Anderson v. United States
| Decision Date | 24 November 1964 |
| Docket Number | No. 19376.,19376. |
| Citation | 338 F.2d 618 |
| Parties | Roland B. ANDERSON, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Roland B. Anderson, in pro. per.
Sidney I. Lezak, Acting U. S. Atty., Donal D. Sullivan, Asst. U. S. Atty., Portland, Or., for appellee.
Before MERRILL, DUNIWAY and BASTIAN, Circuit Judges.
Anderson appeals from an order denying his motion to set aside his conviction (28 U.S.C. § 2255). On July 17, 1963, he pled guilty to the second count of a six-count indictment. It charged that, on February 6, 1963, he "did unlawfully, knowingly, wilfully and feloniously sell, dispense and distribute a quantity of a narcotic drug, to wit: Demerol, not in the original stamped package and not from the original stamped package; in violation of Section 4704(a) of Title 26, United States Code; Penalty, Section 7237, Title 26, United States Code." The other five counts were dismissed.
Anderson's motion to set aside his conviction was filed on March 26, 1964. It asserts three grounds: (1) he was entrapped by a paid informer; (2) he was misinformed as to the facts of the case, in that (as appears solely from his brief in this court) his retained counsel did not tell him that the government would have to show criminal intent; (3) his counsel told him that if he went to trial and attacked the conduct and character of the informer, thus destroying the latter's usefulness to the government, he would get from 5 to 10 years on each count, but that if he pled guilty to one count "he would receive a suspended sentence and a period of 2 years of such would be reccomended sic to the court." No recommendation was made, and he was sentenced to three years, "to become eligible for parole at such time as the Board of Parole shall determine."
1. A conviction on a plea of guilty is based upon the plea, not upon evidence that might have been offered at a trial. Thomas v. United States, 9 Cir., 1961, 290 F.2d 696. The question as to whether Anderson was entrapped could have been decided at a trial and reviewed upon appeal. It is not available in a proceeding under section 2255, either after trial, (Stanley v. United States, 9 Cir., 1957, 239 F.2d 765); or after a plea of guilty, (Ruiz v. United States, 9 Cir., 1964, 328 F.2d 56; see also Hoffman v. United States, 9 Cir., 1964, 327 F.2d 489). The first ground asserted in the motion is without merit.
2. The principles applied in the cases cited also dispose of the second ground. We note, too, that the count to which Anderson pled guilty charged him with acting "knowingly, wilfully and feloniously," as did the comparable count of the first indictment hereafter referred to. Anderson read it, as is established by the record. He so stated in open court. He also signed a petition to enter a plea of guilty, in which he stated: "I have received a copy of the indictment before being called upon to plead, and have read the indictment and discussed it with my attorney and fully understand every charge made against me in this case." His counsel certified to the same effect.
3. The third ground requires the recital of a little history. Anderson was first indicted on 9 counts on April 23, 1963. Counts 1 to 3 relate to an incident occurring on February 6, 1963, charging violation of 26 U.S.C. § 4705(a) in count 1, of § 4704(a) (purchase) in count 2, and of § 4704(a) () in count 3. Count 3 is identical to count 2 of the second indictment, to which Anderson ultimately pled guilty. Counts 4 to 6 and 7 to 9 are similar to counts 1 to 3, except as to dates, February 11 and 12, respectively.
On May 24, Anderson, with retained counsel, was arraigned, pled not guilty to all nine counts, and had his bail reduced. The matter was set for trial the week of June 17. On June 4, counsel moved for, and on June 12, obtained a bill of particulars. On June 18, in open court, Anderson withdrew his plea of not...
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