Bartlett v. United States, 18019.

• Decision Date: 05 January 1966
• Docket Number: No. 18019.,18019.
• Citation: 354 F.2d 745
• Parties: Irvin B. BARTLETT, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

354 F.2d 745 (1966)

Irvin B. BARTLETT, Appellant, v. UNITED STATES of America, Appellee.

No. 18019.

United States Court of Appeals Eighth Circuit.

January 5, 1966.

COPYRIGHT MATERIAL OMITTED

Irvin Berless Bartlett, pro se.

Richard D. FitzGibbon, Jr., U. S. Atty., and John A. Newton, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before MATTHES and GIBSON, Circuit Judges, and LARSON, District Judge.

GIBSON, Circuit Judge.

Appellant, Irvin B. Bartlett, appeals from an Order overruling his Motion to Vacate and Set Aside Sentence filed pursuant to Title 28, U.S.C.A. § 2255. The Motion was based on the refusal of the trial judge to allow appellant to withdraw his waiver of indictment and the contention that his plea of guilty was not made voluntarily with understanding of the nature of the charges against him.

The files and records of the case show that appellant appeared with counsel of his own choosing before the District Court on May 6, 1955 for possible waiver of indictment. A signed waiver of indictment was executed by appellant in open court and witnessed by his counsel. At the same proceeding appellant through counsel entered a plea of guilty to four counts of an information, which resulted in a total sentence of twelve years on the following separate charges: three years each on three counts of sale of heroin apparently in violation of § 2554(a) of the Internal Revenue Code (Title 26, U.S.C.A. § 4705 (a) and three years for possession of marijuana in violation of Title 26, U.S.C. A. § 4744(a). The proposed information clearly sets forth the four separate counts, and appellant admits receiving a copy of the proposed information before entering the court room but contends that he did not read it. This contention is refuted by a Deputy United States Marshal, who advised the Court that he gave appellant a copy of the proposed information and that appellant sat down and purported to read it. After filing the waiver and information, appellant by counsel waived the reading of the information. At that time the trial judge stated that appellant waives formal arraignment, reading of the information and enters a plea of guilty to counts 1, 2, 3, and 4 of the information. Whereupon the Government presented its statement of facts to the Court. Appellant's counsel then made a plea in mitigation on the ground of health. The Court again enumerated the three counts dealing with selling heroin, whereupon, Mr. Lawson, appellant's then counsel, replied: "I understood it was just one," but did not pursue the matter further.

Thereafter on May 13, 1955, the appellant again came before the Court asking the Court to set aside the sentences on the plea that he thought there was only one narcotics charge against him consisting of the offense of possessing marijuana. It appears from the record that appellant's mother interceded with the Court after the first sentences were imposed, emotionally insisting that appellant was charged with something that he did not do. The trial judge set the pleas of guilty aside stating that "If you want that set aside, I am going to set it aside for you and you can get your own lawyer, and we will set it down and try it. * * * I don't think either of you referring to appellant and his counsel Lawson are telling the truth, but if you want a trial, I am going to give you one." The appellant responded "Yes, sir, I would like to have it set aside, your Honor, I intended to plead guilty of possession of marijuana."¹ The Court then reminded him that he had plead guilty to four counts and that a witness had watched the appellant read the information, indicating that the Court did not believe the allegations made about not knowing what was contained in the information.

The pleas of guilty were set aside and the matter continued so that appellant might obtain other counsel. Appellant next appeared in court on May 20, 1955, together with new counsel of his own choosing, Mr. Grant, who requested permission of the Court to withdraw appellant's waiver to be prosecuted by information. This the Court refused to do. Thereupon a plea of not guilty was entered to all four counts. Three pre-trial motions were filed, heard and denied.

Prior to the trial defendant entered a guilty plea to count four of the information charging possession of marijuana, the validity of which appellant is not questioning. Trial was commenced before a jury on June 13, 1955, on the three heroin counts. After the Government had adduced the testimony of two witnesses, a chemical analyst and a narcotics agent, appellant on advice of his second counsel pleaded guilty to counts 1 and 2 of the information, count 3 being stricken by leave of Court. Thereupon a total sentence of 13 years was imposed upon appellant consisting of consecutive sentences of five years each on the two heroin charges (counts 1 and 2) and three years on the marijuana charge (count 4).

