Coleman v. Burnett

Decision Date14 March 1973
Docket NumberNo. 71-1114.,71-1114.
Citation477 F.2d 1187
PartiesLawrence D. COLEMAN et al., Appellants, v. The Honorable Arthur L. BURNETT, United States Magistrate for the District of Columbia, et al.
CourtU.S. Court of Appeals — District of Columbia Circuit





Jon P. Axelrod, Washington, D.C., with whom Norman Lefstein, Washington, D.C., was on the brief, for appellants.

C. Madison Brewer, Asst. U.S. Atty., with whom Thomas A. Flannery, U.S. Atty. John A. Terry, Gregory C. Brady, Joseph M. Hannon, Asst. U.S. Attys., at the time the brief was filed, C. Francis Murphy, Corp. Counsel for the District of Columbia, Richard W. Barton and Leo N. Gorman, Asst. Corp. Counsels, were on the brief, for appellees. Charles F. Flynn and William H. Schweitzer, Asst. U.S. Attys., also entered appearances for appellee Burnett.

Before FAHY, Senior Circuit Judge, and McGOWAN and ROBINSON, Circuit Judges.


This appeal tenders for resolution questions as to the examinatorial entitlements of the criminally accused at federal preliminary hearings. Appellants, Lawrence D. Coleman, Jorge D. Dancis and Ronald Shepard, were arrested and charged1 with the commission of unrelated crimes within the District of Columbia. Following arrest, each was brought before a judicial officer2 for the proceedings prescribed by then Rule 5 of the Federal Rules of Criminal Procedure.3 Coleman and Dancis each sought, and each was denied, a subpoena requiring the attendance at his preliminary hearing of the only apparent eye-witness to his alleged offenses. Shepard, during his preliminary hearing, was restricted in cross-examination of the complainant and a corroborating Government witness, and in the presentation of evidence of his own.

Subsequent to the preliminary hearings, the three appellants joined in a class-action complaint in the District Court. They sought declaratory judgments that the preliminary hearings were defective, writs of mandamus reopening them, and an injunction restraining, pendente lite, presentation of their cases for grand jury consideration.4 The District Court denied a preliminary injunction and dismissed the action,5 and this appeal ensued. For reasons which follow, we reverse the District Court's judgment to the extent that it denied a declaration that Dancis' preliminary hearing was faulty and remand the case in order that the declaration may be made. In all other respects we affirm, but without prejudice to rectification in the criminal proceeding pending against Dancis of the error committed at his preliminary hearing.

Some of the questions advanced on appeal are common to the cases of two or more of the three appellants.6 Each appeal, however, also tenders an issue not present in either of the others. We therefore treat the three cases separately.


After joining in this appeal, Coleman was indicted in two bills for multiple violations of the federal narcotic laws.7 Two days before oral argument on the appeal, he entered a plea of guilty to two counts, one in each of the two indictments.8 He insists that his preliminary hearing, at which the charges laid in one of the indictments were aired, was fatally infirm and that we should now direct that it be reopened.9 He further argues, as he must, that the plea does not stand in the way of the appeal brought here for that purpose. We do not agree.

A plea of guilty consummating a voluntary and intelligent choice of available alternatives10 has serious ramifications for the criminal proceeding. It operates as an admission of all material facts alleged in the count or counts pleaded to,11 and thus dispenses with the need to prove them.12 More important, however, is the effect of the plea beyond this service for the Government. "The plea is more than an admission of past conduct; it is the defendant's consent that judgment of conviction may be entered without a trial—a waiver of his right to trial before a jury or a judge."13 It is thus an act bringing the prosecution to a successful end by solemnly establishing the offense so acknowledged:

A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence.14

We speak, of course, only of a valid plea of guilty, which by definition is one which is understandably as well as voluntarily made.15 The plea cannot take on that character unless, among other things, the accused is aware of the consequences,16 of which its conclusivity on the proceeding is not the least. But if, on the other hand, the accused possesses that awareness and nonetheless enters the plea, it is truly an "intentional relinquishment or abandonment"17 of defenses and procedural entitlements of which the defendant otherwise might have availed himself.18

