Marcello v. United States, 20378.
| Decision Date | 12 March 1964 |
| Docket Number | No. 20378.,20378. |
| Citation | 328 F.2d 961 |
| Parties | Carlos MARCELLO, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Michel A. Maroun, Shreveport, La., Jack Wasserman, David Carliner, Washington, D. C., G. Wray Gill, New Orleans, La., for appellant.
Harry T. Alexander, Atty., Dept. of Justice, Washington, D. C., Peter E. Duffy, Edward Malenof, Asst. U. S. Attys., Louis C. LaCour, U. S. Atty., New Orleans, La., Shellie F. Bowers, Atty., Department of Justice, Washington, D. C., for appellee.
Before HUTCHESON and BELL, Circuit Judges, and BREWSTER, District Judge.
This is an appeal from a denial of a petition in the nature of a writ of error coram nobis. The appellant, Carlos Marcello, seeks to vacate an October 29, 1938 conviction of the Marihuana Tax Act of 1937, on the grounds that on the day of conviction he was not represented by counsel and he did not waive his right thereto.
The district judge denied the petition, writing two opinions in connection with its denial. The first, dated March 9, 1962, is reported as United States v. Carlos Marcello, D.C., at 202 F.Supp. 694, et seq., the second, from which this appeal comes, D.C., at 210 F.Supp. 892 et seq. These two opinions fully and carefully stated and exhaustively canvassed and decided against the movant the question presented by his petition.
The appellant on page 15 of his brief states:
"The issue presented herein is whether appellant pleaded guilty on October 29, 1938, in the absence of his counsel, Warren O. Coleman, without an intelligent or competent waiver of counsel."
In summary, appellant's position is that the trial court applied an improper burden of proof, and that his findings were clearly erroneous.
The salient facts are carefully and correctly stated in the two opinions. They may be thus summarized: Carlos Marcello was charged in a two count indictment, returned by the Grand Jury of the United States empaneled, sworn, and charged at New Orleans, Louisiana, for violations of the Marihuana Act of 1937. Marcello appeared in open court with counsel, W. O. Coleman, now deceased, on May 2, 1938, and entered a plea of not guilty. This case was called on June 6, 1938, and continued indefinitely at the request of J. Skelly Wright, who was the Assistant United States Attorney at that time. On October 29, 1938, a Saturday, Marcello in open court changed his plea to guilty before Circuit Judge Rufus E. Foster, and was sentenced to one year and one day by Judge Foster. The judgment and...
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...1973); Ybarra v. United States, 461 F.2d 1195 (9th Cir. 1972); United States v. Marcello, 210 F.Supp. 892 (E.D.La.1962), aff'd 328 F.2d 961 (5th Cir. 1964). In a coram nobis case, the burden of proof is on the convicted and the quantum of proof is "preponderance of the evidence." Dwyer v. S......
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