted March 16, 1973.

Decided July 25, 1973.

Sheryle L. Randol, Asst. U. S. Atty., Kansas City, Mo., for appellant.

David R. Freeman, Federal Public Defender, Kansas City, Mo., for appellee.

Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and VAN SICKLE, District Judge.^*

VAN OOSTERHOUT, Senior Circuit Judge.

This is a timely appeal by the Government from final order dated September 25, 1972,¹ dismissing an indictment against the defendant Brown charging him with bail jumping in violation of 18 U.S.C. § 3150.

Defendant had entered a plea of guilty to a Dyer Act charge. Date for sentencing remained indefinite pending a report by the probation office. Defendant was released on his own recognizance which required him to appear at all scheduled hearings and prohibited him from leaving the Western District of Missouri. He gave his address at which he could be reached as R.R. 4, Warrensburg, Missouri — his father's home. A certified letter notifying him to appear on June 16 for sentencing was sent to defendant at the above address. Such letter was returned unopened. Similar notification was sent to defendant at Box 122, Centerview, Missouri, the address of his estranged wife, which was receipted for by his wife on June 14 and opened by her.

Defendant concedes that such letter was given to him by his wife on June 18, the first time defendant appeared at his wife's home during the relevant period. Defendant had not given his attorney or any court official any change of address or instructions where to reach him prior to the mailing of the notice. His attorney's efforts to reach him by phone were unsuccessful.

After receiving the notice of the June 16 hearing from his wife on June 18, defendant made no effort to contact his attorney or court officials. On June 20 defendant was contacted while incarcerated in a Burlington, Colorado, jail by FBI Agent Bunch. He was given the Miranda warnings after which he voluntarily stated inter alia that he knew his failure to appear for sentencing would be considered a bond default which would result in additional charges. He stated that he panicked upon learning he had missed his sentencing appearance and fled the State of Missouri and headed for Denver to visit his sister. He admitted that he gave his father's Warrensburg address as a place where he could be reached.

On July 7 defendant appeared before the court for arraignment on the bail jumping charge with his counsel. After his rights were fully explained to him by the court, he entered a voluntary plea of guilty to the indictment. The transcript of the Rule 11 proceeding reveals that the court was uncertain whether the willful element of the offense was established. The court accepted the plea conditionally, stating:

" * * * I will simply require the United States Attorney\'s office to prepare, file and serve within a week an appropriate statement of what the facts are, together with a brief in support, and opposing counsel shall have five days thereafter to file a brief in opposition. If I determine that there is not sufficient evidence, I will simply set the plea aside, . . ."

On July 14 the Government filed a response to the court's order requiring it to supply additional information which sets out additional facts and exhibits. Defendant on July 24 filed a motion to require the Government to produce additional evidence of his guilt or in the alternative, for leave to withdraw plea of guilty and for a dismissal. The Government on July 26 filed a motion acquiescing in defendant's motion for leave to withdraw guilty plea. The Government requested that the case be docketed for trial.

The court by order of July 27 sustained defendant's motion for disclosure of additional evidence. All other pending motions were denied. The Government on August 8 filed response to the July 27 order, naming particular witnesses and giving a synopsis of their anticipated testimony. The Government further stated that they would produce evidence that the defendant was in Virginia during the first part of June and that he left there on June 3 with an automobile illegally obtained and was possibly accompanied by a female; that the automobile and the female thus far have not been located and that the search therefore is continuing "and it is the Government's belief that she does have information regarding defendant's whereabouts on dates in question and may be able to testify to his announced intention to avoid his court appearance, and evade capture. Further, it is our position that the Government has a right to pursue its investigation until the time of trial and that investigation is continuing."

The pleading concludes as follows:

"This is not a stipulation of fact nor does the United States consent to have this information treated as such. The United States furnishes the above information in compliance with Court Order but it reserves to itself objection to these proceedings, and respectfully requests the Court to accept defendant\'s guilty plea as tendered or allow him to withdraw his plea and docket this case for trial."

On August 22 the court filed an additional order stating that the August 8 response does not adequately set out what factual circumstances are under investigation. The court challenges the Government's statement that it has a right to pursue its continuing investigation up to the time of the trial. The court then states:

"The question of whether there is a factual basis for a guilty plea under Rule 11 and the question of whether the government will be able to adduce sufficient evidence to get to the jury is essentially the same question. In order that this question may be put in proper focus, it is, accordingly,

* * * * * *

"ORDERED that the government state what additional investigation is being pursued so that a determination may be made as to whether the evidence being sought, when considered with the evidence already outlined in the stipulation of the parties and in the government\'s response of August 8, 1972, may be sufficient to establish a factual basis for the acceptance of the defendant\'s plea of guilty."

The Government on September 5 responded that it has attempted to fully comply with the prior orders of the court and that it is still looking for the female referred to in its prior response for the purpose of seeking the information there indicated, and concludes as follows:

"The Government is not willing to consent to submission of the case to the Court on stipulation and will not consent to the waiver of trial by jury and reiterates its request that the case be forthwith retransferred to Division 3 for early trial or that this Court accept defendant\'s tendered plea."

The final order entered on September 25 which gives rise to this appeal reads in pertinent part:

"The defendant in this case has always indicated a willingness to enter a plea of guilty. The difficulty has always been whether it can fairly be said that a factual basis for such a plea actually exists.

* * * * * *

The refusal of the government to comply with the repeated order of this Court forces the Court into a position not dissimilar from that which the government forced Judge Will under the circumstances involved in Will v. United States, 389 U.S. 90 88 S.Ct. 269, 19 L.Ed.2d 305 (1967).

"Judge Will directed the government to furnish particular information and indicated that he would dismiss the indictment if the government refused to comply. The government sought and obtained a mandamus in the Seventh Circuit. The Supreme Court reversed. The case makes clear that the Federal Rules of Criminal Procedure do not place limitations upon the power of the Court to direct appropriate proceedings in order to keep current with an ever increasing docket.

"Under the circumstances of this case, it is

"ORDERED that the indictment should be and the same is hereby dismissed."

Defendant has filed a motion to dismiss this appeal upon the ground that the order appealed from was in effect an acquittal of the defendant and that 18 U.S.C. § 3731 denies the Government the right to appeal from the judgment. Such motion is submitted with the appeal on the merits.

The Government seeks reversal on the ground that the dismissal of the indictment without the Government's consent was beyond the power and authority of the court. Defendant argues that the dismissal by the court below was proper and that, regardless of its propriety, this court is without jurisdiction to hear this appeal. These two questions are closely intertwined.

Defendant's jurisdictional argument is focused on the appellate jurisdiction conferred by 18 U.S.C. § 3731. It is clear that if this court has jurisdiction to hear this appeal it is derived from § 3731.

As recently amended by the Omnibus Crime Control Act of 1970 (P.L. 91-644, tit. III, § 14(a), 84 Stat. 1890), § 3731 provides in part as follows:

"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."

* * * * * *

"The provisions of this section shall be liberally construed to effectuate its purposes."

The amendment applies to criminal cases begun after January 1, 1971, and thus controls this case. Defendant contends that the dismissal in this case was tantamount to an acquittal and that, as such, jeopardy "attaches" prohibiting further prosecution. Defendant thus seeks to bring himself within the exception to the general rule of § 3731. Unfortunately, no cases have been cited or found which seek to explore the meaning of § 3731 as amended.

In reference to the pre-amendment...