So it is that "an unqualified plea of guilty, legitimately obtained and still in force, bars further consideration of all but the most fundamental premises for the conviction."19 Emerging from the numerous decisions on the subject is the well settled rule that an unconditional plea of guilty waives all prior infirmities in the prosecution which affect neither the court's jurisdiction nor the substantive sufficiency of the indictment.20 The decisions make equally plain the corollary that as long as the plea stands, it bans consideration of other types of defects on appeal.21 We are unable to distinguish, in terms of the bar, a direct appeal in the criminal proceeding from an appeal in collateral litigation designed, as here, to secure benefits at a criminal trial.

As we have said, the key to waiver, and to conclusivity of the plea on further litigation, combines the accused's understanding that that would become a consequence of pleading guilty and his willingness to so plead on those term.22 The plea is invalid, of course, if the accused did not realize that it would sacrifice his right to judicial determination of the factual and legal issues by a trial with ultimate appellate review.23 And surely an accused is not barred from pursuing his appeal by pleading guilty where a statute authorizes him to do both.24 But there is an inherent conflict in the notion that, absent such a statutethe case in the federal system —an accused can intelligently waive adverse pre-plea rulings with a view to reposing the litigation and still keep the issues alive on appeal.

We are mindful of the suggestion that the ends of sound judicial administration might be better served by permitting the accused to preserve adverse rulings on legal questions for appeal without the burden of a potentially futile trial on the merits.25 That position was asserted in United States v. Doyle,26 but the court answered:

The premise is sound enough but the conclusion does not follow. There are a number of ways to deal sensibly with such a case without departing from the conclusivity rule. A plea expressly reserving the point accepted by the court with the Government\'s consent or a stipulation that the facts are as charged in the indictment are two; failing either of these, the defendant can simply stand on his not guilty plea and put the Government to its proof without developing a case of his own.27

We agree, and believe too that without a choice between the competing values by an exercise of statutory or rule-making powers,28 the availability of appeal must depend on the breadth of the accused's waiver.29

That Coleman's waiver was broad enough to encompass his present appeal is a matter not fairly open to doubt on the record. Unlike the two counts to which he pleaded guilty, other counts of the indictments against him charged crimes for which there were mandatory penalties,30 which anyone would naturally wish to avoid. The Government was willing to accept Coleman's plea on the two counts carrying lighter penalties, but only if the plea were tendered right away. The Government made it plain that it would not hold its offer of acceptance open just to enable Coleman to litigate this appeal. This was fully appreciated by defense counsel, who protested the Government's position to the District Judge, and by Coleman himself, who acknowledged to the judge his understanding that the plea would foreclose both trial and appeal.31 We conclude that Coleman's outstanding plea of guilty has precisely that effect.

The plea, we are also persuaded, was unaffected by Coleman's simultaneous protestation of innocence.32 While pleas of guilty are usually accompanied by express admissions of guilt,33 lack of that element in no wise conditions the plea.34 In North Carolina v. Alford,35 the Supreme Court held flatly that "an individual accused of crime may voluntarily, knowingly and understandably consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime."36 Long prior to the decision in Alford, penalties imposed on defendants who maintained even vigorously that they did not commit the charged offenses, but who nonetheless entered pleas of nolo contendere, were upheld against constitutional attacks upon them.37 In Alford, the Court perceived no difference between a guilty plea refusing to avow the commission of the offense and one simultaneously maintaining the accused's innocence.38 As long as each is voluntarily and intelligently entered, there is no cause for constitutional complaint.39

Similarly, the Government's refusal to extend its acceptance of the plea for the period Coleman continued in this litigation did not vitiate the plea.40 The Government's declination stemmed from its concern that its case against Coleman might deteriorate in the meantime, and it is not for us to substitute our judgment...

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