On March 22, 1965, almost ten years later, appellant filed his motion to vacate and set aside his sentence on the grounds (1) that a waiver of indictment signed in ignorance of its contents is null and void and the Court was therefore without jurisdiction to proceed with the second trial; and (2) that the trial court did not comply with the requirements of Rule 11, Fed.R.Crim.P. before accepting his pleas of guilty. This motion was overruled on April 7, 1965, without a hearing. Appeal was duly taken to this Court.

Since appellant's motion was overruled without a hearing we must decide if the files and records of the case conclusively show that the appellant is entitled to no relief. Title 28, U.S.C.A. § 2255.

The law is well settled that under Rule 7(b), Fed.R.Crim.P. the defendant "May be prosecuted by information if the defendant, after he has been advised of the nature of the charge and of his rights, waives in open court prosecution by indictment." United States v. Jones, 177 F.2d 476 (7 Cir. 1949) in considering the issue of whether a defendant understandingly and intelligently waived his right to be indicted by a grand jury observed that this right is one guaranteed by the Constitution, Amendment Five, but an intelligent accused may waive any constitutional right that is in the nature of a privilege to him, or is for his personal protection or benefit.

There is no particular ritual that the trial court must follow in accepting a waiver of indictment, but the Court must be satisfied that the waiver was knowingly, voluntarily, and understandingly made, which would include information being supplied from any reliable source respecting the nature of the charges against him, his rights and the possible penalties applicable to the charges made.

Appellant contends that the waiver of indictment is null and void, leaving the Court without jurisdiction to try him on the information. He reasons that the District Court when it set aside the first plea of guilty allegedly made in ignorance of the charges, erred when it refused to set aside the waiver of indictment made with allegedly equal ignorance. Appellant is attempting to indulge in the presumption that his first plea of guilty to four counts of the information was vacated and set aside solely because he was under the misapprehension that there was only one offense involved, namely, possessing marijuana, and that the same presumption would be operative on his request to set aside the waiver of indictment; one could not be granted without granting the other.

This argument, though logical in appearance, cannot stand because it is patently clear that appellant's major premise is false. Contrary to appellant's assertion, the records clearly indicate that the Court set aside the plea of guilty because it was willing to accord appellant a jury trial and not because it believed appellant was under a misapprehension as to the number of offenses involved. The major premise of his argument being false, appellant's carefully constructed syllogistic structure must collapse.

A trial court may set aside a plea of guilty that is otherwise perfectly valid. Likewise, the Court may feel it necessary to set aside a valid waiver of indictment. Whether or not the Court will act in this area is a matter that is addressed to the sound discretion of the Court and will not be set aside or disregarded on appeal unless clearly erroneous, with the burden of proof resting on appellant. Friedman v. United States, 200 F.2d 690 (8 Cir. 1952) Cert. denied 1953, 345 U.S. 926, 73 S.Ct. 784, 97 L.Ed. 1357; Rehearing denied 1953, 345 U.S. 961, 73 S.Ct. 937, 97 L.Ed. 1381. Moreover, just because the Court may be moved to exercise its discretion in one area it does not follow that it must exercise it the same way or in the same vein in other areas. For it is clear that in determining a motion for vacation of sentence and a motion to withdraw waiver of indictment, the Court will necessarily make reference to different factors. The considerations which influence the Court in granting a withdrawal of a guilty plea may differ markedly, in weight and kind, from those given to a request to set aside a waiver of indictment. To illustrate, a trial by jury is perhaps the most basic of rights afforded an accused. Courts are, therefore, meticulous in seeing that this right is protected. It is our experience that trial courts are somewhat liberal, and rightfully so, in the exercise of their discretion allowing accused persons to withdraw their pleas of guilty in order that the question of guilt might be decided after a trial before a jury. On the other hand the right to a grand jury indictment,...